Asuzu v Council of the New South Wales Bar Association

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 [be?] treated unfairly." 61Ground 1 does not specify the findings with which it is said the orders are at variance or (other than by inference in comparison with the case to which reference is there made) manifestly excessive. Mr McLure submits that this ground relates to the Tribunal's orders of 30 May 2012 in that it refers to (and inaccurately reproduces) a submission made on behalf of the Council to the Tribunal when the latter was considering what orders should be made following the principal reasons for judgment. 62Insofar as a comparison is sought to be drawn with the conduct considered in Law Society of New South Wales v Rex [2003] NSWADT 36 and [2003] NSWADT 148 (a case in which the legal practitioner whose misconduct was accepted to be more serious than that of Mr Asuzu was not struck off), Mr McLure notes that in fact the submission made to the Tribunal (characterised as an admission by Mr Asuzu) was 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 remain on the Roll. 63It is difficult to see how the Tribunal's apparent acceptance of that proposition (in the sense that there was no order made for Mr Asuzu to be struck off) is inconsistent with the orders that were in fact made. There is no identification in Ground 1 of the basis on which it is suggested that the Tribunal's discretion as to penalty miscarried. The protective orders that were in fact made by the Tribunal (and which are the focus of Mr Asuzu's complaint) in relation to the undertaking of identified practice or educational courses and the imposition of a prohibition on direct access briefs for a period of time are directly relevant to the grounds on which findings of unsatisfactory professional conduct had been made against Mr Asuzu. 64The Tribunal found Mr Asuzu guilty of unsatisfactory professional conduct in relation to two matters: first, the failure properly to plead an allegation of forgery in respect of a will (in the context of probate proceedings in which Mr Asuzu was acting for a plaintiff seeking probate of an earlier will). The Tribunal noted (at [208] of its principal judgment that Mr Asuzu did not appear to have obtained sufficient instructions to enable him adequately to identify the case that he was seeking to plead in relation to forgery and was not able to prepare an amended pleading that identified the material facts and particulars relied upon to disclose the case in relation to forgery. 65The Tribunal also noted that the trial judge had expressed the view that there was an improper pleading in relation to the allegation of forgery in relation to a 1992 will and not a proper allegation of forgery in relation to a 1995 will. The Tribunal noted that: This whole aspect of the plaintiff's case appears to have been left in an unsatisfactory state by the Barrister not only from the point of view of the Court but also from the perspective of the Barrister's client, the plaintiff, especially if any of the wills had in fact been forged. 66The Tribunal found (at [209]) that Mr Asuzu's inability to identify, plead and adequately particularise the plaintiff's case in relation to forgery of the wills "fell short of what a member of the public was entitled to expect from a reasonably competent Australian legal practitioner, especially a barrister..". 67The second ground on which unsatisfactory professional conduct was found to have been established was in Mr Asuzu's preparation for and conduct of an appeal from the dismissal by a Federal Magistrate of an appeal from the Migration Review Tribunal. The Tribunal found that Mr Asuzu was aware of the need, for the purposes of that appeal, to identify jurisdictional errors on the part of the Migration Review Tribunal which were not identified and accepted as such by the Federal Magistrate but found that Mr Asuzu had not adequately considered or addressed why the errors he identified were or could be argued to be jurisdictional errors (and did not limit his submissions to what would be relevant to potential jurisdictional errors) ([300]). The Tribunal considered that Mr Asuzu had not turned his mind to certain issues and was insufficiently diligent in preparing and presenting the appeal ([304]-[305]. 68Again, Mr Asuzu's professional conduct had been the subject of criticism from the judicial officers hearing the appeal, the Full Court reasons including the statement that Mr Asuzu had "persisted in ignoring [the distinction between merits review and jurisdictional error] notwithstanding the guidance which the Bench sought to give to him on this fundamental issue". 69The Council submitted that Mr Asuzu should be required to undertake further education (a submission that the Tribunal accepted). Indeed, in its reasons of 30 May 2012, the Tribunal noted (at [9]) that, although initially requesting the Tribunal to take no further action, Mr Asuzu had, during oral submissions, agreed to undertake courses in administrative law and civil procedure and had agreed to undertake the modules of the principles of risk management education for which provision was subsequently made in the orders (the largest area of dispute before the Tribunal on that occasion on this issue being the question when Mr Asuzu should undergo further education and what form that education should take). 70The Council submitted that (because of its concern that Mr Asuzu refused to accept that there had been any deficiencies in his behaviour) he should not be issued with any practising certificate until he had successfully passed the bar readers' examination and completed the bar readers' course. The Tribunal did not accept that submission. It formed the view that "given the difficulties he experienced in the [migration appeal]" Mr Asuzu would benefit from some further courses of study in the area of administrative law but did not find it necessary that those courses be completed before he recommenced practice. The Tribunal also considered that it would be of assistance for Mr Asuzu to re-sit the bar exams with respect to practice and procedure (explaining that this was because he had not practised for a period of four years "and we think the public would be protected by requiring him to objectively demonstrate he has the necessary knowledge of those areas" ([21]). There is nothing on the face of those reasons to suggest that the condition was manifestly excessive or at variance with the findings of unsatisfactory conduct (which findings are not themselves explicitly challenged by Mr Asuzu in his grounds of appeal). I accept Mr McLure's submission that Ground 1 does not identify any error of law, fact or discretion that could have affected the Tribunal's decision. 71As to the restriction on acceptance of direct access briefs, the Tribunal expressed a concern (by no means unreasonable on the facts outlined in its principal judgment) that the conduct of Mr Asuzu had demonstrated an inability to be objective and to maintain a sufficient distance from his clients so as to be able to distil relevant from irrelevant matters. This was the basis of the decision to impose such a condition. There is nothing to suggest that this was manifestly excessive or at variance with the findings of unsatisfactory professional conduct nor was any error of fact, law or discretion identified that could be said to have affected that decision.

