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Vanuatu Consolidated Legislation - 1988

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Legal Practitioners Act

LAWS OF THE REPUBLIC OF VANUATU
REVISED EDITION 1988


LEGAL PRACTITIONERS
[CAP 119]


To provide for the admission and registration of legal practitioners, their qualifications discipline and other matters connected therewith.


PART IINTERPRETATION


INTERPRETATION1. In this Act unless the context otherwise requires,-


"employee" means a person employed by a legal practitioner in his professional practice in any capacity or a person serving a qualifying period of apprenticeship or training with a legal practitioner in accordance with any regulation made under section 15;


"legal practitioner'' means a person registered as a legal practitioner in accordance with any regulation made under section 15;


"Secretary" means the Secretary of the Law Council appointed in accordance with section 4.


PART II
LAW COUNCIL


ESTABLISHMENT OF LAW COUNCIL


2. (1) There is established a council to be known as the Law Council.


(2) The Law Council shall consist of:


(a) The Chief Justice who shall be chairman;


(b) The Attorney General;


(c) One legal practitioner appointed for 2 years by the Minister responsible for justice and who shall be eligible for re-appointment.


DISQUALIFICATION OF MEMBER


3. The office of the appointed member of the Council shall become vacant if he-


(a) resigns by not less than 30 days notice in writing addressed to the Minister;


(b) ceases to be a registered legal practitioner;


(c) becomes bankrupt;


(d) is declared by notice in writing addressed to the Minister and signed by the other members to be incapable by reason of physical or mental illness from carrying out the functions of his office;


(e) becomes otherwise unable or unfit to carry out the duties of his office as a


SECRETARY TO THE LAW COUNCIL


4. (1) There shall be a Secretary to the Law Council who shall be a public officer.


(2) The Secretary may be the holder of another public office.


(3) When there is a Secretary the Minister responsible for justice may appoint a public officer as acting Secretary.


FUNCTIONS OF LAW COUNCIL


5. (1) The Law Council shall have general responsibility for the control and supervision of legal practitioners.


(2) Without derogating from the generality of subsection (1) the Law Council shall:


(a) prescribe the qualification for legal practitioners;


(b) keep a Register of Legal Practitioners;


(c) be responsible generally for the discipline of legal practitioners;


(d) be responsible for the etiquette and conduct of legal practitioners;


(e) provide for the legal education and training of legal practitioners;


(f) control the registration of notaries public.


MEETING OF THE LAW COUNCIL


6. (1) Meetings of the Law Council shall be convened by the Chief Justice by not less than 7 days notice in writing to the other members:


(2) Decisions of the Law Council shall be made by a majority of its members.


(3) The quorum at meetings shall be all the members.


(4) Subject to this Act the Law Council may regulate its own procedures.


PART III
DISCIPLINARY COMMITTEE


DISCIPLINARY COMMITTEE


7. (1) The Law Council shall by order appoint a Disciplinary Committee to hear complaints against legal practitioners and employees.


(2) The Disciplinary Committee may be appointed for a fixed term or from time to time to hear a particular complaint or number of complaints.


(3) The Disciplinary Committee shall consist of not less than five persons who shall be:


(a) a judicial officer within the meaning of the Criminal Procedure Code who shall be chairman;


(b) not less than two legal practitioners nominated by the Attorney General;


(c) not less than one person not qualified to be registered as a legal practitioner;


(d) such other person or persons as the Law Council shall consider suitable.


(4) The quorum at meetings of the Disciplinary Committee shall be three members. The same three members shall constitute a quorum for the entire hearing of a disciplinary complaint.


(5) The Secretary shall be the secretary of the Disciplinary Committee.


COMPLAINTS AGAINST LEGAL PRACTITIONERS AND EMPLOYEES


8. (1) Any person who wishes to complain concerning the conduct of a legal practitioner or an employee shall do so by lodging a complaint in writing to the Secretary containing specific allegations of misconduct which may consist of acts or omissions.


(2) The manner in which the Disciplinary Committee shall ......... complaints shall be prescribed be made for summary where the committee considers a complaint does not reveal a, prima facie 'case of misconduct.


POWERS OF DISCIPLINARY COMMITTEE


9. (1) The Disciplinary Committee shall have the same powers as the Supreme Court to summon and examine witnesses and order the production of documents.


(2) The Disciplinary Committee may require the Secretary to investigate and report on a complaint before it, considers it further.


(3) If the Disciplinary Committee finds a legal practitioner has committed misconduct it may-


(a) order that he be struck out of the Register of Legal Practitioners;


(b) suspend the legal practitioner from practice for such period as it shall consider fit;


(c) impose a fine of not more than VT150,000 on the legal practitioner which shall be payable into the Revenue Fund;


(d) order the legal practitioner in addition to any other penalty to pay compensation to a complainant of not more than VT150,000;


(e) reprimand the legal practitioner.


(4) If the Disciplinary Committee finds an employee has committed misconduct it may order that no legal practitioner may employ that employee either without defining a period or during a defined period from the date of the order.


(5) The Disciplinary Committee may, order a complainant or person against whom a complaint has been made to pay the costs or part of the costs of any person appearing before it.


APPEALS


10. (1) A person found guilty of misconduct by the Disciplinary Committee may appeal against such finding to the Supreme Court within 15 days of the notification to him by the Secretary of such finding.


(2) The Chief Justice shall make rules for appeals to the Supreme Court under this section.


(3) The Supreme Court may dismiss such appeal or set aside or vary the decision of the Disciplinary Committee.


(4) the Attorney General may appoint counsel to represent the Disciplinary Committee as respondent before the court.


APPLICATIONS FOR RESTORATION TO REGISTER AND FOR CANCELLATION OF ORDERS OF DISCIPLINARY COMMITTEE


11. (1) A person against whom an order has been made under section 9(3)(a) may apply to the Disciplinary Committee at any time or times after 6 months have elapsed after the making of the order to have his name restored to the Register of Legal Practitioners.


