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Chief Registrar v Sharma [2018] FJILSC 4 (20 September 2018)

IN THE INDEPENDENT
LEGAL SERVICES COMMISSION

Application No. 012 of 2015 and
No. 015 of 2015

BETWEEN:

CHIEF REGISTRAR

Applicant

AND:

SURUJ SHARMA

First Respondent

AND:

PATEL SHARMA LAWYERS

Second Respondent

Coram: Dr. T.V. Hickie, Commissioner

Counsel for the Applicant: Mr. A. Chand
Counsel for the Respondent: Mr. D. Sharma and Mr. N. Lajendra

Dates of Hearing (14 days):

• December 2016 Sittings - 5^th and 6^th December 2016;
• June 2017 Sittings - 5^th, 6^th, 7^th, 8^th, 9^th June 2017;
• September 2017 Sittings - 18^th, 19^th, 20^th, 21^st, 22^nd September 2017;
• April 2018 Sittings - 25^th April 2018 (Clarification Hearing on written submissions);
• June 2018 Sittings - 13^th June 2018 (Supplementary Clarification Hearing).
  

Mentions once hearing commenced:

• February 2018 Sittings - 5^th February 2018 (Mention and Orders);
• 23^rd April 2018 (Mention and Orders); and
• June 2018 Sittings - 4^th June 2018 (Mention and Orders).
  

Dates of Written Submissions:

• Applicant (8^th January 2018)
• Respondent (31^st January 2018)
• Applicant in Reply (20^th February 2018)
• Respondent’s Synopsis (25^th April 2018)
• Applicant in Reply (4^th May 2018)
• Respondent’s Supplementary Submissions (4^th June 2018)
  

Date of Judgment: 20^th September 2018

JUDGMENT

____________________________________________________________________

Table of Contents

Preface

[1] The following judgment provides a very good example as to the importance of having an Independent Legal Services Commission in Fiji. Evidence was taken over three Sittings commencing in December 2016 and concluding in September 2017, with a transcript totalling over 1500 pages. There were 86 Exhibits tendered (including copies of two files from the High Court, one of which was of some 526 pages comprising an entire court transcript, exhibits and numerous unpaginated documents). Counsel for the Applicant Chief Registrar filed two sets of written submissions totalling 57 pages with 506 paragraphs. Counsel for the Respondent filed one set of written submissions of 48 pages comprising 114 paragraphs with numerous sub-paragraphs. In addition, oral submissions were made by each Counsel at a clarification hearing on 25^th April 2018, followed by 98 paragraphs of supplementary submissions filed by Counsel for the Respondent and then submissions in reply by Counsel for the Applicant. This, in turn, required a supplementary clarification hearing to be held on 13^th June 2018.

[2] In light of the above, for well-meaning members from the legal profession to have sat as a Disciplinary Committee and heard this matter in addition to their already busy professional lives (as previously would have been the case) and then produce a written decision resolving the multiple issues of law and fact raised whilst doing justice to all involved, would have been an unenviable task. In that regard, I acknowledge the time and effort spent in such adjudications previously by Disciplinary Committees. (See, for example, In Re A Barrister and Solicitor [1999] 45 FLR 59; PacLII: [1999] FJLawRp 11, <http://www.paclii.org/fj/cases/FJLawRp/1999/11.html> .) Unsurprisingly, common law jurisdictions in England, Wales, Australia and New Zealand, have moved (like Fiji) from self-regulation to establishing an independent tribunal, in one form or another, when considering allegations of professional misconduct.

[3] It is my hope that by the Commission allocating the time and resources necessary to hear such matters, while ‘acting fairly’ as required by section 114 of the Legal Practitioners Act 2009, it will instil confidence in both the public and profession as to importance of the work of the Commission in protecting the public whilst also upholding the standards required to be a member of the Bar of Fiji.

[4] One other matter that I need to mention, before I commence, is to clarify my capitalising of the noun ‘Will’ when referring to (as defined by the Concise Australian Legal Dictionary, 5^thedn, LexisNexis, Chatswood, 2015, p.666) ‘a written declaration providing for disposition of property to take effect on the maker’s death’. That publication has defined the word ‘will’ as non-capitalised. Similarly, the Concise Oxford Dictionary of Current English (J.B. Sykes (ed.), 6^th edn, 9th impression, Oxford University Press, Oxford, 1979, at p.1334) has also defined the word ‘will’ as non-capitalised. I have decided, however, that due to the length of this judgment and so as to avoid any confusion, particularly for the non-legal reader, to capitalise the noun ‘will’ when referring to a testamentary disposition.

1. Introduction

“Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. Innumerable children have been born into the cause; innumerable young people have married into it; innumerable old people have died out of it. Scores of persons have deliriously found themselves made parties in Jarndyce and Jarndyce without knowing how or why; whole families have inherited legendary hatreds with the suit. The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. Fair wards of court have faded into mothers and grandmothers; a long procession of Chancellors has come in and gone out; the legion of bills in the suit have been transformed into mere bills of mortality; there are not three Jarndyces left upon the earth perhaps since old Tom Jarndyce in despair blew his brains out at a coffee-house in Chancery Lane; but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.”

Charles Dickens, Bleak House, Chapter 1, ‘In Chancery’, first published as 20 monthly instalments from March 1852, then as a complete novel by Bradbury and Evans, London, 1853; reprinted as an e-book by Project Gutenberg, 1 August 2007 [eBook #1023], updated 21 February 2012, <http://www.gutenberg.org/files/1023/1023-h/1023-h.htm#c37> .)

[5] Chancery Lane, London, sometime in the first half of the nineteenth century, ‘implacable November weather’ with ‘fog everywhere’ and the fictional suit of Jarndyce and Jarndyce drones on in the Court of Chancery. Dickens claimed, in the ‘Preface’ to Bleak House, ‘that everything set forth in these pages concerning the Court of Chancery is substantially true, and within the truth’, noting:

‘At the present moment (August, 1853) there is a suit before the court which was commenced nearly twenty years ago, in which from thirty to forty counsel have been known to appear at one time, in which costs have been incurred to the amount of seventy thousand pounds, which is A FRIENDLY SUIT, and which is (I am assured) no nearer to its termination now than when it was begun. There is another well-known suit in Chancery, not yet decided, which was commenced before the close of the last century and in which more than double the amount of seventy thousand pounds has been

swallowed up in costs. If I wanted other authorities for Jarndyce and Jarndyce, I could rain them on these pages ...’

[6] Fast-forward 165 years to Victoria Parade, Suva, September 2018 on a tropical spring day in the South Pacific (beautiful and dry in the morning with the hint of a thunderstorm for the afternoon), and four offences in relation to a lawyer’s alleged conduct arising from a dispute over an estate are listed for judgment in the Independent Legal Services Commission. Allegations have also surfaced during the hearing as to the conduct of some other lawyers. While the century, place and weather may have changed and the angst and alleged costs incurred might not be on the same scale as took place in Dickens’ fictional novel (the latter involving generations of lawyers until the whole of the estate had ‘been absorbed in costs’ and thus the suit lapsed), aspects of the present matter, arguably, also do not reflect well upon the profession. In short, following the death of the testator in a motor vehicle accident, much of his estate was then, allegedly, dissipated in a protracted dispute, initially surrounding a grant of letters of administration when a Will could not be found and then, when a Will was found, challenging its validity. What role the Respondent and his firm played in this sad state of affairs, if any, is now for me to determine. A bitter family dispute, that perhaps could have been settled if a spirit of goodwill had prevailed, has not assisted matters (something to which I will return near the end of my judgment). Finally, the case is another warning to legal practitioners and their staff for whom they have responsibility, of the need to maintain file notes and, in particular, to confirm all contentious matters in writing to clients as well as to fellow practitioners.

[7] In summary, this judgment is concerned with four major issues:

(1) What is the responsibility of a legal practitioner to a beneficiary of a Will that has been drafted by the practitioner’s law firm but where, allegedly on the testator’s instructions, a copy is not made nor is the sole original left in the safe custody of the firm’s Wills Register? In such a scenario, what is the responsibility of a legal practitioner to keep a record of the Will?

(2) If, following the testator’s death, the Will cannot be found, is it a breach of duty by a legal practitioner towards the beneficiary of the missing Will and/or professional misconduct to then act solely on behalf of the widow in taking out a grant of Letters of Administration knowing that under the lost Will the testator left his estate not to his widow but to his mother as the sole beneficiary?

(3) Further, having initially advised both the widow and the intended beneficiary under the lost Will on the making of a joint application for a grant of Letters of Administration, is it professional misconduct (once the intended beneficiary under the lost Will has allegedly withdrawn the joint instructions) for the lawyer to later act only for the widow in making an application for a sole grant of Letters of Administration which, although in accordance with the priority set out in the applicable legislation, is arguably to the beneficiary’s detriment?

(4) In taking out a grant of Letters of Administration knowing that under the lost Will the testator left his estate not to his widow but to his mother as the sole beneficiary, what then is the responsibility of the legal practitioner for any costs incurred when subsequently the Will is found and proceedings take place in the High Court to have the grant of Letters of Administration revoked and the Will declared valid?

[8] The judgment also raises two important issues of evidence and procedure:

(1) What inferences, if any, should be drawn from the absence of a witness one would have expected to be called to give evidence on an issue?

(2) What is the burden of proof to be applied in disciplinary proceedings where there are allegations as to what a reasonably competent practitioner would have done?

[9] Due to the nature of the matter, this will be a lengthy judgment. It has involved two complainants (a mother-in-law and a widow who were previously opposed to each other in two sets of proceedings in the High Court), each making separate allegations against the Respondent. It has required me to make findings on a number of separate issues across the four counts. Fortunately, the preliminary analysis that I have had to undertake before embarking on Counts 1 and 2, followed by the further lengthy analysis and findings in relation to those counts, has assisted me when considering Count 3 without the need to consider all the evidence anew. The findings that I have made in relation to Counts 1, 2 and 3, has then allowed me, together with submissions and a consideration of the relevant evidence from the transcript, to make relatively succinct findings in relation to Count 4.

2. The Counts

(1) The four counts

[10] The First Respondent faces three counts of professional misconduct and one count of unsatisfactory professional conduct as follows:

‘Count 1 (as amended)

PROFESSIONAL MISCONDUCT: Contrary to Section 82(1)(a) of the Legal Practitioners Decree 2009

PARTICULARS

SURUJ PRASAD SHARMA, a legal practitioner and principal of law firm named and styled as “Patel Sharma Lawyers” had acted against the interests of Maya Wati Prakash by acting for Pranita Devi, wife of deceased Salen Prakash Maharaj in taking out Letters of Administration for Pranita Devi for the Estate of Salen Prakash Maharaj, when earlier on his employee, Dipka Mala had prepared a Will for Salen Prakash Maharaj dated 22^nd December 2006 under which Maya Wati Prakash, mother of the deceased, Salen Prakash Maharaj was the beneficiary, which conduct was contrary to section 82(1)(a) of the Legal Practitioners Decree 2009 and was an act of professional misconduct.

Count 2

Unsatisfactory Professional Conduct: Contrary to Section 81 of the Legal Practitioners Decree 2009.

PARTICULARS

SURUJ PRASAD SHARMA, a Legal Practitioner and principal of law firm named and styled as “Patel Sharma Lawyers” between 22^nd December 2006 and 23rd January 2010 failed to keep proper record of the Will of Salen Prakash Maharaj dated 22^nd December 2006 which was prepared by the said law firm, which conduct was contrary to section 81 of the Legal Practitioners Decree 2009 and was an act of unsatisfactory professional conduct.

Count 3

Professional Misconduct: Contrary to Section 82(1)(a) of the Legal Practitioners Decree 2009.

PARTICULARS

SURUJ PRASAD SHARMA, a Legal Practitioner and principal of law firm named and styled as “Patel Sharma Lawyers” between 25^th November 2008 and 11^th October 2013 failed to exercise due care and diligence in locating the Will of Salen Prakash Maharaj dated 22^nd December 2006 which was prepared by Patel Sharma Lawyers, thereafter, proceeded on instructions of one Pranita Devi and obtained grant of Letters of Administration in the Estate of Salen Prakash, to the said Pranita Devi to the detriment of Maya Wati Prakash who was the sole beneficiary pursuant to the Will of Salen Prakash Maharaj, as the said Maya Wati Prakash was subjected to unnecessary cost for initiating High Court Action No. HPP 3 of 2010, which conduct was contrary to section 82(1)(a) of the Legal Practitioners Decree 2009 and was an act of professional misconduct.’

Count 4

Professional Misconduct: Contrary to Section 82(1)(a) of the Legal Practitioners Decree 2009.

PARTICULARS

SURUJ PRASAD SHARMA, a Legal Practitioner and principal of law firm named and styled as “Patel Sharma Lawyers” between 25^th November 2008 and 11^th October 2013 failed to exercise due care and diligence in locating the Will of Salen Prakash Maharaj dated 22^nd December 2006 which was prepared by Patel Sharma Lawyers, thereafter, proceeded on instructions of Pranita Devi and obtained grant of Letters of Administration in the Estate of Salen Prakash to the said Pranita Devi, which grant subsequently was revoked by the Suva High Court and as a result caused the said Pranita Devi unnecessary costs, which conduct was contrary to section 82(1)(a) of the Legal Practitioners Decree 2009 and was an act of professional misconduct.’

(2) The hearing

[11] Due to the need to take evidence from witnesses for the Applicant who were residing overseas and, also, to accommodate overseas absences of the Respondent’s Counsel and the Respondent legal practitioner, the taking of evidence in this matter began in the December 2016 Sittings, continued for a week in the June 2017 Sittings and then for a further week in the September 2017 Sittings. After 12 hearing days, with evidence taken from numerous witnesses and some 86 exhibits tendered, Counsel for the parties requested time to file their respective written submissions and a timetable was so ordered. This was followed by a mention on 5^th February 2018 where Counsel for the Applicant sought (and was given) 14 days to file any submissions in reply.

[12] Once I had the opportunity to consider the written submissions of both parties, I found that I needed to clarify the position of each Counsel in relation to the four counts as well as some of the exhibits. The matter was then relisted in the Call Over of the April 2018 Sittings, wherein I provided Counsel with a general outline of my concerns, followed by a day’s hearing on 25^th April 2018, at the end of which Leading Counsel for the Respondent tendered what he termed ‘a written synopsis’ clarifying their position. Counsel for the Applicant was then given time to file a short synopsis in ‘response’ and the parties were advised that judgment would be on notice.

(3) A new second conflict being alleged?

[13] After reading the short synopsis filed by Counsel for the Applicant Chief Registrar on 4^th May 2018 in response to the ‘written synopsis’ of Counsel for the Respondent, it appeared that a new second conflict of interest was now being alleged, as set out at paras [2] and [5] of those submissions as follows:

‘2. The Applicant’s case in alleging conflict of interest is based on the following issues:

...

• The Respondent then proceeded to obtain instructions from both MWP and PD and provided advise [sic] that an application for Letters of Administration would be made jointly.
• That thereafter, the Respondent proceeded with sole instructions from PD and made an application for LA on behalf of PD only.

...

5. The Applicant submits that the Respondent should not have acted for PD [Pranita Devi] in extracting LA [Letters of Administration] on her behalf after ... him [the Respondent] having advised both MWP [Maya Wati Prakash] and PD first and thereafter only proceeding to act solely for PD.’

[My emphasis]

[14] Further, Counsel for the Applicant Chief Registrar had cited in his previous written submissions the judgment of the Supreme Court of Fiji in Chaudhry v Chief Registrar (Unreported, Supreme Court of Fiji, Civil Petition No. CBV0001 of 2015, Gates P, Marsoof and Keith JJA, 20 April 2016; PacLII: [2016] FJSC 3, <http://www.paclii.org/fj/cases/FJSC/2016/3.html> ) and, in particular, the four categories of conflict set out by Marsoof JA, without Counsel specifying which categories actually applied to the present matter. Counsel had now submitted in his synopsis response that the second and third categories of conflict applied being -

‘(b) Conflicts between the interests of two or more clients the practitioner is currently representing;

(c) Conflicts between the client's interests and those of third parties to whom the practitioner owes obligations’.

[My emphasis]

[15] Whilst the third category had been canvassed at the clarification hearing on 25^th April 2018, it appeared (and I stood to be corrected) that, although it was raised in the evidence and, in passing, at the clarification hearing on 25^th April 2018, this was the first time that the second category was being specifically alleged in detail by Counsel for the Applicant as part of his case, noting that:

(1) it had not been set out in the particulars set out for Counts 1 and 3;

(2) it was not set out in the prosecution case statement of 18^th November 2016;

(3) it had not been canvassed by Counsel for the Applicant in the previous written submissions of 8^th January and 20^th February 2018.

[16] Therefore, I arranged for each Counsel to be contacted by the Commission’s Secretary to check on their availability during the June 2018 Sittings so as to relist the matter and allow each Counsel to clarify their position as to:

(1) Whether this second issue of conflict, as was now being alleged, should be allowed to form part of the case against the Respondent and in relation to which Counts (noting that it had been alleged in the evidence of some witnesses though it was disputed by others)?
(2) Whether such a conflict had been shown in light of the judgment of the Fiji Court of Appeal in R.C Manubhai & Co. Ltd v Herbert Construction Company (Fiji) Ltd (Unreported, Fiji Court of Appeal, Civil Appeal No. ABU0002 of 2010 (29 May 2014); PacLII: [2014] FJCA 175, <http://www.paclii.org/fj/cases/FJCA/2014/175.html> ), inclining to agree with the judicial proposition reflected in Lord Millett’s judgment in Prince Jefri Bolkiah v KPMG [1998] UKHL 52; [1999] 2 AC 222; [1999] 1 All ER 517; [1999] 2 WLR 215; BAILII: <http://www.bailii.org/uk/cases/UKHL/1998/52.html> ?

[17] After Counsel for the Respondent advised that he would be in New Zealand for the first week of the June 2018 Sittings of the Commission, a timetable was set for the filing of written submissions, the matter relisted in the Call Over of the June 2018 Sittings and a date allocated for oral submissions, if so needed, after I had read Counsel’s respective supplementary written submissions. A supplementary clarification hearing then took place on 13^th June 2018. At that hearing, Counsel for the Applicant conceded that it was too late to amend the particulars in Counts 1 and 3. The parties were then advised that judgment would be on notice. This then is my judgment.

3. Proceedings against the Second Respondent, Patel Sharma Lawyers dismissed

(1) No mention of Second Respondent in submissions

[18] As a preliminary matter, I noted that the ‘Closing Submissions’ filed by Counsel for the Applicant Chief Registrar on 8^th January 2018 named only the legal practitioner, Mr. Suruj Shrama, as the Respondent. Further, the submissions analysing the four counts commenced at para [487] with the words, ‘The charges against the Respondent were as follows’ and there was no mention of the law firm Patel Sharma Lawyers (formerly known as Patel Sharma and Associates) as also being a Respondent in the proceedings although the firm had been listed as the second Respondent as there was in the initial application.

[19] I further noted that the Closing Submissions filed by R. Patel Lawyers as Counsel for the Respondent legal Practitioner commenced (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018 at page 3, para [3]):

‘It is noted at the outset that the Chief Registrar has dropped the Law Firm as a Practitioner and only specifies the Practitioner in his submissions. It is therefore assumed that the Law Firm Patel Sharma & Associates is no longer a part of the Chief Registrar’s complaint. The Commission is respectfully invited to carefully consider the particulars of the charge in each count. In all the counts the Practitioner has been charged and not the law firm. In the Submissions of the CR, it is noted that the law firm has even been dropped/left out. Therefore, it is clear that there are no charges against the law firm and the CR is not pursuing the law firm in Application No 12 and 15 of 2015.’

[20] Counsel for the Chief Registrar did not answer the above submission in his ‘Applicant’s Submissions in Reply’, dated 20^th February 2018. Instead, the submissions referred, both in their title page and throughout, to only the legal practitioner, SURUJ SHARMA, as the sole Respondent.

[21] I then raised the above issue at the clarification hearing on 25^th April 2018 and Counsel for the Applicant Chief Registrar confirmed that the Applicant was no longer proceeding against the Second Respondent, that is, the law firm, Patel Sharma Lawyers.

(2) Dismiss proceedings against Second Respondent

[22] Accordingly, in light of the above concession by Counsel for the Applicant Chief Registrar, I formally dismiss the proceedings against the Second Respondent, Patel Sharma Lawyers.

4. A chronology of the dispute and the two complaints lodged with the Chief Registrar

[23] I have set out below a chronology of this dispute and the two complaints lodged with the Chief Registrar. Matters that I have indicated as disputed will be resolved later in the judgment.

(1) 22^nd December 2006 - Will drafted and executed

[24] It is undisputed that on 22^nd December 2006, Salen Prakash Maharaj and his mother, Maya Wati Prakash, asked Dipka Mala, a law clerk in the firm of Patel Sharma Lawyers, to have Wills drawn for each of them. Both Wills were signed on that date and witnessed by Dipka Mala and Merewai Doughty, another law clerk then in the firm of Patel Sharma Lawyers. (Doc.AD1, ‘Last Will and Testament of Salen Prakash Maharaj’, dated 22^nd December 2006, Agreed Bundle of Documents, 2^nd December 2016, pp.1-3, marked as Exhibit “1”.)

[25] It is disputed as to how many original Wills were executed on 22^nd December 2006 and whether Salen Prakash Maharaj instructed the law firm for only one original Will to be made for him.

[26] It is undisputed that after Salen’s Will was executed on 22^nd December 2006, an original Will was handed to Salen Prakash Maharaj and that Salen Prakash Maharaj took that Will away with him.

[27] It is disputed, however, as to whether a second copy of Salen’s Will was left with the firm to be in the safe custody of the firm’s “Wills Register”.

(2) Death of Salen Prakash Maharaj and joint instructions for Letters of Administration
[28] On 24^th November 2008, Salen Prakash Maharaj was killed in a car accident.

[29] It is undisputed that on 25^th November 2008, the day after Salen’s death, one of Salen’s sisters, Subhasni Singh, made a telephone call to the Respondent’s law firm of Patel Sharma Lawyers, looking for a copy of Salen’s Will and spoke with Dipka Mala. It is disputed, however, as to whether or not Dipka Mala advised Subhasni Singh during that said telephone call that there was an electronic copy of Salen’s unsigned Will held on the law firm’s computer.

[30] It is also disputed as to whether there was a subsequent telephone call on 9^th December 2008, between Subhasni Singh and Dipka Mala, whereby Subhasni Singh advised that the family was still looking for a copy of Salen’s Will and again mention was made by Dipka Mala to Subhasni that there was an electronic copy of Salen’s unsigned Will held on the law firm’s computer.

[31] It is further disputed as to whether a meeting took place on the 12^th December 2008 at the Respondent’s law firm, between Salen’s mother, Maya Wati Prakash, Subhasni Singh, Dipka Mala and the Respondent and also whether an electronic copy of Salen’s unsigned Will held on the law firm’s computer was shown to Maya and Subhasni on that date. In addition, it is also disputed whether Pranita Devi, the widow of Salen Prakash Maharaj, attended on that date.

[32] It is undisputed that on 15^th December 2008, Maya Wati Prakash attended the law firm of Patel Sharma Lawyers together with Subhasni Singh and Pranita Devi, the widow of Salen Prakash Maharaj. It is also undisputed that a private conference was then held involving Pranita Devi, Maya Wati Prakash, Mr. Suruj Sharma and Dipka Mala whereby Pranita Devi and Maya Wati Prakash gave joint instructions authorising the law firm to prepare a joint application for a grant of Letters of Administration under their respective names in relation to the Estate of Salen Prakash Maharaj. (‘Instructions given jointly by Pranita Devi and Maya Wati Prakash to Patel Sharma Lawyers to act to obtain Letters of Administration’, 15^th December 2008, Agreed Bundle, Doc.No.2, page 4, marked as Exhibit “2”.) It is further undisputed that Subhasni Singh was not present throughout the entire conference and, instead, came “in and out” so to speak, as she relayed what was occurring in the conference to others who waited outside. It is disputed, however, whether an electronic copy of Salen’s unsigned Will held on the law firm’s computer was shown to Maya and Pranita in that conference.

[33] It is also disputed as to whether that same afternoon, 15^th December 2008, the joint instructions, authorising the law firm to prepare a joint application for a grant of Letters of Administration, were unilaterally withdrawn by Maya Wati Prakash.

(3) Sole instructions by widow for Letters of Administration

[34] It is undisputed that on 6^th January 2009, Pranita Devi attended the law firm of Patel Sharma Lawyers with her uncle, Jayawant Pratap and that Pranita Devi gave instructions, as the widow of Salen Prakash Maharaj, authorising the law firm to prepare an application for a grant of Letters of Administration under her sole name. (‘Instructions given by Pranita Devi to Patel Sharma lawyers to apply for Letters of Administration’, 6^th December 2008, Agreed Bundle, Doc.AD3, page 5, marked as Exhibit “3”.) It is also undisputed that an advertisement was prepared by Patel Sharma Lawyers and was published on behalf of Pranita Devi as the sole Administratrix of the Estate of Salen. (‘Complaint by Pranita Devi to Chief Registrar against Suruj Sharma and Willy Hiuare’, 14^th November 2013, Agreed Bundle, Doc.AD20, pp. 76-84, annexing copy of advertisement with handwritten notation ‘Fiji Sun 6/1/09’, page 82, marked as Exhibit “20”). I do note, however, that although it is undisputed that on 6^th January 2009 instructions were signed by Pranita Devi to prepare an application for a grant of Letters of Administration under her sole name, an advertisement appeared in the Fiji Sun on that same date inserted by ‘PATEL SHARMA LAWYERS’ as ‘SOLICITORS FOR THE ADMINISTRATRIX’ as follows:

‘IN THE ESTATE of SALEN PRAKASH MAHARAJ ... Deceased. Intestate,

NOTICE is hereby given that after expiration of twenty one days (21) an application will be made to the High Court of Fiji at Suva for grant of Letters of Administration in the Estate of SALEN PRAKASH MAHARAJ ... Intestate who died on the 24^th of November, 2008 ...

AND FURTHER NOTICE is hereby given requiring creditors and other persons having claims in respect of the said estate to send particulars of their claims to the undersigned Solicitors within 21 days from the date of publication of this notice.

AND ALL PERSONS indebted to the said estate are required to pay their debts to the said Solicitors by the aforesaid date after which an Administratrix may convey or distribute the assets having regard only to the claims of which particulars are received.

DATED at Suva this 6th day of January, 2009.

PATEL SHARMA LAWYERS

BARRISTERS & SOLICITORS

...

(SOLICITORS FOR THE

ADMINISTRATRIX)

(See ‘Affidavit of Pranita Devi sworn on 28^th January 2009’, ‘Annexure “E”’, ‘Fiji Sun, Tuesday, January 6, 2009’ p.17, part of ‘Exhibit 6’, ‘List of Exhibits’, ‘High Court File for Civil Action No. HPP 003 of 2010’, Prakash v Devi, marked as Exhibit “47” - the ‘List of Exhibits’ appears in the file as an unnumbered an unpaginated document; see also an undated copy attached to Exhibit 20.)

[35] Obviously, it was impossible to take signed instructions and have an advertisement published in the Fiji Sun on the same date. I note, however, that no submissions have been made by Counsel for either party in relation to this impossibility and its relevance or otherwise as to any of the four counts before me. Hence, it is not an issue for me to resolve in this judgment.

[36] It is undisputed that on 27^th January 2009, Ms. Prem Narayan, Barrister and Solicitor, arranged for a letter of the same date to be delivered by hand to the law firm of Patel Sharma Lawyers advising as follows:

‘Dear Sir

Re: Our Client: Subhasni Lata Singh

Your Client: Administratix of the Estate of Shalen [sic] Prakash Maharaj

We act on instructions of Subhasni Lata Singh.

Our client has referred the Notice in Estate of Shalen [sic] Prakash Maharaj dated 6 January 2009 to our office to lodge a claim in equity against the Estate.

We understand from our client that the Deceased is the registered proprietor of the property comprised in Certificate of Title No.31224 being Lot 11 on DP8112. Our client has made contributions in the purchase of the said property from Dalip Singh. Further she has paid for the erection of the dwelling house on the said property.

Her total contribution amounts to $62,000.00. She has made this contribution on the belief and trust that she would be granted an interest in the property.

She hereby lodges her claim in the sum of $62,000.00 against the Estate.

Kindly forward payment.

Yours sincerely

Prem Narayan (Ms.)

Solicitor’

[My emphasis in bold]

(Doc.AD4, ‘Letter from Prem Narayan to Patel Sharma Lawyers registering claim on Estate in the sum of $62,0000 on behalf of Subhasni Singh’, 27^th January 2009, Agreed Bundle, page 6, marked Exhibit “4”.)

[37] A day later, on 28^th January 2009, Pranita Devi swore an affidavit (in support of an application for a grant of Letters of Administration by the High Court of Fiji at Suva) as ‘the intended Administratrix in the Estate of SALEN PRAKASH MAHARAJ’, his ‘lawful wife’ and ‘the only person entitled to a share in the Estate of the said Deceased’. She also swore in that affidavit at para 4:

‘THAT I did advertise and call for Creditors to lodge any claims against

the estate on 6^th January 2009 in the “Fiji Sun” but to date I have not received any claims or objections to the grant of Letters of Administration to me ...’

[My emphasis]

(See ‘Affidavit of Pranita Devi sworn on 28^th January 2009’, ‘Exhibit 6’, ‘List of Exhibits’, ‘High Court File for Civil Action No. HPP 003 of 2010’, Prakash v Devi, part of Exhibit “47”, unnumbered and unpaginated.)

[38] Why reference was not made in the above Affidavit of Pranita Devi to the claim of Subhasni Singh that had been made and received on the previous day, 27^th January 2009, is unclear. I note that no submissions have been made by Counsel for either party in relation to the said affidavit and its relevance or otherwise as to any of the four counts before me. Hence, it is not an issue for me to resolve in this judgment.

[39] It is undisputed that on 16^th February 2009, Letters of Administration were granted to Pranita Devi as the widow of Salen Prakash Maharaj. (‘Letters of Administration issued in Estate of Salen Prakash Maharaj, No. 48371’, Doc.AD5, Agreed Bundle, pp. 7-8, marked as Exhibit “5”.)

[40] On 26^th February 2009, Prem Narayan, arranged for a second letter to be sent to the law firm of Patel Sharma Lawyers pressing the claim of Subhasni Singh. (Doc.44, ‘Affidavit of Maya Wati Prakash dated 5^th March 2009’, in ‘High Court of Fiji at Suva file, Civil Jurisdiction, HBC No. 81 of 2009’, marked as Exhibit “44”, pp. 131-150, annexure MWP9, p. 149.)

[41] The letter of 26^th February 2009 (Exhibit 44) also raised an allegation that Pranita Devi had, by the use of force and threats, repossessed a motor vehicle that had been in the possession of Ratnesh [sic] Prasad, Salen’s brother-in-law, who was married to Ireen Lata Prasad. It is unclear whether Raknesh Prasad had some form of claim to that vehicle. I note that he was not called to give evidence in these proceedings and no submissions were made by Counsel for either party in relation to that claim and its relevance or otherwise as to any of the four counts before me. I will, however, return to it when considering what inferences, if any, can be drawn from the failure to call Raknesh Prasad in relation to Count 3.

(4) Claim by Maya Wati Prakash for a grant of joint Letters of Administration

[42] It is undisputed that on 6^th March 2009, Prem Narayan, Barrister and Solicitor, acting (not on behalf of Subhasni Singh and/or Raknesh Prasad) but on behalf of Maya Wati Prakash (their mother and mother-in-law respectively), filed an application in the High Court at Suva, Civil Action No. 81 of 2009 (returnable on 10^th March 2009), seeking a number of orders against Pranita Devi (and others) in dealing with the property in the name of Salen Prakash Maharaj at Koronivia, in particular, that the Letters of Administration be recalled and a fresh grant of Letters of Administration be issued to Maya Wati Prakash and Pranita Devi. (See ‘Application filed by Maya Wati Prakash through Prem Narayan in High Court Action No. 81/2009 seeking interim injunctive relief’, Doc.AD6, Agreed Bundle, pp. 9-20, marked as Exhibit “6”.)

[43] When I asked both Counsel at the clarification hearing on 25^th April 2018 for a summary of their understanding as to what occurred in relation to the above application, the oral submissions of Counsel for the Respondent were that after 6^th March 2009, Prem Narayan, acting on behalf of Maya Wati Prakash, called the Respondent and a settlement meeting was held between the parties on 28^th March 2009 at the offices of Patel Sharma Lawyers. The Respondent did not act for either party at that meeting. Instead, the Respondent simply hosted the meeting, Prem Narayan acted on behalf of Maya Wati Prakash and Jayawant Pratap, Pranita Devi’s uncle, acted as the spokesperson for his niece. A settlement was not reached. At some stage following that failed attempt at settlement, the firm of Kohli and Singh commenced acting for the widow, Pranita Devi. Eventually, an Order 25 rule 9 notice under the High Court Rules was issued for the plaintiff to show cause why the matter should not be struck out and at the return date of that show cause notice the matter was discontinued. The oral submission of Counsel for the Applicant Chief Registrar (although explaining that he did not having a copy of the exhibit with him at the clarification hearing on 25^th April 2018) was that from memory, “yes, the action was not pursued”.

[44] Following the clarification hearing on 25^th April 2018, I perused the entire High Court file in relation to Civil Action No. 81 of 2009 (tendered as Exhibit 44 in the present proceedings). It is important (as shall be seen later) that I set out a summary of what occurred, which is as follows:

(1) Initially, on 6^th March 2009, an ex-parte application in Civil Action No. 81 of 2009 came before me when I was sitting as a Puisne Judge of the High Court at Suva. Ms. Prem Narayan appeared and I made an Order that the application was to be made “inter partes” and to be returnable on 10^th March 2009 before Inoke J;

(2) On 10^th March 2009, it was then adjourned until 12^th March 2009 before Inoke J so that the plaintiff could effect service upon the defendant;

(3) On 12^th March 2009, Prem Narayan appeared for the plaintiff, Maya Wati Prakash, Mr. Suruj Sharma appeared for the 1^st Defendant, Pranita Devi and an indecipherable name (perhaps Siurra?) appeared for the 2^nd Defendant, Dalip Singh. There was no appearance for the either the 3^rd and 4^th Defendants. The judge’s notes of Inoke J have recorded the following:

‘Sharma appearance for purpose of resolution of this matter.

Agn to 6/4/09.

D2 oppose application.

Want ... to file Affdvt. in Response

Pltf confirms D1 instructions.

Adjn to 6/4/09 @ 10.00 am.’

[My emphasis]

(4) On 6^th April 2009, the parties appeared before Inoke J with Prem Narayan appearing for the Plaintiff, Maya Wati Prakash, Mr. Raman Singh for the 1^st Defendant, Pranita Devi and Ms. Fifita appeared on behalf of Young and Associates for the 2^nd Defendant, Dalip Singh. The judge’s notes have recorded that Ms. Narayan advised the Court that ‘matter not settled’ and a timetable was then ordered for the filing of documents and the matter adjourned until 8^th May 2009 for mention, which did not occur;

(5) There was then a mention on 23^rd June 2009 before Inoke J with Prem Narayan appearing for the Plaintiff, Maya Wati Prakash, Mr. K. Vilibau(?) appeared on behalf of one of the Defendants and the judge noted:

‘No appearance by K&S

No compliance because 10/4

Adjourn to 7 July 09 @ 9.30am for mention

Registry to send NOAH to Kohli & Singh.’

(6) It is unclear as to what took place on 7^th July 2009 and if any further orders were made apart from the case being vacated to 19^th November 2009 and then to 9^th December 2009. It was then further vacated to 20^th April 2010;

(7) A Notice of Change of Solicitors was filed on 15^th June 2010, by HM Lawyers, (Mr. Willy Hiuare) as the new solicitor acting for the 1^st Defendant, Pranita Devi (in place of Kohli and Singh);

(8) The case was further vacated until 2^nd July 2010, following which, no further action took place until the beginning of 2012, when on 6^th January 2012, Prem Narayan filed a ‘Notice of Intention to Proceed’;

(9) On 23^rd May 2012, the Chief Registrar received an undated letter from Irene (Ireen) Prasad stating in part (see Doc.9, p. 10, Exhibit 44):

‘Case Number: HBC812009 Maya Wati Prakash vs. Pranita Devi Maharaj

On behalf of my mother, Maya Wati Prakash, I, Irene Prasad hereby request the High Court to consider my mother’s case and set a hearing date as soon as possible.

...

This case has been on-going since 2009. For over three years, our family has gone through a lot of hardship and I am hereby requesting for this matter to be looked into and advise me of the progress.’

[My emphasis]

(10) On 12^th June 2012, the file was placed before Justice Kotigalage who directed that it be listed for mention on 3^rd July 2012 at 9.30am, with Prem Narayan Lawyers, HM Lawyers and AG’s Chambers all being served by hand on 19^th June 2012 with such notification;

(11) On an unknown day in July 2012 (the day on the file cover has been obscured in the photocopying, in all likelihood, however, it was 3^rd July 2012), the notation is:

‘Before J. Kotigalage: no appearance for 2^nd, 3^rd & 4^th defendants. Plaintiffs [sic] counsel states HBC 3/2010 in another court when the outcome of this case will be dependant upon the decision of that case, and seeks 6 months time. However I am inclined to grant 6 months time. 1^st defendants [sic] counsel has no objection. No date is allocated if parties are interested, directed to file a motion and get this case mentioned.’

[My emphasis]

(12) On 12th February 2015, a “show cause” notice was issued by the High Court Registry pursuant to Order 25 rule 9 and Order 3 rule 5 of the High Court Rules and the matter listed on 3^rd March 2015 ‘to show cause why it should not be struck out for want of prosecution or an abuse of the process of the court’;

(13) On 3^rd March 2015, the matter was called before the Acting Master in the High Court at Suva when Ms Tikoisuva appeared on behalf of Prem Narayan for the Plaintiff, Maya Wati Prakash and Ms. T. Sharma from AG’s Chambers appeared for the 3^rd and 4^th Defendants, the Registrar of Titles and the Attorney-General respectively. The Acting Master’s notes record the following:

‘Ct: All parties have been served.

MTikoisuva – No obj to having this matter struck out.

MSharma T – No objections either

Ct: I note D1 has been served & failed 2 appear

Having heard counsel this morning I decide 2 strike out this action & dismiss it accordingly.’

[My emphasis]

(5) Inferences from Application filed on 6^th March 2009 by Maya Wati Prakash for joint Letters of Administration (Civil Action No. 81 of 2009)

[45] At the clarification hearing on 25^th April 2018, I asked Counsel what inferences, if any, could I draw from the above application. The oral submission of Counsel for the Applicant Chief Registrar was that he had no submission to make and “for the purposes of inferences, we leave it to the Commission”. Counsel for the Respondent said that he had “some very firm submissions on this”. The oral submissions of Counsel for the Respondent were, in summary, as follows:

(1) “Clearly as at the 6^th March 2009, Maya Wati Prakash was represented by an independent solicitor”;

(2) “The intention of Maya Wati Prakash and her solicitor were very evident from the court papers”, that is, by issuing such proceedings “they also have the belief that there was no signed Will in existence and they were quite content to go for a grant of Letters of Administration” in relation to the Estate of Salen Prakash Maharaj;

(3) “The only thing that Maya Wati wanted was that she wanted to be a joint administratrix”;

(4) Under the law, Pranita Devi, as the widow was the first person “whose got first bite to apply for LA” (so to speak), that is, who had to apply for a grant of Letters of Administration and “I’m not sure how Prem Narayan was going to argue the matter”;

(5) If Maya Wati Prakash opposed the application of the widow, Pranita Devi, being granted Letters of Administration that was clearly advertised, then Prem Narayan, acting on Maya’s behalf, “could have applied for a caveat against the grant of LA”. Instead, Prem Narayan sent a letter on 27^th January 2009, on behalf of Subhasni Singh, to the Respondent, making a claim upon the Estate in the sum of $62,000;

(6) “This court case, which was started by Prem Narayan and Maya Wati Prakash, lingered on in the court system so that the intention never changed until the original, the executed Will, was found”. It was only then that Prem Narayan filed a new action (to have the Letters of Administration revoked, the Will of Salen Prakash Maharaj dated 22^nd December 2006 declared valid and probate be granted in favour of Maya Wati Prakash);

(7) It is clear from the pleadings filed in the 2009 action that –

(i) Maya Wati Prakash had based her claim as a creditor on the estate; and

(ii) Maya Wati Prakash was also saying that she was the beneficiary of the deceased’s estate but, as Counsel for the Respondent noted, he was “not really sure” as to the legal basis of that claim. Indeed, the point being raised was that Maya Wati Prakash could only base her claim as a creditor because section 6(1)(a) of the Succession, Probate and Administration Act was amended in 2004 by section 3 of the Succession, Probate and Administration (Amendment) Act, whereby it stated, that ‘section 6(1) of the principal Act is amended ... by repealing paragraph (a) and substituting the following ... “(a) if the intestate leaves a wife or husband, without issue, the surviving wife or husband shall take the whole of the estate absolutely”. [My emphasis] Therefore, in this case, where Salen died without issue, Pranita Devi, as the surviving spouse would get the entire estate;

(8) “If Pranita Devi as a surviving spouse consented to a joined administratrix because she might have needed some help then the court would in fact grant a joined administratrix”;

(9) “But if Pranita Devi didn’t consent to it, then the law would say, ‘well she is the surviving spouse, she is lawfully entitled to a grant of LA, what are you doing in the LA?’, so I think it needed consent and I think that’s where Ms Narayan got, came unstuck because ... the law would require Pranita to consent and at that point in time Pranita was not inclined to consent to anything”.

[46] Counsel for the Applicant Chief Registrar advised that he had no submissions to make in response to the above.

[47] Having had the time to carefully consider, post-25^th April 2018, the above submissions of Counsel for the Respondent legal practitioner, I agree with those oral submissions.

[48] I also note that in paragraph 26 of her affidavit sworn on 5^th March 2009, filed in support of her application in Civil Action No. 81 of 2009, Maya Wati Prakash stated:

‘I have been explained by my solicitors the application for probate in the Deceased’s estate by the First Defendant and am shocked that she [the widow] has claimed that she is the only beneficiary. I am advised by my solicitors which I advise that I verily believe to be true that as the mother of the Deceased, I am a beneficiary of the Deceased’s estate as I was dependent on the Deceased since my husband died. The Deceased provided for all my everyday expenses. The First Defendant intends to deprive me of my legal interest under the Deceased’s estate.’

