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Sharma v The Chief Registrar [2019] FJSC 10; CBV0007.2018 (26 April 2019)

IN THE SUPREME COURT OF FIJI
[CIVIL APPELLATE JURISDICTION]


CIVIL PETITION No: CBV 0007.2018
[On Appeal from Court of Appeal No: ABU 0076.2016]


BETWEEN:


1. DEVANESH PRAKASH SHARMA

2. R. PATEL LAWYERS


Petitioners


AND:


THE CHIEF REGISTRAR
Respondent


Coram : Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Justice Frederick Brand, Judge of the Supreme Court

Hon. Mr. Justice Frank Stock, Judge of the Supreme Court


Counsel: D. Sharma for the Petitioners

  1. Chand for the Respondent

Date of Hearing: 15 April 2019


Date of Judgment: 26 April 2019


JUDGMENT


Saleem Marsoof, J


Introduction


  1. This application for special leave to appeal gives rise to the question whether the Independent Legal Services Commission of Fiji (ILSC) had jurisdiction to grant a permanent stay of proceedings commenced before it by the Respondent against the Petitioners under the Legal Practitioners Decree (now Act) No. 16 of 2009, and was justified in all the circumstances of this case in staying the said proceedings and striking out all the charges preferred against the Petitioners.
  2. The 1st Petitioner, Devanesh Prakash Sharma, a legal practitioner and partner in the 2nd Petitioner firm, and the said 2nd Petitioner R. Patel Lawyers, seek special leave to appeal from the judgment of the Court of Appeal dated 1st June 2018 that overturned the Ruling of the Independent Legal Services Commission dated 12th November 2014 which permanently stayed the disciplinary proceedings commenced by the Respondent against the said Petitioners on the ground of abuse of process.
  3. Before considering the grounds upon which this application for special leave to appeal is being urged, it might be useful to outline the factual context of this application for special leave to appeal.

The Factual Context


  1. By letter dated 15th June 2011, one Rajini Kant (hereinafter referred to as “the complainant”), an aggrieved client of the Petitioners, for whom the Petitioners had been instructed to act in a matrimonial dispute, laid a complaint as provided by Section 99 of the Legal Practitioners Decree (now Act) No. 16 of 2009 (“LPA”) against both Petitioners with the Respondent, who is the Chief Registrar of the High Court of Fiji, vested with investigative and connected powers under LPA.
  2. By his letter dated 30th June 2011, the Chief Registrar informed the complainant, that his complaint has been received and has been registered, and the complaint is in the process of being submitted to the Legal Officers of the Legal Practitioners Unit for preliminary assessment.
  3. With his letter dated 23rd September 2011, the Chief Registrar forwarded a copy of the letter dated 15th June 2011 sent to him by the complainant to the 2nd Petitioner as required by section 104 of LPA, and called for its written response by 14th October 2011.
  4. By the second paragraph of his aforesaid letter dated 23rd September 2011, the Chief Registrar also required the 2nd Petitioner in terms of section 106 of LPA to furnish a copy of the client file and other documents relevant to the matter.
  5. The 2nd Petitioner, by its letter dated 11th October 2011 signed on its behalf by the 1st Petitioner himself, provided a near 50 page response to the allegations made by the complainant that was conveyed to the 2nd Petitioner by the Chief Registrar with his letter dated 23rd September 2011. The said response with a detailed account of the background facts are found at pages 78 – 325 (Vol. 1 – RHC), which in essence is a total denial of the matters contained in the said complaint.
  6. Proceedings bearing No. ILSC Application No. 29 of 2013 before the Independent Legal Services Commission (hereinafter referred to as “the Commission”) were commenced by the Chief Registrar by laying before it the charges dated 27th November 2013 consisting altogether of 7 counts including 5 counts of professional misconduct contrary to section 82(1)(a) of LPA and 1 count of professional misconduct contrary to section 82(1)(b) against the 1st Petitioner and 1 count of professional misconduct contrary to section 82(1)(b) of LPA against the 2nd Petitioner.
  7. The 1st Petitioner, by his letter dated 11th December 2013, sought further and better particulars relating to the aforesaid charges from the Chief Registrar.
  8. When the case was mentioned before the Commission on 12th December 2013, the 1st Petitioner raised the issue of insufficiency of particulars before the Commission, and the learned Counsel for the Respondent indicated to the Commission that the charges would be amended and served on the Petitioners.
  9. By his letter dated 24th February 2014, the Respondent informed the 1st Petitioner that the matters with respect to which he had sought further and better particulars by his letter dated 11th December 2013 were not relevant to the proceedings before the Commission and in any event were of a private and confidential nature.
  10. On 3rd March 2014, the Respondent filed amended charges before the Commission consisting of altogether 10 counts including 6 counts of unsatisfactory professional conduct contrary to section 81 of LPA and 1 count of professional misconduct contrary to section 82(1)(b) of LPA against the 2nd Petitioner, along with 2 counts of professional misconduct contrary section 82(1)(a) of LPA and 1 count of professional misconduct contrary to section 82(1)(b) of LPA against the 1st Petitioner.
  11. The Petitioners thereupon filed a Notice of Motion and application dated 20th March 2014 before the Commission seeking a permanent stay and an order to strike out the Respondent’s amended charges (pages 466 – 469 of Volume 2 of the RHC) supported by the affidavit of the 1st Petitioner (pages 470 – 645 of Vol. 2 of the RHC). The Petitioners filed their written submissions on 6th August 2014 (pages 1167 – 1290 Vol. 4 of the RHC).
  12. The Respondent filed his answering affidavit dated 4 July 2014 (pages 692 – 699 of Vol. 2 of the RHC) which was followed by written submissions dated 22 July 2014 tendered by the Respondent (Vol. 3 of the RHC at pages 700 – 1166).
  13. The Commission took up the application for a permanent stay and to strike out the charges for hearing on 22nd May 2014, and the proceedings continued through 16th June, 7th August, and was concluded on 29 September 2014 (Vol. 4 of RHC pages 1291 – 1603).