The Tribunal err[ed] in failing to take into account information of material significance or [gave] less weight to information of material significance 72Ground 2, which alleges that the Tribunal erred in failing to take into account or giving less weight information of material significance, does not specify the information that it is alleged should have been taken into account or should have been given more weight. It does not identify any error of law, fact or discretion that could have affected the Tribunal's decision or the orders made by the Tribunal.

The decision was plainly unjust and plainly wrong in that the Tribunal err[ed] in making findings it did 73Ground 3 is a broad assertion that the decision was "plainly unjust and plainly wrong" in the making of unidentified findings. Presumably, Mr Asuzu is referring only to the findings that were against him (there being a number of findings in his favour). In any event, this ground does not identify any error of law, fact or discretion that it is said rendered the decision plainly wrong or unjust or could have affected the result.

The Tribunal exercise of discretion was infected with bias and assisted the Respondent to achieve ulterior motives

The decision plainly institutionalize[d] 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." 74Grounds 4 and 5 raise issues of bias and oppression. Mr Ezekiel-Hart conceded that there was no allegation of bias directly put to the Tribunal (and it does not appear that there was any application made by or on behalf of Mr Asuzu during the Tribunal hearing to have any member of the Tribunal recused on account of apprehended or actual bias). 75Mr Ezekiel-Hart, in his oral submissions before me, submitted that bias was not a matter that could only arise during or at the beginning of a hearing but that it "could come up at any particular time". He did not point to any particular instance from which it was suggested that a reasonable objectively minded lay observer would have apprehended that the Tribunal (or any member of the Tribunal) would be unable to bring a fair and impartial mind to the decision it had to make, nor did he point to any evidence of actual bias. 76Rather, the bias submission was confirmed to be one that was put on the basis, in effect, that because the decision was said to be wrong it must have been infected by bias. Mr Ezekiel-Hart submitted that the evidence of bias was that the Tribunal had inclined to the submissions or the desire of the Council in requiring Mr Asuzu to re-sit in New South Wales exams that he had earlier passed in Queensland. In that regard, the Tribunal's reasons for requiring Mr Asuzu to undertake further educational courses were not based on a distinction between the courses in the respective states and it was expressly contemplated that Mr Asuzu might seek approval for courses other than those identified in the orders (thus there is no apparent jurisdictional bias to the orders). 77In his further written submissions, Mr Ezekiel-Hart submitted that the matter involved the commencement or continuation of proceedings (by the Council) for an ulterior motive (apparently paraphrasing the reference to "ulterior or extraneous purpose" in Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, Davies J, 5 March 1993)). It was submitted that the Council's ulterior motives had been achieved through the orders of the Tribunal and this was the bias identified by Mr Asuzu. (As I understand it, the ulterior motive or 'ulterior quest' is said to be a desire to exclude Mr Asuzu from this jurisdiction.) 78The Tribunal's reasons do not in my opinion disclose any reasonably arguable ground of bias or oppression (nor is the basis for such contention specified in the Notice of Appeal). The Tribunal appears to have considered carefully the matters raised by both parties and to have given Mr Asuzu the benefit of the doubt on a number of matters. There is no identified basis for the allegations that the Tribunal was aware of and had assisted the Council "to achieve ulterior motives" (namely, the alleged motive to exclude Mr Asuzu from this jurisdiction and from this country) nor have I been taken to any evidence to suggest that the Council had any such motivation. 79This allegation appears to be predicated on the characterisation of a submission made by the Council that Mr Asuzu should have the opportunity to apply for a variation of the orders if he chose to practise law otherwise than as a barrister in New South Wales (in that it would not then arguably be necessary for him to satisfy conditions attached to a practising certificate issued by the Council). There is no reasonably arguable basis to extrapolate from such a submission an ulterior motive of the kind asserted or knowledge thereof and an intention by the Tribunal to assist therein. 