IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC 492. FRANCISC CATALIN DELIU Plaintiff

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV [2015] NZHC 492 UNDER the Judicature Amendment Act 1972 IN THE MATTER BETWEEN AND of an application for judicial review FRANCISC CATALIN DELIU Plaintiff BOON GUNN HONG First Defendant NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL Second Defendant Hearing: 24 February 2015 Appearances: Mr Deliu in person No appearance for first and second defendants Judgment: 17 March 2015 (RESERVED) JUDGMENT OF ANDREWS J This judgment is delivered by me on 17 March 2015 at 11 am pursuant to r 11.5 of the High Court Rules.... Registrar / Deputy Registrar DELIU v HONG & ANOTHER [2015] NZHC 492 [17 March 2015]

2 Introduction [1] Mr Deliu has applied for judicial review of a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal ( the Tribunal ) to dismiss a charge of misconduct laid against Boon Gunn Hong ( Mr Hong ) under s 7(1)(b)(ii) of the Lawyers and Conveyancers Act 2006 ( the Act ). [2] Both Mr Hong and the Tribunal abide the decision of the court. Factual background [3] In May 2010, Mr Deliu laid a complaint with the New Zealand Law Society ( the Law Society ) against Mr Hong in relation to letters sent by him to two junior barristers in Mr Deliu s chambers, and to their instructing solicitor. The barristers had been instructed as counsel in proceedings against Mr Hong, and the communications included a threat to complain to the Law Society if the proceedings were not withdrawn. Mr Hong later laid a complaint against Mr Deliu. [4] In November 2010 the National Standards Committee of the Law Society ( the Standards Committee ) resolved to take no further action in relation to Mr Deliu s complaint. It also resolved to take no further action in relation to Mr Hong s complaint. [5] Mr Deliu applied to the Legal Complaints Review Officer ( the Review Officer ) to review the Standards Committee s decision. In a decision dated 3 June 2011 the Review Officer confirmed the decision of the Standards Committee. [6] Mr Deliu then applied for judicial review of the Review Officer s decision. In her judgment delivered on 15 February 2012, Winkelmann J held that the Review Officer had committed several reviewable errors, and directed that the Review Officer reconsider the complaint. 1 1 Deliu v Hong and Legal Complaints Review Officer [2012] NZHC 158. The judgment contains a detailed narration of the background to, and progress of, Mr Deliu s complaint.

3 [7] The complaint was then reviewed by a different Review Officer who, in a decision issued on 25June 2012, reversed the Standards Committee s decision and referred Mr Hong s conduct to the Disciplinary Tribunal for consideration. [8] A charge of misconduct was laid against Mr Hong on 10 September 2012 under s 7(1)(b)(ii) of the Act. Particulars of the alleged misconduct were set out as follows: 1. Particulars misconduct 1.1 In the course of correspondence and in written submissions (specified in Item 2 Particulars) [Mr Hong] made statements and allegations constituting conduct which would justify a finding that he is not a fit and proper person or is otherwise unsuited to engage in practise as a lawyer. 1.2 The statements and allegations were contrary to provisions of the Act and/or the Conduct and Client Care Rules including: (a) (b) (c) (d) (e) (f) Section 4(1) of the Act and Rule 2, by failing in his obligation to facilitate the administration of justice; Rule 2.2, by obstructing, preventing or defeating the course of justice; Rule 2.7, by making threats to fellow lawyers that he would make allegations against them, for an improper purpose; Rules 10 and 10.1, by failing to promote and maintain proper standards of professionalism and by treating fellow lawyers with disrespect and discourtesy; Threatening to engage in conduct which, if carried out, would have breached rule 10.2; and Rule , by failing to treat others in Court processes with respect. [9] The charge then set out letters and s sent by Mr Hong to the junior barristers, their instructing solicitor and the Lawyers Complaints Service, before the complaint and up until the time of the Standards Committee s decision. An affidavit by a Review Officer, Mr Vaughan, was filed in support of the charge. The charge was heard on 21 February 2013 and the Tribunal s decision was issued on 22 March Re. Boon Gunn Hong [2013] NZLCDT 9.

