Hong v Legal Complaints Review Officer
[2016] NZHC 184
•17 February 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-2170
CIV-2015-404-2948 [2016] NZHC 184
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: 10 and 11 February 2016 Counsel:
Appearance:
PN Collins for respondent
BG Hong, appellant in person
Judgment:
17 February 2016
JUDGMENT OF FAIRE J
This judgment was delivered by me on 17 February 2016 and 9:30 am 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 184 [17 February 2016]
Contents
The Appeal .............................................................................................................[1] Background to Complaint ......................................................................................[3]
Procedural Background ........................................................................................[10] The Liability Decision..........................................................................................[23]
The Penalties Decision .........................................................................................[27]
Principles of Appeal .............................................................................................[29] Appellant’s Submissions ......................................................................................[31] Respondent’s Submissions ...................................................................................[33]
Analysis ......................................................................................................................
Double jeopardy argument [35] Admissibility of evidence [39] Providing regulated services [43] Disgraceful or dishonourable conduct [47] Suspension [54] Costs [84]
Orders ...................................................................................................................[95]
Costs .....................................................................................................................[96]
The Appeal
[1] Mr Boon Gunn Hong appeals against 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 (“the LCRO”).
[2] The first decision (“the liability 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 LCA”),1 The second decision (“the penalties decision”) made orders following the liability decision.2
Background to Complaint
[3] The behaviour which gave rise to the allegation of misconduct occurred in
2010 while the appellant was a defendant in civil proceedings in which the plaintiffs were former clients. The barrister acting for the plaintiffs was Mr Deliu, along with junior barristers from Mr Deliu’s chambers. There was also an instructing solicitor acting for the plaintiffs in the matter.
[4] The appellant then sent two letters and an email to the solicitor for the plaintiffs. In this correspondence he:
(a) made allegations of incompetence against Mr Deliu and the junior barristers;
(b)told the solicitor to withdraw the action against him or he would file a strike out action, seek full costs against the lawyer personally, file a claim for defamation and make a complaint to the Law Society that the solicitor was incompetent; and
(c) warned the solicitor that he had better get what he promised for the clients or they would turn against him.
[5] Mr Deliu made a complaint against the appellant to the Lawyers’ Complaints
Service (“LCS”).
[6] The appellant sent three letters and two emails to the LCS in which he made a number of statements referring to Mr Deliu and the junior barristers. The LCRO
claims the statements are abusive and unprofessional.
1 Legal Complaints Review Officer v Hong [2015] NZLCDT 27.
2 Legal Complaints Review Officer v Hong [2015] NZLCDT 37.
[7] The appellant sent written submissions to the LCRO for the purpose of a review hearing on 24 May 2012 in which he described some of his unorthodox practices to achieve good outcomes for clients but in doing so described his own unethical practices.
[8] These nine pieces of correspondence make up the particulars of the charge which the appellant faced.
[9] I attach to this judgment part of Appendix 1 to the Tribunal’s liability
decision which contains quotations from the letters, emails and submission.
Procedural Background
[10] In May 2010 Mr Deliu complained to the LCS about correspondence that Mr Hong had sent to two barristers in Mr Deliu’s chambers, and to an instructing solicitor.
[11] Mr Deliu and Mr Hong exchanged heated correspondence and Mr Hong later complained about Mr Deliu. Mr Hong subsequently made statements to the LCS which also form part of the current charges.
[12] In November 2010 the Standards Committee, to which both complaints had been referred, decided to take no further action on either claim as it deemed the complaints to be frivolous, vexatious and based on trivial subject matter. This was the end of the complaint relating to Mr Deliu’s behaviour.
[13] The complaint against Mr Hong was taken on review by Mr Deliu to the
LCRO. The LCRO confirmed the decision of the Standards Committee.
[14] In November 2011, Mr Deliu successfully sought judicial review of the
LCRO’s decision. Winkelmann J remitted the application back to the LCRO for
reconsideration.3
3 Deliu v Hong [2012] NZHC 158.
[15] The LCRO held a hearing in May 2012. In June 2012 the LCRO reversed the
Standard’s Committee’s decision and referred Mr Hong’s conduct to the Tribunal.
