KOYAMA v NEW ZEALAND LAW SOCIETY HC WN CIV 2010-485-1493

KOYAMA v NEW ZEALAND LAW SOCIETY HC WN CIV 2010-485-1493 [30 October 2012]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2010-485-1493[2012] NZHC 2853UNDER the Human Rights Act 1993 and JudicatureAct 1908IN THE MATTER OF an appeal from the High CourtBETWEEN TATSUHIKO KOYAMAAppellantAND NEW ZEALAND LAW SOCIETYRespondentOn papersJudgment: 30 October 2012JUDGMENT OF THE HON JUSTICE KÓS(Leave to appeal)[1] In March 2006 Mr Koyama was refused a certificate of character by the former Canterbury District Law Society. He later obtained such a certificate from another district law society. He was admitted to the Bar in May 2007. Mr Koyama then lodged a complaint about the Canterbury society's actions with the Human Rights Commissioner and the Privacy Commissioner. Some months later he told the Canterbury society that the complaints had been dropped. Subsequent actions suggested he might perhaps have made a further complaint to the Human Rights Commission. Be all that as it may, in 2009 he commenced proceedings against the respondent, the New Zealand Law Society (in respect of the conduct of the Canterbury society), in the Human Rights Review Tribunal. The Tribunal ruled in July 2010 that it did not have jurisdiction. Mr Koyama appealed to the High Court. Dobson J dismissed the appeal on 17 July 2012. He held the Tribunal was right that it had no jurisdiction (because of the transitional provisions of the Lawyers andConveyancers Act 2006). Dobson J also went on to discuss and dismiss collateral challenges made on the appeal to the procedure adopted by the Tribunal.[2] Mr Koyama seeks leave to appeal to the Court of Appeal. His notice of application for leave to appeal is discursive. It runs to 35 pages. Then in June 2012 he sought to "delay ... the matter". Apparently because he was pursuing a judicial complaint centring upon (although possibly extending beyond) an issue over the non-recording of the hearing before Dobson J. As it was a civil appeal, without evidence, there would have been no reason why it should have been recorded. Recorded it was not.[3] On 7 September 2012 I directed Mr Koyama was to file submissions in support of his leave application by 15 October 2012, and the New Zealand Law Society within a further seven days. The leave application would then be determined on the papers.[4] On 11 and 18 October 2012 Mr Koyama filed what purported to be submissions in support of his application for leave to appeal. But in each case there is just a single page annexing certain documents relating to the judicial complaint process. One includes what purports to be a transcript of a telephone conference in chambers involving Mr Koyama, counsel for the Society and the Judge. This Mr Koyama had recorded covertly and placed on YouTube. Such conduct by Mr Koyama, bearing in mind his status as a barrister and solicitor of the High Court, is disgraceful. Telephone conferences are chambers hearings, to which the public are not admitted. Mr Koyama had no business subverting that protection, which exists for the benefit of litigants, by placing a copy of his recording on the internet. Rule 7.35 of the High Court Rules provides that particulars of a chambers hearing (including its outcome) may be published unless the Court orders otherwise. That does not however permit a covert recording of the occasion to be taken, and then posted on the internet. If Mr Koyama needed a record of the conference, the proper course would have been to have an associate, identified to the Court and other counsel, take a note.Requirements for leave[5] Leave to appeal in the present case is governed by s 124 of the Human Rights Act 1993. The requirements for grant of leave are:(a) the questions posed are one of law;(b) the questions are capable of bona fide and serious argument;(c) the appeal involves some interest, public or private, of sufficient importance to outweigh the delay and cost of a further appeal.[6] The respondent Society opposes the grant of leave.[7] In the absence of submissions as directed from the appellant, I have had the advantage of being able to refer to his lengthy notice of application for leave to appeal to glean some answers to the three issues posed in [5].Is the question posed one of law?[8] I accept the submission made by Mr Collins on behalf of the Society that the notice of application for leave attempts to articulate questions of law, but that the only substantial question of law arising from the decision of the Tribunal, from which an appeal of law might lie to the Court of Appeal, is whether the transitional provisions in the Lawyers and Conveyancers Act 2006, and in particular s 378(1)(c), permit him to pursue grievances about the conduct of the Canterbury society in 2006 against the New Zealand Law Society. In short, the only relevant appealable issuerelates to the Tribunal's decision on jurisdiction. That issue, and that issue alone, is an appealable question of law.Is the question capable of bona fide and serious argument?[9] The relevant reasoning of Dobson J is found at [21]–[28] of his decision of 17 July 2012:[21] Mr Koyama also argued that the prospect of a complaint or claimagainst CDLS amounted to "a liability" and therefore came within the scopeof what was transferred to NZLS under s 373(2) of the LC Act. It wouldfollow, on Mr Koyama's analysis, that he could pursue complaints in respect of conduct or omissions of CDLS against the NZLS on an open-ended basis.[22] I am satisfied that the statutory provisions in the LC Act controlling transition from district law societies to the NZLS did not provide for the prospect of open-ended pursuit of complaints or claims against NZLS in respect of the conduct of former district law societies, after they had been dissolved. The analogy with amalgamating companies is not an accurate one because the joinder of two commercial organisations that then continue in a unified business reflects different interests from the statutory re-organisation of professional institutions, with different structures and responsibilities before and after that re-organisation.[23] Nor is it appropriate to treat the prospect of a claim to the Tribunal (which would have to be preceded by a complaint to the HRC) as a"liability" of the CDLS at the time it was dissolved. It clearly falls outsidematters that CDLS would be obliged to recognise and quantify as"liabilities".