4 Relevant statutory and regulatory provisions [10] Before referring to the Tribunal s decision, it is appropriate to set out the relevant provisions of the Act, the Lawyers and Conveyancers Act (Lawyers, Conduct and Client Care) Rules 2008 ( the Rules ), and the Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations 2008 ( the Regulations ). Lawyers and Conveyancers Act Fundamental obligations of Lawyers Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations: (a) The obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand: 7 Misconduct defined in relation to lawyer and incorporated law firm (1) In this Act, misconduct, in relation to a lawyer or an incorporated law firm, (a) means conduct of the lawyer that occurs at a time when he or she is providing regulated services and is conduct (i) that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or (ii) that consists of a wilful or reckless contravention of any provision of this Act or of any regulations of practice rules made under this Act that apply to the lawyer or of any other Act relating to the provision of regulated services; or ; and (b) includes (ii) conduct of the lawyer which is unconnected with the provision of regulated services by the lawyer but which would justify a finding that the lawyer is not a fit and proper person or is otherwise unsuited to engage in practise as a lawyer 12 Unsatisfactory conduct defined in relation to lawyers and incorporated law firms In this Act, unsatisfactory conduct, in relation to a lawyer means (a) conduct of the lawyer... conduct of the lawyer that occurs at a time when he or she is providing regulated services and is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; or (b) conduct of the lawyer... that occurs at a time when he or she is providing regulated services and is conduct that would be regarded by lawyers of good standing as being unacceptable, including

5 (c) (i) conduct unbecoming a lawyer; or (ii) unprofessional conduct; or conduct consisting of a contravention of this Act, or of any regulations or practice rules made under this Act that apply to the lawyer, or of any other Act relating to the provision of regulated services (not being a contravention that amounts to misconduct under s 7; or Lawyers and Conveyancers Act (Lawyers, Conduct and Client Care) Rules A lawyer is obliged to uphold the rule of law and to facilitate the administration of justice. 2.1 The overriding duty of a lawyer is as an officer of the court. 2.2 A lawyer must not attempt to obstruct, prevent, pervert, or defeat the course of justice. Proper purpose 2.3 A lawyer must use legal processes only for proper purposes. A lawyer must not use, or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person s reputation, interests, or occupation. Threats 2.7 A lawyer must not threaten, expressly or by implication, to make any accusation against a person or to disclose something about any person for any improper purpose. 10 A lawyer must promote and maintain proper standards of professionalism in the lawyer s dealings Respect and Courtesy 10.1 A lawyer must treat other lawyers with respect and courtesy. 13 The overriding duty of a lawyer acting in litigation is to the court s concern. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer. Protection of court processes 13.2 A lawyer must not act in a way that undermines the processes of the court or the dignity of the judiciary. Lawyers and Conveyancers Act (Disciplinary Tribunal) Regulations Amendment of or addition to charge (1) At the hearing of a charge, the Disciplinary Tribunal may of its own motion or on the application of any party, amend or add to the charge if the Tribunal considers it appropriate to do so.

6 The Tribunal s decision [11] The Tribunal recorded that the charge against Mr Hong had been brought under s 7(1)(b)(ii), because it was considered that Mr Hong s conduct was not connected with the provision of regulated services by Mr Hong. The definition of regulated services required Mr Hong to have been carrying out legal work for another person at the time of the conduct, and that had been the case in this instance. 3 [12] The Tribunal considered the alleged breaches by Mr Hong and concluded that: (a) Mr Hong had used the threat of a complaint for an improper purpose, in breach of r 2.7; 4 but the threat did not amount to obstructing preventing or defeating the course of justice for the purposes of r 2.2; 5 (b) Mr Hong had acted unprofessionally in respect of some of the correspondence set out in the particulars, in breach of rr 10, 10.1 and [13] The Tribunal observed that the context of the charges, which it described as an unseemly and unprofessional dispute between two practitioners involved in a personal clash that escalated into complaint and cross-complaint and investigation under the disciplinary regime needed to be taken into account. 7 The Tribunal further observed that the threshold set by s 7(1)(b)(ii) is relatively high. Not only must there be misconduct, it must be misconduct that indicates a question as to whether Mr Hong should be in practice. 8 [14] The Tribunal referred to other cases concerning an assessment of whether a person was a fit and proper person to engage in practice as a lawyer: Tribunal Decision at [13]. At [22] and [32] (a). At [24]. At [23], [24] and [32] (b) and (c). At [37] and [45]. At [40].