(2) A person against whom an order has been made under section 9(3)(b) or section 9(4) may if the order is indefinite or for 12 months or more apply to the Disciplinary Committee at any time or times after 6 months have elapsed after the making of the order to have the order cancelled or the period of suspension made shorter.


(3) The Disciplinary Committee shall have absolute discretion to restore the name of the applicant to the Registrar of Legal Practitioners, cancel the order, shorten the order, refuse the application.


PART IV
PRACTICE BY PERSONS NOT REGISTERED LEGAL PRACTITIONERS


PENALTY FOR ILLEGALLY PRACTISING AS A LEGAL PRACTITIONER


12. Subject to section 13 any person, legal practitioner or being a legal practitioner but suspended , and whether from practice, or not, such person has at any time before the coming into operation of this Act practised as a legal practitioner in Vanuatu who holds himself out to be entitled to practice or practises as a legal practitioner in Vanuatu shall be guilty of an offence and liable on conviction to imprisonment, for 2 years, or to a fine of VT40,000 or to both such fine and imprisonment.


TEMPORARY PRACTICING CERTIFICATE


13. (1) Notwithstanding the other provisions of this Act the Chief Justice may on his own motion or on an application by the Attorney General or a legal practitioner grant a person who is not registered as a legal practitioner under this Act a temporary practicing certificate.


(2) A temporary practicing certificate shall be granted under subsection (1) either-


(a) for the person named in the certificate to act as counsel in a case to be heard or being heard by a court in Vanuatu; provided that the person named in the certificate is acting under the instructions of the Attorney General or a registered legal practitioner; or


(b) if the Chief Justice considers that it would be in the public interest to grant a certificate.


PENALTY FOR EMPLOYING PERSONS SUSPENDED FROM EMPLOYMENT


14. A legal practitioner who knowingly employs a person in respect of whom an order has been made under section 9(4) shall be guilty of an offence and liable on conviction to a fine not exceeding VT50,000.


PART V
REGULATIONS


REGULATIONS


15. (1) The Law Council may make rules and regulations not inconsistent with the provisions of this Act and for the better carrying out of its provisions.


(2) Without derogating from the generality of subsection (1), regulations made pursuant to this section may provide for-


(a) the qualifications required for applicants for registration as legal practitioners;


(b) the name by which legal practitioners shall be called;


(c) the postgraduate training of persons desiring to become legal practitioners;


(d) forms and fees that persons making applications pursuant to this Act or orders made hereunder may be required to complete and pay;


(e) the form of the Register of Legal Practitioners and certificates of registration therein;


(f) the procedures to be followed for the making of complaints and for hearings of the Disciplinary Committee;


(g) the procedure to be followed on applications for cancellation of orders by the Disciplinary Committee;


(h) rules of etiquette conduct of legal practitioners;


(i) scales of fees chargeable by legal practitioners in contentious and non contentious matters;


(j) the regulation of the manner in which legal practitioners shall deal with money held by them on behalf of other persons and the accounts to be kept in respect thereof;


(k) the auditing of the accounts of legal practitioners and the qualifications of the auditors who audit those accounts;


(l) the conduct of employees;


(m) any other matter that small or maybe prescribed under this Act.


-----------------------------------------------------------


SUBSIDIARY LEGISLATION


LEGAL PRACTITIONERS (DISCIPLINARY PROCEDURE) RULES


ARRANGEMENT OF RULES


RULE


1. Interpretation

PART I
Disciplinary Committee Procedure Rules


2. Complaints against legal practitioners or employees
3. Consideration by the Council
4. Referral of application or complaint to the Committee
5. Committee to require further representations from legal practitioners etc.
6. Summary dismissal of applications or complaints
7. Committee to fix date(s) for hearing
8. Period and term of notice, list of all documents, etc.
9. Hearings to be conducted in private
10. Failure to attend hearing
11. Witnesses may be required to attend and give evidence
12. Witnesses required by person making application or complaints and by person against whom such application or complaint made
13. Parties may appear by counsel
14. Immunity of witnesses and counsel
15. Witnesses' expenses
16. The Committee may proceed and act upon evidence given by affidavit
17. Chairman of the Committee to preside at meetings
18. Orders and decisions of the Committee
19. Notification of orders and decisions of the Committee to parties concerned
20. Withdrawal of applications or complaints
21. Adjournment of hearing
22. Amendments made to applications or complaints
23. Record of proceedings
24. Service of notices etc.
25. Substituting service of documents, etc.
26. Non-compliance with Rules
27. Discretion of the Committee to adopt further procedures
28. Affidavits, etc. to be filed by the Secretary
29. Form of subpoena,
30. Restoration of Legal Practitioners to the Register of Legal Practitioners, Cancellation of and Decisions of the Committee
31. Application for restoration
32. Referral of application to the Committee
33. Application to be heard by the Committee
34. Service of notice, etc.
35. Notice of hearing
36. Opposition to application
37. Procedure at hearing
38. Publication of terms of restoration
39. Costs, expenses, etc.
40. Restrictions on subsequent applications

SCHEDULE

Form 1-Form of application or complaint against a legal practitioner or an employeeForm 2-Form of affidavit by applicant

Form 3-Notice to produce list of documents

Form 4-Form of notice to legal practitioner by the secretary off the Disciplinary Committee

Form 5- Form of disciplinary order

Form 6-Form of subpoena ad testificandum

Form 7-Form of subpoena duces tecum

Form 8-Application for restoration to the register of legal practitioners and to the roll in the Supreme Court of Vanuatu

Form 9-Application for cancellation of variation of orders made by the Disciplinary Committee in exercise of its powers under section 9(3)(b) or section 9(4) of the Legal Practitioners Act, Cap. 119

Form 10-Notice of hearing of application for restoration to the Register of Legal Practitioner


LEGAL PRACTITIONERS (DISCIPLINARY PROCEDURE) RULES


To provide rules of procedure to be followed in the making of complaints and for hearings of the Disciplinary Committee


Interpretation


1. In these rules unless the context otherwise requires-


"Act" means the Legal Practitioners Act, Cap. 119;


"Council" means the Law Council established in accordance with section 2 of the Act;


"Committee" means dip Disciplinary Committee established in accordance with section 7 of the Act;


"employee" means a person employed by a legal practitioner in his professional practice in any capacity or a person serving a qualifying period of apprenticeship or ???U-dining with a legal practitioner in accordance with any rules or regulations made under section 15 of the Act;


"legal practitioner" means a person who is registered as a legal practitioner in accordance with the provisions of the Act;


"Secretary" means the Secretary to the Council appointed in accordance with section 4 of the Act.


