Koyama v New Zealand Law Society

[2012] NZHC 1725

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2010-485-1493 [2012] NZHC 1725

IN THE MATTER OF     an appeal from the Human Rights Review

Tribunal

BETWEEN  TATSUHIKO KOYAMA Appellant

ANDNEW ZEALAND LAW SOCIETY Respondent

Hearing:         11 July 2012

Appearances: Appellant in person

P N Collins for respondent

Judgment:      17 July 2012

RESERVED JUDGMENT OF DOBSON J

[1]      This proceeding is an appeal against a decision of the Human Rights Review Tribunal (the Tribunal), in which the Tribunal upheld the respondent’s challenge that it did not have jurisdiction to entertain a proceeding before it.

[2]      In or about March 2006, the appellant (Mr Koyama) was refused a certificate of character by the then Canterbury District Law Society (CDLS).  Such a certificate was a necessary component of Mr Koyama’s application to be admitted as a barrister and  solicitor  of  the  High  Court  of  New Zealand.    He  subsequently  obtained  a certificate of character from the Otago District Law Society, which he relied on in

being admitted to the bar on 1 May 2007.

KOYAMA v NEW ZEALAND LAW SOCIETY HC WN CIV 2010-485-1493 [17 July 2012]

[3]      Despite receiving the requisite certificate, Mr Koyama lodged a complaint with the Human Rights Commission (HRC) in April 2007 about the conduct of the CDLS in dealing with his request to it.

[4]      At  least  in  part  because  the  CDLS  was  not  prepared  to  participate  in mediation over Mr Koyama’s complaint, the HRC decided on 19 July 2007 to take no further action on Mr Koyama’s complaint under the Human Rights Act 1993 (HRA).

[5]      In  April  2008,  Mr Koyama  also  pursued  a  complaint  with  the  Privacy Commissioner, arising out of the conduct of the CDLS in dealing with his request for a certificate of character.

[6]      Then on 3 September 2008, Mr Koyama emailed Mr Malcolm Ellis, then the executive director of the CDLS.   The subject line of the email was “Complaints dropped” and the text was as follows:

Dear Mr Ellis

Complaints at the Privacy Commission and Human Rights Commission have been dropped.

Best regards

Tatsuhiko Koyama …

[7]      On  20 June  2009,  Mr Koyama  commenced  proceedings  in  the  Tribunal against the present respondent, the New Zealand Law Society (NZLS), attributing to it the conduct of CDLS in considering Mr Koyama’s request for a certificate of character  between  November  2005  and  March  2006.    The  prior  pursuit  of  a complaint, such as that which Mr Koyama had initiated with the HRC, is a necessary pre-requisite to pursuit of a claim before the Tribunal.[1]     The statement of facts accompanying Mr Koyama’s claim to the Tribunal cited his April 2007 complaint with the HRC as the complaint he had made, and that it had not been resolved.

[1] Human Rights Act 1993, s 92B(1).

[8]      In a decision dated 19 July 2010, the Tribunal upheld an objection by NZLS that  the  Tribunal  did  not  have  jurisdiction  to  entertain  the  proceeding  which Mr Koyama sought to pursue in relation to his dealings with the former CDLS.

[9] To understand the Tribunal’s July 2010 decision now under appeal, it is necessary to analyse the effect of the Lawyers and Conveyancers Act 2006 (LC Act) coming in to force on the dealings between Mr Koyama, the CDLS and the Tribunal.

[10]     The provisions of the LC Act addressed the transition of responsibility for conduct of the former district law societies.  The LC Act provided that the district law societies were to continue in existence for a period of six months from the date of commencement of the LC Act on 1 August 2008.  Each district law society had to elect either to incorporate under the Incorporated Societies Act 1908, or to dissolve.[2]

[2] LC Act, s 373(1).