7 Re Bell, 9 Waikato Bay of Plenty Standards Committee v Parlane, 10 and New Zealand Law Society v Dorbu. 11 The Tribunal concluded: 12 [65] We do not consider that the breaches proven do have such a degree of seriousness, having regard to the purposes of the disciplinary regime with its protection of the public interest emphasis. We do not consider that there is a public risk interest in Mr Hong practising. Our view is reinforced by the fact that Mr Hong has clearly learnt his lesson in this unfortunate episode. He made it clear to the Tribunal in questioning that he accepted he had lost his way when he personalised matters and he would be vigilant to ensure that he did not expose himself again to such proceedings. His evidence also noted that in his many years of practice this was his sole indiscretion resulting in disciplinary charges. [66] Taking into account the particular circumstances and context of Mr Hong s conduct found to breach [the Rules], Mr Hong s belief and consequent motivation for his behaviour in evidence before us, and Mr Hong s acknowledgement that he would take care not to let himself get into such a situation again, we do not consider that there are issues here which require disciplinary intervention to ensure the public interest is protected. In short, we do not consider that the conduct rises to a level of seriousness which reflects fitness to practice issues or that Mr Hong is unsuited to engage in practice as a lawyer. [67] Accordingly we find the misconduct charge not proven, and it is dismissed. Mr Deliu s submissions [15] Mr Deliu submitted that the Tribunal erred in a number of respects. While he characterised his grounds of review under the general heading of unreasonableness, they may be considered under the more specific headings of error of law, error of fact, and unreasonableness (in being a decision no reasonable Tribunal could have reached). Mr Deliu submitted: (a) The Tribunal proceeded on the basis of a mistake of fact, in that Mr Hong misled it as to his previous disciplinary history; or in the alternative, that the Tribunal failed to take Mr Hong s previous disciplinary history into account Re Bell [2005] QCA151. Waikato Bay of Plenty Standards Committee v Parlane [2010] NZLCDT 8. New Zealand Law Society v Dorbu [2011] NZLCDT 24. Tribunal decision at [65] [67].

8 (b) The Tribunal erred in law in finding that Mr Hong s communications were unconnected with the provision of regulated services. (c) The Tribunal erred in law by failing to use its power of amendment under reg 24 to amend the charge, or to add a charge, of dishonourable conduct under s 7(1)(a) of the Act or of unsatisfactory conduct under s 12(c) of the Act, and in failing to consider whether such a charge was proved. (d) The Tribunal unreasonably took into account Mr Hong s assurance that he would not engage in similar conduct again. (e) The Tribunal erred in law by failing to undertake an objective assessment before reaching conclusions as to Mr Hong s generally held views 13 and generally held belief. 14 (f) The Tribunal erred in law in concluding that despite finding breaches by Mr Hong, it would not find Mr Hong guilty of misconduct. (g) The Tribunal s decision that misconduct was not proved was inconsistent and unreasonable. Discussion [16] I turn to consider each of the submissions, in turn. Mistake of fact: Mr Hong s previous history [17] This submission was based on a statement made by Mr Hong in his affidavit in response to the charges against him, sworn 22 January 2013, and repeated in his written and oral submissions to the Tribunal: Since 1992 when I started in sole practice I have never had a single complaint filed by a client against me. The Law Society can bear testimony to that At [25]. At [29].

9 The Tribunal referred to this statement in its decision. It said: 15 His evidence also noted that in his many years of practice this was his sole indiscretion resulting in disciplinary charges. [18] Mr Deliu referred to an affidavit sworn by a Legal Standards Officer, Ms Pipe, on 8 April 2014, to which she annexed copies of Mr Hong s complaints history prior to and after 1 August Ms Pipe also gave details of four disciplinary findings against Mr Hong, on 20 November 1997, 10 November 2004, 27 April 2012, and 14 February The complaints history list 12 complaints before 1 August 2008 and nine after that date, of which three preceded the Tribunal s hearing. [19] Mr Deliu submitted that Mr Hong could not have forgotten the earlier findings, and that he had misled the Tribunal. He further submitted that in this case the Tribunal had taken Mr Hong s statement into account in the course of concluding that his conduct did not amount to misconduct. [20] Ms Pipe s affidavit was not, of course, before the Tribunal. The transcript of the hearing does not disclose any questioning of Mr Hong in relation to his disciplinary history, nor any evidence relating to it, other than Mr Hong s assertion. [21] Ms Pipe s affidavit discloses that the vast majority of the complaints against Mr Hong have been made by other practitioners. There is, however, a complaint laid in February 2005 which is recorded as having been made by a client of Mr Hong. Further, complaints in 1998 and 2001 are recorded as being made by client other side. All three client complaints were many years before the Tribunal hearing, and all are noted Departmental enquiries completed. As the records of other complaints are noted accordingly if disciplinary proceedings were issued (or if they were resolved), I assume that no further action was taken in respect of the client complaints At [65], set out at [14] of this judgment. The Act came into force on 1 August 2008: Lawyers and Conveyancers Act Commencement Order 2008.

