CBB v Law Society of Singapore

• Jurisdiction: Singapore
• Judge: Aedit Abdullah J
• Judgment Date: 03 January 2020
• Neutral Citation: [2019] SGHC 293
• Plaintiff Counsel: Sarjit Singh Gill SC and Jamal Siddique Peer (Shook Lin & Bok LLP)
• Docket Number: Originating Summons No 1382 of 2018
• Date: 03 January 2020
• Hearing Date: 19 August 2019,15 July 2019
• Subject Matter: Remedies,Administrative Law,Judicial review
• Published date: 16 February 2021
• Defendant Counsel: Tan Wee Kheng Kenneth Michael SC (Kenneth Tan Partnership)
• Court: High Court (Singapore)
• Citation: [2019] SGHC 293
• Year: 2020

Aedit Abdullah J: Introduction

The applicant seeks judicial review of the decision of the respondent not to refer for investigation and scrutiny a series of complaints made by him in respect of the conduct of a lawyer, who was involved in various transactions involving the applicant’s mother.

Background

The applicant’s mother, whose mental capacity was put in issue in proceedings under the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”), purportedly established a trust pursuant to the advice of a lawyer, whom I will refer to as “Mr L”. The facts were the subject matter of litigation, culminating in the Court of Appeal’s decision in Re BKR [2015] 4 SLR 81 (“BKR”). Mr L is the same person that is referred to by the same abbreviation in BKR at [21].

In summary, the Court of Appeal found that the applicant’s mother suffered from a mental impairment. It concluded that she did not have the capacity to make two sets of decisions: (a) the establishment of a trust sometime around 26 October 2010; and (b) the requested transfer of her assets from two banks to a third bank with which the trust was created (BKR at [17]). Both of these sets of decisions were found to have been tainted by the undue influence of some of the applicant’s mother’s relatives. Mr L had advised the applicant’s mother on the establishment of the trust (BKR at [22]–[23]), and had also spoken on behalf of the applicant’s mother in meetings that took place in November 2010 and December 2010 with the banks from which her assets were to be transferred (BKR at [26]–[36]). Mr L also did work for the applicant’s mother in relation to the MCA proceedings in BKR, which were commenced on 18 February 2011, up until 21 November 2014.¹ Following the Court of Appeal’s decision, professional deputies were appointed to act for the applicant’s mother on 18 December 2015.

On 17 April 2018, the applicant here filed a complaint with the respondent in respect of Mr L’s conduct relating to the establishment of the trust, the transfer of assets and the conduct of the MCA proceedings (see [3] above).² To forestall the possibility that the subject matter of the complaint would be time-barred under s 85(4A) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”), reasons were set out in the complaint for the Council of the respondent should it be required to apply for leave under s 85(4C) of the LPA.

As it were, the Council of the Law Society (“the Council”) declined to apply for leave of court under s 85(4C) of the LPA to refer to the Chairman of the Inquiry Panel (“the Chairman”) the portions of the complaint relating to matters that arose more than six years prior to the date of the complaint.³ Only matters in the six year time period (ie, between 17 April 2012 and 17 April 2018) were referred to the Chairman, who then constituted a Review Committee (“the RC”) under s 85(5) of the LPA to review those portions of the complaint.⁴

On 10 July 2018, the RC, pursuant to s 85(8) of the LPA, directed the Council to dismiss the portions of the complaint relating to conduct by Mr L occurring before 17 April 2012, while conduct after that date was referred back to the Chairman.⁵ An Inquiry Committee was then constituted to inquire into the complaint.

The RC’s decision was communicated to the complainant via letter on 12 July 2018 (“the 12 July Letter”), with the RC’s report attached.⁶ Paragraphs 9, 16 and 17 of the report are important and are set out here in full for convenience: 9. The [RC] notes that all matters relating to the Trust took place prior to 17 April 2012 and accordingly fall outside the period contemplated by section 85(4A) of the [LPA]. Accordingly, these particular complaints ought to be dismissed on this basis.

