Chief Registrar v. Vilimone Vosarogo

• Jurisdiction: Fiji
• Judge: Dr. T.V. Hickie
• Judgment Date: 29 September 2017
• Date: 29 September 2017
• Docket Number: No. 002 of 2016
• Counsel: Counsel for the Applicant: Mr. A. Chand,Respondent: Ms. B. Malimali with Mr. Vosarogo
• Court: High Court (Fiji)

IN THE INDEPENDENT

LEGAL SERVICES COMMISSION

No. 002 of 2016

Between:

Chief Registrar

Applicant

v.

Vilimone Vosarogo (Aka Filimoni Wr Vosarogo)

Respondent

Coram:

Dr. T.V. Hickie, Commissioner

Counsel for the Applicant: Mr. A. Chand

Respondent: Ms. B. Malimali with Mr. Vosarogo

Dates of Hearing: 14^th June 2017, 18^th and 19^th September 2017

Date of Judgment: 29^th September 2017

JUDGMENT ON SANCTIONS

1. Introduction

[1] This is a judgment as to the sanctions to be imposed upon a legal practitioner following his pleading guilty to four counts of professional misconduct amounting to a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. In a nutshell, for the audit period of 2015 (i.e. 1^st October 2014 to 30^th September 2015), the Respondent legal practitioner negligently failed to ensure that the accounts of four of his clients were not overdrawn in a combined sum of $14,826.21. There is no suggestion of fraud by him.

[2] On my calculations, the Respondent has now been waiting 18 months and 29 days up until today for a resolution of this matter since the Chief Registrar refused to issue him with a practising certificate as from 1^st March 2016. It is now just on 12 months since the proceedings commenced in the Commission with an initial application containing four Counts. An Amended Application was then filed containing 13 Counts. Finally, there was the filing of a Further Amended Application containing four Counts to which the Respondent pleaded guilty. The issues raised have required a major interlocutory judgment, as well as four ex tempore judgments. Meanwhile, the Respondent has had various periods without a practising certificate (in effect, suspended) and other periods working under a restricted practising certificate with strict conditions.

[3] Arguably, this is the first case of its type to come before the Commission on the sole issue of where a legal practitioner has been negligent in the operation of their trust account to the extent that it is beyond being a minor matter but not to the extent that it has required the practitioner's name to be struck from the Roll. As for similar matters prior to the formation of the Commission, Counsel for the Respondent legal practitioner advised during the sanctions hearing that “before the ILSC came in we know cases from the Law Society but they are nowhere recorded”. Hopefully, the above may assist in explaining the necessity for the detailed judgment that is to follow, as well as providing a guide for both “prosecution” and “defence” should similar matters arise in the future.

2. Background

[4] According to the written submissions of Counsel for the Respondent legal practitioner, the Respondent was born on 27^th September 1976. This means that on Wednesday of this week he turned 41 years of age – an important stage in one's life and career. Further, the Respondent is married, is the father of six children and is also responsible for the care of his elderly mother.

[5] In relation to his legal career, I have been advised that the Respondent commenced work as a Barrister and Solicitor of the High Court of Fiji in late 1999. After working for the Office of Director of Public Prosecutions from November 1999 until September 2003, he was then appointed as the Manager Legal Service for the Land Transport Authority. In June 2006, he was appointed for a period of three years as the Director of the Legal Aid Commission. In June 2010, he opened his own law firm, Mamlakah Lawyers based in Suva. He has been the sole principal of that firm ever since. In addition, he has also been the legal adviser/representative to a number of community organisations in Fiji: the Fiji Rugby Union, the Fiji National Rugby League, the Scripture Union in Schools, the Fiji Teachers Registration Board, as well as a past Council Member of the Fiji Law Society.

[6] The Respondent has also been the sole trustee of his firm's trust account. For the audit period of 2015 (i.e. 1^st October 2014 to 30^th September 2015), the firm's trust account was overdrawn $14,826.21. After an investigation, it was revealed that four ledgers in the firm's trust account were overdrawn as follows:

(1) Mamlakah Health & Safety's account was overdrawn by $14,090.17;

(2) Eugenia Guruyawa Foon's account was overdrawn by $715.89;

(3) Janendra Murti's account was overdrawn by $10.10;

(4) Lai Hui v Changlin and Wang Xiutu's account was overdrawn by $10.05.

[7] When the above came to light following the yearly external audit of the Respondent firm's trust account, the Respondent admitted that the firm had a poor manual accounting system. He personally repaid into the firm's trust account the overdrawn sum totalling $14,826.21. He also purchased a software package for the firm's trust account.