80Mr McLure explained that the relevant submission made for the Council was that Mr Asuzu should have an opportunity to apply for a variation of the orders should he wish to practise as a solicitor, since in those circumstances the requirement that Mr Asuzu undertake various courses before being permitted to practise as a barrister, such as the Bar exams and the Readers' course, might be seen to have been inappropriate. Mr Asuzu's account of the submission, as set out in the Notice of Appeal, places emphasis on there being a jurisdictional element thereto. It is by no means clear that this was the case but in any event, whatever the words in which the submission was made, there is no basis disclosed for the suggestion that the Tribunal understood the submission as an attempt to exclude Mr Asuzu from practice in this jurisdiction or imposed the orders with that intent. I am not satisfied that grounds 4 and 5 disclose any fairly or reasonably arguable basis for appeal from the Tribunal's decision. 81Mr McLure submits that if this ground is an allegation that the Tribunal erred in failing to find that the Council pursued the proceedings for a collateral purpose (acknowledging that such an allegation was raised before the Tribunal), such an allegation was not relevant to the issues in the proceedings. In any event, the Notice of Appeal does not properly raise any such allegation. 82There is no fairly or reasonably arguable case shown by Mr Asuzu that the Tribunal erred by failing to find that the Council was motivated to exclude him either from this jurisdiction or from the country.

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 83Ground 6 alleges an incorrect application of the law to the facts and the making of orders said to be manifestly unjust and inconsistent with the tenet of fairness. There is no specification of the basis of this ground other than insofar as it asserts that the orders were inconsistent with the fact that the Tribunal did not find "in aggregate" that the conduct warranted a finding of unsatisfactory professional conduct or professional misconduct. 84This is seemingly a reference to the finding that had been sought by the Council of professional misconduct and unsatisfactory professional conduct based on the aggregate of a number of separate grounds (the allegation being that in aggregate these involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence and hence amounted to professional misconduct within the meaning of s 497(1)(a) of the Legal Profession Act). The Tribunal did not uphold that 'aggregate' ground. It did, however, uphold findings on particular individual grounds. The fact that it did not find consistent professional misconduct is not inconsistent with the orders made in relation to those grounds that were held to amount to misconduct. No error of law, fact or discretion has been identified as to the making of the findings of individual acts of misconduct.

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 85Ground 7 contends that the Tribunal incorrectly applied the principle of procedural fairness. The basis on which that contention is made is the assertion that material that could have proved Mr Asuzu's case was withheld from him and from the Tribunal. The Tribunal considered (at [81] and [82]) the allegation by Mr Asuzu (apparently in response to the Council's complaint allegation that he had engaged in professional misconduct or unsatisfactory professional conduct because he had failed to provide the Bar Association with a statutory declaration in compliance with its request) that he had been denied access to the file held by the Council in relation to him. Mr Asuzu had asserted that this file would reveal "all correspondence when received". (As I understand it, Mr Asuzu had asserted that he had provided the Council with the information it had sought, though not in the form of a statutory declaration.) 86In his written submissions Mr Ezekiel-Hart refers to "[t]he failure until after the commencement of the trial, and without explanation, to discover documents the timely discovery of which would have considerably shortened, and very possibly avoided, the trial: National Australia Bank v Petit-Breuilh (No. 2) (unreported, [1990] VSC395, 18 October 1999)". This appears to be a complaint as to late delivery rather than withholding of documents and is a complaint of a nature that would appear to go to a costs dispute rather than a denial of procedural fairness as such. 87The Tribunal concluded that there was no evidence (other than Mr Asuzu's assertion in his affidavit) that would provide any basis for it to conclude that the Bar Association or the Council had withheld documents that might have assisted Mr Asuzu's case and stated that it did not find that the Association or Council had done so. There is no material before me to suggest that this finding is incorrect or that there is a reasonably arguable case that it is incorrect. 88Mr McLure submits, and I accept, that Ground 7 does not raise a reasonably arguable error of law, fact or discretion.