CDLS elected to be dissolved, as a result of which its assets and liabilities were

transferred to NZLS pursuant to s 373(2) of the LC Act.  Matters such as outstanding proceedings against a district law society in these circumstances were also provided for by s 378 of the LC Act.  It relevantly provided:

378     Consequential  provisions  in  relation  to  assets,  money,  and property

(1)      Where, under section 373, assets of a District Law Society become assets of an incorporated society or the New Zealand Law Society,—

…

(c)       all  proceedings  pending  by  or  against  the  District  Law Society may, as from the close of the period of 6 months beginning with the date of the commencement of section

373, be carried on, completed, or enforced by or against the incorporated society or the New Zealand Law Society, as the case may require.

[11]     The effect of that transitional provision is that NZLS would have to assume responsibility for any proceedings that were on foot against CDLS within that six month period, namely between 1 August 2008 and the end of January 2009.  NZLS also treated this provision as being a limit on the extent to which it was required by the LC Act to accept responsibility for the conduct of former district law societies.

[12]     The effect of NZLS’s approach to the transitional provision was that any person with a complaint or claim against CDLS that wanted to pursue it after the district law society’s dissolution would have to take sufficient steps before the end of January 2009 to ensure that the claim or complaint had status as “a proceeding” against the former district law society.  Thereafter, new complaints in respect of the conduct of the former district law society could not be pursued.

[13]     In disputing that there was any proceeding that could be advanced against NZLS  before  the  Tribunal  after  the  end  of  January 2009,  Mr Collins  relied  on Mr Koyama’s withdrawal of his complaint as conveyed in September 2008, and the absence of any proceedings initiated thereafter, in the relevant period up to the end of January 2009.

[14]     There had been somewhat different treatment of Mr Koyama’s proceedings under the HRA, and those under the Privacy Act 1993.   The latter complaint had inarguably been brought to an end by Mr Koyama’s communication on 3 September

2008, which the Privacy Commissioner had treated as a wish by Mr Koyama to withdraw his Privacy Act complaint.   No subsequent complaint had been pursued under  that Act.    It  followed  that  there  was  nothing  which  might  qualify  as  a proceeding against CDLS up to the end of January 2009, in respect of which NZLS would thereafter have to assume responsibility.  In addition, as of June 2009 when the claim under the Privacy Act was commenced by Mr Koyama before the Tribunal, there was no complaint that had been dealt with by the Privacy Commissioner in a manner about which Mr Koyama could complain.  The pre-requisite to jurisdiction of the Tribunal was therefore absent.

[15]     The Tribunal  treated  the circumstances  of  complaints  under the  HRA as somewhat more complicated.  It would have applied the reasoning used in respect of the Privacy Act claim to also dismiss the HRA claim if matters remained as they were   after   Mr Koyama   advised   that   the   complaints   had   been   dropped   on

3 September 2008.   The Tribunal treated that as sufficient to justify the existing claim under the HRA being struck out.  The Tribunal accepted the argument for the NZLS that proceedings could not be pursued against it in respect of criticisms of the

former CDLS, unless “proceedings” had been initiated against CDLS before the end

of January 2009.

[16]     However,  the Tribunal  was  not  prepared  to  dismiss  Mr Koyama’s  claims because of a factual uncertainty about the status of a further initiative that appeared to  have  been  taken  by  Mr Koyama  in  December  2008.     He  had  apparently communicated again with the HRC on 24 December 2008, which drew a response by way of letter from the HRC dated 26 February 2009.  The HRC’s response gave rise to the prospect that Mr Koyama’s communication of 24 December 2008 may have constituted a further complaint.

[17]     The HRC’s response had stated that the complaint had already been dealt with, and that there did not appear to be any value in attempting to resolve the matter by mediation again.   Nonetheless, the Tribunal struck out the existing HRA proceedings on terms that it could not decide what, if any, the legal consequences of the 24 December 2008 letter were.  That course left Mr Koyama free to file a fresh set of proceedings under the HRA that relied on whatever it was that he said in his letter to the HRC on 24 December 2008 as constituting a new “proceeding” for the purposes of s 378 of the LC Act.

