Judgment
1HER HONOUR: Before me for hearing on 3 December 2012 was an application brought by the respondent (the Council of the New South Wales Bar Association) by notice of motion filed on 30 October 2012 for the summary dismissal of an appeal filed by Mr Asuzu from the decision and orders of the Administrative Decisions Tribunal in proceedings relating to complaints by the Council as to his professional conduct as a barrister.
2The bases on which summary dismissal of the appeal is sought are, first, that the appeal is incompetent because the Notice of Appeal was not filed within the time required by Uniform Civil Procedure Rule 51.16(1)(c) and, second, that the appeal proceedings are frivolous and vexatious (and should be dismissed pursuant to Uniform Civil Procedure Rule 13.4). Further or in the alternative, the Council seeks an order striking out one of the grounds of appeal (ground 18) on the basis that it seeks to appeal a decision of the Legal Services Division of the Tribunal as to costs without the leave of the Court, contrary to s 729(4)(c) of the Legal Profession Act 2004 (NSW).
Background
3In July 2009 and March 2010, two separate proceedings were brought by the Council against Mr Asuzu, a barrister, alleging that he had engaged in professional misconduct or unsatisfactory professional conduct or both. A variety of grounds of complaint were raised, relating broadly to Mr Asuzu's response (or failure to respond) to requests made by the Bar Association (for information as to whether he had practised for a short period without a practising certificate) and to his conduct of two matters: probate proceedings before Windeyer J in the Supreme Court and appellate proceedings in the Federal Court of Australia in relation to a migration matter in which the issue was whether there was jurisdictional error.
4The two Tribunal proceedings were heard together in May 2011. The Administrative Decisions Tribunal (Legal Services Division) published its reasons on 31 August 2011 ([2011] NSWADT 209), finding that Mr Asuzu was guilty of unsatisfactory professional conduct in relation to three of the specified grounds and of professional misconduct in relation to a further ground. Otherwise, the grounds for those applications were dismissed.
5Directions were made at that time for the filing of any affidavits on which the parties sought to rely in relation to the appropriate orders that the Tribunal should make in relation to the findings of professional misconduct and unsatisfactory professional conduct. The Tribunal received evidence and submissions in relation thereto; there was an oral hearing on 8 February 2012 (on which occasion Mr Asuzu was cross-examined); and an opportunity was given for the parties to file further written submissions. That hearing concluded on 16 May 2012 and the Tribunal published written reasons as to the orders it then made on 30 May 2012 ([2012] NSWADT 104).
6The orders made by the Tribunal on 30 May 2012 included that Mr Asuzu be publicly reprimanded with respect to his professional misconduct (as found by the Tribunal) and the imposition of a $1,000 fine. By order (iii) the Tribunal further ordered (and this is one of the now contentious orders) that "within 12 months of being issued with a practising certificate" Mr Asuzu complete and provide evidence of completion of certain courses (the first three modules of a principles of risk management education workshop offered by LawCover and a course in administrative law offered by the Legal Profession Admission Board or some other institution approved of by the Director, Professional Conduct) and sit and pass the bar exams both in practice and procedure and in evidence. The Tribunal also ordered (in (iv)) that the first practising certificate issued after the making of the said orders be subject to certain stated conditions (a prohibition on acceptance of direct access briefs, which prohibition lies at the centre of Mr Asuzu's present complaint, and entry into a mentoring agreement with a barrister and on terms both of which were to be approved by the Director of Professional Conduct).
7Liberty to apply was granted in relation to those orders on 7 days notice in writing to the other party. Mr Asuzu was ordered (by order (vi)) to pay 50% of the Council's costs including reserved costs, as agreed or assessed.
8The matter was subsequently relisted before the Tribunal, on the application of the Council with Mr Asuzu's consent. There was a hearing on 27 August 2012 in relation to these matters. In substance, the Council sought an amendment to order (iv) in order to make it clear that the 12 month restriction (on acceptance of direct access briefs and the requirement for mentoring) was to operate for 12 months from whatever date that Mr Asuzu chose to return to practice at the bar. Mr Asuzu did not consent to such an amendment and submitted that the orders should be amended to allow him to accept direct access briefs, with supervision, from the time he recommenced practice (an amendment that, unlike the amendment sought by the Council, clearly involved a variation to the substance of the initial orders and raised issues already considered and not accepted by the Tribunal in relation to the orders made in May 2012). Mr Asuzu, also sought clarification as to the ambit of the costs order.
