Asuzu v Council of the New South Wales Bar Association - [2012] NSWCA 406

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406
Hearing dates: 3 December 2012
Decision date: 10 December 2012
Before: Ward JA
Decision:
Proceedings summarily dismissal
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
PRACTICE AND PROCEDURE -challenge to competency of appeal - whether Notice of Appeal filed out of time pursuant to Uniform Civil Procedure Rules r 51.61(1)(c) - consideration of material date - reliance by appellant on doctrine of functus officio - effect of liberty to apply - objection to competency raised later than 28 days after Notice of Appeal filed - r 51.41 considered

PRACTICE AND PROCEDURE - application for summary dismissal on the basis that the appeal is frivolous or vexatious pursuant to Uniform Civil Procedure Rules r 13.4 - whether grounds disclose any error of law, fact or discretion that affected the result - application of principles in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Dey v Victorian Railways Commissioner (1949) 78 CLR 62 - whether grounds disclose a reasonably arguable basis for the appeal - whether appeal manifestly groundless
PRACTICE AND PROCEDURE - whether leave to appeal from costs order required if challenge to substantive orders had been able to be maintained
Legislation Cited: Administrative Decisions Tribunal Act 1997 (NSW)
Civil Procedure Act 2005 (NSW)
District Court Act 1973 (NSW)
Land and Environment Court Act 1979 (NSW)
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Abigroup Ltd v Abignano (1992) 39 FCR 74
Allesch v Maunz (2000) 203 CLR 172
Alvaro v Temple [2009] WASC 205
Austin v Commonwealth (2003) 215 CLR 185; [2003] HCA 3
Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23
Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937
Dey v Victorian Railways Commissioner (1949) 78 CLR 62
Dillon v Gosford City Council [2011] NSWCA 328
Director-General, Family and Community Services Re Felicity [2012] NSWCA 272
Durham v Durham [2011] NSWCA 62
Falamaki v Wollongong City Council [2001] NSWCA 55
Financial Integrity Group Pty Ltd v Farmer and Anor [2009] ACTSC 143
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38
Kogolo v State of Western Australia (No 3) [2012] FCA 1332
Kracke v Mental Health Review Board & Ors (General) [2009] VAT 646
Land and Environment Court Act 1979 (NSW)
Law Society of New South Wales v Rex [2003] NSWADT 36
Law Society of New South Wales v Rex [2003] NSWADT 148
Maritime Union of Australia v Geraldton Port Authority [2000] FCA 1342
Minister for Immigration v Bhardwaj [2002] 209 CLR 597
Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109
National Australia Bank v Petit-Breuilh (No. 2) (unreported, [1990] VSC395, 18 October 1999
Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group inc & ors [2007] NSWCA 195; (2007) 70 NSWLR 411
Phillips v Walsh (1990) 20 NSWLR 206
Poplar Housing Association Ltd v Donoghue [2002] QB 48
R v Big M Drug Mart Ltd (1985) 18 DLR (3d) 321
R v Green and Quinn [2011] NSWCCA 71
Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, Davies J, 5 March 1993)
Re Cameron [1996] 2 Qd R 218
Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2010] NZHC 176; [2011] 1 NZLR 336
Robert John King v The Honourable Terence John Higgins AO and Others [2009] ACTSC153
Shaw v State of New South Wales [2012] NSWCA 102
Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455
Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494
Spencer v Commonwealth of Australia (2010) 241 CLR 118
Tame v New South Wales (2002) 211 CLR 317
Tomko v Palasty (No 2) [2007] NSWCA 369
Wheeler v Somerfield [1966] 2 QB 94
Woollahra Municipal Council v Sved (Unreported, New South Wales Court of Appeal, Mason P and Sheller JA, 24 July 1998)
Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346
Category: Interlocutory applications
Parties: Ignatius Nwafor Asuzu (Appellant/Respondent on Notice of Motion)
Council of the New South Wales Bar Association (Respondent/Applicant on Notice of Motion)
Representation: Counsel
D A McLure (Respondent/Applicant)
Solicitors
E T Ezekiel-Hart (Solicitor) (Appellant/Respondent)
Niger Delta Lawyers & Maritime Services (Appellant/Respondent)
Hicksons (Respondent/Applicant)

File Number(s): CA 12/294978
Decision under appeal

Citation:

[2011] NSWADT 209
[2012] NSWADT 104
[2012] NSWADT 183

Before:

S Norton SC, R J Wright SC, C Bennett

File Number(s):

09/2020, 10/2005

Judgment

HER 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.