[18]     Mr Koyama has not pursued that course, and has not disclosed the terms of his 24 December 2008 communication to the HRC.  As Mr Collins recalled it, it was only during oral argument on the present appeal that  Mr Koyama described the relevant communication as an email, whereas previously the Tribunal and NZLS had laboured under the impression that it had been a letter.

[19]     Before the Tribunal, and on argument of his appeal, Mr Koyama urged a different approach to the transitional provisions in the LC Act.  He argued that the NZLS was the successor in all respects to CDLS, and the effect of the statutory provisions providing for the NZLS to be the successor to assets and liabilities was that NZLS “stood in the shoes” of CDLS in all respects, including assuming responsibility or liability for claims arising out of the previous conduct of CDLS.

[20]     Mr Koyama invited analogy with the legal consequences of the process of amalgamation of two companies.  He cited the Court of Appeal decision in Carter Holt Harvey Ltd v McKernan for the proposition that the rights and liabilities of both amalgamating companies vest in the continuing entity so that that entity stood in the same position as each of the amalgamating companies in respect of all their rights

and obligations.[3]

[3] Carter Holt Harvey Ltd v McKernan [1998] 3 NZLR 403 at 415.

[21]     Mr Koyama also argued that the prospect of a complaint or claim against CDLS amounted to “a liability” and therefore came within the scope of what was transferred to NZLS under s 373(2) of the LC Act.  It would follow, on Mr Koyama’s analysis, that he could pursue complaints in respect of conduct or omissions of CDLS against the NZLS on an open-ended basis.

[22]     I am satisfied that the statutory provisions in the LC Act controlling transition from district law societies to the NZLS did not provide for the prospect of open- ended pursuit of complaints or claims against NZLS in respect of the conduct of former  district  law  societies,  after  they had  been  dissolved.    The  analogy with amalgamating companies is not an accurate one because the joinder of two commercial organisations that then continue in a unified business reflects different interests from the statutory re-organisation of professional institutions, with different structures and responsibilities before and after that re-organisation.

[23]     Nor is it appropriate to treat the prospect of a claim to the Tribunal (which would have to be preceded by a complaint to the HRC) as a “liability” of the CDLS at the time it was dissolved.   It clearly falls outside matters that CDLS would be obliged to recognise and quantify as “liabilities”.

[24]     The impracticality of permitting such ongoing attribution of responsibility for complaints  or  claims  is  illustrated  by  reflecting  on  the  impact  of  transposing Mr Koyama’s criticisms of steps taken on behalf of CDLS in 2005 and 2006 into criticisms against NZLS post-2009.   Under the Law Practitioners Act 1982, each district law society had the responsibility of dealing with requests for certificates of

character from those applying in that district to be admitted to the bar.   It seems

likely that different district law societies would work through the procedures for dealing with such applications in their own way, and indeed the existing membership of various district law societies may have taken varying degrees of interest in responding when the names of applicants were publicly notified.  It is conceivable that NZLS would not deal with Mr Koyama’s application in the same way that CDLS did.   Certainly, it appears a different approach was brought to bear by the Otago  District  Law  Society  when  Mr Koyama  applied  to  that  body  because  it provided the certificate of character he sought, enabling him to be admitted to the bar.

[25]     These circumstances tend to support the approach that treats the transitional provisions as providing for a “sunset period” in which complaints against a former district law society had to be advanced to a stage of constituting proceedings, or the right to pursue complaints against the former body would lapse.

[26]     At one point in his oral submissions, Mr Koyama sought to disavow the impact of his 3 September 2008 communication to the CDLS in which he stated that the complaints had been dropped.   He suggested that before sending that communication, he had initiated a substantial number of complaints, and that the email could have related to others of the prior complaints.  There is no support for that suggestion in the evidence.