[16] A charge of misconduct was laid against Mr Hong on 10 September 2012 under s 7(1)(b)(ii) of the LCA. The charge was heard on 21 February 2013 and the Tribunal issued a decision on 22 March 2013.4 The Tribunal dismissed the charge.
[17] Mr Deliu then successfully sought judicial review of the Tribunal’s decision. Andrews J quashed the Tribunal’s decision and remitted the matter to the Tribunal for reconsideration (“the Andrews J decision”).5 In this decision Andrews J identified
three reviewable errors:6
(a) 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.
(b) 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.
(c) The Tribunal erred in failing to consider an alternative charge.
[18] On 15 June 2015, the Tribunal held a hearing to consider the complaint against Mr Hong. On 19 August 2015, the Tribunal issued a decision against Mr Hong which found misconduct pursuant to 7(1)(a)(i) of the LCA. The Tribunal directed that LCRO file submissions on penalty within 21 days and that Mr Hong file submissions in response within a further 21 days. A penalty hearing was fixed for
14 October 2015.
[19] Mr Hong then appealed the liability decision and also filed a stay application in the High Court, seeking an order prohibiting the Tribunal from holding the penalty hearing until after his appeal against the liability decision had been decided.
[20] On 6 October 2015, Katz J released a minute issuing timetabling directions for the liability decision appeal and ordering Mr Hong to pay security for costs of
$4,460 by 20 October (received 19 October).
4 Re Hong [2013] NZLCDT 9.
5 Deliu v Hong [2015] NZHC 492.
6 At [40].
[21] On 7 October 2015, Katz J dismissed the application to stay the Tribunal’s
penalty hearing. 7
[22] On 14 October 2015 the Tribunal held a hearing on penalty. The decision on penalty was released by the Tribunal on 12 November 2015. The decision granted a stay of penalty pending decision of the appeal.8 (See [28]).
The Liability Decision
[23] In the liability decision Mr Hong faced one charge of misconduct pursuant to s 7(1)(a)(i) and (ii) of the LCA, or in the alternative unsatisfactory conduct pursuant to s 12(b) and (c) of the LCA.
[24] The Tribunal identified four issues that needed to be determined:
(a) Are Mr Hong’s statements to the LCS and LCRO admissible?
(b)Were the statements which are being relied upon to show unsatisfactory conduct or misconduct made in a manner which is connected with the provision of legal services?
(c) Do the statements individually or cumulatively amount to misconduct either because they were disgraceful and dishonourable,9 or because they constituted a wilful or reckless contravention of the LCA or the rules and regulations made under it?10
(d)If not, was the conduct unacceptable on the basis that it was unbecoming or unprofessional,11 or that it was a contravention of the
LCA or the rules and regulations made under it?12
7 Hong v Legal Complaints Review Officer [2015] NZHC 2444.
8 Legal Complaints Review Officer v Hong, above n 2.
9 As required under s 7(1)(a)(i).
10 As required under s 7(1)(a)(ii).
11 As required under s 12(b).
12 As required under s 12(c).
[25] The Tribunal discussed whether Mr Hong’s statements to the LCS and LCRO were inadmissible on the basis that they were privileged pursuant to s 186 of the LCA, which affords lawyers the same privileges in relation to communication with the LCS as would be afforded to witnesses in a court of law. Of particular relevance here was the privilege against self-incrimination.13
[26] The Tribunal found that the appellant’s statements were not privileged, were in connection with the provision of regulated services, and were disgraceful and dishonourable. Accordingly, the Tribunal found that misconduct was established.
The Penalties Decision
[27] In the penalties decision now being appealed, the Tribunal:
(a) Ordered that Mr Hong be suspended from practice for a period of two months.
(b)Noted that $4,000 of the LCRO’s costs were incurred due to its failure to plead the alternative in the first proceedings. As a result of this, awarded $27,000 of the total costs claimed of $32,832 to be paid by Mr Hong; and
(c) Ordered that Mr Hong meet the full costs of the Tribunal by reimbursement to the Law Society of $12,331.
[28] These penalties were stayed pending the outcome of this appeal.
