Why Fiji Law Society’s Joinder Application Refused

Judge: The organisation might move from that of purported neutral to one of partisanship.
06 Oct 2022 08:52
Why Fiji Law Society’s Joinder Application Refused
Richard Naidu outside the Civil High Court in Suva on October 5, 2022. Photo: Ashna Kumar

The Civil High Court has refused Fiji Law Society’s Application for joinder to intervene in the committal proceedings against Richard Naidu.

The matter arose when the Fiji Law Society (FLS) filed a summons seeking an order directing that the Fiji Law Society be granted leave to be joined as an intervener.

Additionally, for the law body to be permitted to file and serve written submissions and appear at the substantive hearing of the application for committal (oral submissions may be made only if leave granted at the hearing).


The grounds on which the Fiji Law Society sought the order on are:

  • The issue raised by the application are of public and general importance, and concern professional standards the rule of Law and public confidence in the administration of justice in Fiji;
  • The Fiji Law Society has statutory functions under the Legal Practitioners Act 2009 to maintain the professional standards of its members and to protect and assist the public in all matters incidental to the practice of the Law;
  • The Fiji Law Society will provide the court with material assistance on an independent and objective basis, which is important given the inherent conflicts in proceedings of this type; and
  • The Fiji Law Society’s participation will focus on providing legal submissions and relevant legal authorities, and will have no material adverse effect on the efficient hearing and determination of proceedings.


Strong argument against application

The application was strongly opposed by the A-G’s counsel. She argued that FLS had claimed that by virtue of these being committal proceedings concerning allegations relating to scandalising the Court and the Judicial Officer presiding had some sort of vested interest and for that reason, the Court would not be impartial.

The A-G’s lawyer had also opposed on the ground that the mere fact that a member of the FLS had contempt proceedings brought against him did not in their submission give rise to FLS being joined as a party in the proceedings; amongst other grounds.

In his Decision, Judge Justice Jude Nanayakkara, said there was no specific statutory authority allowing the High Court to hear amici curiae or interveners.

He said the FLS’s allegation presupposed that ‘the court was not capable of presiding over these proceedings in an objective and impartial manner’.

The judge rejected that assumption and said it was wrong to allege that ‘in proceedings where the nature of contempt was criminal contempt scandalising the court, it was inevitable that the Judge to whom the application was assigned would have a personal interest in the proceedings’.


Court’s neutral stance

He said the court played the role of neutral adjudicators who applied the law made by the Parliament and declared the pre-existing Common Law.

He said this was the court’s sole function.

He added that being so, it could properly be said that the court’s decision in a particular case was nobody’s business but the parties.

He said the judge as a neutral arbiter weighed the arguments presented by the counsel in order to arrive at the resolution of a dispute.


He said the FLS had a statutory duty under Section 13 of the Legal Practitioners Act to promote the welfare of its members and to represent, protect and assist its members including its distinguished member Naidu, representing the interest of its distinguished member.

The judge said therefore, FLS was not neutral and would not remain neutral in these proceedings.

He said the FLS had a material interest at the legal issue at stake through its member however; the Judge said he was not satisfied that the submissions to be made on behalf of the FLS would be made independently of the parties and would provide a different perspective for the court to consider when making its decision.


Why application refused

He said the court could not grant the permission to the FLS to enter the arena upon the purported sense of responsibility for the public interest because the FLS might move from that of purported neutral to one of partisanship and would inject arguments in the interest of its distinguished member and advance his defence than to assist court on an objective and neutral basis.

Justice Nanayakkara said the intervention would create an impression of partialities and that it would be just to adjudicate on the matter in dispute without the intervener being heard.

He said the FLS had no statutory function to facilitate Administration of Justice in Fiji and therefore, the court would not welcome the involvement of the FLS.


He added that the bodies such as FLS may bring political motivation to the litigation in which they took part in the sense that their purpose was often to have the currently understood state of the Law changed depending on the context.

The Judge said the AG’s role as the guardian of the public interest was particularly important in this case and that the role of the AG on guardian of the public interest was explained in uncompromising terms by Lord Wilberforce in “Gouriet v Union of Post Office Wokers”.

The case law stated: “It is the exclusive right of the AG to represent the public interest even where individuals might be interest in a larger view of the matter-is-not technical, not procedural, not fictional. It is unconstitutional.


The Judge also said it was clear that the AG was the person who had the exclusive responsibility for protecting the public interest in this case.

He said he was sure that the FLS did not have an interest upon sense of public interest that extended beyond the interest of the AG.

He said he failed to see how he could be assisted by the FLS presenting submissions on the topic of public interest which the AG intended to address.

The Judge said the AG vigorously opposed the application and here the risk of prejudice and unfairness to the AG was greater by the intervention by FLS because the FLS may not be impartial.


He added that it was doubtless true that the FLS was seeking to intervene in litigation before him with the objective of influencing the court in order to attain what they perceived to be a favourable outcome.

The Judge said he had a strong sense that FLS might move to play an active advocacy role by persuading the court to resolve one or more of the issues raised in the litigation in a manner that they considered desirable.

He said this meant of influencing judicial decisions.



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