PacLII Home | Databases | WorldLII | Search | Feedback

Supreme Court of Tonga
You are here:  PacLII >> Databases >> Supreme Court of Tonga >> 2023 >> [2023] TOSC 23

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Tu'utafaiva, In re [2023] TOSC 23; TLS Complaints 2, 3 and 6 of 2022 (26 April 2023)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU’ALOFA REGISTRY


TLS Complaints No. 2, 3 and 6 of 2022

IN THE MATTER OF Law Practitioners Act, Part VI

Rules of Professional Conduct for Law Practitioners


AND Recommendations by the Tonga Law Society Disciplinary Committee in respect of findings of professional misconduct against Mr Siosifa Tu’utafaiva


JUDGMENT


BEFORE: LORD CHIEF JUSTICE WHITTEN KC
To: Mr Siosifa Tu'utafaiva
Mrs ‘A. Taumeopeau, President of the Tonga Law Society
Mrs ‘A. Tavo-Mailangi, Secretary of the Tonga Law Society
And: Mr T. Fukofuka, Registrar of the Supreme Court of Tonga
Date: 26 April 2023


Introduction

  1. Mr Siosifa Tu'utafaiva is a senior law practitioner.
  2. On 4 April 2023, pursuant to ss 19(2) of the Law Practitioners Act (“the Act”), the Tonga Law Society (“TLS”) Disciplinary Committee (“the Committee”) found Mr Tu'utafaiva guilty of two counts of professional misconduct. Pursuant to its powers under ss 21(2) of the Act, the Committee recommended that Mr Tu'utafaiva’s name be struck off the Roll of Law Practitioners in Tonga.
  3. Section 22 of the Act reserves to the Lord Chief Justice the decision on appropriate sanction, namely, whether Mr Tu'utafaiva should be struck off, suspended from practice, fined or subject to conditions on his practising certificate.
  4. This is my decision.