PART I
DISCIPLINARY COMMITTEE PROCEDURE RULES


COMPLAINTS AGAINST LEGAL PRACTITIONERS OR EMPLOYEES


2. (1) An application or complaint to the Secretary making any allegation of professional misconduct or unprofessional conduct on the part of a legal practitioner or an employee shall be in writing under the hand of the applicant in Form 1 m the Schedule or to the like effect, and shall be sent to the Secretary together with an affidavit in support thereof by the applicant Form 2 in the Schedule or as near thereto as the circumstances will permit stating the matters of fact on which he relies in support of his application or complaint:


Provided that where the complaint is made by or on behalf of the Council the complaint may be signed and the affidavit sworn on behalf of the Council by the chairman of the Council or by such other person as may from time to time be authorised by the Council.


(2) Every such application or complaint shall, contain an address for service.


(3) Upon receipt of an application or complaint the Secretary shall in the first instance refer such application or complaint to the Council.


CONSIDERATION BY THE COUNCIL


3. On receiving an application or complaint which, in the opinion of the Council. is not made in accordance with the provisions of rule 2, the Council, if it seems to it desirable, may direct the Secretary to make further inquiry into the matter and the Secretary may require the applicant to resubmit the application or complaint in accordance with the provisions of rule 2.


REFERRAL OF APPLICATION OR COMPLAINT TO THE COMMITTEE


4. On receiving an which in the opinion of the is made in accordance with the provisions of rule 2, the Council shall refer such application or complaint to the Committee.


COMMITTEE TO REQUIRE FURTHER REPRESENTATION FROM LEGAL PRACTIONERS, ETC.


5. (1) the substance of any application or complaint to be conveyed to the legal practitioner or employee to whom the same refers and any representations he may take into account may wish mm deciding whether or not to proceed with a formal hearing. All such representations shall be accompanied by an address for service.


(2)


(3) The Committee may require the Secretary to investigate and report on an application or complaint before it considers such application or complaint further.


SUMMARY DISMISSAL OF APPLICATIONS OR COMPLAINTS


6. (1) Where,, upon the examination of an application or complaint, and of any representations and report made with respect thereto, the Committee considers that such application or complaint does not reveal a prima facie case of misconduct, the Committee may summarily dismiss such application or complaint and inform all parties thereto.


(2) Where the Committee summarily dismisses an application or complaint, the Committee shall, on the request of the person making the application or complaint, furnish him with its reasons for such summary dismissal in writing:


Provided that nothing in this connection shall affect the jurisdiction which apart from the provisions of this rule, is exercisable by any court, or any judge or magistrate thereof, over a legal practitioner or an employee thereof.


COMMITTEE TO FIX DATE(S) FOR HEARING


7. (1) Where, upon the examination of an application or complaint, and of any representations and report made with respect thereto, the Committee considers that there is a prima facie case of misconduct, the Committee shall proceed and conduct a hearing.


(2) The Secretary shall fix a day for the hearing of the application or complaint and shall serve notice thereof upon the parties to the proceedings, and shall serve on each party other than the applicant a copy of the application or complaint and the affidavit in support thereof, and shall likewise serve a copy of any representations made by the legal practitioner or employee concerned on each party except him.


(3) There shall be at least 14 days between the service of such notice and the day fixed therein for the hearing.


PERIOD AND TERM OF NOTICE LIST OF ALL DOCUMENTS, ETC.


8. (1) A notice under rule 7 shall be in such one of the forms set out in the Schedule and numbered 3 and 4 as shall be appropriate, or as near thereto as the circumstances will permit and shall require the party to whom it is addressed to furnish the Secretary and to every other party at least 7 days before the date fixed for the hearing, unless the Committee shall direct otherwise, a fist (including full description, sufficient for identification) of all documents, affidavits, books, papers and other written materials on which he intends to rely.


(2). Subject to any directions by the Committee, any party may inspect the written material included in the list furnished by any other party and require such other party to furnish him with a copy of such written material on payment therefor at the rate of VT40 per page or part thereof.


HEARINGS TO BE CONDUCTED IN PRIVATE


9. The Committee shall hear all applications in private.


FAILURE TO ATTEND HEARING


10. If any party fails to appear at the hearing, the Committee, may, upon proof of service on such party of the notice hearing, if the considers his or complaint in his absence.


WITNESSES MAY BE REQUIRED TO ATTEND AND GIVE EVIDENCE


11. The Committee, by subpoena signed by its chairman of secretary may require any person to attend and &c evidence before arm application or complaint, and to produce all books and document in that persons possession relating to the subject matter of any such application or complaint.


WITNESS REQUIRED BY PERSON MAKING APPLICATION OR COMPLAINTS AM BY PERSON AGAINST WHOM SUCH APPLICATION OR COMPLAINT MADE


12. Where in respect of an application or complaint any party thereto requires the attendance of a witness -at the hearing of such application or complaint, such party shall notify the Committee of the name and address "of. such witness at least 7 days before the date set for the hearing.


PARTIES MAY APPEAR BY COUNSEL


13. At the hearing of any application or complaint, any party thereto may be represented by counsel or an agent nominated by him.


IMMUNITY OF WITNESSES AND COUNSEL


14. Witnesses and counsel shall have the same privileges and immunities in relation to applications and complaints made m- accordance with the Act as if they were proceedings in a court of law.


WITNESSES' EXPENSES


15. Every witness giving evidence or attending to give evidence at the hearing of any application or complaint shall be entitled in the discretion of the Committee to such sum for his expenses and loss of time as the Committee may determine.


