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Chief Registrar v Singh [2018] FJILSC 6 (2 November 2018)

IN THE INDEPENDENT
LEGAL SERVICES COMMISSION


No. 003 of 2018


BETWEEN:


CHIEF REGISTRAR

Applicant


AND:


AMAN RAVINDRA SINGH

Respondent


Applicant: Ms. A. Mataitoga with Ms. V. Prasad
Respondent: Mr. A. R. Singh in person


Date of Hearing: 29th October 2018


Date of Judgment: 2nd November 2018


EX TEMPORE JUDGMENT


1. The application in summary – allegation of “failing to respond” to the Chief Registrar

[1] This is a case where it is alleged that a member of the legal profession has failed to respond within 14 days to a notice from the Legal Practitioners’ Unit (LPU) within the Office of the Chief Registrar (which has the responsibility for investigating complaints against members of the profession) and thus, pursuant to section 108(2) of the Legal Practitioners Act 2009 is guilty of professional misconduct.

[2] The Respondent legal practitioner does not deny that he failed to respond but alleges that he had ‘a reasonable explanation for such failure’ pursuant to section 108(2) of the Legal Practitioners Act 2009 and thus a defence to the allegation.


2. The Count

[3] On 14th August 2018, an Application was filed by the Chief Registrar setting out one allegation of Professional Misconduct against the Respondent as follows:

‘Count 1


ALLEGATION OF PROFESSIONAL MISCONDUCT: Pursuant to Section 82(1)(a) of the Legal Practitioners Act 2009


PARTICULARS


AMAN RAVINDRA SINGH, a Legal Practitioner, failed to respond to a complaint lodged by one Shailesh Kumar dated 20th October 2017, as required by the Chief Registrar by a Notice dated 13th April 2018, pursuant to section 105 of the Legal Practitioners Act of 2009 and thereafter failed to respond to a subsequent reminder Notice dated 16th May 2018, issued by the Chief Registrar pursuant to section 108(1) [sic] of the Legal Practitioners Act of 2018[sic], which conduct is a breach of section 108(2) of the Legal Practitioners Act of 2009 and is an act of Professional Misconduct.’


[4] I note that there was no objection taken by the Respondent to what is clearly a typographical error in the particulars and therefore, shall read the particulars as the ‘reminder Notice dated 16th May 2018, issued by the Chief Registrar pursuant to section 108(2) of the Legal Practitioners Act 2009’ instead of Section 108(1) of the Legal Practitioners Act 2018.


[5] The ‘Prosecution Case Statement’ filed on 14th August 2018 together with the Application, explained at paras [4]-[9]), as follows:

‘4. Principally, the Applicant would be relying upon the emails from Melvin Kumar dated 13th April 2018 (page 3 of the Bundle) and 16th May 2018 (page 7), recorded statement of Melvin Kumar date[d] 7th June 2018 (page 37) and the Respondent’s email dated 16th may 2018 (page 36).


Legal basis upon which the application is brought before ILSC

  1. The Respondent is charged pursuant to section 82(1)(a) of the Legal Practitioners Act 2009 (hereinafter referred to as “the Act”). Section 82(1)(a) stipulates:

“82 (1) For the purposes of this Decree, ‘professional misconduct’ includes-

(a) unsatisfactory professional conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.”


  1. Section 108 (1) and (2) of the Act states:

“108.—(1) Where any legal practitioner or law firm fails to comply with any notice issued under section 105 or section 106, the Registrar may notify the legal practitioner or law firm in writing that if such failure continues for a period of fourteen days from the date of receipt of such notice, the legal practitioner or law firm will be liable to be dealt with for professional misconduct.

(2) If such failure referred to in subsection (1) continues for a period of fourteen days from the date of such notification to the practitioner, such failure shall be deemed to be professional misconduct, unless the legal practitioner or law firm furnishes a reasonable explanation for such failure. In any proceedings before the Commission, the tendering of a communication or requirement from the Registrar with which the legal practitioner or law firm has failed to comply, together with proof of service of such communication or requirement, shall be prima facie evidence of the truth of the matters contained in such communication and any enclosures or annexures accompanying such communication.”


  1. It is alleged that the Respondent failed to respond to a complaint lodged by one Shailesh Kumar (herein referred to as “the Complainant”) as required by the Chief Registrar’s Notice dated 13th April 2018 under section 105 of the Act and thereafter failed to respond to a subsequent reminder Notice dated 16th May 2018 pursuant to section 108 (1) [sic]3 of the Act.
  2. The Respondent therefore was in breach of section 108 (2) of the Act and the Applicant regards the said breach as serious and a substantial failure on the part of the Respondent to reach or maintain a reasonable standard of competence and diligence and as such a breach of section 82(1)(a).
  3. In conclusion, the Respondent was aware of the allegations made against him by the Complainant having been served the Notice but failed to respond to the same as mandated. Having acknowledge[d[ receiving the Notice, failed to respond to the same within the stipulated time. As such his actions are deemed to be professional misconduct unless the Respondent produces a reasonable explanation for such failure.’

[My emphasis]


[6] In my view, the above clearly sets out the allegation against the Respondent.


3. The issue

[7] When the matter was first called before me on 17th September 2018, the Respondent entered a plea of “Not Guilty” on the basis that he had an explanation that he wished to put forward as a defence rather than in mitigation and the matter was set down for a hearing on 29th October 2018.


[8] As it has now been some two years since I last had to deal with an allegation of “failing to respond” to the Chief Registrar pursuant to section 108 (2) of the Legal Practitioners Act of 2009 (and there are now two such matters that have been recently filed just before I am to complete my term as the Commissioner), it is perhaps timely that I cite an excerpt from my judgment in Chief Registrar v Bukarau (Unreported, ILSC Application No.001 of 2016, Commissioner Hickie, 7 June 2016; PacLII: [2016] FJILSC 2 <http://www.paclii.org/fj/cases/FJILSC/2016/2.html> ) to clarify again what is the professional misconduct when it is alleged that there has been a failure to respond to the Chief Registrar:

‘[6] It is important for the Respondent, as well as for the legal profession generally, that I set out in full the relevant sections of the Legal Practitioners Decree 2009 (see <http://www.paclii.org/fj/promu/promu_dec/lpd2009220/> ), so that there is no confusion as what is a legal practitioner’s responsibility when the practitioner receives a notice from the Chief Registrar or the Legal Practitioners’ Unit within the Chief Registrar’s Office in relation to a complaint.

