Dutt v Fiji Institute of Accountants [2022] FJHC 156; HBJ11.2020 (20 April 2022)

IN THE HIGH COURT OF FIJI AT SUVA

CIVIL JURISDICTION

Action No. HBJ 11 of 2020

IN THE MATTER of an application by Susheel Dutt, Chartered Accountant with Certificate of Public Practice of Parkers Business Solutions (Fiji), of 1^st Floor, Suite 4, QBE Centre, 33 Victoria Parade, Suva, for Judicial Review

IN THE MATTER of the Fiji Institute of Accountants Act 1971 and Fiji Institute of Accountants Rules 1998 of the Laws of Fiji whereby the Fiji Institute of Accountants Disciplinary Committee have decided to cancel Susheel Dutt’s Certificate of Public Practice with the Institute through its powers under the Fiji Institute of Accountants Act 1971 and Fiji Institute of Accountants Rules 1998.

BETWEEN

SUSHEEL DUTT, Accountant and Auditor of

Parkers Business Solutions (Fiji) of

1^st floor, Suite 4, QBE Centre,

33 Victoria Parade, Suva.

APPLICANT

AND

FIJI INSTITUTE OF ACCOUNTANTS, Statutory body

set up by law of Level 3, Fiji Teachers Union

Building, 1-3 Berry Road, Suva

RESPONDENT

Counsel : Mr. Fa I. with Ms. Fa F. for the Applicant

Mr. Haniff F. with Mr. Suguturaga P. for the Respondent

Date of Hearing : 04^th April 2022

Date of Ruling : 20^th April 2022

RULING

(On an application for leave to Appeal)

[1] The applicant in the Notice of Motion filed on 27^th November 2020 sought leave to apply for Judicial Review seeking the following orders:

(a) An order for certiorari to remove into the High Court the decision of the respondent dated 08^th September 2020 canceling the Applicant’s Certificate of Public Practice in Accounting and that the same be quashed;
(b) A declaration that on 08.09.20, the respondent had acted in breach of the Rules of natural Justice in cancelling the applicant’s Certificate of Public Practice in Accounting;
(c) A declaration that the respondent acted in bad faith and in a manner which was unfair to the applicant by proceeding to find him guilty of the charges against him and cancelled his Certificate of Public Practice in Accounting, when at all material times, i.e. 15.07.20, the respondent had informed the applicant that the disciplinary process prescribed in the charges against him had not been followed and that the respondent would advise the applicant in due course the next step;
(d) A declaration that the decision of the respondent of 08.09.20 cancelling the applicant’s Certificate of Public Practice in Accounting was made in excess of the respondent’s jurisdiction and was therefore unlawful, void and of no effect;
(e) A declaration that the decision of the respondent of 08.09.20 to cancel the applicant’s Certificate of Public Practice in Accounting was made ultra vires;
(f) A declaration that the decision of the respondent of 08.09.20 cancelling the applicant’s Certificate of Public Practice is unreasonable in the Wednesbury sense and as such the decision is unlawful;
(g) An injunction against the respondent restraining the respondent from cancelling the applicant’s Certificate of Public Practice in Accounting;
(h) An order for damages and costs; and
(i) Such further and other declaration and other relief as to the court may deem just.

[2] The court on 21^st April 2021 refused leave and the applicant is now seeking leave to appeal the order of this court on the following grounds:

1. That the Learned Judge erred in law and in fact in finding that the Applicant had not met the test for leave to apply for Judicial Review by failing to establish an arguable case when at all material times in its pleadings before the Court the Applicant had in fact established an arguable case being:
   
   • (i) Failure to give the Applicant an opportunity to be heard on the allegations.
     
     • (a) Failing to convene a Hearing where the Applicant could be present and give oral evidence on the charges laid against him;
       
     • (b) By failing to provide the Applicant with evidence negative and contrary to his interest and giving the Applicant the opportunity to rebut the same as such adverse findings would smear the Applicant’s reputation and integrity as a Chartered Accountant;
       
     • (c) By misleading the Applicant to believe that the Hearing of the allegations against him to be convened by the Respondent would be reconvened later as the Respondent had not followed its procedure for disciplinary proceedings against the Applicant provided for in the Act, however, the Respondent proceeded to convene a Hearing of the allegations against the Applicant in his absence.
       
     • (d) The Respondent finding that the Applicant had not responded to the Respondent’s queries, as per its letter of 08.09.20, when in fact the Applicant’s Solicitors had responded to the Respondent on the issue of residence on 24.03.17 and the Respondent had failed to respond to the same. The failure by the Respondent to respond to the Applicant’s Solicitors’ and their inaction for the past 3 years led the Applicant to believe that the issue raised by the Respondent had been resolved.
       