[My emphasis]

[49] I am not sure as to how Maya Wati Prakash was making the above claim as: (1) Clearly, there was no application that had been made previously on behalf of the widow, Pranita Devi, for a grant of probate, as there was no Will. Rather, I note, that what had occurred was that on 16^th February 2009, there had been a grant by the High Court of Letters of Administration for Pranita Devi as the widow to administer the estate;

(2) I also note that the claim of Maya Wati Prakash in Civil Action No. 81 of 2009 was based, not upon Maya Wati Prakash having been previously named as the sole beneficiary under the missing Will (in fact, there is no mention of the missing Will), instead, the claim, was arguing fraud by the previous vendor of the property at Koronivia;

(3) Perhaps, there was also a potential claim by Maya Wati Prakash as a dependant, pursuant to section 3(1) of the Inheritance (Family Provision) Act 2004, however, this was not mentioned in the Statement of Claim;

(4) I am also unaware of any separate claim being pursued by Prem Narayan on behalf of Maya Wati Prakash between 2009 and when the Will was found on 23^rd January 2010, pursuant to section 3(1) of the Inheritance (Family Provision) Act 2004;

(5) Indeed, adding to the confusion, is a letter that was mentioned in paragraph 25 of Maya’s affidavit sworn on 5^th March 2009, filed in support of her application in Civil Action No. 81 of 2009, and annexed and marked “MWP9” that was sent by Prem Narayan not on behalf of Maya Wati Prakash but Subhasni Singh dated 26^th February 2009 (to which I have previously briefly referred above), which stated:

‘We act on behalf of Subhasni Lata Singh. Our client had lodged a claim against the Estate of Shalen [sic] Prakash Maharaj addressed to your office on 27 January 2009.

To date we have not received any response from your office or the intended Administratrix Pranita Devi.

We are aware that probate was issued on 16 February 2009 in favour of Pranita Devi. We are now in the process of instituting a claim against the Administratrix for the sum outstanding.

We are informed by our client that your client had taken possession of the motor vehicle registration number LT 3579 from Ratnesh [sic] Prasad who was the Deceased’s brother-in-law by means of force and threats. At present your client is yet to distribute the assets of the estate to the beneficiaries of the estate.

Given the conduct of your client in repossessing the motor vehicle, our client will be moving the court for the assets of the Deceased’s estate to be frozen until the outstanding debts are paid.’

[My emphasis]

[50] It is clear that in relation to the above:

(1) The claim was being made on behalf of Subhasni Singh not Maya Wati Prakash;

(2) There was no mention of any potential claim being pursued by Prem Narayan on behalf of Maya Wati Prakash pursuant to the Inheritance (Family Provision) Act 2004;

(3) There was no objection being raised as to a conflict of interest of the Respondent acting for Pranita Devi in making the application for a grant of Letters of Administration – something to which I will return later in this judgment.

(6) Will found, proceedings issued to have it declared valid and Letters of Administration revoked (Civil Action No. HPP 003 of 2010)

[51] On 23^rd January 2010, the Will of Salen Prakash Maharaj dated 22^nd December 2006, was found. (Doc.63, ‘Agreed Facts’, p. 1, ‘Minutes of the Pre-Trial Conference’, signed 22^nd September 2011, ‘File High Court Suva, Civil Action No. HPP 003 of 2010’, Prakash v Devi, Exhibit 47, p. 420.)

[52] Following the discovery of the Will, a Writ was then filed on 6^th February 2010 in the High Court of Fiji at Suva, Probate Jurisdiction (High Court Civil Action No. HPP 003 of 2010) by Prem Narayan, on behalf of Maya Wati Prakash (the testator’s mother) seeking (amongst various orders) that the Letters of Administration granted on 16^th February 2009 be revoked, the court pronounce the Will of Salen Prakash Maharaj dated 22^nd December 2006 valid and probate be granted in favour of Maya Wati Prakash. (‘Writ issued by Maya Wati Prakash’ against Pranita Devi in Action No. 3/2010’, Doc.AD7, Agreed Bundle, pp. 21-27, marked as Exhibit “7”.)

(7) Complaint by Maya Wati Prakash (mother and beneficiary) followed by mediation

[53] On 11^th March 2010, the Legal Practitioners Unit within the office of the Chief Registrar received a ‘Complaint Form’ signed and dated on that same date by Maya Wati Prakash. (Doc.AD8, ‘Complaint by Maya Wati Prakash to Chief Registrar’, Agreed Bundle, pp. 28-31, marked as Exhibit “8”.) In completing the form, where asked to specify the nature of the complaint, it has been written:

‘FRAUD ➔ Suruj was holding the original will submitted to him by Salen Prakash Maharaj (deceased)

he was saying that he does not have any will but actually he was keeping it’

[My emphasis]

[54] On 24^th June 2010, a mediation conference was conducted through the office of the Chief Registrar between Maya Wati Prakash and Suruj Sharma. It is disputed as to whether the matter settled at that mediation conference. Unfortunately, the person who acted as the mediator, Ms. Akanisi, did not give evidence before this Commission, something to which I will be returning when considering Count 3.

(8) Will declared valid and Letters of Administration revoked No. HPP 003 of 2010

[55] On 29^th and 30^th October 2012, a hearing took place before Justice S.N. Balapatabendi in the High Court at Suva in relation to High Court Civil Action No. HPP 003 of 2010 between Maya Wati Prakash and Pranita Devi (Exhibit 47.)

[56] On 11^th October 2013, Justice Balapatabendi ruled in favour of Maya Wati Prakash pronouncing that the Will of Salen Prakash Maharaj dated 22^nd December 2006 to be valid and that the grant of the Letters of Administration granted to Pranita Devi (the widow) on 16^th February 2009 was to be revoked forthwith. (‘High Court Judgment and Reasons for Decision of His Lordship the Honourable S.N. Balapatabendi in Matter No. HPP 03/2010 (11/10/2015), Prakash v Devi [2013] FJHC 528’, Agreed Bundle, Doc.AD19, pp. 62-75, marked as Exhibit “19”; see also Prakash v Devi, Unreported, High Court of Fiji at Suva, Civil Action No. HPP 03 of 2010, 11 October 2013; PacLII: [2009] FJHC 43, <http://www.paclii.org/fj/cases/FJHC/2013/528.html> .)

(9) Complaint by Pranita Devi (widow)

[57] On 14^th November 2013, Pranita Devi completed a complaint form that was received by the Chief Registrar’s Legal Practitioners Unit on that same date, making complaints against both Mr. Suruj Sharma of Patel Sharma Lawyers and Mr. Willy Hiuare of HM Lawyers (Exhibit 20).

(10) Proceedings issued in Commission

[58] On 16^th July 2014, the Chief Registrar filed an Application with the Commission setting out two allegations of Professional Misconduct against the legal practitioner. The Application was made returnable on 30^th July 2014 when the Application was withdrawn (Doc. “AD25”, Agreed Bundle, marked as Exhibit “25”).

[59] On 14^th October 2015, the Chief Registrar filed a new Application setting out three allegations (two of Professional Misconduct and one of Unsatisfactory Professional Misconduct) naming the legal practitioner, Suruj Sharma as the First Respondent and the law firm, Patel Sharma Lawyers, as the Second Respondent. These have become Counts 1, 2 and 3 in the present proceedings.

[60] On 13^th November 2015, while the new application was pending, the Chief Registrar filed a further allegation of Professional Misconduct against the First Respondent. On 16^th November 2015, the previous Commissioner, Justice P.K. Madigan, consolidated this further allegation so as to become Count 4 in the present proceedings.

[61] On 10^th February 2016, the Respondent filed and served an Interlocutory Application seeking Orders for a permanent stay/dismissal of the four Counts, a ruling for which was handed down by me on 21^st September 2016, wherein the application was refused. (See Chief Registrar v Suruj Sharma (Unreported, ILSC, Application Nos. 012 and 015 of 2015, Commissioner Hickie, 21 September 2016; PacLII: [2016] FJILSC 5, <http://www.paclii.org/fj/cases/FJILSC/2016/5.html> .)

[62] On 21^st November 2016, the Chief Registrar filed an application amending Count 1. On 1^st of December 2016, the Chief Registrar filed a Further Amended Application further amending Count 1.

[63] The hearing of this application then commenced on 5^th December 2016. Evidence continued to be taken in the June and September 2017 Sittings. Written submissions were then filed in January and February 2018, followed by a clarification hearing on 25^th April 2018 and a supplementary clarification hearing on 13^th June 2018.

5. The law on inferences where a witness is not called

[64] Before I commence analysing each of the four counts, I need to explain how I have decided to deal with what inference, if any, I should draw where a witness has not been called in the present proceedings.

(i) The rule in Jones v Dunkel

[65] I note that Counsel for the Respondent have touched on this issue in their joint ‘Written Synopsis in Response to Commissioner’s Directions’ dated 24^th April 2018, tendered at the clarification hearing on 25^th April 2018, in relation to the absence of any evidence from Ms. Akanisi who chaired the mediation held on 24^th June 2010 between Maya Wati Prakash and the Respondent. According to Counsel for the Respondent, the failure to obtain a statement and/or call Ms. Akanisi in evidence would allow the Commission to draw an inference as they have explained at para [88]:

‘... It is respectfully submitted this is a fitting case in which the principle developed in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 comes in operation. From the Prosecution conduct, there is a strong inference that the uncalled evidence would not have assisted it.’

[Underlining my emphasis]

[66] Interestingly, Jones v Dunkel, which is a judgment of the High Court of Australia, allows a limited inference to be drawn (compared say, with the United States of America where an unfavourable inference may be drawn), as discussed by Heydon J in the High Court of Australia in Australian Securities and Investments Commission v Hellicar and Ors [2012] HCA 17; AustLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2012/17.html> , where he explained at [232]:

‘... two consequences can flow from the unexplained failure of a party to call a witness whom that party would be expected to call. One is that the trier of fact may infer that the evidence of the absent witness would not assist the case of that party. The other is that the trier of fact may draw an inference unfavourable to that party with greater confidence. But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party (HML v The Queen [2008] HCA 16; (2008) 235 CLR 334 at 437-438 [302]- [303]; [2008] HCA 16; Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at 385 [64]; [2011] HCA 11). The position in the United States is different (Wigmore, Evidence in Trials at Common Law, Chadbourn rev (1979), vol 2 at 192 [285]). In turn, that has evidently led to the imposition of stricter preconditions than those which exist under Jones v Dunkel.’ Thus McCormick says (Strong (ed), McCormick on Evidence, 5th ed (1999) at 407 264. See also Stier, "Revisiting the Missing Witness Inference – Quieting the Loud Voice from the Empty Chair", (1985) 44 Maryland Law Review 137):

"The cases fall into two groups. In the first, an adverse inference may be drawn against a party for failure to produce a witness reasonably assumed to be favorably disposed to the party. In the second, the inference may be drawn against a party who has exclusive control over a material witness but fails to produce him or her, without regard to any possible favorable disposition of the witness toward the party. Cases in the second group are increasingly less frequent due to the growth of discovery and other disclosure requirements."’

[67] I note that in Canada, the inference to be drawn can go so far as to be an adverse inference, similar to that in the USA. That is, ‘an implied admission that the evidence of the absent witness would be contrary to the party’s case or at least would not support it’ as discussed by J. Sopinka, S. N. Lederman and A. W. Bryant in The Law of Evidence in Canada (2nd ed. 1999), at p. 297, para. 6.321, cited, in turn, by the Supreme Court of Canada in R v Jolivet [2000] 1 SCR 751; CanLII: 2000 SCC 29, <https://www.canlii.org/en/ca/scc/doc/2000/2000scc29/2000scc29.html?resultIndex=>, where Binnie J, in delivering the unanimous judgment of the Court, explained at paras [24]-[28]:

‘24. The “adverse inference” principle is derived from ordinary logic and experience, and is not intended to punish a party who exercises its right not to call the witness by imposing an “adverse inference” which a trial judge in possession of the explanation for the decision considers to be wholly unjustified.

25. The general rule developed in civil cases respecting adverse inferences from failure to tender a witness goes back at least to Blatch v. Archer [1774] EngR 2; (1774), 1 Cowp. 63, 98 E.R. 969, where, at p. 65, Lord Mansfield stated:

It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.

26. The principle applies in criminal cases, but with due regard to the division of responsibilities between the Crown and the defence, as explained below. It is subject to many conditions. The party against whom the adverse inference is sought may, for example, give a satisfactory explanation for the failure to call the witness as explained in R. v. Rooke (1988), 40 C.C.C. (3d) 484 (B.C.C.A.), at p. 513, quoting Wigmore on Evidence (Chadbourn rev. 1979), vol. 2, at para. 290:

In any event, the party affected by the inference may of course explain it away by showing circumstances which otherwise account for his failure to produce the witness. There should be no limitation upon this right to explain, except that the trial judge is to be satisfied that the circumstances thus offered would, in ordinary logic and experience, furnish a plausible reason for nonproduction. [Italics in original [for bold]; underlining added.]

27. The party in question may have no special access to the potential witness. On the other hand, the "missing proof" may lie in the "peculiar power" of the party against whom the adverse inference is sought to be drawn: Graves v. United States, [1893] USSC 217; 150 U.S. 118 (1893), at p. 121. In the latter case there is a stronger basis for an adverse inference.

28. One must also be precise about the exact nature of the "adverse inference" sought to be drawn. In J. Sopinka, S. N. Lederman and A. W. Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 297, para. 6.321, it is pointed out that the failure to call evidence may, depending on the circumstances, amount "to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it" (emphasis added), as stated in the civil case of Murray v. Saskatoon, [1952] 2 D.L.R. 499 (Sask. C.A.), at p. 506. The circumstances in which trial counsel decide not to call a particular witness may restrict the nature of the appropriate "adverse inference". Experienced trial lawyers will often decide against calling an available witness because the point has been adequately covered by another witness, or an honest witness has a poor demeanour, or other factors unrelated to the truth of the testimony. Other jurisdictions also recognize that in many cases the most that can be inferred is that the testimony would not have been helpful to a party, not necessarily that it would have been adverse: United States v. Hines, [1973] USCA3 157; 470 F 2d 225 (3rd Cir. 1972), at p. 230, certiorari denied, 410 U.S. 968 96 (1973); and the Australian cases of Duke Group Ltd. (in Liquidation) v. Pilmer & Ors, [1998] A.S.O.U. 6529 (QL), and O'Donnell v. Reichard, [1975] VicRp 89; [1975] V.R. 916 (S.C.), at p. 929.’

[Bold my emphasis]

[68] As for the statement cited in Jolivet of Lord Mansfield from Blatch v Archer [1774] EngR 2; [1774] 1 Cowp 63 at p. 65; [1774] EngR 2; 98 ER 969 at p. 970 (CommonLII: <http://www.commonlii.org/int/cases/EngR/1774/2.pdf> ), I note that Blatch v Archer was an appeal in a civil action against the Sheriff of Essex for an escape of a person (Moody) who had been previously arrested for a judgment debt. The defendant tried to argue on appeal that the arrest was not lawful as it was not performed personally by the bailiff, who was still some thirty rods away (approximately 150 metres) when the actual arrest occurred of Moody and, further, that the person who performed the arrest (the bailiff’s son) did not have the warrant with him when he arrested Moody. There was also an objection raised that the warrant was not produced at court to prove its validity. On that last issue, it was noted that the sheriff’s agent who was called and could have proved that the warrant was valid, ‘immediately, upon hearing his name, ran out of Court to avoid being examined’. The Court was satisfied, however, that the warrant was valid. As for the arrest, the Court noted that the jury was satisfied that the bailiff had been near enough at hand for the arrest to have been lawful. Thus, there was no need to call the son. As such, Lord Mansfield said, apart from reciting the legal maxim set out above (and which has been cited in numerous cases over the years), also added, ‘But I think it would have been very improper to have called the son; for in fact it is an action against his father the bailiff, though nominally against the sheriff.’ [My emphasis]

[69] I note that in some jurisdictions, legislation allows a court to draw adverse inferences in criminal proceedings as the effect of ‘an accused’s failure to mention facts when questioned or charged’ or when a defendant decides not to give evidence (see, for example, sections 34-37 of the Criminal Justice and Public Order Act (1994) (UK) or section 89A Evidence Act 1995 (NSW)), overcoming, of course, the problems of Woolmington v DPP [1935] AC 462; BAILII: UKHL 1, <http://www.bailii.org/uk/cases/UKHL/1935/1.html> , where Viscount Sankey LC (with whom the rest of the House of Lords agreed) made his famous speech that:

‘... Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception ... No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained ...’

[70] On that point, as Alexandra Felix and Tom Orpin-Massey explained in an article published in 2017 in the New Law Journal (UK): ‘Adverse inferences were brought in by statute in the criminal courts and developed through the common law in the civil courts.’ (See ‘Coming soon? Adverse inferences’, New Law Journal, LexisNexis, London, 14 July 2017, <https://www.newlawjournal.co.uk/content/coming-soon-adverse-inferences>.) Felix and Orpin-Massey were looking at the development of the law of adverse inferences and their use in disciplinary tribunals (an issue that I shall come to shortly). Whilst noting the legislation introduced in the United Kingdom for criminal proceedings (that I have cited above), they also cited the development of the common law in civil proceedings and, in particular, the principles set out by Lord Justice Brooke (with whom Lord Justice Aldous and Lord Justice Roch agreed) in Wisniewski (A Minor) v Central Manchester Health Authority [1998] PIQR P323; [1998] EWCA Civ 596 (1 April 1998); BAILII: <http://www.bailii.org/ew/cases/EWCA/Civ/1998/596.html> , as follows:

‘(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.

(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.’

[My emphasis]

[71] In Wisniewski, I note that Justice Brooke LJ, in discussing ‘the need for the party who seeks to rely on an adverse inference to adduce proof on the matter in issue’ cited, in turn, the Supreme Court of Victoria in O’Donnell v Reichard [1975] VicRp 89; [1975] VR 916 ‘where Gillard J conducted a review of earlier English and Australian cases’ and ‘summed up the state of the authorities in these terms at p 921’:

‘Looking at the authorities from Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 right up to Earle v Eastbourne District Community Hospital [1974] VicRp 86; [1974] VR 722, it may be accepted that the effect of a party failing to call a witness who would be expected to be available to such party to give evidence for such party and who in the circumstances would have a close knowledge of the facts on a particular issue, would be to increase the weight of the proofs given on such issue by the other party and to reduce the value of the proofs on such issue given by the party failing to call the witness.’

[My emphasis]

[72] On this issue, Brooke LJ in Wisniewski also noted the discussions in Chapman v Copeland (1966) 110 SJ 569 and Hughes v Liverpool City Council (Lexis transcript, 11th March 1988, CA), where a court might be willing to draw an inference even though a plaintiff had been able to adduce very little evidence to support their claim. Balanced against that, Brooke LJ noted at p.340 the judgment of Lord Lowry in the House of Lords in R v IRC ex parte T C Coombs v IRC [1991] 2 AC 283 at 300 where His Lordship said:

‘In our legal system generally, the silence of one party in face of the other party’s evidence may convert that evidence into proof in relation to matters which are, or are likely to be, within the knowledge of the silent party and about which that party could be expected to give evidence. Thus, depending on the circumstances, a prima facie case may become a strong or even an overwhelming case. But, if the silent party’s failure to give evidence (or to give the necessary evidence) can be credibly explained, even if not entirely justified, the effect of his silence in favour of the other party may be either reduced or nullified.’

[My emphasis]

[73] I further note that the above quote was cited with approval by Lord Sumption in the United Kingdom Supreme Court in Prest v Petrodel Resources Ltd & Ors [2013] UKSC 34 (12 June 2013); BAILII: <http://www.bailii.org/uk/cases/UKSC/2013/34.html>, as he explained at paras [44]-[45]:

‘44. In British Railways Board v Herrington [1972] UKHL 1; [1972] AC 877, 930-931, Lord Diplock, dealing with the liability of a railway undertaking for injury suffered by trespassers on the line, said:

"The appellants, who are a public corporation, elected to call no witnesses, thus depriving the court of any positive evidence as to whether the condition of the fence and the adjacent terrain had been noticed by any particular servant of theirs or as to what he or any other of their servants either thought or did about it. This is a legitimate tactical move under our adversarial system of litigation. But a defendant who adopts it cannot complain if the court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the defendant has chosen to withhold. A court may take judicial notice that railway lines are regularly patrolled by linesmen and Bangers. In the absence of evidence to the contrary, it is entitled to infer that one or more of them in the course of several weeks noticed what was plain for all to see. Anyone of common sense would realise the danger that the state of the fence so close to the live rail created for little children coming to the meadow to play. As the appellants elected to call none of the persons who patrolled the line there is nothing to rebut the inference that they did not lack the common sense to realise the danger. A court is accordingly entitled to infer from the inaction of the appellants that one or more of their employees decided to allow the risk to continue of some child crossing the boundary and being injured or killed by the live rail rather than to incur the trivial trouble and expense of repairing the gap in the fence."

The courts have tended to recoil from some of the fiercer parts of this statement, which appear to convert open-ended speculation into findings of fact. There must be a reasonable basis for some hypothesis in the evidence or the inherent probabilities, before a court can draw useful inferences from a party's failure to rebut it. For my part I would adopt, with a modification which I shall come to, the more balanced view expressed by Lord Lowry with the support of the rest of the committee in R v Inland Revenue Commissioners, Ex p TC Coombs & Co [1991] 2 AC 283, 300 ...

Cf. Wisniewski v Central Manchester Health Authority [1998] PIQR 324, 340.

45. The modification to which I have referred concerns the drawing of adverse inferences in claims for ancillary financial relief in matrimonial proceedings, which have some important distinctive features.’

[My emphasis]

[74] As Justice Morgan recently observed in Ramsay v Love [2015] EWHC 65 (Ch) (20 January 2015); BAILII: <http://www.bailii.org/ew/cases/EWHC/Ch/2015/65.html>, on drawing adverse inferences:

‘14. There is no doubt as to the principle. It was recently invoked by the Supreme Court in Prest v Prest [2013] UKSC 34; [2013] 2 AC 415 at [44] per Lord Sumption.

15. It will be noted that Lord Lowry in R v IRC ex parte T. C. Coombs & Co referred to the court's response to "a party" not giving evidence whereas Brooke LJ in Wisniewski referred to the court's response to "a witness" not being called by a party.’

[My emphasis]

[75] I note the point being made by Morgan J in Ramsay was that Coombs was a case where one party declined to give evidence, whereas in Wisniewski it was a witness who was not called. In Ramsay, the dispute was between a personal guarantee on a lease of premises used for a restaurant and a small hotel, signed by a chef, Mr. Gordon Ramsay, with the then freehold owner of premises, Northam, whose interest was later acquired by Mr. Gary Love. The issues was whether Mr. Ramsay’s father-in-law, Mr. Hutcheson (who had been at one time the Chief Executive Officer of Mr. Ramsay’s company), had ‘authority to act on behalf of Mr Ramsay in relation to the giving of a guarantee by Mr Ramsay’. Neither Mr. Hutcheson, nor his son, Adam, ‘who was closely involved in the negotiations which led to the grant of the lease’ were called. As Morgan J noted at paras [19]-[20]:

‘19. On the material before me, I consider that it is unlikely that the Hutchesons would have been prepared to give evidence voluntarily at this trial. One reason for thinking that is that Mr Ramsay reported Mr Hutcheson to the police for alleged criminal behaviour and Mr Ramsay has been interviewed by the police on more than one occasion in relation to that report. Mr Ramsay understands that the resulting police investigation is continuing. It would not be surprising if the Hutchesons did not wish to have their conduct investigated at a civil trial in advance of a decision being made as to a possible criminal prosecution. Further, Mr Seitler submitted that the Hutchesons were "admitted perjurers" and any evidence they might give would be unreliable. Not having heard the Hutchesons, I am not in a position to make any findings as to their reliability. I can speculate however in this way. It is entirely possible that if the Hutchesons came to give evidence that I would have been cautious before I accepted their evidence, in view of the allegation of previous perjury and in view of the fact that they are not disinterested witnesses. If I were to feel cautious about their evidence, that would not mean that I would automatically accept all and any evidence from Mr Ramsay to the contrary. In such a case, it would still be necessary for me to consider his evidence and assess it in the light of any contemporaneous documents and the inherent probabilities of the case.

20. My overall conclusion on the submission, that I should draw an adverse inference against Mr Love by reason of the fact that he has not called either of the Hutchesons as a witness, is that any potentially detrimental effect on Mr Love's case by reason of the Hutchesons not being called as witnesses is significantly reduced but possibly not wholly eliminated.’

[My emphasis]

[76] In undertaking this review, one final case that I have found relevant is the judgment of Glass JA in Payne v Parker [1976] 1 NSWLR 191, who, in turn, after undertaking a review of ‘various sources’ in relation to the law on inferences (including Blatch v Archer, ‘Wigmore on Evidence, 3rd ed., vol II, pars. 285-289, pp. 162-175 ([where] there is a discussion of the underlying doctrine with illustrations from United Kingdom, Canadian and United States decided cases’, as well considering Jones v Dunkel and other cases from the High Court of Australia, the New South Wales Court of Appeal and the Supreme Court of Victoria), summarised nine propositions to be drawn on inferences, with proposition number (6) being the conditions to be met for the principle to apply when a witness is not called, as His Honour explained at 201(F):

‘Whether the principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.’

[My emphasis]

[77] Glass JA then explained the three conditions in further detail as propositions (7)-(9) at 201G:

(7) The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286 ...;

(8) According to Wigmore, par. 285, the second condition is fulfilled where the party or his opponent claims that the facts would thereby be elucidated. Under other formulations, the condition is made out when the witness is presumably able to put a true complexion on the facts: Jones v. Dunkel ... I would think it in-sufficient to meet the requirements of principle that one party merely claims that the missing witness has knowledge, or that, upon the evidence, he may have knowledge. Unless, upon the evidence, the tribunal of fact is entitled to conclude that he probably would have knowledge, there would seem to be no basis for any adverse deduction from the failure to call him.

(9) The third condition is satisfied if no explanation is offered for the absence of the witness, or the tribunal thinks that the explanation given is unsatisfactory. The explanation tendered may be that the witness is ill, overseas, dead or refuses to waive his privilege: Wigmore, par. 286.’

[My emphasis]

[78] As for a situation where there is argument as to which party should have called a witness, Glass JA noted at 201(G)-203(A): ‘... the accessibility of the witness’ evidence to the parties, his relationship to them and the nature of the cases respectively advanced by them are all material factors bearing upon the ultimate questions: Which party would be expected to call the witness? To which party is his absence adverse?’

(ii) Inferences in disciplinary proceedings where a witness is not called

[79] So how does the above discussion affect disciplinary proceedings before the Commission and the drawing of inferences where a witness, who might be expected to do so, is not called to give evidence?

[80] As a starting point it is important to note that section 114 of the Legal Practitioners Act 2009 states that ‘The Commission is not bound by formal rules of evidence’. It also states, however, that ‘the commission must act fairly in relation to the proceeding’. [My emphasis]

[81] The issue, as to what inferences might be drawn in disciplinary proceedings not bound by the rules of evidence, was discussed in some detail in Legal Practitioners Complaints Committee and Trowell [2009] WASAT 42 (13 March 2009); AustLII: <http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/wa/WASAT/2009/42.html> . The proceedings involved a charge of unprofessional conduct brought by the Legal Practitioners Complaints Committee (similar to the Legal Practitioners Unit within the Office of the Chief Registrar in Fiji) before the State Administrative Tribunal of Western Australia. The background to the charge was as the Tribunal explained at paras [27]-[34]:

‘27. In March 2005, Ms Schapelle Corby, an Australian citizen from Queensland, was on trial in the District Court of Bali on a charge of importing a prohibited drug ...

...

31. On 27 May 2005, Ms Corby was found guilty by the District Court in Bali and sentenced to 20 years imprisonment ...

...

34. On 31 May 2005, the practitioner, without any prior communication with Ms Corby or the Bali legal team, prepared and issued a press release which related to Ms Corby's situation and her appeal. This is the first of the alleged eight disclosures of Ms Corby's confidential information and/or making unauthorised statements to the media ...’
    

[82] In a nutshell, the statements were critical of the Indonesian judicial system including allegations of ‘a proposal by a third party ...to attempt to procure money from the Australian government to bribe the Balinese judiciary’. As the ‘Summary of the Tribunal's decision’ notes at [2]:

‘The Legal Practitioners Complaints Committee brought a charge of unprofessional conduct against Mr Trowell on the basis that at the time he made the statements to the media, Ms Corby was his client or his prospective client and, in doing so, he disclosed confidential information and made statements to the media without her informed consent.’

[My emphasis]

[83] Part of the argument raised by Counsel appearing on behalf of the Respondent barrister was whether Ms Corby was his client and the failure by the LPCC to call certain witnesses including Ms Corby ‘as to fact or as to a complaint'. In particular, as the Tribunal noted at [67], Counsel for the Respondent barrister ‘sought to draw inferences against aspects of the LPCC's case by reason of its failure to call several witnesses, particularly Ms Corby and the practitioner's alleged junior’ as well as ‘some short reference made to the failure to call ... members of the Bali legal team, specifically in relation to their meeting with the practitioner on 3 June 2005’.

[84] The Tribunal noted at para [68] ‘The principles governing the operation of the “rule” in Jones v Dunkel’ and then discussed the applicability of the rule at [69]-[70] in relation to the ‘LPCC's failure to call witnesses’ generally:

‘69. We have taken into consideration and applied such of these principles as are relevant to the present circumstances, but with this qualification. It is to be borne in mind that this is not an ordinary civil action but rather it constitutes professional disciplinary proceedings brought by the governing body against a legal practitioner before a tribunal subject to its own statutory procedures. These include that it is not bound by the rules of evidence or the practices of courts but is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms (s 32 SAT Act). We have so proceeded and in this respect were prepared to accept explanations from both parties as to why Ms Corby's evidence might or might not have been available, without direct evidence in support.

70. We mention we have also had regard to the decision in Kalaf [New South Wales Bar Association v Kalaf (unreported, Supreme Court of NSW, Court of Appeal, 12 October 1987; BC 8801429)], cited in another section of the practitioner's closing submissions. The majority in the circumstances of that case were not prepared to make a finding that the practitioner before them had lied about the matter, in the absence of the Association (being the governing body and regulator) calling an available witness who had knowledge of the matter. In their view, although this aspect of the case did not turn upon the issue of onus, it was the Association, as the party carrying the burden of proof on this issue, rather than the practitioner, who was required to call the witness if it sought such a serious finding. Samuels JA [who was in the minority] who alone addressed the rule in Jones v Dunkel held it was the practitioner who would be expected to call the witness and drew an adverse inference from his failure to do so.’

[My emphasis]

[85] As to the ‘Failure to call Ms Corby’ specifically and whether an ‘inference against the LPCC should be drawn’, after having noted that‘... counsel for the LPCC, suggested that it would be unrealistic to suppose that Ms Corby would want to participate in a case involving criticism of the Indonesian legal system’, that Ms Corby was in an Indonesian prison and the various difficulties that might be involved in taking evidence and ‘whether Ms Corby would have any recollection of the specifics of her conversation with the practitioner’, the Tribunal then set out at [87]-[89] the following:

‘87. In order for the rule in Jones v Dunkel to operate, the evidence of the missing witness must be such as would have elucidated a matter. It is not enough to conclude that a witness may have knowledge.

88. There is a stronger basis for our decision. Under the Jones v Dunkel rule, the significance to be attributed to the fact that a witness does not give evidence depends in the end upon whether, in the circumstances, it is to be inferred that the reason why the witness was not called was because the party expected to call the witness feared to do so. The party may not be sufficiently aware of what the witness will say to warrant that inference. The party may simply not know what the witness will say. In this respect we can say with much greater confidence that, to the extent that the LPCC may be regarded as the party expected to call Ms Corby, we do not believe, having regard to all of the circumstances, that it did not call Ms Corby because it feared to do so.
89. The rule in Jones v Dunkel can operate against a party who bears the burden of proof (the LPCC) or against a party who does not bear the onus (the practitioner). Although the LPCC has not argued that the practitioner ought to have called Ms Corby, the practitioner has in his closing submissions sought to defend his decision not to do so. It is said that 'this is not a case where the "evidentiary onus" was on the respondent, to rebut any inference that Ms Corby was his client ...
90. To the extent it impacts on this issue, we are not convinced that submission is correct ... It was clearly open to him to have sought corroboration of his evidence from Ms Corby. She was equally available (if at all) to both parties. Unlike the LPCC, the practitioner had a pre-existing relationship with her, although perhaps one soured by his last (the eighth) media interview in which the practitioner accused her legal team in Bali of seeking money to bribe the appeal judges. For the reasons we have outlined she may not have been able or willing to assist the practitioner. But that is a different question.’
91. For these reasons we do not draw an inference adverse to the case of the LPCC by reason of its failure to call Ms Corby.'

[My emphasis]

[86] The Tribunal also considered a submission on behalf of the Respondent practitioner that they should draw an adverse inference from the failure of the LPCC to call Mr. Laskaris who had attended a meeting between the practitioner and Ms. Corby:

‘92. ...There is no evidence or explanation to suggest he was not available to either party to give evidence. It appears he was interviewed by the LPCC and a transcript of the interview provided to the practitioner. Neither party sought to tender that document. He was also summonsed by the LPCC, but was not called upon.

93. In his closing oral closing submissions, Mr Hall [for the LPCC] put as the first reason for not calling Mr Laskaris that it had not previously been suggested that he ought be called. It might perhaps operate to strengthen the inference otherwise drawn against a party that at an early stage of the proceedings, that party is put on notice that it is expected to call a witness or provide a proper explanation for the failure to do so and that the inference will be sought if it does not. But we do not think that there is anything in the principles governing the Jones v Dunkel rule that a party must be put on such notice.

...

96. We are mindful that in Kalaf dealing specifically with this type of issue as between the regulator and a practitioner, the majority took the view that the obligation was on the regulator. However, that majority decision was made where there was a serious accusation of dishonesty advanced by the regulator against the practitioner before the court. That is not the case before us.

...

97. We have been troubled by the second explanation given by Mr Hall (Mr Laskaris was not a person who could provide an accurate account of events) in the absence of any evidence or elaboration. However, we are not prepared to regard the LPCC's failure to call Mr Laskaris as attributed to its fear that it would not advance the LPCC's case. We rather think the inference to be drawn from the fact that neither party wished to call Mr Laskaris or tender the transcript, is that his evidence was not entirely helpful to either.
98. In the circumstances we are not prepared to draw the inference sought from the LPCC's failure to call Mr Laskaris.’

[My emphasis]

(iii) What inferences should be drawn on the absence of a witness before the Commission?

[87] Returning to the present case, what inferences, if any, should I draw from a witness not being called or a document not being produced in proceedings before the Commission? Having reviewed the various authorities, I will be applying the rule in Jones v Dunkel subject to the following:

(1) It will be according to the three conditions set out by Glass JA in Payne v Parker being satisfied -

(i) ‘the missing witness would be expected to be called by one party rather than the other’;

(ii) the missing witness’ ‘evidence would elucidate a particular matter;

(iii) the missing witness’ ‘absence is unexplained’;

(2) The inferences to then be drawn can be, as discussed by Heydon J in the High Court of Australia set out above in Australian Securities and Investments Commission v Hellicar & Ors -

(i) ‘the evidence of the absent witness would not assist the case of that party’; and (ii) ‘that the trier of fact may draw an inference unfavourable to that party with greater confidence’;

(iii) ‘But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party’;

(3) Balanced against that, I will be applying reasoning similar to that set out in Legal Practitioners Complaints Committee and Trowell set out above, that is, I will take into consideration and apply ‘such of these principles as are relevant to the present circumstances, but with this qualification. It is to be borne in mind that this is not an ordinary civil action but rather it constitutes professional disciplinary proceedings brought by the governing body against a legal practitioner before a tribunal subject to its own statutory procedures’ including, as per section 114 of the Legal Practitioners Act 2009, that ‘The Commission is not bound by formal rules of evidence ... and the Commission must act fairly in relation to the proceeding’.

6. The burden of proof to be applied

[88] One final issue that I need to explain, before I commence examining each of the four counts in detail, is the burden of proof that I shall be applying.

(i) The civil standard varied according to the gravity of the act to be proved

[89] I note that 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> , I discussed in some detail the burden of proof in proceedings before the Commission. In particular, I explained at [115]-[116]:

‘115 ... In Chief Registrar v Sheik Hussein Shah (2010)(Unreported, ILSC Case No.024 of 2010, 30 September 2010) (PacLII: [2010] FJILSC 24, <http://www.paclii.org/fj/cases/FJILSC/2010/24.html> ), Commissioner Connors, after reviewing the standard that has been applied to disciplinary proceedings in various common law jurisdictions, concluded at [11] that the burden of proof to be applied by the Independent Legal Services Commission in Fiji was to be as follows:

‘...the appropriate standard of proof to be applied is the civil standard varied according to the gravity of the act to be proved, that is the approach adopted in amongst other places, Australia, New Zealand and Hong Kong.’

[116] Accordingly, I have adopted the same standard as set out by Commissioner Connors in Sheik Hussein Shah (2010), and to which Justice Madigan referred to in both Haroon Ali Shah (2012) (citing A Solicitor v Law Society of Hong Kong) and Marawai and Chaudhry(2012) as ‘the preponderance of probabilities’, (the latter judgment being affirmed by the Supreme Court earlier this year). Madigan J also applied this standard in Narayan (2014).’

[My emphasis]

(ii) The tests in Bolam and Midland Bank - what the reasonably competent practitioner would do having regard to the standards normally adopted in their profession

[90] In addition, in Kapadia, I noted at [91]-[92] the the tests set out in Bolam v Friern Hospital Management Committee [1957] 1 WLR 583; [1957] 2 All ER 118 and Midland Bank Trust Ltd v Hett Stubbs and Kemp [1979] Ch 384. In the latter (as I noted at [93]) Oliver J in the Chancery Division stated at 402(H)-403(A-B):

‘Now no doubt the duties owed by a solicitor to his client are high, in the sense that he holds himself out as practicing a highly skilled and exacting profession, but I think that the court must beware of imposing upon solicitors—or upon professional men in other spheres—duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client's general interests, take it upon himself to pursue a line of inquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases such as Duchess of Argyll v. Beuselinck[1972] 2 Lloyd's Rep. 172; Griffiths v. Evans [1953] 1 W.L.R. 1424 and Hall v. Meyrick[1957] 2 Q.B. 455 demonstrate that the duty is directly related to the confines of the retainer.

[My emphasis]

(iii) The test applied in Shah

[91] Also, in Kapadia, I concluded at [118], subpara (15):

‘Finally, in relation to the burden of proof, I have noted the statements of Dixon J in both Briginshaw and Wright as well as that of Lord Denning in Blyth. That is, ‘the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue’ and ‘In proportion as the offence is grave, so ought the proof to be clear.’ I am of the view that this was encapsulated by Commissioner Connors in his judgment in Shah (2010), that is, ‘the civil standard varied according to the gravity of the act to be proved’. I am also of the view that a similar standard (described as ‘the preponderance of probabilities’) was applied by Justice Madigan in Shah (2010) (citing A Solicitor v Law Society of Hong Kong), Marawai and Chaudhry (the latter affirmed by the Supreme Court) and in Narayan.’

(iv) Conclusion

[92] Therefore, the ‘standard of proof that has been applied to disciplinary proceedings’ (and to which I will be applying to the four counts in this matter) is thus: ‘the civil standard [that is, the balance of probabilities] varied according to the gravity of the act to be proved’. In addition, I have noted the tests set out in Bolam (supra) and Midland Bank Trust Ltd (supra). In particular, the test set out Oliver J in Midland Bank Trust Ltd, that is, ‘The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession’, and ‘that the duty is directly related to the confines of the retainer’.

[93] I note that I raised the above with Counsel at the clarification hearing on 25^th April 2018 and they agreed with what I have set out above as that which I should be applying in this matter.

7. Count 1

[94] Of the four counts, Count 1 is the most complex. In reaching a decision as to whether the charge is made out, I have divided it into 16 parts as follows:

(1) The allegation;

(2) The submissions on the alleged conflict;

(3) When did the alleged conflict arise?

(4) Was there a duty to the beneficiary?

(5) No application to protect the intended beneficiary;

(6) Conflict not raised by Prem Narayan;

(7) Section 6A Wills Act and possible conflict;

(8) Other potential claims;

(9) Distribution of Estate;

(10) Other proceedings involving the Estate;

(11) Section 18 Wills Act not raised;

(12) The joint application for Letters of Administration and the alleged withdrawal of instructions;

(13) The sole application for Letters of Administration on behalf of the widow;

(14) Analysis of Count 1;

(15) Addition to Count 1 – the new conflict;

(16) Overall conclusion on Count 1.

(1) The allegation

[95] Count 1 alleges that the Respondent has committed an act of ‘Professional Misconduct: Contrary to Section 82(1)(a) of the Legal Practitioners Decree 2009’, which states:

‘Professional Misconduct

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’.

[My emphasis]

[96] The particulars accompanying Count 1, in summary, state:

‘SURUJ PRASAD SHARMA ... acted against the interests of Maya Wati Prakash by acting for Pranita Devi ... in taking out Letters of Administration ... for the Estate of Salen Prakash Maharaj, when earlier ... Dipka Mala had prepared a Will for Salen Prakash Maharaj dated 22^nd December 2006 under which Maya Wati Prakash ... was the beneficiary’.

[97] Counsel for the Applicant Chief Registrar in his ‘Prosecution Case Statement’ filed on 18^th November 2016 (following my ruling of 21^st September 2016 dismissing the Respondent’s strike-out application), stated the following in relation to Count 1 at paras [3]-[4]:

‘3. Count one alleges that a Will dated 22^nd December, 2006 of Salen Prakash Maharaj was prepared in the Respondent’s firm by Ms. Dipka Mala. Ms. Maya Wati, complainant in Application 12 of 2015 was the beneficiary under the Will dated 22^nd of December 2006. The Respondent’s firm later acted for Pranita Devi, wife of Salen Prakash Maharaj and complainant in Application 15 of 2015, in taking out letters of administration.

The Applicant submits that Respondent as the principal of the firm is liable for the act of his employees.

4. The Applicant also relies on Section 111(3)(c) of the Legal Practitioners Decree 2009. It stipulates that the Registrar could commence proceedings before the Commission against the legal practitioner or one or more partners of the law firm in case of an allegation of professional misconduct or unsatisfactory professional conduct of an employee of a legal practitioner or law firm.’

[My emphasis]

(2) The submissions on the alleged conflict

[98] The written submissions of Counsel for the Applicant Chief Registrar filed following the defended hearing of this matter, stated the following in relation to Count 1 (‘Closing Submissions’, 8^th January 2018, at paras [488]-[491]):

‘488. In relation to Count 1, the Applicant submits that the charge is made out as the Respondent’s law firm had prepared the Will of SPM wherein the sole beneficiary was the testator’s mother, MWP. Upon the death of SPM, the estate’s interest would only be protected if the estate is distributed as per the Testator’s last Will and Testament. The Testator’s last Will and Testament shows his intention of how he or she wants the Estate to be administered.

489. In the current situation, the Respondent in his evidence stated that he had knowledge of a Will of SPM being made at his law firm and although disputed by other witnesses, the Respondent stated that they had an electronic copy of the Will. By his own evidence, that there was an unsigned copy of the Will, the Respondent had knowledge of the deceased’s intention of how he wanted his estate to be administered. Having the said knowledge, the Respondent went ahead and acted against that interest by acting for the widow and extracting LA on her behalf. This action of the Respondent was against the interest of the estate as well as against MWP’s interest whom the Respondent owed a duty.