[7] Section 104 informs the legal practitioner of the complaint. It states:

‘Practitioner or law firm to be informed


104. Upon receipt of a complaint under section 99 or commencement of an investigation under section 100, the Registrar shall refer the substance of the complaint or the investigation—

(a) in the case of complaint or investigation against a legal practitioner—to the legal practitioner;

(b) in the case of complaint or investigation against a law firm—to all the partners of the law firm; or

(c) in the case of complaint or investigation against any employee or agent of a legal practitioner or law firm—to the legal practitioner or the one or more partners of the law firm.’


[8] Pursuant to section 105, the Registrar then seeks from the practitioner ‘a sufficient and satisfactory explanation in writing’ as follows:

‘Registrar may require explanation


105.—(1) Upon receipt of a complaint under section 99 or commencement of an investigation under section 100, the Registrar may require that the legal practitioner or the law firm by written notice to furnish to the Registrar within the time specified in that notice a sufficient and satisfactory explanation in writing of the matters referred to in the complaint.

(2) The Registrar may by notice in writing require a legal practitioner or law firm to provide to the Registrar a sufficient and satisfactory explanation of any matter relating to that practitioner's or that law firm's conduct or practice. Such explanation shall be provided in writing to the Registrar within the time specified in the notice.’


[9] Pursuant to section 106, the ‘Registrar may require production of documents’.

[10] When there has been a failure by the practitioner to respond to the section 105 or 106 notice, then the Registrar may issue a “warning” notice pursuant to section 108 ...

[11] Thus, when there has been no response to the initial notice under s.105 or s.106, the Registrar may then issue a second notice pursuant to section 108(1) which is in effect a warning that if the failure continues for a further 14 days from receipt by the practitioner of the second notice, the practitioner is liable to be dealt with for professional misconduct.

[12] If the practitioner still fails to respond after 14 days from receipt by the practitioner of the second notice, then pursuant to section 108(2) such failure shall be deemed to be professional misconduct unless the legal practitioner or law firm furnishes a reasonable explanation for such failure.

[13] Put simply, if an Application is filed by the Chief Registrar with the Commission alleging professional misconduct ... it is NOT the substance of the initial complaint lodged under section 99 or the commencement of an investigation under section 100 that become the basis of the Chief Registrar’s application, rather it is an allegation that there has been a “failure to respond” by the legal practitioner to the notice issued by Chief Registrar pursuant to s.108(1), that is, to provide a sufficient and satisfactory explanation in writing which is deemed to be professional misconduct pursuant to section 108(2).’
...

[15] Thus, whilst a practitioner may wish to have a hearing before the Commission arguing the baselessness of a particular complaint, it is not the “substance” of the complaint for which the particular application of professional misconduct has been lodged by Chief Registrar. Rather, it is the omission of failing to respond to the notice issued by the Chief Registrar (usually via the LPU) pursuant to s.108(1) that is the basis of alleging professional misconduct.’

[My emphasis]


[9] In the present case:

(1) The section 104 and 105 notices were clearly sent to the Respondent legal practitioner on 13th April 2018 (Exhibit “A1”). The Respondent does not deny that he received such notices;

(2) The section 108 (2) notice was clearly sent to the Respondent legal practitioner on 16th May 2018 (Exhibit “A2”). Again, the Respondent does not deny that he received that notice. Indeed, Exhibit “A3” is a copy of an email dated 16th May 2018 sent at ‘12:36 PM’ from Melvin Kumar of the Legal Practitioners Unit as well as a copy of an email also dated 16th May 2018 sent at ‘1:08 PM’ from the Respondent to Mr. Kumar acknowledging receipt of Mr. Kumar’s email. The email from Mr. Kumar to the Respondent stated:

‘Section 108 Notice of the Legal Practitioners Act 2009. Complaint Ref No.181/17

Dear Mr. Aman Ravindra Singh,

Reference is made to the above.

Attached please find self explanatory section 108 notice dated 16th May, 2018, forwarded to you for your necessary actions.

Kindly acknowledge receipt of the same.

Thank You.

Melvin Kumar’

[My emphasis]


The email from the Respondent legal practitioner to Mr. Kumar stated:

‘Dear Mr Kumar

Thank you very much for your email and attached letter.

We will be responding in due course.

Regards,

Aman Ravindra-Singh

Barrister & Solicitor

[My emphasis]


[10] I note that the section 108(2) notice, apart from being sent as an attachment to an email that was sent by Mr. Kumar to Mr. Singh on 16th May 2018 and acknowledged in an email by Mr. Singh to Mr. Kumar as received on that same date, the original of the notice was also sent by post to PO Box 732 Lautoka, that is, the post office box of the Respondent’s firm.


[11] As I have noted above, the Respondent in his evidence did not deny receiving the section 108(2) notice. Instead, his defence is that he had ‘a reasonable explanation for such failure’ pursuant to section 108(2) of the Legal Practitioners Act 2009. The Respondent’s ‘reasonable explanation’, based upon the evidence of his law clerk, Mr. Steven, as well as that of the Respondent himself, is that, in summary:

(1) There were periods when the Respondent did not hold a valid practising certificate during the first half of 2018;

(2) On those occasions when the Respondent did not hold a valid practising certificate, the Respondent instructed his staff not to undertake any legal work during such periods;

(3) Hence, while the Respondent agrees that he received on 16th May 2018 the email from Mr. Kumar and the attachment of the section 108(2) notice, the Respondent drafted a response which he then gave to Mr. Steven that is dated 5th June 2018 (Exhibit “R1”) to send by facsimile transmission but this was not sent by Mr. Steven as it was during a period when the Respondent had instructed his staff that he was not holding a valid practising certificate and, as such, no legal work could be undertaken. Thus, according to Mr. Steven, “I did not fax it as it was illegal to do any work” and “I kept it with me”.


