TATSUHIKO KOYAMA V NEW ZEALAND LAW SOCIETY COA CA772/2012

TATSUHIKO KOYAMA V NEW ZEALAND LAW SOCIETY COA CA772/2012 [17 April 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA772/2012[2013] NZCA 115BETWEEN TATSUHIKO KOYAMAApplicantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 8 April 2013Court: O'Regan P, Wild and White JJCounsel: Applicant in personP Collins for RespondentJudgment: 17 April 2013 at 3 pmJUDGMENT OF THE COURTA We grant an extension of time for the filing of the application for special leave to appeal.B The application for special leave to appeal is dismissed.C The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.___________________________________________________________________REASONS OF THE COURT(Given by O'Regan P)Introduction[1] The applicant seeks a special leave to appeal against a decision of Dobson J.1In his decision, Dobson J dismissed the applicant's appeal from a decision of theHuman Rights Review Tribunal.2 The applicant applied to the High Court for leave to appeal to this Court but that was declined by Kós J.3Statutory test[2] Special leave is sought pursuant to s 124 of the Human Rights Act 1993. Section 124(1) provides that a party to any proceedings before the High Court under the Human Rights Act may appeal to this Court against any determination of the High Court "on a question of law arising in those proceedings". Such appeal may bemade only if the High Court gives leave or, in the event that leave is refused in the High Court, this Court gives special leave.[3] Section 124(3) provides that this Court may grant special leave if, in itsopinion, "the question of law involved in the appeal is one which, by reason of itsgeneral or public importance or for any other reason, ought to be submitted to theCourt of Appeal for decision".[4] Accordingly, in order to succeed in this application, the applicant needs to establish that the questions in respect of which he seeks leave to appeal are:(a) questions of law;(b) capable of serious argument; and(c) involve some interest, public or private, of sufficient importance to outweigh the delay and cost of a further appeal.41 Koyama v New Zealand Law Society [2012] NZHC 1725.2 Koyama v New Zealand Law Society [2010] NZHRRT 13.3 Koyama v New Zealand Law Society [2012] NZHC 2853.4 Waller v Hider [1998] 1 NZLR 412 at 413 (CA).Factual background[5] The origins of the applicant's grievance date back to 2006. He wished to beadmitted to the bar, but the Canterbury District Law Society refused to provide him a certificate of character. However, the Otago District Law Society provided such a certificate to him in 2007, and he was admitted to the bar in May 2007.[6] The applicant complained to the Human Rights Commissioner and the Privacy Commissioner about the actions of the Canterbury District Law Society. However, he subsequently dropped these complaints (he appears to dispute this, but the factual findings to that effect are not amenable to appeal).[7] In 2009, the applicant commenced proceedings against the respondent in the Human Rights Review Tribunal. These proceedings related to the actions of the Canterbury District Law Society. There were two relevant decisions of the Tribunal. The first was a decision ruling against the applicant's objection to the chairperson ofthe Tribunal participating in the proceeding on the grounds of apparent bias.5 The second was a ruling by the Tribunal that it did not have jurisdiction to deal with theapplicant's claim because of the operation of the transitional provisions of the Lawyers and Conveyancers Act 2006.6[8] The applicant's appeal to the High Court was against the Tribunal's decisionrelating to jurisdiction, but he sought also to challenge the decision relating to apparent bias. He was asked whether he wished to have his appeal treated as an application for judicial review to allow for these challenges to be pursued in the High Court, but declined. However he still tried to raise matters relating to the apparent bias ruling when the appeal was heard. Dobson J ruled that the apparent bias issue should not be considered in the High Court appeal. He did, however,engage with the applicant's complaint that the Tribunal ought to have convened ahearing before ruling on jurisdiction. The Judge determined that the Tribunal had the power to determine its own procedure, including the power to deal with a challenge5 Koyama v New Zealand Law Society [2010] NZHRRT 2.6 Koyama v New Zealand Law Society above n 2.to jurisdiction on the papers. He expressed himself to be satisfied that that was an appropriate way for the Tribunal to deal with the jurisdiction issue.Extension of time[9] The application was filed a few days after the expiry of the period for making such applications. Although the applicant disputed that the application was out of time, it is clear that it was. However, this was at least partly because information provided to the applicant by the Court of Appeal registry led him to believe that the period within which the application had to be made was longer than it actually was.[10] Counsel for the respondent, Mr Collins, opposed the extension of leave, but only on the basis that the application itself was without merit. He did not suggest that the respondent had been prejudiced in any way.[11] In circumstances where the delay in filing the application was minimal, was the result of some confusion on the part of the applicant as to the relevant time period, and where that confusion was partly caused by a communication from the Court, we consider the appropriate course is to treat the application as incorporating an application for extension of time and to grant the extension of time. That then allows for the application itself to be dealt with on its merits.Questions for which leave is sought[12] The application for special leave raises no less than 16 matters, though none is expressed as a question of law. Rather, each is expressed to be a matter on whichthe High Court "erred".