490. In the case of Chaudhry v Chief Registrar [2016] FJSC 3; CBV0001.2015 (20 April 2016), the Supreme Court at paragraph 42 of its judgment stated:

“It is not easy to define the phrase "conflict of interest", and I shall not attempt to do so in this judgment. In a general sense, a conflict is a struggle between opposing forces, but when referring to a legal practitioner's conflict of interest, it may be articulated negatively, as a prohibition to participating in such clashes of opposing interests. Four major types of conflicts of interest may be identified in the context of a legal practice:
(a) Conflicts between the practitioner's personal interests and the interests of the client;

(b) Conflicts between the interests of two or more clients the practitioner is currently representing;

(c) Conflicts between the client's interests and those of third parties to whom the practitioner owes obligations; and

(d) Conflicts between the practitioner's duties to the present client and his continuing duties to a former client.”

491. It is respectfully submitted that the Respondent owed a duty to MWP and by acting against her interest acted in a conflicting situation.’

[My emphasis]

[99] Counsel for the Respondent specifically noted in their written submissions that ‘the Chief Registrar refers to conflict of interest in paragraphs 489 and 490 of his submissions’ and responded (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, pp. 27-28, at paras [47]-[51]) as follows:

(1) Chaudhry is not relevant, indeed, it was where the legal practitioner ‘faced an allegation under s. 82(1)(b) of the Legal Practitioners Decree 2009’ (not a fit and proper person to engage in legal practice) where he ‘had acted against the interests of his former client in the same matter’;

(2) ‘the alleged conflict was non-existent’ in the present matter;

(3) There ‘were pressing matters which required the estate to be administered as quickly as possible. Letters of Administration was the only solution’;

(4) The Respondent ‘by taking out the Letters of Administration [had] not in any way defeated the rights of MWP in respect of her claim’ and ‘interest in the Koronivia property’;

(5) ‘there was already a Caveat over the Title [to the Koronivia property] which would have precluded PD to have taken any action towards sale of the property to defeat the rights of MWP’.

[100] Counsel for the Respondent then submitted (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, page 28, paras [52]-[53]) that to show there was a conflict, it would have to be proven:

(1) That the Will executed on 22^nd December 2006 still existed (or a signed version of it) ‘in which everything was given to MWP’ – ‘(in fact there was evidence that it couldn’t be located)’; and

(2) ‘There had not been any subsequent Will made to nullify the Will made on 22 December 2006’.

[101] Counsel for the Respondent further submitted (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, page 29, paras [55]-[60) that:

(1) ‘taking out Letters of Administration would not be acting in conflict but in actual fact adhering to the law which is in the absence of a Will’ is what was required;

(2) ‘any other lawyer ... would have taken an identical action’;

(3) Is the factual basis of what occurred a conflict as alleged by the Chief Registrar, that is, where ‘by virtue of making a Will in which MWP was the sole beneficiary and then proceeding to taking out Letters of Administration placed the Practitioner in a conflict of interest situation’?

(4) The ‘allegation fails to appreciate the reality’, that is, as no signed Will was in existence ‘unless Letters of Administration’ had been ‘taken out the administration affairs of the estate could not commence’.

[102] Counsel for the Respondent then turned to one of the questions that I raised in my ruling of 21^st September 2016 in Chief Registrar v Sharma (supra), at para [47], subpara (2)), that is, ‘Once the widow returned alone (without the testator’s mother) ... on 6^th January 2009, seeking to give instructions ... to act on the widow’s behalf to obtain a grant of Letters of Administration, should the First Respondent not have referred the widow to another law firm?’ Counsel for the Respondent answered (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, page 30, at paras [62]-[67]) thus:

‘62. Again, the question is why should the Practitioner not have acted? Was the signed Will found by then? - No.

63. Then what circumstances places the Practitioner in a conflict? As it was at that stage, there was no signed Will which made MWP a/the beneficiary of the Estate of SP.
64. What could be the interest of MWP that could possibly make the Practitioner act to MWP’s detriment? She was holding no interest at the time Letters of Administration was taken out as the signed will was not in the equation.
65. Taking out Letters of Administration was the only legal way to progress estate matters. This [is] exactly what was done by the Practitioner. Also, any other Practitioner would have done exactly the same as at that point.
66. Then on what basis the conflict arises? With respect any argument that there existed a conflict for the Practitioner and the firm to take out Letters of Administration is based on speculation that a signed [Will] would be found in the future and that it was the last Will that was made by SP.
67. The point must be made that SP on his own volition decided to take his signed Will with him and as at 15^th December 2008 or 6^th January 2009 the Practitioner did not have possession of a signed Will and had no knowledge about the whereabouts of a signed Will. At that point a reasonable and prudent solicitor would be guided by his clients as to whether a signed Will had been found. If a signed Will could not be located anywhere then a reasonable and prudent solicitor would have every right to believe that even though a Will may have been made by the Testator that will was either lost or destroyed. That solicitor would then act on such instructions going forward.’

[My emphasis]

[103] Counsel for the Applicant Chief Registrar replied to the above submissions (‘Applicant’s Submissions in reply’, 20^th February 2018, page 2, at paras [7]-[8]) that:

‘7. The Applicant relies on his submissions filed on 8^th January 2008 and in particular to paragraphs 490 and 491. The Applicant submits that the practitioner ought not to have pursued the application for Letters of Administration when he was fully aware that his firm had been engaged in the preparation of the deceased’s Will under which the sole beneficiary was MWP whereas LA was issued to Pranita Devi which was against the interests of the Estate of SPM.

8. The evidence of MWP is clear and has not been refuted on the issue that she was informed by the Respondent that PD would get the property because she was the widow of SPM and that she was further informed by the Respondent that he would only represent PD. Hence, she hired the services of Ms. Narayan.’

[My emphasis]

[104] At the clarification hearing held on 25^th April 2018, I asked Counsel for the Applicant Chief Registrar to explain paras [488]-[491] of his ‘Closing Submissions’ dated 8^th January 2018, cited earlier above, that is:

(1) Upon what basis was he submitting ‘that the charge is made out’?

(2) What was the estate’s interest?

(3) What responsibility did the Respondent have either contractually as the retainer was finished on 22^nd December 2006 or as a duty of care?

[105] The oral submissions made by Counsel for the Applicant Chief Registrar were:

(1) The Applicant relies upon the judgment of the High Court of Australia in

Badenach v Calvert (2016) 90 ALJR 610; [2016] HCA 18 (11 May 2016); AustLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2016/18.html> , (a copy of which I had previously provided to Counsel for each party at the Call Over on 23^rd April 2018), that is, it was the intention of the testator that his mother, Maya Wati Prakash, be the sole beneficiary. After Salen’s death, when Maya returned to the Respondent’s law firm, Maya was advised by the staff that there was no Will and there was no mention of an electronic copy of the Will;

(2) The estate’s interest was that Maya would be the beneficiary;

(3) The duty of care was to Maya as the beneficiary.

[106] The oral submissions in response by Counsel for the Respondent were:

(1) The retainer on 22^nd December 2006 was to Salen Prakash Maharaj. The scope of the retainer that was given to Dipka Mala was that there was to be one copy of the Will giving everything to Maya Wati Prakash. It was a validly drawn and executed Will. There were no irregularities;

(2) When Salen Prakash Maharaj took his Will with him on 22^nd December 2006 that was the end of his retainer with the law firm, Patel Sharma Lawyers;

(3) To understand the duty of care, one has to look at what was the scope of the retainer. In terms of tortious liability, Justice Gageler’s judgment in Badenach (supra) makes it clear. His Honour cites Hill v Van Erp (1997) 188 CLR 159; (1997) 142 ALR 687; (1997) 71 ALJR 487; [1997] HCA 9 (18 March 1997); AustLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1997/9.html> , where the negligence of the solicitor was the failure to ensure that the Will was properly executed. It was a limited duty of care to the actions of the solicitor. By contrast, in the present case, we have an application for a grant of Letters of Administration. The duty of care, however, did not extend at all beyond Salen’s instructions. It would have been a “Donoghue v Stevenson duty of care scenario” in relation to Salen’s Will only if the solicitor (or his firm) in drawing the Will had negligently carried that out. (See Donoghue v Stevenson (1932) AC 562; BAILII: [1932] UKHL 100, <http://www.bailii.org/uk/cases/UKHL/1932/100.html> .) There was a contractual duty to prepare a Will. If it had been carried out negligently, then a Hill v Van Erp (supra) situation would have arisen. This did not occur, the Will was validly drawn and executed;

(4) There was later, a change in circumstances. By the time Maya Wati Prakash came back to the Respondent’s firm, that was a second retainer. Maya Wati Prakash sought to apply for a joint grant of Letters of Administration because the signed will could not be located. This was a new retainer.

[107] Counsel for the Applicant Chief Registrar did not seek to make oral submissions in reply to the above and stood by his written submissions.

(3) When did the alleged conflict arise?

[108] After having read the previous written submissions filed by Counsel for the Applicant Chief Registrar, I was not clear whether his position was that the conflict arose when Maya Wati Prakash was allegedly advised by the Respondent (on some unknown date) that he would only represent the widow, Pranita Devi, after the parties had previously signed joint instructions to make an application to the High Court for a grant of joint Letters of Administration or whether the conflict was present even when the Respondent agreed to make a joint application on 15^th December 2009.

[109] Thus, I asked Counsel for the Applicant Chief Registrar at the clarification hearing on 25^th April 2018 to clarify:

(1) When was Maya Wati Prakash allegedly advised by the Respondent (on some unknown date) that he would only represent the widow, Pranita Devi?

(2) Whether this alleged advice (by the Respondent to Maya Wati Prakash) was ever put to Dipka Mala and/or Suruj Sharma during cross-examination by Counsel for the Applicant Chief Registrar?

(3) If Maya Wati Prakash was allegedly advised by the Respondent (on some unknown date) after the parties had previously signed joint instructions, that he would only represent the widow, Pranita Devi, was this when the alleged conflict arose, or whether the conflict was present even when the Respondent agreed to make a joint application on 15^th December 2009?

[110] The oral submissions of Counsel for the Applicant Chief Registrar were:

(1) His recording of the evidence of Maya Wati Prakash was that she had said that the Respondent had informed her that he would only represent the widow;

(2) He could not recall whether he had put this allegation to Dipka Mala and/or Suruj Sharma;

(3) The conflict arose sometime in January 2009 after the Respondent agreed on 6^th January 2009 to act solely for the widow in taking out a grant of Letters of Administration.

[111] The oral submissions in response by Counsel for the Respondent were:

(1) It is factually incorrect that Maya Wati Prakash had been informed by the Respondent that he would only represent the widow. What the Respondent had advised the parties when they came back on 15^th December 2008 was that there was no signed Will and the parties agreed to apply for Letters of Administration in joint names;

(2) The allegation that the Respondent had informed Maya Wati Prakash that he would only represent the widow was not put to Dipka Mala and/or Suruj Sharma;

(3) The facts are clear that Pranita Devi and Maya Wati Prakash gave joint instructions on 15^th December 2008. This was the second retainer.

[112] The oral submissions of Counsel for the Applicant Chief Registrar in reply were:

(1) His notes were that Maya Wati Prakash had said that the Respondent had informed her that he would only represent the widow;

(2) He could not confirm whether he had put this allegation to Dipka Mala and/or Suruj Sharma.

(3) The conflict arose when the Respondent agreed as from 6^th January 2009 to act solely for the widow in taking out a grant for Letters of Administration.

[113] I note that the evidence-in-chief of Maya Wati Prakash on 5^th December 2016 on this issue was as follows:

“Mr. Chand: Now, Ms. Prakash you had said that somebody had called and informed you about an advertisement in the newspaper and then you daughter had actually explained about that. Now what happened next after you became aware of that advertisement?

Interpreter: Then we came back to Suruj Sharma’s office then we asked him why everything was under the name of the daughter-in-law and he told us that/ he told me that it was under her name because she was the widow.

Mr. Chand: Now, Ms Prakash would you be able to say/state the date you went to Mr. Sharma’s office?

Interpreter: I don’t remember.

Mr. Chand: Would you be able to remember the year at least?

Interpreter: Don’t remember.

Mr. Chand: Now, what happened after Mr. Sharma told you that ... What else was discussed during this meeting apart from the fact that she was a widow and that’s the reason the advertisement was in her name, what else was discussed apart from that?

Interpreter: And then I came and asked Mr. Sharma to take my case but he said “I can’t take your case now; I will only take might be your daughter-in-law’s case”.

Mr. Chand: Now, did Mr. Sharma give any reason as to why he won’t act for you?

Interpreter: He said he could only take one person’s case and that’s the daughter-in-law’s.

Mr. Chand: Now Ms. Prakash, what happened thereafter?

Interpreter: After that I hired another lawyer Mr. Prem Narayan.

Ms Maya Wati: Ms Prem Narayan

Interpreter: Ms Prem Narayan, my apologies”

[My emphasis]

[114] I also note that in cross-examination, it was put by Counsel for the Respondent to Maya Wati Prakash a version of events (that was later to be the evidence of Dipka Mala and to a lesser extent Suruj Sharma), that is, that Maya Wati Prakash returned on 15^th December 2008 and uplifted the documents and that was the end of her instructions to Patel Sharma Lawyers. Maya Wati Prakash’s evidence in response was that she denied this occurred and then said that “I don’t remember”, even though her signature was next to the documents that were allegedly uplifted, as the following excerpt from the transcript reveals:

“Mr. Sharma: Is it not correct that you had a change of heart later in the day, and you came back and picked up the original document which were to be used to apply for Letters of Administration from the firm of Patel Sharma?

Interpreter: No I did not come back.

Mr. Sharma: Okay, well my instructions are that you did, that you changed your mind and you came back to Patel Sharma and picked up the documents and that’s why if you look at the middle of the document, your signature appears again and it says – uplifted the following documents.

Commissioner: You might just show her interpreter, in the middle on the particulars and brief under that box.

...

Interpreter: I don’t remember.

Commissioner: So, you don’t remember if you ever came back and got, I presume here the birth certificate, marriage certificate, I can’t read the other certificate

Interpreter: Death certificate.

Commissioner: Death Certificate, yeah, you can’t remember this?

Ms. Maya Wati: Na.

Interpreter: No she doesn’t.”

[My emphasis]

[115] It was also put in cross-examination to Maya Wati Prakash that by the time she alleged that she came back to Patel Sharma (after the advertisement appeared in January 2009) she was already instructing Prem Narayan, to which her response was as follows:

“Interpreter: I did not meet Prem Narayan, when the Letters of Administration came out. I went to Mr Suruj Sharma and he told me that he will not take my case and will only take Pranita’s case.

Interpreter: and then after that then I had gone to Prem Narayan.

Commissioner: And who was the one ... who did you go with, Rosie or you went by yourself?

Interpreter: To Prem Narayan I went with Ireen.

Commissioner: Okay.”

[My emphasis]

[116] Dipka Mala’s evidence was also that Maya Wati Prakash returned on 15^th December 2008 with another person (other than her daughter Subhasni) and uplifted the documents from Dipka Mala. It was also the evidence of Suruj Sharma that as he had been so informed by Dipka Mala that the documents had been uplifted, he considered the matter at an end on 15^th December 2008.

[117] I note that it was never put by Counsel for the Applicant to Dipka Mala that her recollection of what occurred on 15^th December 2008 was incorrect and that, instead, Maya Wati Prakash had returned to the office of Patel Sharma Lawyers after the advertisement had appeared in January 2009 (notifying about the application for a grant of Letters of Administration) and that Maya Wati Prakash had then been informed by Suruj Sharma with words to the effect of “I cannot take your case now; I will only take your daughter-in-law’s case” and that “He said he could only take one person’s case and that is the daughter-in-law’s”.

[118] Similarly, I note that it was also never put by Counsel for the Applicant to the Respondent that his recollection was incorrect and that Maya Wati Prakash had returned to the office of Patel Sharma Lawyers not on the afternoon of 15^th December 2008 but, allegedly, after the advertisement had appeared in January 2009 notifying about the application for a grant of Letters of Administration and that Maya Wati Prakash had been informed by the Respondent that he could not take her case and would that he would only represent the widow, Pranita Devi.

[119] On the question of conflict of interest, on 25^th April 2008 Counsel for the Respondent made oral submissions that there were three retainers (which was also set out in the joint written synopsis of the Respondent’s Counsel tendered at the end of the clarification hearing on 25^th April 2018 at paras [28]-[40]), as follows:

‘28. The first retainer ended on 22^nd December 2006. The client in that retainer was SPM.

29. The second retainer arose on 15^th December 2008 when both PD and MWP jointly instructed the Firm to apply for LA. The clients in that retainer were MWP and PD. The scope of that retainer was to apply for LA in the joint names of MWP and PD.
30. The second retainer came to an end when MWP on 15^th December 2008 came back and collected her original documents as her daughter had arranged for her to get independent legal advice.

...

32. The third retainer arose on 6^th January 2009 when PD solely instructed the Firm to apply for LA.

...

34. This retainer came to end when the LA was granted and the original LA was provided to PD.
35. The LA was issued by the High Court on 16 February 2009 ...
36. In evidence it was confirmed by PD that soon after the LA was issued by the High Court and the original uplifted by the Respondent’s firm from High Court Registry, she was advised by the Respondent’s firm to come and collect the original Grant of LA from the Respondent’s office. PD confirmed in evidence collecting the original Grant upon payment of $700.00 as legal fees.
37. PD further confirmed in evidence that she did not seek any advice from Respondent on how the distribution of assets are to be carried out or any general matters in relation to administration of Estate of SPM. PD further confirmed that since no advice was sought by her the Respondent did not provide her any further legal services.
38. Therefore, the third retainer which was to take out LA for the Estate of SPM came to an end when it was granted by the High Court on 16 February 2009 and the original Grant was provided to the Administratrix of the Estate (PD) as granted by the High Court.
39. The Respondent was asked to convene a mediation to discuss settlement between the two parties which he did on 28^th March 2009 but there was no agreement reached between the parties. This was not a retainer in any sense since the Respondent was not asked to undertake any legal work or provide legal advice. The Respondent gave very clear evidence that when the mediation meeting was held in his office, he was not acting for any party. MWP was represented by PN and PD was accompanied by her adviser and uncle Mr Jaywant [sic] Pratap. All the witnesses – MWP, PN, and PD had in their evidence stated the same concerning the role played by the Respondent in as far as this mediation meeting was concerned.
40. The Firm and the Respondent had no further involvement.’

[My emphasis]

[120] Leading Counsel for the Respondent also cited, in support of his oral submissions, the judgment of Justice Gageler in Badenach (supra) and the importance of the scope of each retainer.

[121] The oral submissions of Counsel for the Applicant Chief Registrar in reply on 25^th April 2018 were:

(1) The Respondent should have refrained from applying for the grant of Letters of Administration as he was already tainted; and

(2) Professional misconduct should not be limited – it includes any form of conflict of interest.

[122] I will return and make findings in relation to the evidence of Maya Wati Prakash and whether the alleged advice that the Respondent gave Maya Wati Prakash sometime in January 2009 ever occurred. First, however, the issue needs to be addressed as to whether the Respondent owed a duty of care to the beneficiary, Maya Wati Prakash.

(4) Was there a duty to the beneficiary?

[123] As I considered the evidence, together with the written submissions filed, prior to relisting it for a clarification hearing on 25^th April 2018, I wondered to myself:

(1) Whether this was a matter where the Commission was the appropriate forum? That is, was this really a matter about professional misconduct or instead about alleged negligence with the remedy being that the beneficiary should have been filing an action in the High Court proving negligence and seeking damages?

(2) Should the lawyer or lawyers involved have considered the implications of there being in existence an unsigned copy of a Will and thus, arguably, evidence of the testator’s intention pursuant 6A of the Wills Act? I noted, however, that this had not formed part of the case of Counsel for the Applicant either in the particulars in Count 1, the prosecution case statement or as part of his two sets of closing written submissions;

(3) What is the law of negligence in relation to when a duty is owed to a beneficiary?

(4) Further, there is also the question of causation. That is, even if there was a duty owed, what damage was suffered and what was the cause of that damage?

(i) The appropriate forum?

[124] When I raised the question of forum at the clarification hearing on 25^th April 2018, the oral submission of Counsel for the Applicant Chief Registrar was that the Legal Practitioners Act 2009 does not say that a complainant has to have exhausted all other avenues before seeking a remedy before the Commission.

[125] Leading Counsel for the Respondent’s oral submissions in response were that:

(1) Maya Wati Prakash went and saw the Legal Practitioners Unit on 10^th March 2009. Any tortious claim was still alive at that time;

(2) A mediation was held in June 2010 and then four years passed and nothing occurred until two charges were laid and withdrawn in 2014 and then the present proceedings were commenced before the Commission in late 2015;

(3) Arguably, six years passed and there is an argument as to who should have advised the complainant as to her remedies (other than the Respondent).

[126] On the issue of forum, I agree with the oral submission of Counsel for the Applicant Chief Registrar. That is, the Legal Practitioners Act 2009 does not say that a complainant has to have exhausted all other avenues before seeking a remedy before the Commission. I also agree, however, with one of the oral submissions of Counsel for the Respondent, that is, there is an argument as to who should have advised the complainant as to her remedies (other than the Respondent). It is, however, not an issue for me to resolve in this judgment. Hence, I have decided to put it to one side.

(ii) The law of negligence when a duty is owed to a beneficiary

[127] In relation to the issue as to whether there was a duty owed to the beneficiary by the Respondent in his firm having drafted Salen’s will, I am mindful of the development of negligence law in this area in such cases as Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15 (8 April 1988); AustLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/1988/15.html> Hill v Van Erp (supra); and, more recently, Badenach (supra).

[128] In Hawkins, a remedy was allowed against the testator's solicitor where a Will was left in the safe custody of a law firm, who then failed to advise the executor of the death of the testator for some six years causing loss to the Estate (including deterioration of the property, unpaid rent and a penalty for late lodgement of a return for death duty). In Van Erp, a remedy was also allowed against the testator's solicitor to an intended but disappointed beneficiary where there was a failure by the solicitor to ensure that the spouse of the beneficiary did not witness the execution of the Will and thus made the disposition null and void. I note that a similar conclusion was reached 17 years earlier by Sir Robert Megarry V-C in Ross v Caunters [1980] Ch 297. As David Baker highlighted in an article published in the Adelaide Law Review in 2000, ‘Decisions of the High Court of Australia and the House of Lords have now established the existence of a duty of care binding the solicitor in this situation, and the conclusion of a decision in another jurisdiction [the New Zealand Court of Appeal in Gartside] has been the same’, citing Van Erp, White v Jones [I995] 1 2 AC 207 (BAILII: <http://www.bailii.org/uk/cases/UKHL/1995/5.html> ) and Gartside v Sheffield, Young & Ellis [1983] NZCA 37; [1983] 1 NZLR 37 (NZLII: <http://www.nzlii.org/nz/cases/NZCA/1983/37.html> ). (See David Baker, ‘Solicitors; Liability for failure of an Inter Vivos gift’, (2000) 22 Adelaide Law Review, pp. 51-62; AustLII: <http://www.austlii.edu.au/au/journals/AdelLawRw/2000/3.pdf> .) Brennan CJ in Van Erp also noted apart from the New Zealand Court of Appeal applying Ross v Caunters in Gartside, ‘in Canada and the United States the tendency has been to allow damages to an intended beneficiary deprived of a bequest by negligence in the preparation or execution of a will’.

[129] Thus, as Dr Reid Mortensen explained, when discussing ‘Solicitors' Will-Making Duties'’ in the Melbourne University Law Review in 2002, in light of the judgments in Hawkins and Van Erp:

‘There are a number of duties that arise only when the solicitor has been retained to hold the client’s will in safe custody, and which arise on the client’s death.

... the duties arising under any retainer depend on the circumstances. The custodial duties will arise when the client asks that the solicitors hold the will in their safe-custody facility, and the solicitors agree to do so.’

[My emphasis]

(See Mortensen, Reid --- ‘Solicitors' Will-Making Duties'’ [2002] MelbULawRw 4; (2002) 26(1) Melbourne University Law Review 60; AustLII: <http://classic.austlii.edu.au/au/journals/MelbULawRw/2002/4.html> .)

[130] In the abstract to his article, Reid explained that ‘solicitors’ will-making duties ... spring from a clearer articulation of the solicitor’s professional role as caretaker of clients’ testamentary intentions’. He was also critical of the decision in Queensland Art Gallery Board of Trustees v Henderson Trout (a firm) [2000] QCA 93 (Unreported, No. 1132 of 1998, Pincus and Thomas JJA and Byrne J, 24 March 2000) (delivered ex tempore) ‘where duties to one who merely hoped to be a beneficiary were recognised’ by the Queensland Court of Appeal. That judgment, however, was before the decision of the High Court of Australia in Badenach.

[131] In Badenach, the High Court of Australia unanimously refused a remedy against the testator's solicitor where, although the testator bequeathed that his stepson be the sole beneficiary of his estate, a successful claim was brought by the testator's daughter from a previous relationship and the beneficiary then unsuccessfully argued that the testator's solicitor had failed to advise the testator of possible steps to avoid exposing the testator's estate to a claim under the Testator's Family Maintenance Act 1912 (Tas).

[132] I note that the majority judgment in Badenach (French CJ, Kiefel and Keane JJ) concluded at [42]-[49]:

‘42. Whatever be the position with respect to the duty which was owed to the client [the testator], it could not be one which extended to the respondent [the beneficiary] by analogy with Hill v Van Erp.

43. The duty recognised in Hill v Van Erp arose in circumstances where the interests of the testatrix and the intended beneficiary were aligned and where final testamentary instructions had been given to the solicitor. The solicitor's obligation was limited and well defined.
44. This case might, at least on a first impression, be thought to bear some similarity to Hill v Van Erp. The client's initial instructions disclosed an intention that the respondent receive the client's property interests under his will. The respondent has the status of an intended beneficiary. But there the similarity ends.
45. The duty for which the respondent contends is not the same as the more limited duty which was recognised in Hill v Van Erp, to give effect to a testamentary intention. It is one, more generally, to give advice as to the client's property interests and future estate.
46. The duty for which the respondent contends cannot be said to be owed to the respondent as an intended beneficiary. That is apparent from the nature of the advices and the point at which they should have been given. The advices which the respondent says should have been given in discharge of that duty would have rendered it unnecessary for the client to name the respondent as a beneficiary in his will.
47. The interests of the client and the respondent as parties to the proposed inter vivos transactions are not the same as those of a testator and intended beneficiary with respect to the execution of final testamentary intentions. The advices and warnings which the solicitor would need to give about such transactions would reflect that their interests are not coincident. For instance, at any point prior to completion of the creation of the joint tenancies or the gift, the client could change his mind despite any promise having been made to the respondent. This is not a circumstance which could arise where a solicitor was merely carrying into effect a testator's intentions as stated in his or her final will.
48. Nor could there be any question of the solicitor advising the respondent about all the matters relevant to his interests, such as the risk inherent in a joint tenancy of predeceasing the client. The solicitor's duty is one protective of the client and his interests alone.
49. So understood, the duty owed by the solicitor to the client is not different from that to which Brennan CJ referred in Hill v Van Erp. It is the duty generally understood to be owed by a solicitor solely to his or her client. Hill v Van Erp recognised circumstances in which the duty of care to a third party could and did arise. The circumstances which supported the existence of that duty of care are not present in this case.’

[My emphasis]

[133] Also in Badenach, Gageler J stated at [59] and [62]:

‘[59] The solicitor's duty of care is instead limited to a person whom the testator actually intends to benefit from the will and is confined to requiring the solicitor to take reasonable care to benefit that person in the manner and to the extent identified in the testator's instructions. The testator's instructions are critical. The existence of those instructions compels the solicitor to act for the benefit of the intended beneficiary to the extent necessary to give effect to them.

...

[62] Unless there is some further factor affecting the relationship of the parties, however, a solicitor retained to prepare a will can have no duty to a person whom the testator intends to benefit other than to act in the manner and to the extent identified in the testator's instructions. That is because, outside the scope of the testator's instructions: there can be no requirement for the solicitor to act for the benefit of the person; there can be no damage to the person if the solicitor fails to act for that person's benefit; there can be no relevant vulnerability on the part of the person to the action or inaction of the solicitor; and there can be no necessary coincidence between the person's interests and those of the client. Where the testator's instructions stop, so does the solicitor's duty of care to the intended beneficiary.’

[My emphasis]

[134] Thus, my question to both Counsel at the clarification hearing on 25^th April 2018, was whether they had any oral submissions to make as to the applicability or not of Badenach (and the duty of care owed to a beneficiary) to the present proceedings? In particular, I highlighted the above three factors noted by Justice Gageler in Badenach, that is:

(1) ‘The testator's instructions are critical’ (at [59]);

(2) ‘outside the scope of the testator's instructions: there can be no requirement for the solicitor to act for the benefit of the person’ (at [62]); and

(3) ‘Where the testator's instructions stop, so does the solicitor's duty of care to the intended beneficiary’ (at [62]).

[135] The oral submissions of Counsel for the Respondent were:

(1) In relation to the ‘testator's instructions’, the full scope of the retainer was set out in the instructions that Salen gave to Dipka Mala, that is -

(i) One Will;

(ii) No mention about a wife or anyone else; and

(iii) He was taking his Will with him;

(2) As for having to act for the benefit of the beneficiary, Counsel submitted -

“The contractual duty to the testator as a client is to simply obey the instructions given by the testator. Any relationship or to an intended beneficiary, is to actually carry out the instructions of the testator ... if he says ‘I want you to make a valid Will giving everything to mum’ ... That’s all the law firm was supposed to do. The only time that duty of care to an intended beneficiary becomes actionable, is ... If the Will for some reason, the instructions are not carried out properly. So, the Will is invalid, it’s negated, it’s null and void.”

[My emphasis]

(3) Where the testator’s instructions stopped was as soon as the solicitor had carried out the testator’s instructions, that was the end of the retainer and that was when the duty stopped.

[136] In addition, Counsel for the Respondent submitted:

(1) As the testator gave no instructions as to there being a wife, there was no requirement to provide advice to him as to the effect of section 3 and a potential claim by the widow pursuant to the Inheritance (Family Provision) Act 2004;

(2) Further, once Salen took his will with him on 22^nd December 2006 then that was the end of the retainer.

[137] Counsel for the Applicant Chief Registrar indicated that he did not wish to make oral submissions addressing each of the three issues highlighted from the judgment of Gageler J. Rather, Counsel sought to address the issue more generally, making the oral submission that there was a conflict when the testator passed away and the Respondent acted thereafter for the widow, Pranita Devi, against the beneficiary.

[138] On the issue of whether there was a duty owed to the beneficiary by the Respondent in his firm having drafted Salen’s will, I agree with the oral submissions of Leading Counsel for the Respondent, in accordance with the view expressed by the High Court of Australia in Badenach. That is, the testator’s instructions are critical. In the present case no custodial duties had arisen as the testator took his sole original Will with him and thus no executed copy was left in the custody of the law firm.

(iii) Causation

[139] I then raised at the clarification hearing on 25^th April 2018, the question of causation. That is, apart from the cases of Hawkins, Van Erp and Badenach each highlighting that the testator’s instructions are critical and the issue of whether custodial duties have arisen, there is also the question of causation, that is, even if there was a duty of care to the beneficiary, what damage was suffered and what was the cause of that damage?

[140] The oral submissions of Counsel for the Respondent were, in summary, as follows:

(1) If the law firm had drafted the Will negligently and, as a result, the beneficiary “lost out” (so to speak) on her claim to the estate, then the beneficiary would have a claim in negligence against the solicitor as this was not a properly drafted Will;

(2) Here, however, the Will was valid. The testator validly gave his estate to Maya Wati Prakash, as the beneficiary under his Will, so there is no claim in negligence;

(3) There was already a registered caveat over the property at Koronivia and the widow, Pranita Devi, never took steps to remove Maya Wati Prakash as the beneficiary from living on the property;

(4) Maya Wati Prakash had a claim for $62,000.00 as a creditor on the estate that was made by Prem Narayan on 27^th January 2009 on behalf of Subhasni Singh. Prem Narayan, however, did not pursue that claim. How can the Respondent then be liable for Prem Narayan’s non-action?

(5) Once the Will was found on 23^rd January 2009, Prem Narayan gave the Will to Nehla Baswaiya of Munro Leys, rather than depositing the Will with the Chief Registrar of the High Court ‘within 30 days’ as required by section 18 of the Wills Act;

(6) Further, instead of depositing the Will with the Chief Registrar of the High Court and allowing the Chief Registrar to then relist the grant of Letters of Administration, Prem Narayan instituted a court action wherein legal fees incurred of $1410, for which the Court awarded costs fixed summarily in the sum of $1,500.00. Prem Narayan, however, did not pursue costs;

(7) As for the widow, Pranita Devi, in the absence of the Will, she was entitled to a grant of Letters of Administration as per the law. She was responsible for administering the estate properly, that is, to pay debts or satisfy creditors, however, this she did not do; and

(8) When the Will was found and Prem Narayan sought to have the grant revoked, Pranita Devi was still entitled to a claim upon the estate pursuant to the Inheritance (Family Provision) Act 2004.

[141] Counsel for the Applicant Chief Registrar indicated that he did not wish to make any oral submissions on this issue. In his ‘Respondent’s Response’, however, subsequently filed on 4^th May 2018 (in reply to the Respondent’s written synopsis), Counsel for the Applicant Chief Registrar noted at para [1]: ‘The Applicant submits that the matter before the Commission does not involve an allegation of misconduct in relation to the making of the Will.’ Instead, Counsel noted that the Applicant’s case is ‘alleging conflict of interest’, something to which I will return.

[142] In relation to the present proceedings, I note that:

(1) The Testator’s instructions were only one Will was to be executed and he would take that one Will with him, which he did;

(2) The Testator assumed responsibility for the custodial duties of his Will, not the law firm of Patel Sharma Lawyers;

[143] On the issue of causation, the cause of the Will going missing must rest with the Testator who, if the evidence of Pranita Devi is to be believed, seems to have not even advised his wife that he had made a Will and, of those family members who knew that he had secretly made a Will allegedly behind his wife’s back (being his mother, Maya Wati Prakash and his sister, Subhasni Singh), they were not told where it was located – though Maya’s evidence was that it was at one time on a bookshelf in the family home at Koronivia. Obviously, such evidence is also limited by the fact, that I have not heard evidence from either Ireen Prasad (Salen’s other sister) or Hemant Kumar Singh (Salen’s brother-in-law). How any potential claimant in a negligence action could prove causation against the Respondent and his law firm in such circumstances is not for me to resolve.

(iv) A duty of care and section 6A of the Wills Act

[144] As I considered whether a duty of care was owed to the beneficiary, the only question that may have arisen for the Respondent (which I could see on these facts), was whether there was a duty upon him to have advised the beneficiary (Maya) as at 12^th December 2008 as to a possible action pursuant to section 6A of the Wills Act? If so, why was there such a duty?

[145] In relation to the applicability or not of section 6A of the Wills Act, I note that section 5 of the Wills (Amendment) Act 2004 (PacLII: <http://www.paclii.org/fj/legis/num_act/wa2004171/> ) amended the Wills Act (Cap. 59) by the insertion of section 6A as follows:

‘Section 6A inserted

5. The principle Act is amended by inserting after section 6 the following section-

"Court may declare a document to be a will

6A.-(1) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements under section 6, constitutes a will of the deceased person if the Court is satisfied that the deceased person intended the document to constitute his or her will.

(2) The Court may, in forming its view, have regard, in addition to the document, to any other evidence relating to the manner of execution or testamentary intentions of the deceased person, including evidence, whether admissible before or after the commencement of this section, of statements made by the deceased person.

(3) A party that seeks a declaration under this section has the onus of proof.".’

[My emphasis]

[146] This issue was raised previously in my interlocutory ruling of 21^st September 2016 at para [24] as follows:

‘... The Respondent further advised that if the parties could not find the original signed Will, then, in law, the only option available was to commence litigation in the High Court on that premise (presumably arguing that a copy of the draft unsigned Will downloaded from the Respondent firm’s computer was evidence of the Testator’s intention) or to apply for Letters of Administration. The parties were advised to go home and discuss how they wished to proceed.’

[My emphasis]

[147] As it had not been raised in the submissions of either Counsel, I asked both at the clarification hearing on 25^th April 2018 whether section 6A of the Wills Act was relevant to the present matter?

[148] According to the oral submissions of Counsel for the Respondent:

(1) Section 6A would not be applicable where there was only a computer printout of an unsigned Will;

(2) Instead, the section would be applicable in a scenario such as where, instead of two signatories, only one has signed to witness the Will and the testator had also clearly signed the document, or where “the testator signed but neither of the two witnesses have signed, but the testator has put his or her stamp on the ... signature of the document”;

(3) A court would want tangible evidence where you could verify the testator’s signature “Not something that could be just basically drafted overnight”;

(4) Section 6 sets out how a Will is to be executed and section 6A says ‘a document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in accordance with the formal requirements under section 6’, can be considered ‘if the Court is satisfied that the deceased person intended the document to constitute his or her will’. Those words are grammatically quite important because what it does say is that it is executed in some form, but it is in accordance with 6A. In the present case, it was not even executed. It was just an unsigned computer printout;

(5) It was never raised in evidence that there was a duty upon Mr. Suruj Sharma to raise section 6A with the widow and the beneficiary at the meeting on 15^th December 2008, as “it just doesn’t get there”, as ‘A document purporting to embody the testamentary intentions of a deceased person’ which a Court could so declare pursuant to section 6A;

(6) Also, “a computer document can be created overnight ... It can be touched up, it can be modified. So, the fact of the matter is a prudent, reasonable solicitor would not even go there, unless they have got something which they can actually take to the Court. And, this is why we saying that 6A doesn’t even arise in this case”;

(7) The professional position taken by the Respondent was that they could not have gone to the High Court and argued intention pursuant to section 6A because an unsigned computer print out “just doesn’t get there” and thus under the law, the only other option was to make an application by the widow for a grant of Letters of Administration.

[149] Counsel for the Applicant Chief Registrar indicated that he did not wish to make any oral submissions in relation to the relevance or not of section 6A of the Wills Act.

[150] I also note that in Badenach, according to French CJ, Kiefel and Keane JJ at [5]: ‘There was no evidence touching upon the question of what the client might have done had he been apprised of the possibility that a claim under the TFM Act might be made against his estate’. Similarly, in the present case, according to the evidence of Dipka Mala, the firm did not even know that there was a wife in 2006 when the Will was executed, let alone a widow until the conference with Maya and Subhasni on 12^th December 2008. Indeed, when the existence of a widow was mentioned on 12^th December 2008, the evidence of both Dipka Mala and Suruj Sharma was that Maya and Subhasni were advised that they had to go and get the widow to attend the firm with them as, under the law, the widow was the person who had to apply for Letters of Administration. Should Maya Wati Prakash have also been apprised on 12^th December 2008 of section 6A or when she returned with Pranita Devi on 15^th December 2008 and thus each party needed to obtain independent legal advice on to how to proceed? Counsel for the Applicant Chief Registrar did not raise this as an issue in his two sets of written submissions, his oral submissions on 25^th April 2018 or in his written Synopsis Reply of 4^th May 2018.

[151] On the issue of whether section 6A of the Wills Act was relevant to the present matter, I tend to agree with the oral submissions of Leading Counsel for the Respondent. That is, it was never the case of Counsel for the Applicant that there was a duty upon the Respondent to have raised section 6A with Maya as the beneficiary under the missing Will either at the conference on 12^th December 2008 solely with her and Subhasni and/or at the conference on 15^th December 2008 with Maya and Pranita. Further, there is great doubt that an unsigned computer print out would have been considered by a Court who would have wanted, instead, tangible evidence, that is, a document executed in some form. I do note that the only other option was to have made an application for a grant of Letters of Administration, which occurred.

[152] As, however, section 6A was not part of the case of Counsel for the Applicant Chief Registrar, it is not an issue for me to resolve in this judgment. Hence, I have decided to put it to one side.

(5) No application to protect intended beneficiary

[153] I also note that, apart from the initial proceedings being issued in 2009 by Prem Narayan on behalf of Maya Wati Prakash (which were eventually not pursued), there was no separate application made for a caveat to protect the interest of Maya Wati Prakash when the application for a grant of Letters of Administration was made in February 2009. Was this a matter for the Respondent or Prem Narayan?

[154] When I raised this at the clarification hearing on 25^th April 2018, the oral submissions of Counsel for the Respondent were, in summary, as follows:

(1) The Respondent applied on behalf of the widow, Pranita Devi, for a grant of Letters of Administration;

(2) Prem Narayan could have applied for a caveat on behalf of Maya Wati Prakash, but she did not so;

(3) The Respondent had already lodged a caveat in 2007 on behalf of Maya Wati Prakash that had been agreed to by the testator over the property in Koronivia. Thus, the testator was acknowledging Maya’s claim. Prem Narayan should have applied to the Registrar to have the interest of Maya in the property in Koronivia vested by a caveat as per the Succession, Probate and Administration Act.

[155] Counsel for the Applicant Chief Registrar indicated that he did not wish to make any oral submissions on this issue.

[156] On a preliminary view, there is force in the submission of Counsel for the Respondent that Prem Narayan should have applied to the Registrar to have the interest of Maya in the property in Koronivia vested by a caveat as per the Succession, Probate and Administration Act. As, however, the question of protecting the interest of Maya by a caveat as per the Succession, Probate and Administration Act was not part of the case of Counsel for the Applicant Chief Registrar, it is not an issue for me to resolve in this judgment. Hence, I have decided to put it to one side.

(6) Conflict not raised by Prem Narayan

[157] I note that Prem Narayan, in her letter of 27^th January 2009 to Patel Sharma Lawyers, did not question the right of Patel Sharma Lawyers to apply for Letters of Administration on behalf of the deceased's widow.

[158] When I raised this at the clarification hearing on 25^th April 2018, Counsel for the Respondent submitted that not only did Prem Narayan in her letter of 27^th January 2009 not raise the issue of a potential conflict, rather, Prem Narayan raised, on behalf of Subhasni Singh, (not Maya) a claim on the estate of $62,000.

[159] Counsel for the Applicant Chief Registrar, however, took a different view. His oral submissions were that Prem Narayan’s letter of 27^th January 2009 was significant as it was evidence that Subhasni Singh had given instructions of a claim upon the estate and thus there was a conflict for the Respondent in continuing to act, even if Prem Narayan had not raised it. Therefore, according to Counsel for the Applicant Chief Registrar, the Respondent should have made a “judgement call” when he received that letter and decided that he should not continue to act rather than relying upon an objection to be raised by Prem Narayan.

[160] Counsel for the Respondent’s oral submissions in reply were, in summary, as follows:

(1) The conflict of interest was also not raised at the conference held in Mr. Sharma’s office on 28^th March 2009 and Subhasni Singh was not present at the meeting (for whom the claim upon the estate had been made as per the letter from Prem Narayan of 27^th January 2009);

(2) The option was there for Prem Narayan to lodge on behalf of Maya Wati Prakash a caveat against the grant of Letters of Administration;

(3) In fact, Maya Wati Prakash was quite happy for the application for the grant of Letters of Administration, she had just wanted it to be a joint application;

(4) The instructions given by the widow to the Respondent on 6^th January 2009 to make an application for the grant of Letters of Administration for the widow was the third retainer;

(5) As for section 6A of the Wills Act, the parties had accepted by early 2009 that the Will executed on 22^nd December 2006 was not around. How could the Respondent be sure that the Will executed on 22^nd December 2006 was Salen’s only Will?