THE COMMITTEE MAY PROCEED AND ACT UPON EVIDENCE GIVEN BY AFFIDAVIT


16. The Committee may, in its discretion, either as to the whole case or as to any particular fact or facts, proceed and act upon evidence given by affidavit:


Provided that any party to the proceedings may require the attendance upon subpoena of any deponent to any such affidavit for the purposes of giving oral evidence, unless the Committee is satisfied that the affidavit is purely formal or that the content thereof may be disregarded, or that the requirement of the attendance of the deponent is made with the sole object of causing delay


CHAIRMAN THE COMMITTEE TO PRESIDE AT MEETINGS


17. (1) Subject to paragraph (2) the chairman of the Committee shall preside at all meetings of the Committee.


(2) Notwithstanding the provisions of paragraph (1) where the chairman is absent the members of the Committee present shall elect one of them to act as chairman for that meeting or hearing.


ORDERS AND DECISIONS OF THE COMMITTEE


18. (1) Every order or decision made by the Committee in exercise of its powers under subsections (3), (4) and (5) of section 9 of the Act shall be signed by the person acting as chairman of the Committee at the meeting when the order or decision was made or, if he is not available, by some other member of the Committee present at the meeting when, the order was made.


(2) Every such order or decision shall contain a record of the proceedings including the evidence given there at and the statement of the findings of the Committee in relation to the case.


(3) Every document purporting to be an order or decision the Committee and to be signed Committee in the absence of proof to the contrary be deemed to be a ..... or decision without ... of signature, or proof that the person signing the of the making thereof or order was in fact the chairman or a member of the Committee entitled to sign the order or decision.


(4) An order made by the Committee in respect of its powers under section 9 of the Act shall be in Form 5 in the Schedule as shall, be appropriate, or as near thereto as the circumstances will permit.


NOTIFICATION Of ORDERS AND DECISIONS OF THE COMMITTEE TO PARTIES CONCERNED


19. The Committee shall cause a copy of any order or decision of the Committee to be sent to each party affected thereby or interested therein and to the Attorney General and the Registrar of the Supreme Court within 4 days after it shall have been drawn up and signed in accordance with rule 18.


WITHDRAWAL OF APPLICATIONS OR COMPLAINTS


20. (1) No application or complaint shall be withdrawn after a Disciplinary Committee has been appointed to investigate and hear such application or complaint except with the leave of the Committee.


(2) The Committee may exercise its powers under this rule upon such terms as to costs or otherwise as it shall think fit.


ADJOURNMENT OF HEARING


21. The Committee may of its own motion, or upon the application of any party, adjourn any hearing upon such terms as to costs or otherwise as the Committee shall think fit.


AMENDMENTS MADE TO APPLICATIONS OR COMPLAINTS


22. If, at any stage of the proceedings, the Committee considers that any allegation ought to be amended, or added to, or replaced by some other allegation, the Committee may permit such amendment, addition or replacement, and if in its opinion such amendment, addition or replacement is not within the scope of the affidavit referred to in rule 2 may require the same to be embodied in a further affidavit:


Provided that if such amendment, addition or replacement shall be such as, in the opinion of the Committee, to be likely to take any party by surprise or to prejudice the conduct of his case , the Committee shall grant an adjournment of the hearing upon such terms as to costs or otherwise as it shall think fit.


RECORD OF PROCEEDINGS


23. (1) A shorthand or other note of proceedings may be taken by the Secretary or by a person appointed by the Committee; and any party who appeared at the proceedings shall be entitled to inspect the transcript thereof.


(2) The Secretary shall, if required, supply to any person entitled to be heard upon an appeal against an order of the Committee and to the Council, but (except on the direction of the Council) to no other person, a copy of the transcript of such notes on payment therefor of such charges, not exceeding VT40 per page, as the chairman of the Committee may direct.


SERVICE OF NOTICES ETC.


24. (1) Service of any notice or document may be by letter and such service shall be deemed to be effected at the time when the letter would be ordinarily course of fit.


(2) Service shall be effected at


(a) the address for service (if any) furnished by the person to be notified to the Council; or


(b) at the last known postal address of his principal office address or place;


(c) in any other case at the last known postal address or place of abode of the person to be served:


Provided that every subpoena shall be personally served.


SERVICE OF DOCUMENT


25. The Committee may make- orders for substituting service of any document, and shall have M power to re-open and re-hear any matter in which it is proved or alleged that service was not effected.


NON-COMPLIANCE WITH RULES


26. Non-compliance with any of these rules shall not render any proceedings void unless the Committee shall so direct, but the proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with, in such manner and on such terms as the Committee thinks fit.


DISCRETION OF THE COMMITTEE TO ADOPT FURTHER PROCEDURES


27. The Committee may extend the time for doing anything under these rules and, subject to the provisions of these rules, where no procedure is laid down with respect to any matter, the Committee may adopt such procedure as it thinks fit.


AFFIDAVITS, ETC. TO BE FILED BY THE SECRETARY


28. (1) All affidavits shall be filed and kept by the Secretary.


(2) The Committee may order that any books, papers, or other exhibits, produced or used at any hearing, shall be retained by the Secretary for such time as the Council or the Committee may require.


FORM OF SUBPOENA


29. A subpoena issued in accordance with rule 11 shall be in Forms 6 or 7 set out in the Schedule as appropriate.


COSTS AND RECOVERY OF PENALTIES AND COSTS


30. (1) The Committee may make such orders as to costs on any matter relating to applications or complaints made thereto as it think fit.


(2) Any sum ordered by the Committee to be paid by way of penalty or costs or expenses under these rules shall be deemed to be a debt due by the person ordered to pay it to the person to whom it is ordered to be paid, and shall be recoverable accordingly in any court of competent jurisdiction.


PART IIRESTORATION OF LEGAL PRACTITIONERS
TO THE REGISTER OF LEGAL PRACTITIONERS,
CANCELLATION OF ORDERS AND DECISIONS OF THE COMMITTEE


APPLICATION FOR RESTORATION


31. (1) An application in accordance with section 11(1) of the Act for restoration to the Register of Legal Practitioners shall be made to the Council in the first instance and shall be in writing in Form 8 set out in the Schedule as shall be appropriate, or as near thereto as the circumstances permit.