The orders made it impossible for the appellant to comply with if not in practice

The orders made it impossible for the appellant to return to practice by denying the appellant the benefit of supervised direct access work 89Grounds 8 and 9 go to the contention that the Tribunal's orders are impossible to comply with if Mr Asuzu is not in practice and that it is impossible for him to return to practice if he is denied the benefit of direct access work. 90Mr Ezekiel-Hart explained the basis of this submission, in effect, as being that Mr Asuzu cannot undertake the relevant courses until he has obtained a practising certificate; cannot obtain the latter without professional indemnity insurance; and cannot obtain that insurance while he is prohibited from accepting direct access briefs. In Mr Asuzu's affidavit of 9 November 2012 (at [36] - [44]), he deposes to the steps taken to test the 'workability' of the Tribunal's decision and orders. In summary, Mr Asuzu deposes at [43]: As I do not have direct access clients, I will not have insurer, because I cannot provide insurer to the Bar Council I will not be issued the practising certificate and because I am not issued with practising certificate I cannot commence any aspect of the orders including trainings required. 91Mr McLure notes that the stated purpose of the Legal Profession Act is to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of clients of law practices and the public generally (referring to s 3 of the Act) and submits that if the commercial consequence of the Tribunal's orders is that Mr Asuzu cannot secure professional indemnity insurance, that does not mean that the Tribunal made a relevant error. I agree. 92In any event, it seems to me that the conclusion asserted by Mr Asuzu suffers from a circularity of reasoning at least to the extent that there seems to me to be no reason to preclude Mr Asuzu from commencing the educational courses in advance of obtaining a practising certificate (as he asserts at [41] of his affidavit) - all that is required by the order is that they be undertaken and completed within 12 months of the issue of a practising certificate. A course of study commenced now but completed some time before the end of a 12 month period commencing from issue of the practising certificate would on a fair reading of the clause satisfy that requirement (and I did not understand Mr McLure to suggest otherwise). 93I accept that Grounds 8 and 9 do not raise a reasonably arguable error of law, fact or discretion.

The Tribunal misapprehend[ed] the fact and proceeded with that misapprehension to arrive at [the or a?] wrong conclusion in the circumstance that it was open to the Tribunal to caution or dismiss the allegations. 94Ground 10 asserts that the Tribunal misapprehended "the fact" and proceeded with that misapprehension to arrive at a wrong conclusion. Neither the fact that is said to have misapprehended nor the particular conclusion said to have been wrongly reached is identified. However, some insight into what is contended to have been the error might be gleaned from the fact that the ground refers to circumstances in which it was open to the Tribunal either to have cautioned Mr Asuzu or to have dismissed the allegations. 95Mr McLure notes if this is a complaint that the Tribunal should have dismissed the allegations of professional misconduct and unsatisfactory conduct then it goes to the reasons of 31 August 2011 and, to the extent that it is a complaint as to the orders imposed by the Tribunal then it amounts to a challenge to all of the Tribunal's orders of 30 May 2012. 96Ground 10 does not identify an error of law, fact or discretion that could have affected the findings made by the Tribunal. Nor does it identify any such error in either the decision not to impose a caution or not to dismiss all of the allegations as to Mr Asuzu's conduct or the actual orders imposed.

The Tribunal err[ed] in failing to take into account the Human Rights of the Appellant 97Ground 11 asserts a failure to take into account Mr Asuzu's human rights. At [119] of his affidavit, Mr Asuzu asserts that the Council: ...by discriminating against my training from QLD cause me disability loss of right to live peacefully and work in NSW contrary to my protected constitutional right as a subject of the Queen from Queensland living in NSW... citing Poplar Housing Association Ltd v Donoghue [2002] QB 48 at [75]; Kracke v Mental Health Review Board & Ors (General) [2009] VAT 646 (23 April 2009) at 81 and R v Big M Drug Mart Ltd (1985) 18 DLR (3d) 321 at 352. It seems that what is sought to be raised by this ground of appeal is the complaint that the effect of the orders made is to impose a limitation on a human right to live and work in New South Wales. Apart from the fact that there does not appear to be a reasonably arguable basis for a case that the effect of the orders is necessarily that which has been claimed, I accept Mr McLure's submission that the ground does not identify an error of law, fact or discretion that could have affected the result.