Principles of Appeal
[29] Under s 253 of the LCA an order or decision of the Tribunal may be appealed to the High Court by the practitioner to whom the order or decision relates.14 An
appeal under s 253 is by way of rehearing.15
13 Evidence Act 2006, s 60.
14 Section 253(2)(a).
15 Section 253(3)(a).
[30] This Court has held that an appeal from the Tribunal proceeds on the basis set out in Austin, Nichols & Co Inc v Stichting Lodestar.16 There has been disagreement about the nature of an appeal of a penalty decision, however in Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law Society the Court stated:17
We prefer the view that both misconduct findings, and the resulting penalty decision, require an assessment of fact and degree and entail a value judgment; such that it is incumbent upon the appellate Court to reach its own view on both aspects.
Appellant’s Submissions
[31] The appellant submits that the Tribunal made a number of errors in the liability decision. These include:
(a) an error of law when it rejected the appellant’s defence of double
jeopardy as:
(i) the appellant was not in any way at fault in the acquittal; (ii) the judgment of Andrews J was unsafe as:
(1)Mr Deliu had no standing to bring the judicial review and Mr Deliu was committing an abuse of process for ulterior motives;
(2)the decision was obtained by judicial fraud by Mr Deliu who was aided and abetted by Mr Collins; and
(3)Mr Deliu’s breach of his duty to the Court was equitable fraud;
16 Austin, Nichols & Co Inc v Sichting Lodestar [2007] NZSC 103, [2008] NZLR 141; as discussed in Davidson v Auckland Standards Committee No 3 [2013] NZHC 2315, [2013] NZAR 1519 at [6].
17 Sisson v Standards Committee (2) of the Canterbury-Westland Branch of the New Zealand Law
Society [2013] NZHC 349, [2013] NZAR 416 at [15].
(b)an error of law in allowing the charges against the appellant to be amended;
(c) an error of law in failing to take into account relevant law, in particular that:
(i)his submission that the communications were made with honourable intentions and are supported by the LCA and the rules and regulations;
(ii)there is no precedent to support the Tribunal’s finding that the behaviour in question was misconduct;
(iii) it incorrectly interpreted various judicial precedents; and
(iv)in finding that the communications amounted to misconduct, it breached the appellant’s rights under the New Zealand Bill of Rights Act 1990 and international conventions.
(d) that it took into account inadmissible evidence as:
(i) section 186 of the LCA should have been applied; and
(ii)the Tribunal breached s 50 of the Evidence Act 2006 by taking facts from the Andrews J judicial review decision as accepted without enquiring into them or allowing the appellant the opportunity to dispute these facts;
(e) that it did not place enough weight on the evidence of the appellant and placed too much weight on the evidence of Mr Deliu;
(f) that it issued a decision which did not meet the tests of proportionality and Wednesbury unreasonableness;
(g)an error of law in considering that the communications at issue were in the course of the appellant providing regulated services when in fact he was acting for himself;
(h) that it made the following mistakes of fact:
(i)that what the Tribunal interpreted as threats were in fact legal demands;
(ii)that what the Tribunal interpreted as insults were justifiable criticisms; and
(iii) that the Tribunal’s interpretation of the facts in this way had no
evidential foundation.
[32] The appellant also submits that the penalty of two months’ suspension and the costs award against him were manifestly excessive and disproportionate to the conduct found to occur and were inconsistent with the penalties imposed in other cases. The appellant submits that censure and a fine would be more appropriate.
Respondent’s Submissions
[33] The respondent submits that the appellant’s appeal in respect of the liability
decision should be dismissed.
[34] The respondent submits that:
(a) due to the findings in the Andrews J decision, the Tribunal was obliged to rehear the charges against the appellant and to allow the charges to be amended. The respondent acknowledges the criminal law principle of double jeopardy but submits that it does not apply in this case because of the Andrews J decision remitting the matter back to the Tribunal;
(b)section 186 of the LCA should not be applied to the statements made by the appellant to the Standards Committee. The purpose of the section, in conjunction with the relevant sections of the Evidence Act
2006, is to allow the person to refuse to divulge information which could be self-incriminating. It does not protect a person who has already made statements;
(c) the Tribunal correctly determined that the relevant behaviour occurred while the appellant was providing regulated services;
(d)the Tribunal decision was not incorrect on the grounds of “Wednesbury unreasonableness” or “proportionality” as claimed by the appellant and the Tribunal was correct to find that the behaviour amounted to misconduct;
(e) the appeal against the award of costs should be dismissed as the appellant significantly aggravated the costs of the prosecution by filing substantial volumes of submissions and materials, much of which was irrelevant or tangential; and
(f) the penalty was not manifestly excessive.
