Re Nalpon, Zero Geraldo Mario

• Jurisdiction: Singapore
• Judge: Judith Prakash JA
• Judgment Date: 24 October 2018
• Neutral Citation: [2018] SGCA 71
• Published date: 31 October 2018
• Docket Number: Civil Appeal No 197 of 2017
• Year: 2018
• Hearing Date: 10 September 2018
• Subject Matter: Application for leave,Administrative Law,Judicial review
• Plaintiff Counsel: Appellant in person.
• Court: Court of Appeal (Singapore)
• Citation: [2018] SGCA 71
• Date: 24 October 2018

Judith Prakash JA (delivering the judgment of the court): Introduction

The appellant is a practising lawyer. In May 2017, he lodged a complaint with the Law Society of Singapore against three other lawyers. In accordance with the Law Society’s usual procedure, the appellant’s complaint was referred to a Review Committee for examination. Shortly thereafter, the Review Committee dismissed the complaint. The appellant was dissatisfied with this decision and, accordingly, in June 2017, he applied to the High Court by way of originating summons for leave to commence judicial review proceedings in respect of the Review Committee’s decision. That application was dismissed in November 2017 and the appellant has appealed to this court to overturn the dismissal and allow the application.

Background facts – the Suit

The underlying facts leading to the complaint and, subsequently, to the court proceedings, centre on a lawsuit in which the appellant was briefed to represent the defending party.

In 2012, a construction and renovation company called Innovez ID Pte Ltd (“Innovez”), commenced an action (“the Suit”) in the High Court against a Mr Wong Yoke Shin (“Mr Wong”), who had previously acted as its project manager. Innovez was represented by three lawyers from the same firm (“the Lawyers”) and the appellant acted for Mr Wong in his defence. The claim against Mr Wong involved an alleged breach of warranty regarding the costs of a construction project at Jalan Pemimpin (“the Project”). According to Innovez, Mr Wong had given it a warranty that the costs of the Project would be about $900,000. Acting on that warranty, Innovez had agreed with the developer to undertake the Project at a price of $1,507,000. Innovez contended that it had subsequently suffered a loss because Mr Wong allowed the actual costs of the Project to escalate to over $1.9m. Mr Wong denied that he had given any warranty as alleged and maintained that, in any case, the Project was profit-generating.

At an interlocutory hearing in the course of the Suit, the appellant in his capacity as Mr Wong’s counsel, argued that certain documents that had been disclosed by Innovez supported Mr Wong’s position that the Project had not caused Innovez to suffer any loss. Innovez then applied for an account to be taken in respect of the Project so as to ascertain the costs incurred in the Project. When the account was taken before an assistant registrar (“the AR”), Innovez took the position that the Project was its only on-going project at the material time (viz, December 2010 to December 2012) and therefore that all expenses paid during that time had to be allocated to the Project. Mr Wong, however, maintained vigorously that at the material time Innovez had other on-going projects to which expenses had to be allocated. After considering the evidence adduced before her, the AR decided that she was not in a position to make a finding in relation to whether Innovez had had more than one on-going project at the material time. She noted that this was an issue that could be canvassed and determined at the trial of the Suit. Mr Wong appealed asserting that the evidence supported a finding that there had been more than one project but his appeal was dismissed by a judge.

Thereafter, the Suit was transferred to the State Courts.

The Complaints

On 2 May 2017, the appellant lodged a formal complaint against the Lawyers with the Law Society (the “Complaint Letter”). The basis for this action was the appellant’s belief that during the account taking process the director of Innovez, who gave evidence on its behalf, had lied to the court that Innovez had only one on-going project during the period from December 2010 to December 2012 when the evidence clearly showed otherwise. The appellant asserted that the Lawyers had misled the court by advancing the falsehood of the director in cross-examination and in their submissions. The Compliant Letter itemised six specific complaints which were that the Lawyers had: Attempted to mislead the court and a legal practitioner that Innovez had only one project during the period December 2010 to December 2012 when the evidence clearly showed otherwise; Contrived the fact that Innovez had only one project during the same period when the same evidence showed otherwise; Suppressed evidence, namely, payment vouchers, invoices and bank account deposits; Assisted Innovez in giving false information to the court; Continued to act for Innovez who had given false information to the court; and Perpetuated the falsehood of Innovez that it had only one project during the material period when this falsehood had been exposed numerous times by Mr Wong.