[27]     It is  clear that what  Mr Koyama now wishes to pursue is the complaint against CDLS for allegedly dealing with his request for a certificate of character in a manner that breached the HRA by discriminating against him.  That much is clear from the facts cited in his claim to the Tribunal in June 2009 and he did not refer to any point in the evidence that identified other complaints to which his 3 September

2008 email may have been referring.  In the circumstances pertaining at the time, the very clear inference is that the complaints being “dropped” included the same complaint he now wishes to pursue further.

[28]     Accordingly, the effect of the dealings between Mr Koyama, the CDLS and the  HRC  is  that  no  outstanding  complaint  existed  against  CDLS  at  the  end  of

January 2008, which could be considered a pending proceeding under s 378 of the

LC Act.

Challenges to the Tribunal’s procedure

[29]     In the course of dealing with Mr Koyama’s proceeding before it, the Tribunal had, in February 2010, ruled against an objection Mr Koyama had advanced to the then chair of the Tribunal, Mr Royden Hindle, participating in the determination of his appeal.  Mr Hindle had acknowledged having been a member of the NZLS for more than 30 years, and that he had been a faculty participant on a number of occasions  in  the  litigation  skills  programme  conducted  annually  by  NZLS. Mr Koyama had complained that Mr Hindle’s membership of, and involvement with, NZLS gave rise to at least an appearance of bias that should disqualify him from sitting on a proceeding that criticised conduct for which NZLS was treated as being responsible.

[30]     The Tribunal made both its February 2010 decision that the chair of the Tribunal would participate in the determination of Mr Koyama’s proceeding, and the determination of the NZLS challenge to the jurisdiction of the Tribunal to hear the proceeding in July 2010, on the basis of written materials submitted by the parties and without convening a hearing.

[31]     Mr Koyama filed a notice of appeal against the July 2010 decision in this Court on 12 August 2010.  His notice ran to some 21 typed pages, and prominent within the criticisms alleged against the Tribunal were the complaints about the procedure    it    had    adopted,    namely    Mr Hindle’s    decision    to    participate notwithstanding the prospect of apparent bias, and the Tribunal’s decision to determine the issue of whether it had jurisdiction, without convening a hearing.

[32]     In a minute confirming an adjournment of a case management conference for the  appeal  at  Mr Koyama’s  request,  on  24 August  2010  Gendall J  recorded  that

Mr Koyama would be required to advise of the statutory basis upon which he sought to advance his appeal against the Tribunal and the NZLS, and observed:[4]

It may be that proceedings are in reality applications for judicial review.  If so, directions as to affidavit evidence and timetabling would be dealt with at the case management conference.

[4] Koyama v New Zealand Law Society HC Wellington CIV 2010-485-1493, Minute of 24 August

2010 at [4].

[33]     On 27 September 2010, Wild J issued a minute and orders following a case management conference for the appeal that he had convened at a hearing that day. The minute records that the Court heard at some length from Mr Koyama, together with counsel for both NZLS and the Tribunal.  The outcome was that Mr Koyama elected to pursue his appeal against the July 2010 decision of Tribunal, and:

Does  not  wish  to  have  that  Notice  of  Appeal  treated,  instead,  as  an application  for  judicial  review  of  the  18 February  2010  decision  of  the Tribunal, as offered by Gendall J in his minute of 24 August.

[34]     The minute also recorded that it had been made clear to Mr Koyama that he needed to file an amended notice of appeal which was to be succinct and to state his grounds of appeal only against the July 2010 decision of the Tribunal.   He was directed that the appeal was not to attack or challenge directly or indirectly the February 2010 decision of the Tribunal against which Mr Koyama had no right of appeal.

[35]     The  minute  recorded  that,  in  light  of  these  matters,  it  would  not  be appropriate for the Tribunal to be further represented in relation to the appeal.  It is implicit that, had Mr Koyama accepted the invitation to transform his proceedings into a judicial review, then the stance adopted on behalf of the Tribunal may well have been different.