[12] Nearing the completion of the evidence of Mr. Kumar, a short adjournment was taken to allow the parties to inspect the file held by the LPU in relation to the Respondent and for the parties to agree as to the periods as to when the Respondent has held a valid practising certificate during the current practising year. The agreed dates were then read into the Commission’s record as follows:

(1) 15/03/2018-31/03/2018 – no valid practising certificate held by the Respondent;

(2) 03/04/2018-30/04/2018 - the Respondent held a valid practising certificate;

(3) 01/05/2018-11/05/2018 - the Respondent held a valid practising certificate;

(4) 17/05/2018-31/05/2018 - the Respondent held a valid practising certificate;

(5) 12/06/2018-26/06/2018 - the Respondent held a valid practising certificate;

(6) 12/07/2018-28/02/2019 - the Respondent holds a valid practising certificate.


[13] Even if I accepted (which I do not for reasons that I will shortly explain) the Respondent’s ‘reasonable explanation’ that the period when he did not respond to the Chief Registrar was when neither he nor his staff were allowed to undertake any legal work (including Mr. Steven to whom the Respondent gave responsibility to send the Respondent’s reply to the Chief Registrar in response to the section 108(2) notice of 16th May 2018), I note from the above that the Respondent held a valid practising certificate from 17/05/2018-31/05/2018. Further, I also note that section 108(2), (a copy of which Counsel for the Applicant set out in her ‘Prosecution Case Statement’ filed on 14th August 2018 and which I have also set out above) states:

(2) If such failure referred to in subsection (1) continues for a period of fourteen days from the date of such notification to the practitioner, such failure shall be deemed to be professional misconduct, unless the legal practitioner or law firm furnishes a reasonable explanation for such failure. In any proceedings before the Commission, the tendering of a communication or requirement from the Registrar with which the legal practitioner or law firm has failed to comply, together with proof of service of such communication or requirement, shall be prima facie evidence of the truth of the matters contained in such communication and any enclosures or annexures accompanying such communication.”

[My emphasis]


[14] On my calculations, ‘fourteen days from the date of such notification to the practitioner’ on 16th May 2018 (that is, when the Respondent acknowledged by email receipt of the section 108(2) notice), meant that the time period expired on 29th May 2018. Even if I allowed an extra day or two and said that the time period began as from 17th May 2018, the 14 days would still have expired on 30th May 2018, that is, during the period when the Respondent held a valid practising certificate from 17/05/2018-31/05/2018. Hence, the Respondent is in breach of section 108(2).


4. Written Submissions

[15] After the hearing concluded on 29th October 2018, a timetable was ordered for the filing of written submissions by each party as follows:

‘1. The Applicant to file and serve written submissions by 3:00pm on Tuesday, 30th October 2018.

  1. The Respondent to file and serve any submissions in response by 3:00pm on Wednesday, 31st October 2018.
  2. The Applicant to file any reply by 12noon on Thursday, 1st November 2018.
  3. Judgment on Friday, 2nd November 2018 at 11:00am.

AND THE COMMISSION NOTED: That due to time constraints, service can be effected by email upon the Commission and other party.’


[16] Counsel for the Applicant complied with the Order 1 of the above timetable. When there had been no response by the Respondent in compliance with Order 2, however, I instructed the Commission’s Secretary to email the Respondent (with a copy to Counsel for the Applicant) which she did at 3:51 pm on 31st October 2018, as follows:

‘Dear Mr Singh

In accordance with Order 2 made on 29th October 2018, we note that we have not received by email as at 3.47pm your Submissions.

Take note that the Commissioner is proceeding to write his judgment to deliver on Friday, 2ndNovember 2018 at 11am.


Kind Regards

...

Secretary

Independent Legal Services Commission’


[17] The Commission’s Secretary then received four emails from the Respondent in quick succession the same afternoon (that were also copied to Counsel for the Applicant and the Principal Legal Officer of the LPU) as follows:

(1) The first email was sent at 4:02 pm. It stated –

‘Dear Ms Bula

Due to time constraints I have not been able to meet the 3pm deadline for filing of submissions.

Regards

Aman Ravindra-Singh

Barrister & Solicitor’

(2) The second email was sent at 4:11 pm with the subject heading ‘Fwd: PC Renewal – Urgent’. There was no message in the body of the email. Instead, it contained a ‘Forwarded message’ of an email dated ‘Wed, May 16, 2018 at 9:18 AM’ from the Respondent’s email, amanlawyers@gmail.com, to four members of staff of Aman Lawyers including Cedric Steven. I have deliberately not stated what was within the body of the email as in my view the hearing was completed on the 29th October 2018 and the body of the email dated 31st October 2018 is an attempt by the Respondent to tender fresh evidence instead of what was ordered on 29th October 2018, as the timetable for filing of submissions, to which I will have more to say in this judgment shortly;

(3) The third email was sent at 4:23 pm with the subject heading ‘Fwd: PC Renewal – Urgent’. It stated in part -

‘Dear Madam Secretary.

Please note that I had mentioned an email while giving evidence under oath which was sent to my staff as a warning to not operate the law firm,

I have managed to locate that email and it has brought up something else which I strongly feel should be brought up with the Commission ...’


Again, I have deliberately not stated what was further within the body of the email as, in my view, the hearing was completed on 29th October 2018, and the email is an attempt by the Respondent to tender fresh evidence instead of what was ordered that is, ‘any submissions in response’ to those filed by Counsel for the Applicant on 30th October 2018;

(4) The fourth email was sent at 4:26 pm with the subject heading ‘Fwd: PC Renewal – Urgent’. It stated -

‘Dear ILSC & LPU

Attached please find my email to my staff dated 16 May 2018 which was referred to in my evidence.

Regards,

Aman Ravindra-Singh

Barrister & Solicitor’


Again, I have deliberately not stated what was within the attached email as, in my view, the hearing was completed on 29th October 2018, and the email is an attempt by the Respondent to tender fresh evidence instead of what was ordered that is, ‘any submissions in response’ to those filed by Counsel for the Applicant on 30th October 2018.