.

  1. The Commission made its Ruling on 12th November 2014 holding that there has been a clear abuse of process and ordered the stay of proceedings and the striking out of the charges before the Commission (Vol. 1 of RHC pages 21 – 30).
  2. Upon the Respondent appealing against the said Ruling to the Court of Appeal, that Court by its impugned judgment dated 1st June 2018 held that the Commissioner had no jurisdiction to grant a permanent stay of proceedings before it and to strike out all the charges. The Court of Appeal also indicated that it would be open for the Commission to allow or not the additional charges on whatever terms it may deem fit, subject to steps parties may be directed to take consequent thereto, and in any event, the Respondent is free to proceed with the initial charges he had preferred against the Respondents.

The Application for Special Leave to Appeal


  1. The Petitioners have by their petition and verifying affidavit dated 21st June 2018, sought special leave to appeal to the Supreme Court against the said judgment of the Court of Appeal dated 1st June 2018 in terms of section 98(3)(b) of the Constitution of the Republic of Fiji.
  2. Section 98(4) of the Constitution provides that an appeal may not be brought to this Court from a final judgment of the Court of Appeal unless the Supreme Court grants leave to appeal.
  3. Section 7 of the Supreme Court Act of 1998 lays down certain threshold criteria that have to be satisfied for the grant of special leave to appeal, and section 7(3) of the said Act provides that in relation to a civil matter, special leave to appeal should not be granted “unless the case raises-

(b) a matter of great general or public importance;

(c) a matter that is otherwise of substantial general interest to the administration of civil justice.”


  1. The above-quoted provisions have been applied by this Court in a large number of decisions which go to emphasise the stringent nature of these provisions. As this Court was constraint to observe in paragraph 23 of its judgment in New World Ltd v Vanualevu Hardware (Fiji) Ltd & Another [2017] FJSC 10; CBV0004.2016 (21 April 2017)-

“It is clear from these decisions that special leave to appeal is not granted as a matter of course, and that for the grant of special leave, the case has to be one of gravity involving a matter of public interest, or some important question of law, or affecting property of considerable amount or where the case is otherwise of some public importance or of a very substantial character. Even so special leave would be refused if the judgment sought to be appealed from was plainly right, or not attended with sufficient doubt to justify the grant of special leave (emphasis added).