The 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

In 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.

The 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.

Directions 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).

The 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).

Liberty 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.

The 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.

On 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.

As 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).

The 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.

A 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.

The 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

The 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.

As 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.)

The 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.

Mr 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.

As 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).

As 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

On 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).

I consider each of those issues in turn.

(i) Competency of appeal

As 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.

Mr 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).

Rule 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.)

Mr 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.

The 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).

Mr 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.

I 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).

The 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.

Insofar 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)

The 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).

As 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.

On 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).

The 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.)

I 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)

The 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).

Therefore, 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?

Although 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.

It 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.

In 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.

Those 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.

An 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.)

Here, 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.

In 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.

At [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.

At [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.

There 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).

To 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.

As 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).

Finally, 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.

Rule 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.

The 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.

Here, 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.

On 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

This 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.

The 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).

In 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.

The 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).

It 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.

In 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.

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 [be?] treated unfairly."

Ground 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.

Insofar 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.

It 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.

The 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.

The 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.

The 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..".

The 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].

Again, 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".

The 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).

The 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.

As 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.

2. The Tribunal err[ed] in failing to take into account information of material significance or [gave] less weight to information of material significance

Ground 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.

3. The decision was plainly unjust and plainly wrong in that the Tribunal err[ed] in making findings it did

Ground 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.

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

5. 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."

Grounds 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).

Mr 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.

Rather, 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).

In 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.)

The 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.

This 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.

Mr 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.

Mr 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.

There 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.

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

Ground 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.

This 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.

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

Ground 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.)

In 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.

The 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.

Mr McLure submits, and I accept, that Ground 7 does not raise a reasonably arguable error of law, fact or discretion.

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

Grounds 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.

Mr 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.

Mr 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.

In 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).

I accept that Grounds 8 and 9 do not raise a reasonably arguable error of law, fact or discretion.

10. 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.

Ground 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.

Mr 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.

Ground 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.

11. The Tribunal err[ed] in failing to take into account the Human Rights of the Appellant

Ground 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.

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.

Grounds 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.

Ground 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.

Ground 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.

There 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.

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;

Grounds 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).

The 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.

17. The Tribunal decision and orders [were] inequitable in light of other decisions and facts.

Ground 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.

18. 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.

Ground 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.

Mr 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.

The 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.

19. Injustice and damage to the system of justice will be done if the orders made on 27 August 2012 were to remain unchanged.

Ground 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)

For 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.

The 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.

In 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.

Mr 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).

I 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).

Mr 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.)

The 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".

The 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.

There 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.

The 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.

On 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

Again, this strictly does not arise, having regard to my findings in (i) (or alternatively (ii)) above.

Section 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]).

In 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 andEnvironment 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).

His 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).

In 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".

In 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).)

Having 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.

Following 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.

Therefore, 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

For 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.

Had 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.

As 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.

I dismiss these proceedings.

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Decision last updated: 10 December 2012