[18] Despite the Respondent not filing written submissions and, instead made an attempt to submit fresh evidence, Counsel for the Respondent then filed on 1st November 2018, in compliance with Order 3, a ‘Response to Respondent’s Submissions’. As most of it responds to the Respondent’s attempt to tender fresh evidence, including fresh evidence in reply, I will not cite it here other than noting the conclusion at paras [11]-[15]:

‘11. That the Applicant reiterates that all operations of the law firm was the Respondent’s responsibility and the onus was on him to ensure that a response to the section 104, 105 and 108 Notices was sent to the Applicant within time.

  1. That the Respondent’s reliance on his clerk to post his letter Exhibit D1 [sic] and the clerk’s failure to do so due to the Respondent’s warning and email (dated 16th May 2018) should be viewed as failure on the part of the Respondent. This is as, the Respondent failed to inform his staff of the granting of a renewal/extension of his Practising Certificate when he had been informed on 17th May 2018.
  2. That even if the clerk failed to send the letter due to the email warning, it could be said that said warning was irrelevant in that the law firm could operate from the 17th of May 2018 till the 31st of May 2018 and any warning that the clerk had to rely on should have been sent to the staff on the 1st day of June.
  3. That despite the above, the crux of the matter is, that the reply to the Chief Registrar’s Notices was prepared after the 14days had lapsed and therefore was in direct breach of section 108 (2) of the Legal Practitioners Act 2009.
  4. Thus, the Applicant submits that charge filed against the Respondent be found established.’

[My emphasis]


[19] I must record that I was surprised that the Respondent, as an experienced practitioner, has attempted to introduce fresh evidence after a hearing has been concluded by way of email rather than in the usual way, that is by application seeking leave together with an affidavit in support explaining why he was unable to locate such evidence when he had some 43 days between when the matter was first mentioned on 17th September 2018 and the hearing at 4pm on 29th October 2018. In fact, I note that there was no mention by the Respondent at the call over on 17th September 2018 that he wished to rely upon certain documents to be tendered at the hearing. If he had done so, then I would have made further orders accordingly. That is, either for documents to be filed separately or, if agreement could be reached, then as an agreed bundle prepared by both parties. Instead, the Respondent simply indicated on 17th September 2018, that he would be relying upon one witness and, apart from it being confirmed by me when asked by the Respondent that he was not required to file a statement for that witness, the Respondent mainly wanted to ensure that a witness from the LPU would be present “... who is in carriage of my file, or who could produce my file before the Commission” to which the Principal Legal Officer for the LPU (who was appearing as the Leading Counsel for the Applicant) confirmed would be the case. So that there would be no confusion, I then clarified with the Respondent that as follows:

“Commissioner: So, you need, you want a witness from the LPU, a senior person who can explain your file, is that right?

Mr. Singh: Yes.”


[20] I note that there was no mention by the Respondent of his seeking to rely upon additional documents created and circulated within his firm of which, I note, Counsel for the Applicant would have been totally unaware until it was forwarded (after the hearing had concluded on 29th October 2018) as fresh evidence in the Respondent’s submissions in reply on 31st October 2018.


[21] The law in Fiji is clear as to how one should seek to introduce fresh evidence after a hearing and before judgment in the High Court as well as the test to be applied. First, an application can be made under the High Court Rules 1988 (as well as under the inherent jurisdiction of the High Court). Second, the test to be applied is that set out in Ladd v Marshall [1954] 3 All E.R. 748, as explained by His Lordship, Alfred J, recently in Raffe v Raffe (Unreported, High Court at Suva, Civil Action No. HBC 256 of 2015, 5 September 2017; PacLII: [2017] FJHC 657, <http://www.paclii.org/fj/cases/FJHC/2017/657.html> ) at para [15]:

‘The leading case regarding the principles on which further evidence is received is the English Court of Appeal decision in: Ladd v. Marshall [1954] 3 All E.R. 748. Denning L.J. (as he then was) said “In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible”.’

[My emphasis]


[22] I note the test from Ladd v Marshall has also been cited with approval more recently by the Fiji Court of Appeal in iTaukei Land Trust Board v Radua [2017] FJCA 141; ABU0059.2015 (30 November 2017) <http://www.paclii.org/fj/cases/FJCA/2017/141.html> where Prematilaka JA (with whom Calanchini P and Dr. Guneratne JA agreed) noted at paras [49]-[50]:

‘[49] The Court of Appeal in Chand v Chand Civil Appeal No. ABU 0033 of 2008: 23 March 2012 [2012] FJCA 22 applied the criteria set out in Ladd v. Marshall [1954] EWCA Civ 1; [1954] 3 All ER 745 to admit fresh evidence in appeal ...

[50] The Court of Appeal followed the same principles in Western Marine Ltd v Levakarua Civil Appeal No ABU90 of 2010:30 May 2013 [2013] FJCA 52 and K. Naidu Investment Proprietary Ltd v Fiji Pine Ltd Civil Appeal No ABU0016 of 2016: 14 September 2017 [2017] FJCA 115.’


[23] Although the Commission is a tribunal created by statute, it follows the Rules of the High Court and Court of Appeal, as I explained in Bukarau at paras [80]-[81]:

‘[80] ILSC Practice Direction No.1 of 2009, issued by Commissioner J.R. Connors, on 22 October 2009, in relation to appeals, states:

“Pending the formulation of rules to the contrary the Court of Appeal Rules [Cap.12] shall apply as if the proceedings before the Independent Legal Services Commission were civil proceedings before the High Court.”

[81] Thus, the Commission operates on the same level as the High Court. Its Orders once filed in the High Court become Orders of the High Court and can be enforced in accordance with the Rules of the High Court. Appeals from Orders of the Commission are in accordance with the Court of Appeal Rules.’


[24] As I have noted above, no application together with an affidavit in support has been filed by the Respondent seeking leave to adduce fresh evidence. I also note that what the Respondent seeks to tender into evidence is a copy of an email that was circulated by him to his staff at 9.18 am 16th May 2018 stating:

‘Our attempt to get our PC renewed till the end of May has been declined.

Please do not operate the law firm while we wait to sort out this issue.’