  1. Eight grounds have been urged by the Petitioners for seeking special lave to appeal from this Court. This Court has to examine these grounds carefully to decide whether any or all these grounds satisfy the stringent criteria set out in section 7(3) of the Supreme Court Act for the grant of special leave to appeal.
  2. The grounds relied upon by the Petitioners for seeking leave to appeal from this Court are as follows:-

“[58] The Court thought that, Mr. Chand’s riposte was entitled to succeed having regard to his submission based on (i) the concept of public interest and (ii) allied thereto, the LPU’s role to vindicate the proceedings it had initially commenced and (iii) continuation of the disciplinary proceedings therefore could not be regarded as an “abuse of process” (as he submitted, being a matter, in any event where the Appellant [Chief Registrar] has not been a party to the subsequent dealings between the Complainant and the Respondents).”


  1. It has been submitted on behalf of the Petitioners that the 8 grounds urged for seeking leave to appeal constitute far-reaching questions of law relating to matters of great public importance which are of substantial interest to the administration of justice, but the learned Counsel for the Respondent submitted that the said grounds do not satisfy the threshold criteria set out in section 7(3) of the Supreme Court Act.
  2. Having examined the 8 grounds on the basis of which lave to appeal is sought by the Petitioners, I am inclined to grant special leave to appeal on the basis of ground (2) urged by the Petitioners on the basis that the question whether the Independent Legal Services Commission of Fiji is possessed of jurisdiction or power to grant a permanent stay of proceedings is a far-reaching question of law of great public importance, which has not been previously considered by this Court.
  3. I am also of the opinion that ground (4) raised on behalf of the Petitioners may cover all the other somewhat inelegantly drafted grounds on which special leave to appeal has been sought from this Court, if I am permitted the liberty of reformulating it to capture its essence in the following manner: “The Court of Appeal erred in law and fact when it held that the charges introduced by the Respondent were procedurally flawed but did not amount to abuse of process.” This too is, in my view, a far-reaching question of law of substantial general interest the administration of civil justice.
  4. I therefore propose to grant the Petitioners special leave to appeal against the impugned judgment of the Court of Appeal on ground (2) as well as ground (4) as reformulated by me, but since ground (4) was more fully argued before this Court and in view of certain difficulties that this Court may encounter when dealing with ground (2), I consider it prudent to deal with ground (4) first on the assumption that the Independent Legal Services Commission was possessed of jurisdiction to grant an application for permanent stay and an order to stay proceedings that were pending before the Commission and strike out the charges, before dealing with ground (2) concerning the jurisdiction of the Commission to grant a permanent stay and strike out charges.

Was there any Abuse of Process?


  1. Ground (4) on which special leave to appeal was granted by this Court is whether the Court of Appeal erred in law and fact when it held that the charges introduced by the Respondent were procedurally flawed but did not amount to abuse of process.
  2. Abuse of Process is a Tort well recognized by the Common Law of England that has also been applied to prevent a party to a case from abusing the process of a court of law. Lord Denning explained the concept in Goldsmith v Sperrings Ltd [1977] 2 All ER 566, in the following words:-

“In a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abuse when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer.”(Emphasis added)


  1. The facts relied upon by the Petitioners with respect to their application for permanent stay and striking out of charges lodged before the Independent Legal Services Commission are fully set out in the affidavit of the 1st Petitioner dated 20th March 2014 filed in support of the Notice of Motion for Permanent Stay/Striking Out of the Chief Registrar’s Application (Vol. 2 of RHC pages 470 – 645).
  2. The said application for permanent stay and striking out the Chief Registrar’s application was based on two premises: (1) Abuse of Process, which was in essence based on the allegation that the Registrar was seeking to re-litigate issues that were subject to another civil case, namely Civil Action No. 16 of 2011 filed in the High Court of Fiji at Suva, commenced by issue of Writ of Summons by the 2nd Petitioner law firm dated 19th January 2011 and therefore sub judice; and (2) Rogue Conduct and Lack of Good Faith, which consisted of 8 allegations made against the Respondent, in the following words:-

(a) Ignoring the Petitioners’ request for particulars vide letter dated 11th October 2010;