Analysis
Double jeopardy argument
[35] I deal with the appellant’s submission that the tribunal has made an error of law in hearing the case against him and allowing the charges against him to be amended. Linked to this is his submission that as the case had been heard previously, the Tribunal had no jurisdiction to rehear the same charges on the same facts. He also claims the judicial review judgment to be “tainted and unsafe”.
[36] The appellant is correct that the New Zealand Bill of Rights Act 1990 provides “No one who has been finally acquitted or convicted of, or pardoned for, an
offence shall be tried or punished for it again.”18 However, this provision has been held only to apply to the criminal law and not to decisions of professional disciplinary bodies.19
[37] The orders of Andrews J clearly required the Tribunal to rehear the case and permitted the filing of an amended charge. The Tribunal was acting in compliance with the Court’s orders.
[38] The appellant’s argument of double jeopardy and autrefois acquit accordingly
fails.
Admissibility of evidence
[39] I deal with the appellant’s submission that the Tribunal was wrong in finding that s 186 of the LCA did not prevent the Tribunal from considering statements that the appellant made to the Standards Committee.
[40] Section 186 provides:
(1) Every person has the same privileges in relation to—
(a) the giving of information to a Standards Committee; and
(b) the giving of evidence to, or the answering of questions put by, a Standards Committee; and
(c) the production of papers, documents, records, or things to a
Standards Committee—
as witnesses have in a court of law.
(2) In this section, Standards Committee includes an investigator and any other person acting on behalf of, or as the delegate of, a Standards Committee.
[41] The relevant provision in the Evidence Act 2006 is s 60, which provides:
(1) This section applies if—
(a) a person is (apart from this section) required to provide specific information—
18 NZ Bill of Rights Act 1990, s 26(2).
19 Harder v Director of Land Transport Safety (1998) 5 HRNZ 343 at 347.
(i) in the course of a proceeding; or
(ii) by a person exercising a statutory power or duty; or
(iii) by a constable or other person holding a public office in the course of an investigation into a criminal offence or possible criminal offence; and
(b) the information would, if so provided, be likely to incriminate the person under New Zealand law for an offence punishable by a fine or imprisonment.
(2) The person—
(a) has a privilege in respect of the information and cannot be required to provide it; and
(b) cannot be prosecuted or penalised for refusing or failing to provide the information, whether or not the person claimed the privilege when the person refused or failed to provide the information.
[42] The outcome of this section is clear, a person cannot be required to provide information which may be self-incriminating. The provision does not afford protection to someone who freely makes a statement to the Standards Committee, then later wishes to seek protection.
Providing regulated services
[43] I deal with the appellant’s submission that the Tribunal was incorrect in its finding that the communications in question occurred at a time when the appellant was providing regulated services. In his submissions, the appellant states:
I had issued the subject correspondence [a] in the course of acting for myself in my own personal interest and defence of a vexatious action to save my time and costs against an action and [b] to protect my clients the MAs, that I am ordinarily their lawyer of over ten years standing.
[44] In Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal the Court considered s 7(1)(a)(i) in relation to s 7(1)(b)(i) and found that there was no gap between the two categories; conduct is either connected or unconnected with
the provision of regulated services. 20 The Court said:21
20 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987, [2015] NZLR 606.