[25] I further note that Counsel for the Applicant has provided as an annexure to her ‘Response to Respondent’s Submission’ of 1st November 2018, a copy of an email dated 16th May 2018 sent at ‘2:03 PM’ from the Respondent to the LPU seeking an extension of his practising certificate until the end of May 2018 and a reply from Ms. Elenora Waqatairewa of the LPU sent on 17th May 2018 at ‘10:11 AM’ which states in part: ‘“Your request for extension is granted and will only be valid until 31st May 2018 ...’

[My emphasis]


[26] If I was to allow fresh evidence to be tendered by the Respondent of a copy of the email circulated by him to his staff at 9.18 am 16th May 2018, then surely (in acting fairly pursuant to section 114 of the Legal Practitioners Act 2009), I would also have to allow Counsel for the Applicant to tender in response copies of the email dated 16th May 2018 sent at ‘2:03 PM’ from the Respondent to the LPU seeking an extension of his practising certificate and the reply from Ms. Elenora Waqatairewa of the LPU sent on 17th May 2018 at ‘10:11 AM’ granting the extension. More relevantly, where does that take the case? In my view, not only does it not assist the Respondent’s defence, on one view, it also raises questions as to the Respondent’s credibility. In any event, I do not have an application before me together with an affidavit from the Respondent in support to even consider whether to grant the Respondent leave to adduce fresh evidence. If I did have such an application I would dismiss it noting the test from Ladd v Marshall as applied by Alfred J, in Raffe has not been satisfied as follows:

(1) It has not been shown that ‘the evidence could not have been obtained with reasonable diligence for use at the trial’;

(2) The evidence is not that ‘if given, it would probably have an important influence on the result of the case, although it need not be decisive’;

(3) The evidence although credible, however, has been easily rebutted by Counsel for the Applicant when it is placed in context, that is, of all of the email correspondence that was sent between the Respondent and the LPU on 16th and 17th May 2018. I also note that if I was to allow fresh evidence Mr. Steven would need to be recalled to be cross-examined as to what he thought was occurring between 17th and 31st May 2018 when his employer, the Respondent, was apparently appearing in the sedition trial of State v Josaia Waqabaca & Others, for which the Respondent had been granted an extension to his practising certificate to appear.


[27] I am not going to waste any more time on this “allegedly fresh evidence email” other than to cite the comments of Abeygunaratne J, in Kumar v Sharma, (Unreported, High Court at Lautoka, Civil Appeal No. 26 of 2013, 28 May 2014; PacLII: [2014] FJHC 374, <http://www.paclii.org/fj/cases/FJHC/2014/374.html> ), where in dismissing an appeal to admit fresh evidence from a judgment of the Master, His Lordship stated at paras [21]-[25] (and which are apt to the present matter before me):

‘21. The evidence the Appellant is now seeking to adduce does not relate to matters which have occurred after the date of the trial.

  1. In the written submissions of the Appellant it is stated that the appellant should not suffer any injustice due to any perceived shortcoming on the part of his previous legal advisor
  2. This in my view is an admission and an indication that there was a lapse on the part of the Appellants Counsel at the hearing before the Hon Master and now they are seeking to adduce fresh evidence to rectify that lapse. It is clear that all material times the Appellant had the information and evidence available with him however they choose not to adduce these facts before the Master of High Court ...
  3. If this type of Application is encouraged any party will get an opportunity of calling evidence which was available before a hearing but not adduced at the hearing to nullify the finds [sic] in a judgement. [sic]
  4. In my view such a situation will lead to a casual attitude in adducing evidence and cause prejudice to the [other] party ...’

[My emphasis]


[28] Even if the Respondent’s valid practising certificate had expired before the 14 day period required for the Respondent to answer the section 108(2) notice of 16th May 2018, there is no legal basis upon which the Respondent relied (by way of case law tendered in the hearing before the Commission or as part of his written submissions) to support his ‘reasonable explanation’ that if the Respondent had replied to the Chief Registrar in the 14 days’ period from 16th May 2018 (as required by the section 108(2) notice) this would have been legal work (that is, work which both the Respondent and his staff were not allowed to perform without the Respondent holding a valid practising certificate). In that regard, again I am reminded of what occurred in Chief Registrar v Bukarau.


[29] In Bukarau, as I noted at para[49]:

‘... The reasonable explanation that was suggested in a roundabout way by the Respondent (even though he was pleading guilty) was that it was the legal vacation (which did not conclude up to and including 15th January 2016) and the LPU filed their application on 12th January 2016’.


[30] I then analysed in Bukarau the Respondent’s submission in some detail concluding at paras [82]-[84]:

‘[82] Unfortunately, for the Respondent, however, I cannot find that the definition of pleadings extends to notices issued by the Chief Registrar to a practitioner prior to the commencement of proceedings in the Commission. I am of the view that sections 105 and 108(1) notices are not pleadings. It is not as though a writ of summons had been issued by the Commission. Indeed, at that stage, no application had been filed by the Applicant with the Commission. One only needs to read ‘Order 18 Pleadings’ of the High Court Rules to confirm that notices sent by the Chief Registrar to a legal practitioner are not pleadings.

[83] Further, it is not as though the Registrar had filed a statement of claim upon the Respondent and that it was then up to the Respondent to reply by filing a defence. As the High Court of Australia (per Mason CJ and Gaudron J) observed in Banque Commerciale SA v Akhil Holdings Ltd [1990] HCA 11; (1990) 169 CLR 279; 92 ALR 53 (9 April 1990) at [7] <http://www.austlii.edu.au/au/cases/cth/HCA/1990/11.html> :

“... The filing of a defence is a formal step in proceedings. The defence is part of the pleadings which identify the issue for decision. More significantly in the present case, it is a step which precludes a plaintiff from entering default judgment.”


And as Brennan J, observed in the same case:

“In Thorp v. Holdsworth [1876] UKLawRpCh 167; (1876) 3 Ch D 637, at p 639, Jessel M.R. stated the object of pleadings:

‘The whole object of pleadings is to bring the parties to an issue, and the meaning of the rules of Order XIX. was to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on

either side at the hearing.’”