     • (e) Failure to give the Applicant an opportunity to be heard on penalty of cancellation of his Certificate of Public Practice in Accounting.
       
     • (f) That the Respondent has proceeded to find the Applicant guilty without providing the Applicant with a record of the disciplinary proceedings and the evidence of his guilt.
       
   • (ii) Breach of the Applicant’s legitimate expectation
     
     • (a) The Applicant has a legitimate expectation that;
       
       • (i) He would be treated fairly in the disciplinary process against him by the Respondent;
         
       • (ii) The Respondent will comply with the provisions of the Act in undertaking the disciplinary proceedings on the charges against him;
         
       • (iii) He would have a right to be heard in person on the charges against him, and to cross-examine the Respondent’s witnesses and the Respondent’s evidence against him; and
         
       • (iv) To be heard on the issue of penalty;
         

which the Respondent has breached.

2. Bias or Predetermination

The Respondent’s decision to find the Applicant guilty of the charges against him, and to cancel the Applicant’s Certificate of Public Practice in Accounting was bias and predetermined.

(i) Failure to provide the Applicant with the original complaint by the complainant to ensure that the if the complainant is a member of the Respondent, the complainant or those associated with the complainant do not sit in judgment or have any influence over the determination of the allegations against him.

(ii) Misleading the Applicant on the date, time and place of the Hearing against him. By misleading the Applicant to believe that the Hearing of the allegations against him to be convened by the Respondent would be reconvened later as the Respondent had not followed its procedure for disciplinary proceedings against the Applicant provided for in the Act, however, the Respondent proceeded to convene a Hearing of the allegations against the Applicant without informing the Applicant of the date, time and place of the Hearing.

(iii) Finding the Applicant guilty of allegations/offences that he was not charged with. The Applicant was not charged for alleged breach of section 6(5) of the Rules for the calendar years 2018 and 2019, but rather for the alleged breached for the years 2015 – 2018.

(iv) That the Respondent has proceeded to find the Applicant guilty without providing the Applicant with a record of the disciplinary proceedings and the evidence of his guilt.

3. Unreasonableness

The Respondent’s decision to find the Applicant guilty of the charges against him, and to cancel the Applicant’s Certificate of Public Practice in Accounting was unreasonable in the Wednesbury sense.

(i) Failing to provide the Applicant with the complaint against him and the identity of the complainant. Failure to provide the Applicant with the original complaint by the complainant to ensure that the if the complainant is a member of the Respondent, the complainant or those associated with the complainant do not sit in judgment or have any influence over the determination of the allegations against him.

(ii) Misleading the Applicant that a Hearing would not be convened in the near term due to the Respondent not complying with the disciplinary process under the Act, but then convening a Hearing to determine the allegation against the Applicant without informing the Applicant that such a Hearing would take place.

(iii) Proceeding to a Hearing and finding the Applicant guilty of the allegations after more than 3 years after the Applicant had responded to the queries relating to residency raised by the Respondent. The Respondent had acted in an extremely unreasonable, unjust and unfair manner in cancelling the Applicant’s Certificate of Public Practice in Accounting 3 years after the Applicant had responded to the Respondent’s non-response, the Applicant believed the issue to have been resolved.

(iv) Imposing the severest penalty under the Act without establishing the facts that warrant such a penalty.

(v) Further, the Respondent has not provided any evidence to support its findings that the Applicant had in fact breached section 6(5) of the Rules.

4. Excess of Jurisdiction

The Respondent’s decision to find the Applicant guilty of the charges against him, and to cancel the Applicant’s Certificate of Public Practice in Accounting was made in excess of the Respondent’s jurisdiction.

(i) Failing to comply with the disciplinary process set out in the Act provided by section 30 of the Fiji Institute of Accountants Act 1971.

(ii) Proceeding to impose the penalty of cancellation of the Applicant’s Certificate of Public Practice in Accounting without first giving the Applicant an opportunity to appeal the finding of guilt against him as required by the Act.

(iii) That the Respondent has exceeded its powers under the Act in cancelling the Applicant’s Certificate of Public Practice in Accounting as such action can only be undertaken after the Applicant has exhausted his rights of appeal under the Act.

(iv) The Respondent has unlawfully proceeded to cancel the Applicant’s license without affording him an opportunity to appeal as required by the Act and Rules.

(v) Failing to inform the Applicant of his right to appeal the decision finding him guilty.

(vi) Failing to extend the appeal period to the Applicant.

