M V HAWKE'S BAY STANDARDS COMMITTEE CA850/2013 [2014] NZCA 40

M V HAWKE'S BAY STANDARDS COMMITTEE CA850/2013 [2014] NZCA 40 [28 February 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA850/2013[2014] NZCA 40BETWEEN MApplicantAND HAWKE'S BAY STANDARDSCOMMITTEERespondentCounsel: Applicant in personP N Collins for RespondentJudgment:(On the papers)28 February 2013 at 3.00 pmJUDGMENT OF STEVENS J(Review of Registrar's Decision)The application for review of the decision of the Registrar not to accept for filing an application for a stay is dismissed.____________________________________________________________________REASONS[1] This is an application for review of a decision of the Registrar to refuse to accept for filing an application for a stay by the applicant, M.[2] Although it has been made informally, in a letter to the Registrar, the application is treated as an application under r 7(2) of the Court of Appeal (Civil) Rules 2005 (the Rules). For the reasons set out below the application is dismissed.Background[3] M is a legal practitioner and is scheduled to appear before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal on 11 March 2014. The upcoming Tribunal hearing relates to an allegation that M acted for a client on a transaction when he knew he had a conflict of interest, without first obtaining her informed consent and without disclosing to her all the information available to him relating to her affairs.1[4] The charge against him was filed in August 2011, and there has been some delay in bringing the matter to a hearing. The cause of the delay is not material to the present application.[5] The procedural background to the current appeal is as follows. On 30 August 2013 Peters J delivered a judgment2 dismissing M's appeal against a decision of theTribunal in which it dismissed four interlocutory applications.3 Those applications were for the dismissal of the charge of misconduct, for a stay of the disciplinary proceedings, for further discovery, and for name suppression. M applied to the High Court for leave to appeal to this Court against the High Court judgment. On 29 November 2013, Peters J refused leave.4[6] On 16 December 2013 M filed an application in this Court for leave to appeal the High Court judgment.5 That application has not yet been considered by this Court.The stay application[7] On 22 January 2014, M filed an "Interlocutory Application for Stay ofProceedings in Lawyers and Conveyancers Disciplinary Tribunal". This wasaccompanied by an affidavit in support, and an application for a fee waiver. The1 Hawke's Bay Standards Committee v M [2013] NZLCDT 1 at [3] [Tribunal decision]. Theapplicant faces a charge of misconduct laid by the Hawke's Bay Standards Committee.2 M v Hawke's Bay Standards Committee [2013] NZHC 2219 [High Court judgment].3 Tribunal decision.4 M v Hawke's Bay Standards Committee [2013] NZHC 3176 [Leave judgment].5 Pursuant to s 254 of the Lawyers and Conveyancers Act 2006, which allows appeals by leave to the Court of Appeal on questions of law.Deputy Registrar returned these documents to M on 28 January 2014 citing the current practice of this Court, which requires stay applications to be filed in the High Court (or the Tribunal).6[8] On 13 February 2014 M re-filed the returned documents, and enclosed a letter explaining why he believed the Deputy Registrar should re-consider the stay application. M seeks to have the current proceedings in the Tribunal stayed pending the outcome of his application for leave to appeal to this Court, and any subsequent substantive hearing. The affidavit in support explains that during a teleconference on 20 December 2013, M asked the Chairperson of the Tribunal for a stay until the outcome of the proceedings in this Court was known. He said the Chairperson informed him that the better approach was to apply to this Court for a stay in the Tribunal.[9] M's reasons for applying for a stay are that there should be no attempt to bring the substantive matter for hearing until the application for leave to appeal has been determined, and any further substantive appeal hearing has taken place. M further contends that all the proceedings between him and the respondent shouldbe heard together, and that the current allegations are being brought to hearing "as adiscrete and convenient means of bringing me before the Tribunal irrespective of themerits of the case."Analysis[10] Rule 12 of the Rules gives concurrent jurisdiction to this Court and the court being appealed from to order a stay of proceedings. The Court appealed from in this case is the High Court.[11] The Deputy Registrar's letter to M correctly explained that, where there is concurrent jurisdiction it is the practice of this Court not to accept an application for stay for filing unless it is first made in the lower court or unless there are special circumstances.7 This Court is under considerable work pressure and stay applications should not tie up three judges (at least in the first instance). Further,6 Salem Ltd v Top End Homes Ltd (2005) 18 PRNZ 122 (CA) at [15].7 Salem Ltd v Top End Homes Ltd at [15].applications in this Court will generally be heard in Wellington (which may add expense), while any application to the High Court can be made to, and heard at, most High Court registries. The other advantage of the application for stay being made in the High Court is that Peters J is already acquainted with the file, and so would be able to determine the application promptly without having to spend considerable time familiarising herself with the file.[12] M says he does not wish to make his application to the High Court as he questions the ability of the Judge to deal with the matter independently. He says thathe does "not think, in the circumstances, there will be any empathy in an applicationto the High Court." This submission cannot succeed. In any application under r 12, the court being appealed from will have presumably made a decision adverse to the party applying for a stay. Despite this, the Rules (and the case law) envisage the stay application being made to that court.[13] There are some cases where this Court has considered a stay application, absent special circumstances, where that application should have been filed in a lower court.8 None of these have any relevance in the present circumstances.[14] It is true that there is no specific provision in the Lawyers and ConveyancersAct 2006 (or in the related Regulations)9 empowering the Tribunal to order stays.However, without deciding the point the Tribunal is likely to have power to stayproceedings as part of its power to determine its own procedure.10 There are caseswhere the Tribunal has considered applications for stay.11 M therefore also has theoption of applying to the Tribunal for a stay.8 Rabson v Chapman [2012] NZCA 621, [2013] NZFLR 233 (CA) at [5]: "... given the time of year and the circumstances, the Court dealt with the application."; Bioletti v Commissioner of Inland Revenue [2013] NZCA 465 at [2]: "... the matter is now before us and we have heard argument on it so we will deal with it."; Siemer v Solicitor-General [2008] NZCA 369 at [9]:"The application should have been directed to the High Court The applicant has not done this. However, as ... the Court has now convened and considered the merits of his application, we propose to deal with the merits of his application."; Huang v Minister of Immigration CA236/06, 18 December 2006 at [3]: " ... the merits have now been the subject of arguments in this Court."9 Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008.10 Lawyer and Conveyancers Act 2006, s 252.11 An example is New Zealand Law Society (Nelson Section 356 Committee) v Gilbert [2012]NZLCDT 24 at [57], where an application for stay on the grounds that "it would now amount to an abuse of process to begin a rehearing of the charges" was considered.Result[15] For the reasons set out above, the application to review the Registrar'sdecision is dismissed.Solicitors:New Zealand Law Society, Napier for Respondent