[84] I do not believe that the issue needs to be referred to the Court of Appeal as a Case Stated. The wording of the Legal Vacation notice is clear on its face: ‘the computation of the times appointed or allowed by the High Court Rules for amending, delivery, or filing any pleadings’. Therefore, the legal vacation is not relevant in the computation of times set out in notices sent by the Chief Registrar to a legal practitioner pursuant to s.108(1) of the Legal Practitioners Decree 2009.
[My emphasis]


[31] I am of the view that responding to the Chief Registrar is not “legal work”, for which a practising certificate is required that is, work performed on behalf of a client, such as appearing in Court, drafting legal documents and/or correspondence on behalf of a client. The response required by the section 108(2) notice of the legal practitioner is a mandatory legal requirement of the Legal Practitioners Act 2009 so as to assist the Chief Registrar and his staff when they investigate whether a complaint by a member of the public against a member of the legal profession has validity. It did not require the Respondent to hold a valid practising certificate to allow him to be able to respond to the Chief Registrar.


[32] If I am wrong on that issue, I note that, in any event, the issue could not be referred to the Court of Appeal as a Case Stated, as subsequent to my judgment in Bukarau of 7 June 2016, the Court of Appeal held on 29th November 2016 in Chief Registrar v Rigsby (Unreported, Fiji Court of Appeal, Misc.Action No.2 of 2016; PacLII: [2016] FJCA 152, <http://www.paclii.org/fj/cases/FJCA/2016/152.html> ), per Guneratne JA at para [11] (with whom Calanchini P
and Basnayake JA agreed), that ‘only the High Court has the statutory right to refer to the Court of Appeal a question of law for a determination as a case stated’. This was also confirmed by same constituted Court of Appeal in Chief Registrar v Goundar that was handed down on the same day as Rigsby, 29th November 2016 (Unreported, Fiji Court of Appeal, Misc.Action No.1 of 2016; PacLII: [2016] FJCA 153, <http://www.paclii.org/fj/cases/FJCA/2016/153.html> , where Guneratne JA stated at para [10] (with whom Calanchini P and Basnayake JA agreed), that ‘... Only the High Court has the right to refer to the Court of Appeal a question of law for determination as a case stated’.


[33] I also note that the Respondent’s explanation seemed to infer (if I have understood the inference correctly) that the Respondent gave to Mr. Steven, on an unknown date, a response to be sent by facsimile transmission to the Chief Registrar in the period between 16th and 31st May 2018 and that Mr. Steven did not prepare it for sending as Mr. Steven thought that it was legal work which the firm could not perform at that time because the Respondent did not hold a valid practising certificate.


[34] I do not accept this as ‘a reasonable explanation for such failure’ to respond to the section 108(2) notice as:

(1) The Respondent knew as at 17th May 2018 that he holds a valid practising certificate until 31st May 2018. That he did not circulate an email to his staff updating his email of 16th May 2018 is a fault that rests solely with him;

(2) The Respondent must have known as at 5th June 2018 (the date of the letter and when it was signed ‘Per: Aman Ravindra Singh’) that he was in breach of section 108(2) notice, as the 14 days’ time period had expired on either 29th or 30th May 2018; and

(3) The Respondent could not place blame at the feet of Mr. Steven for not sending the response that was already out of time when it was the Respondent’s sole responsibility, as the principal of the law firm, to do so. In that regard, I note by way of contrast (as has also been cited by Counsel for the Applicant in her written ‘Closing Submissions’ dated 30th October 2018 at para [28]) where, in Chief Registrar v Nikolau Nawaikula (Unreported, ILSC Application Nos.13 and 14 of 2014, Justice P. Madigan, 16th February 2015; PacLII: [2015] FJILSC 2, <http://www.paclii.org/fj/cases/FJILSC/2015/2.html> ), Justice Madigan, sitting as Commissioner, noted at para [3]:

‘At the hearing of the 16th January 2015, the practitioner advanced mitigation in respect of the two allegations. He expressed remorse and submitted that he had left the matters for a clerk to deal with but that clerk had left him in May 2014 and had not notified him of the need to respond to the Registrar. He did admit however that the replies were his ultimate responsibility.’

[My emphasis]


[35] If I have misunderstood the Respondent and the above inference that I have drawn is incorrect, that is, that the Respondent was attempting to lay blame at the feet of his staff, then I unreservedly apologise to the Respondent. If, however, the inference that I have drawn is correct that like in Nawaikula, Mr. Steven did not inform the Respondent that he had not sent the reply to the Chief Registrar, then I reject the Respondent’s explanation and do not accept it as ‘a reasonable explanation for such failure’ to respond to the section 108(2) notice as this was solely the Respondent’s responsibility.


4. Findings

[36] My findings in the present matter are thus:

(1) A notice in accordance with section 108(2) of the Legal Practitioners Act 2009 was sent on behalf of the Chief Registrar by Mr. Melvin Kumar of the Legal Practitioners Unit to the Respondent in two ways:

(i) By an email dated 16th May 2018 sent at ‘12:36 PM’ to amanlawyers@gmail.com;

(ii) By post to PO Box 732 Lautoka, that is, the post office box of the Respondent’s firm;

(2) The Respondent acknowledged by email to Mr. Kumar at 1:08 PM on 16th May 2018 receipt of the section 108(2) notice;

(3) No original document was produced showing when the original document was received by the Respondent’s law firm as, according to the evidence of Mr. Steven, an employee of the Respondent’s law firm, the firm does not “date stamp” all documents received via its PO Box;
(4) The Respondent’s evidence was that -

(i) He was the only person to operate the email account amanlawyers@gmail.com; and
(ii) “I received the letter dated 16th May 2018”;

(5) On my calculations, ‘fourteen days from the date of such notification to the practitioner’ on 16th May 2018 (that is, when the Respondent acknowledged by email receipt of the notice), meant that the time period expired on 29th May 2018. Even if I allowed an extra day or two and said that the time period began as from 17th May 2018, the 14 days would still have expired on 30th May 2018, that is, during the period when the Respondent held a valid practising certificate from 17/05/2018-31/05/2018. Hence, I find that the Applicant has satisfied section 108(2). This, however, is not the end of the matter.