The Tribunal decision treats the appellant differently and encouraged discrimination against the appellant without rational distinction

The Tribunal orders discriminate against the trainings of the appellant

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. 98Grounds 12, 13 and 14 raise allegations of discrimination. Ground 12 alleges that the Tribunal treated Mr Asuzu "differently" and "without rational distinction". It is not clear how it is said that such discrimination is manifested by the decision. In his affidavit, at [120], Mr Asuzu cites Austin v Commonwealth (2003) 215 CLR 185; [2003] HCA 3 and emphasises the statement in that case to the effect that the essence of discrimination lies in the unequal treatment of equals or the equal treatment of those who are not equal, where the differential treatment and unequal outcome is not the product of a distinction which is appropriate and adapted to the attainment of a proper objective. This ground does not identify the basis on which it is said there was an error of law, fact or discretion that could have affected the ultimate result. 99Ground 13 appears to suggest that there has been discrimination against Mr Asuzu's "training" and is apparently referable to a belief by Mr Asuzu that the Tribunal did not consider his training in Queensland to be as good as that which he might receive in this jurisdiction. There was no such finding and nor is there any reasonable basis to suggest that this was a factor in the Tribunal's reasons. I accept that Ground 13 does not identify any error of law, fact or discretion that could have affected the result. 100Ground 14 is an assertion that the Tribunal's orders were contrary to Mr Asuzu's right to be protected against disability, disadvantage and discrimination and contrary to s 117 of the Constitution, s 9(1)(a) and (c) of the Racial Discrimination Act 1975 (Cth) and s 7(1)(a) and (c) of the Anti-Discrimination Act 1977 (NSW). This assertion is apparently put on the basis that other barristers are not subjected to the same restriction as Mr Asuzu. 101There is nothing in the Tribunal's reasons to support a conclusion that there is a reasonably arguable case that it discriminated against Mr Asuzu by reason of his race or any other characteristic. Nor is there any reasonably arguable basis for the suggestion that there was discrimination because (unidentified) other barristers are not subjected to the same restrictions as those imposed by the Tribunal. Mr Asuzu does not fall in the general category of barristers in the sense that he has been found to have engaged in professional misconduct and unsatisfactory professional conduct. Any complaint of differential treatment would need to take into account the treatment of other barristers against whom similar findings of professional misconduct and unsatisfactory conduct have been made. The Tribunal's reasons were carefully considered. I accept that Ground 14 does not raise a reasonably arguable error of law, fact or discretion that could have affected the result.

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.

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; 102Grounds 15 and 16 raise allegations as to whether the Council was exercising an unidentified discretionary power in bad faith and at the direction or behest of an (unidentified) other person or improperly for a purpose other than that for which the power was conferred (it being contended that the purpose was to cause exclusion of Mr Asuzu for life from practising his legal profession in New South Wales). 103The basis for these contentions is not apparent on the material before me. I accept that these grounds do not raise a reasonably arguable error of law, fact or discretion on the part of the Tribunal in determining the issues that were before the Tribunal.

The Tribunal decision and orders [were] inequitable in light of other decisions and facts. 104Ground 17 raises the contention that the Tribunal's orders were inequitable in light of other unidentified decisions and facts. This ground does not identify the basis on which it is contended that the decision and orders were inequitable nor any error of law, fact or discretion that could have affected the result.

The cost orders made against the appellant [were] 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. 105Ground 18 (which is also the subject of the third issue raised on the present Notice of Motion) goes to the costs orders made against Mr Asuzu and contends that those were manifestly unjust (in light of the outcome of the proceedings; the assertion that the Council refused to narrow the lengthy allegations it had made and only withdrew some allegations "after intense hearing that could not sustain those allegations"; and on the basis that time and cost could have been saved had the Council accepted Mr Asuzu's invitation "to discuss"). The Tribunal ordered Mr Asuzu to pay 50% of the Council's costs, including reserved costs. 106Mr McLure notes that s 566 of the Act provides that the Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs, unless the Tribunal is satisfied that exceptional circumstances exist. Ground 18 does not identify any error of law, fact or discretion made by the Tribunal in reaching its decision on costs and there is no contention by Mr Asuzu that exceptional circumstances existed that would have justified there being no order for costs. 107The Tribunal's reasons show that it considered the matters that Mr Asuzu says were relevant to the costs order were taken into account by the Tribunal when fixing the amount at 50% and there is no apparent error revealed in those reasons.

