Federal Court finds Sungkai rep guilty of misconduct as lawyer

February 14, 2023

Federal Court finds Sungkai rep guilty of misconduct as lawyer

PUTRAJAYA: A former lawyer, who is now a state executive councillor in the Perak government, has been found guilty of professional misconduct when representing a man in the Industrial Court 13 years ago.

A three-member Federal Court bench chaired by Justice Nallini Pathmanathan affirmed the RM10,000 fine imposed on A Sivanesan, now the assemblyman for Sungkai. The fine, however, does not disqualify Sivanesan from continuing to hold his state assembly seat as it was not imposed pursuant to a criminal offence.

Nallini said the Court of Appeal (CoA) should have been slow to intervene in findings of facts made by a disciplinary committee of the advocates & solicitors’ disciplinary board.

“In this case, the Industrial Court’s notes of proceedings and award confirmed the basis for the disciplinary committee’s finding of facts.

“There is no basis for the CoA to reverse a ruling with regard to events on April 6, 2010 solely on the evidence of another witness,” she said when allowing appeals by the Bar Council and K Pathmanathan.

Nallini, who sat with Justices Vernon Ong and Harmindar Singh Dhaliwal, said the CoA had adopted a superficial approach when determining that Sivanesan was not acting for Pathmanathan simply because of the non-lodgment of Forms A and B in the Industrial Court.

DISYORKAN UNTUK ANDA :

“The fact of not having locus standi by reason of not filing the forms is a non-issue,” she said.

She said the CoA failed to appreciate that Sivanesan was acting for Pathmanathan and even gave an undertaking to file forms necessary for his appointment despite not having instructions to do so.

“Therefore, the disciplinary committee was justified in coming to its findings,” she said.

Nallini said Sivanesan ought to have communicated to Pathmanathan the new hearing dates fixed by the Industrial Court, but failed to do so.

“Regardless of whether he could or could not get the forms signed, it is incumbent on him to inform Pathmanathan of the hearing dates because he had taken it upon himself to act as his counsel,” she said when restoring the High Court ruling.

The bench also ruled that it was proper for the Bar Council to be a party to the appeal, given its disciplinary and advisory role over lawyers.

In February 2021, the High Court affirmed the findings of the disciplinary board which had found Sivanesan guilty of professional misconduct.

DISYORKAN UNTUK ANDA :

The board made the final decision after considering the recommendation by a disciplinary committee.

The disciplinary proceedings were brought by Pathmanathan who had alleged various breaches by Sivanesan of the Legal Profession Act 1976 and its etiquette rules.

In its report issued in August 2018, the disciplinary committee identified several misconducts committed by Sivanesan.

These included deceiving the Industrial Court into believing that he was acting for Pathmanathan, failing to comply with an undertaking given to the court to file the requisite forms confirming his appointment, and failing to appear and be ready for trial.

Pathmanathan filed the complaint against Sivanesan on June 13, 2016, after the Industrial Court struck off his claim for unfair dismissal due to his absence in court.

He claimed that Sivanesan had failed to inform him of the hearing date, but acknowledged that he did not execute Forms A and B to appoint the lawyer to act for him.

Sivanesan was represented by counsel R Kengadharan, L Nagarajan, S Muhendran and S Lavenyia.

Heng Yee Keat and Saresh Mahendaren acted for the Bar.

Pathmanathan, who appeared in person, was awarded RM20,000 in costs