9On 4 September 2012 the Tribunal amended orders (iv) and (vi) of the 30 May orders. It published reasons for so doing ([2012] NSWADT 183). As to the amendment to order (iv), the Tribunal noted that when the original orders were made it appeared that Mr Asuzu would be seeking a new practising certificate on 1 July 2012 (in which case the condition to which it was to be subject would have operated for the 12 month period envisaged in the Tribunal's reasons). He did not do so and the Tribunal recognised that if a practising certificate were to issue some time after that date (and to expire on 30 June the following year in the ordinary course) then the period of supervision and restriction required by the original order might be significantly less than the 12 month period. The Tribunal considered that this result would be inconsistent with the orders it had originally made and the Tribunal's intent in making those orders; and that an amendment to order (iv) was therefore warranted.
10As to the costs order, Mr Asuzu sought clarification as to whether he was required to pay 50% of all the costs or only 50% of the costs associated with those aspects of the proceedings on which the Council had been successful. The Tribunal referred to [27] of its May decision, which made it clear that the order related to the entire costs of the proceedings including reserved costs. However, to put the matter beyond doubt the Tribunal amended its original order (vi).
11The relevant order made on 4 September 2012 was to amend the 30 May 2012 orders. The Tribunal reproduced at [9] of its September reasons the earlier orders as amended. It is clear that the original orders were amended only in respect of the operation of (iv) and (vi). The remaining orders were not affected by the September orders.
12A Notice of Appeal was then filed for Mr Asuzu on 21 September 2012. His solicitor, Mr Ezekiel-Hart, had earlier foreshadowed, by an email on 27 August 2012, that in the event that the Tribunal did not order "direct access brief" (which would have required a reconsideration and substantive amendment to the earlier orders) that he had instructions to consider an appeal. In that email, Mr Ezekiel-Hart expressly noted "that Appeal time will start counting from the date of the final proposed amendment/clarification that the Respondent objects to on 27 August 2012". It seems that there was no indication by the Council that it considered this to be incorrect.
13The Notice of Appeal identifies the date of the hearing as being 3 September 2012 (presumably this is an incorrect reference to the date of the last of the decisions published by the Tribunal) and seeks to set aside the "judgment" of the Tribunal and "an order varying the final orders to reflect the appropriate findings in the interest of justice and equity". It seems clear from the grounds of appeal (which I reproduce below) that Mr Asuzu is appealing from the decision and findings made in August 2011 which were the subject of the initial May 2012 orders, not simply to the decision to amend those orders as such.
Grounds of Appeal
14The grounds of appeal specified in the Notice of Appeal (reproduced uncorrected) are as follows:
1. The orders of the Tribunal are at variance with the findings and manifestly excessive in the circumstance that the Respondents in their submissions admitted that "Mr Asuzu's errors are not of the same magnitude as those discussed in Rex and do not, by themselves, establish that he is not a fit and proper person to treated unfairly."
2. The Tribunal err in failing to take into account information of material significance or give less weight to information of material significance
3. The decision was plainly unjust and plainly wrong in that the Tribunal err in making findings it did
4. The Tribunal exercise of discretion was infected with bias and assisted the Respondent to achieve ulterior motives
5. The decision plainly institutionalize oppression against the appellant in the circumstance that the Tribunal was aware of the motive to exclude the appellant from NSW jurisdiction and Australia, the respondent stated in their written submission, "He should be given the opportunity to apply for variation of those orders if, for example, he wished to seek a solicitor's practising certificate in another jurisdiction."
6. The Tribunal incorrectly applied the law to the fact and made orders that are manifestly unjust and inconsistent with the tenet of fairness in the circumstance that the Tribunal did not find in aggregate that the Barrister's(appellant) conduct warrant unsatisfactory professional conduct let alone professional misconduct
7. The Tribunal incorrectly applied the principle of procedural fairness in the circumstances that the material that could prove appellant case was withheld from the appellant and the Tribunal
8. The orders made it impossible for the appellant to comply with if not in practice
9. The orders made it impossible for the appellant to return to practice by denying the appellant the benefit of supervised direct access work
10. The Tribunal misapprehends the fact and proceeded with that misapprehension to arrive at wrong conclusion in the circumstance that it was open to the Tribunal to caution or dismiss the allegations.