(b) Taking an inordinate length of time to respond to the Petitioners’ letter written on 11th December 2013;
(c) Ignoring the Petitioners’ request for further and better particulars as contained in our letter of 11th December 2013;
(d) Filing defective charges on 27th November 2013 and on 03rd March 2014;
(e) Ignorance of procedures in relation to withdrawal of charges, amendment of charges, and filing of new charges;
(f) Not responding to the Petitioners’ Written Submissions of 20th December 2013;
(g) Conducting one sided investigations; and
(h) The Suppression of material facts and documents.
  1. As already noted, the Independent Legal Services Commission commenced hearing on the said application for permanent stay and striking out charges on 22nd May 2014, which was finally concluded on 29 September 2014 (RHC Vol. 4 pages 1291 – 1603), culminating in the Ruling of the Commission dated 12th November 2014 (RHC Vol. 1 pages 21 – 30)
  2. It is noteworthy that the question of sub judice is adverted to by the Commission in paragraphs 27 and 28 of its Ruling, wherein the learned Commissioner echoes the grievance of the Petitioners, namely that they are now facing not 7 or 10 but 17 counts, and “the majority of which were sub judice because the firm had sued for the repayment of the fees owing.” This aspect of the matter does not appear to have been taken up before the Court of Appeal, but it is clear that the Registrar was only seeking to amend charges by correcting drafting errors and adding 3 more counts, and there is obviously nothing to prevent disciplinary charges being included in a charge sheet served under the provisions of the LPA which are the subject matter of a pending civil litigation.
  3. The two charge sheets do not simply deal with complaints of excessive fees, which by itself is a professional misconduct according to section 83(1)(b) of LPA, but also include more serious issues relating to charging of legal costs or fees for work not carried out by the Petitioners contrary to section 83(1)(b) of LPA. Count 1 in the original charge sheet dated 27th November 2013 relates to an invoice dated 1st June 2010 wherein it is alleged that the complainant was billed “twice” for the same work, which count was amended to read as “thrice” in the amended charge sheet dated 3rd March 2014. Count 2 of the original charge sheet was based on an allegation that the complainant was charged on “five occasions” for appearances that were not made. The charge was amended subsequently as Count 3 which supplies particulars of the “five occasions”, namely 4th May 2009, 15th May 2009, 25th May 2009, 3rd August 2009 and 25th February 2010.
  4. It must be mentioned that Counts 2, 4 and 5 in the amended charge sheet of 3rd March 2014 are fresh charges, of which count 4 related to the charging of a fee without providing information regarding the same in the detailed transactions, and the other two related to allegation of issuing invoices when the account stood closed.
  5. Count 3 in the original charge sheet which has been renumbered as count 6 in the amended charge sheet alleges that the complainant was charged for a consultation which did not take place. Count 4 of the original charge sheet which is count 7 on the amended charge sheet relates to the failure to keep the complainant informed of a “non contact order” issued under the Domestic Violence Act resulting in the commission by the complainant of a breach of the said restraining order. Count 5 of the original charge sheet which has been renumbered as count 8 in the amended charge sheet alleges that the 1st Petitioner misled the Respondent in the course of his investigations. Counts 6 and 7, which on the amended charge sheet are counts 9 and 10, raise serious issues of unconscionable conduct in attempting to persuade the complainant by offering a discount of the fees alleged to be due from the complainant in exchange for his withdrawing the complaint he made to the Registrar against the Petitioners.
  6. Paragraphs 8 to 10 of the said Ruling, the Commission sought to deal with some of the procedural issues raised by the Petitioners before it in the following manner:-

“8 The Registrar, having received the complaint on the 15th of June from the client (RK) of the firm and of the practitioner 2011 wrote to the firm (but not the practitioner) 14 weeks later (on 23rd of September 2011) enclosing a copy of the complaint and asking pursuant to section 106 of the Decree for a "copy of the client file and all other relevant documentation."


  1. There is no evidence before the Commission of any communication of the complaint to the practitioner as is mandated by section 104(a) of the Decree.
  2. In response to that letter, the practitioner on behalf of the firm, whilst not directly requested to do so responded to the CR on the 11th of October 2011 by way of 50 page submission in which he gave reasonable and quite plausible explanations for the complaints made. He detailed work undertaken by the firm that substantiated the invoices raised and asked that these explanations be considered before formal allegations were made against the firm. Throughout the letter of explanation, the practitioner on behalf of the firm asked in all courtesy for further and better particulars of the complaints in order that they may be properly addressed because the complaints had been made in very general terms.”(emphasis added)
  3. By the said Ruling, the said Commission held that there has been a clear abuse of process sufficient to justify its order that proceedings be stayed and the charges before the Commission struck out. In paragraphs [59] to [61] of its Ruling quoted below, the Commission observed as follows:

“59. This practitioner [and this firm have been treated with rather outrageous prejudice and insouciance despite their repeated requests for particulars and submissions in defence. Their entreaties were ignored and even when shown that some of their charges had no factual basis they insisted on proceeding. In the end they appeared to give up and wanted this Commission to decide on the charges.


