Dorbu v New Zealand Law Society [2012] NZHC 1477 (3 July 2012)

Last Updated: 9 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-6219 [2012] NZHC 1477

IN THE MATTER OF the Law Practitioners Act 1982 and the

Lawyers and Conveyancers Act 2006

BETWEEN JOHN EVANS DORBU Appellant

AND NEW ZEALAND LAW SOCIETY Respondent

Hearing: 31 May 2012 (On papers) Court: Miller, Andrews and Peters JJ Counsel: J E Dorbu (In person) Appellant

H Keyte QC and M Treleaven for Respondent

Judgment: 3 July 2012

_{JUDGMENT OF THE COURT}

Introduction

[1] Mr Dorbu seeks leave to appeal to the Court of Appeal on a point of law.

Narrative

[2] On 8 June 2010 the New Zealand Lawyers and Conveyancers Disciplinary Tribunal found Mr Dorbu guilty of 11 charges of professional misconduct. The Tribunal decided to strike his name from the roll of barristers and solicitors.

[3] Mr Dorbu then sought judicial review of these decisions. The review judgment, delivered on 11 May 2011, set aside the finding on one of the charges, and

DORBU v NEW ZEALAND LAW SOCIETY HC AK CIV-2011-404-6219 [3 July 2012]

left it to the Tribunal to determine whether a rehearing of that charge would be held. The penalties were set aside because Brewer J was unable to assess what weight had been given to the remitted charge in the overall sentencing exercise.[1]

[4] On 6 July 2011, the Tribunal decided to conduct a rehearing on the remitted charge. That was set down for hearing in November 2011, before a newly constituted Tribunal. So as not to delay the proceedings any longer and create personal difficulty for Mr Dorbu, the Tribunal decided to rehear the penalty hearing on the remaining charges.

[5] The penalty rehearing took place on 22 September 2011. Mr Dorbu elected not to appear. Once again, the Tribunal decided to strike Mr Dorbu’s name from the roll of barristers and solicitors. That decision was the subject of appeal to the High Court. We dismissed the appeal on 2 April 2012.[2]

Leave to appeal

[6] Mr Dorbu must identify a question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal.[3] He identifies a question of law: whether a tribunal which, faced with two related proceedings, recuses itself from sitting on one to avoid the appearance of bias, can sit on the other. He argues that the Tribunal should have directed that the penalty rehearing be held before a newly constituted tribunal. We observe that he did not take this point in his appeal to this Court.

[7] In our opinion the point is not capable of serious and bona fide argument. It made sense for the original Tribunal to re-sentence having regard to Brewer J’s reasons for sending the matter back. It had heard all the relevant evidence. Brewer

_{J’s reasons raise no question of an appearance of bias for the Tribunal. The}

Tribunal’s decision to refer the re-hearing on liability to a new Tribunal cannot be characterised as an admission of bias.

[8] We dismiss the application for leave to appeal.

Miller J Andrews J Peters J

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[1] Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381, 11 _{May 2011.}
[2] _{Dorbu v New Zealand Law Society [2012] NZHC 564.}
[3] Lawyers and Conveyancers Act 2006, s 254(1); Judicature Act, s 66; Snee v Snee [1999] NZCA 252; [2000] NZFLR 120; and Waller v Hider [1998] 1 NZLR 412.