11. The Tribunal err in failing to take into account the Human Rights of the Appellant
12. The Tribunal decision treats the appellant differently and encouraged discrimination against the appellant without rational distinction,
13. The Tribunal orders discriminate against the trainings of the appellant
14. The Tribunal orders were contrary to the rights of the appellant to be protected against disability, disadvantage and discrimination and contrary to section 117 of the Commonwealth Constitution, contrary to the Racial Discrimination Act 1975 (Cth), sec 9(l)(a)(c), and Anti-Discrimination Act 1977 (NSW), sec 7(l)(a)(c) is breached, hence other barristers are not subjected to the same restriction as the Appellant.
15. The Tribunal erred in fact in failing to find that the exercise of discretionary power by the Respondent was in bad faith and at direction or behest of another.
16. The Tribunal erred in fact in not finding that there was an improper exercise of power by the Respondent to cause exclusion of the appellant for life from practicing his legal profession in NSW or exercise of power for a purpose other than a purpose for which the power is conferred;
17. The Tribunal decision and orders was inequitable in light of other decisions and facts.
18. The cost orders made against the appellant was manifestly unjust in the light of the findings of the Tribunal and failures of the Respondent in over 80% of its particularized allegations and refusal to discuss to narrow the lengthy allegations when invited by the appellant. The respondent only made application to withdraw some allegations after intense hearing that could not sustain those allegations. The time and cost could have been saved if the respondent had accepted the invitation to discuss.
19. Injustice and damage to the system of justice will be done if the orders made on 27 August 2012 were to remain unchanged.
15As I understand the submissions made by Mr Ezekiel-Hart (who appeared on Mr Asuzu's behalf on the present application), Mr Asuzu's complaints include that the direction issued to him by the Bar Association (for him to provide a statutory declaration as to whether he had engaged in legal practice for fee, gain or reward during a short period in which it was not disputed before the Tribunal that Mr Asuzu did not hold a current practising certificate), with which he was found not to have complied (giving rise to the sole finding by the Tribunal of professional misconduct), and the earlier requests to that effect were not reasonable (and hence that it would be open to this Court to find that he should not have been required to submit the statutory declaration in question). The reasonableness of the direction and/or requests issued by the Bar Association is not identified in the Notice of Appeal as an issue in respect of which the Tribunal made any error of fact, law or discretion in coming to its decision in August 2011 or in making or amending its orders consequent upon that decision. (Before the Tribunal, it was contended for Mr Asuzu that he had complied with the Tribunal's requests for information, although he had not provided a statutory declaration as directed.)
16The gravamen of Mr Asuzu's complaint is that the orders made by the Tribunal have or will have the effect of barring him from practising as a barrister in New South Wales for life and therefore that they are discriminatory and in breach of s 117 of the Constitution and Mr Asuzu's human rights. Mr Ezekiel-Hart submits that Mr Asuzu has a constitutional right to be protected from disability and discrimination and that the orders that have been made contravene that right.
17Mr Asuzu has deposed to the effect that he cannot obtain professional indemnity insurance while the direct access prohibition is in place; that he therefore cannot obtain a practising certificate; and that without a practising certificate he cannot undertake the educational studies ordered by the Tribunal.
18As to the first proposition (that Mr Asuzu cannot obtain professional indemnity insurance while bound by the direct access prohibition), Mr Asuzu's affidavit deposes in general terms (at [36]) that he has contacted "at least three indemnity insurers" but that after "good initial discussions" all declined to insure him and that this refusal was "immediately [he] notified them that [he] cannot have direct access client and provided them with the lengthy orders that [he has] to comply with". Mr Asuzu has deposed (at [37]) to his belief that the refusal to provide insurance cover is because the insurers erroneously believe that a person with this type of protective orders must have been involved in fraudulent activities (though if that is in fact the reason that insurance cover has been declined once would expect that this erroneous belief could be readily dispelled by the provision of the Tribunal's reasons for judgment which make clear that no question of dishonesty or deception on Mr Asuzu's part was raised).