Injustice and damage to the system of justice will be done if the orders made on 27 August 2012 were to remain unchanged. 108Ground 19 is a broad pleading that injustice and damage will be done to the system of justice if the orders made on 27 August 2012 remain unchanged. This ground does not identify any error of law, fact or discretion that could have affected the result. Conclusion on issue (ii) 109For Mr Asuzu it was contended that the present application was an abuse of process and that the Council was not acting in "good faith and rationality", though the basis on which this allegation was made was not made clear in the submissions. What seems to be asserted is that, although on the present application the Court does not need to embark on an enquiry into the merits of the claim, it should consider the evidence for the limited purpose of being satisfied as to whether the Council (and/or the Tribunal) acted in good faith and rationally (there being a reference to what was said by Gilmour J in Kogolo v State of Western Australia (No 3) [2012] FCA 1332 at [10]). There is nothing on the material before me to suggest that there is any reasonably arguable basis for an allegation that the Council or the Tribunal acted otherwise than in good faith and rationally. 110The essence of Mr Asuzu's response to the present Notice of Motion (which he believes is itself frivolous and vexatious, aimed at 'institutionalising' oppression, misconceived and having only the intent to delay justice - see paras [15] and [18] of his affidavit) is his belief that the effect of the orders is to bar him for life from practising his profession in New South Wales (para [23]). He contends that the orders are unreasonable, manifestly excessive, and plainly unjust; and that they will cause disability and discrimination to the extent that he is banned from practising law in this jurisdiction (that being what his solicitor submits has been the "ulterior quest" of the Council). The appeal grounds therefore appear to be focussed on the practical effect of the orders on Mr Asuzu rather than whether there has been appellable error in the decision and orders of the Tribunal. 111In the submissions filed for Mr Asuzu, emphasis is placed on the fact that the Tribunal found that none of the complaints against him involved dishonesty or deception of any kind and that the proceedings did not arise out of any complaint made by a client of his. It is noted that the Tribunal stated that it did not doubt that Mr Asuzu was an intelligent man and a diligent worker who, during the course of his career as a barrister had undertaken a number of pro bono matters and did his best to assist his clients in some very difficult cases. Those matters, however, do not identify any reasonably arguable ground for the appeal against the complaints that were upheld by the Tribunal nor do they suggest that the Tribunal's discretion miscarried in a way that constitutes appellable error. 112Mr Ezekiel-Hart submits that the Notice of Appeal is not frivolous or vexatious, having regard to authorities as to the meaning of those terms (including those referred to in Robert John King v The Honourable Terence John Higgins AO and Others [2009] ACTSC153 (18 November 2009), 39-44). In effect, he submits that what is necessary is to show that the appeal has no prospects of success and is therefore an abuse of the process of the court. Reference was made to the dicta of Fitzgerald P in Re Cameron [1996] 2 Qd R 218 at 220, namely that: It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court's practices, procedures and rulings, persistent attempts to use the court' processes to circumvent its decisions or other abuse of process, the wastage of public resources, and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481; Jones v Skyring (1992) 66 ALJR 810; Jones v Cusack (1992) 66 ALJR 815; and Attorney-General (NSW) v West (NSW Common Law Division No 16208 of 1992, 19 November 1992, unreported, BC9201474). 113I accept that the power summarily to dispose of a proceeding should be exercised with the utmost caution and only in very clear cases (General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; see also Webster v Lampard (1993) 170 CLR 598 at 602-3 and Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937 at 942). In Dey v Victorian Railways Commissioner (1949) 78 CLR 62 at 91 it was said that it must be clear that there is no real question to be tried. There is recognised to be a high burden on a party seeking summary dismissal (as made clear in the reasons of McColl JA in Pachkovski, where the relevant principles set out in Spencer v Commonwealth [2010] HCA 28; (2010) 84 ALJR 612 were considered and applied). 114Mr Ezekiel-Hart refers to Financial Integrity Group Pty Ltd v Farmer and Anor [2009] ACTSC 143 (at [15]) for the proposition that the Court should look at the substance of what is claimed, or sought to be claimed, not merely at what might be an inadequate expression of the claim. (Mr Ezekiel-Hart also notes, although it is not apparent what relevance this has to the issues in the present case, that an important element of the common law is that causes of action seen at one time to be unsustainable may, over time and perhaps in changed circumstances, become untenable.) 