[37] The Respondent has raised a defence pursuant to section 108(2) notice in furnishing what he has submitted as ‘a reasonable explanation for such failure’, that is, that as he did not hold a valid practising certificate, neither he nor his staff could perform legal work including responding to the Chief Registrar. I find that the problems with the Respondent’s ‘reasonable explanation for such failure’ to respond to the Chief Registrar within the 14 day period from when the section 108(2) notice was served upon the Respondent, are threefold:

(1) The ‘period of fourteen days from the date of receipt’ of the section 108(2) notice to when it had expired was on either 29th May 2018, or, being generous, 30th May 2018, a period when the Respondent held a valid practising certificate, that is, from 17/05/2018-31/05/2018;

(2) In the alternative, even if the 14 days from 16th May 2018 fell in the period when the Respondent no longer held a valid practising certificate after 31st May 2018 until 12th June 2018 (that is, from 1st-11th June 2018), there is no legal basis upon which the Respondent relied (by way of tendering in the hearing before the Commission or as part of his written submissions) to support his ‘reasonable explanation’ that replying to section 108(2) notice was legal work (that is, work which both the Respondent and his staff were not allowed to perform without the Respondent holding a valid practising certificate);

(3) Further, in the alternative, even accepting that the Respondent gave to Mr. Steven the responsibility to send a response by facsimile transmission to the Chief Registrar in the period between 16th and 31st May 2018 and Mr. Steven did not prepare it for sending until 5th June 2018, the Respondent knew as at 5th June 2018 that he had not complied and was in breach of section 108(2) notice and could not place blame at the feet of Mr. Steven for not sending the response within time, a responsibility that was solely that of the Respondent. Accordingly, I find that the Respondent has not satisfied section 108(2) notice in furnishing ‘a reasonable explanation for such failure’ to respond to the section 108(2) notice.


5. The civil standard of proof to be applied in these proceedings - varied according to the gravity of the act to be proved

[38] I note that, recently, in Chief Registrar v Suruj Sharma (Unreported, ILSC, Case Nos. 012 and 015 of 2015, 20 September 2018; PacLII: [2018] FJILSC 4, <http://www.paclii.org/fj/cases/FJILSC/2018/4.html> , I discussed in some detail the burden of proof to be applied in proceedings before the Commission, citing in turn my discussion in Chief Registrar v Kapadia, (Unreported, ILSC, Case No. 016 of 2015, 21 September 2016; PacLII: [2016] FJILSC 8, <http://www.paclii.org/fj/cases/FJILSC/2016/8.html> . Those cases, however, involved complaints by clients and also involved issues surrounding the retainers. The present matter is concerned solely as to whether the Applicant has established that there was a failure by the Respondent to respond within 14 days after service of a notice pursuant to section 108(2) of the Legal Practitioners Act 2009 and, if that has been established, that is professional misconduct ‘unless the legal practitioner or law firm furnishes a reasonable explanation for such failure’.


[39] In short, in my view, the ‘standard of proof that has been applied to disciplinary proceedings’ (and to which I will be applying to the present solitary count) is thus: ‘the civil standard [that is, the balance of probabilities] varied according to the gravity of the act to be proved’.


[40] I note that section 108(2) states:

‘In any proceedings before the Commission, the tendering of a communication or requirement from the Registrar with which the legal practitioner or law firm has failed to comply, together with proof of service of such communication or requirement, shall be prima facie evidence of the truth of the matters contained in such communication and any enclosures or annexures accompanying such communication.’

[My emphasis]


[41] I also note that the Respondent does not dispute that, on 16th May 2018, he received the section 108(2) notice and no response was sent within 14 days ‘from the date of such notification’ as required by section 108(2).


[42] I further note that section 108(2) notice of the Legal Practitioners Act 2009 provides that ‘such failure shall be deemed to be professional misconduct unless the legal practitioner or law firm furnishes a reasonable explanation for such failure’. In my view, this is not a persuasive burden upon the Respondent but simply an evidentiary burden that, if satisfied, would then require Counsel for the Applicant to rebut on the balance of probabilities that the Respondent did not have ‘a reasonable explanation for such failure’ to establish her case against the Respondent.


[43] I find that the Respondent has not even satisfied the evidentiary burden upon him, that is, that he ‘furnishes a reasonable explanation for such failure’ for the three reasons that I have discussed above, in summary:

(1) The ‘period of fourteen days from the date of receipt’ of the section 108(2) notice to when it had expired was on either 29th May 2018, or, being generous, 30th May 2018, a period when the Respondent held a valid practising certificate;

(2) There is no legal basis upon which the Respondent relied to support his ‘reasonable explanation’ that replying to section 108(2) notice was legal work, that is, work which both the Respondent and his staff were not allowed to perform without the Respondent holding a valid practising certificate;

(3) Even accepting that the Respondent gave to Mr. Steven the responsibility to send a response by facsimile transmission to the Chief Registrar and Mr. Steven did not do so as Mr. Steven thought that he could not do so as it was legal work (and had not been updated by the Respondent that he now held a valid practising certificate as from the 17th May 2018 until 31st May 2018), this was a responsibility that was solely that of the Respondent to reply to the Chief Registrar, not Mr. Steven.


[44] As the Respondent has not satisfied section 108(2) in furnishing ‘a reasonable explanation for such failure’ to respond to the section 108(2) notice, I find that:

(1) The Applicant has established service on 16th May 2018 of a notice by the Applicant upon the Respondent pursuant section 108(2) of the Legal Practitioners Act 2009; and

(2) There was a failure ‘for a period of fourteen days from the date of such notification’ by the Respondent to respond as required by section 108(2) of the Legal Practitioners Act 2009 and such failure is deemed to be professional misconduct.

(3) Accordingly, the Applicant has proven upon the balance of probabilities the allegation of professional misconduct pursuant to section 82(1)(a) of the Legal Practitioners Act 2009, that is, ‘conduct [that] involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’.


5. Sanction

[45] In the usual course of events, I would now hear from the parties in relation to the making of Orders for filing of written submissions on sanctions and setting a date for a hearing of in relation to penalty so that the parties could speak to their respective submissions.