10 [22] Mr Hong s statement was, on the face of the evidence of Ms Pipe s affidavit, incorrect. In the absence of Mr Deliu s submission being put to Mr Hong, I would not be prepared to find that Mr Hong misled the Tribunal. However, it is evident that the Tribunal placed some weight on the charge before it being Mr Hong s sole indiscretion resulting in disciplinary charges in reaching its conclusion that the charge of misconduct was not proved. It did so under a mistake of fact. Error of law: communications unconnected with the provision of regulated services [23] Mr Deliu contended that the Tribunal erred in confining its consideration of Mr Hong s conduct to an examination of s 7(1)(b)(ii). He referred me to the judgment of a Full Court of the High Court in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, which held that letters, statements made in applications to the court, and in complaints to the Judicial Conduct Commissioner and the Human Rights Review Tribunal were whilst not regulated services very much connected with the provision of such services and therefore comes within the s 7(1)(a)(i) limb of professional misconduct. 17 [24] Mr Deliu submitted that the effect of Orlov is that the provision of regulated services must be interpreted more widely than in the course of acting for a client, so that it covers any conduct which is connected with the provision of regulated services. He submitted that Mr Hong s communications in the present case were clearly connected with the provision of regulated services, as Mr Hong had been sued for professional negligence (that is, in respect of the provision of legal services), Mr Deliu s complaint was in part based on Mr Hong s dealings with Mr Deliu in relation to those proceedings and, furthermore, the complaint before the Tribunal was also in part based on Mr Hong s dealings with the professional complaints authorities. [25] Mr Deliu accepted that Orlov was decided after the Tribunal s decision. However, he submitted that even in the absence of the Orlov judgment, the Tribunal 17 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2004] NZHC 1987, at [112].

11 should have considered amending the charge under its powers in reg 24 of the Regulations, to a charge under s 7(1)(a) of the Act. [26] Ii is clear that the Tribunal had the power under reg 24 to amend the charge or to add a charge. There is no indication in its decision that it turned its mind to any possibility of amending or adding a charge. Error of Law: failure to consider available charges [27] This ground follows on from the previous one. Mr Deliu submitted that the Tribunal failed to turn its mind to and consider other available charges, in particular a charge of dishonourable conduct under r 7(1)(a) or a charge of unsatisfactory conduct under s 12(c) of the Act. [28] There is no indication in its decision that the Tribunal gave any consideration to an alternative charge. Mr Deliu submitted that, at the very least, a charge under s 12(c) was available. I accept Mr Deliu s submission that that the Tribunal erred in not considering whether an alternative charge was available. Unreasonable reliance on Mr Hong s assurance [29] As already recorded, the Tribunal referred in its decision to Mr Hong s assurance that he would act differently in the future. Mr Deliu submitted that the Tribunal took the assurance into account in not making a finding of misconduct. He submitted that this was unreasonable in the light of Mr Hong s behaviour and language at the Tribunal hearing, irrational in that (in effect) Mr Hong told the Tribunal both I stand by what I said and I won t do it again, and demonstrably wrong in that shortly after the Tribunal s decision, Mr Hong made statements about Mr Deliu that led to a further complaint by Mr Deliu. [30] I do not accept Mr Deliu s submission that the Tribunal acted unreasonably in this respect. The Tribunal found that Mr Hong had acknowledged what he said in the past, had learnt his lesson, and would not deal with matters in the same way again. The Tribunal did not act unreasonably in accepting Mr Hong s assurance.

