Advocacy flung far

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jottings on the bar Advocacy flung far Us barristers can be a mobile lot. Southwood QC has been in Vanuatu trying to uphold the rule of law, the supremacy of parliament and to restore the good name of a politician. MacDonald QC is well known in Cambodia for his work on human rights and training the new judiciary in the wake of the years lost to Pol Pot, in Indonesia for his expertise in art and culture, for covering the trial of Muklas in Bali and countless other selfless acts promoting justice as an ideal of an ordered, kindly society. Riley QC (as he then was) taught advocacy in Bangladesh. By Lex Silvester* As befits one sans the treasured initials, my achievements in Fiji are more modest. At stake has been the ownership of a major earthmoving contractor to one of Fiji’s biggest gold mines. I appeared forthe non-resident investor in the contractor. Fiji’s Exchange ControlAct (“ECA”) provides a regime requiring the prior Reserve Bank approval of all foreign investment before it is undertaken. For various reasons it has long been common for Fiji residents to hold the shares of non-residents in Fiji corporations on trust. Common arrangements include bare trusts and formal declarations of trust. Under s.20 ECA retrospective validation of the rights and title of those who don’t obtain prior approval is available. Validation is not granted where the foreign investor knew of, but deliberately ignored, the requirement for prior approval. Fiji has huge foreign investment, particularly in areas like commercial fishing and tourism. The Fijian economy needs as much foreign investment as it can get. Following United Nations standards applicable to third world countries in danger of being swamped by foreign investment and a desire for indigenous autonomy and control of their country’s resources, the Foreign Investment Act 1999 (FIA) reserved many areas of local industry including, for example, fishing in the rich deep oceans surrounding the Fiji Islands, tourism and earthmoving contracting against foreign investment. So, one suspects, a lot of the key foreign investment was, before 1999, and still is, done through secret trusts for shares held by Fiji residents, knowing that retrospective validation can usually be obtained. Foreign investment (as in the case in which I was involved) before 1999 is not affected. The facts in this case were that an approved foreign investor owning 100% of the capital of a Fiji corporation transferred to the plaintiff Fiji resident, all the shares. By a trust deed executed in 1990,50% of those shares, were held for a non-resident. Afew years ago, underthe provisions of the trust deed the foreign investor called for transfer of the legal ownership ofthe shares. The resident legal owner refused, alleging the trust was illegal and invalid because he, as he was bound to do, had not obtained prior Ministerial approval to

  • Lex Silvester is a

Barrister at William Forster Chambers I It’s on again I Northern Territory Bar Association I and Law Society Northern Territory [ invite you participate in the ! 5th Annual Quixotic j Challenge Golf Day I When: Friday 10 September 2004 | Where: Darwin Golf Club Marrara j Briefing: 2.30pm Major sponsor: Tee-off: 3pm (sharp) Wilson H.T.M j 9 hole shotgun start I Ambrose rules I Entree fee $25 per person ■ This covers green fees, refreshments, prizes and post-golf barbeque. ■ The BBQ will be at about 5.30pm and families are welcome. J You can enter as a 4-member team or as an individual J and we can place you in a team | Send registrations (teams and golf handicaps) and cheques to NTBA | (PO Box 4369 Darwin) by Monday 6 September. Questions or queries | to Barbara Reeves on 8981 -8322 I Marsh Pty Ltd proudly supports the NTBA and LSNTgolfday. \_ Page 10 — July 2004 jottings on the bar the trust deed under s.11(1) ECAas it was a ‘transfer’ of shares. The cad. Justice Madraiwiwi in the High Court of Lautoka took umbrage at the Fiji resident’s behaviour and otherwise declared the trust valid, saying the transfer was of the equitable interest and, as s.11(1) only applied to the legal interest, no approval was required. His Lordship’s decision did throw up a problem for the ECA, however, because it looked like the provisions of the FIA could be legally avoided by such a trust arrangement. In 2002 I traveled to Suva for the resident’s appeal to three members of the Fiji Court ofAppeal. One gets to there by flying to Nadi, then a 25 minute flight with Air Fiji, in a twin engine resort plane that has seen better days. My junior and Fiji solicitor, Babu Singh was once an aboriginal legal aid solicitor based in Mt Isa. The Holiday Inn in Suva faces the ocean. One of the tropical islands visible far beyond the fringing reef was said to be home for George Speight for the term of his treason induced incarceration. On its other side