60. The investigators and prosecutors have by their actions or inactions breached the Constitutional rights of the two Respondents [present Petitioners] enshrined in Sections 14(2)(b), 14(2)(e) and 14(2)(g). By talking only to the complainant and ignoring the Respondents, their right to a fair trial pursuant to section 15(1) has been breached.


61. This Commission has no hesitation whatsoever in finding that there has been a clear abuse of process in this matter. As a result the proceedings are stayed and the charges before the Commission are struck out.”(emphasis added)


  1. It is noteworthy that the Commission did make it clear in paragraph 7 of its Ruling that “there was no evidence before it to even suggest that these allegations of misconduct against the practitioner and his firm are founded on malice and vindictiveness” but went on to state that “there is much force in their [present Petitioners’] submissions that they have been unfairly treated since the initial complaint of their client was made. The conduct of the Legal Practitioners' Unit ("LPU") in investigating the complaint appears unfortunately to have been lackadaisical, to have been very one sided and biased and there appears to have been an attitude of ensuring that the allegations be proved at any cost.”
  2. The Court of Appeal in its impugned judgment dated 1st June 2018 dealt with the aforesaid allegations made by the Petitioners in support of the application for stay despite its decision that the Commission did not have jurisdiction to grant a permanent stay of proceedings. In paragraph [12] (this reference is to the PacLII Fiji version of the judgment, which in the Judgment of the Court of Appeal contained in the Supreme Court Record corresponds to paragraph [10]) of its impugned judgment, the Court of Appeal observed as follows;-

“(a) Whether explanations were “reasonable and quite plausible” was a matter for the Commission to decide and determine after hearing evidence. It is to be noted that this was not a matter that could have been decided and determined on written submissions and documents. The very complaint (7 allegations) the Respondent’s response (‘50 page submission’) involve contentious factual issues, not pure questions of law.


(b) At this point, I pause in noting that, the learned Commissioner himself had reflected thus: “Let the evidence speak for itself” (page 23 – RHC).


(c) There was no further obligation imposed on the Appellant after he had made available a copy of the complaint to the Respondents and called for explanation. He had weighed the matter and in pursuance of the statutory role imposed on him had decided to file charges. It is to be noted that, the Appellant in fact has the power under Section 100 of the LPA to investigate the conduct of a legal practitioner or a law firm etc, even without a complaint. (emphasis added).


(d) The Respondents lament that the Appellant had not shown courtesies to when they had requested for further and better particulars of the complaints in order that they may be properly addressed because the complaints had been made in very general terms is not a procedural matter the LPA warrants. The reference to “the complaints being made in very general terms” was again a matter for the Commission to decide and determine after inquiry on evidence. This is why counsel at some point of time left certain matters to the Commission, inasmuch as while investigations on a complaint is a matter for the Appellant (CR). Once charges are filed, the matter shall stand removed to the Commissioner for inquiry and determination which as I reflected upon earlier had to be decided on evidence, given the nature of the matter in question.”(emphasis added)