[13] Rather than go through these in detail, we will deal with them in broad categories.Decision relating to allegation of apparent bias[14] The first category relates to the decision of the Tribunal in relation to the allegation of apparent bias. The applicant wishes to raise in this Court hiscomplaints about the Tribunal's procedure, particularly the fact that it issued an "interim decision" and the fact that the High Court did not engage with the issue. This is expressed in a number of ways, but the essence of the complaint is that theHigh Court when dealing with the appeal against the Tribunal's decision onjurisdiction ought to have also dealt with issues relating to the earlier decision on apparent bias. Given the procedural background in the High Court and the offer to treat the proceeding as a judicial review application to allow this to occur, we can see no basis for this complaint. But in any event the complaint clearly does not give rise to any question of law justifying an appeal to this Court.Tribunal's procedure: jurisdiction decision[15] The next category relates to the procedure adopted by the Tribunal in relation to the jurisdiction decision, and in particular the failure to hold a hearing. Dobson J did engage with this issue, notwithstanding that the Tribunal was not represented on the appeal, and upheld the process undertaken by the Tribunal. We can discern no arguable question of law that would justify a further appeal to this Court on the issues relating to the Tribunal's process.High Court procedure[16] The third category relates to the procedure adopted in the High Court and the admission of evidence in that Court. These were matters of process which do not give rise to anything other than fact-specific issues. Again the statutory test for special leave is not met.Transitional provisions[17] The final category relates to the transitional provisions of the Lawyers and Conveyancers Act 2006. We accept that these issues can be articulated as questions of law and we agree with Kós J that these issues, and these issues alone, are capable of being articulated in a manner which could give rise to a further appeal to this Court.[18] The Lawyers and Conveyancers Act dealt with, among other things, the consequences of the dissolution of District Law Societies when their responsibilities were taken over by the respondent. The Act provided that District Law Societies would continue in existence for six months after the commencement date of the Act (1 August 2008), and during that time each District Law Society would elect whether to incorporate under the Incorporated Societies Act 1908 or dissolve. All but the Auckland District Law Society decided to dissolve. In the context of this case, that meant that the Canterbury District Law Society was dissolved on 1 February 2009, and as a result of this its assets and liabilities were transferred to the respondent under s 373(2) of the Act.[19] Special provision was made for outstanding proceedings against a District Law Society. This was governed by s 378(1)(c), which provided that all proceedings that were pending by or against a District Law Society at the end of the six month period (i.e. at 1 February 2009) may be carried on, completed or enforced by or against the respondent.[20] As noted earlier, the finding of fact against the applicant was that he had withdrawn his complaints against the Canterbury District Law Society before 1 February 2009, which meant that he did not have a claim against the Canterbury District Law Society that was "pending" as at 1 February 2009. Accordingly,s 378(1)(c) did not apply to his later claim against the respondent.[21] The applicant wishes to challenge the finding of the Tribunal, upheld by the High Court, that the consequences of the situation outlined above is that the respondent has no responsibility for claims made after 1 February 2009 in relation toacts or omissions of a District Law Society prior to its dissolution. We accept that a question of law arises, but we see no basis for argument that the High Court Judge erred in his analysis. In any event, the matter is now of historical interest only, because of the effluxion of time and the fact that there is nothing to indicate that anyone other than the applicant has any practical interest in the outcome. As recently noted by the Supreme Court, it is rarely of general or public importance to answer a question that is of historical interest only.7 This is no exception. We decline leave on this ground.[22] As an alternative to the argument just summarised, the applicant wishes toargue that his claim against the Canterbury District Law Society was a "liability"that passed from the Canterbury District Law Society to the respondent on 1 February 2009. This would engage s 373(2) of the Lawyers and Conveyancers Act, which provides that assets and liabilities of a District Law Society are transferred to the respondent when the District Law Society is dissolved. In essence the applicant wishes to argue that his prospective claim against the CanterburyDistrict Law Society was a "liability", and that this allowed him to crystallize theclaim by commencing proceedings against the respondent after 1 February 2009.[23] Again, we accept that this is a question of law but it does not appear to us to be an arguable one. In any event, it is, like the question relating to s 378(1)(c), a matter of historical interest only and of practical interest to no-one other than the applicant. It does not meet the test for a further appeal.Result[24] None of the matters which the applicant seeks to raise meets the test set out in s 124 of the Human Rights Act for a further appeal to this Court. In those circumstances special leave to appeal is declined.7 Kain v Wynn Williams & Co [2013] NZSC 26 at [2]. See also New Zealand Post Ltd v PostalWorkers Union of Aotearoa Inc [2013] NZSC 15.Costs[25] The applicant must pay the respondent costs for a standard application on a band A basis plus usual disbursements.