(6) As paragraph [62] of Justice Gageler’s judgment in Badenach makes clear ‘a solicitor retained to prepare a will can have no duty to a person whom the testator intends to benefit other than to act in the manner and to the extent identified in the testator's instructions’. That is, the scope of the duty to Maya was limited to make sure that the Will executed on 22^nd December 2006 was valid.

[161] It is clear that Prem Narayan in her letters of 27^th January and 26^th February 2009 never raised the issue of conflict generally. In particular, Prem Narayan never raised the issue of section 6A(1) of the Wills Act 2004 and that Patel Sharma Lawyers may have had a conflict acting on the instructions of the deceased's widow, Pranita Devi, when Patel Sharma Lawyers were also holding an unsigned document in their computer records ‘purporting to embody the testamentary intentions’ of Salen. That is, even though the unsigned document in the computer records of Patel Sharma Lawyers had ‘not been executed in accordance with the formal requirements under section 6’, Prem Narayan did not raise as to whether it could be argued before a Court that the unsigned document in the computer records of Patel Sharma Lawyers ‘constitutes’ a Will of Salen if a Court was to be ‘satisfied that the deceased person intended the document to constitute his Will’ (as per the exception set out in section 6A(1) of the Wills Act 2004).

[162] I can only conclude note that Prem Narayan, in her letters of 27^th January 2009 and 26^th February 2009 to Patel Sharma Lawyers did not raise the issue of conflict either generally or specifically in relation to a potential conflict pursuant to section 6A(1) of the Wills Act 2004 because she did not see any such conflict.

(7) Other potential claims

[163] I raised with Counsel appearing for each party at the clarification hearing on 25^th April 2018, whether there were any other potential claims that were relevant (in particular, the Inheritance (Family Provision) Act 2004), and how did this reconcile with the proceedings before the Commission and the argument of the Chief Registrar that the intention of the testator is paramount?

[164] According to the oral submissions of Counsel for the Respondent:

(1) There was a claim for the damage to Salen’s mini-van that seems to have been dealt with by Pranita Devi;

(2) There was a third party personal injury claim that was being made through Daniel Singh, lawyer;

(3) There was the transfer of Salen’s vehicle permit to Hemant, the husband of Subhasni Singh;

(4) In law, the widow having been granted the Letters of Administration had to account for what she had done;

(5) The widow also had a residual claim. She could have asked for part of the estate as a counter-claim in the High Court proceedings issued on behalf of Maya Wati Prakash seeking to have the grant revoked, the Will declared valid and probate granted. No such counter-claim was filed.

[165] Counsel for the Applicant Chief Registrar indicated that he did not wish to make any oral submissions on this issue.

[166] In my view, it remains unclear as to what advice, if any, and by whom, was given to either Pranita Devi, as the widow and/or, Maya Wati Prakash, as the intended beneficiary under the Will (as well as the surviving parent), as to:

(1) Potential claims they may have had upon the Estate in accordance with section 6 of the Succession, Probate and Administration Act once the grant of Letters of Administration was made on 16th February 2016;

(2) Potential claims they may have pursuant to sections 4 and 10 of the Compensation to Relatives Act;

(3) Potential claims that may have been made had upon the Estate once the Will had been declared valid on 11^th October 2013. I note, for example, that Pranita Devi, in her evidence before the Commission, claimed that she had been married to Salen for over 10 years and they had worked together in the Suva Markets. Surely, she was not to be left destitute? Was she made aware of a potential claim pursuant to the Inheritance (Family Provision) Act 2004? For example, in Wati v Chand (Unreported, High Court of Fiji, Probate Jurisdiction, Civil Action No. HPP No. 0011 of 2004s, Pathik J, 8 July 2005; PacLII: [2005] FJHC 172, <http://www.paclii.org/fj/cases/FJHC/2005/172.html> ), His Lordship in providing for a widow (by consent pending the finalisation of a challenge to the Will’s validity) cited the judgment of the Privy Council in Dillon v Public Trustee of New Zealand & Others [1941] A.C. at 295 (BAILII: [1941] UKPC 11, <http://www.bailii.org/uk/cases/UKPC/1941/1941_11.html> ), in relation to section 33 of the Family Provision Act 1908 of New Zealand (a somewhat similar provision to section 3(7) of the Inheritance (Family Provision) Act 2004 in Fiji), wherein it was held at page 303-304:

‘The manifest purpose of the Family Protection Act, however, is to secure, on grounds of public policy, that a man who dies, leaving an estate which he distributes by will, shall not be permitted to leave widow and children inadequately provided for, if the court in its discretion thinks that the distribution of the estate should be altered in their favour, even though the testator wishes by his will to bestow benefits on others, and even though he has framed his will as he contracted to do. The court, in considering how its discretion should be exercised, and how far it is just and necessary to modify the provisions of the will, will pay regard to the circumstances in which the testator’s will is drawn as it is, and the interests of the respective members of the family, but, if the Court comes to the conclusion that no adequate provision has been made in the will, such as is called for by s. 33, then the jurisdiction of the court to alter the distribution of the estate in favour of the applicant (widow, widower, or children, as the case may be) cannot be doubted. [My emphasis]

[167] As this was not part of the case of Counsel for the Applicant Chief Registrar, it is not an issue for me to resolve in this judgment. Hence, I have decided to put it to one side.

(8) Distribution of Estate

[168] As I understood the evidence, the Respondent simply assisted the widow in obtaining the grant for Letters of Administration so that the widow could administer the Estate. Further, following the meeting on 28^th March 2009, the Respondent ceased any involvement in the matter. At the clarification hearing on 25^th April 2018, I asked both Counsel to confirm that this was their understanding of the evidence, that is, that the Respondent was not involved in the distribution of the Estate.

[169] Counsel for the Applicant noted that there was some evidence from Pranita Devi concerning the transfer of permits in which the Respondent allegedly assisted her. Counsel for the Respondent submitted that the Respondent was not involved after the meeting on 28^th March 2009.

[170] I note that according to the written submissions of Counsel for the Applicant the evidence of the Respondent on this point was (‘Closing Submissions’, 8^th January 2018, at [474]): ‘That his firm’s engagement ended after LA granted and they would have done some letters for the Bank as is norm and that she paid’. I agree with that summary.

[171] I also note that Counsel for the Applicant never put to the Respondent the claim of Pranita Devi that the Respondent was involved in the transfer of permits after the grant of the Letters of Administration on 16^th February 2009. In addition, I note that there was no documentary evidence tendered to support such a claim made by Pranita Devi.

[172] Indeed, the only documentary evidence tendered before me of the Respondent’s further involvement after the grant of the Letters of administration was in Exhibit 44 (the High Court file of Civil Action No.81 of 2009 filed on 6^th March 2009 by Prem Narayan on behalf of Maya Wati Prakash summarised near the beginning of this judgment) where, in the ‘Judges’s Notes’ of Inoke J, it was recorded that Mr. Suruj Sharma’s sole appearance was on 12^th March 2009 ‘for [the] purpose of resolution of this matter’ and that, Prem Narayan for the ‘Pltf confirms D1 instructions’ and the matter was ‘Adjn to 6/4/09 @ 10.00 am’. I note the application sought a number of orders including interim injunctive relief against Pranita Devi (and others) in dealing with the property in the name of Salen Prakash Maharaj at Koronivia, that the Letters of Administration be recalled and a fresh grant of Letters of Administration be issued to Maya Wati Prakash and Pranita Devi.

[173] I also note that on 6^th April 2009, it was recorded in the Judges’ Notes that Prem Narayan appeared for the Plaintiff, Maya Wati Prakash and Mr. Raman Singh appeared for the 1^st Defendant, Pranita Devi. I further note that after the failed settlement meeting hosted by the Respondent on 28^th March 2009, between Maya Wati Prakash and Pranita Devi, (where Prem Narayan spoke for Maya Wati Prakash and Jayawant Pratap spoke for Pranita Devi), the latter then sought the assistance of the law firm of Kohli and Singh, hence the appearance by Mr Raman Singh before Inoke J on 6^th April 2009.

[174] It is clear that:

(1) The Respondent simply assisted the widow in obtaining the grant for Letters of Administration so that the widow could administer the Estate and that his sole appearance on 12^th March 2009 in response to the application filed on behalf of Maya Wati Prakash was ‘for [the] purpose of resolution of this matter’ and that, Prem Narayan, who appeared for the plaintiff, confirmed that was the case to the Court;

(2) Following the meeting on 28^th March 2009, the Respondent ceased any involvement in the matter.

(3) In any event, as the distribution of the estate was not part of the case of Counsel for the Applicant Chief Registrar in relation to any of the four Counts, it is not an issue for me to resolve further in this judgment. Hence, I have decided to put it to one side.

(9) Other proceedings involving the Estate

[175] I was aware that there were some separate proceedings involving a joint application of Maya Wati Prakash and Pranita Devi where, on 17^th October 2014, a year AFTER the Will was pronounced valid, Master Rajasinghe granted an application to re-instate an action which was struck out previously due to noncompliance with an unless order. (See Wati and Devi v Chand & Ors (Unreported, High Court Civil Action No. HBC334 of 2011, 17 October 2014; PacLII: [2014] FJHC 748,

<http://www.paclii.org/fj/cases/FJHC/2014/748.html> .) I was unaware, however, as to either the outcome or relevance of those proceedings to the proceedings before this Commission.

[176] Therefore, at the clarification hearing on 25^th April 2018, I asked both Counsel to confirm their understanding of the above joint application of Maya Wati Prakash and Pranita Devi on 17^th October 2014, and whether it was relevant

to the present proceedings before this Commission?

[177] Counsel for the Respondent advised that it was his understanding in relation to the above joint application of Maya Wati Prakash and Pranita Devi, in summary, as follows:

(1) After Justice S.N. Balapatabendi in the High Court at Suva on 11^th October 2013, ruled in favour of Maya Wati Prakash, pronouncing that the Will of Salen Prakash Maharaj dated 22^nd December 2006 valid and that the Letters of Administration granted to Pranita Devi on 16^th February 2009 be revoked forthwith (see Exhibit “19”; see also Prakash v Devi, (supra)), two things happened –

(i) Pranita Devi refused to comply with the Orders of the Court. Thus, further action was taken to transfer the permits (in relation to the taxi and minivan);

(ii) In addition, Maya Wati Prakash and Pranita Devi jointly pursued the third party claim and were required to show cause as to why the application should not be struck out. When Salen died in the minivan accident, there was a third party claim against the insurer. Pranita Devi had an action as the Administratrix of the Estate of Salen to which Maya Wati Prakash was joined as the Executrix of the Estate. The other vehicle involved in the accident in which Salen died was a government vehicle and eventually the third party claim was settled. There was some legal issue involving the personal injury claim and compensation pursuant to the Compensation to Relatives Act, however, Counsel could not advise further.

[178] Counsel for the Applicant submitted that it was unclear what had occurred.

[179] As this was not part of the case of Counsel for the Applicant Chief Registrar, it is not an issue for me to resolve in this judgment. Hence, I have decided to put it to one side.

(10) Section 18 Wills Act not raised

[180] I note (as previously mentioned above) that whilst Counsel for the Respondent raised the behaviour of Prem Narayan in arranging for depositing of the Will with Nehla Baswaiya of Munro Leys (after it was found on 23^rd January 2010) and NOT depositing the Will with the Court, as required by section 18 of the Wills Act, this was not raised by Counsel for the Applicant in either of his two sets of written submissions.

[181] Section 18 of the Wills Act states:

‘Failure to produce will

18. Any person who, having in his possession or under his control any will or codicil of a deceased person or any paper or writing purporting to be such a will or codicil, fails or neglects to produce and deposit the same with the Court, or, where there is reason to believe that the deceased person's estate is a small estate, with Chief Registrar of the High Court within 30 days of learning of the death of the deceased person, commits an offence and is liable on conviction to a fine of $1,000.’

[My emphasis]

[182] I raised this issue with Counsel for the Applicant at the clarification hearing on 25^th April 2018. I also invited Counsel for the Respondent to comment if he so wished.

[183] According to the oral submissions of Counsel for the Applicant, section 18 of the Wills Act is a separate issue and thus he had no submissions to make in relation to it and was prepared to leave it to the Commission to make comment.

[184] Counsel for the Respondent made two oral submissions, in summary, as follows:

(1) This reflects on the conduct of Prem Narayan and the unnecessary legal expenses incurred when section 18 of the Wills Act is clear. That is, upon the finding of the Will on 23^rd January 2010, the Will should have been lodged with the ‘Chief Registrar of the High Court within 30 days’. The Chief Registrar could then have written to the Administratrix asking for return of the Letters of Administration now that the Will had been found, so that the onus was on the Administratrix to accept that it was a valid Will or did she wish to have the matter listed in the High Court. Prem Narayan did not comply with the 30 days requirement and, instead, issued Civil Action No. HPP 3 of 2010. Prem Narayan should have complied with the legislation and deposited the Will with the Chief Registrar;

(2) Prem Narayan incurred legal expenses that were unnecessary if the right protocol had been followed.

[185] Counsel for the Applicant did not seek to respond to those oral submissions.

[186] Again, as this was not part of the case of Counsel for the Applicant Chief Registrar, it is not an issue for me to resolve in this judgment. Hence, I have decided to put it to one side.

(11) The joint application for Letters of Administration and the alleged “withdrawal” of instructions

[187] In relation to the proposed joint application for the Letters of Administration, it is not disputed that on 15^th December 2008, Pranita Devi, the widow of Salen Prakash Maharaj and Maya Wati Prakash, the mother of Salen Prakash Maharaj, attended the law firm of Patel Sharma Lawyers and, as the original Will of Salen Prakash Maharaj could not be found, gave joint instructions authorising Patel Sharma Lawyers to prepare an application for Letters of Administration under their joint names (Exhibit 2). It is disputed, however, what occurred after that meeting where joint instructions were given.

[188] According to Counsel for the Applicant Chief Registrar, which he clarified in his oral submissions at the hearing on 25^th April 2018, the position of the Applicant is thus:

(1) There was no conflict when the parties instructed on 15^th December 2008 to make a joint application to the High Court for a grant of joint Letters of Administration to both Pranita Devi as the widow as well as to Maya Wati Prakash holding an equitable interest in the Estate;

(2) The conflict arose when the Respondent (sometime in January 2009), allegedly advised Maya Wati Prakash that the Respondent would only represent the widow, Pranita Devi.

(12) Whether the Respondent allegedly advised Maya Wati Prakash that the Respondent would only represent the widow, Pranita Devi.

[189] I will now make findings as to whether the above advice (allegedly given by the Respondent to Maya Wati Prakash in January 2009) ever occurred.

(i) Evidence of Dipka Mala

[190] Despite the widow, Pranita Devi, and the mother, Maya Wati Prakash, instructing Patel Sharma Lawyers on 15^th December 2008, in what Dipka Mala described as “a cordial meeting between the parties” to “prepare LA under the joint names Pranita Devi and Maya Wati”, this was not, however, the end of the matter. That same afternoon, according to Dipka Mala, Maya Wati Prakash returned to Patel Sharma Lawyers as Dipka Mala explained in her evidence:

“Ms. Mala: And then later in the afternoon, Maya came back to our office with one another lady.

Commissioner: Hold on, with another lady?

Ms. Mala: Yes.

Commissioner: You don’t know who?

Ms. Mala: No.

Commissioner: Yes?

Ms. Mala: And then she advised that her daughter has seen another solicitor, has spoken something with another solicitor.

Commissioner: Yes?

Ms. Mala: And Maya wanted to uplift copies of her documents that she had left behind earlier in the morning.

Commissioner: Yes?

Ms. Mala: So the documents were released to her ...”

[My emphasis]

[191] Dipka Mala in her evidence was then taken to Exhibit 2 where she identified her handwriting and signature and also that of Maya Wati Prakash where “she signed uplifting the documents” that is, “... Maya Wati was going to uplift the documents and go and see the same solicitor that the daughter had seen” and Maya “did mention it was Subhasni”.

[192] As for the reason for the change of lawyers, Dipka Mala’s evidence was as follows:

“Mr. Sharma: Okay, and she says that she wants to consult another solicitor, did she tell you why she wanted to consult another solicitor, Ms. Mala?

Ms. Mala: No she did not say that Sir, she did not.

Mr. Sharma: And she, you said she didn’t tell you who the other solicitor that she was consulting?

Ms. Mala: We were not aware.

Mr. Sharma: Now she uplifted the very documents you were to use to apply for LA, what did the firm do then?

Ms. Mala: Because it was her documents and it was the client’s request she requested that documents be uplifted by her, so we released the documents to her.

...

Commissioner: That’s what I am asking, when she has come back to collect them, is that, does she see Mr. Sharma or just you?

Ms. Mala: Just me.

...

Commissioner: Do you and Mr. Sharma then have a discussion like ‘the documents are gone, what are you going to do now’?

Ms. Mala: Because we had no documents we closed the file.

Commissioner: You closed the file, what about Pranita Devi, where does she sit?

Ms. Mala: Because they were residing in the same house so.

Commissioner: You thought it’s a matter for them?

Ms. Mala: Yes.

Commissioner: And the file was closed?

Ms. Mala: Yes because prior to this day, we did not know Pranita.”

[My emphasis]

(ii) The evidence of Maya Wati Prakash

[193] By way of contrast, Maya Wati Prakash’s evidence was that she did not return and withdraw the joint instructions on 15^th December 2008. According to the written submissions of Counsel for the Applicant Chief Registrar, the evidence-in-chief of Maya Wati Prakash on this issue (‘Closing Submissions’, 8^th January 2018, at [22]-[26]), was that after 15^th December 2008:

‘22. Her children informed her about an advertisement which was published in the Fiji Times which stated that all the property would belong to PD.

23. She said that when the Respondent had asked to sign on the document, he informed her that she would receive 50% of SPM’s estate and she was content with this arrangement.
24. She went back to the Respondent’s firm to enquire about LA that was taken out under PD’s name. The Respondent informed her that PD would get the property because she was the widow of SPM.
25. She then asked the Respondent to take her case. Respondent informed her that he could only take PD’s case.
26. She then hired the services of Ms. Prem Narayan (PN). She informed Ms. Narayan that LA was taken out under PD’s name and that she wanted her share.’

[My emphasis]

[194] Also, according to the written submissions of Counsel for the Applicant Chief Registrar, the evidence of Maya Wati Prakash, under cross-examination, on this issue was, in summary, as follows (‘Closing Submissions’, 8^th January 2018, at [61]-[67]):

‘61. She confirmed that she did not withdraw the documents as stated AD2 [Exhibit 2].

62. She stated that when LA was granted to PD she went to the respondent. He informed her that he will not be able to take her case and will only take PD’s case. After that she went to PN with her daughter Irene.
63. She gave instructions to PN after LA was granted. [i.e. after 14^th February 2009]
64. She was cross-examined on a letter from PN to Respondent dated 27^th January 2009 AD4 page 6 and regarding the purchase of their house to which she replied that she came for the case against the Respondent and she is not aware about anything else.
65. She stated that PN lodged a claim once the will was found.
66. She informed Commission that she agrees with the 3^rd paragraph of Exhibit 59 statement of PN that she gave instructions on the 26^th of January 2009 however she cannot recall the time.
67. Commissioner referred witness to AD 2 at page 4. She confirmed her signature and confirmed that she did not uplift the documents as stated at page 4 of AD2.’

[My emphasis]

[195] Further, according to the written submissions of Counsel for the Applicant Chief Registrar, the evidence of Maya Wati Prakash in re-examination on this issue was, in summary, as follows (‘Closing Submissions’, 8^th January 2018, at [95]-[96]):

‘95. She informed the Commission that her sister had informed her that LA had been granted to PD.

96. She cannot recall the exact date she had instructed PN.’

[My emphasis]

[196] I agree generally with the above as a summary of the evidence of Maya Wati Prakash on this issue.

(iii) The evidence of Subhasni Singh

[197] According to the written submissions of Counsel for the Applicant Chief Registrar, the evidence-in-chief of Subhasni Singh on the issue of the Letters of Administration (‘Closing Submissions’, 8^th January 2018, at [127]-[129]), and the joint instructions given on 15^th December 2008, was:

‘127. She stated that her mum discussed with her as to what had transpired inside [Mr. Sharma’s office] and told her that the properties of the Estate of SPM would be divided with 75% shares going to Pranita Devi (PD) and 25% to MWP.

129. That MWP was not happy that she was getting only 25% and she was advised by her cousin brother Viren [sic] to hire another solicitor.
130. That in 2009, MWP instructed Ms. Prem Narayan and that she did not accompany her mum to Prem Narayan’s office.’

[My emphasis]

[198] I agree generally with the above as a summary of the evidence-in-chief of Subhasni Singh on this issue.

[199] I note that the evidence of Subhasni Singh under cross-examination before this Commission on 6^th June 2017 as to when Prem Narayan was instructed was:

“Mr. Sharma: Do you remember when Prem Narayan got involved in the estate of Salen Prakash as your mum’s solicitor?

Ms Singh: When did we hire her?

Mr. Sharma: Yes.

Ms Singh: That was late December 2008.

Mr. Sharma: Okay, so late December 2008, yeah?

Ms Singh: Yes.”

[My emphasis]

[200] Subhasni Singh was not asked any questions in re-examination as to when Prem Narayan was instructed.

(iv) The evidence of Pranita Devi

[201] According to the written submissions of Counsel for the Applicant Chief Registrar, the evidence-in-chief of Pranita Devi in relation to when she first instructed by the Respondent to make a sole application for a grant of Letters of Administration was, in summary, as follows: (‘Closing Submissions’, 8^th January 2018, at [268]-[274]):

‘268. She stated that after her husband’s death, she went to the Respondent’s office along with her uncle Jaywant [sic] Pratap but she could not recall the exact date to have LA obtained as SPM owned many things.

269. She stated that the Respondent told them that he was acting for MWP and he didn’t give any response. That her uncle requested the Respondent that since he was related why didn’t he act for PD and the Respondent agreed.

...

271. She confirmed that she gave instructions to the Respondent and he took her address and father’s name and the reason for her visit. She paid $700 as fees to Mr. Sharma not at that time but after LA was granted to her.
272. On 16^th February 2009, LA was granted.
273. She stated that she could not recall the number of times she paid a visit to the Respondent’s law firm before LA was granted but went a number of times with her uncle Jaywant [sic].
274. She also stated that she went once to the Respondent’s office with MWP, Subhasni and her husband before LA was granted. She stated that this this could have been after SPM’s 13 day death ritual.’

[My emphasis]

[202] Counsel for the Applicant Chief Registrar, has then summarised the cross-examination of Pranita Devi in relation to when she first instructed the Respondent to make a sole application for a grant of Letters of Administration as follows: (‘Closing Submissions’, 8^th January 2018, at [307]-[310], and [326]-[335]):

‘326. She confirmed that she agreed for LA to be granted jointly to her and her mother in law as she wanted to share the property with her mother-in-law.

327. She stated that she did not know that MWP returned on the same day and uplifted the documents and that she did not know that MWP was not comfortable with the arrangement.
328. She stated that when she left her in laws place, she had taken with her all of SPM’s documents and that she checked his documents but there was no Will. Although she could not recall the exact date she took all her things from her in laws place and left for her parents place for good but she stated it could have been probably sometime on 26 or 27 December.
329. She stated that at the time she left her in-laws place, she had no issues with MWP but only with Subhasni.
330. She stated that on 6^th January 2009, she went back to the Respondent’s law firm accompanied by her uncle. She stated that it was her uncle, Jaywant [sic] Pratap’s decision to visit the Respondent’s law firm and discuss about the probate matters as her in-laws would not give her any share and her uncle thought that Subhasni is educated and she might take steps which might lead to PD not getting anything.
331. On 6^th January 2009, her uncle asked Respondent if LA could be extracted under PD’s name and the Respondent stated that he was acting for MWP. She stated that Mr. Sharma agreed to withdraw from MWP and act for PD in extracting LA.
332. She stated that she had told her uncle about joint instructions and that her uncle told her to apply solely.
333. She stated that she was not told by the Respondent or anyone from his firm that MWP had uplifted the documents. She also stated that as at 6 January 2009, she was neither aware of SPM’s Will nor had she seen it anywhere.’

[My emphasis]

[203] Counsel for the Applicant Chief Registrar, has then summarised the re-examination of Pranita Devi in relation to when she first instructed the Respondent to make a sole application for a grant of Letters of Administration was, in summary, as follows: (‘Closing Submissions’, 8^th January 2018, at [338]):

‘She was shown Exhibit 3 and asked why she changed from joint instructions to sole and she replied that her uncle told her that since she was no longer staying with her in-laws, she should take out LA solely. She stated that the Respondent was already acting for MWP but upon her uncle’s request, he was willing to act for her. She also stated that he checked for any existing Will but there was no Will found and so he proceeded with LA.’

[My emphasis]

[204] I agree generally with the above as a summary of the evidence of Pranita Devi on this issue.

(v) The evidence of Prem Narayan

[205] According to the written submissions of Counsel for the Applicant Chief Registrar, the evidence-in-chief of Prem Lata Narayan in relation to when she was first instructed by Maya Wati Prakash was, in summary, as follows: (‘Closing Submissions’, 8^th January 2018, at [181]-[184]):

‘181. She stated she could not recall the exact date but sometime in December 2008 or early January 2009 she received instructions from MWP. MWP told her that her son had recently passed away.

182. MWP also told her that she had gone to see the Respondent as he was his solicitor. She advised MWP that if there was no Will, then LA would have to be applied and property would go to wife and children. MWP had brought documents in relation to property in Koronivia where she was residing.
183. According to her re-collection, she believed that both daughters of MWP had accompanied her when instructions were given.
183. She stated that her daughter, Rosie had wanted to put a claim on the estate and so she had acted on instructions from Rosie. She sent a letter to the Respondent’s office who had advertised the Estate notice in the newspaper.’

[My emphasis]

[206] Counsel for the Applicant Chief Registrar, has then summarised the cross-examination of Prem Lata Narayan (by Counsel for the Respondent) in relation to when she was first instructed by Maya Wati Prakash as follows: (‘Closing Submissions’, 8^th January 2018, at [203]-[205] and [217]-[224]):

‘203. She stated that there were no file notes or emails in file as this was a case where she did not email MWP as MWP would come to her office or make a call. Calls made were stated in the Bill of Costs. Calls mostly were superfluous and would be in terms of things already provided such as next court dates.

204. She also stated that her server crashed in first week of January 2015 and she had no backup. She also did not print out her emails. The backup was on the package she had which had crashed.
205. She stated that she was aware of the Rules for law firms to keep records of file notes and she stated that she was complying with that rule but just did not print emails and the system crashed. She stated that most email correspondence was with Subhasni and not MWP.

...

217. She stated that the information that she had was that MWP and PD were going to jointly apply for probate and that on Christmas day, PD left the house and that then they were told by the Respondent’s firm that the firm would only act for PD.
218. She stated that in January 2010, Irene [sic] told her that she was going through boxes looking for documents for Subhashni [sic] in Caubati. She then stated that she believed that Will was found in the Koronivia property as stated in the pleading.
219. She stated that she did not take any notes/statement from Irene in writing of how the Will was found.
220. She stated that she made enquiries with them on how often they searched for documents, where were the boxes, did anyone had access to the boxes and was there anything else with the envelope. She stated that she did not ask to see the envelope but she was told that the envelope had a lot of marks. MWP was out of the country so she spoke to her over telephone.
221. MWP instructed her to start proceedings as she had taken advice from other practitioners as well. At all times MWP used to take second opinion.
222. She was referred to Exh 47 and in particular to page 156 (second last paragraph) and she again mentioned that Irene bought the Will to her office and that she did not meet Subhasni, She stated that maybe the Will was discovered by Subhasni.
223. She was then referred to page 157 of the same exhibit which stated that Subhasni handed over the Will to her. She then stated that it has been a long time ago and she cannot remember.
224. She stated that she cannot now remember but if the transcript says Subhasni then she must have come to give her her [sic]. She explained that she had mentioned Irene in her earlier evidence as she was the one who used to come to her office all the time.’

[My emphasis]

[207] Counsel for the Respondent (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, page 11, subpara [xii][g]), have summarised the evidence of Prem Lata Narayan in relation to when she was first instructed by Maya Wati Prakash as follows:

‘[g]. PLN couldn’t say when exactly she first saw MWP but it was late December 2008 or early January 2009. She only agreed to take MWP on as a client after a few meetings and her first action was to write a letter on 27^th January 2009 seeking to register SS’s claim of $62,000.00 against SP’s Estate.’

[My emphasis]

[208] I agree generally with the above as summaries of the evidence given by Prem Narayan on this issue.

(vi) The evidence of Suruj Sharma

[209] According to the written submissions of Counsel for the Applicant Chief Registrar, the evidence-in-chief of Suruj Sharma in relation to the joint application for a grant of Letters of Administration was, in summary, as follows: (‘Closing Submissions’, 8^th January 2018, at [457]-[461]):

‘457. Both parties stated they wanted to apply under joint names and he told them that if joint application is made, High Court registry may not accept. They did not inform them what their internal family arrangement was and they wanted LA so as to move things along.

458. Instructions taken for joint application on the same day.
459. He was told by Dipka that MWP had taken her documents although he did not see her uplifting those documents. Dipka told him that MWP told her that she was going to see another lawyer arranged by her daughter, Subhasni. By that time, the documents were already uplifted.
460. The instruction of joint application was put away in a dip. Joint instructions put in a manila file folder. Pending file with instruction sheet and put in a tray/dip with pending file. He stated that they would describe it as pending instructions and not an active file.
461. There was no action taken on that pending file.’

[My emphasis]

[210] I agree generally with the above as a summary of the evidence of Suruj Sharma on this issue.

[211] I note that it was never put by Counsel for the Chief Registrar in his cross-examination of Suruj Sharma that:

(1) the uplifting of the documents from his firm never took place;

(2) the uplifting of the documents from his firm occurred on another date other than 15^th December 2008; or

(3) Suruj Sharma gave advice on some unknown date to Maya Wati Prakash that Suruj Sharma would only be acting for Pranita Devi in making an application for a grant of Letters of Administration.

[212] At the clarification hearing on 25^th April 2018, Counsel for the Respondent also noted (apart from the above), that Maya Wati Prakash’s signature appears on the instruction sheet of 15^th December 2008 next to the words, ‘uplifted the following docs’. There is no other date on the instruction sheet.

[213] As for what occurred in the first meeting on 15^th December 2008, it was noted by Counsel for the Applicant Chief Registrar at the clarification hearing on 25^th April 2018, the discrepancy in the evidence previously given between Subhasni Singh and Maya Wati Prakash, whereby Subhasni Singh had claimed that the Respondent had suggested a 75/25 split (between Pranita Devi and Maya Wati Prakash) which caused Maya Wati Prakash to seek alternative advice (as suggested by an uncle Virend), compared with the evidence of Maya Wati Prakash who had claimed that the Respondent had suggested a 50/50 split. Counsel for the Applicant Chief Registrar suggested that it was a matter for the Commission to determine.

[214] The oral submissions of Counsel for the Respondent on this issue were:

(1) Maya Wati Prakash appears to have confused the meeting held on 28^th March 2009 with that of 15^th December 2008;

(2) The evidence of Dipka Mala and Suruj Sharma was that there was no discussion held on 15^th December 2008 as to a percentage of split of the estate between Pranita Devi and Maya Wati Prakash.

[215] I have also noted that the evidence of Pranita Devi made no reference to any such discussion having taken place on 15^th December 2008 as to a percentage of split of the estate.

[216] Counsel for the Respondent also submitted at the clarification hearing on 25^th April 2018, that Prem Narayan’s evidence was that Maya Wati Prakash met her in late December 2008 – which logically followed from Maya Wati Prakash no longer being represented by the Respondent after 15^th December 2008. Counsel for the Applicant did not seek to respond to this submission.

[217] It was also my understating that Counsel for the Applicant Chief Registrar conceded at the clarification hearing on 25^th April 2018, that it was never put by him to Suruj Sharma or Dipka Mala that:

(1) the uplifting of the documents by Maya Wati Prakash from the firm of Patel Sharma Lawyers never took place on 15^th December 2008; or

(2) Suruj Sharma gave advice on some unknown date to Maya Wati Prakash that Suruj Sharma would only be acting for Pranita Devi in making an application for a grant of Letters of Administration.

(vii) No evidence called from Irene Lata Prasad, Maya’s second daughter

[218] Although there was mention in the evidence given before this Commission by Maya Wati Prakash, Subhasni Singh and Prem Narayan of the younger daughter, Ireen Lata Prasad, being involved from December 2008 in the issues surrounding her brother’s estate, she was not called in the present proceedings.

[219] Balanced against that, I do note, however, that just as Counsel for the Respondent was commencing his cross-examination of Subhasni Singh on 6^th June 2017, it is recorded in the transcript that Ms. Singh said: “I do remember my 39 year old sister [Ireen] got mini stroke at the moment. It’s not very easy for me to remember everything at the moment (crying).” After a short adjournment, Counsel for the Applicant tendered a medical certificate not for Ireen Lata Prasad but for Carol Sheenal Singh, Maya’s granddaughter (who is also the daughter of Subhasni Singh), who was to give evidence in the June 2017 Sittings but, due to illness, the taking of her evidence was delayed until the September 2017 Sittings. There was, however, no mention by Counsel for the Applicant of any medical problem with Ireen Lata Prasad and/or the tendering of any medical certificate explaining her absence.

[220] I also note that, previously, on 6^th December 2016, when I mentioned that I was concerned that “Rosie [Subhasni] has not been sitting in the back of the court I hope” listening to Maya give her evidence, I was informed by Counsel for the Applicant that the person who had been present in the back of the Commission’s hearing room was, in fact, Ireen. Presumably, the strategic decision not to call Ireen was made by Counsel for the Applicant before Ireen may have fallen ill.

[221] I further note that during the evidence-in-chief of Subhasni Singh on 5^th June 2017, there was a dispute as to whether Subhasni had seen the receipt for $20,000 from Prem Narayan and Subhasni’s evidence was that “This original was with my sister, in Fiji, she was keeping there”. I then asked, “Is the sister being called?” to which Counsel for the Applicant simply replied “No”. There was no additional mention as to her unavailability due to illness. I then asked for the name of the sister for the record and Subhasni replied and spelt it out as follows: “I-R-E-E-N, Lata- L-A-T-A, and her married name Prasad, P-R-A-K-A-S-H”.

[222] As noted above, there was mention in the evidence of Maya Wati Prakash, Subhasni Singh and Pranita Devi, of Maya’s younger daughter, Ireen Lata Prasad, being involved in the issues concerning Salen’s estate. I have noted, in particular, the following:

(1) It was Pranita Devi’s evidence that ‘that after final 13 days ritual, Subhasni, Ireen, MWP and PD discussed about SPM’s properties’;

(2) It was Ireen, who attended with Maya Wati Prakash the meetings with Prem Narayan in 2008-2009;

(3) It was Ireen who attended with Maya Wati Prakash the settlement discussions between Maya Wati Prakash and Pranita Devi at the offices of Patel Sharma Lawyers on 28^th March 2009;

(4) It was to Ireen with whom Maya Wati Prakash went to live in mid-2009 when Maya moved to Ireen’s home at Caubati;

(5) It was allegedly Ireen who arranged for the “clean up” at Koronivia and the documents being “boxed” and transported to Ireen’s home at Caubati;

(6) It was in Ireen’s home at Caubati that Salen’s Will was found by Subhasni Singh on 23^rd January 2010;

(7) It was Ireen who wrote an undated letter to the Chief Registrar received on 23^rd May 2012 seeking a hearing date in BHC81 of 2009 (see Doc.9, p. 10, Exhibit 44) between ‘Maya Wati Prakash vs. Pranita Devi Maharaj’;

(8) According to the evidence in the High Court proceedings between Maya Wati Prakash and Pranita Devi, both Ireen and Subhasni were each to receive 25% of Maya’s estate pursuant to Maya’s will (Doc.21, p. 49, Exhibit 47, p.163). If Salen left his entire estate to his mother, then obviously this increased the value of Maya’s estate;

(9) I have also noted that Ireen’s husband, Raknesh Prasad, also had an interest in the Salen’s estate as Maya Wati Prakash made clear in her affidavit sworn on 5^th March 2009 in support of her summons (High Court at Suva, Civil Action No. 87 of 2009) to have the grant of Letters of Administration recalled and a fresh grant issued to Maya Wati Prakash and Pranita Devi, when she stated at para [25]: ‘The Deceased was the registered owner of the motor vehicle taxi LT 3579 (taxi). The taxi was always in the possession of my son-in-law Raknesh Prasad since its purchase.’ [My emphasis] An allegation was then made that the taxi had been re-possessed by a bailiff on behalf of Pranita Devi. The claim was also made in the letter from Prem Narayan sent on behalf of Subhasni Singh to Patel Sharma Lawyers dated 26^th February 2009 (a copy of which was annexed to the affidavit of Maya Wati Prakash as “MWP9”) stating: ‘We are informed by our client that your client had taken possession of the motor vehicle registration number LT 3579 from Ratnesh [sic] Prasad who was the Deceased’s brother-in-law ...’ (See Doc.131, Exhibit 44, pp. 134 and 149.) I also note that in the evidence given by Carol Sheenal Singh in the present proceedings, she stated that her uncle, Raknesh Prasad, had probably been printed Exhibit 8. This was also confirmed by Counsel for the Applicant Chief Registrar in his summary of her evidence (‘Closing Submissions’, 8^th January 2018, at para [247]);

(10) In her statement of claim dated 6^th March 2009 in Civil Action No. 81 of 2009 prepared by Prem Narayan, it was stated at para [9] that ‘... the Plaintiff commenced part payments of the purchase price’ on the Koronivia property ‘to ... the law firm GP Lala & Associates trust account through her daughter and agent’. It was also stated at para 11 that ‘The Plaintiff’s daughter made payments towards the purchase price for the Plaintiff as the Plaintiff and her husband had decided to have her [the daughter] and her husband to settle on the property’. [My emphasis] When this was put to Subhasni Singh in cross-examination on 6^th June 2017 that she was the daughter referred to in the statement of claim, Subhasni claimed total ignorance of having ever seen the statement of claim and had never discussed it with Prem Narayan. Counsel for the Respondent then put to Subhasni that Maya in her evidence “claimed total ignorance about the claim and said that she left it to the daughter” and “... it seems now Ms. Singh that neither you are aware, or your mother was aware the contents of the claim.” Counsel for the Applicant then objected to this cross-examination of Subhasni Singh noting Subhasni’s denials and also that Maya was never asked in cross-examination as to which daughter to whom she had been referring in the claim. The transcript then records that I then asked Counsel for the Applicant (after he raised his objection) whether Ireen was going to be called and Counsel for the Applicant simply responded “No” with no further explanation. I then responded: “Matter for you, Mr Chand”. I do note, however, that it is then recorded in the transcript that Subhasni Singh then volunteered, “she’s [Irene] got a minor stroke now, she can’t talk. She can’t walk”;

(11) The evidence of Prem Narayan (as summarised by Counsel for the Applicant in his ‘Closing Submissions’, 8^th January 2018), was, at [183]) that ‘she believed that both daughters of MWP had accompanied her when instructions were given’ and, at [197], ‘She stated that Irene [sic] used to come to her office to make payments but she understood from MWP that Subhasni used to pay.’

[223] In my view, Ireen needed to be called. Applying the test set out in Jones v Dunkel, subject to the conditions that I have set out above, in relation to the absence of Ireen Lata Prasad (formerly known as Prakash), I have come to the view that:

(1) The three conditions set out by Glass JA in Payne v Parker are satisfied -

(i) ‘the missing witness would be expected to be called by one party rather than the other’ – Ireen would be expected to be called by the Applicant Chief Registrar rather than the Respondent;

(ii) the missing witness’ ‘evidence would elucidate a particular matter – for the reasons outlined above, Ireen’s evidence would be able to elucidate in relation to how and when the instructions were given to Prem Narayan;

(iii) the missing witness’ ‘absence is unexplained’ – Ireen’s absence from the proceedings before this Commission is unexplained;

(2) The inferences to then be drawn can be -

(i) ‘the evidence of the absent witness would not assist the case of that party’; and (ii) ‘that the trier of fact may draw an inference unfavourable to that party with greater confidence’;

(iii) ‘But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party’;

(3) I have noted when considering what inference, if any, to be drawn, ‘that this is not an ordinary civil action but rather it constitutes professional disciplinary proceeding ... subject to its own statutory procedures’ including that ‘the Commission is not bound by formal rules of evidence ... and the Commission must act fairly in relation to the proceeding’.

[224] Having considered the above, I can only conclude that Ireen Lata Prasad (formerly known as Prakash) was not called by Counsel for the Applicant Chief Registrar as Ireen’s evidence would not have assisted the case of the Applicant Chief Registrar in relation to how and when the instructions were given to Prem Narayan.

(viii) No evidence called from ‘cousin brother Virend’

[225] I note that while there was mention by Subhasni Singh in her evidence of ‘cousin brother Virend’ advising Maya to instruct another lawyer (other than Patel Sharma Lawyers) on the issue of the Letters of Administration, ‘cousin brother Virend’ was not called in the present proceedings before this Commission.

[226] To be clear, Counsel for the Applicant Chief Registrar summarised in his closing submissions that I have cited above, in relation to the evidence-in-chief of Subhasni Singh on the issue of the Letters of Administration (‘Closing Submissions’, 8^th January 2018, at [128]), ‘That MWP was not happy that she was getting only 25% and she was advised by her cousin brother Viren [sic] to hire another solicitor.’ By contrast, I have also noted above that Maya Wati Prakash’s evidence-in-chief on the issue of the Letters of Administration, was that on 15^th December 2008 in relation to the conference with Mr. Suruj Sharma (as Counsel for the Applicant Chief Registrar has summarised in his ‘Closing Submissions’, 8^th January 2018, at [23]): ‘he [Suruj Sharma] informed her that she would receive 50% of SPM’s estate and she was content with this arrangement’. I have further noted above, that the ‘cousin brother Virend’ of Maya Wati Prakash was not called by Counsel for the Applicant Chief Registrar to verify who was correct in their recollection, either Maya Wati Prakash, or Subhasni Singh, or neither of them.

