Hashim Yeop Sani CJM:

[1] Before the learned Judge of the High Court was an appeal under s 103 of the Legal Profession Act 1976 (LPA). The appellant was the complainant who had made a complaint under s 95 of the LPA against the solicitor (the respondent here) over an alleged impropriety while acting as solicitor for her in a sale and purchase agreement. The Bar Council however decided that a formal enquiry into her complaint was not necessary. The appellant then filed the originating summons pursuant to s 103(2) of the LPA.

[2]Section 103 of the LPA reads as follows:

103 Appeal to High Court

(1) A person who has made a complaint under s 95(1)and who is dissatisfied with the findings of the State Bar Committee or of the Inquiry Committee or with the determination of the Bar Council on the complaint may, within fourteen days of receiving the notification under s 98(c), appeal to a Judge of the High Court against such finding or determination or both.

(2) The appeal shall be by way of originating summons and shall be accompanied by an affidavit of the facts constituting the basis of the complaint and by a copy of the complaint originally made to the Bar Council, together with a copy of the notification mentioned in s 98(c).

(3) A copy of each of the documents referred to in subsection (2) shall be served on the Bar Council.

[3] At the outset of the proceeding before the learned Judge of the High Court the respondent raised a two-pronged preliminary objection - firstly, that the Bar Council whose decision was the subject of the appeal should have been but not cited as a party to the proceeding which omission was said to be fatal to the action; and secondly, since the period for appealing had long expired the appeal was incompetent and ought to be dismissed in limine.

[4] The answer of the appellant to the first point was simply that according to s 103(3) of the LPA the Bar Council need only be served but not cited as a party and the omission was at its worst a non-joinder and not fatal to the action. The appellant's answer to the second point was that the appeal had under the circumstances already been "brought" and the fourteen day limit had therefore no application.

[5] The learned Judge upheld the preliminary objection on the first point. What the learned Judge did here was to read into s 103 of the LPA the requirement that the Bar Council must be served and the Malaysian Bar should be made a respondent. His argument for this proposition is stated in his judgment at pp 12 and 13 of the appeal record:

I would respectfully adopt the views of Mr Gordon and hold that when our O 53 r 2(3) provides that the notice of summons must be served on all persons directly affected it means that such persons are required to be made respondents to the proceedings.

I would, at this point, interpolate to mention by way of explanation, that whilst the Bar Council is by definition the Central Council of the Malaysian Bar, established under s 47 of the Act, it is a purely executive body charged with the responsibility of the proper management of the affairs of the Malaysian Bar and for the proper performance of its functions and not therefore a legal entity. Accordingly, it is not the Bar Council but the Malaysian Bar which must be made a respondent to the present appeal.

[6] The learned Judge was clearly persuaded by the view of Mr RJF Gordon in his book on (Judicial Review: Law and Procedure), p 92 when discussing O 53 of the Rules of the Supreme Court. It is to be noted however that the English O 53 carries provisions for judicial review and is a liberalised version of O 53 of our Rules of the High 1980. Mr Gordon, when discussing O 53, was of the view that all persons "directly affected" are required to be made respondents in the proceeding.

[7] There is no denying that the learned Judge made an indepth study of the issue raised. One of the things which however cannot escape our attention in this regard is the fundamental principle affecting the rig