Background

  1. To better understand the Committee’s recommendation, it is necessary to consider Mr Tu'utafaiva’s professional history.
  2. On 19 June 2007, Mr Amato Puliuvea filed a complaint with the TLS against Mr Tu'utafaiva for failing to provide legal services for which he had been engaged and demanded and received $1,000. On 26 March 2008, the Committee found Mr Tu'utafaiva guilty of professional misconduct,[1] and recommended that he reimburse the complainant the $1,000 and other expenses, and that his practising certificate be suspended for three months. The court practitioner file for Mr Tu'utafaiva does not contain any record of the then Chief Justice’s decision on that recommendation. However, the file does contain a copy of Mr Tu'utafaiva’s practising certificate for 2009.
  3. On 11 April 2012, the TLS received similar complaints against Mr Tu'utafaiva from ‘Aisea Vaitaki and Sione Vao, namely, that he had accepted instructions to act, demanded and received moneys for the services to be provided, but not provided them, and then not returned the moneys when requested by the complainants.
  4. Pursuant to s. 18 of the Act, the TLS may make rules for regulating the professional practise, conduct and discipline of law practitioners. The Committee proceeded to hear and determine those complaints as breaches of Rule 1.01 of the Law Practitioner's Act 1989 - Rules of Professional Conduct for Law Practitioners 2002 (“the Rules”) which provides that:
The relationship between practitioner and client is one of confidence and trust, which shall not be abused.
  1. During that process, Mr Tu'utafaiva’s only response was by way of letter in which he admitted the essential facts and then concluded:
“Just make your decision and I await it.”
  1. The Committee found Mr Tu'utafaiva guilty of two counts of professional misconduct and recommended that his practising certificate be suspended for three years. Mr Tu'utafaiva appealed on the grounds that suspension was not warranted in the circumstances; alternatively, suspension for three years was excessive.
  2. On 4 December 2012, Scott LCJ held that Mr Tu'utafaiva had not been given notice of the Committee’s intention to proceed to consider penalty immediately after its finding of guilt, and that therefore Mr Tu'utafaiva had not been afforded procedural fairness or an opportunity to make submissions in mitigation. The recommendation was therefore quashed, and the matter was remitted to the Committee for reconsideration.[2]
  3. Meanwhile, on 23 October 2012, the Chief Registrar of the Supreme Court was directed by the Chief Justice to advise Mr Tu'utafaiva that he had not renewed his practising certificate for that year and that if it was not renewed within the next seven days, his right of audience would be withdrawn.
  4. On 1 November 2012, Mr Tu'utafaiva responded that he thought his application had been lodged in January and apologised for the “inconvenience caused by the oversight on his part”. On 14 November 2012, his practising certificate for that year was belatedly issued.
  5. On 23 April 2013, Chief Justice Scott wrote to the President of the TLS (copied to Mr Tu'utafaiva) noting that although the Committee had met on several occasions, Mr Tu'utafaiva had failed to place any matters before it in mitigation. His Honour expressed concern that it was not in the public interest or the interests of the profession for the matter to be allowed “to drag on without resolution”. He therefore directed that if submissions were not received within 14 days, he proposed to suspend Mr Tu'utafaiva’s practising certificate with immediate effect and until further order.
  6. On 7 May 2013, Mr Tu'utafaiva filed submissions in mitigation. He apologised for the delay which he described as being due to him “being very busy with other duties”. His submissions included that he had since repaid one complainant a lump sum of $3,000 with an “understanding” for repayment of the balance of $800. Further, and despite his earlier agreement for the same Committee to reconsider penalty, Mr Tu'utafaiva requested that the Committee be reconstituted with different members.
  7. On 19 June 2013, a reconstituted Committee found that:
  8. The Committee therefore recommended that Mr Tu'utafaiva’s practising certificate be suspended for one year.
  9. On 10 July 2013, after the 14-day appeal period had expired,[3] Chief Justice Scott was satisfied that there were no grounds to interfere with the Committee’s recommendation,[4] and therefore ordered that Mr Tu'utafaiva be suspended from practising for 12 months.
  10. Mr Tu'utafaiva’s practising certificate was next issued in January 2015 and renewed in 2016 and 2017.
  11. On 19 February 2019, the Registrar notified Mr Tu'utafaiva that he had failed to apply for renewal in 2018 or 2019 (as at that date). On 5 March 2019, Mr Tu'utafaiva responded by apologising for having “overlooked” his 2018 certificate and applied late for his 2019 certificate. In other words, Mr Tu'utafaiva practised law in 2018 without a valid practising certificate. His practising certificate for 2019 was issued.