2. That the Learned Judge erred in law and in fact in holding that the Applicant was given a fair Hearing when at all material times there was conclusive evidence before the Court that the Hearing pursuant to the disciplinary process under the Fiji Institute of Accountants Act had not commenced, and that the Applicant was awaiting the commencement of the Hearing as requested by the Respondent’s lawyers.
   
3. That the Learned Judge erred in law and in fact in setting out a chronology of events upon which be based his decision which chronology of events was incomplete, false, and misleading. That the proper chronology of communications between the Applicant and the Respondent was:
   

Item No.	Description	Date
1.	Respondent emails Applicant letter of charge from the Disciplinary Committee on 21.02.21	February 2020
2.	Applicant confirms receipt of letter of charge and advises he is in New Zealand for medical treatment. Applicant requests that the hearing be postponed till his return to Fiji in April 2020	09.03.20
3.	Respondent emails the Applicant confirming receipt of email dated 09.03.20 and that Hearing is to be postponed till his visiting to Fiji in April 2020. Respondent requests if Applicant can advise a confirmed timeframe for his VISIT TO Fiji in April 2020.	15.03.20
4.	Applicant emails Respondent to advise of foreseeable difficulties in travelling from New Zealand to Fiji amid COVID-19. Applicant further advises that he will not be able to confirm his trip to Fiji until after 25.03.20.	17.03.20
5.	Respondent emails Applicant to advise of the movement restrictions into Fiji. Respondent advises of alternative methods of communication for Hearing to take place and requests that the Applicant confirm his choice of communication on or before 25.03.20.
6.	Applicant emails Respondent to advice that New Zealand is in lockdown and travel to Fiji is not possible.	24.03.20
7.	Respondent emails Applicant requesting confirmation to have a Hearing via video conference or via his layers by 21.04.20	07.04.20
8.	Respondent emails Applicant to advise that the disciplinary committee will be meeting within 7 days to determine the Applicant’s case.	30.04.20
9.	Fa & Company on behalf of the Applicant, write to the Respondent in response to the charge letter of February 2020	15.05.20
10.	Fa & Company receive a letter from Munro Leys advising that they act on behalf of the Respondent and further advices that the disciplinary process has not been followed. Munro Leys request Fa & Company await further response from them on the next steps forward.	15.07.20
11.	Applicant receives a letter from the Respondent confirming that a Hearing has been conducted and it has been determined that the Applicant’s Certificate of Public Practice has been cancelled with immediate effect	08.09.20
12.	Fa & Company write to the Respondent and Munro Leys in response to the Respondent’s letter dated 08.09.20.	11.09.20
13.	Fa & Company receive a letter from Munro Leys advising that they no longer hold instructions from the Respondent, and requested that Fa & Company awaits a response from the Respondent’s new lawyers.	28.09.20
14.	Fa & Company write to the Respondent requested that they withdraw their letter of 08.09.20 as the disciplinary process has not been followed and to also allow the Applicant his right to appeal.	20.10.20

4. That the Learned Judge had erred in law and in fact in finding that an appeals procedure was available to the Appellant when at all material times no Hearing had taken place upon which an appeal could be based upon.
   
5. That the Learned Judge erred in law and in fact in failing to note that there is no appeal available to a decision to cancel the Appellant’s Certificate of Public Practice pursuant to section 6(5) as an appeal is only available before a cancellation is made.
   
6. That the Learned Judge erred in law and in fact in holding that the Appellant had not invoked the appeal process under the Fiji Institute of Accountants Act when in fact the Appellant on 20.09.20 advised the Respondent of its intention to appeal the decision of the disciplinary committee of 08.09.20 but the Respondent refused and/or neglected to respond to the same.
   
7. That the Learned Judge erred in law and in fact in holding that the letter from Messrs. Munro Leys dated 15.07.20 was not binding on the Respondent when at all material times, the letter of 15.07.20 was written by the lawyers for the Respondent and with the knowledge of the same, and the Respondent had at no time disclosed to the Applicant or his lawyers that Messrs. Munro Leys had acted without their authority and knowledge.
   
8. That the Learned Judge had erred in law and in fact in making a determination on the merits of the Applicant’s case at the leave stage from which the Court is prohibited.
   
9. That the Learned Judge had misunderstood and misrepresented that Applicant’s case which dismissing the Applicant’s application for leave.
   
10. That Appellant reserves the right to file and amend their grounds of appeal.

[3] In the case of Khan v Suva City Council [2011] FJHC 272; HBC406.2008 (13th May 2011) the following observations were made in regard to applications for leave to appeal;

It is trite law that leave will not generally be granted from an interlocutory order unless the Court sees that substantial injustice will be done to the applicant.