[227] Applying the test set out in Jones v Dunkel (subject to the conditions that I have set out above), in relation to the absence of ‘cousin brother Virend’, a relative of Maya Wati Prakash, I have come to the view that:

(1) The three conditions set out by Glass JA in Payne v Parker not satisfied -

(i) ‘the missing witness would be expected to be called by one party rather than the other’ – Virend would be expected to be called (if his evidence was relevant) by the Applicant Chief Registrar rather than the Respondent;

(ii) the missing witness’ ‘evidence would elucidate a particular matter – for the reasons outlined above, Virend’s evidence would NOT, in my view, elucidate in relation to how and when the instructions were given to Prem Narayan, other than, perhaps, some hearsay evidence that may have been conveyed to him either by Maya Wati Prakash. As the State Administrative Tribunal of Western Australia noted in disciplinary proceedings in Trowell (supra), at [87] ‘In order for the rule in Jones v Dunkel to operate, the evidence of the missing witness must be such as would have elucidated a matter. It is not enough to conclude that a witness may have knowledge’;

(iii) the missing witness’ ‘absence is unexplained’ – Virend’s absence from the proceedings before this Commission is unexplained, however, his evidence on this particular issue would probably be irrelevant;

(2) Accordingly, no inference will be drawn in relation to the absence of evidence from ‘cousin brother Virend’ as to how and when the instructions were given to Prem Narayan;

(3) I have also noted when considering what inference, if any, to be drawn, ‘that this is not an ordinary civil action but rather it constitutes professional disciplinary proceeding ... subject to its own statutory procedures’ including that ‘the Commission is not bound by formal rules of evidence ... and the Commission must act fairly in relation to the proceeding’.

(ix) No evidence called from Jayawant Pratap, the uncle of Pranita Devi

[228] I note that while there was mention by Pranita Devi in her evidence of her uncle, Jayawant Pratap, he was not called in the present proceedings before this Commission.

[229] I note that the mention in the evidence of Pranita Devi as to the involvement of her uncle, Jayawant Pratap, as follows:

(1) As Counsel for the Applicant Chief Registrar has noted (‘Closing Submissions’, 8^th January 2018, at [268]-[269], [273]. [330]-[331]), in her, Pranita Devi claimed –

(i) ‘after her husband’s death, she went to the Respondent’s office along with her uncle Jaywant [sic] Pratap but she could not recall the exact date to have LA obtained as SPM owned many things’

(ii) When the Respondent had said ‘that he was acting for MWP ... her uncle requested the Respondent that since he was related why didn’t he act for PD and the Respondent agreed’;

(iii) ‘she could not recall the number of times she paid a visit to the Respondent’s law firm before LA was granted but went a number of times with her uncle Jaywant [sic]’;

(iv) ‘on 6^th January 2009, she went back to the Respondent’s law firm accompanied by her uncle. She stated that it was her uncle, Jaywant [sic] Pratap’s decision to visit the Respondent’s law firm and discuss about the probate matters as her in-laws would not give her any share and her uncle thought that Subhasni is educated and she might take steps which might lead to PD not getting anything’;

(v) ‘she had told her uncle about joint instructions and that her uncle told her to apply solely’;

(vi) ‘she was not told by the Respondent or anyone from his firm that MWP had uplifted the documents ... . as at 6 January 2009, she was neither aware of SPM’s Will nor had she seen it anywhere.’

[230] Counsel for the Applicant Chief Registrar, has then summarised the evidence in re-examination of Pranita Devi in relation to when she first instructed the Respondent to make a sole application for a grant of Letters of Administration was, in summary, as follows: (‘Closing Submissions’, 8^th January 2018, at [338]):

‘She was shown Exhibit 3 and asked why she changed from joint instructions to sole and she replied that her uncle told her that since she was no longer staying with her in-laws, she should take out LA solely. She stated that the Respondent was already acting for MWP but upon her uncle’s request, he was willing to act for her. She also stated that he checked for any existing Will but there was no Will found and so he proceeded with LA.’

[My emphasis]

[231] Applying the rule in Jones v Dunkel subject to the conditions that I have set out above, I have come to the view that:

(1) The three conditions set out by Glass JA in Payne v Parker are satisfied -

(i) ‘the missing witness would be expected to be called by one party rather than the other’ – Jayawant Pratap, the uncle of Pranita Devi, would be expected to be called by the Applicant Chief Registrar rather than the Respondent;

(ii) the missing witness’ ‘evidence would elucidate a particular matter – for the reasons outlined above, Jayawant Pratap’s evidence would elucidate in relation to how and when the instructions were given to the Respondent on 6^th January 2009;

(iii) the missing witness’ ‘absence is unexplained’ – Jayawant Pratap’s absence from the proceedings before this Commission is unexplained;

(2) The inferences to then be drawn can be -

(i) ‘the evidence of the absent witness would not assist the case of that party’; and (ii) ‘that the trier of fact may draw an inference unfavourable to that party with greater confidence’;

(iii) ‘But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party’;

(3) I have noted when considering what inference, if any, to be drawn, ‘that this is not an ordinary civil action but rather it constitutes professional disciplinary proceeding ... subject to its own statutory procedures’ including that ‘the Commission is not bound by formal rules of evidence ... and the Commission must act fairly in relation to the proceeding’.

[232] I can only conclude, therefore, that in relation to the proceedings before this Commission, Jayawant Pratap, the uncle of Pranita Devi, was not called as his evidence would not have assisted the case of the Applicant Chief Registrar in relation to how and when the instructions were given on 6^th January 2009 to Patel Sharma Lawyers.

(x) Analysis and findings on evidence

[233] If Patel Sharma Lawyers continued to be instructed as from 15^th December 2008 and the instructions had not also been withdrawn by Maya on that same date (as claimed by Maya in her evidence), then, in my view, it makes no sense (even noting that it was around the commencement of the legal vacation) that Patel Sharma Lawyers would do no work on the joint application when the parties had stressed the urgency of the matter and later simply have published a notice in the Fiji Sun on 6^th January 2009 that they were acting solely for Pranita Devi.

[234] Instead, I find that it makes logical sense, as per the evidence of Dipka Mala and Suruj Sharma, that the file was closed as from 15^th December 2008 as the joint instructions had been withdrawn unilaterally by Maya and then, on 6^th January 2009, when Pranita Devi attended the law firm of Patel Sharma Lawyers, she gave new instructions authorising the law firm to prepare an application for a grant of Letters of Administration under her sole name (see Exhibit 3).

[235] I find the evidence of Maya Wati Prakash on this issue to be unreliable, noting:

(1) Apart from noting that Exhibit 47 contains a copy of the same advertisement which was published in the Fiji Sun on 6^th January 2009 (not the Fiji Times), it was incorrect of Maya Wati Prakash to claim in her evidence that the advertisement ‘stated that all the property would belong to PD’. Instead, a reading of the advertisement makes clear that it was a notice that an application ‘that after expiration of twenty one days (21) an application will be made to the High Court of Fiji at Suva for grant of Letters of Administration in the Estate of SALEN PRAKASH MAHARAJ ... Intestate who died on the 24^th of November, 2008’ and ‘creditors and other persons having claims’ were to send particulars to Patel Sharma Lawyers as Solicitors for the Administratrix (Exhibit 20);

(2) The evidence of Maya Wati Prakash was that on 15^th December 2008 in relation to the conference with Mr. Sharma (as Counsel for the Applicant Chief Registrar has noted): ‘he informed her that she would receive 50% of SPM’s estate and she was content with this arrangement’. By way of contrast, the evidence of Subhasni Singh (as even Counsel for the Applicant Chief Registrar has noted), was: ‘her mum discussed with her as to what had transpired inside [Mr. Sharma’s office] and told her that ... the Estate of SPM would be divided with 75% shares going to Pranita Devi (PD) and 25% to MWP’, and ‘That MWP was not happy that she was getting only 25% and she was advised by her cousin brother Viren [sic] to hire another solicitor’. I note that the ‘cousin brother Virend’ of Maya Wati Prakash was not called by Counsel for the Applicant Chief Registrar to verify who was correct in their recollection, either Maya Wati Prakash, Subhasni Singh, or neither of them. So whom is Counsel for the Applicant Chief Registrar asking me to believe? I am none the wiser. Indeed, when I asked this at the clarification hearing on 25^th April 2018, the oral submission of Counsel for the Applicant Chief Registrar was that it is a matter for the Commission to decide;

(3) According to the summary as set out in the written submissions of Counsel for the Applicant Chief Registrar (‘Closing Submissions’, 8^th January 2018, at [24]), of the evidence of Maya Wati Prakash was that ‘She went back to the Respondent’s firm to enquire about LA that was taken out under PD’s name’. That would put the date after 16^th February 2009 when the Letters of Administration were granted. Further, according to the summary of the evidence of Maya Wati Prakash as set out in the written submissions of Counsel for the Applicant Chief Registrar, (at [24]-[25]), ‘The Respondent informed her that PD would get the property because she was the widow of SPM. She then asked the Respondent to take her case. Respondent informed her that he could only take PD’s case.’ How does this evidence reconcile with the conference on 15^th December 2008 where it is documented that Maya Wati Prakash signed joint instructions to apply for a joint grant of Letters of Administration, unless, of course, Maya Wati Prakash had also withdrawn instructions later that day on 15^th December 2008? It also becomes more bizarre when one considers Pranita Devi’s evidence wherein she alleges that the Respondent said the exact opposite to Pranita on 6^th January 2009 when the Respondent allegedly advised Pranita that he was only acting for Maya Wati Prakash;

(4) I further note that on the complaint form completed by Maya Wati Prakash lodged with the Legal Practitioners Unit on 11^th March 2010 [Exhibit 8], where it asks, ‘Date of last contact with practitioner/s/law firm’, there has been inserted a handwritten answer: ‘December – 2007’. [My emphasis] Whilst I note that in her evidence before the Commission, Maya Wati Prakash confirmed that she only signed the form and as to who wrote the first three pages, she advised “It’s Rosie I’m sure”, that is, her daughter, Subhasni Singh (called “Rosie”). I also note, as Counsel for the Applicant Chief Registrar set out in his written submissions summarising the evidence of Carol Sheenal Singh, Maya’s granddaughter and the daughter of Subhasni Singh, (‘Closing Submissions’, 8^th January 2018, at para [243]) (to which I agree): ‘She was shown Exhibit 8 and in particular page 31 and she confirmed that the contents were told by her grandmother and she typed it. She stated that she did not add on anything.’ [My emphasis] I can only note that whoever wrote ‘December – 2007’, even if it was an error and should have been December 2008, the date fits closer to the evidence of Dipka Mala than when Maya claimed in her evidence before the Commission (as I have noted above) that ‘She went back to the Respondent’s firm to enquire about LA that was taken out under PD’s name’, that would put the date after 16^th February 2009 when the Letters of Administration were granted.

[236] I find the evidence of Subhasni Singh on this issue to be unreliable, noting that the evidence-in-chief of Subhasni Singh was (as summarised by Counsel for the Applicant in his written submissions at [130]), ‘That in 2009, MWP instructed Ms. Prem Narayan and that she did not accompany her mum to Prem Narayan’s office’. Under cross-examination, however, she said that Prem Narayan was hired in late December 2008.

[237] I find the evidence of Prem Narayan to be unreliable, noting:

(1) Even though Prem Narayan is both a practising lawyer and operating her own firm, her evidence was, surprisingly, based not upon any documentation, but her memory. Indeed, Prem Narayan admitted in cross-examination that there were no file notes or emails her in file;

(2) Indeed, even Counsel for the Applicant Chief Registrar noted in his written submissions of Prem Narayan’s evidence, that ‘PLN couldn’t say when exactly she first saw MWP but it was late December 2008 or early January 2009’;

(3) Prem Narayan’s recollection was (as, summarised by Counsel for the Applicant Chief Registrar), that ‘the information that she had was that MWP and PD were going to jointly apply for probate and that on Christmas day, PD left the house and that then they were told by the Respondent’s firm that the firm would only act for PD’. This raises questions as to the accuracy of her instructions –

(i) How could it be said that Maya Wati Prakash and Pranita Devi ‘were going to jointly apply for probate’ when there was no will? This does not make any sense. Surely, for Ms. Narayan, this should have been a “red flag” warning (so to speak) to tread carefully and that perhaps “the information” that she was receiving (by whom we were not told, but presumably Maya Wati Prakash and/or Subhasni Singh and perhaps Ireen Lata Prasad) may have been suspect;

(ii) “The information” should also have raised another “red flag” for Ms. Narayan when she claimed ‘that then they were told by the Respondent’s firm that the firm would only act for PD’. Surely, if the parties had signed joint instructions, why would the Respondent’s firm now allegedly ‘only act for PD’? Did Ms. Narayan ever ask “the information” as to what occurred after ‘MWP and PD were going to jointly apply for probate’ on 15^th December and when was the date when “the information” went and saw Patel Sharma Lawyers and were advised ‘that the firm would only act for PD’?

(4) Prem Narayan claimed that most of her contact in this matter was with Subhasni Singh – even though Subhasni’s evidence was that ‘she did not accompany her mum to Prem Narayan’s office’;

(5) Prem Narayan’s evidence (as noted by Counsel for the Applicant Chief Registrar, in his ‘Closing Submissions’, 8^th January 2018, at [218]), was that ‘in January 2010, Irene [sic] told her that she was going through boxes looking for documents for Subhashni [sic] in Caubati’ when Ireen found the will. Prem Narayan then had to be reminded of Subhasni Singh’s evidence given previously before the High Court on 29^th October 2012 (doc.21, p.44, Exhibit 47, p.157) wherein Subhasni stated that after she found the Will, ‘I handed it [the will] over to her’ [Prem Narayan]. As Counsel for the Chief Registrar has noted, in his ‘Closing Submissions’, 8^th January 2018, at [233], Prem Narayan ‘then stated that it has been a long time ago and she cannot remember’. [My emphasis]

[238] I find the evidence of Pranita Devi to be unreliable, noting:

(1) Pranita Devi claimed ‘that the Respondent told them that he was acting for MWP’ and then ‘her uncle requested the Respondent that since he was related why didn’t he act for PD and the Respondent agreed’. As with the claim of Maya Wati Prakash, that the Respondent allegedly told Maya Wati Prakash that the Respondent was acting for Pranita Devi, we now had Pranita Devi claiming that the Respondent told Pranita that the Respondent was acting for Maya Wati Prakash. Again, it just does not make any sense. Surely, if Pranita Devi and Maya Wati Prakash had signed joint instructions on 15^th December 2008, why would the Respondent now allegedly be telling Pranita Devi on 6^th January 2009 that ‘he was acting for MWP’ solely?

(2) Pranita Devi’s evidence that when her uncle then reminded the Respondent that “he was related” such that the Respondent immediately agreed to cease acting for Maya Wati Prakash and start acting for Pranita Devi, I find to be preposterous in the extreme. Further, I note that Counsel for the Applicant Chief Registrar never put to either Dipka Mala or Suruj Sharma that this is what allegedly occurred;

(3) I further note that while there was mention by Pranita Devi of her uncle, Jayawant Pratap, being present at the conference on 6^th January 2009 when the alleged (what I can only term ‘bizarre’) conversation took place between the uncle and the Respondent (wherein the Respondent was reminded that “he was family” and so the Respondent immediately ceased to act for Maya Wati Prakash and agreed to act solely for Pranita Devi), Jayawant Pratap was not called in the present proceedings before this Commission. I can only conclude, therefore, (as per my analysis above) that Jayawant Pratap was not called as his evidence would not have supported the bizarre claim of Pranita Devi nor assisted the case of the Applicant Chief Registrar.

[239] Clearly, at some stage, the documents must have been uplifted by Maya Wati Prakash from Patel Sharma Lawyers, however, in their evidence neither Maya Wati Prakash nor Subhasni Singh gave another date (as an alternative date to 15^th December 2008) when the documents were uplifted. In addition, it was never put by Counsel for the Applicant Chief Registrar to either Dipka Mala and/or Suruj Sharma that the uplifting of the documents never occurred or occurred on another date other than 15^th December 2008.

(xi) Overall findings on the joint application for Letters of Administration and the alleged withdrawal of instructions

[240] My findings as to whether the joint application for Letters of Administration in relation to the Estate of Salen Prakash Maharaj was withdrawn by Maya on 15^th December 2008, or, alternatively, that the Respondent (sometime in January 2009) allegedly advised Maya Wati Prakash that the Respondent would only represent the widow, Pranita Devi, are:

(1) Ireen Lata Prasad was not called in evidence, so I can only presume (for the reasons outlined above) that her evidence would not have assisted the case of the Applicant Chief Registrar;

(2) Although a person referred to as “Cousin brother Virend” was not called in evidence, I have come to the view (for the reasons outlined above) that his evidence would not elucidate as to how and when instructions were given to Prem Narayan and therefore no inference will be drawn as to the absence of his evidence;

(3) Jayawant Pratap, an uncle of Pranita Devi, was not called in evidence, so I can only presume (for the reasons outlined above) that his evidence would not have assisted the case of the Applicant Chief Registrar;

(4) The evidence of Maya Wati Prakash as to how and when the initial joint instructions to Patel Sharma Lawyers for the preparation of a joint application for an application for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj were withdrawn and as to how, when and where, Prem Narayan was instructed, is unreliable;

(4) The evidence of Subhasni Singh as to how and when the initial joint instructions to Patel Sharma Lawyers for the preparation of a joint application for an application for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj were withdrawn and as to how, when and where, Prem Narayan was instructed, is unreliable;

(5) The evidence of Prem Narayan as to how, when and where, she was instructed by to act on behalf of Maya Wati Prakash in relation to the Estate of Salen Prakash Maharaj, is unreliable;

(6) The evidence of Pranita Devi as to how, when and where, she instructed the Respondent to act solely on behalf in relation to obtaining a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj, is unreliable;

(7) I am able to make findings as to how, when and where, the instructions for a joint application for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj were withdrawn and a new application on behalf of the widow was made, based upon the evidence of Dipka Mala who I have found to be the most reliable witness in these proceedings, as well as the evidence, in part, of Mr. Suruj Sharma (noting that he did not meet Maya Wati Prakash on the second occasion when she returned in the afternoon of 15^th December 2008 and only heard of this through Dipka Mala) as follows -

(i) On the afternoon of 15^th December 2008, Maya Wati Prakash attended the offices of Patel Sharma Lawyers for the second occasion on that day and spoke with Dipka Mala;

(ii) In attendance with Maya on this second occasion on 15^th December 2008, was a woman not recognised by Dipka Mala, hence it could not have been Subhasni Singh and may well have been Maya’s second daughter Ireen Lata Prasad, however, I cannot make a positive finding without Dipka Mala having been shown a photograph of Ireen Lata Prasad and/or Ireen Lata Prasad have been called to give evidence, neither of which has occurred;

(iii) Maya Wati Prakash advised Dipka Mala that her daughter had seen another solicitor and Maya Wati Prakash wanted to uplift copies of her documents that she had left behind earlier in the morning;

(iv) I accept that as it was not made clear to Dipka Mala that only Maya Wati Prakash was instructing the new solicitor and not jointly with Pranita Devi and because Maya Wati Prakash and Pranita Devi had attended together earlier that day and were also residing in the same house, Dipka Mala released all the documents to Maya Wati Prakash.

(13) The sole application for Letters of Administration on behalf of the widow

[241] I now turn to the written submission of Counsel for the Applicant Chief Registrar in his reply in relation to Count 1 (‘Applicant’s Submissions in reply’, 20^th February 2018, page 2, at para [8]) that: The evidence of MWP is clear and has not been refuted on the issue that she was informed by the Respondent that PD would get the property because she was the widow of SPM and that she was further informed by the Respondent that he would only represent PD. Hence, she hired the services of Ms. Narayan.’

[242] I have found above that the evidence of Maya Wati Prakash in relation to what occurred on the 15^th December 2008 is unreliable and have preferred instead the evidence of Dipka Mala. It is clear that on 15^th December 2008, the firm of Patel Sharma Lawyers took joint instructions from Pranita Devi and Maya Wati Prakash to apply for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj. I accept that later that same day, Maya Wati Prakash returned to the offices of Patel Sharma Lawyers, uplifted the documents and proceeded elsewhere. Accordingly, Dipka Mala, presuming that Maya Wati Prakash and Pranita Devi were still acting together, closed the firm’s pending file.

[243] Why then did the Respondent then make a sole application on behalf of Pranita Devi, as the widow, to be granted Letters of Administration, which I note was granted on 16^th February 2009, in relation to the Estate of Salen Prakash Maharaj (Exhibit 5)?

(i) The evidence of Maya Wati Prakash

[244] I have set out above, when discussing the joint application and the circumstances of the withdrawal of those instructions unilaterally by Maya Wati Prakash on 15^th December 2008, that Maya’s evidence was that she did not return and withdraw instructions on 15^th December 2008 (I have found, however, that she did) and it was only after she had heard that an advertisement had been published in the Fiji Times (Exhibit 47, however, contains a copy of an advertisement was published in the Fiji Sun) that Letters of Administration were to be applied in favour of Pranita Devi that she returned to the offices of Patel Sharma Lawyers and was advised that Suruj Sharma was acting solely for Pranita Devi, following which she instructed another lawyer.

[245] I also note that the above evidence of Maya is in contrast with her complaint form lodged on 11^th March 2010 with the Legal Practitioners Unit within the Office of the Chief Registrar signed and dated on that same date by Maya Wati Prakash (Exhibit 8). In completing the form, when asked ‘Date of last contact with practitioner/s/Law Firm’, Maya Wati Prakash answered ‘December 2007’. Even if this was an error and was meant to be December 2008 (instead of December 2007), the date of December 2008 was BEFORE not after the advertisement had been published in the Fiji Sun (Exhibit 47) on 6^th January 2009.

(ii) The evidence of Subhasni Singh

[246] As noted above, when discussing the joint instructions given on 15^th December 2008, according to the written submissions of Counsel for the Applicant Chief Registrar, the evidence-in-chief of Subhasni Singh on the issue of the Letters of Administration (‘Closing Submissions’, 8^th January 2018, at [132]) was: ‘That in 2009, MWP instructed Ms. Prem Narayan and that she [Subhasni] did not accompany her mum to Prem Narayan’s office.’

[247] I agree generally with the above as a summary of the evidence of Subhasni Singh on this issue and also noting that her evidence-in-chief was that “my sister [Ireen] must have accompanied her”. It is also in direct contrast with the evidence of her mother, Maya Wati Prakash, who, according to the written submissions of Counsel for the Applicant Chief Registrar (‘Closing Submissions’, 8^th January 2018 at [131]), stated: ‘According to her [Maya’s] re-collection, she believed that both daughters of MWP had accompanied her when instructions were given [to Prem Narayan].’ [My emphasis]

(iii) The evidence of Pranita Devi

[248] According to the written submissions of Counsel for the Respondent (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, page 13, subparas [xii]-[xiv]), the evidence of Pranita Devi in relation to the LA was:

‘[xii]. She said that she wanted to share the Estate with MWP but PLN objected and there was no settlement between the parties.

[xiii]. She admitted she gave instructions to PSA [Patel Sharma Associates] to take out Letters of Administration. She became the Administratrix of the Estate.

[xiv]. The monies owned to the Bank were paid off and with the balance she purchased two new mini vans in her own name.’

[249] I agree generally with the above as a summary of the evidence of Pranita Devi on this issue.

(iv) The evidence of Dipka Mala

[250] According to the written submissions of Counsel for the Applicant Chief Registrar, the evidence-in-chief of Dipka Mala in relation to the sole application of a grant of Letters of Administration was, in summary, as follows: (‘Closing Submissions’, 8^th January 2018, at [422]-[426]):

‘422. On 6^th of January 2009, PD came to the office with her uncle, Jaywant [sic] Pratap and advised them that she wanted to proceed with the LA application under her name only.

423. Respondent was present in the office on that day.
424. PD informed them that she did not have any problem with MWP but wanted to apply LA as she was entitled under law.
425. She stated that Respondent had advised PD that in the case will is found then LA would be revoked.
426. She stated that she did not take any notes.’

[My emphasis]

[251] I agree generally with the above as a summary of the evidence of Dipka Mala on this issue. I also note that Dipka Mala was asked no questions in cross-examination by Counsel for the Applicant in relation to the sole application made by Patel Sharma Lawyers on behalf of Pranita Devi for a grant of Letters of Administration of the Estate of Salen Prakash Maharaj.

(v) The evidence of Suruj Sharma

[252] According to the written submissions of Counsel for the Applicant Chief Registrar, the evidence-in-chief of Suruj Sharma in relation to the sole application of a grant of Letters of Administration was, in summary, as follows: (‘Closing Submissions’, 8^th January 2018, at [462]-[474]):

‘462. On 6 January 2009, PD and her uncle Jaywant [sic] Pratap visit the firm. They were both aware of the 15 December 2008 meeting although Mr. Jaywant [sic] Pratap was not there on 15 December 2008. My advice was that in the absence of a signed Will, LA was the option. Both were aware of that. He made it known to them that MWP had uplifted documents. That they were of the opinion that adviced [sic] given on 15 December 2008 did not change.

463. He stated that he was not in a situation of conflict because advice given to search for signed Will. On 24 November 2008 and 9 December 2008, they were informed about unsigned Will. Attempt made to have it signed. On 12 December 2008, once again the person entitled to grant of LA was advised to look for signed Will. He stated that he was acting for the estate of SPM and in law PD was entitled to estate. As for joint application, he stated that it was not his advice but their discussion.
464. He also stated that even at joint instruction stage, client was still estate of SPM and only difference that legal applicant would be PD and in law it did not alter the entitlement. He stated that no conflict as parties acknowledged that the person entitled was PD and MWP also acknowledges that her right does not kick in until a signed Will is found.
465. That on 15 December 2008, parties accepted that no executed Will as they could not locate the Will under which MWP is the sole beneficiary.
466. He stated that as at 15 December 2008, as per Dipka’s information, he was aware that MWP instructed another lawyer.
467. He stated that when PD came with sole instructions, he did not refer her to a third lawyer because they were acting for the Estate of SPM and the nature of rights and entitlement did not change irrespective where PD went, there would be a LA in any way. As a matter of law, the entitlement remained with PD.
468. He stated that to tackle the ethical issue of his firm preparing the Will and then taking out LA, he stated that there is a need to look at core facts and not in isolation and that only one copy was made and taken away. From 24 November 2008 to 6 January 2009, there was no signed Will and advice given to the person entitled in law was PD. Client which is the Estate of SPM remained the same and MWP was separately represented.
469. He stated that on 6 January 2009, he had nothing to expect (caveat etc) although as a matter of law he knew that caveat could be lodged.
470. That when MWp [sic] came on 15 December and uplifted documents, she wasn’t the client but nominated as the joint application. This situation remained until 6 January 2009.

471. That MWP was represented by PN and if Will was found, caveat could have been lodged.

472. That on 6 February 2009, LA was granted and advertisement lodged on 6 January 2009. Claim by PN on behalf of Subhasni was received although Subhasni never discussed about her claim when she first came to meet.
473. He stated that he did not act for any parties in High Court Action No. 81/2009.
474. That his firm’s engagement ended after LA granted and they would have done some letters for the Bank as is norm and that she paid $750. The file was with them until 28 March 2009 and released later.’

[My emphasis]

[253] According to the written submissions of Counsel for the Applicant Chief Registrar (‘Closing Submissions’, 8^th January 2018, at [485]-[486]), the evidence of Suruj Sharma in cross-examination in relation to the sole application of a grant of Letters of Administration was:

‘485. That he acted for PD in extracting LA when Will was previously made by the firm due to the factual background that MWP and Subhasni given a computer printout of Will and to look for signed Will. MWP and PD were aware of unsigned Will.

486. He stated that he did not decline to act for PD as he did not see any conflict and he did not feel he had any confidential information from MWP.’
     

[254] According to the written submissions of Counsel for the Respondent (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, pp. 15-16, subparas [xv]-[xvii]), the evidence of Suruj Sharma in relation to the sole application of a grant of Letters of Administration was:

‘[xv]. The Practitioner confirmed that his Firm was initially jointly instructed by MWP and PD to take out Letters of Administration but MWP then withdrew her instructions and had sought legal advice elsewhere.

[xvi]. On the issue of conflict the Practitioner did not see any conflict of interest as the signed Will was not found at the time his Firm was instructed to take out Letters of Administration. The Practitioner confirmed that both MWP and PD wanted to urgently administer the Estate of SP in December 2008.

[xvii]. The Practitioner had also previously taken steps to protect MWP by lodging a caveat against the Koronivia 9property [sic] on behalf of MWP. At no stage from the time of SP’s death to the time the High Court revoked the Grant of Letters of Administration did PD attempt to remove the caveat or evict MWP. MWP’s main concern was the home in Koronivia. MWP did not suffer any detriment or prejudice at all as she was never evicted from her house and eventually she sold this house. Her right or title to the Koronivia property were never challenged by PD.’

[My emphasis]

[255] I agree generally with the above as summaries of the evidence of Suruj Sharma on this issue.

[256] I note that Counsel for the Applicant never put to Suruj Sharma in cross-examination the evidence given by Pranita Devi (as summarised by Counsel for the Applicant set out above), that is:

(1)‘On 6^th January 2009, her uncle asked Respondent if LA could be extracted under PD’s name and the Respondent stated that he was acting for MWP. She stated that Mr. Sharma agreed to withdraw from MWP and act for PD in extracting LA’ – as I have already discussed above, apart from Maya saying that the Respondent told Maya that he was acting for Pranita and, by contrast, Pranita saying that the Respondent told her that he was acting for Maya and then changed his mind once he was reminded by Pranita’s uncle that the Respondent “was family”, I have found this aspect of Pranita’s evidence to be a preposterous allegation and contrary to the reliable evidence of both Dipka Mala and Suruj Sharma that on 15^th December 2008 Maya uplifted all of the documents;

(2) ‘She stated that she was not told by the Respondent or anyone from his firm that MWP had uplifted the documents’ – apart from this not being put to either Dipka Mala and/or Suruj Sharma in cross-examination, Dipka Mala was under the misunderstanding (as I have already discussed above) that when Maya withdrew the documents on 15^th December 2008 it was on behalf of both Maya and Pranita as Dipka Mala’s evidence was that earlier that day the joint conference “was a cordial meeting between the parties, ... they gave the instructions, nobody had objections to each other”;

(3) ‘She also stated that as at 6 January 2009, she was neither aware of SPM’s Will nor had she seen it anywhere’ – this is contrary to the evidence of both Dipka Mala and Suruj Sharma that on 15^th December 2008, Pranita Devi was shown a computer print out of the unsigned Will.

(vi) No evidence called from Jayawant Pratap, the uncle of Pranita Devi

[257] I note that there was mention in the evidence of Pranita Devi, Dipka Mala and Suruj Sharma that Jayawant Pratap, Pranita Devi’s uncle, was in attendance at the meeting in the offices at Patel Sharma Lawyers on 6^th January 2009. He was, however, not called in the present proceedings before this Commission.

[258] I have previously set out above in detail the evidence of Pranita Devi as to the involvement of her uncle, Jayawant Pratap, in being the instigator of the sole application for a grant of Letters of Administration and, in particular, his alleged role at the meeting on 6^th January 2009, as Counsel for the Applicant Chief Registrar has summarised in his ‘Closing Submissions’ of 8^th January 2018, at [268]-[269], [273], [330]-[331] and [338].

[259] Applying the rule in Jones v Dunkel subject to the conditions that I have set out above in relation to the absence of Jayawant Pratap, I have come to the view that:

(1) The three conditions set out by Glass JA in Payne v Parker are satisfied -

(i) ‘the missing witness would be expected to be called by one party rather than the other’ – Jayawant Pratap, the uncle of Pranita Devi, would be expected to be called by the Applicant Chief Registrar rather than the Respondent;

(ii) the missing witness’ ‘evidence would elucidate a particular matter – for the reasons outlined above, Jayawant Pratap’s evidence would elucidate in relation to how and when the instructions were given to the Respondent on 6^th January 2009;

(iii) the missing witness’ ‘absence is unexplained’ – Jayawant Pratap’s absence from the proceedings before this Commission is unexplained;

(2) The inferences to then be drawn can be -

(i) ‘the evidence of the absent witness would not assist the case of that party’; and (ii) ‘that the trier of fact may draw an inference unfavourable to that party with greater confidence’;

(iii) ‘But Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party’;

(3) I have noted when considering what inference, if any, to be drawn, ‘that this is not an ordinary civil action but rather it constitutes professional disciplinary proceeding ... subject to its own statutory procedures’ including that ‘the Commission is not bound by formal rules of evidence ... and the Commission must act fairly in relation to the proceeding’.

[260] I can only conclude, therefore, that in relation to the proceedings before this Commission, Jayawant Pratap, the uncle of Pranita Devi, was not called as his evidence would not have assisted the case of the Applicant Chief Registrar in relation to the sole application made by Patel Sharma Lawyers on behalf of Pranita Devi for a grant of Letters of Administration in the Estate of Salen Prakash Maharaj.

(vii) Overall findings on the sole application for Letters of Administration on behalf of the widow

[261] My findings in relation to why the Respondent made the sole application on behalf of Pranita Devi for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj are:

(1) The evidence of Pranita Devi as to how and when the instructions to Patel Sharma Lawyers for the preparation of a sole application for an application for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj were given by Pranita Devi is unreliable;

(2) Jayawant Pratap, the uncle of Pranita Devi, was not called in evidence, so I can only presume that his evidence would not have assisted the case of the Applicant Chief Registrar as to how and when the separate instructions to Patel Sharma Lawyers for the preparation of an application for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj were given by Pranita Devi;

(3) Although I have not heard from Jayawant Pratap, I am able to make findings based upon the evidence of Dipka Mala and Mr. Suruj Sharma as to how, when and where, instructions were given by Pranita Devi to Patel Sharma Lawyers for the preparation of a sole application for an application for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj as follows -

(i) On 6^th January 2009, Pranita Devi attended the offices of Patel Sharma Lawyers with her uncle, Jayawant Pratap and they spoke with Suruj Sharma in the presence of Dipka Mala;

(ii) The Respondent had advised Pranita Devi that in the case a Will was found then the grant of Letters of Administration would be revoked.

(iii) Pranita Devi gave signed instructions to the firm to proceed with a sole application on her behalf as the widow of Salen Prakash Maharaj for an application for a grant of Letters of Administration in relation to the Estate of Salen Prakash Maharaj.

(14) Analysis of Count 1

(i) Findings

[262] In reaching a conclusion in relation to Count 1, it is important to analyse what occurred after 15^th December 2008.

[263] On 6^th January 2009, Pranita Devi attended with her uncle the offices of Patel Sharma Lawyers and signed instructions, as the widow of Salen Prakash Maharaj, to apply for a grant of Letters of Administration in the Estate of Salen Prakash Maharaj (Exhibit 3). In accordance with those instructions, the Respondent placed an advertisement in the Fiji Sun (see Exhibit 47 with the specific date of 6^th January 2009). As I have noted near the beginning of this judgment, obviously, it was impossible to take signed instructions and have an advertisement published in the Fiji Sun on the same date. As no submissions have been made by Counsel for either party, however, in relation to this impossibility and its relevance or otherwise as to any of the four counts before me, it is not for me to resolve.

[264] On 27^th January 2009, Prem Narayan acting on behalf of Subhasni Singh arranged for a letter of demand to be delivered by hand to Patel Sharma Lawyers claiming $62,000 against the Estate of Salen Prakash Maharaj. I note that Prem Narayan did not raise in that letter that Patel Sharma Lawyers had a conflict of interest in acting on behalf of the widow of Salen Prakash Maharaj, in seeking to apply for a grant of Letters of Administration in the Estate of Salen Prakash Maharaj.

[265] Further, in her letter of 27^th January 2009 to Patel Sharma Lawyers, Prem Narayan never made a separate claim on behalf of Maya Wati Prakash, or set out such a claim in a separate letter. That is, Prem Narayan never put Patel Sharma Lawyers on notice that, on behalf of Maya Wati Prakash, she was:

(1) Alleging that Patel Sharma Lawyers had a conflict of interest in acting on behalf of the widow of Salen Prakash Maharaj, in seeking to apply for a grant of Letters of Administration in the Estate of Salen Prakash Maharaj;

(2) Making a claim against the Estate on behalf of Maya Wati Prakash; or

(3) Putting Patel Sharma on notice that the application for a grant of letters of administration would be challenged and a caveat would be lodged ‘against any application for probate administration’ (pursuant to section 46(1) of the Succession, Probate and Administration Act; or

(4) Putting Patel Sharma on notice that a separate application would be made to the High Court on the basis that the unsigned Will held in the computer of Patel Sharma Lawyers (of which Subhasni and Maya Wati Prakash had been aware since 25^th November 2008 and given a copy on 12^th December 2008) was arguably evidence (pursuant to section 6A of the Wills Act) of ‘the testamentary intentions’ of Salen Prakash Maharaj that Maya Wati Prakash be the sole beneficiary. That is, ‘even though it has not been executed in accordance with the formal requirements under section 6’ of the Wills Act, it ‘constitutes a Will of the deceased’ such that a Court would be ‘satisfied that the deceased person intended the document to constitute his ... will’. As Master Amaratunga observed in Lata v Sharma (Unreported, Civil Action 15 of 2007, 7 October 2011; PacLII: [2011] FJHC 633, <http://www.paclii.org/fj/cases/FJHC/2011/633.html> ) at [11]:

‘So, from this insertion of section 6A, it is clear that from 2004 the law relating to Wills have changed significantly and what is paramount is not the formalities that are contained in the Section 6 of the Wills Act, but the intention of the deceased.’

[My emphasis]

[266] In relation to the possibility of an application pursuant to section 6A of the Wills Act, I have, however, noted the oral submissions of Counsel for the Respondent made at the clarification hearing on 25^th April 2018 (set out earlier above), casting great doubt that any such application would be entertained by the High Court based upon a computer print out of an unsigned will. In the absence of submissions to the contrary, I tend to agree with those submissions.

[267] As for what inference, if any, I am supposed to draw from the letter of Prem Narayan of 27^th January 2009, Counsel for the Respondent submitted at the clarification hearing on 25^th April 2018, as follows:

(1) An inference can be drawn that Maya Wati Prakash was being represented by an independent legal practitioner, Prem Narayan, in her professional capacity, as a litigator;

(2) Maya Wati Prakash was not being represented by the Respondent after 15^th December 2008;

(3) Prem Narayan’s evidence was that she met Maya Wati Prakash in late December 2008.

[268] Counsel for the Applicant did not seek to respond to the above submissions.

[269] I agree with most of the above submissions of Counsel for the Respondent except that I note that the written submissions of both Counsel have summarised the evidence of Prem Narayan being that she could not recall the exact date when she first received instructions from Maya Wati Prakash but it was sometime in late December 2008 or early January 2009. I have, however, already made a finding above that the evidence of Prem Narayan as to how, when and where, she was instructed by to act on behalf of Maya Wati Prakash in relation to the Estate of Salen Prakash Maharaj, is unreliable.

[270] On 16^th February 2009, Letters of Administration were granted to Pranita Devi as the widow of Salen Prakash Maharaj (Exhibit 5).

[271] As Counsel for the Respondent submitted at the clarification hearing on 25^th April 2018, there is a logical sequence to what was required of Pranita Devi once the grant of Letters of Administration was granted to her. She had to comply with the law. Counsel for the Applicant did not seek to respond to the submission. I agree with this submission of Counsel for the Respondent.

[272] On 26^th February 2009, Prem Narayan again acting on behalf of Subhasni Singh sent a second letter of demand to Patel Sharma Lawyers claiming $62,000 against the Estate of Salen Prakash Maharaj but, thereafter, took that claim no further. As with the previous letter of demand of 27^th January 2009, the letter of 26^th February 2009 did not raise with Patel Sharma Lawyers that they had an alleged conflict of interest in acting on behalf of the widow of Salen Prakash Maharaj, in seeking to apply for a grant of Letters of Administration in the Estate of Salen Prakash Maharaj (Exhibit 44, p.120).

[273] On 6^th March 2009, Prem Narayan filed an application in the High Court on behalf of Maya Wati Prakash, seeking (amongst a number of orders) that the Letters of Administration be recalled and a fresh grant be issued to Maya Wati Prakash and Pranita Devi (Exhibit 6). Prem Narayan never proceeded with this claim.

[274] On 28^th March 2009, an attempt at settlement between Pranita Devi and Maya Wati Prakash was held at the offices of Patel Sharma Lawyers with Jayawant Pratap, the uncle of Pranita Devi talking on her behalf and Prem Narayan, acting on behalf of Maya Wati Prakash, with the Respondent only being a passive facilitator of the meeting. After that meeting, the Respondent was not involved. Pranita Devi was then represented by the firm of Kohli and Singh and later by Willy Hiuare.

(ii) What of the above conduct of the Respondent was professional misconduct?

[275] What then of the above history of the conduct of the Respondent and his firm was professional misconduct? As I understood the written submissions of Counsel for the Applicant Chief Registrar (‘Applicant’s Submissions in reply’, 20^th February 2018, page 2, at para [7]), ‘the practitioner ought not to have pursued the application for Letters of Administration’ on behalf of the widow, Pranita Devi, ‘when ... his firm had been [previously] engaged in the preparation of the deceased’s Will under which the sole beneficiary was MWP’ as the Letters of Administration issued to Pranita Devi ‘was against the interests of the Estate of SPM’.

[276] In my view, it was not enough to simply infer conflict. Instead, Counsel for the Applicant Chief Registrar needed to:

(1) establish as to how there arose a duty to Maya as the beneficiary under a signed but missing Will; and

(2) only then could he proceed to allege why the Respondent was then in conflict with that duty by acting for the widow in accordance with the law; and

(3) thus, although acting in accordance with the law, the Respondent had committed an act of professional misconduct.

[277] The problem also, in my view, with the written submissions of Counsel for the Applicant Chief Registrar alleging conflict was that it first needed to be resolved who was the client? If Salen, as the testator, had left his Will in the custody of the firm of Patel Sharma Lawyers, then upon his death the firm would be under a legal duty to notify the Executor of his Estate named in that Will (being Maya Wati Prakash) and, if so instructed by her, obtain a grant of probate (with such costs associated in obtaining that grant to be paid from the Estate) and then Maya Wati Prakash, as the Executor, would have then been responsible for the distribution of the Estate in accordance with Salen’s Will. That is, after paying Salen’s debts, to distribute the balance of the Estate to herself as the sole beneficiary named in Salen’s Will.

[278] But who was the client where the Will was not left in the firm’s custody? Where Salen, as the testator, did not leave his Will in the custody of the firm of Patel Sharma Lawyers, then Salen was simply a previous client and the legal duty of Patel Sharma Lawyers was at an end on 22^nd December 2006 so long as the Will had been correctly drafted and executed on that date.

[279] Upon Salen’s death on 24^th November 2008, either the family had to locate his Will and Maya, as the named Executor in the Will, had to instruct a lawyer to assist in making an application for a grant of probate, or, instead, as actually occurred, when the family could not locate Salen’s signed Last Will and Testament (and thus there was no formally named executor), according to the law, an application then had to be made to the High Court for a grant of Letters of Administration. But who was to make that application?

(iii) Section 7(a) of the Succession, Probate and Administration Act

[280] Thus, I asked both Counsel at the hearing on 25^th April 2018, to clarify:

(1) When the Will could not be found what had to be done?

(2) Did not section 7(a) of the Succession, Probate and Administration Act come into play requiring for the application for a grant of Letters of Administration of the Estate to be made by the ‘wife of the deceased’, Pranita Devi?