[46] I note that a matter that I raised in Bukarau was how to devise an appropriate sanction where there has been a failure to respond to the Chief Registrar pursuant to section 108(2). Although, on its face, to some this may seem a simple exercise, it is not that simple. As the Solicitors Disciplinary Tribunal of England and Wales’ Guidance Note on Sanctions 5th Edition explained (at page 3):


‘It is the function of the Tribunal to protect the public from harm, and to maintain public confidence in the reputation of the legal profession (and those that provide legal services) for honesty, probity, trustworthiness, independence and integrity. The public must be able to expect to receive a high standard of service from a competent and capable solicitor.’


[47] To suspend any legal practitioner is serious and should not be taken lightly. It has both an effect not only upon the practitioner but, arguably, their clients (and sometimes the employment of their staff). I have discussed this at length in Bukarau. I do not intend to do so again here other than noting that after undertaking a review of the penalties imposed by the previous Commissioner in Fiji, as well as those imposed in some other relevant common law jurisdictions, (‘that is, the states of Queensland and New South Wales in Australia that have similar legislation to Fiji, the province of Ontario in Canada, as well as in England and Wales’), I came to the view at paras [108], [124] and [151], as follows:

At [108]:

‘... in England and Wales, The Solicitors Disciplinary Tribunal, has recently published in December 2015, the 4th edition of ‘Guidance Note on Sanctions’. In relation to the ‘Tribunal’s approach to sanction’, it has noted at paragraph [6]:

“Guidance on the Tribunal’s approach to sanction is set out in Fuglers and Others v Solicitors Regulation Authority [2014] EWHC 179 (per The Honourable Mr Justice Popplewell, para. 28) as follows:

‘28. There are three stages to the approach... The first stage is to assess the seriousness of the misconduct. The second stage is to keep in mind the purpose for which sanctions are imposed by such a tribunal. The third stage is to choose the sanction which most appropriately fulfils that purpose for the seriousness of the conduct in question.’” [My emphasis]

And then at [124]:

‘In relation to the appropriate sanction to impose in the present application, I am guided by the approach taken by The Solicitors Disciplinary Tribunal of England and Wales endorsing the approach set out by Justice Popplewell in Fuglers. That is:

(1) ‘to assess the seriousness of the misconduct’;
(2) ‘to keep in mind the purpose for which sanctions are imposed’;
(3) ‘to choose the sanction which most appropriately fulfils that purpose’.

And finally at [151]:

‘... a fine should normally be the starting point in such matters as a failure to respond to a notice from the investigating authority. This is the case in the states of New South Wales and Queensland in Australia, the province of Ontario in Canada, as well as in England and Wales. A period of suspension may also be appropriate depending upon the circumstances, including whether the practitioner has complied with the notice between the time of service of the application upon them and the first return date of it before the Commission. Practitioners should also expect that there may well be two orders for costs – one for putting the Registrar and his staff within the LPU through the time and expense of having to bring such an application and the other for the Commission having to deal with the practitioner for failing to comply with the practitioner’s statutory responsibility ...’

[My emphasis]


[48] It is my understanding from the evidence of Mr. Kumar that the LPU is still awaiting some five and a half months later to receive a response to the section 108(2) notice of the 16th of May 2018. That is a matter for the Respondent.


[49] I note that my appointment as Commissioner concludes on 21st January 2019. As the Respondent may well be facing a period of suspension, I believe both parties should now be given time to file their respective written submissions and then an opportunity to speak to them at a separate sanctions hearing before the new Commissioner. It is not appropriate for me to pre-empt the next Commissioner. I might suggest, however, to Counsel for the Applicant, as well as to the Respondent, that they read my judgment in Bukarau as well as the Solicitors Disciplinary Tribunal of England and Wales’ Guidance Note on Sanctions 5th Edition.


Concluding remarks

[50] There are three other matters that I need to mention before I conclude.


[51] First, I am aware that there are many workplaces these days where wearing a necktie is no longer compulsory. In fact, there are some who despise the necktie, to quote the author Paulo Coelho:

“A lunatic ... would say that what I have around my neck is a ridiculous, useless bit of colored cloth tied in a very complicated way, which makes it harder to get air into your lungs and difficult to turn your neck. I have to be careful when I'm anywhere near a fan, or I could be strangled by this bit of cloth.

If a lunatic were to ask me what this tie is for, I would have to say, absolutely nothing. It's not even purely decorative, since nowadays it's become a symbol of slavery, power, aloofness. The only really useful function a tie serves is the sense of relief when you get home and take it off; you feel as if you've freed yourself from something, though quite what you don't know.”

Paulo Coelho, Veronika Decides to Die (1998)


[52] As far as I am aware, the Respondent is not a famous author whose work does not require the wearing of the necktie. Although the Commission is a tribunal and not bound by the rules of evidence, appearing before the Commission, however, is no different to appearing before the High Court, apart from Counsel not being required to robe. May I suggest to the Respondent that at his next appearance before the Commission a necktie would be in order and perhaps a little more decorum displayed by him as he is still, until the new Commissioner may decide otherwise, a member of the legal profession.


[53] Second, this will, in all probability, be my last judgment as the Commissioner. I wish to record my thanks to those members of the profession who have appeared before me in whatever capacity during my term as, on the whole, they have done so with respect to witnesses, each other, my staff and myself, as expected of members of the Bar.


[54] Finally, I wish to record my thanks to the present staff of the Commission who, were appointed during the middle of my term when we undertook a restructuring of the Commission. The work ethic and good humour has made this a wonderful experience over the past 17 months and I thank each of them for the support that they have provided to me. I hope they realise that it has not gone unappreciated.


ORDERS

[55] The formal Orders of the Commission are:


  1. In the Application filed before the Commission in Case No. 003 of 2018, Chief Registrar v Aman Ravindra Singh, the Respondent legal practitioner is found guilty of Count 1, that is, the Respondent legal practitioner is guilty of professional misconduct contrary to section 82(1)(a) of the Legal Practitioners Act 2009.

Dated this 2nd day of November 2018.


I will now hear the parties in relation to Orders for the filing of written submissions on penalty and setting a time and date for mention before the new Commissioner.


------------------------------------
Dr. Thomas V. Hickie
COMMISSIONER

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