…it is necessary to return to the proposition that the two definitions in ss 7(1)(a)(i) and 7(1)(b)(i) cover the entire field. Mr Orlov’s conduct will come under s 7(1)(b)(i) only if it is not the provision of regulated services (which it is not) and if it is unconnected with the provision of legal services. It is this aspect of the definitions that we consider is crucial. Whilst not regulated services, the conduct is very much connected with the provision of such services and therefore comes within the s 7(1)(a)(i) limb of professional misconduct
[45] In determining that one particular piece of correspondence was related to the provision of legal services the Court stated:22
The final document, the complaint to the Human Rights Review Tribunal, we accept is the least clear. By its nature it is a personal claim, being an allegation of discrimination against the practitioner, and a breach of rights that can only be personal to the lawyer (as opposed to involving a claim for a client). But again, given that the person alleged to have discriminated is a Judge, the person complaining is a practitioner, and the context is litigation in which both were involved, we do not consider it is a claim “unconnected to the provision” of legal services. Rather, it directly stems from litigation and puts what happened in litigation squarely in issue.
The principles from Orlov were confirmed in A v Canterbury Westland Standards
Committee No 2 of the New Zealand Law Society.23
[46] The behaviour at issue in this case is a series of communications from the appellant to other practitioners and to the LCS. The appellant submits that the communications were made by him on a personal basis; however, he also states that he was aiming to protect his clients. In addition the communications were to people also involved with the legal profession and related to court proceedings. Looking at the communications in context, it cannot be said that they are unconnected with the provision of legal services.
Disgraceful or dishonourable conduct
[47] I deal with the appellant’s submission that his behaviour was not disgraceful or dishonourable conduct and that the serious misconduct finding against him for extravagant language had been wholly Wednesbury unreasonable that no competent,
reasonable and fair authority would even consider imposing it.
22 At [110].
23 A v Canterbury Westland Standards Committee No 2 of the New Zealand Law Society [2015] NZHC 1896 at [50]-[57].
[48] In his submissions, the appellant offers various explanations for the statements in question, including:
(a) “Understanding that I do practice to this nagging Conscience of
mine will assist in understanding why I did what I did.”
(b) “My use of colloquial and other expressions (ie, waste of my time) were mere incidental passing remarks, ordinarily that one uses to express oneself for which I could and must not be sanctioned for.”
(c) That what the Tribunal considered threats were legal demands.
(d) That what the Tribunal considered insults were justifiable criticisms. [49] The test set out in the LCA for misconduct is that a reasonable lawyer of
good standing would regard the behaviour as disgraceful or dishonourable. In Orlov, the appellant claimed that his expressions were permitted under his right to freedom of speech. The Court stated:24
…Given that, where the alleged misconduct consists only of speech, we have no difficulty with the idea that a significant level of robustness is required…
… We consider that lawyers of good standing would recognise the importance of freedom of expression, and not be unduly concerned or condemnatory of extravagant language, and misguided opinions, at least as long as there was no bad faith.
The Court went on to state that the right to freedom of expression is not absolute.25
[50] The correspondence in question does use extravagant language; however, the intention behind the statements is clear. In the Tribunal, Mr Collins for the LCRO submitted that statements made by the appellant were more than a mere dispute between practitioners because of:
(a) the persistent personal attacks; (b) the threat of menace;
(c) the allegations of racism and mental illness; and
24 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 20 at [82]-[83].
(d)the descent into unprofessionalism in the suggestion of a wager on the plaintiff’s case.26
[51] I find the appellant’s argument that the Tribunal misconstrued colloquialisms used by him to be unconvincing. This was more than extravagant language. The statements made by the appellant did contain the features listed by Mr Collins.
[52] The statements made by the appellant are not in accordance with the Conduct and Client Care Rules which require that a lawyer must not threaten to make an accusation against a person for any improper purpose, that a lawyer must maintain proper standards of professionalism, and that a lawyer must treat other lawyers with
proper respect and courtesy.27
[53] I conclude that the statements made by the appellant would be regarded by lawyers of good standing as disgraceful and dishonourable conduct. Therefore, the test in s 7(1)(a)(i) is met. Accordingly, the appeal against the liability decision is refused.
Suspension
[54] The Tribunal imposed a two month suspension period on the appellant. It reached this penalty by following the following steps:
(a) establishing a starting point in accordance with the seriousness of the offending;
(b)taking into account aggravating features including disciplinary history;
(c) taking into account mitigating features including the manner of response to the process,
26 Legal Complaints Review Officer v Hong, above n 1 at [65].
27 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 2.7, 10 and
10.1.
(d)undertaking a comparison with other penalties imposed for similar offending; and
(e) undertaking an overall assessment of the fitness of the practitioner and a consideration of the least restrictive penalty to be imposed.