[281] According to the oral submissions of Counsel for the Respondent:

(1) The parties had been given the opportunity to look for the Will;

(2) When the Will could not be found, section 7(a) of the Succession, Probate and Administration Act required the widow to apply for a grant of Letters of Administration.

[282] The oral submission of Counsel for the Applicant Chief Registrar in response was that someone had to apply for a grant of Letters of Administration, however, the Respondent should not have done so on behalf of the widow.

[283] The oral submission of Counsel for the Respondent in reply was that nothing had changed even when the Will was found on 23^rd January 2010.

[284] I note that the law in Fiji as at 6^th January 2009 was that if there was no Will found of a deceased person, then an application to the High Court for a grant of Letters of Administration had to be in accordance with the strict order of priority set out in section 7 of the Succession, Probate and Administration Act (Cap. 60) (PacLII: <http://www.paclii.org/fj/legis/consol_act/spaaa376/> ) as amended by the Succession, Probate and Administration (Amendment) Act 2004 (PacLII: <http://www.paclii.org/fj/legis/consol_act/spaaa376/> ).

[285] I note also that the Act was recently amended in March 2018 to cover de facto relationships (see Act No. 6 of 2018, the Succession, Probate and Administration (Amendment) Act 2018, assented on 16^th March 2018, <http://www.parliament.gov.fj/wp-content/uploads/2018/03/Act-6-Succession-Probate-and-Administration-Amendment.pdf> ). Although this may or may not have been an issue considering the limited evidence before the Commission as to the living arrangements between Salen and the second Pranita in 2006, however, as that was an issue that was not applicable as at 24^th November 2008, I will put it to one side.

[286] Instead, the relevant order as to who could apply for Letters of Administration from the applicable legislation in 2008 was as follows:

‘PART IV-GRANTS OF LETTERS OF ADMINISTRATION

Persons entitled to grant

7. The court may grant administration of the estate of a person dying intestate to the following persons (separately or conjointly) being not less than 21 years of age-

(a) the husband or wife of the deceased; or

(b) if there is no husband or wife, to one or more of the next of kin in order of priority of entitlement under this Act in the distribution of the estate of the deceased; or

(c) any other person, whether a creditor or not, if there is no person entitled to a grant under paragraphs (a) and (b) resident within the jurisdiction and fit to be so entrusted, or if the person entitled as aforesaid fails, when duly cited, to appear and apply for administration.’

[287] Put simply, as at the time on Salen’s death on 24^th November 2008, section 7(a) of the Succession, Probate and Administration Act required the grant of the Letters of Administration of the Estate to be by the ‘wife of the deceased’, Pranita Devi. I also note:

(1) The priority of the widow (pursuant to section 7(a) of the Succession, Probate and Administration Act) was the law as at 15^th December 2008, when, as the Respondent noted in his evidence, he explained to Pranita and Maya that a joint application by the widow and the mother of the deceased may be rejected by the High Court;

(2) It continued to be the law when the practitioner was again approached, but this time solely by the widow, on 6^th January 2009 (Exhibit 3) to act; and

(3) It was still the law, when the grant of Letters of Administration was made on 16^th February 2009 (Exhibit 5).

[288] Thus, if the will of Salen could not be found by his relatives, then what else was the Respondent legal practitioner supposed to do when he was approached by the widow, Pranita Devi, to assist her on 6^th January 2009?

[289] As I understood the written submissions of Counsel for the Applicant Chief Registrar (which he confirmed in his oral submissions at the clarification hearing on 25^th April 2018), the Respondent should have referred the widow to another practitioner to do exactly the same task as the Respondent was being asked to do, that is, to make an application for a grant of Letters of Administration on behalf of the widow.

[290] As I read the written submissions of Counsel for the Applicant Chief Registrar, I came to the view, that he had failed to explain how the Respondent, by applying for Letters of Administration on behalf of the widow, Pranita Devi, (which was in strict accordance with section 7 of the Succession, Probate and Administration Act), was in conflict with his duty to Maya Wati Prakash (as the beneficiary listed under Salen’s signed but missing will). Further, it was also unclear to me how this was an act of professional misconduct.

[291] Hence, I asked both Counsel to clarify their positions on this issue at the hearing on 25^th April 2018.

[292] The oral submissions of Counsel for the Respondent were, in summary:

(1) The legal basis of the limited duty of care owed by the Respondent was to ensure that a valid Will was drawn and executed;

(2) Once the testator took the Will home with him, the Respondent no longer owed a duty of care;

(3) The judgment in Badenach makes clear that there was no duty of care owed to the beneficiary;

(4) What crystallised on 15^th December 2008 was that the Respondent advised that as no signed Will was located there would have to be an application for a grant of Letters of Administration.

[293] Counsel for the Applicant Chief Registrar’s oral submissions in response were, in summary:

(1) Paragraph 59 of Gageler J’s judgment in Badenach makes clear:

‘The solicitor's duty of care is instead limited to a person whom the testator actually intends to benefit from the will and is confined to requiring the solicitor to take reasonable care to benefit that person in the manner and to the extent identified in the testator's instructions. The testator's instructions are critical. The existence of those instructions compels the solicitor to act for the benefit of the intended beneficiary to the extent necessary to give effect to them.’

(2) Thus, the Respondent was duty bound to give effect to the testator’s intention, that is, for Maya Wati Prakash to be the beneficiary of the estate;

(3) Warning bells should have rung and the Respondent should have referred the widow to another solicitor;

(4) The factual scenario in the present case is quite different to Hill v Van Erp.

[294] Counsel for the Respondent’s oral submissions in reply were:

(1) Badenach is “on all fours” so to speak with the present case where the scope was limited to the circumstances of the retainer;

(2) In the present case, the Respondent’s firm was instructed to draft a valid Will. It was signed and executed. The duty cannot be extended beyond those limited instructions. If the testator had left the Will in the firm’s Wills Register that would have been a duty extending to the beneficiary but the testator did not do so.

[295] I note that Counsel for the Respondent expanded on this issue in their joint written synopsis tendered on 25^th April 2018, wherein they stated at para [26]:

‘The fact that the retainer ended when the Will was taken away is yet again seen in the judicial exposition of the duty of care in like circumstances in Badenach by Gageler J at [69] where his Honour said:

“...The problem is at an anterior stage in the analysis. It stems from the absence of a fact necessary to establish a duty of care of the requisite scope and to give rise to the existence of damage: an expansion in the scope of the Testator’s instructions – a new or enlarged retainer.”’

[296] In my view, the Applicant Chief Registrar has failed to establish as to how the Respondent owed to Maya as the beneficiary under the signed but missing Will of Salen a duty of care.

(iv) Chaudhry v Chief Registrar – of little relevance?

[297] On the issue of conflict of interest, as noted above, Counsel for the Applicant Chief Registrar raised in his initial written submissions in relation to Count 1 (‘Closing Submissions’, 8^th January 2018, at paras [489]-[491]) that ‘there was an unsigned copy of the Will, the Respondent had knowledge of the deceased’s intention of how he wanted his estate to be administered ... the Respondent went ahead and acted against that interest by acting for the widow and extracting LA on her behalf’. Counsel then cited Chaudhry v Chief Registrar (supra) in support of this submission and the four categories of conflict set out by Marsoof JA (without specifying which of the four actually applied to the present case) and then concluded at [491] ‘the Respondent owed a duty to MWP and by acting against her interest acted in a conflicting situation’.

[298] In his Synopsis Reply of 4^th May 2018, Counsel for the Applicant Chief Registrar has again cited the decision of the Supreme Court in Chaudhry v Chief Registrar ‘wherein the Court articulated the four categories of conflict of interest’. On this occasion, however, Counsel has submitted at para [4] ‘that the Respondent’s conduct falls within the second and third category [sic] and hence amounts to him being in a conflicting situation’ and then cited those two categories being:

‘(b) Conflicts between the interests of two or more clients the practitioner is currently representing;

(c) Conflicts between the client's interests and those of third parties to whom the practitioner owes obligations’.

[My emphasis]

[299] I note that in Chaudhry, the legal practitioner faced an allegation under section 82(1)(b) of the Legal Practitioners Act 2009, which states: 


‘Professional Misconduct

82.—(1) For the purposes of this Decree, “professional misconduct” includes –

...

(b) conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law, that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice, or that the law firm is not fit and proper to operate as a law firm.’

[300] Thus, the prohibited conduct pursuant to section 82(1)(b) is ‘conduct ... that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice’. The conduct in Chaudhry that was alleged to be prohibited conduct was that the legal practitioner acted as Counsel on behalf of a defendant in a criminal matter where the legal practitioner ‘was [also] the victim of a charge of giving false information to a public servant’ contrary to 209(1) of the Crimes Decree 2009, (the details of which were then set out as nine ‘particulars of the offence appended to the charge’). As Marsoof JA (with whom Gates P and Keith JA agreed) noted:

‘45. The question in this case is whether the Commissioner was justified in finding that RC was not a fit and proper person to engage in legal practice ...

46. The false information adverted to in the charge was the allegation of rape and sexual abuse made by MB against RC, which allegation constituted the subject matter of her statement to the police made on 13th June 2011. This allegation was withdrawn by MB in her affidavit of 4th July 2011, and it was after the withdrawal of the said allegation that resulted in MB being charged for giving false information to a public officer.
47. It is in this backdrop that RC appearance on behalf of MB in the Magistrates Court on 15th September 2011 has to be viewed. On that date, RC not only appeared for MB, but also advanced submissions in mitigation after tendering to court written submissions that were presumably prepared by RC. It is significant that the said written submissions also contained an allegation that MB was coerced by certain prominent public officials into making the complaint against RC. It is unthinkable that a legal practitioner would represent a person who had made and subsequently withdrawn a very serious allegation against him, in proceedings where such person is charged for the offence of giving false information to a public officer, and there can be no doubt that in so appearing, RC acted imprudently and in conflict of interest, particularly where, as rightly observed by the Commissioner in paragraph 40 of his Judgment dated 12th September 2011, "only she and he know whether there is any truth in the allegation."
48. On 29th September 2011, RC once again appeared for MB, and on this occasion for the purpose of having her guilty plea vacated and a new plea entered on the basis that his client has now realised that coercion was a defence. In my view this was the height of temerity, and demonstrated that RC was actuated by his own self-interest as against the interest of his client MB. I have no difficulty in agreeing with the finding of the Commissioner in paragraph [40] of his judgment, that RC in the predicament he had placed himself by appearing for MB on two dates in proceedings in which she is charged with the offence of giving false information to a public officer accusing RC of rape and sexual abuse, could "never fulfil his duty either to the Court or to the client in respect of proceedings predicated on that allegation."’

[My emphasis]

[301] Once the full setting in Chaudhry is understood, I agree with the submission of Counsel for the Respondent (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, p.27, at [48]), that ‘the Chaudhary [sic] case cannot assist the CR in the current case’ where one is arguing duty of care and/or a conflict of interest because the Respondent acted for the widow in making an application for a grant of Letters of Administration against the alleged interest of the beneficiary under a missing Will.

[302] Counsel for the Applicant Chief Registrar then submitted at para [5] in his Synopsis Response of 4^th May 2018:

‘The Applicant submits that the Respondent should not have acted for PD in extracting LA on her behalf after his firm had made the Will and him having advised both MWP and PD first and thereafter only proceeding to act solely for PD.’

[My emphasis]

[303] I noted that Counsel for the Applicant Chief Registrar had now added in his Synopsis Response of 4^th May 2018 a second category of conflict of interest, that is, ‘and him having advised both MWP and PD first’. I also noted that this had never been particularised in this Count or in Count 3, both of which charged the Respondent with professional misconduct in relation to his conduct towards Maya Wati Prakash.

[304] Although this allegation had been raised in the evidence of Maya Wati Prakash, it was never part of any of the four counts. Also, it was never put by Counsel for the Applicant Chief Registrar in his cross-examination of either Dipka Mala and/or Suruj Sharma. While I could deal with that in my judgment, the problem, as I saw it, was that because Counsel for the Applicant Chief Registrar had only mentioned it in passing at the clarification hearing on 25^th April 2018 and had not articulated it in specific detail until his subsequent written Synopsis Reply of 4^th May 2018 (in what was supposed to be the final written submission before judgment), Counsel for the Respondent had not had the opportunity to respond to such a specific submission.

[305] Therefore, I decided to relist the matter in the June 2018 Sittings of the Commission to give both Counsel the opportunity to file supplementary submissions followed by a short hearing to clarify their submissions on this issue. I note that Counsel for the Applicant conceded at that supplementary clarification hearing which took place on 13^th June 2018, that it was too late to now seek to amend the particulars to Counts 1 and 3. I will return to that as a separate issue near the conclusion of my findings in relation to this count. In the meantime, I intend to continue with my judgment and my analysis of Count 1, as I understood matters, prior to the Synopsis Response of Counsel for the Applicant Chief Registrar being filed on 4^th May 2018.

(v) The alleged conflict of interest

[306] Apart from Chaudhry, (and my providing to both Counsel at the Call Over on 23^rd April 2018, a copy of the judgment in Badenach), I note that Counsel for the Applicant Chief Registrar has not cited any applicable case law and/or legislation which may assist me in finding that:

(1) a duty was owed by the Respondent to Maya Wati Prakash as the beneficiary of a signed but missing Will; and

(2) By taking out Letters of Administration in accordance with the prevailing legislation, the Respondent legal practitioner was ‘acting against her interest’; and

(3) Therefore, the Respondent ‘acted in a conflicting situation’.

[307] Instead of citing any applicable case law and/or legislation, (apart from Chaudhry), Counsel for the Applicant Chief Registrar has set out in his Synopsis Response of 4^th May 2018, his summary of the conflict at para [2] as follows:

‘The Applicant’s case in alleging conflict of interest is based on the following issues:

• The Respondent’s staff within the firm in which he is a partner prepared the Will of SPM. Under the said Will, the sole beneficiary was MWP.
• By virtue of the firm’s involvement in preparing a Will for SPM and according to the evidence of Dipka Mala, the Respondent was aware of the contents of the Will.
• The Respondent then proceeded to obtain instructions from both MWP and PD and provided advise [sic] that an application for Letters of Administration would be made jointly.
• That thereafter, the Respondent proceeded with sole instructions from PD and made an application for LA on behalf of PD only.’
  

[308] Unfortunately, in my view, the above summary ignores as to why ‘the Respondent proceeded with sole instructions from PD’, that is, as I have clearly found, Maya Wati Prakash withdrew the instructions on 15^th December 2008 and at that stage the Respondent closed his pending file. I agree with the submissions of Counsel for the Respondent, that when the widow approached the Respondent on 6^th January 2009 to act on her behalf simply to obtain a grant of Letters of Administration, this was a new retainer. In my view, Counsel for the Applicant Chief Registrar has still not explained, where was the conflict.

(vi) Other relevant case law on conflict of interest

[309] I also note at the clarification hearing on 25^th April 2018, Counsel for the Respondent raised, in relation to conflict of interest, a judgment of Justice Young sitting as a single judge in the Family Court of Australia at Melbourne in Grieves & Tully [2011] FamCA 617 (24 August 2011); AustLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/2011/617.html> . As His Honour, Justice Young noted at para [71], the legal principles were discussed by the Full Court of the Family Court of Australia in McGillivray v Mitchell [1998] FamCA 96 (15 July [1998] FamCA 96; 1998); (1998) FLC 92-818; AustLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FamCA/1998/96.html> , where ‘The Full Court stated at 85,304 that’:

“It is our opinion that if a family law litigant has a genuine concern about a former legal adviser acting against him or her in later family law litigation, the litigant must take the point at least in correspondence with the other side at the earliest possible opportunity ... Furthermore a failure to take the point initially must also cast doubt on the bona fides of any later complaint concerning the existence of confidential information in the practitioner in question, and on the bona fides of any alleged apprehension regarding the possible mis-use of such confidential information”.’

[My emphasis]

[310] In Grieves & Tully, Young J also cited at para [72] the judgment of Justice Brereton from the Supreme Court of New South Wales in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561; AustLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2005/1181.html> , where, in discussing the three grounds for the granting of an injunction to restrain a solicitor form acting against a former client, Brereton J (at para [76]; p. 582) ‘summarised the authorities’ thus:

‘a. During the subsistence of a retainer, where the court’s intervention to restrain a solicitor from acting for another is sought by an existing client of the solicitor, the foundation of the court’s jurisdiction is the fiduciary obligation of a solicitor, and the inescapable conflict of duty which is inherent in the situation of acting for clients with competing interests (Prince Jefri Bolkiah [v KPMG [1998] UKHL 52; [1999] 2 AC 222; [1999] 1 All ER 517; [1999] 2 WLR 215; BAILII: <http://www.bailii.org/uk/cases/UKHL/1998/52.html> ]);

2. Once the retainer is at an end, however, the court’s jurisdiction is
   not based on any conflict of duty or interest, but on the protection of
   the confidences of the former client (unless there is no real risk of
   disclosure) (Prince Jefri Bolkiah).
   100. After termination of the retainer, there is no continuing (equitable or
        contractual) duty of loyalty to provide a basis for the court’s
        intervention, such duty having come to an end with the retainer
        (Prince Jefri Bolkiah; Belan v Casey; PhotoCure ASA; British
        American Tobacco Australia Services Ltd; Asia Pacific Telecommunications Ltd; contra Spincode Pty Ltd; McVeigh; Sent).
4. However, the court always has inherent jurisdiction to restrain
   solicitors from acting in a particular case, as an incident of its
   inherent jurisdiction over its officers and to control its process in aid
   of the administration of justice (Everingham v Ontario; Black v
   Taylor; Grimwade v Meagher; Newman v Phillips Fox; Mitchell v
   Pattern Holdings; Spincode Pty Ltd; Holborow; Williamson v Nilant;
   Bowen v Stott; Law Society v Holt). Prince Jefri Bolkiah does not
   address this jurisdiction at all. Belan v Casey and British American
   Tobacco Australia Services Ltd are not to be read as supposing that
   Prince Jefri Bolkiah excludes it. Asia Pacific Telecommunications
   Ltd appears to acknowledge its continued existence.
5. The test to be applied in this inherent jurisdiction is whether a fair-
   minded, reasonably informed member of the public would conclude
   that the proper administration of justice requires that a legal
   practitioner should be prevented from acting, in the interests of the
   protection of the integrity of the judicial process and the due
   administration of justice, including the appearance of justice (Everingham v Ontario; Black v Taylor; Grimwade v Meagher; Holborow; Bowen v Stott; Asia Pacific Telecommunications Ltd).
6. The jurisdiction is to be regarded as exceptional and is to be
   exercised with caution (Black v Taylor; Grimwade v Meagher;
   Bowen v Stott).
7. Due weight should be given to the public interest in a litigant not
   being deprived of the lawyer of his or her choice without due cause
   (Black v Taylor; Grimwade v Meagher; Williamson v Nilant; Bowen
   v Stott).
8. The timing of the application may be relevant, in that the cost,
   inconvenience or impracticality of requiring lawyers to cease to act
   may provide a reason for refusing to grant relief (Black v Taylor;
   Bowen v Stott).’

[My emphasis]

[311] Thus, in Grieves & Tully, Young J concluded at para [74]:

‘In accordance with Kallinicos the timing of the application is one of a number of considerations to be taken into account in applying the inherent jurisdiction test of whether a fair-minded reasonably informed member of the public would conclude that the proper administration of justice, including the appearance of justice, requires that a practitioner be restrained from acting in a particular matter, and delay will usually be, but is not necessarily, fatal to an application, dependent on all the circumstances of the case.’

[My emphasis]

[312] I note that none of the issues on conflict discussed in Grieves & Tully, McGillivray v Mitchell, Prince Jefri Bolkiah and/or Kallinicos, were mentioned by Counsel for the Applicant in his written submissions filed on 8^th January and 20^th February 2018.

[313] Indeed, as I have already noted above:

(1) Prem Narayan, in her letters of 27^th January and 26^th February 2009, never raised the issue of conflict;

(2) This did not form part of the application filed by Prem Narayan filed on 6^th March 2009 in the High Court on behalf of Maya Wati Prakash, seeking (amongst a number of orders) that the Letters of Administration be recalled and a fresh grant be issued to Maya Wati Prakash and Pranita Devi (Exhibit 6), that is, a grant of joint Letters of Administration;

(3) Even though the issue of conflict was later raised separately by the Applicant Chief Registrar and not by Prem Narayan and/or Maya Wati Prakash, surely the view of expressed by the Full Court of the Family Court of Australia in McGillivray v Mitchell (supra) is perhaps relevant. That is, that ‘a failure to take the point initially must also cast doubt on the bona fides of any later complaint concerning the existence of confidential information in the practitioner in question’.

(vii) Respondent’s submissions on conflict of interest

[314] The written submissions of Counsel for the Respondent (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, pp. 17-18, paras [30]-[33]), have specifically addressed the claim as to a conflict of interest. It is important that I set out those submissions in full as follows:

‘30. At paragraph 10 of the [Prosecution Case] Statement [dated 21^st November 2016] the Chief Registrar submitted that just because the Practitioner was aware that there might be a Will somewhere he failed to maintain a reasonable standard of competence and diligence because that knowledge was enough indication for the Practitioner to tread with caution and not partake in the application for the Letters of Administration as there was a high possibility of that grant being revoked on the occasion the Will was found.

31. The Chief Registrar’s position is to infer a conflict of interest on the basis that the Practitioners Firm had prepared a Will for SP and thus should not have acted for PD to take out Letters of Administration. Now that all relevant evidence is before the Commission we would urge the Commission to consider all relevant facts and circumstances to determine whether there was a conflict of interest in this matter. The facts and evidence is analysed later in these submissions.
32. In taking the position that he did on conflict the Chief Registrar overlooked the statutory protection afforded under the Succession Probate and Administration Act Cap 60 where a Court is given the power to determine any issues arising with respect to administration of an Estate and includes the statutory protection afforded to a person to whom Letters of Administration is granted but subsequently the said Letters are revoked because a signed Will is found:
    

“Court may settle all questions arising in administration

41.-(1) The court may make such order with reference to any question arising in respect of any will or administration, or with reference to the distribution or application of any real or personal estate which an executor or administrator may have in hand, or as to the residue of the estate, as the circumstances of the case may require.

(2) Such order shall bind all persons whether sui juris or not.

(3) No final order for distribution shall be made except upon notice to all the parties interested, or as the court may direct.

Payments made before revocation to be valid

42.-(1) Where any probate or administration is revoked or rescinded, all payments bona fide made to the executor or administrator before the revocation or rescission shall be a legal discharge to the person making the same.

(2) An executor or administrator who has acted under any revoked or rescinded probate or administration may retain and reimburse himself, or shall be entitled to be reimbursed, in respect of all payments bona fide made by him before revocation or rescission, in the same manner as if such revocation or rescission had not taken place.

Payments, etc., to be valid notwithstanding defect

43. All persons making or permitting to be made any payment or transfer bona fide upon any probate or administration granted under the authority of this Act shall be indemnified and protected in so doing, notwithstanding any defect or circumstances whatsoever affecting the validity of such probate or administration not then known to such person.”

33. What this shows is that a person who has acted in administration of an Estate under Letters of Administration is protected provided that the said person has acted bona fide in fulfilling his or her duties as the Administrator or Administratrix.’

[315] I have already set out earlier in this judgment, Counsel for the Applicant Chief Registrar’s response in his written submissions in reply (‘Applicant’s Submissions in reply’, 20^th February 2018, page 2, at paras [7]-[8]), in relation to ‘Conflict of Interest’, wherein he has stated that ‘The Applicant relies on his submissions filed on 8^th January 2008 and in particular to paragraphs 490 and 491.’

[316] In my view, the written submissions of Counsel for the Applicant Chief Registrar on 8^th January and 20^th February 2018 have failed to respond to the submission raised by Counsel for the Respondent, that is, ‘the statutory protection afforded under the Succession Probate and Administration Act Cap 60’.

[317] This brings me to section 7(a) of the Succession, Probate and Administration Act. I do not understand how it can be said to be a conflict of interest in following the law, as set out in section 7(a) of the Succession, Probate and Administration Act, that is, that the first person who is to apply for a grant of Letters of Administration must be the widow. Further, if a Will is later found, the Court is given the power to ‘settle all questions arising’ out of that administration and, as Counsel for the Respondent has noted, the legislation includes ‘the statutory protection afforded to a person to whom Letters of Administration is granted but subsequently the said Letters are revoked because a signed Will is found’.

[318] I must admit, that I am none the wiser as to the stance of Counsel for the Applicant Chief Registrar on this point. Surely, the legislation must apply and the person who had to make the application for a grant of Letters of Administration pursuant to section 7(a) of the Succession, Probate and Administration Act had to be the widow, Pranita Devi? As I have understood Counsel for the Applicant Chief Registrar, he is not disputing that the widow had to apply under the law, however, the Respondent should not have assisted her in making the application even though this was the law as, according to Counsel for the Applicant Chief Registrar, the Respondent was in a conflict situation.

[319] This brings me to section 6(1)(a)(i) and (ii) of the Succession, Probate and Administration Act that sets out how an estate is to be distributed. Again, as I have understood Counsel for the Applicant Chief Registrar, his submission is not that the law should not have been applied and the estate distributed as set out above, rather the Respondent should not have assisted the widow in making the application for a grant of Letters of Administration.

(viii) Should the Respondent, knowing his firm held an unsigned Will on the firm’s computer, have refused to act seeking Letters of Administration?

[320] The written submissions of Counsel for the Applicant Chief Registrar have not raised section 6A of the Wills Act, that is, where a ‘Court may declare a document to be a Will’. I have noted above that Counsel for the Applicant Chief Registrar has not suggested that the Respondent, despite having no retainer (as the testator had taken his Will with him on 22^nd December 2006), should have advised the parties on 15^th December 2008 as to the possibility of this option and suggested they each seek independent legal advice on the unsigned Will.

[321] On this issue, I note the oral submissions that I have set out above made by Counsel for the Respondent at the clarification hearing on 25^th April 2018, that a court would be most reluctant to accept an unsigned computer print out as satisfying section 6A.

[322] Even if Counsel for the Applicant Chief Registrar had raised this issue, there was no certainty at that time in late 2008 and early 2009 that the unsigned document on the computer of Patel Sharma lawyers was, in fact, the Last Will and Testament of Salen Prakash Maharaj. Indeed, there was a plausible argument that, in light of the history of Salen’s alleged deceit of his mother (that I have set out briefly below), a court, rather than declaring the unsigned computer copy to be Salen’s intention, may have been inclined instead to the view that either Salen may have destroyed the Will or perhaps had created a later Will that for some reason had not been found. On the other hand, as Salen had a debt to his mother perhaps the unsigned document from 2006 was his most recent intention before his death, though the counter argument is that he had already agreed for a caveat to be placed over his property. It is speculative to say the least, as to what a court may or may not have declared.

[323] Indeed, if some of the documents that have been filed in these proceedings are an indication, perhaps all was not well in the relationship between the testator, Salen Prakash Maharaj and his mother, Maya Wati Prakash. In that regard, I note that on 16^th August 2000, Satya Prakash (Salen’s father) and Maya Wati (his mother), appointed their son, Salen, to hold their ‘Power of Attorney’ (Exhibit “37”, at page 26). I also note that in the Statement of Claim that forms part of Exhibit 6 (that is, the application filed in the High Court at Suva on 6^th March 2009, by Prem Narayan on behalf of Maya Wati Prakash against Pranita Devi and others restraining them dealing with the property in the name of Salen Prakash Maharaj at Koronivia and that the Letters of Administration be recalled and a fresh grant be issued to Maya Wati Prakash and Pranita Devi), it is alleged that:

(1) The property at Koronivia was supposed to be purchased between Maya Wati Prakash and her son, Salen;

(2) Maya’s daughter (not named), made the payments for Maya and in return Maya and her then living husband decided to allow the daughter and her husband to settle on the property (presumably the daughter was Subhasni though Subhasni, denied knowledge of the claim);

(3) Salen did not make any payments towards the purchase price;

(4) Maya’s daughter (again, not named) had fully paid the purchase price by 2003;

(5) Upon payment of the purchase price the vendor was supposed to transfer the property to Maya and Salen, however, in November 2003, the vendor only executed a transfer transferring the property to Salen;

(6) In June 2007, Salen informed Maya that the property was in his name only;

(7) Maya and Salen then saw Patel Sharma & Associates and were advised that the property could not be transferred for five years and instead a caveat was lodged over the property to protect Maya’s interest;

(9) Maya claimed that ‘as a result of the Deceased’s [Salen’s] and the Second Defendant’s [the vendor’s] actions the Plaintiff [Maya] has suffered loss and continues to suffer ...’

[324] I further note that Maya Wati Prakash made a similar claim in an affidavit sworn on 26^th October 2012, as part of the proceedings in the High Court between Maya Wati Prakash and Pranita Devi, whereby Maya Wati Prakash as her evidence-in-chief (Exhibit “18”) swore that in 2007, ‘I found out that Salen had transferred a property to himself that was to be transferred to both of us pursuant to an agreement’, that an appointment with Patel Sharma & Associates where she stated that she was advised that the property could not be transferred within five years and hence it was agreed to lodge a caveat over the property to protect her interest. Indeed, in her cross-examination on 29^th October 2012 in the High Court proceedings, it was put to Maya Wati Prakash (Doc.21, p.27, Exhibit 47, p.140), “Maya Wati, your son stole this property from you, is that correct? Is that what you are saying?”, to which she replied, “Yes”.

[325] On that claim, I note that in the letter of 29^th April 2010 from Patel Sharma Lawyers to the Chief Registrar (Exhibit “10”), with the reference ‘SPS/dm/8314’ (that I assume indicates Suruj Prasad Sharma as the author and that it was typed by Dipka Mala), it is stated in the ‘Chronology’ as follows:

‘(ii) 25^th June 2007 - Salen Prakash Maharaj and his mother Maya Wati Prakash approached our office with the view to attending to transfer of Certificate of Title No. 31224. They were attended to by Ms. Dipka Mala.

Our office advised them that there would be stamp duty implications on the transfer and 2% reimbursement of stamp duty would be applicable. The property was bought on 28^th December 2003, and as it was within 5 years the 2% stamp duty was applicable and payable.

They were also advised that a Valuation Report would also be needed and that there would be legal costs payable on transfer.

The appropriate transfer documents were prepared, but not executed as a result of the stamp duty implications and other disbursements as advised.

Maya Wati Prakash then requested that her interest in the property be protected in the meantime ...

As a result, they were advised in the circumstances, that a Caveat ought to be lodged to protect her interest and this was done with the consent of her son ...’

[326] In my view, the above is another example of Maya Wati Prakash misunderstanding or misinterpreting what occurred either as a result of her memory and/or language difficulties or selective hearing/understanding. That is, it was because of ‘the stamp duty implications and other disbursements as advised’ NOT because Maya was advised by Patel Sharma Lawyers that the property could not be transferred within five years. It is also surprising that a legal practitioner would include such an inaccuracy (without at least first checking it with a fellow practitioner before including it in a Statement of Claim), as occurred with the claim filed on 6^th March 2009 by Prem Narayan on behalf of Maya Wati Prakash. Further, three years later, Maya Wati Prakash in her affidavit sworn on 26^th October 2012 (that was her evidence-in-chief as part of the proceedings in the High Court between Maya Wati Prakash and Pranita Devi) included the same inaccurate claim.

[327] In my view, the Applicant Chief Registrar has failed to establish as to why the Respondent, knowing that his firm held an unsigned copy of Salen’s Will on the firm’s computer (whereby Salen’s mother had been named as the sole beneficiary), should have refused to act for the widow in seeking Letters of Administration.

(ix) Other relevant legislation

[328] Apart from section 7 of the Succession, Probate and Administration Act (Cap. 60) as amended by the Succession, Probate and Administration (Amendment) Act 2004 that I have set out above, I have also noted that the following may also be relevant and applicable to the present matter:

(1) Section 6 of the Succession, Probate and Administration Act (Cap. 60) as amended by the Succession, Probate and Administration (Amendment) Act 2004;

(2) Section 6A of the Wills Act (Cap. 59) as amended by section 5 the Wills (Amendment) Act 2004;

(3) Sections 4 and 10 of the Compensation to Relatives Act (Cap. 29);

(4) Inheritance (Family Provision) Act 2004.

[329] Thus, I asked Counsel to clarify the relevance, or not, of the above legislation at the hearing on 25^th April 2018. I have already set out above the submissions in relation to section 6A of the Wills Act.

[330] In relation to section 6 of the Succession, Probate and Administration Act, I note that it sets out how an estate is to be distributed as follows:

‘Succession to property on intestacy

6.-(1) Subject to the provisions of Part2, the administrator on intestacy ... shall hold the property as to which a person dies intestate on or after the date of commencement of this Act on trust to distribute the same as follows:

(a) if the intestate leaves a wife ... without issue, the surviving wife ... shall take the whole of the estate absolutely;’

...

(f) if the intestate leaves no issue, but one parent only then, subject to the interests of a surviving wife ..., the surviving ... mother shall take the residuary estate of the intestate absolutely’.

[My emphasis]

[331] Counsel for the Respondent was of the view that as a result of the 2004 amendments, it meant that (pursuant to section 6) the widow would take the estate absolutely.

[332] In relation to sections 4 and 10 of the Compensation to Relatives Act (Cap. 29), (PacLII: <http://www.paclii.org/fj/legis/consol_act/ctra288/> ), I note they state:

‘Action to be for benefit of family

4. Every such action shall be for the benefit of the wife, husband, parent and child of the person whose death has been so caused.’

And:

‘Action may in certain cases be brought by persons beneficially interested

10.-(1) Where in any of the cases provided for by this Act it happens that there is no executor or administrator of the deceased person, or that there being such executor or administrator no action as hereinbefore mentioned is within six months after the death of the deceased person as herein mentioned brought by and in the name of his executor or administrator, then such action may be brought by and in the name or names of all or of any of the persons, if more than one, for whose benefit such action would have been if it had been brought by and in the name of the executor or administrator.

(2) Every action so brought shall be for the benefit of the same person or persons and shall be subject to the same procedure as nearly as may be as if it were brought by and in the name of the executor or administrator.’

[My emphasis]

[333] In Balekaba v Jagdish [2013] FJHC 547; HBC 111.2012 (16 August 2013), Tuilevuka J, had to consider where a son had died in a motor vehicle accident, whether a writ filed by a father ‘suing as “next of kin”’ of his intestate deceased child is valid ... because the father in question did not have letters of administration at filing time’. His Lordship came to the view that ‘the writ is an irregularity but is curable by amendment’. In relation to the present matter, it is unclear what claim Maya Wati Prakash made, if any, pursuant to the Compensation to Relatives Act.

[334] It is noted, however, that according to the written submissions of Counsel for the Applicant Chief Registrar cited above, the evidence of Pranita Devi during cross-examination raised the issue of a payment from Dominion Insurance that had insured Salen’s van for $50,000 (‘Closing Submissions’, 8^th January 2018, at [320]):

‘... She also stated that four days after her husband’s demise, Subhasni and Hemant took her to one Justice of Peace, Mr. Ramesh Prasad and wrote two letters; one stating that PD would transfer LM permit to Hemant Kumar Singh and second letter stating that Dominion Insurance money was to be returned to MWP as SPM had borrowed $50,000 and PD had to return that. She signed both those letters before JP.’

[My emphasis]

[335] It is also noted that the Respondent was not involved in any such claims and that the further evidence of Pranita Devi during cross-examination was that Subhasni would not allow Pranita near the van and also that Dominion Insurance had declined a claim “because Salen had used the wrong route”.

(15) Conclusion on Count 1
(i) The burden of proof

[336] I have set out above, the burden of proof in proceedings before the Commission and what I discussed in Kapadia (supra) as the appropriate standard, that is, ‘adopting the same standard as set out by Commissioner Connors in Sheik Hussein Shah (2010)’, ‘the civil standard varied according to the gravity of the act to be proved’ and to which Justice Madigan as Commissioner referred to in both Haroon Ali Shah (2012) and Marawai and Chaudhry (2012) as ‘the preponderance of probabilities’, noting that the latter judgment was affirmed by the Supreme Court in 2016. I also note that Justice Madigan also applied this same standard in Narayan (2014).

[337] Therefore, the ‘standard of proof’ that I will be applying to Count 1 is thus: ‘the civil standard [that is, the balance of probabilities] varied according to the gravity of the act to be proved’.

[338] In addition, I have noted the tests set out in Bolam (supra) and Midland Bank Trust Ltd (supra). In particular, the test set out Oliver J in Midland Bank Trust Ltd, that is, ‘The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession’, and ‘that the duty is directly related to the confines of the retainer’.

[339] Taking the above as my guide, I note that the Applicant has to prove upon the balance of probabilities that the Respondent has committed an act of ‘Professional Misconduct: Contrary to Section 82(1)(a) of the Legal Practitioners Decree 2009’, that is, the ‘conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’ with such conduct ‘varied according to the gravity of the act to be proved’. In particular, by ‘taking out Letters of Administration ... for the Estate of Salen Prakash Maharaj’ when earlier ‘Dipka Mala [from his firm] had prepared a Will for Salen Prakash Maharaj dated 22^nd December 2006 under which Maya Wati Prakash ... was the beneficiary’, the Respondent’s conduct was ‘a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence’ having regard to ‘what the reasonably competent practitioner would do’ and that the Respondent’s ‘duty is directly related to the confines of the retainer’.

(ii) Conclusion

[340] In my view, the Applicant has failed to satisfy the persuasive burden upon him, that is, to prove upon the balance of probabilities the allegation in Count 1, because:

(1) The Applicant has failed to prove that there was a duty of care owed by the Respondent to the beneficiary of the Will, Maya Wati Prakash;

(2) Even if there was a duty of care owed by the Respondent to the beneficiary, the Applicant has failed to prove that by the Respondent taking out Letters of Administration on behalf of the widow, Pranita Devi, the Respondent breached the duty of care that he owed to the beneficiary;

(3) Even if there was a duty of care owed by the Respondent to the beneficiary and the Respondent, by taking out Letters of Administration on behalf of the widow, had breached that a duty of care, the Applicant has failed to prove how this was professional misconduct, having regard to ‘what the reasonably competent practitioner would do’ and that the Respondent’s ‘duty is directly related to the confines of the retainer’ which was to simply for his firm to prepare and execute a valid will but to not retain custody of it.

[341] In the alternative, accepting for argument’s sake the submission of Counsel for the Applicant that this is not about duty of care, rather it is about conflict of interest, I find that the Applicant has failed to satisfy the persuasive burden upon him, that is, to prove upon the balance of probabilities the allegation in Count 1, because:

(1) The Applicant has failed to prove that there was a conflict in the Respondent’s firm having drafted a Will for the testator whereby the beneficiary of the Will was not his widow but his mother and later, when the Will could not be found, acting for the widow in obtaining a grant of Letters of Administration when she was the person required by law to make such an application;

(2) Even if there was a conflict, the Applicant has failed to prove that this was professional misconduct.

(16) Addition to Count 1 – the new conflict of interest

(i) Advising both the widow and beneficiary and then acting solely for the widow

[342] Before dismissing Count 1, I note that I now have to deal with a separate issue of a new conflict that was raised by Counsel for the Applicant Chief Registrar in his Synopsis Response of 4^th May 2018, that is, ‘the Respondent should not have acted for PD in extracting LA on her behalf after ... him having advised both MWP and PD first and thereafter only proceeding to act solely for PD’.

[343] As I have noted above, this alleged conflict was neither particularised in this Count nor in Count 3, both of which have charged the Respondent with professional misconduct in relation to his conduct towards Maya Wati Prakash. Therefore, I decided to relist the matter to hear from both Counsel on:

(1) whether permission should be given to amend the particulars; and

(2) whether it was a conflict for the Respondent to have acted for the widow, Pranita Devi, in obtaining for her a grant of letters of administration after the Respondent having previously advised both the widow, Pranita Devi and Maya Wait Prakash on 15^th December 2008 ‘and then only proceeding to act solely for PD’ as from 6^th January 2009.

[344] As I understood this new allegation of a conflict of interest, Counsel for the Applicant Chief Registrar in his Synopsis Response of 4^th May 2018, was focusing on the second category set out by Marsoof, JA in in Chaudhry, that is, ‘(b) Conflicts between the interests of two or more clients the practitioner is currently representing’. I note that this second category did not form the basis of the conflict of interest alleged in Chaudhry. I also note, however, that Marsoof JA in in Chaudhry, after setting out the four general categories of conflict, then explained at [43]-[44] as follows:

‘43. A legal practitioner owes ethical duties to his clients, to court and to the general public. The duties he owes to clients include duties of loyalty, diligence and confidentiality. Loyalty itself is said to encompass duties of zeal, integrity and independence. The obligation to avoid conflicts is an important aspect of loyalty.

44. A legal practitioner owes fiduciary duties to his client. As Millet LJ put it in Bristol and West Building Society v Mothew [1996] EWCA Civ 533; [1996] 4 All ER 698, [1998] Ch 1at page 18:-

"... A fiduciary is someone who has undertaken to act for or on behalf of another in a particular matter in circumstances which give rise to a relationship of trust and confidence. The distinguishing obligation of a fiduciary is the obligation of loyalty. The principal is entitled to the single-minded loyalty of his fiduciary. This core liability has several facets. A fiduciary must act in good faith; he must not make a profit out of his trust; he must not place himself in a position where his duty and his interest may conflict; he may not act for his own benefit or the benefit of a third person without the informed consent of his principal. This is not intended to be an exhaustive list, but it is sufficient to indicate the nature of fiduciary obligations. They are the defining characteristics of the fiduciary. As Dr Finn pointed out in his classic work Fiduciary Obligations (1977), p 2, he is not subject to fiduciary obligations because he is a fiduciary; it is because he is subject to them that he is a fiduciary."(Emphasis added)’

[My emphasis is the underlining which Marsoof JA had in italics)

(ii) The legal principles on conflict

[345] I note that at the clarification hearing on 25^th April 2018, Counsel for the Respondent tendered on the issue of conflict, the judgment of Young J in Grieves & Tully, citing in turn the judgment of Brereton J in Kallinicos both of which I have cited above. I have also noted above that none of the issues on conflict discussed in Grieves & Tully, McGillivray v Mitchell, Prince Jefri Bolkiah and/or Kallinicos, were even mentioned by Counsel for the Respondent in his written submissions filed on 8^th January and 20^th February 2018. I also note that they were not raised at the clarification hearing on 25^th April 2018 or in his Synopsis Reply of 4^th May 2018. Whilst some of these cases were concerned with when a court should intervene to restrain a legal practitioner from appearing further in legal proceedings, some of the principles enunciated are relevant to the present matter.