[36]     Notwithstanding that background, and additional warnings to Mr Koyama of the distinctions between matters able to be pursued on appeal and those that are the province of an application for judicial review, Mr Koyama sought to argue his appeal primarily on the alleged deficiencies of process by the Tribunal, by virtue of the

participation of the chairman against whom the appearance of the Tribunal’s bias had

been raised, and alleged error in not conducting a hearing before determining the NZLS challenge to the Tribunal having jurisdiction to entertain the proceedings before it.

[37]     Mr Collins for NZLS declined to engage on the judicial review  issue of apparent bias.  He pointed out that the case management conference before Wild J had raised that prospect in the presence of counsel for the Tribunal, it had been dismissed  and  ought  not  now to  be resurrected  without  the Tribunal  having  an opportunity to consider whether it would respond on its own behalf.  Further, that in light of the orders resulting from the case management conference, he did not have instructions from NZLS to present argument on the issue.   I am satisfied that the issue should not be considered in the present appeal.

[38]     It is arguable that the same approach ought to apply to the other process criticism, namely the decision by the Tribunal to determine the challenge to its jurisdiction, without convening a hearing.  One form of the arguments Mr Koyama could advance on this criticism is that because (on his analysis) the Tribunal did not have any statutory power to make a determination in respect of proceedings before it without convening a hearing, its purported decision that it did not have jurisdiction to entertain the proceedings before it was itself made without jurisdiction.  Although such arguments are classically the subject of judicial review applications because they raise the lawfulness of the process adopted by a decision-maker, it might be seen as having a bearing on the substantive correctness of the decision under challenge, bringing it within the permissible scope of matters argued on an appeal.

[39]     Mr Collins did respond to Mr Koyama’s arguments under this heading, albeit in a relatively confined way.  In those circumstances, I will record my views on the point.

[40]     Mr Koyama  analysed  numerous  provisions  in  the  HRA  as  obliging  the Tribunal to conduct a hearing before making any decisions.  He referred first to s 94 of the HRA which spells out the functions of the Tribunal as including the consideration and adjudication of proceedings brought pursuant to the appropriate

sections, including s 92B.  Further, he cited s 108(1) of the HRA which specifies as follows:

108     Persons entitled to be heard

(1)       Any person who is a party to the proceedings before the Tribunal, and any person who satisfies the Tribunal that he or she has an interest in the proceedings greater than the public generally, may appear and may call evidence on any matter that should be taken into account in determining the proceedings.

…

[41]     In  addition,  Mr Koyama  relied  on  regs 18  and  19  of  the  Human  Rights

Review Tribunal Regulations 2002, which provide as follows:

18       Time and place of hearing

(1)       The Tribunal or the Chairperson must fix a time and place for the hearing of the proceedings.

…

19       Hearing

(1)       At the hearing, the persons who have a right to appear, or who are allowed to appear, before the Tribunal must, subject to subclause (4), each be given an opportunity to be heard.

(2)       The persons who have a right to appear, or  who are allowed to appear, before the Tribunal may call evidence and may cross- examine any witness.

…

[42]     Mr Koyama also invoked s 27 of the New Zealand Bill of Rights Act 1990 which enshrines the right of every person to the observance of the principles of natural justice by any Tribunal, and more generally the administrative law principle protecting the rights to notice of a matter to be considered, entitlement to contradict, to   have   representation,   to   an   impartial   determination   and,   in   appropriate

circumstances, to an oral hearing.[5]     Mr Koyama argued that, cumulatively, these

provisions positively required that any decision only be made by the Tribunal after convening an oral hearing.  He also pointed to the absence of a specific authorisation

for the Tribunal to make decisions without a hearing.

[5] Mr Koyama  cited  Andrew  Butler  and  Petra  Butler  The  New  Zealand  Bill  of  Rights  Act: A Commentary (LexisNexis, Wellington, 2005) at 948.