  1. One of the grievances agitated by learned counsel for the Petitioners was that while the notice dated 23rd September 2011 was issued only on the 2nd Petitioner law firm, the original charge sheet dated 27th November 2013 containing 7 counts consisted of 5 counts directed against the 1st Petitioner and only one count against 2nd Petitioner. It is true that the notice dated 23rd September 2011 soliciting a “written response” by 14th October 2011 was addressed to the 2nd Petitioner, but it was the 1st Petitioner who responded to the said notice with the letter dated 11th October 2011 to which was attached a detailed response to the complaint of Mr. Rajini Kant, signed by him for the 2nd Petitioner of which firm he was admittedly a partner.
  2. Furthermore, though in the notice dated 23rd September 2011 only section 106 of the Legal Practitioners Act empowering the Respondent to call for the production of books, papers, files, securities and other documents or any other record, is expressly mentioned, the said notice specifically states that the matter is “being handled under the provisions of the Legal Practitioners Decree (now Act) of 2009 – Part 9” and specifically calls for a written response, which the Registrar is empowered to do only under section 105 of LPA. Admittedly, the 1st Petitioner responded with a 50 page explanation on his own behalf and on behalf of the 2nd Petitioner.
  3. The Petitioners have also contended that the charges were amended without prior notice. Though what transpired before the commencement of the hearing pursuant to the Notice of Motion dated 20th March 2014 filed by the Petitioners may be gathered from the transcripts of 22nd May, 16th June, 7th August and 29th September 2014 are found in Vol. 4 of RHC pages 1539 to 1603, it appears from the proceedings of 12th December 2013 (which this Court had to call from office of the Independent Legal Services Commission) that the case had been mentioned before the Commission on that day, and the learned Counsel for the Respondent Ms. L. Vateitei had moved for permission to amend charges in view of the misspelling of the 1st Petitioner’s name and certain defects in the charges, and the Commission had granted 14 days to amend charges, without any objection from the 1st Petitioner who had appeared in person.
  4. It is noteworthy that in the amended charges lodged subsequently on 3rd March 2014, counts 1 to 6 and 10 were against the 2nd Petitioner and only charges 7, 8 and 9 were against the 1st Petitioner. Counts 1 to 6 contained in the original charge have been amended in several respects and in particular counts 1 to 3 which were initially directed against the 1st Petitioner are now directed at the 2nd Petitioner. Count 4, 5 and 6 of the initial charge sheet are now sought to be amended as counts 7, 8 and 9, but continue to be directed at the 1st Petitioner. Count 10 of the amended charge sheet is identical with count 7 of the initial charge sheet and is against the 2nd petitioner.
  5. It is also important to note that in the amended charge sheet certain particulars relating to dates which were omitted from count 2 in the original charge where reference was made to “five occasions” have been supplied after renumbering the said count as count 3. Learned Counsel for the Petitioner has submitted that even after the charge was sought to be amended some of the drafting errors and lack particulars continue, but in this regard, I am inclined to agree with the observation of the Court of Appeal at paragraph [14] (this reference is to the PacLII Fiji version of the judgment, which in the Judgment of the Court of Appeal contained in the Supreme Court Record corresponds to paragraph [12]) of its impugned judgment that none of the matters that weighed with the Commissioner could be said to have been offensive to any provision in the LPA.
  6. As pointed out by the Court of Appeal, section 105(1) of the LPA vests a discretionary power on the Respondent to review whether any explanation tendered by a legal practitioner or a law firm who has been notified of any complaint, is “satisfactory and sufficient explanation in writing of the matters referred to in the complaint.” This in fact is what the Respondent had done, although it is plain from what has transpired in this case, with less competence and expedience as may be expected in a case of this nature.
  7. The Petitioners complain that the investigation conducted by the Registrar was not fair and that the conduct of the Respondent had been biased in favour of the complainant, but I do not find any support for these allegations in the material placed before the Independent Legal Services Commission or available to the Court of Appeal and this Court, though there have been some procedural lapses that I have attempted to highlight in this judgment which could have been corrected by the Commission issuing appropriate directions. In any event, there is nothing in the proceedings to justify the grant of a permanent stay of proceedings on the basis of abuse of process.
  8. As Peek J. explained in Thompkins v Medical Board of Australia, [2018] SASC 72 (2018) paragraph [32], “the power of a court to permanently stay proceedings is an exceptional remedy to be granted only in the clearest of cases.” The High Court of Australia has made it clear that the granting of a stay requires more than unfairness alone. In Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, all five Justices agreed that the power to grant a permanent stay of proceedings will only be exercised in exceptional circumstances. In that case, Mason CJ at page 31 stated that-

“In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.”(emphasis added)


  1. In the same case, Gaudron J noted at pages 76 to 77 that-

“The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. ...”(emphasis added)


  1. As far as disciplinary proceedings are concerned, the following observation of Doyle CJ of the Supreme Court of South Australia in Craig v Medical Board of South Australia [2001] SASC 169; (2001) 79 SASR 545 at paragraphs [41] to [48], which was referred to with approval by the Full Court of the Supreme Court of South Australia in Papps v Medical Board of South Australia [2006] SASC 234, is worthy of note –

“The purpose of disciplinary proceedings is to protect the public, not to punish a practitioner in the sense in which punishment is administered pursuant to the criminal law. A disciplinary tribunal protects the public by making orders which will prevent persons who are unfit to practice from practising, or by making orders which will secure the maintenance of proper professional standards. A disciplinary tribunal will also consider the protection of the public, and of the relevant profession, by making orders which will assure the public that appropriate standards are being maintained within the relevant profession.”(emphasis added)