12 A later repetition of the same conduct does not make acceptance of the earlier assurance unreasonable. Failure to assess Mr Hong s views and beliefs objectively [31] Mr Deliu submitted that the Tribunal unreasonably accepted Mr Hong s subjective view (that Mr Deliu himself was in breach of the rules) and belief (that he was at some risk from Mr Deliu) without making an objective assessment. He contrasted the Tribunal s approach with that taken by the Full Court in Orlov where, he submitted, there was an objective analysis. 18 [32] In the paragraphs in Orlov referred to by Mr Deliu, the Full Court referred to objective material, or the absence of a foundation for statements and allegations made by Mr Orlov. Having reviewed the Tribunal s decision in the present case, I am not persuaded that it failed to make an objective assessment of Mr Hong s views and beliefs. The Tribunal had before it the communications complained of, and it heard from Mr Hong at the hearing, at some length. Mr Hong made submissions, he was cross-examined (under oath, by counsel for the Law Society), and he was questioned by members of the Tribunal. The Tribunal had ample opportunity to make an objective assessment of Mr Hong s views and beliefs. I have not found anything in the decision that suggests that the Tribunal failed to make an objective assessment. Failure to find misconduct [33] Mr Deliu submitted that the Tribunal s finding that Mr Hong had breached various rules, but was not guilty of misconduct, defeated the purpose of the Rules and was an error of law. He submitted that it would be nonsensical for a set of Rules to be devised, only then to allow violations of those rules to be disregarded. He further submitted that any finding of a breach should lead to a finding of misconduct. The individual or cumulative gravity of the conduct is relevant to penalty, not the finding itself. 18 Mr Deliu referred to Orlov, above n 17 at [133] [134], [146], and [157].

13 [34] Mr Deliu referred me to the observations of the English Court of Appeal in Bolton v Law Society: 19 Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. If a solicitor is not shown to have acted dishonestly, but is shown to have fallen below the required standards of integrity, probity and trustworthiness, his lapse is less serious but it remains very serious indeed in a member of a profession whose reputation depends upon trust. [35] Mr Deliu was given leave to file further submissions on this point by 11 March 2015, but has not done so. [36] Leaving aside my finding that the Tribunal erred in not exercising its power to consider an alternative charge, I am not persuaded that the Tribunal committed an error of law in not finding Mr Hong s conduct amounted to misconduct. In reaching its conclusion the Tribunal considered a range of cases which set out the threshold for misconduct. Having found some of the breaches alleged against Mr Hong proven, the Tribunal went on to consider whether they constituted misconduct at such as level as would justify a finding that he was not a fit and proper person, or was otherwise unsuited, to practice law. Mr Hong s conduct did not reach that level. The Tribunal s conclusion was that [37] In the light of my findings in respect of other grounds of Mr Deliu s application for judicial review, it is not necessary to make a finding on this ground. Further, as such a finding would have an impact beyond this proceeding, it would not be appropriate to do so in the absence of submissions on behalf of the Tribunal. I therefore make no finding in respect of this ground of review. Inconsistent and unreasonable to find misconduct not proved [38] Mr Deliu submitted that misconduct had been found in other cases and that not finding misconduct in this case was inconsistent and unreasonable. He referred me to Hong v Auckland Standards Committee No 3, in which Gilbert J commented 19 Bolton v Law Society [1993] EWCA Civ32, [1994] 1 WLR 512 at [14], per Sir Thomas Bingham.

14 that practitioners and members of the public must be able to have confidence that disciplinary sanctions are applied in an even-handed manner. 20 [39] Even-handedness must be applied to the particular facts of each case. Different sets of facts may well lead to different results. I am not persuaded that the fact that the Tribunal concluded in this case that Mr Hong s conduct was less serious than that in other cases referred to it establishes that its decision that misconduct was not proved against Mr Hong was inconsistent and unreasonable. Disposition [40] I have found the following reviewable errors: (a) (b) (c) The Tribunal proceeded under a mistake of fact, namely that Mr Hong had never before had a client complaint, in his many years of practice. The Tribunal was in error of law in failing to exercise, or consider the exercise of its power to amend the charge or add a charge. The Tribunal erred in failing to consider an alternative charge. [41] The errors set out in (b) and (c) above, in particular, are sufficient for Mr Deliu s application for judicial review to succeed. Mr Deliu submitted that if I were to find in his favour, then I should remit the matter to the Tribunal for reconsideration. Accordingly, the Tribunal s decision is quashed and the charge against Mr Hong is remitted to the Tribunal for reconsideration. [42] Costs are reserved. Mr Deliu may submit a memorandum (to be served on both defendants) within ten working days of the date of this judgment. The defendants may file memoranda within a further ten working days. A decision will then be made on the papers. Andrews J 20 Hong v Auckland Standards Committee No 3 [2014] NZHC 2871 at [29].