[55] In following this process the Tribunal had regard to four main authorities:
Daniels,28 Sisson, 29 Dorbu30 and Hart.31
[56] In setting the starting point the Tribunal noted that while the conduct of the appellant was more than a mere spat between lawyers, it did not involve serious risk or damage to clients and the appellant was not acting dishonestly. The Tribunal set a starting point of three months’ suspension. The appellant submits that the Tribunal erred in this respect and failed to consider that he was acting in what he believed were his best interests and the best interests of his former clients and that the statements were not widely distributed.
[57] The appellant takes issue with the statement in the decision in which the Tribunal agrees with the findings of Winkelmann J that the conduct was more serious than a spat between lawyers.32 The appellant states the Tribunal breached the Evidence Act 2006 by taking judicial decisions as fact without enquiring into the facts itself. However, the Tribunal is merely noting that, after its own enquiry, it agrees with Winkelmann J. The Tribunal had conducted a hearing and was well
placed to make judgments of fact.
[58] I consider that the Tribunal was correct in finding that the conduct was more serious than a spat between lawyers. The issues raised by the appellant on this matter have no basis. The Tribunal did take into account that the appellant believed he was
acting fairly, stating that the offending did not feature any dishonesty.
28 Daniels v Complaints Committee 2 of the Wellington District Law Society [2011] 3 NZLR 850.
29 Sisson v Standards Committee 2 of the Canterbury-Westland Branch of the New Zealand Law
Society, above n 17.
30 Dorbu v New Zealand Law Society [2012] NZHC 564, [2012] NZAR 481.
31 Hart v Auckland Standards Committee 1 of the New Zealand Law Society [2013] NZCA 673.
[59] The Tribunal considered that the aggravating features in this case were that the attacks were over a significant period of time, indicating that they were not a momentary lapse. The Tribunal also noted that the appellant’s lack of insight and remorse cannot be an aggravating factor. This is in accordance with Daniels where the Court stated:33
A Tribunal, when determining ultimate fitness to remain in practise, whether limited by suspension, or by striking off, is entitled to review the entire conduct of the practitioner and transgressions the subject of the disciplinary proceedings, and the general behaviour of the practitioner. It cannot regard poor behaviour as justifying more severe penalties, but it is the obvious absence of a mitigating factor and relevant to balancing matters of character.
[60] The Tribunal also considered the appellant’s previous history of misconduct but noted “we have placed little weight on Mr Hong’s previous offending particularly given that there is no previous offending of a similar nature to that under consideration.”34
[61] The Tribunal considered that the lack of dishonesty was a mitigating factor, as was the fact that he had previously served a four month suspension unnecessarily on an unrelated matter. The Tribunal accepted that the appellant felt provoked by Mr Deliu but stated that this could not excuse his behaviour. The Tribunal also accepted that the appellant’s health had suffered as a result of these proceedings and his dispute with Mr Deliu.
[62] The appellant submits that the Tribunal made an error in requiring him to tender medical evidence as to his stress levels. This is based on an incorrect reading of the decision which clearly provides “[w]e have no difficulty in accepting that this is the case, given the number of proceedings, although we note we have no specific medical evidence about Mr Hong’s current health.”35
[63] The appellant also submits that the Tribunal erred in considering his previous suspension, which became unnecessary, as a mitigating factor. I am unsure how this could assist his appeal.
[64] In Sisson the Court discussed the applicability of personal difficulties as mitigating factors, stating:36
The Tribunal paid due regard to these matters…However, the Tribunal rightly observed that while personal circumstances may be taken into account they cannot predominate the exercise of a protective jurisdiction.
In my opinion the Tribunal was generous in allowing the mitigating factors that it did.
[65] The Tribunal then considered other decisions involving similar types of conduct and the overall fitness of the practitioner, in particular A v Canterbury Westland Standards Committee No 2 of the New Zealand Law Society and Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal.
[66] In Orlov the charges related to five separate occasions on which Mr Orlov wrote complaints about Harrison J. The Tribunal ordered that Mr Orlov be struck off. On appeal the Court noted:37
It is well settled that a lawyer’s conduct in relation to the disciplinary process is relevant to the question of sanction, and can aggravate the original offending (footnotes omitted).