Medium Neutral Citation:	Asuzu v Council of the New South Wales Bar Association [2012] NSWCA 406
Hearing dates:	3 December 2012
Decision date:	10 December 2012
Before:	Ward JA
Decision:	Proceedings summarily dismissal [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE -challenge to competency of appeal - whether Notice of Appeal filed out of time pursuant to Uniform Civil Procedure Rules r 51.61(1)(c) - consideration of material date - reliance by appellant on doctrine of functus officio - effect of liberty to apply - objection to competency raised later than 28 days after Notice of Appeal filed - r 51.41 considered PRACTICE AND PROCEDURE - application for summary dismissal on the basis that the appeal is frivolous or vexatious pursuant to Uniform Civil Procedure Rules r 13.4 - whether grounds disclose any error of law, fact or discretion that affected the result - application of principles in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 and Dey v Victorian Railways Commissioner (1949) 78 CLR 62 - whether grounds disclose a reasonably arguable basis for the appeal - whether appeal manifestly groundless PRACTICE AND PROCEDURE - whether leave to appeal from costs order required if challenge to substantive orders had been able to be maintained
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW) Civil Procedure Act 2005 (NSW) District Court Act 1973 (NSW) Land and Environment Court Act 1979 (NSW) Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Abigroup Ltd v Abignano (1992) 39 FCR 74 Allesch v Maunz (2000) 203 CLR 172 Alvaro v Temple [2009] WASC 205 Austin v Commonwealth (2003) 215 CLR 185; [2003] HCA 3 Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23 Brimson v Rocla Concrete Pipes Limited [1982] 2 NSWLR 937 Dey v Victorian Railways Commissioner (1949) 78 CLR 62 Dillon v Gosford City Council [2011] NSWCA 328 Director-General, Family and Community Services Re Felicity [2012] NSWCA 272 Durham v Durham [2011] NSWCA 62 Falamaki v Wollongong City Council [2001] NSWCA 55 Financial Integrity Group Pty Ltd v Farmer and Anor [2009] ACTSC 143 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 Kassem v Colonial Mutual General Insurance Co Ltd [2001] NSWCA 38 Kogolo v State of Western Australia (No 3) [2012] FCA 1332 Kracke v Mental Health Review Board & Ors (General) [2009] VAT 646 Land and Environment Court Act 1979 (NSW) Law Society of New South Wales v Rex [2003] NSWADT 36 Law Society of New South Wales v Rex [2003] NSWADT 148 Maritime Union of Australia v Geraldton Port Authority [2000] FCA 1342 Minister for Immigration v Bhardwaj [2002] 209 CLR 597 Munn for and on behalf of the Gunggari People v State of Queensland (2001) 115 FCR 109 National Australia Bank v Petit-Breuilh (No. 2) (unreported, [1990] VSC395, 18 October 1999 Newmont Yandal Operations Pty Ltd v J Aron Corporation and the Goldman Sachs Group inc & ors [2007] NSWCA 195; (2007) 70 NSWLR 411 Phillips v Walsh (1990) 20 NSWLR 206 Poplar Housing Association Ltd v Donoghue [2002] QB 48 R v Big M Drug Mart Ltd (1985) 18 DLR (3d) 321 R v Green and Quinn [2011] NSWCCA 71 Ragata Developments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court, Davies J, 5 March 1993) Re Cameron [1996] 2 Qd R 218 Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue [2010] NZHC 176; [2011] 1 NZLR 336 Robert John King v The Honourable Terence John Higgins AO and Others [2009] ACTSC153 Shaw v State of New South Wales [2012] NSWCA 102 Simmons v Protective Commissioner of NSW also known as NSW Trustee and Guardian [2012] NSWSC 455 Smith v State of Western Australia [2000] FCA 1249; (2000) 104 FCR 494 Spencer v Commonwealth of Australia (2010) 241 CLR 118 Tame v New South Wales (2002) 211 CLR 317 Tomko v Palasty (No 2) [2007] NSWCA 369 Wheeler v Somerfield [1966] 2 QB 94 Woollahra Municipal Council v Sved (Unreported, New South Wales Court of Appeal, Mason P and Sheller JA, 24 July 1998) Woodbud Pty Ltd v Warea Pty Ltd (1995) 125 FLR 346
Category:	Interlocutory applications
Parties:	Ignatius Nwafor Asuzu (Appellant/Respondent on Notice of Motion) Council of the New South Wales Bar Association (Respondent/Applicant on Notice of Motion)
Representation:	Counsel D A McLure (Respondent/Applicant) Solicitors E T Ezekiel-Hart (Solicitor) (Appellant/Respondent) Niger Delta Lawyers & Maritime Services (Appellant/Respondent) Hicksons (Respondent/Applicant)
File Number(s):	CA 12/294978
Decision under appeal	Citation: [2011] NSWADT 209 [2012] NSWADT 104 [2012] NSWADT 183 Before: S Norton SC, R J Wright SC, C Bennett File Number(s): 09/2020, 10/2005