Harriman v Dyhrberg HC Auckland CIV 2007-404-002471
[2008] NZHC 2346
•27 May 2008
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2007-404-002471
IN THE MATTER OF the Law Practitioners Act 1982
ANDIN THE MATTER OF an Application for Review of Decision of the Registrar pursuant to Rule 276(3) of the High Court Rules
BETWEEN ALLEN LOUIS HARRIMAN Applicant
ANDMARIE JEANETTE DYHRBERG Respondent
Hearing: 23 May 2008
Appearances: AL Harriman in Person
No appearance for Respondent
Judgment: 27 May 2008 at 4:00 pm
JUDGMENT OF ASHER J
This judgment was delivered by me on 27 May 2008 at 4:00 pm pursuant to Rule 540(4) of the High Court Rules
………………………………………..
Registrar/Deputy Registrar
………………………………………..
Date
Solicitors:
Kennedys, PO Box 3158 Auckland 1140 (G Wadsworth)
Copy:
AL Harriman, PO Box 50-124 Albany, AucklandMJ Dhyrberg, Barrister, PO Box 47867 Ponsonby, Auckland
HARRIMAN V DYHRBERG HC AK CIV 2007-404-002471 27 May 2008
[1] Mr Harriman applies under s 149 of the Law Practitioners Act 1982 to review a decision of the Registrar dated 26 June 2007. In that decision the Registrar refused an application by Mr Harriman to appeal out of time against a decision by the Auckland District Law Society relating to the revision of a bill of costs. What was in issue was bills from the practitioner to Mr Harriman totalling $12,625.
[2] The costs revision decision by the Council of the Auckland District Law
Society was made under Part 8 of the Law Practitioners Act and delivered on
13 February 2007. A right of appeal against such a decision lies to the Registrar of the High Court under s 148(2) of the Law Practitioners Act. An appeal must be commenced by notice in writing within 14 days of the date of the decision appealed against. At the time of the costs revision decision, Mr Harriman was in prison. However, he accepts that he received a copy of the decision. The Registrar did not receive a notice of appeal against the costs revision decision within the 14 days that ran after 13 February 2007.
[3] On 9 April 2007 Mr Harriman wrote to the Registrar advising that he had sent a letter on 17 February 2007 seeking to appeal the costs revision decision. He observed that he had not received a response to his letter. The Registrar replied on
16 April 2007, advising that he had no record of receiving such a letter, and proceeded to outline steps to be taken in respect of an appeal. Mr Harriman wrote again on 26 April 2007, indicating he wished to proceed with the appeal. This letter set out in some detail the grounds on which Mr Harriman was appealing the costs revision decision. The Registrar replied on 7 May 2007. He observed that the letter of 26 April 2007 was out of time as a notice of appeal. He treated the letter as a request to appeal out of time under s 148(2) and asked whether the respondent practitioner opposed the request for further time. He stated:
In the event that the respondent does oppose the allowing of further time for lodging the appeal, then the intended appellant will have until Friday 18 May
2007 to provide any further written submission they may wish to make. The respondent will then have until Thursday 24 May 2007 to respond. Any
submission provided will also need to be provided to the other party to the intended appeal.
[4] In a letter of 24 May 2007 the practitioner indicated that she did not consent to the request for further time for the lodging of an appeal but made no further submission.
[5] On 26 June 2007 the Registrar issued a decision in which he declined Mr
Harriman’s application for leave to appeal out of time. [6] Mr Harriman now seeks to review that decision. Jurisdiction of this Court to review the Registrar’s decision
[7] Under s 149(1) parties are given the right to apply to the High Court for the review of “any decision of a Registrar under s 148 of the Act”. The Registrar is given specific power under s 148(2) to allow further time for the lodging of an appeal against a costs revision decision. Mr Harriman is therefore entitled to seek review before the High Court of the Registrar’s refusal of leave to appeal out of time.
The approach to appeal and review
[8] The Law Practitioners Act does not stipulate the approach to be taken by a Registrar on an appeal against a costs revision decision. Section 148(4) states only that the Registrar, after giving each party a reasonable opportunity to be heard, can make such order as is thought to be “fair and reasonable”. The practice has generally been that while considering and giving weight to the costs revision decision, the Registrar conducts the hearing de novo, complete with oral evidence and submissions. The de novo hearing approach was approved in a line of cases culminating in the reported decision of Gallagher v Dobson [1993] 3 NZLR 611 at
617-618.