In that case, the subsequent behaviour included repeating the statements which were the subject of the charges. The Court also noted that Mr Orlov attempted to take his concerns about Harrison J through the correct channels,38 and that he was not acting in bad faith.39 The Court held that the penalty of being struck off was too severe.40
The Court did not consider an alternative penalty as Mr Orlov had already been struck off for eight months.41
[67] In this case, the Tribunal summarised Orlov stating “the Court found that the seven month suspension that had been served by Mr Orlov reflected an appropriate
36 At [57].
37 At [190].
38 At [195].
penalty”.42 This is an incorrect interpretation of the decision. The Court in Orlov chose not to consider an alternative penalty; it cannot be used as authority that the suspension served in that case was the correct penalty.
[68] In A v Canterbury Westland Standards Committee No 2 of the New Zealand Law Society the Court, on appeal, found that the appellant was guilty of two charges of misconduct and one charge of unsatisfactory conduct. Part of these charges related to correspondence between lawyers. In that case Venning J did not order suspension noting:43
Having considered the submissions of counsel I reject Ms Davenport's submission that suspension was required. While the appellant's conduct is properly categorised variously as misconduct and unsatisfactory, given it is the first example of such conduct, and given the provocation by the rude and intemperate correspondence from Mr G I am satisfied that censure and an order for payment of costs is a sufficient penalty.
[69] In this case, the appellant has previously been disciplined. However, this in itself may not justify the discrepancy between censure in A v Canterbury Westland Standards Committee 2 of the New Zealand Law Society and a two month suspension in this case.
[70] I have been unable to find any existing cases where behaviour similar to that of the appellant’s has resulted in suspension other than Orlov. However, looking at the entirety of the situation including the appellant’s subsequent behaviour I consider that the Tribunal was correct in considering that a penalty of censure would be unlikely to cause the appellant to reflect on his behaviour, save for one matter.
[71] I refer to the suspension served in respect of the later quashed decision.
[72] At [23] of the penalty decision, the Tribunal referred to the suspension that had been served prior to the setting aside of the decision in which it was ordered. The Tribunal said:
The strongest factor which we can take into account for Mr Hong is that he has served a period of four months suspension unnecessarily. The difficulty
is that it was in connection with an entirely separate matter, but we do consider that this period must be taken into account in the overall interests of justice.
[73] The background to that suspension I will shortly state. It arose following the conviction in the District Court of Mr Hong’s client. The Judge criticised advice given by Mr Hong and referred Mr Hong’s advice to the Law Society.
[74] The Auckland Standards Committee (No 3) found that Mr Hong’s conduct was unsatisfactory. Mr Hong did not comply with the Committee’s decision. The Committee referred his non-compliance to the Tribunal. It suspended Mr Hong from practice for a period of ten months.44
[75] Mr Hong appealed the penalty decision to the High Court. Gilbert J, acting in reliance on s 253 of the LCA allowed the appeal and substituted a suspension of four months, but left a substantial cost order in place.
[76] Mr Hong next filed an application for judicial review, both in respect of the Committee’s decision and the Tribunal’s decision. That proceeding was heard by Kós J on 6 August 2015.
[77] In his judgment delivered on 14 October 2015, his Honour confirmed the Court’s role in judicial review proceeding,45 citing with approval the comments of Brewer J in Dorbu v Lawyers and Conveyancers’ Disciplinary Tribunal to the effect that the Court’s role is to ensure that the decisions challenged by the applicant were made according to law.46 The Court has no jurisdiction to overturn a decision of the Tribunal which was made within its power and according to due process.
[78] His Honour, after reviewing the case, concluded that the Committee failed to have regard to a very relevant consideration and set the decision aside. He next considered the Tribunal’s decision and concluded that “…the most just outcome is to
set aside the decision of the Tribunal …”47
44 Hong v Auckland Standards Committee No 3 [2014] NZHC 2871.
45 Hong v Auckland Standards Committee No 3 [2015] NZHC 2521.
46 Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV-2009-404-7381
11 May 2011.
47 Hong v Auckland Standards Committee No 3, above n45 at [60].
His Honour left open whether the Law Society reinitiates its investigation on its own motion of the matter that was considered. I have now been advised by Mr Collins that the Law Society has determined to take no further action on that matter.