  12. Since November 2020, applications for renewals of practising certificates have been required to be submitted in December of the year preceding the year of renewal.[5] Applications must also either confirm that the practitioner has completed the five Continuing Legal Education (“CLE”) sessions required for the past year,[6] or if not, to explain why and provide a written undertaking to make up the shortfall in the next year in addition to the sessions required for that year.
  13. In 2020, Mr Tu'utafaiva only attended two CLE sessions. He undertook to “make up the shortfall” in 2021 in addition to the CLE requirements for that year.[7]
  14. On 22 January 2021, the TLS received a complaint from Mr Sione Felemi Taimani that he too had engaged Mr Tu'utafaiva and paid him $800 for legal services which Mr Tu'utafaiva did not provide. When confronted by Mr Taimani at his home, Mr Tu'utafaiva agreed to repay $200 the next day, which he did, and to repay the balance of $600 later that same day, which he did not.
  15. Despite numerous requests by the Committee, Mr Tu'utafaiva did not provide any response to the complaint.
  16. On 26 July 2021, the Committee found that Mr Tu'utafaiva had breached Rules 3.01 and 3.05(2)(b) which provide, in terms, that a practitioner:
  17. The Committee recommended that Mr Tu'utafaiva refund the balance of the fees to the complainant, and pay a fine of $500, both within three weeks, failing which, his practising certificate be suspended until the payments were made.
  18. Upon considering those recommendations, I conveyed to the Committee my concerns that the proposed penalties may not necessarily address the underlying problem as I perceived it from consideration of the facts of the complaint and repeated observations of Mr Tu'utafaiva in other cases before me which was that Mr Tu'utafaiva appeared to take on too many cases at any one time, resulting in him being unable to service all his clients properly, or at all, as well as being unable to meet Court directions in those cases.
  19. The Committee reviewed its decision so that in addition to the refunding of the fees and the $500 fine, it recommended that Mr Tu'utafaiva be placed on six months probation and be required to limit his active files to those he could execute properly.
  20. Mr Tu'utafaiva did not appeal the Committee’s decision or recommendation.
  21. On 1 October 2021, I determined to generally endorse the Committee’s recommendations, and ordered that:
  22. Mr Tu'utafaiva did not comply with that condition.
  23. As a result, on 24 October 2022, I issued Mr Tu'utafaiva a notice to show cause in the following terms:
“I refer to my letter to you dated 1 October 2021 wherein I ordered that your current and future practising certificates shall be subject to a condition that you are to limit the number of clients and matters in which you agreed to be retained so as to ensure that you service at such matter in a professional and timely manner and in accordance with all applicable Court Rules and directions, and that failure to comply with that condition may result in suspension of your practising certificate.
Since then, you have regularly failed to comply with Court directions.
On 20 July 2022, I met with you and then President of the Tonga Law Society, Mrs Petunia Tupou KC, to discuss these issues. That meeting concluded on the basis that if there are any further defaults, I would have no choice but to formally refer you to the TLS for its consideration and/or suspend your practising certificate.
Since that meeting, there have been further defaults. For example, during the recent Court of Appeal session, your appeared in the matter of Anitema v R, only days before that appeal was scheduled to be heard and applied for leave to substantially amend the notice of appeal in circumstances where you had been briefed for several months. That default resulted in that appeal having to be deferred to the next year while your client remains in prison. More recently (last Friday), Ms Kafoa appeared before me for the sentencing of ‘Okusitino Tatafu. In that matter, directions had been made for the filing of submissions on sentence by 30 September 2022. No submissions were filed. However, Ms Kafoa produced a short, unsigned submission which had been drafted by you, dated 30 September 2022 but which had not been filed or served on the Crown.
On almost every such occasion, you have indicated that the reason for your failure to comply with directions was effectively that you have been too busy.
In all the circumstances, I must now regrettably request that you show cause, by written response within 14 days of the date hereof, as to why your practising certificate should not be suspended.”
  1. Mr Tu'utafaiva did not respond.
  2. Therefore, on 10 November 2022, I wrote to the President of the TLS, stating, relevantly:
“Regrettably, therefore, in order to protect the reputation of the profession and any of Mr Tu'utafaiva’s clients who have not been, are not being or may not be properly served by him in accordance with the expected standards of professional legal practice and the restriction on his practising certificate, I am unfortunately left with no option but to refer this matter, pursuant to ss 20 and 21 of the Law Practitioners Act, to the TLS Disciplinary Committee for investigation and such action as the Committee considers appropriate.”