A Review Committee was constituted by the Council of the Law Society (“the Council”) on 18 May 2017 to examine the appellant’s complaints. It should be noted that together with the Complaint Letter, the appellant furnished the Law Society with a bundle of documents containing more than 400 pages which he stated contained the evidence in support of the complaints. On 25 May 2017, the Review Committee submitted its Report to the Council. On 30 May 2017 the Council informed the appellant that the Review Committee had determined that his complaints against the Lawyers should be dismissed as they were lacking in substance. In its Report the Review Committee stated that “the information and documents provided by the [appellant] [did] not provide any support for any of the complaints”. The Review Committee therefore directed the Council to dismiss the complaints.

The judicial review proceedings

On 16 June 2017, the appellant filed Originating Summons 675 of 2017 (“OS 675”) in the High Court, on an ex parte basis, seeking leave to commence judicial review. He sought, first, a quashing order in respect of the decision of the Review Committee on the basis that it was irrational and, second, an order that his complaint be re-heard by a fresh review committee. The appellant alleged that the Review Committee’s decision was “so outrageous in its defiance of logic or of the accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”. The supporting affidavit repeated the complaints the appellant had made to the Law Society and highlighted the following: The Review Committee rendered its decision only seven days from the date of its inception although he had submitted around 500 pages of supporting evidence, and thereafter only made a “simplistic pronouncement” that his complaint was unsupported by the information and documents provided; and The Review Committee did not exercise its powers under s 85(7) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“the LPA”) to call him or the Lawyers to answer any inquiry or furnish any record.

There was a slight complication in that five days after OS 675 was filed the Law Society filed a Notice of Appointment of Solicitor listing itself as the respondent to the originating summons. The appellant objected to this as his application had been made on an ex parte basis. The appellant asked the AR to direct that the Law Society’s notice be removed and when the AR declined to do so he filed a Registrar’s Appeal. Both this appeal and the leave application came on for hearing before the judge in chambers (“the Judge”) at the same time. The Judge made no order on the Registrar’s Appeal and allowed the Law Society to attend the hearing on a watching brief. As nothing further arises from this decision, we need say no more about it except that the Law Society also attended the appeal before us on a watching brief.

OS 675 was heard on 18 September 2017. After hearing the parties, the Judge dismissed OS 675. He denied the appellant leave to commence judicial review proceedings because he did not consider that the appellant had made out a prima facie case of reasonable suspicion in favour of granting the remedies sought. The full grounds of the Judge’s decision can be found at Re Nalpon, Zero Geraldo Mario [2017] SGHC 301 (“the GD”).

In the GD, the Judge identified the only issue before him as being whether the appellant had established an arguable or prima facie case for the granting of leave for judicial review: GD at [20] and [21]. Given that the appellant had based his challenge on the ground of irrationality only, the issue became whether there was a prima facie case of reasonable suspicion that the decision of the Review Committee directing a dismissal of the complaint was Wednesbury unreasonable: GD at [23]. The Judge answered this question in the negative for the reasons which are summarised below.

The Judge held that the high threshold of Wednesbury unreasonableness had not been crossed because the sensible inference to be drawn from the Review Committee’s letter was that it had properly considered the complaint and found no basis for the appellant’s grievance: GD at [23]. The Judge rejected the appellant’s contention that the Review Committee could not have assessed all 500 pages of evidence in seven days. The Judge found, in the first place, that “it was not the role of the [Review Committee] to carry out a detailed examination of the underlying facts”. The Judge also found that there were reasonable grounds to support the Review Committee’s decision; the Judge noted that no finding had, as at the date of the complaint, been made on the key factual contention that Innovez had only one project at the material time. This contention was the foundation for three out of six of the appellant’s complaints. Without a conclusive finding by the court on this, there was simply no basis to conclude that the Lawyers had attempted to mislead the court during the taking of accounts hearing: GD at [25]. The Judge declined to conduct an in-depth examination of the primary documents relating to the Suit and noted that this was something the appellant could pursue for...