it faces, across lush lawns, the government building which houses the law courts and offices of the justice system. It used to house the Parliament which since the ’97 coup no longer sits there. One passes by the biggest, oldest, umbrella tree you'd ever hope to see. My opponent is a New Zealand educated Fijian of Chinese extraction who achieved, as President of the Lautoka Law Society, notoriety for leading heroic resistance in eastern Fiji to Speight’s takeover and the subjugation of the rule of law. The Fiji equivalent of Tippett QC on mandatory sentencing. It’s a hot and steamy Friday morning. The learned judges of the Court of Appeal tell Counsel to settle it so we waste a few hours attempting the impossible. By then its too close to lunch and a couple ofthe judges have to fly home to New Zealand. The matter is adjourned to Monday. Babu Singh, drives myAustralian instructor (let’s call him Bob) and myself back to Nadi. Its normally three hours but someone knows someone staying at the Fijian Resort, en route, which causes a distracting libation. Bob returns to Sydney. I spend a disconsolate weekend on Denerau Island immersed in dutiful preparation. I can inform golf obsessed barristers and solicitors that Denarau is considered the finest golf course in the Pacific. Swinging sweetly on Vijay Singh’s very own dreaming track, and smashing my handicap, I can confirm it. It is simply fabulous. The next NTBA Golf day will be held there. I venture the canals will be a problem for the long hitting Michael Grant. Monday morning sees a shorter drive back to Suva. Section 11(1) of the Exchange ControlAct does not apply to a transfer of the equitable interest. The Court is quick to hose the appellant’s case out. It fixes the respondents costs at F$1000, no disbursements. A year later, I’m back in Suva for the appellant’s application to the Court of Appeal for leave to appeal to the Supreme Court. The application is made pursuant to s.122 of the Constitution Amendment Act 1997. It isn’t going well for my opponent until, on his feet, he thinks up an argument never previously raised. The trust deed is a ‘settlement’ under s.31(4) ECA. I’m mystified because everyone is looking at s.31(4) and my briefed copy stops at s.31 (3). The decision is reserved. Its back to Denerau, again via the Fijian, because we have to go to the High Court in Lautoka for some follow up applications. I obtain a complete copy oftheActand discover s.31 (4) does in fact exist, and does provide an argument, even if the facts which might support it were never proved below. I write a grovelling letter to the Court apologizing, pleading technology error, and conceding there may be a point worth considering. The Court, referring to my concession, gleefully I imagine, grants leave to appeal but as the question it certifies as a matter of public importance is not the one asked for by the appellant, we are awarded another $1000 in costs. Bob and I have a mate who owns an island. Would we like to spend a few days in his house, wet a line and make suggestions for improving the fishing services, that sort of thing. The island turns out to be a beautiful resort on an idyllic island overlooking anotherwhere ‘Castaway’ was filmed. All its guests are boy/girl honeymooners, behaving (one imagines) as only newlyweds do. At day break the Fijian villagers from the island across the channel, who staff the resort, motor over in their longboats, returning in the evening. Most of the women are noticeably larger and taller than the men. Bob is an inch taller and significantly larger than me. In such a situation, there’s a palpable question mark over me and Bob. You could tell by the furtive looks of the honeymooners. The Fijians handled it much more tactfully. The women gravitated to Bob while I talked fishing with the boys. After a couple of days great fishing (tuna, barracuda, mackerel and trevally) Bob is driving the boat home from the continental shelf. The sea is a deep cobalt blue and darkness is rapidly descending. Our Fijian fishing guide, Suli, turns to me and points to Bob. “Is he your wife?”. Poor Bob, he still hasn't got over it. To his credit he hasn’t seen fit to withdraw my brief. May 2004. Its back to Fiji for the Fiji Islands Supreme Court. Round three of my Fiji saga. We’re two up, and this is the last chance for the Fiji resident appellant, clinging stubbornly to the notion of profiting from his own perfidious breach of the ECA. To be honest, I’m nervous, over-prepared, and tired from the 20 hours of flying the day before. The Court is Fiji’s Chief Justice Fatiake and their Lordships, Mason, President of the New South Wales Court of Appeal, and Gault, President of the New Zealand Court ofAppeal. I know I’m in a bit of trouble. The issue is now whether the relevant trust deed is a ‘settlement’ rendered invalid without the prior consent or retrospective validation of the Minister, neither