(2) An application in accordance with section 11(2) of the Acts shall be made to the Council in the first instance and shall be in writing in Form 9 in the Schedule as shall be appropriate, or as', near thereto as the circumstances will.


(3) The contents of any application made under this rule shall be verified by affidavit.


(4) The application and the affidavit in support together with 2 copies of each, shall be lodged with the Secretary.


REFERRAL OF APPLICATION TO THE COMMITTEE


32. On receiving an application pursuant to rule 31 which, in the opinion of the Council, is made in accordance with the provisions of that rule, the Council shall refer such application together with its comments thereon to the Committee or, if there is no Committee for the time being in existence, the Council shall appoint a Committee and refer such application thereto.


APPLICATION TO BE HEARD BY THE COMMITTEE


33. Any application made in accordance with rule 31 shall be heard by the Committee in private not less than 1 month after the lodging of such application with the Secretary.


SERVICE OF NOTICE, ETC.


34. The Secretary shall, not less than 14 days before the date fixed for the hearing of an application made under rule 31, serve upon the Attorney General and the Registrar of the Supreme Court 1 copy of each of the application and the affidavit in support thereof.


NOTICE OF HEARING


35. An applicant who applies in accordance with rule 31 shall, not less than 21 days before the date of hearing cause notice of hearing in Form 10 in the Schedule as shall be appropriate, or as near thereto as the circumstances will permit to be advertised in 2 consecutive issues of the Gazette and of such other newspaper published and circulating in Vanuatu as may be directed by the Council.


OPPOSITION TO APPLICATION


36. Any person who wishes to oppose an application made under this Part shall set out in writing the grounds upon which he relies and shall within 7 days of the date of the last publication of the notice referred to in rule 35, lodge such written grounds with the Secretary and send a copy thereof by registered post to the applicant at the address for service, given by him in his application.


PROCEDURE AT HEARING


37. (1) At the hearing of an application made under this Part, after the applicant and the Attorney General or his representative has been heard, any other person who has lodged grounds of objection under rule 36 will be entitled to be heard either personally or by counsel.


(2) Unless otherwise directed by the Committee evidence may be given on affidavit as provided by rules of court.


PUBLICATION OF TERMS OF RESTORATION


38. If the Committee shall order that the name of the applicant who applies under this Part be 1 copy of the Gazette and in 1 copy of such newspaper published and circulating in Vanuatu as may be directed by the Committee, details of the terms upon which order of, restoration has been


COSTS, EXPENSES, ETC.


39. The Committee may make an Order for the payment of costs by any party.


No further application for restoration to the Register of Legal Practitioner's may be made by the applicant within 6 months after the date of any refusal of a previous application to restore his name to the Register of Legal. Practitioners


_________________________


SCHEDULE


Form 1
(Rule 2)


FORM OF APPLICATION OR COMPLAINT AGAINST
A LEGAL PRACTITIONER OR AN EMPLOYEE


To the Law Council


In the matter of C.D., a Legal Practitioner


and


In the matter of the Legal Practitioners Act, Cap. 119 and the Legal Practitioners (Disciplinary Procedure) Rules.


I, the undersigned A- B., hereby make application-


1. (a) that C.D., of............................................................, Legal Practitioner may be required to answer the allegations contained in the affidavit which accompanies this application,


(b) that such order may be made as the circumstances may require.


2. My address for service is as follows-


........................................................................................................................................
........................................................................................................................................


In witness whereof I have hereunto set my hand this ...........day of................................
of.............


Signature: .......................................................................


Address: .........................................................................
........................................................................................


Business or profession:...................................................


........................................................................................................................................


Form 2
(Rule 2)FORM OF AFFIDAVIT BY APPLICANT


In the matter of C.D., a Legal PractitionerandIn the matter of the Legal Practitioners Act, Cap. 119 and the Legal Practitioners (Disciplinary Procedure) Rules


I, A B. (Insert full name, address and description) make oath and say as follows-


1. (Here state the facts concisely in numbered paragraphs and show deponent's means of knowledge).


Sworn, etc.


..................................................................................................................


Form 3
(Rule 8)NOTICE TO PRODUCE LIST OF DOCUMENTS


Disciplinary Committee Cause No. ......................of 19....................


In the matter of C.D., a Legal Practitioner


and


In the matter of the Legal Practitioners Act, Cap. 11 and the Legal Practitioners (Disciplinary Procedure) Rules.


To A.B .......................................................................... of .......................................................


1. The.......................................day of...................................................,19................................ is the day fixed by the Disciplinary Committee for the formal investigation or hearing of your application or complaint in respect. of CID., a legal practitioner.


2. The Disciplinary Committee will sit at ........................................... at ................................. o'clock in the ...................................... noon.


3. You are required to furnish to every other party to the application or complaint and to me at least 7 days before the said ....................... day of ......................., 19 ........................, a list (including a full description, sufficient for identification) of all documents on which you propose to rely.


4. Subject to any directions of the Disciplinary Committee any party may inspect the documents included in the list furnished by any other party and require to be supplied with copies thereof on payment of the proper charges.


5. If any party fails to appear, any party appearing and being desirous of the Disciplinary Committee proceeding in the absence of the party not appearing must be prepared to prove service, in accordance with the rules, of the fist of documents and any other notice or correspondence since the lodging of the application or complaint.


6. You are requested to acknowledge receipt of this notice without delay.


Dated at .................................... this ....................................... day of ........................................, 19 .......................


......................................................................
Secretary of the Disciplinary Committee


Address: ........................................................
.......................................................................
.......................................................................


(Note: "Documents" includes affidavits, books, papers and other written material)

............................................................................................................................


Form 4
(Rule 8)


FORM OF NOTICE TO LEGAL PRACTITIONER BY THE SECRETARY OF THE
DISCIPLINARY COMMITTEE


Disciplinary Committee Cause No .......................... of 19 ....................


