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. The reason why the notice of appeal was not filed in time is, in my opinion — and I do not direct criticism to anybody in the circumstances — that the office wrongly refused to accept the notice of appeal when tendered. If it had accepted it then the notice of appeal would, as I have said, been filed in time and there would have been no issue as to jurisdiction — no issue subject to the matters to which I shall subsequently refer. The Court may, in my opinion, make an order that the notice of appeal be received nunc pro tunc. That is, by reason of the circumstances in which it was not received, the filing today be treated as filing yesterday and therefore within time. That means it was not necessary formally to make an order at this stage extending time for filing of the notice of appeal. If that be so, then the matter is regularly before the Court and the Court may consider what course it should take. 2 UNREPORTED JUDGMENTS The Court has raised for consideration by the parties two issues. The first is whether an application of this kind, which is in effect to extend the period of 28 days" postponement of the order given by the Tribunal, should be made to the Tribunal itself and not to this Court. Counsel has informed the Court that the Tribunal has taken the view through one of its executive officers that it has no jurisdiction to deal with such a matter. That is not formally the view of the Tribunal, but of one of the officers. It is referred to in the affidavit of Mr Glynn, which has been tendered to this Court. It is in that context that the application has been made to this Court. Whether the application should properly have been made to and been dealt with by the Tribunal is a matter which will require consideration in an appropriate case, and perhaps subsequently in this case. The second matter is whether this Court has jurisdiction, having regard to the circumstances of the filing of the notice of appeal. I mean by that this. The notice of appeal is in its terms limited. It does not seek to have a rehearing of the whole of the appeal. Counsel has indicated that the purpose of the notice of appeal, and perhaps the effect of the terms of it, is that the appeal is to relate only to the period of suspension of the order; that is, the 28-day period. The contention is put, as I understand it, that the Tribunal erred in granting the stay which it granted of only 28 days. The allegation will be, I assume, it should have granted a further stay. Whether it was asked to grant a further stay does not appear and it is not necessary to consider that at this stage. If that be the nature of the appeal, then it is in the relevant sense a matter for the appeal. I was concerned myselfwith the problem which would arise if a general notice of appeal is filed but filed only for the purpose of obtaining a stay of the present kind and upon the basis the appeal would not be pursued. However, as counsel has properly pointed out, the appeal is directed to one aspect of the order, and properly so, and upon that basis at present, and without finally deciding the matter, I am of the opinion the Court has jurisdiction to deal with the application for a stay. This Court can grant a stay if failure to do so may affect the subject matter of the appeal or otherwise impose the relevant degree of hardship. Mr Murdoch, who appears for the Law Society, has asked that the matter be stood over until the Law Society can consider the matter. The Law Society has taken the view it is a matter which should be considered by its Council. The Council meets next on Thursday 6 May and he has asked for an adjournment to enable the Council to consider and express an opinion upon the matter at that time. In all the circumstances, I am of the opinion that an adjournment should be granted until Monday week, 10 May 1993. That will give sufficient time for the Council to consider the matter and ensure the matter comes before the Court on a motion day. Because of the matters of jurisdiction to which I have referred, I am of the opinion that the Court has the appropriate jurisdiction and should exercise the jurisdiction so as to grant a stay of the order taking effect until and including Monday week. The effect of that will be to postpone until Monday week the consideration by this Court of whether a stay for the relevant period of 28 days can and should be granted. In the circumstances, in my opinion, that would be an appropriate order to make. The order is made without prejudice to the merits of the matter and without prejudice to any opposition which the Law Society may see fit to make when the matter comes before the Court on Monday next. URJ SMITH v THE LAW SOCIETY OF NEW SOUTH WALES (Mahoney JA) 3 I would propose that such an order be made and that the costs of today be reserved to the Court dealing with the matter in due course. Clarke JA. I agree. 5 Meagher JA. I agree. Mahoney JA. The orders of the Court are as I have announced. Orders accordingly.