19As to the third proposition in Mr Asuzu's chain of reasoning (that he cannot undertake the educational courses without a practising certificate), this is said to flow from the fact that the order contemplates that the studies will be undertaken after ("within 12 months from") the issue of a practising certificate so that any studies undertaken before that time would not satisfy the order. That does not in my view properly reflect the substance of the order (which would in its terms be satisfied if Mr Asuzu completed the studies at some time within the period of 12 months after the issue of the relevant practising certificate even though those studies might have been commenced and even perhaps largely undertaken before so doing). The purpose of the time frame specified in order (iii), having regard to the Tribunal's reasons of 30 May 2012, is fairly obviously to ensure (for the protection of clients who may utilise his legal services) that Mr Asuzu's knowledge of administrative law principles (and of matters of practice and procedure and evidence) is refreshed within a relatively short time after he recommences practice at the bar. That purpose would be served whether the studies were commenced shortly before or shortly after the issue of a practising certificate. There is no basis for a suggestion that the latter is a necessary pre-requisite for admission to any of the relevant courses.
Issues for determination
20On the present application, there are three issues for determination:
(i) whether the appeal is incompetent on the basis that it was filed outside the time specified in the Rules without leave;
(ii) whether the appeal should be summarily dismissed on the ground that it is frivolous or vexatious; and
(iii) if the appeal is not summarily dismissed as a whole, whether the appeal in relation to the Tribunal's costs orders (ground 18) should be struck out for want of the leave required under s 729A of the Legal Profession Act 2004 (NSW).
21I consider each of those issues in turn.
(i) Competency of appeal
22As already noted, Mr Asuzu's Notice of Appeal was filed on 21 September 2012. The Council contends that the material date, for the purposes of calculation of the time within which any notice of appeal was required to be filed, is the date on which the original orders were made by the Tribunal (namely, 30 May 2012) and therefore that the appeal has not been commenced within time. For Mr Asuzu, it is contended that the material date is 4 September 2012 when the orders were amended.
23Mr Ezekiel-Hart's submission is based on the proposition that it was not until September 2012 that the Tribunal became functus officio (since it had granted liberty to apply in terms not limited to the supervision or machinery of the orders and it was not until then that the liberty was exercised and final orders made).
24Rule 51.16(1)(c) provides that if (as here) a notice of intention to appeal has not been filed and served under Part 51 and the notice of appeal is not filed pursuant to leave to appeal, then a notice of appeal must be filed within 28 days of the material date or such other time as the Court may fix. "Material date" is defined, relevantly, in Rule 51.2(3) as the date on which the decision is pronounced or given. There is nothing in the definition of "material date" to suggest that it is determined by reference to the date on which the relevant decision-maker became functus officio, nor was Mr Ezekiel-Hart able to point to any authority that suggested this was the relevant test for determining the material date. (Therefore, if the material date was 30 May 2012, by the time Mr Ezekiel-Hart had sent his 27 August 2012 email the time for filing a notice of appeal had already well and truly expired.)
25Mr Ezekiel-Hart relied, for his submission that the Tribunal was not functus officio until September 2012 on what was said in Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2010] NZHC 176; [2011] 1 NZLR 336 as to the principle of finality in litigation (there, the principle was discussed in the context of a submission that the court had no jurisdiction to revisit an earlier judgment absent a proper pleading of fraud or a pleading that the judgment was a nullity). In response to this, Counsel appearing for the Council (Mr McLure) referred to what was said by Gleeson CJ in Minister for Immigration v Bhardwaj [2002] 209 CLR 597 where his Honour (recognising that circumstances can arise where a rigid approach to the principle of functus officio is inconsistent with good administration and fairness) noted that much may depend on the nature of the power being exercised and of the error that has been made, when considering whether a power to make an administrative decision once purportedly exercised is necessarily spent.
26The debate prompted by Mr Ezekiel-Hart on this issue, however, is one that goes to the question (assuming any such question were raised on the appeal, which it is not) whether the Tribunal had the power to make the orders that it did on 4 September 2012 not to whether the material date for the calculation of the time for filing a notice of appeal was that date (and to that extent the submission is misconceived).
27Mr McLure submits that the Tribunal had power under s 87 of the Administrative Decisions Tribunal Act 1997 (NSW) to make the amendments that it did (and that this power being described in R v Green and Quinn [2011] NSWCCA 71 at [21]) is a statutory manifestation of the implied power of the Tribunal to make such corrections to its orders as necessary to give expression to the actual intention of the Tribunal). Such a power is akin to the "slip rule" applicable to curial proceedings.
