Home | Databases | WorldLII | Search | Feedback Fiji Independent Legal Services Commission

  Download original PDF

Chief Registrar v Mishra [2010] FJILSC 31 (6 December 2010)

IN THE INDEPENDENT
LEGAL SERVICES COMMISSION

ILSC Action No: 002 of 2010

BETWEEN:

CHIEF REGISTRAR
Applicant

AND:

VIPUL MISHRA
1^st Respondent

AND

MEHBOOB RAZA
2^nd Respondent

AND

DR MUHAMMAD SHAMSUD – DEAN SAHU KHAN
3^rd Respondent

AND

SAHU KHAN & SAHU KHAN
4^th Respondent

RULING

RULING

1. There is before the Commission a Notice of Motion filed by the first Respondent to these proceedings which seeks the following orders.
2. That the charges against the fist respondent, Vipul Mishra be dismissed on the bases that he acted for the vendor only in respect of the transaction complained of by the complainant and on the bases that she had her own lawyers acting for her.
3. Alternatively that the charges against the first Respondent be severed and heard separately from the other practitioners charged.
4. The first Respondent, Applicant to the Motion, relies upon an affidavit sworn by him on the 26^th of October 2010 and also on the declaration of his clerk Mohammad Kazim.
5. The Motion is opposed by the second, third and fourth Respondents and by the Applicant.
6. The second Respondent relies upon an affidavit of Mr Raza sworn on the 25^th November 2010.
7. The Commission has had the benefit of written submissions filed by the 1^st Respondent and of skeleton submissions filed by the 2^nd Respondent.
8. The substantive matter before the Commission is comprised of 8 counts the 1^st , 2^nd and 3^rd counts make allegations against the 1^st Respondent the 4^th count makes an allegation against the 2^nd Respondent the 6^th count makes an allegation against the 4^th Respondent and the 7^th and 8^th counts make allegations against the 3^rd Respondent.
9. The issue the substance of the substantive matter would appear to be a conveyancing transaction in which the 1^st Respondent/Applicant on the motion acted for the vender in that transaction and the 2^nd Respondent acted for the purchaser the 3^rd and 4^th Respondents appear to have acted for a mortgage and to have had some dealings with the purchaser. Those observations ore made solely from the 8 counts comprised within the application.
10. The 1^st Respondent/Applicant on the motion submits that his only involvement in the matter is in acting for the vendor and that the vendor is not the complainant with respect to the conduct of the 1^st Respondent and that accordingly it is appropriate that the 1^st 2^nd and 3^rd counts be severed and dealt with independently of the remaining counts.
11. The 1^st Respondent/Applicant also submits that the 1^st 2^nd and 3^rd counts in the application should be summarily dismissed on the bases that he acted only for the vendor and there being no complaint by the vendor the relevant provisions of the Legal Practitioners Decree to found a finding of unprofessional conduct are not present.
12. The Applicant submits that the Commission has no jurisdiction to deal with an application for summarily dismissal.
13. In support of this submission the Applicant relies on section 112 (1) of the Legal Practitioners Decree 2009 which states that upon receipt of the application to commence disciplinary proceeding under section 111 the Commission shall conduct a hearing into each allegation particularized in the application.
14. The submission is amplified to require that there be a hearing that is that evidence be taken on all allegations in accordance with section 112 and without that occurring there is no capacity to dispose of the application.
15. On this issue it should be noted that the Commission is a creature of statute and unlike the High Court has no inherent jurisdiction the Commission can only do those things that the statute enables it to do.
16. In that regard the Statute is indeed extremely broad in the orders and ancillary orders that it facilitates the Commission making and in the broad facilitation of the conduct and management at proceedings before the Commission.
17. The Applicant on the motion also submits that material necessary to deal with the allegations against the 1^st Respondent will be the subject of a claim or maybe subject of a claim of legal professional privilege and makes the point quite correctly that the only person who can wave that privilege is the client.
18. The Rules of Professional Conduct and Practice set out in rule 1.4 that information received by a practitioner from or on behalf of a client is confidential and shall not be communicated to others save with the clients consent or where so required by law. There is there no elaboration on what is meant by the words or so required by law at common law,
19. The matters that might be protected by a claim for legal professional privilege are indeed limited and I am of the opinion that that argument is an insufficient bases to either sever or dismiss the allegations against the 1^st Respondent and should it be that any claims for legal professional privilege are made they can be dealt with on their merits at that time.
20. The, other Respondents apart from the 1^st Respondent submit that they will be prejudiced if severance be granted.
21. They submit that the transaction is one transaction one course of events and therefore should be dealt with together in fairness to all parties.
22. Commissions been referred to two authorities in that regard the first being R v Assim [1966] 2 All ER 881 and a decision the Fiji Court of Appeal - Tamaibeka v the State [1999] FICA 1. The applicant to the action has also referred the Court to a decision of Madam Justice Shameen in State v Ashneel Prasad and others (2009, FJHC 5).
23. These authorities to which I have been referred relate to the conduct of criminal proceedings but despite that I think the words quoted in paragraph 24 of the Director of Public Prosecution v Singh [2010] FJMC 5 quoting Justice Shameen it is said that:
    • " both at common law and under statue, the prosecution is entitled to charge principal offender and secondary offenders in one charge or information provided there is sufficient evidential and factual nexus in relation to each accused and provided there is no prejudice to the accused."
24. I would have thought that the the principle Therein expressed would proceedings before this Commission.
25. There is in my opinion nothing that has been placed before me to show that the prejudice would flow to the 1^st Respondent should the matter not be severed.
26. If It is that in the course of the hearing of the substantive matter any issue arises, might result in prejudice then I think that can be dealt with at that time.
27. The Commission is by virtue of section 114 of the Legal Practitioners Decree obliged to act fairly in its proceedings whilst having flexibility in the reception of evidence and not being bound by the rules of evidence. The dominant procedural requirement is that the Commission act fairly to all parties before it. In exercising that discretion I am not satisfied that there is any prejudice to the 1^st Respondent or that it would be unfair to the Respondent to proceed with the substantive matter in its entirety and I see no bases summarily dismiss the allegation against the 1^st Respondent without taking evidence whether or not the provisions of the decree require it as a matter of law that evidence be taken to facilitate the determination of an application before the Commission.
28. In the circumstances therefore I am not satisfied that the orders sought should be granted and the Notice of Motion is dismissed.

ORDERS

1. Notice of n is dismissed,

6 DECEMBER 2010

JOHN CONNORS
COMMISSIONER