115The test generally applied on applications for summary disposal of part of all of proceedings is that set out in General Steel at 128-9. In General Steel, Barwick CJ, in considering the circumstances in which a party ought be denied access to a final hearing on the claims made in the proceedings, noted the various descriptions given in the authorities of the test to be applied in identifying whether there is a real cause of action (or, as applied to the present case, whether there is a real defence to the claim): ... The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense". 116The General Steel test was recently endorsed and applied by the Court of Appeal in Shaw v State of New South Wales [2012] NSWCA 102 at [32], where Barrett JA (with whom Beazley, McColl, Macfarlan JJA and McClellan CJ at CL agreed) stated: The question is...whether the claims in question are so obviously untenable or groundless that there is "a high degree of certainty" that they will fail if allowed to go to trial; and whether this is one of the "clearest of cases" in which the court may accordingly intervene to prevent the claims being litigated. 117There is a suggestion that this test has been modified by the current legislative regime in relation to the conduct of litigation in this Court. Hammerschlag J, in Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455, expressed the view, in obiter, that a reasonable cause of action was one giving rise to real issues requiring resolution by the Court (such that proceedings need not be hopeless or bound to fail in order to be struck out as disclosing no reasonable cause of action), referring to the approach in Spencer. Nothing ultimately turns on whether that be the case, as I consider that the Dey/General Steel test is met in the present case having regard to the grounds of appeal as set out in the Notice of Appeal and the material before me. 118The emphasis placed by Mr Ezekiel-Hart was as to the effect of the orders being "manifestly excessive" on the basis that they operated as a "ban for life". I am not persuaded that there is any reasonable basis for the contention that these orders have the necessary or likely effect of banning Mr Asuzu from practising in this jurisdiction as a barrister for life. (Whether Mr Asuzu is able to obtain professional indemnity cover, as a practical matter, must ultimately be a function not of the orders that have been made but of the commercial decision of insurers whether to offer such cover.) The material before me does not show a reasonably arguable basis for a contention that the Tribunal erred in making the findings of misconduct that it did nor in the exercise of its discretion to impose the orders that it did consequent upon those findings. 119On the material before me, no error in the Tribunal's reasons or in the exercise of its discretion is apparent. The foundation of the appeal in the present case is not something that could be described as slender; it is in my view obviously untenable. The present case in my view falls within the category of case in which the Court, in the interests of case management and the overriding statutory purpose identified in the Civil Procedure Act 2005 (NSW), should intervene to prevent the claims being litigated. I am firmly of the view that the grounds of appeal set out in the Notice of Appeal do not disclose either a fairly arguable or reasonably arguable basis for the appeal. On the material before me the appeal is so manifestly groundless or untenable such that its maintenance is frivolous or vexatious within the meaning of Rule 13.4. (iii) Strike-out of Ground 18 120Again, this strictly does not arise, having regard to my findings in (i) (or alternatively (ii)) above. 121Section 729A(4)(c) of the Legal Profession Act provides that an appeal does not lie to the Supreme Court against a decision as to costs except by leave of the court. Mr McLure notes that no application for such leave has been made. He acknowledges that (if the remaining grounds are not summarily dismissed) then an issue arises as to whether leave is required (referring to the discussion in Dillon v Gosford City Council [2011] NSWCA 328 at [53] -[59]). 122In Dillon, Basten JA explained that the practice of this Court is not to require leave to appeal from a costs order where there is a challenge to substantive orders as well (in the context of the operation of s 57 of the Land and Environment Court Act 1979 (NSW)). His Honour noted at [53] that it was commonplace to find a requirement for leave in respect of appeals against orders as to costs and that in relation to appeals within the Supreme Court and from the District Court, the court had followed English authority to the effect that leave was not required if the appeal contained bona fide grounds relating to issues other than costs (and is thus not an appeal from "a judgment given or order made in proceedings in the Court ... as to costs only which are in the discretion of the Court", citing Wheeler v Somerfield [1966] 2 QB 94 at 106 (per Lord Denning MR) and 107 (per Harman LJ). 