Court of Appeal of Fiji

[4] The above Order No.2 does not apply to the listing of the legal practitioner’s name on the “Discipline Register” maintained by the Independent Legal Services Commission in accordance with section 126(2)(a) of the Legal Praoners Decree 2009.2009.

[5] If any person wishes to have access to the Commission’s file in Case No. 012015, they must first obtain an Order of the Commission specifically granting them such acch access to the relation to the Independent Legal Services Commission’s file in Case No. 013 of 2015.

[2] The Applicant, the Chief Registrar of the High Court of Fiji has brought an allegation of professional misconduct pursuant to sections 82 (1) a) and 108 (2) of the Legal Practitioners Decree 2009 against the Respondent-Respondent (Respondent) a legal practitioner. The violation is failure to provide a sufficient and satisfactory explanation in writing of matters contained in a complaint of Merchant Finance dated 15 July 2015. The explanation was required by a notice dated 2^nd September 2015 pursuant to section 105 of the Legal Practitioners Decree 2009. The Respondent has also failed to respond to a subsequent reminder notice dated 29 September 2015.

[3] When this case was taken up before the learned Commissioner of ILSC, the Respondent has admitted the allegation. Thereafter the Respondent was invited to file a written mitigation which she did. The learned Commissioner thereafter having considered the circumstances (as per the Penalty Judgment (pgs. 275-278)) has ordered her to be publicly reprimanded with a fine of $1500. No appeal had been filed against this Penalty judgment.

[4] This appeal is with regard to a subsequent judgment (pgs. 11-78) (decision) pronounced by the succeeding Commissioner dated 18 April 2017 wherein the learned Commissioner ordered:-

(i) that the judgment delivered by the previous Commissioner on 25 November 2015, be withheld from publication to any platform save onto a discipline register maintained by the ILSC, and

(ii) that the judgment delivered by the previous Commissioner be amended to include the suppression of the Respondent’s name from the judgment.

[5] This appeal has been preferred under the appeal provisions contained in section 128 of the Legal Practitioners Act 2009 which provides that an appeal shall lie to the Court of Appeal from any order of Commission at the instance of either the Registrar or any other party to the proceeding.

[6] The right of appeal provided for in section 128 of the Act is in respect of the findings and conclusions, made upon on an inquiry conducted by the Commission in the exercise of its disciplinary powers.

[7] Section 126 of the Legal Practitioners Act 2009, provides that the Commission shall publicise and make public any order made against a legal practitioner or law firm or any employee or agent of a legal practitioner or law firm in an application for disciplinary proceeding, in any way the Commission considers appropriate; provided that the Commission may withhold the publication of any order if the Commission is of the view that there are exceptional circumstances which warrant against any publication.

[8] In ground 1 of the grounds of appeal, the appellant seeks inter alia an order from this court as follows: That the judgment of the Independent Legal services Commission be wholly set aside /quashed:” This ground challenges the mode and manner of publication that the Commission has chosen to adopt. However, this is a matter which is entirely within the discretion of the Commission. The phrase “any way the Commission considers appropriate’ vests in the Commission a discretion the manner in which it would publicize or make public its orders”.

[9] As this is a decision that was made in the course of the Commission exercising its statutory discretion under Section 126 of the Act, it cannot be challenged by way of appeal. The appeal is therefore misconceived and must be dismissed.

Lecamwasam JA

[10] I agree with the reasons given and conclusions arrived at by Basnayake JA.

Jameel JA

[11] I agree with the findings, conclusions and proposed orders of Basnayake JA.

Orders of court are:

1. Appeal dismissed.
2. No costs
   

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Hon. Justice E. Basnayake
JUSTICE OF APPEAL

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Hon. Justice S. Lecamwasam
JUSTICE OF APPEAL

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Hon. Justice F. Jameel
JUSTICE OF APPEAL