28I note that in the arbitral context it has been recognised (see Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346 and Alvaro v Temple [2009] WASC 205) that the statutory power given to an arbitrator to correct an award (not unlike that in s 87) is an exception to the rule that, after the making of a valid award, the arbitrator is functus officio. Here, it is clear from the Tribunal's reasons that the amendment made to the May 2012 orders was to ensure that they operated in a manner that reflected the intent of the Tribunal at the time (circumstances in which the slip rule would operate in curial proceedings and in which the comparable power under s 87 would be enlivened).
29The fact that the Tribunal gave the parties liberty to apply in relation to the orders initially made on 30 May 2012 does not change the character of the orders as from that date. They took effect when pronounced. No further step was required by the Tribunal or the parties to bring them into effect. Unless and until the jurisdiction conferred by s 87 or like jurisdiction was successfully invoked (or any appeal therefrom were to succeed), the Tribunal's orders were final and operative.
30Insofar as Mr Ezekiel-Hart relied on the grant of liberty to apply in support of the proposition that the Tribunal was not functus in September 2012, I have had regard to the analysis in Maritime Union of Australia v Geraldton Port Authority [2000] FCA 1342 of the nature of the liberty that is granted when parties are given liberty to apply in the ordinary course. Nicholson J reviewed various authorities and accepted that such liberty is limited to matters that are necessary or desirable for the working out of the order and does not extend to the grant of relief which is substantially different to that given by the final order. His Honour expressed that conclusion in terms consistent with the understanding that the orders that might be the subject of liberty to apply in such a case would nevertheless be characterised as final orders (for example at [9] where his Honour referred to the scope of the court's power "subsequent to the making of final orders"). Nicholson J referred to the statement in Abigroup Ltd v Abignano (1992) 39 FCR 74 at 88 by Lockhart, Morling and Gummow JJ that:
The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court's orders. They include cases where a court may need to supervise the enforcement of orders after they have been made ...Historically orders reserving liberty to apply are for limited purposes. This demonstrates that there is no inconsistency between the making of final decrees, judgments or orders or declarations and subsequent orders of the court. It all depends upon the circumstances of the case and the particular order or decrees formulated by the court. (my emphasis)
31The authorities to which Nicholson J referred do not suggest that orders in respect of which liberty to apply has been granted do not become final or operative until some later point (when and if the liberty is exercised) nor would that make sense (since if that were the case it would be impossible to know when an order in respect of which liberty to apply could be regarded as final or operative).
32As it seemed to me that the analysis in Maritime of the scope of the grant of liberty was consistent with the view I have taken that the orders made on 30 May were final and operative from that date (and, for the purposes of the definition in the Rules, that this is the material date in relation to the time for filing an appeal therefrom) but this authority had not been the subject of discussion in the course of oral submissions before me, I gave the parties an opportunity (if they so wished), to make submissions as to the analysis contained in this case. Both parties then did so. I have taken those further submissions into account.
33On the question of liberty to apply, Mr Ezekiel-Hart's further submission may be summarised as being that the 30 May orders did not envisage that the Tribunal would perform a supervisory role in their implementation and did not state or define the scope of the liberty as being in respect of the operation of the orders; that therefore there was no limit to the scope of the liberty there granted; and hence the May orders should be construed as not being final and the Tribunal had not become functus officio. Mr Ezekiel-Hart submitted that the liberty to apply permitted the Tribunal to vary the practical effect and the material nature of the earlier orders; that the 4 September orders were substantially different from those earlier orders; and hence that the material date for an appeal from those orders was 4 September 2012. That, as I understand it, is the effect of the submission that:
...while we accept that the Tribunal have power to vary its orders, it did not give the liberty to apply simply because it had hindsight that it had power to vary the order. The variation of the orders created new order though not all the orders were varied after the hearing on 27 August 2012.
coupled with the submission that if the prior orders were "perfected" then they should not have been varied except by appeal or under the "slip" rule (and hence the variation of the orders changed the character of the prior orders and made the 4 September 2012 orders substantially different).
34The difficulty with that submission is that, whether or not the Tribunal had power to do so at that point, the amendments made on 4 September did not substantially change the previous orders at all. In relation to order (iv), the Tribunal was obviously exercising a power to correct the order in order to ensure that it operated as the Tribunal had intended it to do (a permissible exercise of the slip rule - Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group inc & ors [2007] NSWCA 195; (2007) 70 NSWLR 411). The amendment to order (vi) was regarded by the Tribunal as unnecessary and simply to remove doubt as to its intended operation. (Nor is there any basis in my view to construe the liberty to apply otherwise than as contemplated would be the ordinary course in Maritime Union.)