123His Honour there noted three points of distinction between s 101(2)(c) of the Supreme Court Act 1970 (NSW) (and s 127(2)(b) of the District Court Act 1973 (NSW)) on the one hand and s 57 of the Land and Environment Court Act on the other (those being: the absence of the word "only" in s 57(4); the omission in the Supreme Court Act of the words "which are in the discretion of the Court", on which his Honour said nothing turned since s 98 of the Civil Procedure Act 2005 (NSW) confers a broad discretion in relation to costs; and the fact that appeals under ss 101 and 127 are by way of rehearing, whereas an appeal under s 57 of the Land and Environment Court Act is limited to an order or decision of the court on a question of law). 124In the present case, s 729A of the Legal Profession Act 2004 (NSW) provides that an appeal against an order of decision of the Tribunal proceeds by way of rehearing and that an appeal does not lie to the Supreme Court against, inter alia, an interlocutory decision or a decision as to costs "except by leave of the Supreme Court". 125In Dillon, his Honour considered that where an appeal is extensive (by way of rehearing), as is the present appeal, there might be a stronger case in principle for restricting appeals as to costs (though that tendency would be countered by the requirement in the Supreme Court Act for leave where the appeal was from a judgment or order as to "costs only"). His Honour also referred to practical considerations that militated in favour of a leave requirement limited to appeals raising a challenge only to a costs order, noting that an appellant would usually not need to pursue an independent challenge to the costs order unless all other grounds of appeal had failed. (Here, it is submitted by Mr Ezekiel-Hart that it would be futile to strike out ground 18 on the basis that it would be open to this Court if the appeal were to succeed on the substantive grounds to set aside the whole of the decisions and orders of the Tribunal, including costs. It is also submitted that the application to strike out this ground is misconceived in light of the provisions of s 75A of the Supreme Court Act 1970 (NSW).) 126Having had regard to the practice of this Court not to require leave where there is a challenge to substantive orders as well as to a costs order, though noting that this might not be in conformity with the approach adopted in other jurisdictions, and noting that both the Supreme Court provision and that in the Land and Environment Court dealt with order under challenge and not with the scope or nature of the appeal, his Honour followed the prior interpretation of s 101(2)(c) (and s 127(2)(b)) and held that no leave was there required. 127Following Dillon in the present case this would suggest that, notwithstanding the absence of the word "only" in sub-s (4)(c), if the present appeal were to proceed on the substantive grounds, the ordinary practice would be not to require leave for ground 18 to be maintained (even though s 729A is expressed in mandatory terms). Subject to the qualification I make below, I would have adopted the spirit of that approach (recognising that costs orders inconsistent with those made by the Tribunal could in any event be made if the substantive appeal were to be successful) and would have granted leave to appeal from the costs order made by the Tribunal had I been satisfied (which I am not) that the substantive grounds of appeal raised a reasonably arguable basis for the appeal. The qualification is that I would have need to be satisfied (and I am not) as to the adequacy of ground 18 to identify any relevant error of law, fact or discretion by the Tribunal in the making of the costs orders. 128Therefore, had I not been persuaded summarily to dismiss the whole of the proceedings, while I would have been inclined not to strike out Ground 18 I would have required the Notice of Appeal to be amended in order properly to identify the basis on which it was said that the Tribunal had erred in making the costs order. Conclusion 129For the reasons set out above, I am of the view that the appeal is not competent (having been filed out of time); that leave was necessary for Mr Asuzu to file the Notice of Appeal out of time and that such an application should have been made in advance of the hearing of the competency objection; but that in any event that leave should not be granted for an extension of time in which to file the Notice of Appeal because the Notice of Appeal does not disclose any fairly arguable grounds of appeal. 130Had I been satisfied that Mr Asuzu's contention on the first issue was correct (and the Notice of Appeal had been filed in time), then (conscious as I am of the high level of satisfaction required to be reached before summarily dismissing proceedings in this fashion) I would have concluded that the grounds of appeal were nevertheless so untenable as to make the appeal manifestly groundless and hence to warrant the summary dismissal of the Notice of Appeal as one that is frivolous or vexatious. 131As to costs, notwithstanding that the competency objection was not filed within the required time, the Council would have succeeded on its application for summary dismissal on the second and alternative ground. Therefore, subject to any further brief oral submissions on this point I consider that it should have its costs of the proceedings. 132I dismiss these proceedings.

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