[8] On 1^st March 2016, which was the beginning of the legal practising year, the Chief Registrar refused to issue the Respondent with a new practising certificate.

[9] Just under four months later, on 27^th June 2016, the Chief Registrar filed an application with the Commission alleging three counts of professional misconduct by the Respondent legal practitioner. That application was made returnable in the September 2016 Sittings of the Commission.

[10] After various discussions during those Sittings, Orders were made for the filing of submissions in relation to the Applicant's Interlocutory Application for Amendment of Count 3 and the Respondent's Interlocutory Application for the charges to be struck out. The matter was then listed at the commencement of the November/December 2016 Sittings for a ruling on those two applications and (depending upon the outcome of the ruling) for a hearing of the substantive matter/s on 7^th December 2016,

[11] In addition, on 23^rd September 2016, Counsel for the Respondent legal practitioner made an oral application (opposed by Counsel for the Chief Registrar) for the issuing of an interim practising certificate until the 7^th December 2016. An ex tempore ruling was delivered on 23^rd September 2016 granting the application but with the following restrictions:

‘Pursuant to Section 121(3) of the Legal Practitioners Decree, the Chief Registrar shall issue a Practicing [sic] Certificate to the Respondent until 7^th December 2016 forthwith on payment of the prescribed pro rata fees, on the following conditions:

(i) The Respondent is not to operate a Trust Account.

(ii) The Respondent is not to operate Trust Account No. ******* held at the Bank ****** unless approved in writing by the Chief Registrar.

(iii) The Respondent is to take the monthly bank statement for Mamlakah Lawyers Trust Account No. ******* held at the Bank ****** to the Office of the Chief Registrar at the end of each month until further notice.

(iv) The Respondent will only operate or practice as a Barrister and will only receive payment upon issuance of an invoice, after the work has been done (Invoice for work done).

(v) The Respondent will work under the Supervision of Mr. Simione Valenitabua who was admitted as a Barrister & Solicitor of the High Court of Fiji in 2006. He is the Managing Partner in the firm of TOGANIVALU & VALENITABUA whose address is 30 High Street, Toorak, Suva.’

(See Chief Registrar v Vosarogo, Unreported, ILSC Case No.002 of 2016, 23 September 2016; PacLII: [2016] FJILSC 6, .)

[12] The matter was then relisted at the commencement of the November/December 2016 Sittings when Orders were made for the filing of further written submissions to be addressed at a hearing on 7^th December 2016.

[13] On 7^th December 2016, following the hearing in relation to the two interlocutory applications, Counsel for the Respondent legal practitioner made an oral application (opposed by Counsel for the Chief Registrar) for the issuing of an interim practising certificate until the next mention date on 6^th February 2017. An ex tempore ruling was delivered on 7^th December 2016 granting the application upon the same restrictions as set out in the ex tempore ruling of 23^rd September 2016. (See Chief Registrar v Vosarogo, Unreported, ILSC Case No.002 of 2016, 7 December 2016; PacLII: [2016] FJILSC 9, .)

[14] On 6^th February 2017, a Ruling was delivered on the two interlocutory applications wherein (1) The Applicant's Application seeking Leave to Amend Count 3 was refused and (2) The Respondent's Application for the three counts to be stuck was granted in part. Leave was granted, however, to Counsel for the Chief Registrar to file an Amended Application. The matter was then made returnable on 13^th February 2017, to hear from Counsel for the Respondent as to whether she had any objections to the Applicant's Further Amended Application and, if not, to set the substantive matter down for hearing. (See Chief Registrar v Vosarogo, Unreported, ILSC Case No.002 of 2016, 6 February 2017; PacLII: [2017] FJILSC 1, .)

[15] Immediately following the above ruling on 6^th February 2017, Counsel for the Respondent legal practitioner made an oral application (that was opposed by Counsel for the Chief Registrar) for the continuation/issuing of an interim practising certificate until 28^th February 2017 (the end of the “2016” legal practising year). An ex tempore ruling was delivered on the same date granting the application upon the same restrictions as set out in the ex tempore ruling delivered on 23^rd September 2016. (See Chief Registrar v Vosarogo, Unreported, ILSC Case No.002 of 2016, 7 February 2017; PacLII: [2017] FJILSC 9, .)

[16] On 10^th February 2017, an Amended Application was filed by Counsel for the Chief Registrar alleging 13 counts of professional misconduct against the Respondent legal practitioner.

[17] On 13^th February 2017, the Amended Application was set down for hearing on 10^th April 2017 with a time estimate of two days and, if necessary, a third hearing day on 13^th April 2017. Counsel for the Respondent legal practitioner then made an oral application (opposed by Counsel for...