[346] In particular, I have noted the judgment of Lord Millett in the House of Lords in Prince Jefri Bolkiah (with whom Lords Browne-Wilkinson, Hope of Craighead, Clyde and Hutton agreed). Although the case concerned a firm of accountants, it was conceded that the following five principles were applicable in relation to professional conflicts as Lord Millett highlighted:

(1) ‘The Law’ – ‘Rakusen v. Ellis, Munday and Clarke [1912] UKLawRpCh 47; [1912] 1 Ch. 831 ... is authority for two propositions:

(i) that there is no absolute rule of law in England that a solicitor may not act in litigation against a former client; and

(ii) that the solicitor may be restrained from acting if such a restriction is necessary to avoid a significant risk of the disclosure or misuse of confidential information belonging to the former client’;

(2) ‘The basis of the jurisdiction’ –

(i) ‘In Rakusen's case the Court of Appeal founded the jurisdiction on the right of the former client to the protection of his confidential information ... I would affirm this as the basis of the court's jurisdiction to intervene on behalf of a former client’;

(ii) ‘It is otherwise where the court's intervention is sought by an existing client ... A man cannot without the consent of both clients act for one client while his partner is acting for another in the opposite interest. His disqualification has nothing to do with the confidentiality of client information. It is based on the inescapable conflict of interest which is inherent in the situation’;

(iii) ‘Where the court's intervention is sought by a former client, however, the position is entirely different. The court's jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interests of his former client. The only duty to the former client which survives the termination of the client relationship is a continuing duty to preserve the confidentiality of information imparted during its subsistence’;

(iv) ‘The extent of the solicitor's duty’ – ‘ Whether founded on contract or equity, the duty to preserve confidentiality is unqualified. It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Moreover, it is not merely a duty not to communicate the information to a third party. It is a duty not to misuse it ...’;

(v) ‘Degree of risk’ – ‘It follows that in the case of a former client there is no basis for granting relief if there is no risk of the disclosure or misuse of confidential information.

[347] Lord Millett in Prince Jefri Bolkiah, after noting that in the United States there is ‘an absolute rule ... which precludes a solicitor or his firm altogether from acting for a client with an interest adverse to that of the former client in the same or a connected matter’, explained ‘the basis of the court's jurisdiction to intervene on behalf of a former client’ in the United Kingdom. The test being, ‘the possession of relevant confidential information ... within the expression "the same or a connected matter".’ Thus, ‘the Court's intervention is founded not on the avoidance of any perception of possible impropriety but on the protection of confidential information’. [My emphasis] Lord Millett also highlighted the burden upon a plaintiff who sought to claim conflict as the basis to restrain their former lawyer from acting in a matter for another client as follows:

‘Accordingly, it is incumbent on a plaintiff ... to establish (i) that the solicitor is in possession of information which is confidential to him and to the disclosure of which he has not consented and (ii) that the information is or may be relevant to the new matter in which the interest of the other client is or may be adverse to his own. Although the burden of proof is on the plaintiff, it is not a heavy one. The former may readily be inferred; the latter will often be obvious. I do not think that it is necessary to introduce any presumptions, rebuttable or otherwise, in relation to these two matters ... Whether a particular individual is in possession of confidential information is a question of fact which must be proved or inferred from the circumstances of the case. In this respect also we ought not in my opinion to follow the jurisprudence of the United States.’

[My emphasis]

[348] Lord Millett then noted that the test for disqualification ‘has been the subject of criticism both in this country and overseas, particularly in relation to solicitors, and a more stringent test has frequently been advocated’ and he regarded such criticisms ‘as well founded’. The test he concluded that he would apply was:

‘I prefer simply to say that the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial ...

In my view no solicitor should, without the consent of his former client, accept instructions unless, viewed objectively, his doing so will not increase the risk that information which is confidential to the former client may come into the possession of a party with an adverse interest.’

[My emphasis]

[349] I note that Prince Jefri Bolkiah has been applied in two previous decisions of this Commission and on each occasion the Commission found no conflict as follows:

(1) Chief Registrar v Shah [2010] FJILSC 24 (30 September 2010) where Commissioner Connors dismissed one of 14 counts on the basis at [43] ‘there is no evidence that any confidential information was used’;

(2) Chief Registrar v Narayan [2014] FJILSC 6; Case No. 009 of 2013 (2 October 2014) where in relation to two transactions at [19] ‘by acting for both the vendor and the purchaser of a Crown Lease in 1994, and then in year 2000 acting for the Vendor on a mortgagee sale when the purchaser as Mortgagor defaulted on his mortgage the Registrar, while not alleging it to be so in the particulars of the complaint, is in effect alleging that this conduct by the practitioner in his professional capacity is conduct to the prejudice of the purchaser complainant arising from a conflict of interest.’ Justice Madigan dismissed one count of professional misconduct. I note that decision was at one stage on appeal and I am not certain as whether that appeal has been pursued or withdrawn.

(iii) Application of principles from Prince Jefri Bolkiah in Fiji

[350] I note that Prince Jefri Bolkiah has also been considered more recently by the Fiji Court of Appeal in RC Manubhai & Co. Ltd v Herbert Construction Company (Fiji) Ltd (Unreported, Fiji Court of Appeal, Civil Appeal No. ABU0002 of 2010 (29 May 2014); PacLII: [2014] FJCA 175, <http://www.paclii.org/fj/cases/FJCA/2014/175.html> ). This was an appeal from the High Court where a lawyer was restrained from acting (See RC Manubhai & Co Ltd v Herbert Construction Company (Fiji) Ltd [2009] FJHC 219; HBC75.2009L (7 October 2009)). The appeal was allowed by the Fiji Court of Appeal ordering that a lawyer was ‘entitled to act as Solicitor and Barrister for the respective Plaintiffs in the three actions’, however, the Court also ordered that the lawyer ‘shall not divulge or disclose to any person including the Plaintiffs/Appellants without the consent of the Respondent company's confidential or privileged information (if any) acquired by him pertaining to the Statements of Claim of the Plaintiffs in the aforesaid actions’. Importantly (and relevant to the present matter) was the judgment of Almeida Guneratne JA (with whom Chandra and Malalgoda JJA agreed) wherein he stated at [47]:

‘I have already expressed my views on the approach adapted by the House of Lords in the Prince Jefri Bolkiah decision (supra). If that decision is constrained in perspective the test emerging there is the test of "No real (although it need not be substantial) risk of disclosure."’

[My emphasis]

[351] Then, at [113]-[114] Almeida Guneratne JA highlighted the following from Lord Millett’s judgment in Prince Jefri Bolkiah and added his endorsement as follows:

‘[113] ... as counsel for the Appellants pointed out, in Bolkiah's case it was stated thus:

“where the Court's intervention is sought by a former client, however, the position is entirely different. The court's jurisdiction cannot be based on any conflict of interest, real or perceived, for there is none. The fiduciary relationship which subsists between solicitor and client comes to an end with the termination of the retainer. Thereafter the solicitor has no obligation to defend and advance the interest of his former client. The only duty to the former client relationship is a continuing duty to preserve the confidentiality on information imparted during its substance."

[114] I am inclined to agree with the judicial thinking reflected in the said proposition.’

[My emphasis]

[352] Before I apply ‘the judicial thinking’ from Prince Jefri Bolkiah as endorsed by the Fiji Court of Appeal in RC Manubhai v Herbert, I acknowledge that some common law jurisdictions have taken a different view on conflict, notably Australia and Canada. In the Victorian Court of Appeal in Spincode Pty Ltd v Look Software Pty Ltd & Ors [2001] VSCA 248; PacLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VSCA/2001/248.html> , 21 December 2001. In Spincode, Brooking JA, after asking ‘When may a solicitor change sides?’, then undertook a comprehensive review of the common law in various jurisdictions and concluded:

‘How, then, do matters stand? I think it must be accepted that Australian law has diverged from that of England and that the danger of misuse of confidential information is not the sole touchstone for intervention where a solicitor acts against a former client ...’

[My emphasis]

[353] Brooking JA noted that a similar view was taken by the Ontario Court of Appeal in Re Regina and Speid (1983) 43 O.R. (2d) 596 at 600; CanLII: 1983 CanLII 1704 (ON CA), <https://www.canlii.org/en/on/onca/doc/1983/1983canlii1704/1983canlii1704.html>, where it was said by Dubin JA (in delivering the judgment of the Court) at para [15]:

‘... A client has every right to be confident that the solicitor retained will not subsequently take an adversarial position against the client with respect to the same subject-matter that he was retained on. That fiduciary duty, as I have noted, is not terminated when the services rendered have been completed’.

[354] The other two justices in Spincode (Orimston and Cherbov JJA), whilst acknowledging Brooking JA’s arguments, did not deem it necessary to decide that side issue in an urgent appeal concerning a company winding up, though as Cherbov JA noted at para [63]:

‘It is not necessary to decide for the purposes of this appeal whether there is an absolute obligation on solicitors not to act against their former clients in the same or substantially the same proceeding, although, if I may say so with respect, the learned judgment of Brooking, J.A. makes a compelling case for such a view’.

[355] I also note that recently in the New South Wales Supreme Court, Ball J in Técnicas Reunidas SA v Andrew [2018] NSWSC 645; AustLII: 14 May 2018, <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2018/645.html> , stated at para [39]:

‘There is some debate about whether, in certain circumstances, the duty of loyalty continues following termination of the retainer. The issue was discussed in detail by Beach J in Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252; [2014] FCA 1065, who preferred what his Honour described as the narrow view of the ratio of Earl of Cholmondeley v Lord Clinton [1815] EngR 511; (1815) 19 Ves Jun 261; 34 ER 515 at 520, namely, “that a solicitor acting for Party A in a matter, who ceases to act for Party A and then acts for Party B in the same matter, where such a retainer has been terminated by the act of the solicitor, will be enjoined” (at [45]). However, other statements of the principle, including the one made by Brereton J in Kallinicos, suggest that there is no room for the continuing operation of the duty of loyalty after termination of the retainer; and no exception is suggested in the case where the retainer is terminated by the solicitor: at [76]; see also Cleveland Investments Global Ltd v Evans [2010] NSWSC 567 at [3] per Ward J.’

[My emphasis]

[356] So although in both Australia and Canada there has been some support for the view that the operation of the duty of loyalty continues after the termination of the retainer, it is clear that the view of the House of Lords in Prince Jefri Bolkiah, was adopted by the Fiji Court of Appeal in RC Manubhai v Herbert, prevails in Fiji. Adopting the view of the House of Lords (in preference to other common law jurisdictions) is also in line with the reasoning set out by the Fiji Court of Appeal in Goundar v Minister for Health (Unreported, Fiji Court of Appeal, Civil Appeal No. ABU0075.2006S (9 July 2008); PacLII: [2008] FJCA 40, <http://www.paclii.org/fj/cases/FJCA/2008/40.html> , wherein the Court at para [30] endorsed the view of the Fiji Court of Appeal, from some 13 years earlier, in Suresh Charan v Shah (1995) 421 FLR 65; PacLII: [1995] FJCA 3, <http://www.paclii.org/fj/cases/FJCA/1995/3.html> , that is:

‘In Fiji the Court of Appeal in Suresh Charan v Shah ... further held that for the orderly development of the law in Fiji it was generally helpful to follow the decisions of the English courts unless there were strong reasons for not doing so ...’.

(iv) Application to the present case

[357] Applying the view of the House of Lords in Prince Jefri Bolkiah, adopted by the Fiji Court of Appeal in RC Manubhai v Herbert to the present case, (that is, the ‘duty to preserve the confidentiality’ of information which forms the basis of a professional conflict), I note as follows:

(1) I have already found that the second retainer began and ended on 15^th December 2018. Hence, the fiduciary duty of the Respondent to Maya Wati Prakash, in relation to making a joint application for a grant of letters of administration of the Estate of Salen Prakash Maharaj, began and ended on 15^th December 2018;

(2) Therefore, in my view, the present case does not concern an alleged breach of a fiduciary duty to an existing client, but whether in relation to a former client there is a conflict in acting in ‘the same or a connected matter’. That is, whether there is ‘the possession of relevant confidential information ... within the expression "the same or a connected matter".

(3) Thus, the test to be applied is, as set out by Lord Millett in in Prince Jefri Bolkiah, that is, ‘no solicitor should, without the consent of his former client, accept instructions unless, viewed objectively, his doing so will not increase the risk that information which is confidential to the former client may come into the possession of a party with an adverse interest’;

(4) The onus is thus on the Applicant (as it would be if these were proceedings seeking to restrain a lawyer form acting in "the same or a connected matter") to prove on the balance of probabilities that there was confidential information that needed to be protected;

[358] I also note that in the present matter:

(1) The interest of the beneficiary under the missing Will for a claim over the property at Koronivia was already protected by a caveat lodged in 2007;

(2) The Respondent was only assisting the widow to apply for a grant of letters of administration to administer the estate;

(3) The Respondent was not involved in assisting the widow in the distribution of the estate;

(4) The Respondent hosted a settlement meeting between the widow and the beneficiary under the missing Will in March 2009, at which the evidence is clear that Respondent did not act for either party;

(5) The widow still had a potential claim against the estate pursuant to the Inheritance (Family Provision) Act 2004;

(6) The Respondent did not initially act solely for the benefit of Maya Wati Prakash. Rather, it was joint instructions that he received on 15^th December 2008 from both Pranita Devi and Maya Wati Prakash;

(7) The Respondent’s instructions to act were then discharged not by the Respondent but by Maya Wati Prakash that same afternoon, on 15^th December 2008. That is, he was ‘in the situation of a solicitor discharged by the client’;

(8) The Respondent did not acquire “some personal knowledge” (or what might be termed “confidential information”) from Maya Wati Prakash when taking joint instructions on 15^th December 2008 which he then used against Maya Wati Prakash when taking out the application for a grant of Letters of Administration on behalf of Pranita Devi as from 6^th January 2009, such that it could not be said that he ‘had committed a gross breach of professional confidence’.

(v) Whether what is now being alleged should be allowed to form part of the case against the First Respondent?

[359] Counsel for the Respondent took the opportunity to filed ‘Further Submissions on the issue of Conflict’ dated 4^th June 2018, raising objection to this new category of conflict being considered as part of the Applicant’s case. Counsel for the Applicant was not able to file written submissions, however, he was given the opportunity to make oral submissions at the supplementary clarification hearing on 13^th June 2018.

[360] At the supplementary clarification hearing on 13^th June 2018, I asked directly of Counsel for the Applicant Chief Registrar to explain whether I was correct in what I saw was a second category of conflict and, if so, whether he was seeking to amend Count 1 and/or Count 3?

[361] After discussion, Counsel for the Applicant Chief Registrar conceded that it was too late to now amend the particulars in Counts 1 and 3 and he would stand by the two counts in their present form. Counsel for the Respondent agreed and thanked Counsel for the Applicant Chief Registrar being prepared to make this concession.

(vi) Conclusion

[362] In view of the concession by Counsel for the Applicant, my conclusion on the further alleged conflict is:

(1) Whether what is now being alleged should be allowed to form part of the case against the First Respondent?

(i) I have noted the concession by Counsel for the Applicant that it is too late to seek to amend Counts 1 and 3;

(ii) Accordingly, Counts 1 and 3 stand in their present form;

(2) What is the alleged confidential information that needs to be protected?

In my view, the Applicant has failed to prove on the balance of probabilities that:

(i) there was confidential information that needed to be protected;

(ii) the Respondent breached that protection by acting on behalf of the widow in applying for a grant of letters of administration; and

(iii) by breaching the protection the Respondent committed an act of professional misconduct.

(17) Overall conclusion on Count 1

[363] In summary, I have found:

(1) The Applicant has failed to prove that there was a duty of care owed by the Respondent to the beneficiary of the Will, Maya Wati Prakash;

(2) In the alternative, the Applicant has failed to prove that there was a conflict in the Respondent’s firm having drafted a will for the testator whereby the beneficiary of the Will was not his widow but his mother and later, when the will could not be found, acting for the widow in obtaining a grant of Letters of Administration when she was the person required by law to make such an application;

(3) In the further alternative, the late allegation that there was a second conflict (that the Respondent having advised both the widow and beneficiary on 15^th December 2008 in relation to a joint application for a grant of letters of administration was then in a conflict in acting solely for the widow as from 6^th January 2009 in obtaining a grant of Letters of Administration), has been conceded by Counsel for the Applicant that it does not from part of the Applicant’s case in relation to Counts 1 and/or 3. In any event, in my view, even if it a late amendment had been allowed to Count 1, there has been no evidence placed before the Commission that Maya Wati Prakash provided confidential information to the Respondent which needed to be protected and that the Respondent breached that confidentiality.

[364] Accordingly, as I have found that the Applicant has failed to prove upon the balance of probabilities the allegation in Count 1, it is dismissed.

8. Count 2

[365] In reaching a decision as to whether Count 2 is made out, that is, whether there was a failure to keep a proper record of the Will and thus committed an act of ‘Unsatisfactory Professional Conduct’, I have divided my analysis into six parts as follows:

(1) The allegation;

(2) How many wills were drafted and executed?

(3) Storage of the Will of Salen Prakash Maharaj;

(4) Lack of definition of what is a ‘proper record’;

(5) The evidence of Mr. Willy Hiuare;

(6) Conclusion on Count 2.

(1) The allegation

[366] Count 2 alleges that the Respondent has committed an act of ‘Unsatisfactory Professional Conduct: Contrary to Section 81 of the Legal Practitioners Decree 2009’ which states:

‘Unsatisfactory Professional Conduct

81. For the purposes of this Decree, “unsatisfactory professional conduct” includes conduct of a legal practitioner, a law firm or an employee or agent of a legal practitioner or law firm, occurring in connection with the practice of law that falls short of the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent or professional legal practitioner or law firm.’

[My emphasis]

[367] The particulars accompanying Count 2, in summary, state:

‘SURUJ PRASAD SHARMA ... between 22^nd December 2006 and 23rd January 2010 failed to keep proper record of the Will of Salen Prakash Maharaj dated 22^nd December 2006 ...’

(2) How many Wills were drafted and executed?

[368] On 22^nd December 2006, Salen Prakash Maharaj and his mother, Maya Wati Prakash, each had a Will prepared for them by the law firm of Patel Sharma Lawyers. Both Wills were also executed on the same date. The Wills were drawn by Dipka Mala and witnessed by Dipka Mala and Merewai Doughty, employees in the firm of Patel Sharma Lawyers (Exhibit 1.) It is disputed as to how many original Wills were drafted and executed on 22^nd December 2006.

(i) The affidavit of Maya Wati Prakash sworn on 26^th October 2012

[369] On 26^th October 2012, as part of the above proceedings in the High Court at Suva between Maya Wati Prakash and Pranita Devi, Maya Wati Prakash swore an affidavit as her evidence-in-chief (Exhibit “18” before this Commission.) In her said affidavit, Maya Wati Prakash recounted:

(1) On 22^nd December 2006, when Salen’s Will was made, ‘My daughter Rosie [also known as Subhasni] had made an appointment with the solicitor for me and Salen to see the solicitor’;

(2) Maya then went with her son, Salen Prakash Maharaj, to the firm of Patel Sharma and Associates on 22^nd December 2006 to have Wills prepared where they met a young lady and ‘Salen told her that we came to have the Will for me and him done’ and this was done by the young lady ‘in front of us on the computer. And [she] printed the documents’;

(3) Maya Wati Prakash then stated at paras [10]-[11] of her affidavit as follows:

‘10. By that time my daughter Rosie arrived [at] the solicitors officers [sic]. She had a look at the documents. And then I signed the Will in front of this lady who I now know as Mala. At the time I signed the will, my daughter Rosie and son Salen was there. This lady, who I thought to be a lawyer, Mala was there and another woman staff was there. This other woman appeared to be Fijian. After I signed the paper, then the other two ladies signed after me. I believe there were 2 copies as they kept one copy and gave me one copy ...

11. After I signed then Salen also signed his Will in front of the two ladies. He signed first and the other two ladies signed as witnesses. She then gave Salen’s signed Will to him ...’

[My emphasis]

[370] I note that in the above affidavit, in relation to Salen, there was the mention of a Will, that is, in the singular. There was no such statement (as there was in relation to Maya’s Will) of there being TWO copies of Salen’s Will that is, a statement, such as, ‘I believe there were 2 copies as they kept one copy and gave him one copy’.

(ii) The statement by Maya Wati Prakash of 29^th September 2015 taken by “Jitendra” of the LPU

[371] On 29^th September 2015, Maya Wati Prakash made a statement that was written in English and translated in Hindustani by “Jitendra” (with no surname) from the Legal Practitioners Unit within the Office of the Chief Registrar, wherein Maya Wati Prakash stated on pp. 2-3 (“AD28”, Agreed Bundle, pp. 115-118, marked as Exhibit “28”, at pp. 116-117) as follows:

‘After preparing the Will was read back to us and explained by Ms Mala. I and my son agreed what all was written on those two wills. The clerk Ms Mala then took those two Wills for the lawyer to sign. After signing those two Wills by the lawyer both the original Wills were handed over to my son Salen Prakash Maharaj. The Wills were not registered and it was only signed by the lawyer.’

[My emphasis]

[372] I note that in the above statement there was no mention of there being FOUR Wills (that is, two originals and two copies of the Wills of Salen Prakash Maharaj and Maya Wati Prakash).

[373] Further, the claim by Maya in her statement of 29^th September 2015, that after the Wills were drafted, ‘The clerk Ms Mala then took those two Wills for the lawyer to sign’ and that ‘The Wills were not registered and it was only signed by the lawyer’ is clearly incorrect:

(1) On 22^nd December 2006, Maya Wati Prakash was present when the clerk, Merewai Doughty and the Law Clerk, Dipka Mala, witnessed the Wills (Exhibit 1). There is no evidence that Maya Wati Prakash met any lawyer from the law firm of Patel Sharma Lawyers that day. Indeed, in relation to Mr. Suruj Sharma, it is undisputed that he was overseas on that day as verified by the stamp in his passport, which was tendered and marked as Exhibit 76;

(2) Maya Wati Prakash presumably saw Salen’s Will again (or a copy of it) after Maya arrived back in Fiji, at some stage after Salen’s Will had been found by Maya’s daughter, Subhasni, on 23^rd January 2010. This was, obviously, prior to Maya’s statement of 29^th September 2015 that she made before “Jitendra” of the LPU, wherein Maya claimed that a lawyer signed the Will. On Salen’s Will, it is clearly stated that it was witnessed by Merewai Doughty, ‘clerk’ and Dipka Mala, ‘Law Clerk’ (See Exhibit 1);

(3) Maya Wati Prakash must also have been aware that this was the case following the judgment of 11^th October 2013 (which was handed down nearly two years prior to her making her claim in her statement with “Jitendra” on 29^th September 2015) wherein Balapatabendi J set out in his judgment at para [5] the full text of Salen’s Will including clearly stating that it had been witnessed by Merewai Doughty, Clerk and Dipka Mala, Law Clerk. (See Exhibit 19 in these present proceedings.) Despite what Mala said in her witness statement of 29^th September 2015, it is clear that a lawyer did not witness Salen’s Will.

[374] In addition, if the statement by Maya Wati Prakash that ‘The Wills were not registered’ was meant to be an inference that something untoward had occurred, this is also not correct. There was no requirement in 2006 for Wills to be registered and there is still no such requirement in 2018.

[375] Maya Wati Prakash then concluded her witness statement of the 29^th September 2015, which had been written out for her by “Jitendra” from the Legal Practitioners Unit, with the claim on page 4 (Exhibit 28, page 118):

‘Then sometimes in January 2010 my daughter Subhasni Lata Singh discovered both the Wills which was kept in the box of documents while she was looking for her lands title. Then the two original Wills were handed over to my lawyer Prem Lata Narayan who was representing me in my case in the Court.’

[My emphasis]

(iii) The evidence of Maya Wati Prakash given before the Commission on 5^th and 6^th December 2016

[376] The evidence of Maya Wati Prakash before this Commission on 5^th December 2016 was that her son kept both Wills. Also, she said, in both her examination-in-chief and cross-examination, that she signed on two pages.

[377] Adding to the confusion, was this segment of evidence (from the re-examination of Maya Wati Prakash by Counsel for the Applicant on 6^th December 2016), as follows:

“Mr. Chand: Now witness, you had said in your evidence yesterday that on the day the Will was signed, that is on the 22^nd December 2006 at Patel Sharma Lawyers, Patel Sharma Associates rather, back then you had signed on two pages?

Interpreter: Yes.

Mr. Chand: Now, what were those two pages?

Interpreter: It was the Will made of 2 pages.

Mr. Chand: Was it one Will of 2 pages or two different Wills?

Interpreter: It was one Will made of 2 pages.”

[My emphasis]

[378] I note that such evidence by Maya Wati Prakash, however, is contrary to her earlier affidavit that she had sworn on 26^th October 2012, (as her evidence-in-chief in the proceedings Prakash v Devi in the High Court at Suva, Civil Action No.3 of 2010), cited above as Exhibit 18 in these present proceedings. In that affidavit, Maya Wati Prakash had stated at para [10], ‘I believe there were 2 copies as they kept one copy and gave me one copy ...’. [My emphasis] It is also different to the evidence that Maya Wati Prakash gave under cross-examination in the High Court in Prakash v Devi on 29^th October 2012 (Doc.21, p.9, Exhibit 47, p.122). When it was put to Maya that “it was Rosie that made the contents of the will”, Maya replied, “There was not one will. There were 3 or 4 wills.” Further, when it was put to Maya that Salen’s Will was forged, she replied (Doc.21, p.21, Exhibit 47, p.134), “It has Shalen’s [sic] signature. Other people’s signature. He made 3 or 4 wills.” [My emphasis] I note though, in re-examination in the High Court, when it was put to her (Doc.21, p.35, Exhibit 47, p.148),“You did 2 wills at Patel Sharma”, she replied “Yes”.

[379] The “two pages” became an important issue of the cross-examination of Maya Wati Prakash on 5^th December 2016. According to the written submissions of Counsel for the Applicant (‘Closing Submissions’, 8^th January 2018, at para [42]): ‘She [Maya Wati Prakash] confirmed she signed on 2 pages on her will and her son also signed on 2 pages on his will.’ This, however, is only part of what Maya said in cross-examination in relation to the “two pages”.

[380] First, it was clarified in cross-examination by Counsel for the Respondent as to what Maya meant when she was referring to “two pages”:

“Mr. Sharma: Okay, so you agree that you are not talking about four originals being signed; you are only talking about two originals?

Interpreter: Translating in Hindi language.

Mr. Sharma: So in that, the explanation is what?

Interpreter: Initially said, two pages were signed by me and then two by my son.”

[My emphasis]

[381] Second, Maya was then taken by Counsel for the Respondent to document “SD6” at page 19 in the ‘Supplementary Bundle of Documents’, that is, the bundle of documents that were not agreed between Counsel prior to the hearing before the Commission. Counsel for the Respondent asked Maya as to whether the document at SD6, which was titled ‘Authority’, was one of the two pages (apart from the Will) that both Salen and she signed on 22^nd December 2006. Further, Maya was asked to confirm that the document was an undertaking given by Salen for the clearing of all outstanding utilities in relation to the sale of a property at Lokia that had just been completed and that she was one of the two signatures that had witnessed Salen’s signature. She confirmed that this was the case as the following extract of this aspect of her cross-examination reveals:

“Mr. Sharma: ... Ms. Prakash do you see your signature on this document? [“SD6”]

Interpreter: It is at the bottom of the page towards the right.

...

Mr. Sharma: So on the 22^nd of December 2006, Ms. Prakash you did sign two pages didn’t you? This was one of the pages you signed?

Interpreter: No this is the different document ...

Interpreter: That we signed.

...

Interpreter: Further said, one for selling the land and the house were different document.

...

Mr. Sharma: You look at the date of this document.

...

Mr. Sharma: Alright. What is the date on the document?

Ms. Maya Wati: 22

Interpreter: 22

Mr. Sharma: Alright.

Commissioner: 22 of December 2006, do you agree with that?

Interpreter: If it’s written then it must be the true thing because I do not remember.

...

Mr. Sharma: ... And you have already confirmed that, that is your signature at the bottom?

Interpreter: Yes.

Mr. Sharma: And do you also confirm that is your son’s signature, Salen Prakash’s signature at the top?

Interpreter: Yes.

Mr. Sharma: And do you see, under the word “witness” there is another signature there?

Mr. Sharma: Do you remember who witnessed your signature on this document?

Interpreter: At that time Mala dealt with us.

Mr. Sharma: Now interpreter can you just read and explain to Ms. Prakash what this document is?

...

Mr. Sharma: So now you understand what this was for Mrs. Prakash?

Interpreter: Yes, about selling the house.

Mr. Sharma: Right. Your son was giving an undertaking that at the time you’ll move out of the house then all the electricity, water rates, telephone bills and city rates, utilities will be all paid up to date.

Mr. Sharma: Right, at the time as at 22^nd December 2006, were you still in the Lokia property?

Interpreter: I do not remember exactly what time it was sold, and then we came from there.

Mr. Sharma: Do you remember where you were staying on the 22^nd of December 2006?

Maya Wati: Koronivia.

Interpreter: Koronivia.

...

Interpreter: We had sold the house and we had come over to the Koronivia House.

Mr. Sharma: Okay, now My Lord if there’s no objections to the fact that she has now identified the authority as her signature and the contents were read out to her then we can have it marked as exhibit ...

Commissioner: I think we are up to 38.”
[My emphasis]

[382] There followed, however, an initial objection by Counsel for the Applicant, to “SD6” being tendered, with Counsel for the Applicant claiming it did not look like Maya Wati Prakash’s signature on the document. When it was pointed out to Counsel that the witness had just identified her signature twice on that same document, Counsel retracted his objection and SD6 was accepted into evidence and marked as Exhibit “38”.

[383] Counsel for the Applicant dealt with the issue of Exhibit 38 and the querying of Maya’s signature in re-examination the following day, 6^th December 2016, when, after taking Maya Wati Prakash to the signature she had previously identified as hers at Exhibit 2, (signed on 15^th December 2008, as the joint instructions authorising the law firm to prepare an application for Letters of Administration under the joint names of Pranita Devi and Maya Wati Prakash), Counsel for the Applicant, then took Maya Wati Prakash to Exhibit 38 (document “SD6”, page 19, signed on 22^nd December 2006, whereby the undertaking given by Salen to clearing all outstanding utilities in relation to the sale of a property at Lokia was witnessed by two signatures) and asked:

“Mr. Chand: Now witness, if you look at now document SD6 at page 19, Supplementary Document 6 at page 19 [Exhibit 38]. Now could you explain why the and could you state which one is your signature at page 19?

Interpreter: It doesn’t look like my signature. And my son’s father’s name is written incorrectly. It’s not Ram Gopal.

...

Mr. Chand: Now witness could you clarify as in your evidence you had said that you had signed on document 19, document at page 19 of Supplementary Document, and today you’re saying it’s not your signature. Could you then confirm why...

Commissioner: ‘It doesn’t look like my signature’, is what she said today.

Mr. Chand: Yes, it doesn’t look like your signature, but yesterday you had said it was your signature. Now which version is correct, Ms Prakash?

Interpreter: The thing I’m saying today is true; it doesn’t look like my signature.”

[My emphasis]

[384] I note that the signature of Maya Wati Prakash in the Authority signed on 22^nd December 2006 (Exhibit 38), looks somewhat similar to the signature in the Trust Account ‘Payment Voucher and Authority’ dated 19^th December 2006 (document “SD7”, Supplementary Bundle, that was identified by Dipka Mala as signed by Maya and Salen on 22^nd December 2006, and marked as Exhibit “69”, page 20). I further note, however, that the signature of Maya in Exhibits 38 and 39 is different to what appears to be initials(?) (or, perhaps, as to what can best be described as an “indecipherable squiggles”) on a document dated 19^th December 2006 but, apparently also signed on 22^nd December 2006 (document “SD8”, Supplementary Bundle, marked as Exhibit “71”, at pp. 22-23). I further note that there is a shortened form of Maya Wati Prakash’s signature that is written simply as “M Wati” in the ‘Power of Attorney’ executed on 16^th August 2000 whereby Satya Prakash and Maya Wati (with no inclusion in her surname of “Prakash”) appointed their son, Salen as their attorney (document “SD9”, Supplementary Bundle, marked as Exhibit 37, at page 26). Also, in the copy of the ‘Sale and Purchase Agreement’ dated 30^th November 1998 between Dalip Singh (Vendor) and Maya Wati and Salen Prakash Maharaj (Purchaser), there is a shortened form of Maya Wati’s signature as “M Wati” and also a signature of Salen Prakash Maharaj that looks very different to that of his Last Will and Testament executed on 22^nd December 2006 in Exhibit 1, page 2. Further, the two signatures of Maya Wati Prakash in the ‘Instructions to Act’ (document “AD2”, Agreed Bundle, marked as Exhibit 2) look different to the signatures on the various authorities signed on 22^nd December 2006. It may well have been that Salen was also signing some documents on behalf of his mother as her appointed ‘Power of Attorney’. I am not going to resolve these issues. I do not need to do so. It is not the basis of any of the four counts before this Commission.

[385] If Counsel for the Applicant wished to raise further argument in relation to this issue (and how it was relevant to the four counts) then he needed to explain its relevance and produce, for example, if not a handwriting expert, then at least a number of official documents with Maya’s signature and then to ask Maya to explain if there had been differences in her signature over the years. Further, I am not intending to make any findings regarding Maya’s signature (nor have I been asked to do so in the written submissions of either Counsel) that will be crucial to my decision in relation to any or all of the four counts.

[386] I found the evidence of Maya Wati Prakash unreliable on the issue as to how many Wills were executed for the following reasons:

(1) In his judgment of 11^th October 2013, Balapatabendi J, noted that ‘The Plaintiff in her evidence testified... One Ms Mala of Patel Sharma Lawyers after obtaining all necessary details from both of them prepared two wills’. There is no mention of there being a finding of four original wills. I do note, however, that Maya’s evidence, when it was put to her that “it was Rosie that made the contents of the will”, was “There was not one will. There were 3 or 4 wills” (Exhibit 47, p.122) and that Salen “made 3 or 4 wills” (Exhibit 47, p.134). Further, in re-examination when she was asked “You did 2 wills at Patel Sharma”, she replied “Yes” (Exhibit 47, p.122);

(2) In her witness statement made just under three years later, on 29^th September 2015 and taken by “Jitendra” of the LPU, there is mention of there being TWO Wills, one for her son and one for her. There is no mention of there being four original Wills;

(3) In her evidence given before this Commission on 5^th December 2016, whilst saying that she signed two pages, she never directly confirmed that there were FOUR originals Wills (two for her son and two for her) prepared by the staff of Patel Sharma Lawyers;

(4) In her further evidence given before this Commission on the following day, 6^th December 2016, she clearly stated in answers to specific questions in re-examination from Counsel for the Applicant Chief Registrar that she had signed on two pages and as to whether “Was it one Will of 2 pages or two different Wills”, she replied that “It was one Will made of 2 pages”;

(5) It is quite clear when one examines the ‘Last Will and Testament executed by [the] Deceased’, Exhibit 1, it is of TWO signed pages.

(iv) The evidence of Dipka Mala

[387] Apart from Maya Wati Prakash, the only other person who was called to give evidence before the Commission who was also present on 22^nd December 2006 when Salen’s Will was drafted and executed, was Dipka Mala, from the firm of Patel Sharma Lawyers.

[388] Even if I had found that the evidence of Maya Wati Prakash had satisfied the evidential burden upon the Applicant of there being TWO original Wills of Salen Prakash Maharaj (which I have not) so as to shift the burden to the Respondent on this issue, Counsel for the Respondent, in my view, satisfied that evidential burden (and thus shifted the onus back to the Applicant) through the evidence of Dipka Mala whose evidence I found far more plausible than that of Maya Wati Prakash as I shall now summarise.

[389] What was not explored by Counsel for the Applicant Chief Registrar in the questions that he asked of Maya Wati Prakash in either her examination-in-chief or in re-examination (after it had been put to Maya by Counsel for the Respondent in cross-examination), was the context in how the Wills of Maya and Salen came to be made on 22^nd December 2006.

[390] By contrast, Counsel for the Respondent, in his questioning of Dipka Mala, developed the context in how the Wills came to be made. Dipka Mala’s evidence I found to be both reliable and revealing.

[391] According to Dipka Mala, on 22^nd December 2006, Maya Wati Prakash and Salen Prakash Maharaj attended upon Patel Sharma Lawyers to finalise the sale of a property at Lot 7 on DP 5754 known as “Lokia” in Rewa, Viti Levu. That is, Salen signed an ‘Authority’ whereby he undertook to the purchasers to clear all outstanding utilities in relation to the sale of a property and his signed authority was witnessed at the same time by Dipka Mala and Maya Wati Prakash.

[392] In her evidence, Dipka Mala was referred to Exhibit 38, that is, the ‘Authority’ being an undertaking given by Salen to Inoke Kana and Levani Gonevou (as the purchasers) clear all outstanding utilities in relation to the sale of a property known as “Lokia”. Dipka Mala confirmed her signature on the left hand side on the authority and stated that Maya Wati Prakash’s signature was on the right hand side, as Dipka Mala explained:

“Since the settlement of the sale CT 24097 had taken place and they were on the verge of collecting the settlement proceeds, this authority was signed to ensure that they would arrange giving of vacant posession and payment and clearance of all utilities upon settlement prior to vacating the property.”

[393] According to Dipka Mala, once the authority was completed, Salen was handed a cheque as the balance of the settlement proceeds from the sale of the Lokia property. In that regard, Ms. Mala was taken to Exhibit 69 (“SD7” at page 20 in the ‘Supplementary Bundle’), a ‘Trust Account Payment Voucher and Authority’ from the firm of Patel Sharma & Associates that she identified and explained as follows:

“Mr. Sharma: Can you tell us, first of all what is this payment voucher and authority, what does it relate to?

...

Ms. Mala: This payment voucher related to payment of the balance settlement proceeds in respect of the sale of property.

Mr. Sharma: And who’s writing/handwriting is on that/ who’s handwriting has been used to prepare the authority?

Ms. Mala: It’s my handwriting Sir.

...

Commissioner: All those and the particulars of payment, is that you?

Ms. Mala: Particulars of payment except the cheque number right on.

Mr. Sharma: Now this particular authority was prepared on the 19^th December 2006 but Mr. Salen and his mother came on the 22nd. Is it correct?

Ms. Mala: Yes.

Mr. Sharma: When did Salen and his mother sign the document?

Ms. Mala: They signed it on the 22^nd of December 2006.

Mr. Sharma Can you tell the Commission why this payment authority was prepared on the 19^th of December 2006?

Ms. Mala: Yes, it was prepared on the 19^th December 2006 because settlement took place on the 18^th and Mr. Sharma was to leave the country I think on the 20^th December, so we had to get the authority signed off and the cheques prepared.

...

Mr. Sharma: But you confirm that these people came to your office on the 22^nd to pick it up, is it correct?

Ms. Mala: Yes.

...

Mr. Sharma: And when Mr. Prakash and Mrs. Maya Wati come to the office on the 22^nd they sign and collect the cheque, is that how it works?

Ms. Mala: They sign and collected the cheques. The difference between the dates is because we had written for the cheques to clear off in the meantime.

Mr. Sharma: Okay, right. But I just want to be very clear, my/as to when they came and collect the cheque?

Ms. Mala: They came and collected it on the 22^nd of December 2006.

Mr. Sharma: So, they collected on the 22^nd when the things were cleared, that’s what you are saying to me?

Ms. Mala: Yes.”

[My emphasis]

[394] In relation to the above, I note that when “SD7” was being tendered as two separate pages and exhibits as follows:

(1) “SD7” Page 20 became Exhibit 69, that is, the payment voucher authority that Dipka Mala alleged were signed by Salen and Maya on 22^nd December 2006 and the cheque received by Salen on that same date;

(2) “SD7” Page 21 became Exhibit “70”, that is, the ‘Trust Account Cheque of $62,000.00 payable to Salen Prakash Maharaj and an unsigned authority’ that were prepared on the 19^th of December 2006 but the cheque was not handed to Salen until he had signed the authority in Exhibit 69 on 22^nd December 2006, that Dipka Mala alleged was witnessed by Mala and her.

[395] Dipka Mala then went on to identify document Exhibit 71 (“SD8”, ‘Supplementary Bundle’, at pp. 22-23) as the Trust Account authorities for ‘the payment of commission to the agent’, to ‘Joe Rarasea on the 19^th of December for $5000.00’, which could not be released until the authority had been signed by Salen Prakash which also occurred on 22^nd December 2006.

[396] Dipka Mala’s evidence was that the following then occurred:

“I recall that after these payment vouchers were executed and payments collected ... Maya Wati Prakash and Salen had left my table and gone to our reception area where they had some private discussions and later came back and requested if I could help them prepare a Will for both of them”.

[My emphasis]

[397] According to Dipka Mala, Maya Wati Prakash had “brought along with her a draft copy of the Will which she had asked me to go through the document and check whether it was in order”, “she had told me that it was prepared by Subhasni” who “she told me it was her daughter”.

[398] I note that when it had been previously put to Maya Wati Prakash during cross-examination that she had brought a document with her, Maya’s initial response was: “No, I have not seen it. My son dealt with everything.” Counsel for the Respondent then suggested to Maya that “when you came to the Law firm of Patel Sharma on 22^nd of December 2006 and met with the Law clerk Dipka Mala, you had this particular document to say that this is the kind of draft Will you had given to her to say this is what my intention is was”. After this suggestion was repeated and when there was no answer, I sought to clarify what was being asked explaining to Maya “What he is saying is, he has got instructions that someone had said when you came in 2006, this is the document you gave. What do you say about that?” Maya’s response was: “Yes, the son dealt with everything, I did not take anything”, followed by “I don’t know whether he took it or did not take it”. When I sought to clarify if what Maya was saying was that the son had brought a document, she replied: “He may have bought it, I do not remember.” Counsel for the Respondent then asked of me: “Can we in that respect sir mark it for identification because then Mala will come to give evidence on that document sir?” The document (“SD2”, ‘Supplementary Bundle’, pp. 4-5) was then marked for identification as MFI “1”.

[399] In her evidence-in-chief, Dipka Mala identified the document that had been previously marked as MFI “1” as “this was the document that she [Maya] brought along on the 22^nd of December”. (It was later marked as Exhibit “77”.) She then explained why she recognised the document as follows:

“Mr. Sharma: Now, firstly there are some handwritten mark-ups on this document, who can you tell/can you know who marked it up?

Ms. Mala: I marked this document Sir.

...

Ms. Mala: That’s my handwriting I had marked the documents.

...

Mr. Sharma: Now in this particular document, it’s upon Salen and Subhasni as the proposed trustee, executor and executrix of the Will and the benefit is to be given to Subhasni, Ireen and Salen with some residual benefit to Sheenal and Kelvin the grandchildren?

Ms. Mala: Yes.

Mr. Sharma: Did she want the Will to be made this way? What was her instructions to you?

Ms. Mala: Yes, her instructions were for us to prepare Will to this effect provided it was in order and I had told her that we can’t use this format.

Commissioner: We can’t?

Ms. Mala: Use this particular format because it was not correct.

Commissioner: We can’t use this particular format because it?

Ms. Mala: was not correct. The contents of which was not right. The contents weren’t right.

Mr. Sharma: And you will see over the page the terms are Maya Wati said/ is refered to as the testator, you have, that’s your handwriting to testatrix, is that correct?

Ms. Mala: Yes Sir.

Mr. Sharma: And witnesses are Justice of the Peace.

Ms. Mala: Yes.

Mr. Sharma: And she is being refered to as a man, isnt it? That he...