  1. A permanent stay of a disciplinary proceeding for abuse of process is a drastic remedy, tantamount to a continuing immunity from prosecution and amounting, in effect, to a refusal by the Commission to exercise jurisdiction. The power to grant a stay must therefore be exercised in the light of the principle that conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. Such an order will only be made in extreme or exceptional circumstances, and the onus, which is a heavy one, is on the applicant to establish the factual circumstances which ground the application and that a stay should be granted.
  2. I am of the opinion that while procedural safeguards provided by the law to those accused of disciplinary violations are important, there is also the public interest of protecting those who avail themselves of the services of legal practitioners and law firms that have to be balanced with the rights of such practitioners and the dignity attached to the legal profession. This delicate balance can only be achieved by weighing these countervailing interests, and having done so, the Court of Appeal in my view, has very rightly overruled the finding of the Independent Legal Services Commission that the pending proceedings against the Petitioners should be stayed, and the charges struck off.
  3. In the circumstances, I hold that the Court of Appeal did not err when it held that the charges introduced by the Respondent did not amount to an abuse of process. Accordingly, ground (4) on which special leave to appeal has been granted to the Petitioners should be decided in favour of the Respondent, subject to the directions and orders of this Court.

The Jurisdiction of ILSC to grant a Perpetual Stay of its Proceedings


  1. I now turn to ground (2) on which special leave to appeal was granted by this Court, namely whether the Court of Appeal erred in fact and in law in holding that the application for permanent stay made by the Petitioners was misconceived and that the Independent Legal Services Commission had no jurisdiction or power to grant a permanent stay.
  2. Since the Respondent succeeds on ground (4) already dealt with in this judgment, it is unnecessary for this Court to go into this ground of appeal in any detail. However, though the learned Counsel have filed written submissions on the question of jurisdiction, the point was not fully argued in Court, and I shall only briefly deal with this ground of appeal.
  3. It is noteworthy that jurisdiction of the Commission to grant a permanent stay was conceded by learned Counsel for the Respondent in paragraph 9 of his Written Submissions dated 22nd July 2014 filed before the Commission (Vol. 3 of RHC pages 700 – 1166). However, it is trite law that jurisdiction cannot be conferred on a statutory body such as the Commission by consent of parties alone (See, Kiran Singh v. Chaman Paswan [1954] INSC 43; AIR 1954 SC 340; Essex Incorporated Congregational Church Union v. Essex Country Council [1963] AC 808; R v Moore [1905] ArgusLawRp 130; (1976) 11 ALR 449, Kuhlmann v. City of Omaha, 251 Neb. 176, 556 N.W.2d 15 (1996) and Kilowen Fiji Ltd v Director of Lands [2017] FJCA 101; ABU68.2015 (14 September 2017).
  4. The Independent Legal Services Commission (ILSC) did not address its mind in the course of its Ruling dated 12th November 2014 (Vol. 1 of RHC pages 21 – 30) to the question of jurisdiction, which it indeed assumed it had, and it went on to grant relief to the Petitioners. The Court of Appeal sought to deal with the matter of jurisdiction of ILSC in paragraphs [43] to [46] (this reference is to the PacLII Fiji version of the judgment, which in the Judgment of the Court of Appeal contained in the Supreme Court Record corresponds to paragraphs [41] to [44])of its impugned judgment and concluded in paragraph [58] (which corresponds to paragraph [56] of the judgments contained in the Supreme Court Record) sub-paragraph (i) of its judgment that-

“The Commissioner had no jurisdiction to grant a permanent stay of the proceedings that had been concerned by the Appellant and to have struck out all the charges”.


  1. In my view, the question whether the Independent Legal Services Commission (ILSC) has jurisdiction to permanently stay proceedings and to strike down the application filed before it by the Respondent has to be decided on an analysis of the provisions of the Legal Practitioners Act, but it is best to await an opportunity to do so in a case where the question directly arises, and learned Counsel have the opportunity to address the issue fully in written submissions and oral argument.