Further in an application for leave to appeal, it is incumbent on the applicant to show that the intended appeal will have some realistic prospect of succeeding.

In Kelton Investment Ltd & Tapoo Ltd v Civil Aviation Authority of Fiji and Motibhai & Company Limited Civil Appeal No. ABU 0034 of 1995 the Court of Appeal observed as follows;

The Courts have thrown their weight against appeals from interlocutory orders or decisions for very good reasons and hence leave to appeal are not readily given. Having read the affidavits filed and considered the submissions made I am not persuaded that this application should be treated as an exception. In my view the intended appeal would have minimal or no prospect of success if leave were granted. I am also of the view that the Applicants will not suffer an irreparable harm if stay is not granted.

In the case of Ex parte Bucknell [1936] HCA 67; (56 CLR 221 at page 224) it was held:

At the same time it must be remembered that the prima facie presumption is against appeals from interlocutory orders, and, therefore, an application for leave to appeal under section 35(1)(a) should not be granted as of course without consideration of the nature and circumstances of the particular case. It would be unwise to attempt an exhaustive statement of the considerations which should be regarded as a justification for granting leave to appeal in the case of an interlocutory order, but it is desirable that, without doing this, an indication should be given of the matters which the court regards as relevant upon an application for leave to appeal from an interlocutory judgment.

In Dunstan v Simmie & Co Pty Ltd 1978 VR 649 at 670 it was held:

“....although the discretion to grant leave cannot be fettered, leave is only likely to be given in a case where the determination of the primary issue puts an end to the action or at least to a clearly defined issue or where, to use the language of the Full Court in Darrel Lea (Vic.) Pty Ltd v Union Assurance Society of Australia Ltd., [1969] VicRp 50; (1969) V.R. 401, substantial injustice would result from allowing the order, which it is sought to impugn, to stand.”

[4] Learned counsel for the applicant submitted that the applicant was not given a fair hearing before his certificate was cancelled. In my ruling I have clearly explained the sequence of events that transpired since the disciplinary proceedings commenced. The respondent had given the applicant sufficient opportunity to participate at the hearing. Once the applicant sought and adjournment of the hearing which was readily granted by the respondent. He was given an opportunity even to participate at the hearing via video conferencing or to arrange a lawyer to appear for him but the applicant did not respond to the email.

[5] On 7^th April 2020 the applicant sent an email to the respondent stating:

I am bound by lockdown in NZ I may not be able to travel to Fiji until the lockdown is lifted. Please be advised that I would request the council to allow dispensation for my requirements re PPC as I normally visit Fiji three to four times a year.

[6] This email shows that he was not residing in Fiji and one of the allegation against him was that he was not a permanent resident of Fiji. In the above email he has admitted that fact.

[7] The learned counsel for the applicant referred to section 31(7) of the Fiji institute of Accountants Act 1971 (the Act) which provides as follows:

Before any investigation begins in respect of any matter-

(a) the Registrar shall post or deliver to the member or registered trainee concerned-

(i) copies of the written complaint, if any, and of all statutory declarations that have been made in support of the complaint; and
(ii) a notice setting out any further particulars that may be necessary to disclose the reason for the investigation and inviting the member or the registered trainee concerned, as the case may be, within such period (not being less than 14 days) as may be specified in the notice, to give to the Registrar any written explanation he may wish to offer and to advise the Registrar if he wishes to be heard by the Investigation Committee; and

(b) the Investigation Committee shall allow the time specified in the notice to elapse and shall give the member or the registered trainee concerned, as the case may be, reasonable opportunity to be heard if he so desires and shall give due consideration to any explanation he may make:

Provided that, with the consent of the member or registered trainee, the time allowed may be reduced.

[9] As I have stated in my ruling and also above the applicant had been given sufficient opportunity to participate at the hearing. Therefore the applicant does not have a right to complain that he was not given an opportunity of being heard.

[10] The learned counsel for the applicant in his written submissions states that this court relied on Woodward v Director of the Department of Town and Country Planning [2015] FJHC 721; Judicial Review 11.2013 (29 September 2015) and the principles laid down in the said decision is not absolute and that in exceptional circumstances , access directly to the court is permitted. I have not referred this decision in my ruling. However In that decision it was held at paragraph 3.11 that it is well established that before Court can grant leave for judicial review the Court needs to first determine if the Applicant has exhausted the avenues of appeal or review available to him, unless the Applicant can show some exceptional circumstances in that the Statutory appeal/review is inadequate, or statutory appeal will be futile.