Ms. Mala: Yes.

Mr. Sharma: So you have informed her. Who typed the date 10^th November 2006, did Subhashni type the date? Were you instructed?

Ms. Mala: It was in the document when I received it.

Commissioner: So, the date on the 10^th of November 2006, was on the document?

Ms. Mala: On the document itself.

Mr. Sharma: So, after you had discussed with Ms. Maya Wati Prakash, what she wanted to be amended, did you then make a Will for her?

Ms. Mala: Yes, then I had/once I gone through the document and I had told her that this was not the format that we prepare Wills and then she had requested if we could help her and prepare a will each for both of them, herself and the son.”

[My emphasis]

[400] Then, according to Dipka Mala, “The discussions took place between the mother and the son as regards to preparation of the Will ... I got the Will prepared and when they were about to leave the office only Subhasni called into our office”.

[401] Although document MFI “1” (which later became marked as Exhibit 77) had been put by Counsel for the Respondent to Maya Wati Prakash and Maya denied knowledge of it, I note that after the document was identified by Dipka Mala in her evidence-in-chief as having been produced by Maya on 22^nd December 2006, it was never put to Dipka Mala in cross-examination by Counsel for the Applicant Chief Registrar that her recollection of the document being brought by Maya Wati Prakash was incorrect.

[402] In relation to the preparation of the Will of Maya Wati Prakash, Dipka Mala’s evidence was that “once I [had] gone through the document and I had told her [Maya] that this was not the format that we prepare wills and then she had requested if we could help her and prepare a Will each for both of them, herself and the son”. In relation to Salen’s Will, Dipka Mala explained that this was from instructions that Salen gave her and that “after taking the instructions I typed the Will”.

[403] As for the option of leaving a copy of each Will in the firm’s “Wills Register”, Dipka Mala’s evidence was clear that she gave Salen and Maya the option “to keep a copy in our Wills Register” which “they opted not to do so, they wanted only one Will to be prepared”, that is, “... one Will to be prepared for each of them which was to be taken away by Salen after execution on that same day”.

[404] According Dipka Mala, the procedure in the law firm of Patel Sharma Lawyers was that “... we don’t photocopy wills. The wills that we retain on our Wills Register is a[n] original Will.” As for the procedure where a client did not want the firm to keep a signed Will in the firm’s Wills Register, her evidence was as follows:

“Mr. Sharma: So if the testator or testatrix do not want you or the firm to keep a signed doc/Will in the registry. What record would you have that there was a Will made be the firm?

Ms. Mala: We would have a/the electronic version of the Will on the computer.

Mr. Sharma: And in the electronic ,you mean in the computer there is a directory of all the Wills that you...

Ms. Mala: The directory of all the Wills that we have prepared.”

[My emphasis]

[405] In relation to the Wills of Salen Prakash Maharaj and Maya Wati Prakash dated 22^nd December 2006, after their execution, Dipka Mala explained that the following occurred:

(1) “After the Wills were signed ... I had gone and put them in separate envelopes and handed over them to Salen Prakash Maharaj”;

(2) The two envelopes were A4 size and blank as was the firm’s usual procedure;

(3) An unsigned copy of each Will was stored in the firm’s computer for which the firm had a backup copy with secure access to the directory.

[406] Dipka Mala in her evidence also explained that no fees were charged as the preparation of the Wills was done on a pro bono basis as, she explained that, “There are times where we do that for clients upon their request, this is just to build customer relations and for clients who can’t afford to pay legal fees.”

[407] By contrast, in his judgment of 11^th October 2013, Balapatabendi J, stated that in the proceedings in the High Court at Suva, ‘The Plaintiff [Maya Wati Prakash] in her evidence testified ... that her son paid for preparation of both wills although she is unable to recall the amount paid to Lawyers.’ [My emphasis]

[408] Maya Wati Prakash also repeated the claim in her evidence before this Commission that, whilst she never saw her son actually pay the money over to the law firm, ‘he showed me the receipt’.

[409] I note that according to the evidence before this Commission of Subhasni Singh, the daughter of Maya Wati Prakash, after the Wills of Salen and Maya were made, that is, on 22^nd December 2006, her brother had mentioned during dinner that same evening that he paid fees for the preparation of the Wills although he did not state a specific amount.

[410] On this issue, the Applicant attempted to satisfy the evidential burden upon him through the evidence of Maya Wati Prakash, who said that she saw a receipt, together with the hearsay evidence of Subhasni Singh who said that her brother told her later the same evening that he paid fees for the preparation of the Wills. Even though section 114 of the Legal Practitioners Act 2009 states that ‘The Commission is not bound by formal rules of evidence ... the commission must act fairly in relation to the proceeding’, such that I can admit the hearsay evidence of Subhasni Singh, the weight that I shall give it is another matter entirely. The best that can be said of such evidence is that the brother told Subhasni that evening that he paid fees for the preparation of the Wills, it does not follow, however, that this is evidence that he actually paid any fees.

[411] Indeed, on the receipt issue, I also note that no documentation was tendered by Counsel for the Applicant of any receipt to support the claim that Salen Prakash Maharaj paid for the preparation of the said Wills. Further, even if the receipt had been lost after so many years, I note that there was no evidence placed before the Commission of any attempt made by investigators of the Applicant to find the relevant receipt book/s of the Respondent firm from December 2006 and/or a notice from the Applicant requiring production of such a document (together with any reply from the law firm) in accordance with section 106 of the Legal Practitioners Act 2009 which states:

‘Registrar may require production of documents etc

106. The Registrar may require by notice in writing to a legal practitioner or a law firm, the production by the legal practitioner or the law firm to the Registrar, at a time specified in that notice, of books, papers, files, securities, other documents or any other record of any type whatsoever, or copies thereof which are in the custody, possession or control of the legal practitioner or law firm and which may be relevant to or relate to the complaint under section 99 or the investigation under section 100.’

[412] In addition, there was no request by Counsel for the Applicant for the issuing of a subpoena upon the law firm and/or an application for the Commission to require the Respondent legal practitioner and/or an employee of the firm to attend and ‘produce documents touching the matter in question’ pursuant to section 116 of the Legal Practitioners Act 2009 which states:

‘Witness to attend

116.—(1) The Commission may by notice in writing signed by the Commissioner or any authorised employee of the Commission require to appear before it any person (including any complainant and the legal practitioner or partner of a law firm in respect of whose conduct any matter has been referred to it) who may, in its opinion, be able to give evidence or produce documents touching the matter in question, or whom any party to the reference may desire to call as a witness.’

[413] At the clarification hearing on 25^th April 2018, I asked Counsel for both parties what inferences could I draw from the evidence as to the main purpose of the visit to Patel Sharma Lawyers on 22^nd December 2006, that is, was it the settlement of the Lokia property or the drafting of Wills for Salen and Maya?

[414] The oral submission of Counsel for the Respondent was that there was a logical inference that the main purpose of the visit on 22^nd December 2006 was the settlement of the Lokia property. The oral submission of Counsel for the Applicant Chief Registrar was that it was a matter for the Commission to decide.

[415] I also note, that it was never put to Dipka Mala in cross-examination by Counsel for the Applicant that the main purpose of the visit on 22^nd December 2006 was the drafting and execution of the Wills rather than the settlement of the Lokia property.

[416] In my view, Dipka Mala’s evidence is to be preferred to that of Maya Wati Prakash. Dipka Mala’s evidence makes logical sense. I find that the main purpose of the visit to the firm by Salen and Maya on 22^nd December 2006 had been to finalise the transfer from the sale of the property at Lokia and that the preparation of the wills was an impromptu request made of Dipka Mala AFTER the main purpose of the visit had been completed.

[417] Dipka Mala’s evidence was also logical as to why no fees were charged for the preparation of the Wills. It makes sense that as the firm had already earned its fees (paid by the purchasers Inoke Kana and Levani Gonevou or their bank) from the sale and transfer of the property Lot 7 on DP 5754 known as “Lokia” in Rewa, Viti Levu, as the preparation of the wills was a relatively minor impromptu request, Dipka Mala exercised her discretion and charged no fees as a gesture of goodwill.

[418] That the main purpose of the visit on 22^nd December 2006 had been to finalise the sale of the property is also supported by the documentary evidence. In that regard, apart from Exhibits 38, 69 and 70 discussed above, to which Dipka Mala was referred and explained in her evidence, I also note that there is further documentary evidence in the ‘Supplementary Bundle’, listed as document “SD5” (‘File notes for Inoke Kana’, Exhibit “80”) which has the following: ‘File No: 7200’, ‘Client: Inoke Kana’, ‘Subject/Matter: Re: Purchase of Property’ and for which there is a final entry: ‘22/12/06 Matter settled’ with initials. As I have already noted above, Inoke Kana together with Levani Gonevou were the purchasers in 2006 of Lot 7 on DP 5754 known as “Lokia” in Rewa, Viti Levu, from Salen and Maya.

[419] I also found Dipka Mala’s evidence to be clear and logical. In particular, Dipka Mala’s identification of the document marked as MFI 1 (Exhibit 77) is revealing. She identified MFI 1 as “the document that she [Maya] brought along on the 22^nd of December”, and that she had explained to Maya that as the document contained a number of errors it could not just be copied (some examples of the errors were highlighted in questions of Dipka Mala by Counsel for the Respondent in evidence-in-chief). Whether these were all amended in the final Will is not clear as a copy of Maya’s Will was not tendered in the present proceedings before this Commission. Dipka Mala was also clear that Salen’s Will was drafted from instructions that Salen gave to Dipka Mala.

[420] Surely, many of the basic errors in the document marked as MFI 1 (Exhibit 77) would not be part of something drafted by an experienced law clerk? Also, the date on the document, being “10^th November 2006”, indicates that it was something that Maya Wati Prakash had been discussing with someone for at least 42 days prior to the attendance by Maya and Salen at Patel Sharma Lawyers on the 22^nd December 2006. Further, Patel Sharma Lawyers must have retained the draft (that became Exhibit 77) from what Maya provided to Dipka Mala, or from where else was Counsel for the Applicant suggesting that the document originated? I note that Counsel for the Applicant Chief Registrar never suggested to Dipka Mala an alternative explanation to which she could either agree or refute.

[421] Dipka Mala’s evidence was in contrast to the evidence of Maya Wati Prakash who denied any knowledge of MFI 1 (Exhibit 77) and suggested (as noted above) “He [Salen] may have brought it, I do not remember.” It can only be inferred that Maya’s memory on this issue is unreliable.

[422] I should also mention that I am mindful that although the Wills of Salen and Maya were prepared on a pro bono basis, the same degree of care was required as if they were fee-paying clients for the same service. As McCallum J explained in Moss v Eagleston [2014] NSWSC 6 (4 March 2014) (AustLII: <http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWSC/2014/6.html> ), involving a claim of professional negligence against a solicitor in drafting a statement of claim on a pro bono basis where, it was submitted in the statement of issues whether a lower standard of care applied, Her Honour rejected the argument outright stating at [81]:

‘If it was intended to maintain the original contention (set out in the statement of issues) that there is no duty of care, or a lower standard of care, in the case of services provided on a pro bono basis, that proposition must be rejected, in my view. The degree of care and skill required in the performance of a professional task cannot logically be informed by the extent of remuneration which the lawyer agrees to accept for the task. The task is the same in any case. No lawyer is obliged to undertake work on a pro bono basis, but those who choose to do so must in my view be held to the same standard of care as those who request payment for their services.’

[My emphasis]

[423] Dipka Mala’s evidence was also clear that:

(1) only one Will was prepared and executed as per the instructions of Salen Prakash Maharaj; and

(2) Salen Prakash Maharaj took his sole original Will with him (as well as that of Maya Wati Prakash).

(v) The letter of 23^rd December 2013 from Patel Sharma Lawyers to the Acting Chief Registrar

[424] The only query that I have in relation to Dipka Mala’s evidence is that it does not accord with a statement made in a letter dated 23^rd December 2013 from Patel Sharma Lawyers to the Acting Chief Registrar (Document “AD23”, Agreed Bundle, pp. 89-102, Exhibit “23”) wherein at page 12 of the letter (page 100, Exhibit 23), para [8], it is stated:

‘Upon enquiry made by Ms. Subhashni [sic] on 25^th November 2008 and thereafter by her mother, Maya Wati Prakash and Pranita Devi, they were advised that Messrs. Patel Sharma Lawyers did not have a signed copy of the Will in the “Wills Register” of 3 volumes although there was an entry in the office computer showing existence of a Will in the name of Shalen [sic] Prakash Maharaj.

This Will was made on the same date as the Will of Maya Wati Prakash, also shown in the computer entry and confirmed from the “Register of Wills” containing a signed copy of the Will of Maya Wati Prakash.’

[Underlining my emphasis]

[425] Thus, the above statement apart from confirming ‘an entry in the office computer [of Patel Sharma Lawyers] showing existence of a Will’ for Salen, also claims a computer entry for the Will of Maya Wati made on the same date but further that Patel Sharma Lawyers maintained a signed copy of the Will of Maya Wati Prakash in their “Register of Wills”. I do note, however, that earlier in the same letter (at p.3) specifically discussing the entry for ‘25^th November 2008, there is no such statement in relation to Maya’s Will also being maintained in the firm’s “Register of Wills”. Instead, it confirmed in part that:

‘The telephone was put on hold while a quick search was done for the Will from the 3 volumes of “Wills Register” maintained by this office. However, a signed copy of the Will could not be found but the office computer did show the existence of a Will made on 22^nd December 2006. This was communicated to Subhashni [sic].’

[426] I also note that nearly three years and 8 months prior to the above letter of 23^rd December 2013 (Exhibit 23), a letter dated 29^th April 2010 from Patel Sharma Lawyers to the Chief Registrar (Document “AD10”, Agreed Bundle, pp. 33-42, marked as Exhibit 10) with the reference ‘SPS/dm/8314 (presumably indicating Suruj Prasad Sharma as the author and typed by Dipka Mala), contains no such statement (as appeared in the later letter of 23^rd December 2013) that a signed copy of the Will of Maya Wati Prakash was in the “Register of Wills” maintained by Patel Sharma Lawyers.

[427] Interestingly, I further note that no challenge was made by Counsel for the Applicant to Dipka Mala and/or Suruj Sharma asking them to compare and then explain their respective oral evidence with the correspondence from Patel Sharma Lawyers to the Chief Registrar marked as Exhibit 23 (the letter of 23^rd December 2013 containing the statement as to the alleged existence of a signed copy of Maya’s Will in the firm’s “Will’s Register”). Instead, Mr. Suruj Sharma was asked in cross-examination by Counsel for the Applicant Chief Registrar, as to why ‘there was no mention of the unsigned Will being shown to MWP and Subhasni’ in Exhibit 10 (the letter of 29^th April 2010) – an issue that I shall deal with later in this judgment. Surely, if Counsel for the Applicant Chief Registrar wished to challenge the accuracy of either Dipka Mala’s evidence and/or that of Mr Suruj Sharma’s, as to the storage of Maya Wati Prakash’s Will, then Counsel needed to show them the inconsistency between their oral evidence and Exhibit 23 and ask them to explain. Counsel for the Applicant did not do so.

[428] I also note that neither Dipka Mala nor Suruj Sharma were challenged by Counsel for the Applicant Chief Registrar in cross-examination as to the inconsistency of the statement in the later letter dated 23^rd December 2013 (as to the existence of a signed copy of the Will of Maya Wati Prakash in the firm’s “Will’s Register”) with the earlier letter of 29^th April 2010 (where no such claim was made), together with the later oral evidence of Dipka Mala given before the Commission on 21^st September 2017 (where she was firm that there was only one signed Will for Maya as well as Salen and Salen took the two Wills with him). Instead, as Counsel for the Respondent noted in their written submissions at para [38]: ‘Mala’s evidence was unchallenged by the Prosecution.’ I agree with that submission.

[429] Further, I note that a letter dated 24^th October 2015 (document “AD33”, ‘Agreed Bundle’ (at pp. 140-149) and marked as Exhibit “33”) signed by Mr. Devanesh Sharma of R. Patel Lawyers (the Leading Counsel appearing in this matter) was sent to the Chief Registrar advising ‘that we are instructed by Lajendra Law and the Legal practitioner to take over the defence ... in the above application and we have today filed and served our Notice of Change of Solicitors’. That letter, consisting of 10 pages, makes no mention of an admission by Leading Counsel, on behalf of his client, of a signed copy of the Will of Maya Wati Prakash being kept in the Will’s Register of Patel Sharma Lawyers. Rather, it clearly states at para [5], subparas [ii]-[iv], page 141, Leading Counsel’s instructions as to how the Wills were drawn up and that ‘there is no file record of the Wills’ (of either Salen and/or Maya Wati Prakash) as they were to given Salen:

‘[ii] Both Salen Prakash Maharaj and Maya Wati had Wills drawn up by the Firm’s Clerk Dipka Mala. They executed the Wills in the presence of Ms Dipka Mala and Ms Merewaia Doughty [two clerks of the firm].

[iii] There is no file record of the Wills since this was an additional service provided by Ms Mala at no cost to the two persons who had been conveyancing clients of the firm.

[v] The Wills once executed were given to Salen Prakash Maharaj in the presence of the Maya Wati. So, Salen Prakash Maharaj’s Will was in his possession from 22^nd December 2006.’

[My emphasis in bold]

[430] I accept the above, not as evidence from Mr. Devanesh Sharma, but as evidence of the instructions that he had been given by his client, Mr. Suruj Sharma, as part of a submission to the Chief Registrar on 24^th October 2015 seeking withdrawal of the four counts prior to filing a strike-out application with the Commission on the basis of abuse of process. I note that the letter was copied to the Commission.

[431] Finally, I note that, as with the receipt issue, there was no evidence placed before the Commission of any attempt made by investigators of the Applicant to find the Will of Maya Wati Prakash in the Will’s Register of the Respondent’s firm from 22^nd December 2006 and/or a notice from the Applicant requiring production of such a document (together with any reply from the law firm) in accordance with section 106 of the Legal Practitioners Act 2009.

[432] In addition, there was no request by Counsel for the Applicant for the issuing of a subpoena upon the law firm and/or an application for the Commission to require the Respondent legal practitioner and/or an employee of the firm to attend and ‘produce documents touching the matter in question’ pursuant to section 106 of the Legal Practitioners Act 2009. That is, to produce a list of Wills kept in the firm’s Wills Register either by relevant date sequence (that is, Wills stored in December 2006) and/or alphabetical order (that is, Wills stored under the surnames of “Wati” and “Prakash”. Alternatively, there was no application by Counsel for the Applicant during the hearing of this matter, that the Commission (together with Counsel) hold a view at the offices of Patel Sharma Lawyers to inspect the firm’s “Wills Register” and specifically to be shown what is held either by relevant date sequence and/or alphabetical order.

[433] In light of the above, I raised this issue at the clarification hearing on 25^th April 2018 asking Counsel for each party to comment.

[434] According to the oral submissions of Counsel for the Respondent, the confusion may have been due to the fact that Maya Wati Prakash made a subsequent Will with Patel Sharma Lawyers. Counsel for the Applicant had no oral submission to make and said it was a matter for the Commission.

[435] I note that the Affidavit of Maya Wati Prakash sworn on 26^th October 2012, filed as her evidence-in-chief in the High Court proceedings (Exhibit 18), stated at para [18] that following Salen’s death:

‘After about a month, I then went to Patel Sharma and Associates too [sic] change my Will as Salen was no longer alive. The Will was prepared by Mala. I signed in front of her and another woman.’

[436] I also note that the evidence of the Respondent, given in cross-examination before the Commission as to the existence of the second Will prepared by Patel Sharma Lawyers for Maya Wati Prakash, was as follows:

“Mr. Chand: ... now Mr. Sharma was there a Will of Maya Wati Prakash, a signed will of Maya Wati Prakash kept with the law firm that was executed on the 22^nd of December 2006?

Mr. S. Sharma: No. There was a Will kept in our wills register, that was a Will that she made subsequent to the death of Salen Prakash Maharaj when she had come in sometime in December to make a Will and she had requested a copy to be put on a Wills Register that was kept.

Commissioner: When was the December 2008 or?

Mr. S. Sharma: 2008, as best I recall there was a.

Commissioner: The other one was her previous Will and that was Salen had...

Mr. S. Sharma: Had taken away Sir.

Mr. Chand: Just, witness if you could, if you could repeat you answer, there was a subsequent Will that was kept by the law firm?

Mr. S. Sharma: There was a Will I am aware that was made after the death of Salen Prakash Maharaj and at that time it was Maya Wati request if we could keep a copy on our wills register.

Mr. Chand: And was that Will made by your law firm?

Mr. S. Sharma: Yes.

Mr. Chand: Would you be able to say the date that this Will was made, the Will that was made after Salen Prakash Maharaj’s death?

Mr. S. Sharma: It was, I got to know of that subsequently but it was made before, sometime before 15^th of December.

Mr. Chand: 15^th December 2008?

Mr. S. Sharma: 2008.”

[My emphasis]

[437] Having considered the matter further, I accept that the unattributed statement in the letter dated 23^rd December 2013 as to the existence of a signed copy of Maya’s Will in the “Will’s Register” of Patel Sharma lawyers was a factual error in the 14 page response from Patel Sharma Lawyers to the Acting Chief Registrar (which may have been caused by the existence of a later second Will of Maya’s executed sometime after Salen’s death on 24^th November 2008 and before the 15^th December 2008) and that it does not detract from the oral evidence given by Dipka Mala before this Commission.

(vi) Salen’s reason for taking the Wills with him on 22^nd December 2006

[438] As to Salen’s reason for taking the Wills with him on 22^nd December 2006, this can be only speculative. Perhaps, he did not want a copy of his Will kept with the firm due to the contents of his Will, that is, he was leaving his Estate to his mother and not his wife and there was also the fact that, apart from his wife, there was another woman residing in the household with whom he was having some form of a relationship. In any event, it is not my role to resolve such speculation.

[439] It is enough for me at this stage to make findings as to how many Wills were prepared and executed on 22^nd December 2006 and taken by Salen Prakash Maharaj and whether a second original was left with the Respondent law firm. This I will now do.

(vii) Findings on the preparation of the Wills of Salen Prakash Maharaj and Maya Wati Prakash

[440] The position of Counsel for the Applicant Chief Registrar on this issue was clarified at the hearing on 25^th April 2018, wherein Counsel for the Chief Registrar explained in his oral submission that “what instructions we held from the complainant was somewhat different from the evidence [that] was before the Commission” and that it was a matter for the Commission to interpret the evidence.

[441] The oral submission of Counsel for the Respondent legal practitioner was that the evidence was clear:

(1) “there was one Will made on 22^nd December 2006 by Salen Prakash Maharaj”;

(2) “there was another Will made by Maya Wati Prakash on the same date and subsequently after Salen’s death, Maya Wati Prakash then made a new Will”;

(3) The evidence of Maya Wati Prakash was that there was one Will of two pages “And the Will has been exhibited and it’s quite obvious it is two pages”;

(4) “the Wills were taken away in the presence of Dipka Mala and Maya Wati Prakash”.

[442] My findings in relation to the preparation of the Wills of Salen Prakash Maharaj and Maya Wati Prakash are:

(1) On 22^nd December 2006, Salen Prakash Maharaj and Maya Wati Prakash attended the Offices of Patel Sharma Lawyers for the purpose of finalising the sale of a property at Lokia (Nausori) for which Salen signed an ‘Authority’ to clear all outstanding utilities in relation to the sale of a property and that signed authority was witnessed at the same time by Dipka Mala. I note that it is disputed whether Maya Wati Prakash also witnessed that authority. I do not need to resolve that issue. I accept, however, that the once the authority was completed by Salen on 22^nd December 2006, Dipka Mala then handed a cheque to Salen as the balance of the settlement proceeds;

(2) After the sale of the property had been finalised on 22^nd December 2006, Salen Prakash Maharaj and Maya Wati Prakash, who were still at the Offices of Patel Sharma Lawyers on that date, then asked Dipka Mala of Patel Sharma Lawyers if Dipka Mala could prepare a Will for Maya Wati Prakash and a Will for Salen Prakash Maharaj;

(3) The Will for Maya Wati Prakash was based upon a draft that Maya had brought with her and she handed to Dipka Mala, which Dipka Mala amended accordingly as she typed the original Will;

(4) The Will for Salen Prakash Maharaj was based upon oral instructions given by Salen to Dipka Mala;

(5) Dipka Mala prepared only ONE Will for Salen Prakash Maharaj and ONE Will Maya Wati Prakash (and not a second original for either);

(6) The preparation of the said Wills by Dipka Mala of Salen Prakash Maharaj was done on a pro bono basis;

(7) The said ‘Last Will and Testament of Salen Prakash Maharaj’ prepared by Dipka Mala consisted of TWO signed pages and a backsheet;

(8) The said Will of Salen Prakash Maharaj was executed by him on 22^nd December 2006 and witnessed by Merewai Doughty, Clerk, and Dipka Mala, Law Clerk, of Patel Sharma Lawyers, following which, Salen Prakash Maharaj then took that sole original Will with him and did not leave it with the said law firm;

(9) The said Will of Maya Wati Prakash was executed by her on 22^nd December 2006 and witnessed by Merewai Doughty and Dipka Mala of Patel Sharma Lawyers, following which, Salen Prakash Maharaj then took that sole original Will with him and Maya Wati Prakash and did not leave it with the said law firm.

(3) Findings on whether a record of the Will of Salen Prakash Maharaj was maintained by Patel Sharma Lawyers after it was executed

(i) Counsel for the Applicant’s ‘Further Written Submissions’ dated 6^th June 2016

[443] Counsel for the Applicant in his ‘Further Written Submissions’ dated 6^th June 2016, opposing the strike out applications of the Respondent (for which I delivered a ruling on 21^st September 2016 refusing the application) argued at paras [11]-[12]:

‘11. ... the consumer public or clients of a law firm have some expectations from their solicitors ... due to the very nature of the fiduciary relationship that a client and solicitor have. It is further submitted that despite the fact that there is no statutory requirement for law firms to keep original Wills of clients and records, a prudent practitioner ought to keep original Wills made by the law firm as well as proper record of the same as to safeguard the client’s interest as well as the law firm’s interest.

12. It is unfortunate that the Respondents have submitted that since the law does not require them to maintain a record or keep Wills, they thus have no responsibility. Any client would expect that a competent and diligent legal practitioner would keep proper records that they could rely on.’

[My emphasis]

(ii) My Ruling of 21^st September 2016

[444] I also noted in my ruling of 21^st September 2016 that neither the Respondent legal practitioner nor Ms Dipka Mala, (the clerk in the Second Respondent’s firm who prepared the Wills for both Mr. Salen Prakash Maharaj and his mother, Maya Wati Prakash), had been called to give evidence in the previous High Court proceedings in the matter of Prakash v Devi.

[445] In my ruling, I further noted in relation to this count at para [42]:

‘... there are two issues that need to be fully ventilated at a hearing arising from this Count:

(1) Whether ‘Subsequently to the Deceased’s death on 24 November 2008, the Plaintiff and her family members ... were informed by the law firm that the Deceased had not made any will’?

(2) Whether such conduct in not making a second original of the Will in 2006 ‘falls short of the standards of competence and diligence that a member of the public is entitled to expect of a reasonably competent or professional legal practitioner or law firm’?

[446] On the issue as to whether a proper record of the said Will of Salen Prakash Maharaj was maintained by Patel Sharma Lawyers, I note that the case of Counsel for the Applicant shifted from his oral submissions made during the hearing of the interlocutory application on 22^nd April 2016 (and in his subsequent written submissions filed as part of that application), to what I understood became the position of Counsel for the Applicant when he filed his prosecution case statement on 18^th November 2016.

[447] On this issue, it is important that I cite from my ruling in wherein at paragraphs [18]-[21], I stated as follows:

‘[18] The core of the argument of Counsel for the Applicant is that if there was a Will prepared by the Respondent’s law firm, then, as a competent and diligent legal practitioner or law firm, they should have kept a copy of the Will - as Counsel for the Applicant submitted at the hearing on 22^nd April 2016: “How long does it take to make a copy of the same and keep it?” “Further, if it was not registered, they could have made two originals and kept one.”

[19] As I understood Counsel for the Applicant’s argument, “every practitioner must keep duplicate copies of every document they make”. That is:

“It’s a matter of competence and diligence, a competent and diligent legal practitioner would do that because it is fundamental obligation of the practitioner that the work he or she carries out keeps proper minutes, keeps the documents that they have prepared, keeps proper records of the same so that in future if there is any issues arising from the document that has been prepared from issues arising from the work that they have done.”

[20] ... In 2006, however, as Counsel for the Applicant conceded, there was no such requirement.

[21] Leading Counsel for the Respondents noted in reply at the hearing on 22^nd April 2016, that there was no rule or law or requirement in 2006 to say that there was supposed to be two originals made of a Will by a practitioner, indeed, he emphasised that some clients “are very selective and say ‘this is my private document I don’t want anyone else to’” have a copy ... It was not an offence, however, in 2006, nor was there a Practice Direction to say that you needed to make two originals of the Will.’

[My emphasis]

(iii) The ‘Prosecution Case Statement’ dated 18^th November 2016

[448] Counsel for the Applicant Chief Registrar in his ‘Prosecution Case Statement’ filed on 18^th November 2016, stated the following in relation to Count 2 at para [7]:

‘To prove this count, the Applicant would rely on case laws which states that legal practitioners should keep proper records of work they have done for their clients. In the present case the Respondent had failed to keep proper record of Salen Prakash Maharaj’s Will. As a legal practitioner, the Respondent should be vigilant in order to maintain proper records. The Respondent failed to do this as such his actions amount to unsatisfactory professional conduct.’

[My emphasis]

(iv) Analysis

[449] According to Counsel for the Applicant Chief Registrar in his written ‘Closing Submissions’ of 8^th January 2018 at para [492]:

‘In relation to Count 2, ... The Applicant is not alleging that the Respondent did not keep a copy of the Will or did not keep one of the originals but what the Applicant is alleging that there was no proper record kept by the firm to conclusively say that SPM’s Will was made by the firm.’

[My emphasis]

[450] Counsel for the Respondent (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, pp.37-38, para [96]) have replied:

‘... the Complainants were never told that the Firm had not made any Will for the Deceased. They were told that the Firm did not hold a signed Will for the Deceased and the only record that they had was an unsigned version of the Will kept on the Firm’s computer hard drive. This fact could have easily been verified by PLN who acted for MWP before she initiated the court cases on MWP’s behalf where she pleaded without any verification from the Firm that the Firm had informed MWP that it had not made any Will for the Deceased. The same information was given to the Solicitor acting for PD, WH when he came for a meeting with the Practitioner on 15^th May 2010 that an electronic version of SP’s Will was on the Firm[‘]s computer but that SP taken the original signed Will with him ...’

[My emphasis]

[451] Counsel for the Applicant Chief Registrar in his further written closing submissions in reply (‘Applicant’s Submissions in reply’, 20^th February 2018, page 2, at para [9]), in relation to ‘Custody and Record of Will’, has responded that:

‘The allegation by the Applicant is based on the evidence of MWP and other witnesses who testified that the law firm had completely denied the existence of a Will. The Applicant relies upon paragraph 492 of its submissions filed on 8^th January 2018. It is on this basis that the allegations arose against the practitioner.’

[My emphasis]

[452] Paragraph 492 of the ‘Closing Submissions’ of Counsel for the Applicant Chief Registrar filed on 8^th January 2018, states:

‘... it is respectfully submitted that the Respondent’s firm did not keep any record of the Will of SPM as apart from Dipka, all other witnesses denied having knowledge of the electronic copy of the Will. All witnesses stated that they were never told about or shown the electronic copy of the Will. They all stated that they were told that there is no Will. Hence, it is respectfully submitted that Dipka Mala’s evidence is clearly contradicted by more than one witness and as such the charge is made out in that the law firm did not keep a proper record of the Will ... Evidence of MWP, Subhasni and Ms. Narayan was that Dipka had said that there was no Will made by the firm. Even Ms. Narayan stated that she was told by MWP that Dipka said no Will was made by the firm.’

[My emphasis]

[453] The above submission, unfortunately, contains some misunderstandings of the evidence relied upon by Counsel for the Applicant in relation to ‘Custody and Record of Will’. Further, just because ‘Dipka Mala’s evidence is clearly contradicted by more than one witness’ it does not necessarily follow, as Counsel for the Applicant has submitted, that ‘as such the charge is made out’, as I shall now explain.

(v) The evidence of Maya Wati Prakash

[454] In relation to Maya Wati Prakash, as I have noted above, on 11^th March 2010, the Legal Practitioners Unit within the Office of the Chief Registrar received a ‘Complaint Form’ signed and dated on that same date by Maya Wati Prakash (Exhibit 8). In completing the form, when asked ‘Date of last contact with practitioner/s/Law Firm’, Maya Wati Prakash answered ‘December 2007’. When asked to specify the nature of her complaint she wrote:

‘FRAUD ➔ Suruj was holding the original will submitted to him by Salen Prakash Maharaj (deceased)

he was saying that he does not have any will but actually he was keeping it’

[455] Further, when asked for ‘Particulars of a complaint’, it is written on the form, ‘see attached page’. The attached page was typed and stated, in part, as follows:

‘My daughter Subhasni had said that a Will was executed by Salen and at the law office of Patel Sharma & Associates. Salen died in an accident on 24^th November 2007. On 1^st, 2^nd and 3^rd December 2008 I together with my than [sic] daughter in law Pranita and daughter Subhasni visited the solicitors office. We did not meet the solicitor despite appointments being made with the solicitor. We were attended by Dipka who informed us that Salen had not made Will through their office.

The clerk asked the solicitor while we were there but the solicitor did not meet with us ...’

[My emphasis in bold]

[456] It is clear that the above allegations are incorrect as follows:

(1) To say that ‘Salen died in an accident on 24^th November 2007’, is incorrect. He died in 2008. I accept, however, that this may have been a simple typographical error. I also accept that the ‘Date of last contact with practitioner/s/Law Firm’, may have an error and it should have been written on the form as ‘December 2008’ rather than ‘December 2007’;

(2) I have seen no evidence, however, to support an allegation of fraud and to have made such a claim against any person, let alone a legal practitioner, without any supporting evidence was simply outrageous;

(3) I have seen no evidence to support an allegation that Mr. Suruj Sharma ‘was holding the original Will submitted to him by Salen Prakash Maharaj’. Indeed, I have already made a finding above that only one Will was drafted and executed on 22^nd December 2006 of Salen Prakash Maharaj and which Salen Prakash Maharaj then took with him on that date and did not leave it with the law firm;

(4) To make the allegation that ‘My daughter Subhasni had said that a Will was executed by Salen and at the law office of Patel Sharma & Associates’, makes no sense, particularly as it was Maya Wati Prakash and not Subhasni Singh who was present when Salen’s Will was drafted and executed on 22^nd December 2006;

(5) To say that ‘On 1^st, 2^nd and 3^rd December 2008 I together with my than [sic] daughter in law Pranita and daughter Subhasni visited the solicitors office’, was a complete fabrication –

(i) Neither Subhasni nor Pranita gave evidence before the Commission of having attended the law offices of Patel Sharma & Lawyers on 1^st, 2^nd and 3^rd December 2008;

(ii) The documented evidence is of an attendance by Maya, Subhasni and Pranita on 15^th December 2008 where Maya and Pranita gave instructions for an application to be filed seeking Letters of Administration;

(iii) The evidence of Dipka Mala (supported, as shall be seen, by the evidence of Mr. Suruj Sharma) is that there were attendances on 12^th December 2008 by Maya and Subhasni and then on 15^th December 2008 with Maya, Subhasni and Pranita;

(iv) Indeed, as I have already noted above, Maya Wati Prakash, after much questioning and then clarification by me, finally conceded that there were two meetings at the offices of Patel Sharma Lawyers. On the first occasion, Subhasni and Maya attended and met Mr. Suruj Sharma for the first time where Mr. Sharma referred to there being “no signed Will”. This was followed by a subsequent (documented) meeting on 15th December 2008 at the offices of Patel Sharma Lawyers where Subhasni and Maya and, on this occasion, Pranita as the widow, also attended, so that the grant of Letters of Administration could be discussed and where instructions were signed by both Maya and Pranita to proceed with Letters of Administration.

[457] Whilst I accept that the date of Salen’s death and the date of last contact with the legal practitioner may have been simple errors, I find the evidence of Maya Wati Prakash on the larger issue of the alleged storage of the Will by the Respondent firm to be utterly unreliable.

[458] Further, to underline the unreliability of the evidence of Maya Wati Prakash in relation to the storage of the Will of Salen, she was claiming in her written complaint to the Chief Registrar on 11^th March 2010 that ‘Suruj was holding the original will’ when, as Counsel for the Respondent have highlighted in their written submissions (‘Practitioner’s Closing and Responding Submissions’, 31^st January 2018, page 10, sub-para [ix]), the truth was otherwise:

‘It must be noted that the compliant [sic] that MWP had made was that the Practitioner was holding onto the signed Will when in fact as at 10^th [sic] March 2010 MWP was clearly aware that the signed Will had been found at her own daughter’s house in Caubati on or around 23^rd January 2010. This allegation made to the Chief Registrar had absolutely no merit.’

[My emphasis]

[459] Indeed, to emphasise my finding as to the unreliability of the evidence of Maya Wati Prakash in relation to the storage of the Will of Salen, I note that on 6^th March 2009, a year before Maya lodged her ‘Complaint Form’ dated 11^th March 2010 with the Chief Registrar’s Legal Practitioners Unit, Maya Wati Prakash filed an application in the High Court at Suva, Civil Action No. 81 of 2009 (returnable on 10^th March 2009), through Prem Narayan, Barrister & Solicitor, seeking interim injunctive relief against Pranita Devi (and others) in dealing with the property in the name of Salen at Koronivia, Nausori. In the Statement of Claim filed with the Writ of Summons as part of that application (Exhibit 7, page 15) it was pleaded at para [25]:

‘Subsequent to the Deceased funeral rites, and sometimes between 10 and 23 December 2008, the Plaintiff [Maya Wati Prakash] and the First Defendant [Pranita Devi] instructed the law firm of Patel Sharma and Associates for grant of probate.’

[My emphasis]

[460] In her affidavit in support of the above application sworn on 5^th March 2009, (that was not included as part of Exhibit 7 in the present proceedings before the Commission, but was later tendered as part of Exhibit 44, being a copy of the whole of the ‘High Court file for Action No. 81 of 2009’), Maya Wati Prakash stated at para [21]:

‘Between 10 and 23 December 2008, the First Defendant and I sought legal advice from Patel Sharma and Associates (now known as Patel Sharma Lawyers) on obtaining grant of probate and both the First Defendant and I executed documents at their office ...’

[My emphasis]

[461] How a person can in March 2009 instruct their solicitor to plead in a statement of claim supported by a sworn affidavit in support that the attendances were ‘Between 10 and 23 December 2008’ and then, just on a year later, in March 2010, complete a complaint form filed with the Chief Registrar’s Legal Practitioners Unit that the attendances were ‘On 1^st, 2^nd and 3^rd December 2008’, is simply, in my view, of only two explanations. Either her evidence is utterly unreliable (perhaps due to her age and/or memory) or she has fabricated, in the sense as defined by the Concise Oxford Dictionary of Current English (supra) at p.370, that is, ‘invent (story)’. A third option is that there were other forces involved in the complaint form, as I shall now explain.

[462] I note that the complaint form that was lodged with the LPU on 11^th March 2010, contained four pages, three pages of handwritten answers to a set of standard questions and a fourth page that was a typed single page with the handwritten notation “complaint attachment”. In her evidence before this Commission, Maya Wati Prakash confirmed that she only signed the form and as to who actually wrote the answers on the first three pages, she advised, “It’s Rosie I’m sure”, that is, her daughter, Subhasni Singh (called “Rosie”). I also note that Carol Sheenal Singh, Maya’s granddaughter and the daughter of Subhasni Singh, confirmed that she had typed the single page attachment as Counsel for the Applicant Chief Registrar set out in his written submissions summarising her evidence (‘Closing Submissions’, 8^th January 2018, at para [243]) (to which I agree):

‘She [Carol Sheenal Singh] was shown Exhibit 8 and in particular page 31 and she confirmed that the contents were told by her grandmother and she typed it. She stated that she did not add on anything.’

[My emphasis]

[463] The complaint form raises a number of larger issues:

(1) Maya arrived back in Fiji from the USA on 10^th March 2010. The complaint form was lodged with the Legal Practitioners Unit within the Office of the Chief Registrar the next day, 11^th March 2010. How could Subhasni Singh have completed the complaint form (as claimed by Maya) if Subhasni was at that time residing in Australia where she was studying? There was no evidence that Subhasni had previously posted it from Australia to Maya;

(2) Carol Sheenal Singh, Subhasni’s daughter, when asked by Counsel for the Applicant if she could recognise the handwriting on the form (Exhibit 8) replied: “No, I cannot recognize the writing”. Surely a daughter would recognise her own mother’s handwriting?

(3) Carol Sheenal Singh confirmed that she typed, on her laptop, the single page fourth page attached to the complaint form under instructions from Maya speaking Hindustani which Carol then translated including looking on the internet for the appropriate English equivalent of legal terms and then “saved it in a USB and probably, I gave it to my Uncle”, to print it. When asked her uncle’s full name she advised: “R-A-K-N-E-S-H Prasad”. Carol was at that time 11 years of age.

[464] Although her evidence was not directly relevant to the four counts, I must say in passing, however, that I found the evidence of Carol Sheenal Singh, somewhat argumentative, if not incredulous, in parts. Remembering that Maya’s evidence was that she did not know how to read (and hence why Prem Narayan had to read out to Maya the judgment of Balapatabendi J in Prakash v Devi), to then have her granddaughter Carol give evidence that in 2010, when she was just 11 years of age in primary school, she simply took down on a piece of paper what Maya had told her in Hindustani and then, for the more difficult words, she looked up equivalent words in English on the internet, allegedly completing it all in 20 minutes, beggars belief. A precocious child is how she might have wished to portray herself to the Commission, believable, however, is another matter entirely, as the following excerpts from her cross-examination by Counsel for the Respondent illustrate:

“Mr. Sharma: Now, Ms. Singh, you are a intelligent lady at Uni, at 11 years old, what did you understand by the word, ‘Negligence’?

Ms. Singh: Uh...

Mr. Sharma: First word on that document. Whose word was it?

Ms. Singh: I will tell you that, my grandmother, you know her age, right? She doesn’t know all these hard-English words and even now, whenever we type any document, I just go on net and type the synonyms for those words. So, she did tell me the words in Hindi, I went on internet and I clicked those words that I understand at Class 7 at that age and I found the synonyms of those words and I typed it here.”

...

Commissioner: Sorry, so, you are saying she says in Hindustani some word about that’s like ‘negligence’ then you go and find it?

Ms. Singh: She didn’t really say ‘negligence’, but there can be another word in Hindi for ‘negligence’.

Commissioner: There are about 5 or 6 people in the room, who could tell me that. I don’t know, I mean I don’t speak Hindi, so ...

Ms. Singh: Yes. Yes, she told me in Hindi.