Honourable Guy Joseph (in his personal capacity and in his capacity as Parliamentary Representative for Castries South East) Claimant v [1] The Constituency Boundaries Commission First Defendant [2] The Honourable Prime Minister Second Defendant [3] Attorney General (acting in her capacity of the legal representative of her Excellency, the Governor General) Third Defendant

• Jurisdiction: St Lucia
• Judge: Ramdhani J.
• Judgment Date: 27 May 2015
• Judgment citation (vLex): [2015] ECSC J0527-1
• Docket Number: Claim No. SLUHCV2015/0129
• Court: High Court (Saint Lucia)
• Date: 27 May 2015

[2015] ECSC J0527-1

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Claim No. SLUHCV2015/0129

In the Matter of Section 57 and 58 of the Constitution of Saint Lucia

and

And in the Matter of the December 2014 Report of the Constituency Boundaries Commission

and

In the Matter of a claim for declaratory and other reliefs pursuant to section 105 of the Constitution for Contravention of the Provisions of the Constitution

Between:

Honourable Guy Joseph (In his personal capacity and in his capacity as Parliamentary Representative for Castries South East)

Claimant

and

[1] The Constituency Boundaries Commission

First Defendant

[2] The Honourable Prime Minister

Second Defendant

[3] The Attorney General (acting in her capacity of the legal representative of her Excellency, the Governor General)

Third Defendant

Cases Considered:

A v The Law Society of Tasmania [2001] TASSC 55 ; (2001) 10 Tas R 152.

Asia Pacific Telecommunications Ltd v Optus Networks Pty Ltd [2005] NSWSC 550

Attorney General v Observer Ltd [1990] 1 A.C. 109

Attorney General of Fiji v Director of Public Prosecutions [1083] 2 A.C. 672

Aussie Airlines Pty Limited v Australian Airlines Pty Ltd 65 FCR 215

Bahonko v Nurses Board of Victoria (No 3) [2007] FCA 491

Beach Petroleum NL v Kennedy [1999] NSWCA 408

Belan v Casey [2002] NSWSC 58

Black v Taylor [1993] 3 NZLR 403

Boulting v. Association of Cinematograph, Television and Allied Technicians [1963] 2 Q.B. 606

British American Tobacco Australia Services Ltd v Blanch [2004] NSWSC 70

Coppola v Nobile [2012] SASC 42

Commonwealth Bank of Australia v Jackson McDonald [2014] WASC 301

D & Construction Pty Ltd. v Head (1987) 9 NSWLR 118

Everingham v Ontario (1992) 88 DLR (4th) 755

Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467

Freeman v Chicago Musical Instrument Co 689 F2d 715 (1982)

Garde-Wilson v Corrs Chambers Westgarth (2007) 27 VAR 271

Gazley v Lord Cooke of Thornton and Others [2000] 3 LRC 50

Geveran Trading Co Ltd v Skjevesland [2003] 1 WLR 912 .

Giannarelli v Wraith (1988) 165 CLR 543

Gugiatti v City of Stirling [2002] WASC 33

Hempseed v Ward [2013] QSC 348

Hosein's Construction v 3G Technologies Claim No. CV2008-005660 (T&T)

Holborow v Macdonald Rudder [2002] WASC 265

Ismail-Zai v Western Australia [2007] WASCA 150

Kallinicos v Hunt (2005) 64 NSWLR 561

Kooky Garments Ltd v Charlton [1994] 1 NZLR 587

MacDonald Estate v Martin 77 D.L.R. (4th) 249

Magro v Magro (1989) FLC 92-005

McVeigh & Anor v Linen House Pty Ltd & Rugs Galore Australia Pty Ltd & Ors [1999] VSCA 138

Mitchell v Pattern Holdings Pty Ltd [2000] NSWSC 1015

Mitchell v Burrell and Anor [2008] NSWSC 772

Myers v Elman [1940] AC 282

Newman v Phillips Fox (1999) WASC 171

Ontario Inc. (Locomotion Tavern) v. Ontario (Attorney General) 2010 ONSC 1184

Prince Albert v Strange (1849) 1 Macnaghten & Gordon 41 E.R. 1171 25 41 E.R. 1171

Prince Jefri Bolkiah v KPMG [1999] 2 AC 222

PhotoCure ASA v Queen's University at Kingston [2002] FCA 905

QGC Pty Ltd v Bygrave and Others 186 FCR 376

Re a Firm of Solicitors [1992] 2 WLR 809

Spincode Pty Ltd. v Look Software Pty Ltd [2001] VSCA 248

Scallan v Scallan [2001] NSWSC 1078

S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd.