[24] The impracticality of permitting such ongoing attribution of responsibility for complaints or claims is illustrated by reflecting on theimpact of transposing Mr Koyama's criticisms of steps taken on behalf ofCDLS in 2005 and 2006 into criticisms against NZLS post-2009. Under the Law Practitioners Act 1982, each district law society had the responsibility of dealing with requests for certificates of character from those applying in that district to be admitted to the bar. It seems likely that different district law societies would work through the procedures for dealing with such applications in their own way, and indeed the existing membership of various district law societies may have taken varying degrees of interest in responding when the names of applicants were publicly notified. It isconceivable that NZLS would not deal with Mr Koyama's application in thesame way that CDLS did. Certainly, it appears a different approach was brought to bear by the Otago District Law Society when Mr Koyama applied to that body because it provided the certificate of character he sought, enabling him to be admitted to the bar.[25] These circumstances tend to support the approach that treats thetransitional provisions as providing for a "sunset period" in which complaints against a former district law society had to be advanced to a stage of constituting proceedings, or the right to pursue complaints against the former body would lapse.[26] At one point in his oral submissions, Mr Koyama sought to disavow the impact of his 3 September 2008 communication to the CDLS in which he stated that the complaints had been dropped. He suggested that before sending that communication, he had initiated a substantial number of complaints, and that the email could have related to others of the prior complaints. There is no support for that suggestion in the evidence.[27] It is clear that what Mr Koyama now wishes to pursue is the complaint against CDLS for allegedly dealing with his request for a certificate of character in a manner that breached the HRA by discriminatingagainst him. That much is clear from the facts cited in his claim to the Tribunal in June 2009 and he did not refer to any point in the evidence that identified other complaints to which his 3 September 2008 email may have been referring. In the circumstances pertaining at the time, the very clearinference is that the complaints being "dropped" included the samecomplaint he now wishes to pursue further.[28] Accordingly, the effect of the dealings between Mr Koyama, the CDLS and the HRC is that no outstanding complaint existed against CDLS at the end of January 2008, which could be considered a pending proceeding under s 378 of the LC Act.[10] Mr Koyama argues in his notice of application for leave to appeal that s 378(1)(c) of the Act was not relevant at all. He submits:Parliament did not intend to provide immunity to the respondent unless a legal proceeding was brought against an amalgamating District Law Society during the transitional period. ... It is an anomaly for Parliament to provide immunity to the Auckland District Law Society which remained as a continuing incorporated Society throughout the transitional period unless a legal proceeding was brought against them during the transitional period. If such a legislative intent were existence (sic) it must be explicit in the language of the statute. The Lawyers and Conveyancers Act 2006 does not have any provision or language to suggest such immunity. Similarly it would be an anomaly for Parliament to provide immunity to the respondent in the same situation. Therefore, s 378(1)(c) of the Lawyers and Conveyancers Act 2006 cannot be interpreted to provide such immunity to the respondent, without an explicit provisional language in the Act to indicate such a legislative intent.[11] I do not accept that submission. The view taken by Dobson J on the matter is plainly correct. The transitional provisions of the Lawyers and Conveyancers Act 2006 in this respect are perfectly clear and straightforward. District law societies continued to exist as statutory bodies for a period of six months from 1 August 2008, in accordance with s 372. They had the option to incorporate under the Incorporated Societies Act 1908 (as the Auckland District Law Society did) or to dissolve (as the Canterbury District Law Society did). In the latter event the assets and liabilities of that district society were transferred to the respondent Society under s 374(2). Section 378(1)(c) then provided:378 Consequential provisions in relation to assets, money, and property(1) Where, under section 373, assets of a District Law Society become assets of an incorporated society or the New Zealand Law Society,—(c) all proceedings pending by or against the District Law Society may, as from the close of the period of 6 months beginning with the date of the commencement of section 373, be carried on, completed, or enforced by or against the incorporated society or the New Zealand Law Society, as the case may require.[12] It follows that only "proceedings pending" against a district society as at 31 January 2009 could be continued against the respondent Society. Absent that, the Tribunal had no jurisdiction to hear and adjudicate upon Mr Koyama's claim against the Society. The conclusion reached by Dobson J (in the passage from the judgment cited above) and also by the Tribunal must therefore be correct. The position advanced by Mr Koyama is not capable of a bona fide and serious argument.[13] The other challenges to the procedure by the Tribunal are collateral in nature and do not give rise to appealable questions of law. They are beside the point when the Tribunal had correctly determined that it did not have jurisdiction in the first place.Does the appeal involve an interest of public or private importance?[14] I agree with the submission by Mr Collins for the Society that the interest here lacks public or private importance. It is, as Mr Collins puts it, the perpetuation of a grievance arising out of events that occurred in Mr Koyama's dealings with the dissolved Canterbury society six years ago. Any wrong done to him must substantially have been remedied when he was granted a certificate of character by another district law society and admitted as a barrister and solicitor of the High Court in May 2007. Even if there were residual rights in issue requiring ventilation, the Canterbury District Law Society has been dissolved. In the absence of a claim advanced against it in due time, those issues cannot be pursued against the present respondent, as I have determined in [12].Result[15] Leave to appeal denied.[16] The respondent is entitled to costs. If not agreed, I will receive memoranda. They are not to exceed three pages, and must be filed within 14 and 21 days respectively.Stephen Kós JSolicitors:NZ Law Society, Wellington for Respondent (pcollins@shortlandchambers.co.nz)And to:Appellant, (tatsuhiko.koyama@gmail.com)