  1. The Committee has not yet responded to that complaint.
  2. That is probably due to the fact that between 8 March 2022 and 11 August 2022, the TLS received three complaints of professional misconduct against Mr Tu'utafaiva. Complaint number TLS 03/22 was subsequently withdrawn by the complainant as endorsed by the Committee on 15 December 2022.
  3. In TLS 02/22, Lata Motuliki complained that between late 2021 and 2022, she paid Mr Tu'utafaiva a total of $1,400 for legal services which he never provided.
  4. In TLS 06/22, Tom Weston KC, a New Zealand lawyer, complained that in May 2022, he was engaged by Mr Poasi Tei to provide legal advice on certain election petitions. He was to be instructed by Mr Tu'utafaiva. Mr Weston provided a fee estimate for the work of NZD$8,000. That sum was paid into Mr Tu'utafaiva’s bank account. Mr Weston provided the advice and issued an invoice for his fees in accordance with the estimate. Mr Tu'utafaiva failed to pay the invoice or respond at all.
  5. Both complaints were referred to the Committee for hearing and determination.
  6. Meanwhile, on 20 December 2022, Mr Tu'utafaiva applied for renewal of his practising certificate for 2023. However, his letter application made no reference to his CLE obligations.
  7. On 17 January 2023, the Registrar advised Mr Tu'utafaiva that he was required to file a letter explaining his failure to attend any CLE sessions for 2022 (which requirement was reduced to four because of the tsunami and Covid-19 disruptions earlier that year) with an undertaking that he would complete those sessions in 2023.
  8. Between January and March 2023, Mr Tu'utafaiva continued to appear before the courts without a valid practising certificate in place. Moreover, between January 2023, when directions were issued for all appeals to be heard by the Court of Appeal in the first session this year, and when that session commenced on 3 April 2023, Mr Tu'utafaiva remained counsel on the record in four of those cases but failed to comply with any of the directions and failed to appear at the hearings of those appeals without notification to the Court or the other parties or their counsel. As a result, one of those appeals (a serious criminal matter which was deferred from the last session because of Mr Tu'utafaiva’s default[8]) had to again be deferred to a special session of the Court to be held in July 2023 while a land appeal was struck out for want of prosecution.
  9. It was not until 27 March 2023, that Mr Tu'utafaiva wrote to the Registrar about his 2023 practising certificate. He stated that the reason he did not attend any CLE sessions in 2022 was because he did not receive any notice of them from the TLS and he only found out about them from Ms Alyssa Kafoa (another law practitioner within Mr Tu'utafaiva’s office) “after each session had taken place”.
  10. That same day, the Secretary of the TLS advised the Registrar that she had received a telephone inquiry from Mr Tu'utafaiva that morning in relation to the email notifications to lawyers for the CLE sessions last year and why he had not received any. The Secretary reviewed her records and the email address used for Mr Tu'utafaiva as part of the bulk email notifications sent to all lawyers. She identified that the TLS records contained two slightly different email addresses for Mr Tu'utafaiva.[9]
  11. Notwithstanding, Mr Tu’utafaiva admitted knowing about the CLE sessions through Ms Kafoa, and he did not explain why he did not contact the TLS to find out why he did not receive notice of the sessions after he missed the first one or any that year. I therefore found his explanation unsatisfactory.
  12. In his letter to the Registrar, Mr Tu'utafaiva also proffered an undertaking to make up the missed 2022 sessions in addition to the requirements for this year. Unfortunately, with the TLS’s current schedule of sessions for the year, that is mathematically impossible.
  13. At about this time, and in response to my enquiry about the status of the complaint I had referred to the TLS in November 2022, the President informed me that the Committee had just completed its determination of the complaints by Ms Motuliki and Mr Weston KC referred to above. I therefore instructed the Registrar to advise Mr Tu'utafaiva that any further consideration of renewal of his practising certificate for 2023 would be deferred pending the outcome of those TLS Disciplinary proceedings.[10]
  14. In those proceedings, between September 2022 and March 2023, the Committee gave Mr Tu'utafaiva notice on several occasions at each stage of the proceedings and invited him to respond each time. Mr Tu'utafaiva did not do so.
  15. On 4 April 2023, the Committee found both complaints proven as breaches of Rule 1.01, and that in respect of each, Mr Tu'utafaiva was guilty of professional misconduct.
  16. Upon those findings, ss 21(2) of the Act provides that the Committee may:
  17. The Committee recommended that by reason of, inter alia:

Mr Tu'utafaiva’s name be struck off the Roll of Law Practitioners.

  1. The Committee’s decision was provided to my chambers and copied to Mr Tu'utafaiva on 4 April 2023. As such, the 14-day appeal period expired on 18 April 2023. As at the date hereof, Mr Tu'utafaiva has not filed a notice of appeal against the Committee’s decision or recommendation.
  2. Section 22(1) of the Act provides, relevantly, that where the Committee has made a recommendation under ss 21(2), the Lord Chief Justice may, after the disposition of any appeal under s. 23 or at the expiration of the time limited for such appeal:

Consideration

  1. Professional misconduct involves conduct which may reasonably be regarded as disgraceful or dishonourable or "inexcusable negligence ... which is such as to be regarded as deplorable by his fellows in the profession": 'Etika v Tonga Law Society [2002] Tonga LR 75, citing Re A Solicitor [1972] 2 All ER 811 at 815.
  2. In matters of professional misconduct, a very strong case is required to induce the court to interfere with the sentence passed by the Disciplinary Committee: Re A Solicitor [1956] 3 All ER 516.
  3. However, in considering the Committee’s recommendation to strike off Mr Tu'utafaiva from the Roll of Law Practitioners, or other appropriate penalty, I have had regard to and respectfully adopt the approach adumbrated in the oft-cited decision in Bolton v The Law Society [1994] 2 All ER 486.[12]
  4. In that case, a solicitor admitted to the Roll for two years had dispersed client’s money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The shortage in the client account remained unrectified for a period of nearly 16 months. The Tribunal found that the solicitor was honest and had not stolen client money “in a premeditated fashion”. The Tribunal took the view that ordinarily the conduct would merit striking off but, in light of the facts of the case, it made a more lenient order. The Divisional Court heard fresh evidence of good character and took the view that the suspension was disproportionate, imposing a fine in substitution. The Court of Appeal held that the Divisional Court had erred in interfering with the Tribunal's decision. It did not reinstate the suspension having regard to the history of the litigation and the delay. But the court's conclusion as to the propriety of the Tribunal's order are illuminating. The court recorded that the solicitor had been guilty of a flagrant departure from elementary rules. It endorsed a conclusion that a flagrant disregard of elementary rules justified a suspension even in the absence of dishonesty. Sir Thomas Bingham MR (as he then was) opined:[13]
“It is required of lawyers practising in this country that they should discharge their professional duties with integrity, probity and complete trustworthiness...
Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. ... If a solicitor is not shown to have acted dishonestly but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious, but it remains very serious indeed in a member of a profession whose reputation depends upon trust. A striking off order will not necessarily follow in such a case, but it may well. The decision whether to strike off or to suspend will often involve a fine and difficult exercise of judgment, to be made by the tribunal as an informed and expert body on all the facts of the case. ...”

  1. The Master of the Rolls then explained the reasons for orders which might otherwise seem harsh, as follows and in summary:
  2. That approach has been applied in many decisions since. For example, see Wellington District Law Society v Cummins [1998] 3 NZLR 363, 370; MacPherson v Law Society [2005] EWHC 2837 (Admin); Baxendale-Walker v Law Society [2006] EWHC 643; [2006] All ER (D) 439; Yerolemou v Law Society [2008] EWHC 682 (Admin); Solicitors Regulation Authority v James; Law Society (Solicitors Regulation Authority) v Emeana [2013] EWHC 2130 (Admin) [2013] All ER (D) 220 (Jul); Solicitors Regulation Authority v MacGregor; Shaw v Solicitors Regulation Authority [2017] EWHC 2076 (Admin), [2017] 4 WLR 143; Solcitors Regulation Authority v Naylor [2018] All ER (D) 139 (Nov); National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins [2022] 3 NZLR 452.
  3. Where a lawyer has been convicted of an offence involving fraud, or where there has been misappropriation of clients' money, the striking of the solicitor's name off the roll will almost certainly be ordered: Re A Solicitor (1976) 120 Sol Jo 353, DC. In Weston v The Law Society,[14] Sir Bingham MR, by then Lord Bingham of Cornhill CJ, reiterated that:
"The striking off of any solicitor found to have acted dishonestly in relation to clients' monies had now to be seen as all but automatic."