[9] That case also sets out the approach to the review in this Court of a Registrar’s decision. Following the decision of Tompkins J in Bruns v Buddle Findlay (No 2) HC AK M1048/90 1 October 1991, Barker J held that the Court will interfere with a Registrar’s decision if it is satisfied that the Registrar acted on a
wrong principle, took into account irrelevant matters, declined to have regard to relevant matters, failed to observe natural justice, or demonstrated bias: at 617-618.
[10] This approach was approved by the Court of Appeal in Kirk v Vallant Hooker
& Partners [2000] 2 NZLR 156 at 157. The Court noted that the High Court should be cautious in interfering with the views reached by a Registrar, particularly where the Registrar has been assisted by a practitioner in the course of the appeal exercise. However, the High Court can and should intervene when the decision is plainly wrong: Harder v Sharma HC AK CIV 2007-404-1162 18 February 2008, Asher J.
Grounds of review
[11] Mr Harriman sets out the following as his grounds of review against the decision of the Registrar. To quote from his application:
(i)There has been a misapplication of the process and procedures stipulated in the Registrar’s directions to the Application by Practitioner and Registrar.
(ii) There has been a miscarriage of justice because the Applicant has not had the opportunity to present his matters before the Registrar and the Court.
(iii) The Applicant has not been accorded his rights as provided in s 27(1) New Zealand Bill of Rights [Act 1990] and cannot thereby exercise said rights as per s 27(2) of the above Act, hence, apply s 148 of the Law Practitioners Act.
As Mr Harriman developed these grounds in his submissions before me, the key claim to emerge was an allegation of procedural unfairness in that the Registrar did not give him an opportunity to make a further submission before reaching his decision.
[12] Mr Harriman also alleges errors of fact on the part of the convenor of the costs committee of the Auckland District Law Society and sets out complaints about the costs revision decision. To quote these:
(iv) The decision of the Convenor of the Costs Committee of the Auckland District Law Society [should] be reviewed because of the errors in matters of fact in the face of the documentary evidence.
(v) That such errors are of such significant that the decision is vitiated and is now justiciable as per the Law Practitoners Act 1982 and the New Zealand Bill of Rights Act ss 3(b) and 27(2).
(vi) The Auckland District Law Society is an incorporated body pursuant to the Law Practitioners Act 1982. It is not a club, its purpose goes beyond social events for persons with a common interest – it performs a public function. It is bound by law and procedure to efficiently and fairly discharge the Society’s functions under Statute. That function has not been achieved.
Procedural unfairness
[13] Mr Harriman submits that his inability to file further submissions amounted to procedural unfairness.
[14] In his letter of 7 May 2007, the Registrar indeed indicated that if the practitioner opposed the allowing of further time, Mr Harriman would have an opportunity to file a further written submission. The practitioner did not formally oppose the application or file any submissions in opposition, although she indicated that she did not consent to it.
[15] The Registrar did not seek further submissions from Mr Harriman in support of his application. The Registrar then proceeded to determine the application. He noted in his decision dated 26 June 2007 that Mr Harriman had already set out in detail his reasons why he should be allowed further time in his letter of 26 May
2007.
[16] The Registrar’s letter of 7 May 2007 would have given Mr Harriman a legitimate expectation that he would be able to file a further submission in the event that the practitioner did not agree to his application. He was not given that chance. I consider therefore that his argument that there has been a procedural error in the way in which his application proceeded was correct.
[17] The power of this Court on review under s 149 of the Law Practitioners Act includes a power to confirm, vary or reverse the original decision where to do so would be “fair and reasonable”. Section 149 does not include a specific power to remit the decision back to the Registrar for reconsideration. In order to determine
whether it would be “fair and reasonable” to grant a remedy, and, if so, whether confirmation, variation or reversal is the appropriate remedy, it is necessary to go some way to assessing the merits of Mr Harriman’s appeal. As I have now had in the course of the hearing the benefit of full submissions from Mr Harriman, that is an appropriate course for me to take. I now therefore consider whether the Registrar should have allowed the application for leave to appeal out of time.