In the matter of CID., a Legal Practitioner


and


In the matter of the Legal Practitioners Act, Cap 119 and the Legal Practitioners (Disciplinary Procedure) Rules.


To CD., of .................................................................................................................... Legal Practitioner.


1. Application. or complaint has been made by A.B., of ................................................................ to the Secretary that you may be required to answer the allegations contained in the affidavit whereof a copy accompanies this notice (and that your name may be struck off the Register of Legal Practitioners or that such order may be made as circumstances may require).


2. A Disciplinary Committee has been duly appointed to conduct formal hearing thereof.


3. The ..................................day of ........................................., 19 is the day fixed by the Disciplinary Committee for the formal hearing. The Disciplinary Committee Will sit at ........................................... at .................................. o'clock in the ................................................ noon. If you fail to appear the Disciplinary Committee may, in accordance with the Rules, proceed in your absence.


4. You are required to furnish to every other party to the application or complaint and to me at least 7 days before the said ..............................day of ................................., 19 ....................., a fist (including a full description sufficient for identification) of all documents on which you propose to rely.


5. Subject to any directions of the Disciplinary Committee, any party may inspect the documents included in the fist furnished by any other party and require to be supplied with copies thereof on payment of the proper charges.


6. Unless and until you inform me in writing to the contrary, stating an alternative address for service, your address will be taken to be:
.......................................................................................................................................................
.......................................................................................................................................................
being the address of your principal office as registered with the Law Council.


7. You are requested to acknowledge the receipt of this notice without delay.


Dated at ............................................ this ..................................day of ..........................., 19........


................................................................
Secretary of the Disciplinary Committee


Address: .................................................
................................................................


..................................................................................................


Form 5
(Rule 18)
FORMS OF DISCIPLINARY ORDER


Disciplinary Committee Cause No .................................. of 19 .......................


In the matter of C.D., a Legal Practitioner


and


In the matter of the Legal Practitioners Act, Cap. 119 and the Legal Practitioners (Disciplinary Procedure) Rules.


WHEREAS:


1. Complaint was made by ..............................................................of ...................................................... to the Secretary of the Law Council of the conduct of CARD., a legal practitioner in his professional capacity;


2. A Disciplinary Committee, consisting of the following persons-


...................................................................................(chairman)

..................................................................................

..................................................................................

..................................................................................

..................................................................................


was appointed by the Law Council on the ............................................day of ........................................................... 19 ..........................to hear and investigate the complaint;


3. The Disciplinary Committee having heard and investigated the complaint (there being annexed hereto, as part of this order, a record of the proceedings including the evidence given thereof);


4. Upon such hearing and investigation the Disciplinary Committee finds the complaint proved (or not proved) (delete where not appropriate);


NOW THEREFORE THE DISCIPLINARY COMMITTEE MAKES THE FOLLOWING ORDERS


1. .................................................................................................................................................


2. .................................................................................................................................................


3. .................................................................................................................................................


4. .................................................................................................................................................


(Here insert the orders made including any orders as to costs and payment of expenses for loss of time of witnesses).


Chairman of the Disciplinary Committee
MADE at ........................................... this .................... day of ............................, 19 ...............


..........................................................................
Chairman of the Disciplinary Committee
(or member of the Committee)
Address...............................................................
............................................................................


.............................................................................................................


Form 6
(Rule 29)


FORM OF SUBPOENA AD TESTIFICANDUM


Disciplinary Committee Cause No. ......................................... of 19 .......................


In the matter of C.D., a Legal Practitioner


and


In the matter -of the Legal Practitioners Act, Cap. 119 and the Legal Practitioners

(Disciplinary) Rules.


To ................................................................. of ............................................................................


You are hereby required to attend before a Disciplinary Committee constituted under the Legal


Practitioners Act, Cap. 119 at .................................. on the ........................... day of ........................... ,19 ................... at the hour of ........................in the ..........................noon, and so from day to day until the application in the above matter is heard, to give evidence on behalf of ...................................


And herein M??? not.


Given under my hand at ............................ this ..................... day of ............................ 19 ......


............................................................................

Chairman of the Disciplinary Committee

Address:..............................................................

............................................................................

............................................................................


......................................................................................


Form 7
(Rule 29)
FORM OF SUBPOENA DUCES TECUM


Disciplinary Committee Cause No. ...................................... of 19 ..........


In the matter of C.D., a Legal Practitioner


and


In the matter of the Legal Practitioners Act, Cap. 119 and the Legal Practitioners (Disciplinary) Rules.


To ............................................................................. of ..........................................................................


You are hereby required to attend before a Disciplinary Committee constituted under the Legal Practitioners Act, Cap. 119 at ............................................. on the ............................................ day of ....................................., 19 ............... at the hour of in the noon, and so from day to day until the application in, the above matter is heard, to give evidence on behalf of .............................................., and also to bring with you and to produce at the time and place aforesaid-


(specify documents to be produced)


And herein fail not.


Given under my hand at ....................... this ..................................day of.................................., 19 .............


..............................................................................
Chairman of the Disciplinary Committee
Address: ................................................................
..............................................................................
..............................................................................


............................................................................


Form 8(Rule 31(1))APPLICATION FOR RESTORATION TO THE REGISTER OF LEGAL PRACTITIONERS
AND THE ROLL IN THE SUPREME COURT OF VANUATU


In the matter of C.D., of ..............................................................................................


and


In the matter of the Legal Practitioners Act, Cap. 119,


and


In the matter of the Legal Practitioners (Disciplinary Procedure) Rules,


and


In the matter of an application for restoration to the Register of Legal Practitioners and to the Roll of the Supreme Court by ........................................................... (Applicant).


TO THE SECRETARY OF THE LAW COUNCIL OF VANUATU


The application by the applicant says as follows-


1. The applicant was on the ...............................................day of ................................................19 .................., duly registered and admitted ...................................................... as in accordance with the provisions of the Legal Practitioners Act, Cap. 119.


2. The name of the applicant was on the ................................day of ........................................, 19 ............, struck off the Register of Legal Practitioners and the Roll of the Supreme Court.