  1. A finding of dishonesty requires more than knowledge of the facts which make the conduct wrongful. It requires a dishonest state of mind, that is to say, consciousness that one is transgressing ordinary standards of honest behaviour: MacPherson v Law Society [2005] EWHC 2837 (Admin) applying Twinsectra Ltd v Yardley and others [2002] UKHL 12; [2002] 2 All ER 377, 383. When dishonesty is in question, the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual's knowledge or belief as to the facts. The reasonableness or otherwise of his belief was a matter of evidence (often in practice determinative) going to whether he held the belief, but it was not an additional requirement that his belief had to be reasonable. The question is whether it had been genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct had been honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant had to appreciate that what he had done was, by those standards, dishonest: Ivey v Genting Casinos (UK) Ltd (trading as Crockfords) [2017] UKSC 67, [2017] All ER (D) 134 (Oct).[15]
  2. Previously, it has been held that suspension and striking off are inappropriate penalties where the solicitor has not acted dishonestly: Re A Solicitor (1976) 120 Sol Jo 353, DC. However, it is clear from the above more recent statements in Bolton that the ‘draconian sanction’ of striking lawyers off the Roll may be applied for offences not involving dishonesty or personal gain: Yerolemou v Law Society [2008] EWHC 682 (Admin)[16]; Solicitors Regulation Authority v James; Solcitors Regulation Authority v MacGregor; Solcitors Regulation Authority v Naylor [2018] All ER (D) 139 (Nov). In considering the penalty, regard must be had to the extent to which the existence of the standard of conduct laid down by the Tribunal was known and accepted at the time of default: see Re A Solicitor [1974] 3 All ER 853, DC.
  3. Recently, in National Standards Committee (No 1) of the New Zealand Law Society v Gardner-Hopkins [2022] 3 NZLR 452, the New Zealand High Court noted the importance that standard setting plays in terms of public confidence in members of the profession as discussed in Daniels v Complaints Committee 2 of the Wellington District Law Society:[17]
“[34] In considering sanctions to be imposed upon an errant practitioner, a disciplinary tribunal is required to view in total the fitness of a practitioner to practise, whether in the short or long term. Criminal proceedings of course reflect badly upon the individual offender, whereas breaches of professional standards may reflect upon the wider group of the whole profession, and will arise if the public should see a sanction as inadequate to reflect the gravity of the proven conduct. The public are entitled to scrutinise the manner in which a profession disciplines its members, because it is the profession with which the public must have confidence if it is to properly provide the necessary service. To maintain public confidence in the profession, members of the public need to have a general understanding that the legal profession, and the Tribunal members that are set up to govern conduct, will not treat lightly serious breaches of standards.”

  1. The Court in Daniels also referred to Hart v Auckland Standards Committee 1 of the New Zealand Law Society,[18] where the Full Court accepted that the nature and gravity of the charges will generally be important and will likely inform the decision to a significant degree because they may point to the fitness of the practitioner to remain in practice. In some cases they may be determinative. In cases involving lesser forms of misconduct, the manner in which the practitioner responds to the charges may also be a significant factor as may previous disciplinary history.
  2. In Ellis v Auckland Standards Committee 5, [19] the Court referred to the above decisions and noted that relevant considerations include the nature and quality of the misconduct established; previous disciplinary history; any evidence of remorse or insight; the need for deterrence; and any aggravating or mitigating features.
  3. In New Zealand Law Society v Stanley, [20] the New Zealand Supreme Court considered the statutory requirement in that country of being a “fit and proper person” in the context of an opposed application for admission. An analogous concept appears in ss 5(b) of the Tongan Act which requires the Lord Chief Justice, when considering whether to enrol a person on the Roll of Law Practitioners, to be satisfied as to the person’s character and suitability to be a law practitioner. Apart from the pure statutory requirements, the Court summarised the relevant principles as follows.[21] The purpose of the fit and proper person standard is to ensure that those admitted to the profession are persons who can be entrusted to meet the duties and obligations imposed on those who practise as lawyers. The assessment focusses on the need to protect the public and to maintain public confidence in the profession. The evaluation is a forward-looking exercise, that is, the Court must assess the risk of future misconduct or of harm to the profession. The evaluation is accordingly a protective one. Punishment for past conduct has no place. The concept of a fit and proper person involves consideration of whether the person is honest, trustworthy and a person of integrity. When assessing past convictions, the Court must consider whether that past conduct remains relevant. The inquiry is a fact-specific one and the Court must look at all of the evidence in the round and make a judgment as to the present ability of the practitioner to meet his or her duties and obligations as a lawyer. The standard is necessarily a high one, although the Court should not lightly deprive someone who is otherwise qualified from the opportunity to practise law. Relevantly, the Court concluded:
“[50] In determining whether to make a strike-off order the Tribunal (and this Court on appeal) will look at the nature and circumstances of the misconduct, the practitioner’s past history, and the steps the practitioner has taken and is taking to ensure that such conduct does not occur again. In some cases, it will be apparent the practitioner is not able or willing to change or address his or her behaviour sufficiently so they will remain unfit to practise law.”
  1. Application of the above principles to the present case, in which I am primarily concerned with the two most recent counts of professional misconduct, reveals factors for and against an order for Mr Tu'utafaiva to be struck off.
  2. For instance, factors supporting strike off include:
  3. Against that, factors which do not favour striking off include:
  4. Weighing all those factors in the balance, I am of the view that striking Mr Tu'utafaiva’s name from the Roll is not presently warranted and that he should be given, by way of suspension, what is very likely to be, a last chance to demonstrate his ability and willingness to abide by all the professional, legal and moral obligations of a law practitioner, should he wish to continue as one.
  5. However, the conditions of his suspension will be sufficiently onerous to reflect the seriousness of his misconduct, to remedy the harm of his conduct on the complainants and give effect to the other requirements of appropriate disciplinary action referred to above.