[11] This may not be binding on this court since it is a decision of a court of parallel jurisdiction but this is a well-established principle of law in Fiji and many other jurisdictions. Therefore, this principle cannot be simply ignored, especially when the applicant has failed to show any exceptional circumstances at the hearing of the application for leave to apply for judicial review.

[12] The learned counsel submitted that since the respondent cancelled the practicing certificate of the applicant before the expiration of 21 days appealable period the applicant could not appeal the decision.

[13] Section 33 of the Act deals with the appeal procedure and it provides:

(1) Every decision of the Disciplinary Committee in accordance with the provisions of sections 31 and 32 shall be reported to the Council and notice in writing of every such decision shall be given by registered post by the Registrar to any complainant other than the Council, and to the member or the registered trainee, as the case may be, against whom the complaint was made.
(2) Every such notice shall be sent to the last known address of the person concerned.
(3) Within 21 days (or such longer period as the Committee or Council may allow) after the service upon him of the notice in writing of the decision of the Disciplinary Committee, the member or the registered trainee against whom complaint was made may, by notice in writing to the Registrar stating the grounds of the appeal, appeal against that decision to the Council.
(4) On every appeal to the Council under this section-

• (a) 6 members of the Council present and entitled to vote shall form a quorum; and
• (b) the Council shall allow the complainant and the member or the registered trainee against whom the complaint was made a reasonable opportunity of appearing before the Council, either in person or by barrister and solicitor or by some other member, or of submitting a statement, in writing, to the Council; and
• (c) the Investigation Committee shall be given an opportunity of being heard in connection with an appeal made to the Council under the provisions of this section, and the Investigation Committee may, if it so desires, be represented in any such case by a barrister and solicitor or by a member of the Investigation Committee.

(5) The Council may determine the appeal after consideration of the record of the proceedings of the Investigation Committee and the Disciplinary Committee but shall have the power to rehear any witness called before the Investigation Committee, or on special grounds and in the Council's sole discretion, to receive fresh evidence.
(6) After duly considering the appeal, the Council may affirm, vary or reverse the decision of the Disciplinary Committee.
(7) The Council shall not impose any more severe penalty than that imposed by the Disciplinary Committee, unless two-thirds of the members of the Council present vote in favour of such penalty.
(8) Notice, in writing, of every decision of the Council upon an appeal in accordance with this section shall be given by registered post by the Registrar to any complainant other than the Council, and to the member or registered trainee against whom the complaint was made. Every such notice shall be sent to the last known address of the person concerned.

[14] There is no provision in the Act that the penalty cannot be imposed before the appealable period expires. Section 33(7) provides that the Council shall not impose any more severe penalty than that imposed by the Disciplinary Committee, unless two-thirds of the members of the Council present vote in favour of such penalty. It is therefore clear that at the hearing the Council has to consider not only the findings of the Committee but also the penalty imposed by them. Hence, the argument that the applicant’s right to appeal was taken away by imposing the penalty before the appealable period lapsed is without merit.

[15] The learned counsel submitted that the court has determined the substantive issues in this application. For the court to grant leave to apply for judicial review it must consider the facts of the substantive matter to arrive at the conclusion that the applicant has made out an arguable case. In my ruling I quoted the following paragraph from Administrative Law by Wade and Forsyth, 10^th edition at pages 555 & 556 which I will reproduce below:

The test for whether permission should be granted remains whether an arguable case has been shown, although now the court will be aware of the defendant’s case. Consideration of the defendant’s case – even if only in summary – will surely sometimes lead to the conclusion that the claimant’s case is unarguable, thus leading to the denial of permission in cases in which would otherwise be granted. These changes have been criticised as unlikely to lead more efficient procedure and as being unfair to the claimants. Although some lawyers find even the most obvious propositions ‘arguable’, the grant of permission requires ‘a realistic prospect of success’. Permission may also be refused because of delay or the availability of an alternative remedy or because the claim is premature.

[16] This court has not decided the substantive matter but has considered the fact to ascertain whether the applicant has an arguable case.

[17] The learned counsel also submitted that Munro Leys, the Solicitors for the respondent advised the applicant the disciplinary proceedings were not conducted according to law. Whether the disciplinary proceedings were conducted according to law is a matter for the court to decide and not for the solicitors. The court cannot have any regard for whatever the advice given by the solicitors of the respondent to the applicant and it cannot be aground to consider in an application for leave to apply for judicial review.

[18] For the above reasons the court is of the view that it does not have sufficient grounds to grant leave to appeal.

ORDERS

1. The application for leave to appeal is refused.
2. The applicant is ordered to pay $2000.00 to the respondent as costs of this application within 30 days from today.
   

Lyone Seneviratne

JUDGE

20^th April 2022