[43]     In defending the procedure that had been adopted, Mr Collins cited s 107(2)

of the HRA. That provides:

107     Sittings to be held in public except in special circumstances

…

(2)       The Tribunal may deliberate in private  as to its decision in any matter or as to any question arising in the course of any proceedings before it.

[44]     Mr Collins also cited from reg 16 of the Human Rights Review Tribunal Regulations 2002.  That provision appears in the section of the regulations headed “Before any hearing” and which provisions appear before the following section of the regulations headed “Hearing and decision” that includes regs 18 and 19 cited by Mr Koyama.  Regulation 16(1)(a) provides:

16       Conduct of proceedings: power to give directions, etc

(1)       Subject to decisions of the Tribunal, the Chairperson may give any directions and do any other things—

(a)       that  are  necessary or  desirable for the proceedings to be heard, determined, or otherwise dealt with, as fairly, efficiently, simply, and speedily as is consistent with justice; and

…

[45]     What had been put in issue by NZLS as respondent to the proceedings before the Tribunal was whether it had jurisdiction to deal with Mr Koyama’s proceedings. It was an issue arising in the course of, or in relation to, the proceedings and was appropriately  considered  separately  from,  and  before,  any  consideration  of  the merits.   Mr Collins argued that it would be most surprising if the Tribunal was prevented from doing so, so that it would have to deal with the substance of all proceedings before it, before it could resolve the matter of whether it had jurisdiction to hear the proceedings at all.

[46]     As to the factual circumstances in which the matter was dealt with as it was, the procedure for addressing the issue of jurisdiction was the subject of a telephone conference convened by the chairperson of the Tribunal with Messrs Koyama and Collins on 31 March 2010.  The minute of that telephone conference records that the

jurisdictional  issues  would  be  dealt  with  “on  the  papers”  without  a  viva  voce hearing, and that that course had been agreed by the parties in the course of the telephone conference.  The chairperson’s minute acknowledged that if factual issues emerged as submissions were being prepared, the result of which was that a viva voce hearing might be thought desirable, then “the parties should not hesitate to let me know”.  The chairperson was committed to reconsidering the need for a hearing in that event.

[47]    From NZLS’s perspective, nothing occurred to cause the chairperson to reconsider the order that had been made to deal with the jurisdictional issue on the papers.

[48]     Mr Koyama disputed that he had in fact agreed to the course recorded in the minute of the telephone conference.  There is no evidence of any request to conduct a  hearing  on  the  jurisdictional  issue,  or  any  protests  by  Mr Koyama  that  the chairperson had misunderstood his position as agreeing to the course directed as a consequence of the telephone conference.  The nearest Mr Koyama could come to urging that a hearing be conducted was to refer to the final conclusion in the written submissions he filed against the NZLS protest to jurisdiction, which was expressed:

For all these reasons, the Tribunal has the jurisdiction to hear the cases in relation to [Mr Koyama’s proceedings].

[49]     Mr Koyama treated the reference in that statement to “hear the cases …” as implying that the Tribunal ought to convene an oral hearing before determining the issue addressed by Mr Koyama’s submissions, namely whether it had jurisdiction to hear the substantive claims.  That is not a tenable interpretation, and is certainly not any sufficient basis on which to assert that Mr Koyama objected to the issue of jurisdiction  being  determined  on  the  papers.    Mr Koyama  complied  with  that process, and has only complained about it after the protest to jurisdiction was upheld.

[50]     I am satisfied that the Tribunal did have power to set its own procedure in relation to questions arising in the course of proceedings before it, and that that power extended to dealing with issues such as a challenge to its jurisdiction on the

papers.  I am also satisfied that it was appropriate for the Tribunal to deal with the particular issue in this case in that way.

[51]     I am  accordingly satisfied  that  the appeal  must  be dismissed.    NZLS  is entitled to costs.

Dobson J

Solicitors:

Glaister Ennor, Auckland for respondent

Copy to:

Tatsuhiko Koyama, Dunedin ([email protected])