Conclusion

  1. Mr Tu'utafaiva is suspended from practising as a law practitioner in the Kingdom of Tonga, effective from the date hereof.
  2. Mr Tu'utafaiva will be eligible to apply for a practising certificate after a period of three years commencing from the date on which he files an affidavit, sworn by him, evidencing the repayment or payment, as the case may be, to each of the respective complainants, of the moneys the subject of their complaints, together with compensation by way of interest at the rate of 10% p.a. from the date of receipt of the said moneys to the date of re/payment, and any costs associated with their complaints, to be taxed in default of agreement.
  3. The President of the TLS is requested to arrange for a copy of this judgment to be provided to each of the complainants as soon as practicable.



NUKU’ALOFA
M. H. Whitten KC
26 April 2023
LORD CHIEF JUSTICE

[1] After considering the principles for same in Etika v Tonga Law Society [2002] Tonga Law Reports 75, citing Re a Solicitor [1972] 2 All ER 811 at 815.
[2] In the Matter of Tu'Utafaiva and Part VI of the Law Practitioners Act (21-89) [2012] TOSC 63.
[3] Ss 21(3) of the Act.
[4] Referring to Daniels v Complaints Committee [2011] 3 NZLR 850, 855.
[5] As explained in Practice Direction 1 of 2023.
[6] Per Chapter 10 of the Rules.
[7] Letter to the Registrar dated 16 December 2020.
[8] Anitema v R.
[9] [email protected] compared to st[email protected]
[10] Advised by email from the Registrar to Mr Tu'utafaiva on 27 March 2023.
[11] Where a a law practitioner is convicted by a court of an act involving dishonesty or is sentenced to a term of imprisonment of 2 years or more.
[12] Bolton was also referred to by Chief Justice Scott in his decision on Mr Tu'utafaiva’s disciplinary action in 2013.
[13] Pages 518 B to 519 A.
[14] The Times 15th July 1998, CO/225/1998.
[15] Applying Barlow Clowes International Ltd (in liq) v Eurotrust International Ltd [2005] UKPC 37; [2006] 1 All ER 333 and Royal Brunei Airlines Sdn Bhd v Tan [1995] 3 All ER 97.
[16] citing Weston, ibid, and Williamson v The Law Society [2007] EWHC 1258 (Admin)
[17] Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] NZHC 1359; [2011] 3 NZLR 850, also referred to by Chief Justice Scott in Mr Tu'utafaiva’s 2013 matter.
[18] Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZHC 83; [2013] 3 NZLR 103 at [186]–[187].
[19] Ellis v Auckland Standards Committee 5 [2019] NZHC 1384 at [21].
[20] New Zealand Law Society v Stanley [2020] NZSC 83; [2020] 1 NZLR 50.
[21] At [54].
[22] Etika v Tonga Law Society, ibid.
[23] Where Government only presently funds the Family Protection Legal aid Centre.

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/to/cases/TOSC/2023/23.html