The merits of the application to appeal out of time
Reason for not filing in time
[18] Mr Harriman has not provided a satisfactory explanation for his failure to appeal within the time prescribed. He said that he sent a letter to the Registrar on 17
February 2007 and in oral submissions explained that the letter had possibly been taken by prison authorities. I am left entirely dissatisfied with this explanation. Other letters that Mr Harriman sent throughout 2007 were received by the Registrar, including the letter of 9 April 2007. I conclude that the alleged letter of
17 February 2007 was not in fact sent. I conclude that Mr Harriman’s failure to appeal in time is unexplained.
[19] The reason for time limits for filing of appeals is to ensure a measure of finality in the resolution of disputes and Court processes. The practitioner involved was entitled to some finality. I bear in mind that the delay was not very long, but I consider that the failure to provide any adequate explanation for the delay in filing in time is a factor against the granting of the application.
The merits of the appeal
[20] It is clear that before granting leave to appeal out of time the appellate body must be satisfied that the intended appeal is arguable and not hopeless: Prudential Building and Investment Society of Canterbury (In Liquidation) v Hankins (1991) 5
PRNZ 160 at 162; Ngati Tahinga and Ngati Karewa Trust v Attorney General
CA73/02 27 June 2002. After considering the grounds put forward by Mr Harriman
and the costs reviser’s file, the Registrar inclined to the view that the appeal was meritless.
[21] In his original letter of 26 April 2007 Mr Harriman set out the grounds on which he was challenging the costs revision decision. They are slightly different to the grounds set out in his application to review the Registrar’s decision which I have previously quoted at [12]. He stated:
1.The Convenor erred in matters of fact in the face of documentary evidential material in drawing the conclusions that he deduced and stated in his decision in the pursuance of the issue of certificate under Section 154 of the Law Practitioners Act 1982.
2.That such factual errors are of such significance that the decision is vitiated and should be thereby determined by judicial review. The Appellant draws upon the provisions of s 148 of the Law Practitioners Act 1982 and Sections 3(b) and 27(2) of the New Zealand Bill of Rights Act 1990 in review of the challenged decision.
[22] Mr Harriman reiterated these grounds of appeal in the hearing before me. I asked him to elaborate in any way he might wish on the basis for his appeal. I was anxious to know what “documentary evidential material” (by which he made it clear he meant the evidence available to the Registrar) was contrary to the matters of fact found by the costs reviser and, through him, the convenor of the costs committee of the Auckland District Law Society.
[23] Mr Harriman did not identify any such conflicting material. He did, however, make a number of very extreme criticisms of the conduct of the practitioner, alleging amongst other things that the practitioner was guilty of fraud, gross overcharging, and “cutting a deal” with the police. However, he provided no satisfactory evidence to support any of these allegations. I note that the Registrar reached the same decision.
[24] Mr Harriman also alleged that the costs reviser had overlooked a number of matters raised in submissions. There had been a conference between him, the costs reviser and the practitioner. For instance, he alleged that the costs reviser had failed to take into account Mr Harriman’s claim that his counsel used lawyers in Court on
his behalf who were incompetent and on occasion drunk. However, that matter was in fact specifically referred to by the costs reviser.
[25] Mr Harriman also complained about the lack of a transcript of the conference between him, the costs reviser and the practitioner. Mr Harriman was in prison at the time of the conference and was communicating by telephone. It cannot be expected that discussions between the costs reviser and the parties to a costs revision should be transcribed. The process of enquiry by a costs reviser is essentially informal. There is nothing to indicate that there was unfairness arising from the lack of a transcript. Transcription is not prescribed, and would add great cost to the process. It is not necessary.
[26] Having given Mr Harriman a full opportunity to develop his basis for the appeal, it is clear that there is no basis for his criticism of the costs revision decision. I do not consider that his appeal has any possibility of success.
Conclusion
[27] I have found that there was at least arguable unfairness in the procedure adopted by the Registrar in not giving Mr Harriman an opportunity to file further submissions.
[28] I have, however, effectively heard the application for leave afresh and considered the application for leave to appeal on its merits. I conclude that Mr Harriman’s delay is unexplained and that this weighs against granting leave to appeal out of time. Of more significance, however, after hearing Mr Harriman’s detailed submissions I have found that there was no arguable ground available to Mr Harriman to challenge the cost decision. To grant leave to appeal out of time would mean further time wasted on a hopeless appeal. For these reasons I decline to reverse or vary the Registrar’s decision.
Result
[29] The application for review is dismissed. The decision of the Registrar declining leave to appeal out of time is confirmed.
…………………………..
Asher J
0
0
1