35I accept as correct Mr McLure's submission that the Tribunal's decision on 4 September 2012 to amend order (iv) did not create a new right or impose a new obligation but was for the (stated) purpose of giving effect to the Tribunal's intention that the conditions would apply to Mr Asuzu for a period of 12 months. The amendment was clearly within the scope of the reservation of liberty to apply and/or the power provided by s 87. It did not give rise to a new set of final orders and therefore did not give rise to a new material date.
Conclusion as to issue (i)
36The fact that there was a grant of liberty to apply in respect of the May 2012 orders (and that this liberty was ultimately exercised so as to produce an amendment to the orders) does not mean that the material date (for the purpose of calculating when the time for appeal therefrom was to run) was a date later than 30 May 2012. The amending order made on 4 September 2012 did not operate to re-set the material date to that later point in time. The position would be different if the subject matter of the appeal was as to the making of the amendment itself but that is clearly not the case here. What grounds of appeal raised in the Notice of Appeal challenge are the orders made on 30 May 2012 (albeit as now amended) consequent upon the findings made on 31 August 2011, not the decision to amend the earlier orders (ie the exercise of power under the slip rule or s 87).
37Therefore, the material date for the purposes of the filing of Mr Asuzu's appeal is 30 May 2012. The Notice of Appeal was not filed within 28 days of that date and, in the absence of leave for it to be filed out of time, the proceedings are liable to be summarily dismissed.
Leave to extend time for the filing of notice of appeal?
38Although initially suggesting otherwise, Mr Ezekiel-Hart ultimately acknowledged that no application had been made by or on behalf of Mr Asuzu for leave to extend the time for the filing and service of the notice of appeal (and, as I understand it, he then sought to make such an application orally). Similarly, Mr Asuzu in his affidavit of 9 November 2012 (at [121]) purports to rely on the affidavit as constituting such an application:
In event that my Appeal was out of time or that part of the decision require leave I rely on this affidavit seeking leave for my appeal and saying that actual injustice and denial right to work will be done to me except the court review the Tribunal decisions and orders which I believe are manifestly excessive and did not allow any leeway to encourage compliance and are at variance to previous orders put before the Tribunal.
39It should have been clear to Mr Asuzu and his legal advisers, at the very least from service of the Council's submissions on its Notice of Motion, that there was an issue as to whether the Notice of Appeal had been filed in time. No attempt seems to have been made to prepare a proper application for leave to extend the time, in the event that such an extension might be necessary.
40In Woollahra Municipal Council v Sved (New South Wales Court of Appeal, unreported, 24 July 1998), Mason P and Sheller JA were of the view that if an appellant (faced with an objection to the competency of the appeal) intended to seek leave to appeal then such an application for leave must be made before the hearing of the competency application. In Director-General, Family and Community Services Re Felicity [2012] NSWCA 272, an oral application for leave to appeal made during the hearing of the objection to the competency of the appeal was rejected.
41Those authorities suggest that an oral application for leave to extend the time for filing of the Notice of Appeal should not be entertained in the present case (since the application was not made in advance of the hearing of the challenge to competency). It is not necessary to decide the question on this point since even if (contrary to the practice applied in Re Felicity) the application should now be entertained, my view is that leave should not be granted in the circumstances of the present application for the following reasons.
42An application for leave to extend time must be assessed having regard to what the interests of justice require in all the circumstances of the case. Relevant factors include the reason why the appeal was not lodged in time; the period for which an extension is sought; any prejudice to the opposing party; and the apparent prospects of success on the appeal. In Tomko v Palasty (No 2) [2007] NSWCA 369, Basten JA considered (at [58]) that it would generally be sufficient for the applicant to demonstrate a fairly arguable case (at least assuming there is a reasonable explanation for the delay and no significant prejudice to the opposing party). (It may be necessary to show more than fairly arguable prospects of success in circumstances where there is no, or no satisfactory, explanation for the delay or where there is prejudice to the opposing party.)
