Hong v Legal Complaints Review Officer

[2016] NZHC 1358

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2170

CIV-2015-404-2948 [2016] NZHC 1358

UNDER

the Lawyers and Conveyancers Act 2006

IN THE MATTER

of an appeal against a decision of the Lawyers and Conveyancers Disciplinary Tribunal

BETWEEN

BOON GUNN HONG Appellant

AND

LEGAL COMPLAINTS REVIEW OFFICER

Respondent

Hearing:

16 June 2016

Counsel:

Appearances:

PN Collins for respondent

BG Hong, appellant in person

Judgment:

22 June 2016

JUDGMENT OF FAIRE J

This judgment was delivered by me on 22 June 2016 at 4:30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Legal Complaints Review Officer, Auckland

To:  BG Hong, Auckland

Hong v Legal Complaints Review Officer [2016] NZHC 1358 [22 June 2016]

Introduction

[1]      On 17 February 2016, I gave judgment on Mr Hong’s appeal in respect of two related decisions made by the Lawyers and Conveyancers Disciplinary Tribunal (“the Tribunal”) in relation to claims brought against him by the Legal Complaints Review Officer (“LCRO”).1

[2] The first decision found that Mr Hong’s behaviour had reached the standard of misconduct set out in s 7 of the Lawyers and Conveyancers Act 2006. The second decision made orders following the first decision dealing specifically with penalty.

[3]      The appeal against the first decision was dismissed.  In respect of the penalty decision, the suspension of two months was quashed.   The balance of the penalty imposed by the Tribunal was confirmed.

The application

[4]      Mr Hong applies for an order granting him leave to appeal to the Court of

Appeal in respect of my judgment.

[5]      The respondent opposes the application on the conventional grounds that the application  does  not  disclose any question  of  law capable  of  bona  fide serious argument which by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal for its decision.

Leave to appeal

[6]      My judgment  dealt  with  an  appeal  from  the  Lawyers  and  Conveyancers

Disciplinary Tribunal, pursuant to s 253 of the Lawyers and Conveyancers Act 2006.

[7]      This application is made in reliance on s 254 of the Act, which provides:

254     Appeal to Court of Appeal on question of law

(1)       Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that Court, or, if the

1      Hong v Legal Complaints Review Officer [2016] NZHC 184.

High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section

66 of the Judicature Act 1908 applies to any such appeal.

(2)       In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

(3)       The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.

(4)       The decision of the Court of Appeal on any appeal under this section is final.

[8]      Such applications may be made to this Court and are made by interlocutory application.2

[9]      The principles which apply are that leave may only be granted where:

(a)       The appeal raises some question of law capable of bona fide and serious argument; and

(b)The  case  involves  some  interest,  public  or  private,  of  sufficient importance to outweigh the costs and delay of a further appeal.3

[10]     The threshold for leave to bring a second appeal is high and there must be a question sufficiently important to justify a court going into the matter for the third time with the delays and further expense that inevitably result.4

[11]     It is essential that the High Court identify the questions on which it grants leave.5  The Court of Appeal disapproves of conduct that attempts, by way of a second appeal, to take an opportunity “to air, for the third time, every issue between

the parties, no matter how trivial”.6

2      HCR 20.22

3      Waller v Hider [1998] 1 NZLR 412 (CA) at 413; Snee v Snee (1999) 13 PRNZ 609 (CA) at 612.

4      S v W [2014] NZCA 199 at [6].

5      GFM v JAM [2013] NZCA 660, [2014] NZFLR 418 at [19].

6 At [22].

[12]     A conference with Mr Hong and counsel was called following receipt of the application.   In the minute issued following that conference, I made the following points:

[2]       It is appropriate that I remind the parties, particularly Mr Hong, of what is required.   The position was summarised by the Court of Appeal in Snee v Snee where the court said:7

the appeal must raise some 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, both to the Court system and to the parties, and the delay involved in the further appeal. Upon a second appeal this Court is  not engaged  in  the  general correction  of  error.  Its primary function is then to clarify the law and to determine whether  it  has  been  properly  construed  and  applied  by  the Court below.  It is not every alleged error of law that is of such importance,  either  generally  or  to  the  parties,  as  to  justify further pursuit of litigation which has already been twice considered and ruled upon by a Court.

[3]       I expect the intended appellant’s submissions to be focused and to address specifically matters which he says fit within the accepted grounds for leave to appeal.  His memorandum for this conference disclosed to me that he may not understand this position.