Conclusions


  1. The resulting position is that though special leave was granted by this Court to the Petitioners on two grounds, namely ground (2) and (4), it is unnecessary to deal with ground (2) relating to the competence of the Independent Legal Services Commission to permanently stay proceedings since ground (4) has been decided in favour of the Respondent on the basis that there was no abuse of process to justify the stay of proceedings and the striking down of the application filed by the Respondent before the Commission.
  2. Accordingly, the appeal is dismissed and the judgment of the Court of Appeal dated 1st June 2018 is affirmed, subject to the variation of the conclusion in paragraph [58] (ii) and (iii) of the judgment of the Court of Appeal (as it appears in the Record of the Supreme Court, which corresponds to paragraph [60] of the PacLII Fiji version of the judgment) to read as follows:
  3. The Petitioners shall pay the Respondent cost of this appeal in a sum of Fiji dollars 3000 each by the 1st and 2nd Petitioners.

Frederick Brand, J


  1. I have read in draft the judgments of Marsoof J. and Stock J., and agree with those judgments. I also agree with the conclusions of, and orders proposed by, Marsoof J.

Frank Stock, J


  1. The power to prevent a process from abuse is available in the context of both civil and criminal proceedings. The categories of abuse are not closed (See Supreme Court Practice 1999 p 352) but broadly put, the power is available to ensure that the machinery of justice is not so used as to deprive a party of a fair determination of his cause or defence and so as to preserve the integrity of the courts and of tribunals entrusted with the administration of justice.
  2. In the context of criminal trials – and the principles are equally transportable to the present proceedings – there are two recognised categories of abuse : first, where conduct has been such as to make it impossible for a defendant to have a fair trial; and secondly, where a stay is necessary “to protect the integrity of the criminal justice system. Here [the second category] a stay will be granted where the court concludes that in all the circumstances a trial will offend the court’s sense of justice and propriety .... , or will undermine public confidence in the criminal justice system and bring it into disrepute... .” (per Lord Dyson in Maxwell [2010] UKSC 48; [2011] 4 All E R 941 at [13]). In civil proceedings similar considerations will no doubt apply and more commonly in that context the courts will guard against re-litigation of the same issues and prevent claims not brought for a bona fide purpose. (See examples in the Supreme Court Practice 1999 at 352 et seq.)
  3. It is well established that proceedings should not be stayed merely as a vehicle to show disapproval of the conduct of a law enforcement body or other party. The circumstances in which a stay may be warranted are limited and rare and must meet the essential tests to which I have referred.
  4. The complaints in the present case are aimed primarily at the suggested inefficient conduct of the Registrar’s office and it seems to me from the tenor and content of the Commissioner’s ruling that he has exercised a punitive function and has not applied the correct test. It was not suggested by the petitioner that he could not have a fair hearing; rather he submitted that the courts and the Commission should not be seen to countenance the conduct of which he complained and which the Commissioner criticised. In that regard, that conduct, however regrettable, did not come near such conduct as to bring the Commission into disrepute if it decided nonetheless to continue with the proceedings. That is all the more so when one considers that the remedies for the petitioner’s frustrations in not receiving the particulars he sought or in not understanding charges or amended charges were available to him by reason of the procedures accorded by the LPA. It was always open to him to apply to the Commissioner to direct the Registrar to provide such particulars as were necessary for the petitioner to prepare his case and to meet the charges. But the petitioner has fairly conceded that no such application was ever made. And that is so, even though there were a number of mention hearings.
  5. Accordingly, I see no basis upon which to uphold the stay order made by the Commissioner and I too would dismiss the appeal.

Orders of Court


(1) Leave to appeal is allowed on ground (2) and ground (4) as reformulated by this Court;
(2) The appeal is dismissed and the judgment of the Court of Appeal dated 1st June 2018 is affirmed, subject to the variation of the conclusion in paragraph [58] (ii) and (iii) of the judgment of the Court of Appeal (as it appears in the Record of the Supreme Court, and which corresponds to paragraph [60] of the PacLII Fiji version of the judgment) to read as follows:-
(3) The Petitioners shall pay the Respondent cost of this appeal in a sum of Fiji dollars 3000 each payable by the 1st and 2nd Petitioners.

Hon. Mr. Justice Saleem Marsoof
Judge of the Supreme Court


Hon. Mr. Justice Frederick Brand
Judge of the Supreme Court


Hon. Mr. Justice Frank Stock
Judge of the Supreme Court


Solicitors:
R. Patel Lawyers for Petitioners
Legal Practitioners Unit for the Respondent.

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