SMITH v THE LAW SOCIETY OF NEW SOUTH WALES [1993] NSWCA 247

SMITH v THE LAW SOCIETY OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Mauoney JA, CLARKE JA and MEAGHER JA 29 April 1993

[1993] NSWCA 247

Mahoney JA. This is an application which comes before the Court urgently and in special circumstances. An order was made by the Solicitors Tribunal for Graham Alan Smith to be struck off the Roll of Solicitors.

The order was that the order striking him from the Roll of Solicitors take effect upon the lapse of 28 days from 1 April 1993. Mr Smith has been asked to dispose of his practice and has informed the Court, to an extent, through his solicitor's affidavit and through counsel, Mr Curtis, that the period of time granted proves not to be sufficient for the purpose. The circumstances basing that particular statement are not extensive, but the Court is prepared to act upon the basis that he needs further time at least for the limited purposes now in question.

Application was made to the Court of Appeal in Chambers yesterday for appropriate orders. The Court was not disposed to deal with the matter in Chambers because, amongst other things, questions of jurisdiction to make the relevant orders arise.

Counsel has informed the Court that an endeavour was made yesterday to file in the Court of Appeal Registry a notice of appeal against the order of the Tribunal and a notice of motion seeking a relevant stay, together with the affidavit of Mr Glynn sworn 28 April 1993. Counsel informs the Court that the Courtindicated that the documents would not be received in the Registry. The reasons given related to the fact, as I understand it — and I put the matter only generally — that the application was to be made within the shortened period and an order for that purpose had not been made. There may have been other reasons.

It is agreed between the parties that if the notice of appeal had been filed yesterday it would have been filed in time and that it would not be necessary to extend the time for the filing of the notice of appeal. The effect of the filing of a notice of appeal is to have the application that was before the Disciplinary Tribunal reheard before this Court. If the notice of appeal had been filed in time this Court would have jurisdiction to grant an order staying the effect of the order of the Tribunal.