Young v National Standards Committee - [2018] NZHC 3047

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-001150

CIV-2018-404-001141 [2018] NZHC 3047

UNDER the Lawyers and Conveyancers Act 2006

IN THE MATTER OF

an appeal against a decision of the Lawyers and Conveyancers Disciplinary Tribunal

BETWEEN

JINYUE YOUNG

Appellant

AND

NATIONAL STANDARDS COMMITTEE

Respondent

Hearing: 6 September 2018

Appearances:

M H Donovan for Appellant C P Paterson for Respondent

Judgment:

23 November 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 23 November 2018 at 3.45 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

YOUNG v NATIONAL STANDARDS COMMITTEE [2018] NZHC 3047 [23 November 2018]

Introduction

[1] In a decision dated 22 December 2017 (the “liability” decision), the Lawyers and Conveyancers Disciplinary Tribunal found Mr Young guilty of three charges of misconduct pursuant to s 7(1)(a)(ii) of the Lawyers and Conveyancers Act 2006 (the Act) and one of negligence under s 241(c).1 The charges arose from Mr Young’s involvement in litigation arising from a sale and purchase agreement in which a company controlled by Mr Young’s wife was the vendor. In its subsequent penalty decision dated 15 May 2018, the Tribunal suspended Mr Young from practice for 15 months.

[2] Mr Young wishes to appeal both decisions. He filed his appeal against penalty within time but his appeal against the liability decision was filed four months out of time. Mr Young has applied for special leave under r 20.4 of the High Court Rules to extend the time for filing that appeal.

[3] Granting an extension of time is an indulgence.2 The principles that apply to such an application are well settled. The over-arching test is whether granting leave would meet the overall interests of justice. The factors to be considered include the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay.3 Lack of merit may be a decisive consideration if there is an obvious problem with the proposed appeal such as a jurisdictional difficulty or abuse of process.4 The Supreme Court noted that it has been said that an extension of time will not be granted where “the appeal has no legs”, however, it has also been recognised that there may be “insufficient material before the Court to exclude the possibility that there is merit”.5 The Supreme Court stated that “the fact that an appeal appears to be weak does not justify refusing leave.6

1      National Standards Committee v Young [2017] NZLCD T41.
2      See Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [37] and [38](a).
3      At [29], citing My Noodle Ltd v Queenstown Lakes District Council [2009] NZCA 224, (2009) 19 PRNZ 518 at [19]–[22].
4      Almond v Read, above n 2, at [30]–[31].
5      At [32], citing Robertson v Gilbert []2010] NZCA 429 at [24].
6      At [32], citing Slater v Blomfield [2015] NZCA…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 3047
Decision Date: 23 November 2018

CaseChat Overview and Summary

Jinyue Young appeals against a decision of the Lawyers and Conveyancers Disciplinary Tribunal that found him guilty of three charges of misconduct and one of negligence. The Tribunal subsequently suspended his practising certificate for 15 months. Mr Young filed his appeal against penalty within time but his appeal against the liability decision was filed four months late. He has applied for special leave under r 20.4 of the High Court Rules to extend the time for filing that appeal. Justice Courtney was satisfied that Mr Young genuinely believed he could not file a notice of appeal until after the penalty hearing had been concluded and a decision reached. This confusion arose from the directions given by the Tribunal at the end of the liability decision which focused on the next, penalty, stage. Mr Young had not been represented at the liability hearing and did not obtain legal advice upon receipt of the decision. The application was allowed in part. Time was extended for the bringing of an appeal against the liability decision on charge 1. Both parties seek costs. Both parties have enjoyed a measure of success. Justice Courtney considered that, in the circumstances, it was appropriate for costs to lie where they fall.

Orders