DORBU V NEW ZEALAND LAW SOCIETY HC AK CIV-2011-404-000159

DORBU V NEW ZEALAND LAW SOCIETY HC AK CIV-2011-404-000159 18 February 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-000159IN THE MATTER OF THE LAW PRACTITIONERS ACT 1982AND THE LAWYERS ANDCONVEYANCERS ACT 2006BETWEEN JOHN EVANS DORBUAppellantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 17 February 2011Appearances: J E Dorbu in PersonH Keyte QC and M Treleaven for RespondentJudgment: 18 February 2011 10:30:00JUDGMENT OF VENNING JON APPLICATION FOR LEAVE TO APPEALThis judgment was delivered by me on 18 February 2011 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: J E Dorbu, AucklandNew Zealand Law Society, Auckland (M Treleaven)Copy to: H Keyte QC, AucklandIntroduction[1] The applicant Mr Dorbu seeks special leave to appeal against a decision of the Lawyers and Conveyancers Disciplinary Tribunal dated 8 June 2010. If leave is granted the applicant also seeks an order consolidating the appeal with existing judicial review proceedings.[2] Mr Dorbu practised law in Auckland. In 2009 he was the subject of a disciplinary hearing. He faced 12 charges, 10 under the provisions of the Law Practitioners Act 1982 and two under the Lawyers and Conveyancers Act 2006. In a decision delivered on 8 June 2010 the Tribunal found 11 of the charges established.[3] Mr Dorbu has sought to judicially review the decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. That proceeding has been allocated a fixture and is scheduled to be heard on 16 March 2011.[4] In these separate proceedings Mr Dorbu seeks to appeal the decision of the Tribunal. He seeks special leave to do so as the appeal is out of time.[5] The application for special leave to appeal is opposed by the New Zealand Law Society. The Society submits there is no jurisdiction for the application. In the alternative, the Society submits that even if there is jurisdiction for the application, inthe exercise of the Court's discretion leave should not be granted in this case.Jurisdiction[6] The right to appeal from decisions of the Tribunal is provided for under s 118 of the Law Practitioners Act 1982 and s 253 of the Lawyers and Conveyancers Act. Section 118(2) of the former Act provides:Every such appeal shall be by way of rehearing, and shall be made within such time and in such form, and shall be heard by at least 3 Judges in such manner, as may be prescribed by rules of Court.[7] Section 253(3) of the current Act provides:(3) Every appeal under subsection (1)—(a) must be by way of rehearing; and(b) must be made within such time and in such form as may be prescribed by rules of Court; and(c) must be heard in such manner as may be prescribed by rules of Court.[8] The effect of both sections is that any appeal from a decision of the Disciplinary Tribunal must be made within such time as may be prescribed by the High Court Rules.[9] Mr Dorbu initially submitted that r 20.3 applied. However, that rule applies to situations where the relevant statute provides leave must be obtained to appeal. Neither s 118 of the former Act nor s 253 of the current Act require leave to be obtained to appeal. They provide for an appeal as of right.[10] The applicable rule is r 20.4. As relevant it provides:(2) An appeal must be brought—...(b) ... within 20 working days after the decision appealed against is given.(3) By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—(a) permits the extension; or(b) does not limit the time prescribed for bringing the appeal.[11] The start point is that by r 20.4(2)(b) the appeal was required to have been brought within 20 working days after the decision appealed against. The time for bringing the appeal expired on 6 July 2010. The appeal and application for special leave were not filed and served until 19 January 2011. They are substantially out of time.[12] However, r 20.4(3) provides that by special leave the Court may extend the time for appealing in either of two circumstances. First if the enactment that confers the right of appeal permits the extension and second, if the enactment does not limit the time prescribed for bringing the appeal.[13] In the present case the relevant statutory provisions do not permit an extension but rather require the appeal to have been brought within the time prescribed by the Rules which, by application of r 20.4(2)(b) is within 20 working days. The above sections can be contrasted with, for example, s 149 of the former Act which permitted an extension of time to apply for review:149 Review by High Court(1) If either party is dissatisfied with any decision of a Registrar under section 148 of this Act, he may within 14 days after the date of the decision [,or within such further time as a Judge of the High Court may allow] apply to the High Court to review the decision.