[13]     The minute gave specific directions for the filing of submissions and set a hearing date.

[14] Unfortunately, I have not been provided with any point of law that meets the threshold required by s 254 of the Lawyers and Conveyancers Act 2006. In particular, I have not been provided with a specific question or questions which are relevant to the case that meets the threshold required.

[15] Mr Hong raised the question of whether written communications could evidence misconduct for the purpose of s 7 of the Lawyers and Conveyancers Act

2006.  In my view, that does not provide the degree of specificity that would assist, and really is no more than to ask the general question: whether his actions through writing amount to misconduct?   In other words, when analysed: does it meet the

threshold required for that by the section?

7      Snee v Snee, above n 3, at [22].

[16]     Mr Collins, in his submissions, specifically looked at what might be regarded as purported grounds for appeal.

[17]     The first point raised by the applicant, and addressed by Mr Collins, was the applicant’s   reference   to   “super   extraordinary   and   extenuating   facts   and circumstances of my case”.

[18] Mr Collins correctly observed that this submission is directed at the essential finding of the Tribunal, and of me on appeal, that the appellant’s conduct constituted misconduct in the regulated services category under s 7(1)(a)(i) of the Lawyers and Conveyancers Act 2006. It is no more than a challenge about the nature and quality of his conduct. It is an invitation to relook de novo at the case and whether the decisions should be set aside. As such, it does not fall within the permitted area for such further appeal under s 254 of the Lawyers and Conveyancers Act 2006.

[19]     The next matter that was raised was the applicant’s allegation that he was motivated to protect his clients in the course of being sued by them when he had serious concerns over the competency of the barristers engaged on the action, and the manner in which they had conducted themselves.   Mr Collins correctly submitted that this perpetuates the applicant’s misconception of his duties.   He is no longer under an obligation to his former clients in respect of any alleged poor advice he perceived they were getting from the current lawyers.   This issue cannot justify a basis for relooking at his case for a further time on appeal.

[20]     There is next the issue surrounding the distinction between regulated services and  conduct  unconnected  with  the  provision  of regulated  services.    Mr Collins, again, correctly pointed out that the distinction between the categories of misconduct in s 7(1)(a) and (b)(ii) are now well settled as a result of judgments of the High Court in Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal.8   I accept his submission that there is no controversy warranting a decision of the Court of

Appeal.

8      Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] 2 NZLR 606; and A v Canterbury Westland Standards Committee No 2 of the New Zealand Law Society [2015] NZHC 1896.

[21]     The next point raised was the applicant’s reference to his pride as a lawyer here in New Zealand and that it was of great importance to him.  I have no doubt that Mr Hong is sincere. That position does not found a basis for a second appeal.

[22]     The next point raised concerns about the history of the investigation of the complaints and conflicting decisions in relation to the incident which is the subject of this case.  Mr Hong noted that the underlying complaints had been dismissed by the National Standards Committee, the LCRO in the first instance and the first Tribunal, but that the second Tribunal had taken the opposite position.

[23]     Mr Collins drew attention to the fact that Andrews J required the Tribunal to rehear the matter, taking into account the errors identified in the earlier process.  It is therefore irrelevant that earlier disciplinary bodies determined the case differently.  I, in fact, dealt with the matter in my judgment.   I do see how this could profitably found a question of law justifying consideration by the Court of Appeal.

[24]     Mr Hong then referred in his submissions to the lack of prejudice in granting leave because the suspension penalty had been quashed.  The short answer to this point is that, that is not relevant to the issue which I must decided here, namely whether there is a question of law which satisfies the test which justifies further consideration by the Court of Appeal.

[25]     Mr Hong further refers to a submission that a denial of a second appeal would  cause  a  miscarriage  of  justice  against  him.    No  specific  judicial  error, however, has been identified by him that would show that my judgment is plainly wrong.   I do not see how this submission could possibly justify the matter being referred to the Court of Appeal.

Conclusion

[26]     I conclude, then, that there is no point of law arising from my judgment which in terms of the authorities justifies my granting leave on such a point to appeal to the Court of Appeal. Accordingly, the application is dismissed.

[27]     I reserve costs.  If counsel and Mr Hong cannot agree, memoranda shall be

filed and served in support, opposition and reply at seven-day intervals.

JA Faire J