3. The applicant seeks to have his name restored to such Register and Roll.


4. Since the date the applicant's name was struck off the Register and Roll he has been engaged in the following activities-


(Here set out dates and particulars of employment and activities in the period).


5. References as to character may be made to the following persons-


(Here set out names of at least three character referees).


6. The applicant's address for service is:


Dated at .............................. this ................................... day of .................................., 19 ....................


...............................................................
Applicant's Name and Signature


................................................................................


Form 9
(Rule 31(2)
APPLICATION FOR CANCELLATION OF VARIATION THE ORDERS MADE
BY THE DISCIPLINARY COMMITTEE IN EXERCISE OF SECTION 9(3)(b)
OR SECTION 9(4) OF THE LEGAL PRACTITIONERS ACT, CAP. 119

In the matter of ....................................................................................................................


and


In the matter of the Legal Practitioners Act, Cap. 119,


And


In the matter of an application for cancellation or variation of orders by ...................................... (Applicant)


TO THE SECRETARY OF THE LAW COUNCIL OF VANUATU


The application by the applicant says as follows-


1. (a) The applicant was on the ......................... day of ..............................., 19 ............................, duly registered and admitted as in accordance with the provisions of the Legal Practitioners Act, Cap. 119.


*(b) The applicant was during the period commencing on the ..................................day of ............................ 19 ........, up to the .........................day of ..............................., 19 ..................., engaged as an employee of the firm of .................................(* delete if not appropriate).


2. On the ...............................day of ........................................., 19 ...........the Disciplinary Committee made the following order(s) against the. applicant.


3. Since the date on which such order(s) was made, the applicant has been engaged in the following activities-


(Here set out dates and particulars of employment and activities in the period).


4. References as to character may be made to the following persons-


(Here set out the names of at least three character referees).


5. The applicant seeks to have such order(s) cancelled or revoked or varied as the Disciplinary Committee shall consider just.


6. The applicant's address for service is:


Dated at....................................this..................... day of .................................., 19............


....................................................................
Applicant's Name and Signature


.......................................................................................................................


Form 10
(Rule 35)
NOTICE OF HEARING OF APPLICATION FOR RESTORATION
TO THE REGISTER OF LEGAL PRACTITIONERS


1. Notice is hereby given that .............................................. of ............................................................. has lodged an application seeking the restoration of his name to the Register of Legal Practitioners and that the application will be heard by the Disciplinary Committee at .........................................on.................................day of ........................, 19 ..........,at .............................. o'clock in the.......................noon.


2. Any person wishing to show cause why the application should not be granted may lodge with the Secretary of the Law Council at Port Vila within 7 days of the date of last publication of this notice a written statement of the grounds of his objection in which case he shall forward to the applicant by registered post 'a copy of such written statement. If such a statement is lodged within the time specified herein, the objector win be entitled to appear either personally or by legal practitioner and be heard on the hearing of the application.


Dated at ......................... this ............................. day of .....................................19 ..........


..............................................................................
Secretary of the Disciplinary Committee
Address: ................................................................
..............................................................................
..............................................................................


.......................................................................................


Form 10
(Rule 35)NOTICE OF HEARING OF APPLICATION FOR RESTORATION
TO THE REGISTER OF LEGAL PRACTITIONERS


1. Notice is hereby given that ......................................... of ................................................................has lodged an application seeking the restoration of his name to the Register of Legal Practitioners and that the application will be heard by the Disciplinary Committee at .............................................. on ...................................... day of ..............................., 19 ............... at ........................ o'clock in the ........................... noon.


2. Any person wishing to show cause why the application should not be granted may lodge with the Secretary of the Law Council at Port Vila within 7 days of the date of last publication of this notice a written statement of the grounds of his objection in which case he shall forward to the applicant by registered post a copy of such written statement. If such a statement is lodged within the time specified herein, the objector will be entitled to appear either personally or by legal practitioner and be heard on the hearing of the application.


Dated at .............................. this ....................................... day of ....................................., 19 ....................


.........................................................................................
Secretary of the Disciplinary Committee
Address: ...........................................................................
..........................................................................................
..........................................................................................


_________________________


SUBSIDIARY LEGISLATION


LEGAL PRACTITIONERS' (DISCIPLINARY APPEALS) PROCEDURE RULES7 Nov. 1985
ARRANGEMENT OF RULES


RULE


1. Interpretation
2. Appeal to Supreme Court by notice of motion
3. Notice of motion to be lodged at the Registry
4. Period of time in which to enter and serve notice of motion
5. Record of proceedings in which the order or decision appealed against was made
6. Listing of the appeal
7. Any other person considered a proper person to appear may appear at hearing
8. Extension of time, amendment of grounds of appeal, etc.
9. Chief Justice may order that evidence be taken again
10. Powers of the Committee
11. Powers of the Chief Justice on appeal
12. Security for costs
13. Discontinuation of appeal
14. Fees to be charged
15. Rules of practice and procedure before the Supreme Court to apply when no provisions therefor is made m these rules


_______________________


LEGAL PRACTITIONERS' (DISCIPLINARY APPEALS) PROCEDURE RULES


To provide rules of procedure for appeals against orders and decisions of the Disciplinary Committee.


INTERPRETATION


1. In these rules unless the context otherwise requires-


"Act" means the Legal Practitioners Act CAP 119;


"Council" means the Law Council established in accordance with section 2 of the Act;


"Committee" means a Disciplinary Committee appointed in accordance with section 7 of the Act;


"Chief Justice" means the Chief Justice of the Supreme Court of Vanuatu or a Judge of the Supreme Court who is acting in such capacity;


"Registrar" means the Registrar of the Supreme Court of Vanuatu;


"Registry" means the Registry of the Supreme Court;


"Secretary" means the Secretary to the Council appointed in accordance with section 4 of the Act.