…

16. … [T]he [RC] is unanimously of the view that the Complainant’s complaints on matters relating to the Trust lack substance because of section 85(4A) of the [LPA] as the said complaints relate entirely to conduct that took place more than 6 years prior to the date of the Complaint. The [RC] humbly directs the Council to dismiss these complaints. 17. … the [RC] is unanimously of the view that in relation to the complaints about [Mr L’s] conduct in respect of [the MCA proceedings] … such complaints should be referred back to the [Chairman] but only in relation to conduct that took place after 17 April 2012. Paragraph 6 of the 12 July Letter is also relevant, stating:

As required under section 85(9) of [the LPA], the Council must give effect to the direction of the RC to dismiss a certain aspect of your complaint against [Mr L] as well as furnish you, the Complainant with the reasons in writing …

Follow-up correspondence ensued, with the applicant attempting to persuade the Council to apply for leave of court under s 85(4C) of the LPA.⁷

In a letter dated 16 August 2018 (but which was apparently only received by the applicant on 4 October 2018) (“the 16 August Letter”), the Council informed the applicant of its reasons for declining to apply for leave under s 85(4D) of the LPA:⁸

…We note that the establishment of the Trust took place around 26 October 2010. Any complaints relating to the establishment of the Trust would be brought before 20 October 2016. The Court of Appeal delivered its judgment on the issue of [the applicant’s mother’s] mental disability on 19 May 2015. There was thus more than a year left after the issue of the Court of Appeal judgment (if the same is relevant to the intended complaint) for persons interested to take steps to make the complaint. However, no complaints were brought before the expiry of the time limitation. We also note that you are making this complaint in your own personal capacity. There is thus no reason for Council to apply to Court for leave pursuant to section 85(4D) of [the LPA].

This prompted the applicant to commence the present judicial review proceedings on 13 November 2018.

In January 2019, it was determined by the Inquiry Committee that no formal investigation was necessary and it recommended that that portion of the complaint referred to it should be dismissed.⁹ Judicial review of this decision is sought by the applicant in Originating Summons No 470 of 2019, but those proceedings were put in abeyance pending the determination of the present application.

At the hearing on 15 July 2019, the application was considered on a “rolled-up” basis, but the respondent was given an opportunity for further submissions, with a final reply from the applicant.

Summary of the applicant’s case

The applicant argues that its application in respect of a quashing order was filed in time; it was filed within three months of the impugned decision of the Council, which was made on 16 August 2018, as required by O 53 r 1(6) of the Rules of Court (Cap 322, R 5, 2014 Rev Ed) (“ROC”).¹⁰ Alternatively, an extension of time ought to be granted by the court.¹¹

The applicant contends that leave should be granted for the application. The applicant has exhausted all alternative remedies. The Council’s decision not to refer the portions of the applicant’s complaint concerning Mr L’s actions occurring more than six years before the date of the complaint is susceptible to judicial review. The applicant also has standing to bring judicial review proceedings. Finally, there is a prima facie case of reasonable suspicion in favour of granting the remedies sought.

As for the substantive application, the applicant identifies two decisions which he argues should be the subject of a quashing order and/or a mandatory order: First, if the Council is required to seek leave of court under s 85(4A) of the LPA to refer the complaint to the Chairman, the Council’s decision not to apply to court for such leave.¹² Second, if the Council is not required to seek leave of court under s 85(4A) of the LPA to refer the complaint to the Chairman, the decision of the RC to direct the Council to dismiss part of the applicant’s complaint in its report dated 10 July 2018.¹³

The relevant decision for the purposes of the present proceedings would thus turn on whether s 85(4A) of the LPA imposed a requirement on the Council to apply for leave to refer the complaint to the Chairman. The applicant claims that leave was not required. Section 85(4A) of the LPA should be read with s 24 of the Limitation Act (Cap 163, 1996 Rev Ed) (“LA”). Alternatively, the actions of Mr L can be construed as a single continuous course of conduct. Finally, the exception for fraud in s 85(4A)(b) of the LPA applies.

The grounds of judicial review relied upon by the applicant varied depending on whether the decision of the Council or the RC was the relevant one. The Council’s decision was challenged on the grounds of illegality, irrationality and procedural impropriety.¹⁴ The RC’s decision appears to be challenged on the grounds of illegality and irrationality.¹⁵

The applicant’s arguments are discussed in greater detail below at [42] et seq.

Summary of the respondent’s case

The respondent argues that the application for judicial review should be denied. The application was made outside the three-month period prescribed under O 53 r 1(6) of the ROC as the Council’s decision was made on 23 May 2018. The applicant should account for his delay in seeking judicial review.¹⁶

Leave of court was required under s 85(4C) of the LPA.¹⁷ The Council chose not to seek leave under s 85(4C) of the LPA. Conduct by Mr L in relation to the establishment of the trust, as well as work done in relation of the MCA proceedings prior to 17 April 2012 were not referred to the Chairman.

The applicant’s arguments that s 85(4A) of the LPA should read with s 24 of the LA are not sound. There is no incorporation or reference to s 24 of the LA in s 85 of the LPA. In any event, s 24 of the LA only allows the person under disability to bring the matter up, and does not benefit the applicant.¹⁸ The term...