43Here, no explanation was given, as such, for the delay. While it might perhaps be inferred, from the submissions made on the present application by Mr Ezekiel-Hart and the affidavit affirmed by Mr Asuzu on 9 November 2012, that Mr Ezekiel-Hart and/or Mr Asuzu proceeded on the basis of an incorrect view as to when the time for commencing the appeal would expire, there is also a suggestion in the material that the explanation is simply that a decision was made not to pursue an appeal until after the "workability" or "practicability" of the orders was assessed and after the application for 'clarification' or amendment to the direct access restriction was determined.
44In Mr Asuzu's affidavit, at [25], he asserts that the decision of 31 August 2011 was not final because the Tribunal allowed submissions and more evidence. (I note that the Council does not suggest that the time for filing of the appeal commenced at the time of publication of the principal reasons.) At [26], Mr Asuzu asserts that the 30 May 2012 orders "allowed indefinite time to seek clarification on 7days [sic] Notice leading to the final orders with material date of 4 September 2012" and deposes that "This enable me time to test the practicability of the Orders before Appeal". In his reference to "indefinite time to seek clarification, Mr Asuzu must be referring to the grant of liberty to apply in relation to the orders, which as noted earlier is said for Mr Asuzu to mean that the Tribunal was not functus officio until such time as orders were made consequent upon the exercise of liberty to apply. However, it also suggests that a decision was made not immediately to lodge any appeal but to "test the practicability" of the orders before so doing.
45At [34], Mr Asuzu refers to instructions given to his legal representatives that he "will Appeal the decision if the clarity is not what I anticipated" and that this view was foreshadowed by the email to the Council's solicitor. It is by no means clear what Mr Asuzu seeks to draw from the fact that there was, he says, no response to the email communication made to the Council's solicitors on 27 August 2012 in which the assertion was made that time for the appeal to be lodged would commence to run from the determination of the application on 27 August 2012. It is not, for example, alleged that Mr Asuzu delayed filing the Notice of Appeal on the basis of any representation arising from the fact that there was no correction made to the assertion contained in the email as to the time for appeal.
46At [35], Mr Asuzu says that "To ensure that I gave thought to my appeal I tested the workability of the Tribunal decision and orders to enable me have informed need for my clarification before Appeal [sic]". This does not suggest that there was any misapprehension or mistake as to the procedural requirements for the filing of an appeal; rather, that Mr Asuzu was still deciding whether he would be prepared to accept the outcome of the Tribunal's decision or should appeal from it. Similarly, at [40] Mr Asuzu says that prior to the application for clarification (namely, the re-listing before the Tribunal) he wanted, for the sake of peace, to see the "workability" of the findings and orders.
47There is also a reference at [44] to Mr Asuzu having become "temporarily sick emotionally". It is not clear at what time this happened (other than that it seems to have been after Mr Asuzu realised the "effect of the impossibility to practise law" and before he formed the opinion that the only option was to appeal the decision and orders).
48To the extent that an explanation for the delay in lodging the appeal can be drawn from the above, it thus seems to be a mixture of a desire to assess the "practicability" or "workability" of the regime provided for under the orders; a hope that the direct access prohibition might be removed or ameliorated; and a misapprehension of the time for commencement of the appeal. In those circumstances the explanation for the delay is not particularly compelling. On balance it might perhaps have been enough (in circumstances where it was not suggested that there was any relevant prejudice to the Council arising from the delay) had there been at least fairly arguable grounds of appeal raised in the Notice of Appeal. However, I am not satisfied that this is the case. Therefore, even apart from the fact that the application for leave was not made in advance of the hearing of the objection to competency, I would not have granted leave for the filing out of time of the Notice of Appeal.
49As the consideration of this issue overlaps to an extent with the consideration of the further and alternative basis on which summary dismissal is sought (namely that the appeal is frivolous and vexatious), I set out in (ii) below the reasons for my conclusion on this aspect of issue (i).
50Finally, as a consequential matter arising from my determination of issue (i), I note that complaint was made by Mr Ezekiel-Hart as to the fact that service of the Notice of Motion seeking summary dismissal was over 28 days after the filing of the Notice of Appeal. Although not made clear in the course of his submissions, it seems that this is a reference to the requirement in the Rules (where a party challenges an appeal on the grounds of incompetence) for such a challenge to be made within 28 days.
51Rule 51.41 of the Uniform Civil Procedure Rules provides that:
(1) A respondent who objects to the competency of an appeal must, by notice of motion filed and served on all other parties within 28 days after service on the respondent of the notice of appeal, apply to the Court for an order dismissing the appeal as incompetent.