APPEAL TO SUPREME COURT BY NOTICE OF MOTION


2. An appeal against any order or decision of a Committee shall be by notice of motion, which shall state the grounds of appeal and whether the appeal is from all or part only of the order or decision. Unless the Chief Justice otherwise orders, the notice of motion shall be served on every party to the proceedings before the Committee and also on the Secretary and the Attorney General.


NOTICE OF MOTION TO BE LODGED AT THE REGISTRY


3. (1) The appellant shall enter the appeal by lodging a copy of the notice of motion at the Registry.


(2) The notice of motion and all other documents relating to the appeal shall be intituled "Re a Legal Practitioner" or, "Re an Employee of a Legal Practitioner", as the case may be, (without naming him) and in the matter of the Act.


PERIOD OF MOTION WHICH TO ENTER AND SERVE NOTICE OF MOTION


4. The notice of motion shall be served and the appeal entered within 15 days after the date on which the appellant is notified of the order or decision against which the appeal is brought.


RECORD OF PROCEEDINGS IN WHICH THE ORDER OR DECISION APPEALED AGAINST WAS MADE


5. (1) The Secretary shall, within 7 days after the service upon him of the notice of motion, lodge at the Registry the record of the proceedings in which the order or decision appealed against was made, including the evidence given thereat and the statement of the findings of the Committee in relation to the case.


(2) The appellant and every other party affected by, or interested in, the order or decision shall be entitled upon payment of the fees prescribed in rule 14 to obtain from the Registrar a copy of the documents lodged by the Secretary in accordance with subrule (1), the Chief Justice may in his discretion waive payment of such fees by the appellant or any other party.


LISTING OF THE APPEAL
6. (1) The Registrar shall list the appeal for hearing in accordance with such directions as the Chief Justice may give


(2) The appeal shall be heard in chambers unless the Chief Justice, upon the application of any party affected by or interested in the order or interested in the order or decision appealed against, shall order that it be heard in open court.


ANY OTHER PERSON CONSIDERED A PROPER PERSON TO APPEAR MAY APPEAR AT HEARING


7. Any person who desires to be heard on motion and appears to the Chief Justice to be a proper person to be heard shall be heard not withstanding that has not been served with the notice of motion and such order as to costs and expenses may be made-for or against him as the Chief Justice shall think just.


EXTENSION OF AMENDMENT OF GROUNDS OF APPEAL, ETC.


8. The Chief Justice shall have power to, grant leave` to amen the grounds of appeal, to extend the time limited by rule (1), and to make any other order relating to the appeal, or such terms as he shall think just.


JUSTICE MAY ORDER THAT EVIDENCE BE TAKEN AGAIN


9. (1) The Chief Justice may, if he think it necessary or expedient in the interests of justice-


(a) order any person who would have been a compellable witness at the hearing before the Committee to attend and be examined before him; or


(b) order the evidence of such witness to be taken by affidavit, whether such witness was or was not called at such hearing; or


(c) direct the, Committee to receive the evidence of any person who would have been a compellable witness at the hearing before it but did not give evidence and to furnish a report in writing stating whether if they had received that evidence before making their findings and their order or decision, their findings or their order or decision would have been in any way different from what they were and, if so, what they would have been.


(2) (a) The Chief Justice may, with or without application, direct the Committee to furnish a report in writing giving their opinion upon any point or question arising in the case or upon appeal;


(b) The Registrar shall forthwith notify the Secretary of such direction;


(c) The report of the Committee shall be lodged by the Secretary at the Registry and a copy thereof shall be served by, or under the authority of, the Registrar on every party to the appeal.


POWERS OF THE COMMITTEE


10. (1) If, in exercise of his powers under rule 9(1)(c), the Chief Justice directs the Committee to receive the evidence of any person, the Committee shall have the like power of compelling the attendance of such person as is exercisable by a Committee in respect of the attendance of witnesses under the provisions of the Legal Practitioners (Disciplinary Procedure) Rules including any amendment thereto.


(2) The report of the Committee shall be lodged, together with the record of the additional evidence, by the Secretary at the Registry, and a copy of such report and record shall be served by, or under the authority of, the Registrar on every party to the appeal.


(3) Rule 5(2) shall apply, mutatis mutandis, in respect of every such report and record.


POWERS OF THE CHIEF JUSTICE ON APPEAL


11. (1) On the hearing of the appeal the Chief Justice shall have power to draw inferences of fact and may-


(a) allow or dismiss the appeal;


(b) vary the order or decision in such manner as he shall think fit;


(c) quash the order or decision and remit the matter to the Committee, or to a differently constituted Committee, for the application or complaint to be investigated and heard de novo;


(d) make any order or decision which ought to have been made or given, and make such further or other orders as the case may require including an order as to the costs and expenses of and incidental to the investigation and the appeal.


(2) The powers of the Chief Justice under subrule (1) may be exercised notwithstanding that the notice of appeal has not been given in respect of any particular part of the order or decision appealed against.


SECURITY FOR COSTS


12. Where the applicant or complainant in the proceedings before the Committee is the appellant, the Chief Justice may make such order as he shall think just for the giving by the appellant of security for costs and expenses of and incidental to the appeal.


DISCONTINUATION OF APPEAL


13. An appellant may at any time discontinue his appeal by serving notice of such discontinuance on the Secretary and on every other party to the appeal and, if the appeal has been entered, lodging a copy of the notice in the Registry. The appeal shall thereupon be treated as having been dismissed with an order for payment by the appellant of the costs and expenses of and incidental to the appeal, including any costs incurred by any Committee concerned therewith or by the Council.


FEES TO BE CHARGED


14. The fees to be charged for copies of documents provided to the appellant and the other parties by the Registrar shall be the same as the fees prescribed by the Rules of the Supreme Court for providing copies of documents filed in the Supreme Court.


RULES OF PRACTICE AND PROCEDURE BEFORE THE SUPREME COURT TO APPLY WHEN NO PROVISIONS THEREFOR IS MADE IN THESE RULES


15. Subject to the foregoing provisions of these Rules, appeals to the Supreme Court against any order or decision of a Committee shall be governed by the practice and procedure for the time being of the Supreme Court in the exercise of its original jurisdiction in civil proceedings.


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