Deliu v Hong - [2015] NZHC 492

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2014-404-002664 [2015] NZHC 492

UNDER the Judicature Amendment Act 1972

IN THE MATTER

of an application for judicial review

BETWEEN

FRANCISC CATALIN DELIU Plaintiff

AND

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]

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against Mr Hong, and the communications included a threat to complain to the Law Society if the proceedings were not withdrawn.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.

[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…

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.

Continue reading Deliu v Hong

Details

AGLC: Deliu v Hong [2015] NZHC 492
Case: [2015] NZHC 492
Decision Date: 17 March 2015

CaseChat Overview and Summary

Mr Deliu sought judicial review of a decision by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal to dismiss a charge of misconduct laid against Mr Hong. The Tribunal had concluded that Mr Hong’s conduct, while proven, did not rise to the level of seriousness that would justify a finding of misconduct. The court was required to determine whether the Tribunal had erred in law, or otherwise acted unreasonably, in reaching its decision. The court found that the Tribunal had proceeded on the basis of a mistake of fact, and had erred in law in failing to consider whether it should amend the charge, or add a charge. The court quashed the Tribunal’s decision and remitted the charge against Mr Hong to the Tribunal for reconsideration. Costs were reserved pending further submissions from the parties.

Orders