(2) If the respondent fails to comply with subrule (1) and the appeal is nevertheless dismissed as incompetent:
(a) the respondent is not entitled to costs of the appeal unless the Court otherwise orders, and
(b) the Court may order the respondent to pay the appellant any costs of the appeal proving useless or unnecessary.
52The time for the filing of the Council's motion to dismiss summarily on the ground that the appeal was frivolous or vexatious was not so limited. The rules, however, contemplate that even if not filed within that 28 day period, the appeal may nevertheless be dismissed as incompetent. The relevance of this rule in the present case would thus be as to the costs implications of the objection to competency not being made within the 28 day period. The rule in r 51.41(2) has been applied in Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 and Falamaki v Wollongong City Council [2001] NSWCA 55, where it was said that generally respondents who fail to object to the competency of an appeal will not be awarded their costs even though the appeal may be held to be incompetent. The Court does, nevertheless, retain the discretion to make an order for the costs of the appeal otherwise than as contemplated in sub-rule (2) where it is deemed appropriate.
53Here, the delay in lodging a challenge to competency, was only a period of some 10 days. There is nothing to suggest that Mr Asuzu incurred unnecessary costs in pursuing his appeal in that period. Moreover, the balance of the Notice of Motion would have succeeded in any event. I consider that it would be appropriate in those circumstances for the costs to follow the event. However, I will hear any further brief oral submissions before making such a costs order.
54On this first ground, therefore, I find that the appeal is incompetent as the Notice of Appeal was filed out of time. I do not consider that leave should be granted to extend the time for the filing of the Notice of Appeal. It should be summarily dismissed.
(ii) Dismissal on the frivolous/vexatious ground
55This further or alternative basis for dismissal does not strictly arise in light of my finding in (i). However, insofar as my consideration of the issues relevant to this ground is relevant on the leave question considered above, I set out below the reasons why, had I found otherwise on issue (i), I would have summarily dismissed the appeal on the second basis.
56The power pursuant to Rule 13.4 to dismiss proceedings which are either frivolous or vexatious applies to proceedings in the Court of Appeal subject to modifications as are necessary (see Rules 51.1(3) and (4)) including the fact that reference to an originating process is to be read as reference to a notice of appeal. Mr McLure notes that an appeal may be summarily dismissed if the issues sought to be raised are not reasonably arguable (referring to Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23, though in that case McColl JA did not exercise the power to do so).
57In considering the exercise of the power summarily to dismiss the appeal, it is noted that an appeal to this Court from a decision of the Tribunal is by way of rehearing and not by way of a de novo hearing (s 729A(2) of the Legal Profession Act 2004 (NSW)) and hence that what must be shown by Mr Asuzu on any appeal from the Tribunal's decision is that it was incorrect as the result of some legal, factual or discretionary error (Allesch v Maunz (2000) 203 CLR 172 at [23]). Mr McLure therefore submits that the appeal should be summarily dismissed if the issues raised by the Notice of Appeal do not disclose a reasonable prospect of establishing an error of the relevant kind that would result in the Court re-exercising the Tribunal's powers. McColl JA from [76] in Pachkovski set out the principles to be applied on such an application.
58The requirements for a Notice of Appeal are set out in Rule 51.18 (and Practice Note SC CA 1 at [10]). In Tame v New South Wales (2002) 211 CLR 317, it was noted that a significant aspect of those rules is that the Notice of Appeal must state specifically, but briefly, both the grounds of appeal (Rule 51.18(1)(c)) and the material factual findings that the appellant contends that the court below should, or should not, have found (Rule 51.18(2)). It is not sufficient merely to allege that the primary court erred in law or fact or that its decision is against the evidence or the weight of the evidence (Durham v Durham [2011] NSWCA 62).
59It is submitted by Mr McLure that the Notice of Appeal filed on behalf of Mr Asuzu does not comply with the requirements of the Rules and does not disclose reasonably arguable grounds of appeal. Each of the grounds was addressed in Mr McLure's submissions and I set out briefly below the complaint raised in relation to each of the grounds.
60In summary, the criticism of Mr Asuzu's Notice of Appeal is well-founded as is the submission that the grounds set out therein do not disclose any reasonably arguable grounds of appeal.