Talisman Resort GP Inc v Wolfgang Kyser and Others 2013 ONSC 1901

Thevanez v Thevanez (1986) FLC 91–748

Village v BDW [2004] Aust Torts Reports 81–726

Viscariello v Legal Profession Conduct Commissioner [2015] SASC 4

Wan v McDonald (1991) 33 FCR 491

William Stewart Arnold Martin v William Hamilton Gray [1990] 3 SCR 1235

Westpac Banking Corporation v Newey [2013] NSWSC 533

Legislation Considered:

Constitution of St. Lucia – Section 57 and 58

Civil Procedure Rules 2000 – Part 1

Legal Profession Act, Chapter 2.04 of the Laws of St. Lucia ('Code of Conduct'), Section

42; Schedule 3 of the Act – Rules 9, 11, 12, 17, 20, 22, 25 and 34 of Part A of Code of

Conduct; Rule 14 of Part B of the Code of Conduct.

Ethics and Advocacy — Attorney at Law — Court's Supervisory Role — Power of the Court to Restrain an Attorney from Acting for a Party to Litigation — Three Bases for Removal — Breach of Duty of Loyalty — Breach of Duty of Confidentiality — The Court's Inherent Jurisdiction to Supervise Its Officers and to Protect the Administration of Justice.

Exercise of the Court Inherent Jurisdiction to Remove Attorney — Exceptional Jurisdiction — Test — Perception of the Fair-minded and reasonably informed member of the Public — Perception of a Real Risk that Administration of Justice would be adversely affected — Matters which the Fair minded observer must be taken to know.

Application by Party to Remove Attorney of Opposing Party — Application not based on the Protection of any Personal Interest — Allegation that Attorney would be perceived as failing in his Duty to Opposing Client — Need for Circumspection and Caution — Whether good cause for Removal — Whether Application made for collateral or forensic advantage.

This application was made on the first hearing of a constitutional motion brought by a member of parliament from the opposition benches challenging the validity of a Report produced by the Constituencies Boundaries Commission recommending changes in the constituencies boundaries and an increase in the number of constituencies in St. Lucia. In this application the claimant has sought orders restraining the Commission from continuing to retain Senior Counsel Mr. Astaphan as its attorney in the substantive and interlocutory proceedings. In the underlying motion, the claimant has challenged the Report of the Commission on two main grounds, arguing first that when the Commission prepared its Report, it has not acted independently and has been improperly influenced by the Prime Minister and the ruling party, and second that the Commission had failed to consult or properly consult during the course of its functions under section 58 of the Constitution.

In this application, the claimant contended that having regard to the constitutional framework establishing the Commission and providing for its functions, it was required to act in an independent and impartial manner, and that if Mr. Astaphan was allowed to continue to represent the Commission, it would lead any fair minded and reasonably informed member of the public to perceive that the administration of justice would be adversely affected.

The claimant grounded this application on three factual contentions that it asked the court to find on the affidavit evidence before the court. First, the claimant contended the Mr. Astaphan had appeared for the Prime Minister and the Attorney General in her capacity as representative of the Governor General in the earlier pre-action application in these proceedings. Second, the claimant contended that Mr. Astaphan was a known political activist on behalf of the ruling political party and a close friend of the Prime Minister. Third, it was also contended that Mr. Astaphan appointment as counsel for the Commission had been decided or substantially influenced by the Attorney General and or the Prime Minister and that this was an interference with the independence of the Commission. The claimant argued that all these matters would lead any fair minded and reasonably informed member of the public to, at the very least, have a perception that Mr. Astaphan would use his affiliations to improperly influence the Commission in these proceedings with greater regard for the interests of the Prime Minister and the Governor General than for the interests of the independent Commission.

The application for the removal order was opposed. In oral arguments Mr. Astaphan contended he was in no way a political activist for the ruling party or the Prime Minister and that all public comments or statements made by him were within right legal right to practise his profession and to represent his clients interests. He further contended his earlier appearance in the pre-action application was expressly stated to be for the proceedings on that day only and that he had been asked by all of the parties including the Chairman of the Commission to appear in court and hold papers on its behalf. He contended that there could be no other inference to be drawn from the expressed terms of the court's order made that day. He further contended that this application was misconceived and designed to frustrate his client, and there was no basis in law for the claimant to seek to remove him as the underlying challenge was not aimed at reviewing the Commission's general conduct but only in relation to its functions performed under section 58 of the Constitution in the preparation of its Report; it was beyond dispute that Mr. Astaphan played no role in the functions of the Commission prior to these proceedings.

Held, dismissing the application:

• 1. A court has the power under the common law and statute to restrain an attorney from acting or continuing to act for a client in proceedings before the court on three bases. First, this jurisdiction may be exercised to restrain the attorney where it is shown that the attorney has breached or there is a real risk that he is likely to breach the duty of confidentiality as against its former or present client. Second, the attorney may be restrained where he or she has breached or is about to breach the duty of loyalty with regard an existing client. Third, in its duty to supervise its officers, a court has the inherent jurisdiction also given force by statute, to restrain an attorney from representing any client if there is a real risk that the administration of justice may be...