[14] The real issue in the present case is whether the enactments conferring the right of appeal limit the time prescribed for bringing the appeal. Neither of the sections refer to a period of days within which the appeal must be brought. However, they do in effect limit the time prescribed for bringing the appeal by directing that the appeal "shall" (in the case of the Law Practitioners Act) and "must"(in the case of the Lawyers and Conveyancers Act) be made within such time as may be prescribed by rules of Court. There is a mandatory requirement in each statutory provision that the appeal must be brought within such time as may be prescribed by the rules of Court.[15] Rule 20.4 is itself mandatory in that r 20.4(2)(b), provides, in these circumstances, that the appeal must be brought within 20 working days after the decision appealed against is given. On that basis then s 20.4(3) does not apply and there is no jurisdiction for the Court to extend the time prescribed for appealing.[16] Mr Dorbu submitted that the Court should not imply a limitation into a statutory provision where that has not been expressed in the provision. It is not, however, a case of implying a limitation. It is a matter of construction of thestatutory provisions. They incorporate a time limit not by implication but by direct application.[17] Next, Mr Dorbu submitted the respondent's interpretation would meanr 20.3(6) would have no effect. As noted r 20.3 does not apply, but r 20.4(4)(b) is to similar effect. Rule 20.4.(4)(b) is procedural in effect. It makes it clear that if there is jurisdiction to bring the application for special leave out of time it may be made after the time for appealing, but it cannot provide jurisdiction for an application where that has been excluded by r 20.4(3).[18] Mr Dorbu then submitted that if Parliament intend to prohibit an extension of time for appealing in these circumstances, it would have made it clear by plain words in the statute. For the reasons given above I consider the statutory wording to be clear. Further, there is good reason in the case of appeals from disciplinary hearings against lawyers for the time limit for appeals to be prescribed. The public interest in the actions of legal professionals is an important factor.[19] In summary, neither the Law Practitioners Act nor the Lawyers and Conveyancers Act permit the extension: Inglis Enterprises Ltd v Race Relations Conciliator.1 Both limit the time prescribed for bringing the appeal by their requirement the appeal be brought within the time prescribed by the Rules, namely 20 working days. If the relevant enactments had provided the appeal must be made within 20 working days instead of within such time as may be prescribed by Rules then it could not be argued the enactments did not limit the time prescribed for appealing. As that is the practical effect of the enactments (given the wording of r 20.4(2)(b)), the same reasoning must apply.[20] I conclude that there is no jurisdiction for the order sought.[21] However, in the event I am wrong on that strict jurisdictional point, I propose to consider merits of the application.1 Inglis Enterprises Ltd v Race Relations Conciliator (1994) 7 PRNZ 404.[22] The application is significantly out of time. It is seriously late. Mr Dorbu said in his written submissions that he did not receive the decision until 17 June 2010. Even on that basis the time to appeal expired on 15 July 2010. Although Mr Dorbu has filed an affidavit to support the application for leave, he has not sought to lead any evidence to explain his delay in applying for special leave. He has submitted that it occurred to him, when preparing for the judicial review hearing, that it may assist the Court and the parties if the Court could have the broader range of remedies available to it that it would have on appeal as opposed to the judicial review. But as Mr Keyte pointed out, this point must have, or at least should have, occurred to Mr Dorbu by 27 September 2010 when he filed a substantial amended statement of claim in the judicial review proceedings. The applicant has not satisfactorily explained the substantial delay in this case.[23] Next, a Court of three is required to hear appeals from decisions of the Disciplinary Tribunal under the former Act. If leave was granted and the application was consolidated with the application for judicial review the judicial review could not proceed on the allocated date in March.[24] Finally, following the decision the applicant has been struck-off the roll of practitioners. He was also adjudicated bankrupt on 4 June 2010. It is in the interests of the public that matters relating to the discipline of the legal profession are dealt with expeditiously rather than be drawn out.[25] For the above reasons, even if jurisdiction existed I would not grant leave in this case.Result[26] The application for special leave to appeal is dismissed. There will be an order for costs to the New Zealand Law Society on a 2B basis.__________________________ Venning J