of which had been obtained. My opponent, this time a continued page 12... Page 11 — July 2004 ) dels DCLS 2004 membership drive Interested in law reform? Want to get involved? Do you want to see the law deliver justice? Put the red back in red tape? Why not join Darwin Community Legal Service! Membership is cheap and the rewards are priceless. Darwin Community Legal Service Inc provides legal advice and casework to disadvantaged people in and around the Top End of the NT. Generalist legal advice is provided at free legal advice sessions which are held weekly in Darwin, Casuarina and Palmeston. A number of outreach sessions are also held in and around town. DCLS conducts some casework, focussing on human rights or public interest matters. DCLS also provide specialist welfare rights, disability discrimination, legal services, and aged and disabled advocacy. And on top of all that we identify barriers to justice and seek to overcome them by way of law reform and/or community legal education DCLS Inc is an incorporated association with a communitybased Management Committee. It also has Advisory Committees that provide advice and assistance to our specialist services. The Disability Rights Advisory Committee and Aged Care Rights Advisory Committees are permanent sub-committees of the Management Committee. Advisory committees are established from time to time to oversee projects, undertake consultation, develop policy and so on. Members have the opportunity (but there is no obligation) to participate in a range of DCLS activities. Or become a member of the Management Committee or an Advisory Committee and have say in priority setting and future directions for the organisation. All this and a warm inner glow for just $5 a year for individuals, $10 for organisations. For more information contact Caitlin on 8982 1111.® Advocacy far flung cont... senior from the Auckland and Fiji Bars is off on a tangent. The trust can’t be retrospectively validated, he says, because it is not a trust as incompletely constituted. He argues that the 10,000 shares the subject of the trust, out of 20,000 issued, of the same class, are not a fungible part of the whole (but see Hunter v Moss [1994] 3 All E.R. 215 (CA)). Que? If it’s not a ‘settlement’, no EC approval is required and we win the appeal, but there’s all sorts of other downstream complications and consequences to that one. The Court thinks so too, and won’t let him go there as it was not raised below and involved evidence not called below. As I sit there, nervously enjoying the judicial fire hose being directed at my learned opponent, and awaiting my turn, it becomes clear the Court thinks the trust deed, if a settlement or agreement under s.31 ECA, can’t be invalid until retrospective validation is refused. As Rumpole might have said, “Precisely my point, my Lords”. Just then, my junior, Babu Singh passes me a document. Sweet Charity. There, in my perspiring hand, signed Page 12 —July 2004 only this morning, is the Minister's retrospective validation. We’re valid! Wow! There is a god! When its my turn to speak, I’m deliberately, if uncharacteristically humble. “Your Lordships, I feel obliged to tell you I’ve just been handed a certificate of validation, signed just this morning.” If I had blinked, I’d have missed it, but their Lordships actually laughed. The Court decides that the trust deed was a settlement which, absent prior approval, could be, and in this case was, saved from invalidity by retrospective validation. Honours are even so each party bears its own costs. I’m reminded, yet again, that so often in appeals, the issue is less how the Court below got there, but whether it was right or not. I’ve really enjoyed my trips to Fiji. It’s a bit third world, but it has English, Australian, New Zealand and home spun common law, which is taken very seriously. It’s statutes are shorter and simpler, and by comparison with ours leave a lot to the imagination. Their Companies Act is ours of the late 70’s for example. There’s a lot of expat Australian, New Zealand and English judges in their High Court, and serving and retired judges from Australia and New Zealand sit on their appellate Courts. Fiji doesn’t have our luxurious courts, our computer and information systems, generous and up to date law libraries, our ongoing skills upgrading, advocacy training, all the trappings of modern Australian city legal practice. But it seems to work well. The practice of the law in Fiji is obviously interesting and dynamic. There, as all around the world, it is lawyers who stand up in the face of tyranny. Respect for the rule of law is palpable, and the independence of the judiciary is highly valued. One thing we especially share in common is friendly and dedicated Court and Registry staff. The Fijian people are delightful. Will I return. I’d love to. As Rob Sitch might have said, there’s always a judicial review somewhere®