[79] Kós J’s decision was delivered on the day of the penalty hearing, namely
14 October 2015. I agree with the Tribunal’s comment that, in the unusual circumstances that had occurred, the period of suspension served “must be taken into account in the overall interests of justice”.
[80] What is not clear, however, is how the Tribunal applied that position to the facts of this case, bearing in mind its comment that the starting point was a suspension of three months duration.
[81] I am of the view that Mr Hong’s service of the unnecessary suspension removes the need to impose any further suspension in this case and it is for that reason alone that I conclude that it is appropriate to quash the two months suspension ordered by the Tribunal.
[82] The appellant has submitted excerpts from a number of Tribunal cases in memorandum dated 9 February 2016. None of these cases have similar facts to the present case.
[83] Accordingly, my conclusion is that the order of suspension is quashed.
Costs
[84] The Tribunal made two orders as to costs. The first related to the costs incurred by the LCRO in prosecuting the charges. The LCRO claimed costs of
$32,832 of these the Tribunal found that $4,000 was a result of the LCRO’s failure to originally include the alternative charge. In light of this, the Tribunal ordered that the appellant pay $27,000 costs to the LCRO. The Tribunal also ordered that the appellant meet the full costs of the Tribunal, these costs were certified at $12,331.
[85] The appellant submits that the Tribunal made an error in awarding costs as it failed to take into account that:
(a) as the hearing was a repeat, there was no need for further investigation or submissions;
(b)most of the hearing time had been taken up by Mr Collins’ cross- examination;
(c) the LCRO was biased against the appellant and this had resulted in the LCRO’s failure to include the alternative charge as part of the original charges and the LCRO seeking that the appellant be struck off;
(d)the reasons for the acquittal being quashed were not due to any fault of the appellant, but rather mistakes of the LCRO and the Tribunal; and
(e) the appellant had already suffered as a result of the mistakes of the
Tribunal and the LCRO.
[86] Unlike the other aspects of this appeal, an appeal against costs is an appeal against discretion. In Simes v Canterbury-Westland Standards Committee 2 of the New Zealand Law Society, Gilbert J stated:48
To succeed with such an appeal an appellant must show that the Tribunal acted on a wrong principle, failed to take into account relevant considerations, took into account irrelevant considerations, or was plainly wrong.
[87] The issue on appeal therefore, is whether the Tribunal made an error by failing to consider one of the considerations listed by the appellant.
[88] The appellant submits that as the hearing was “a repeat”, there was no need for further investigation and submissions and that this should have been taken into account by the Tribunal when making an award for costs. In my opinion, the hearing was not simply a repeat. The Andrews J decision had remitted the matter back to the Tribunal on the basis of errors of fact and law. The Tribunal could only give proper
effect to the orders of Andrew J and correct its errors by rehearing the matter. I do
48 Simes v Canterbury-Westland Standards Committee 2 of the New Zealand Law Society [2013] NZHC 1501 at [16].
not consider that the rehearing was an unnecessary cost, and the Tribunal was not required to consider it as such.
[89] The appellant submits that the Tribunal should have considered that most of the hearing was taken up by Mr Collins’ cross-examination. While the Tribunal can consider the actions of the parties when making an award of costs, there are no submissions as to why the cross-examination was excessive or unnecessary. In addition the Tribunal considered that the appellant “…did himself no favours by the
manner in which he conducted the disciplinary proceedings.”49 The Tribunal did not
make an error in failing to consider the length of Mr Collins’ cross-examination of the defendant.
[90] The appellant submits that the Tribunal should have considered the LCRO’s
bias against him. The appellant, in his notice of appeal states:
Deputy LCRO biased against me self evident: The deputy LCRO’s bias against me is self evidence in that [a] he had seen it fit to prosecute me over my writings instead of adjudicating on such himself [b] seeking only the misconduct charge in the 1st LCRO LCDT hearing, as only such that charge would appease him despite the fact that the LAW required him to frame all proper and alternative charges [c] adding about $4000 of his costs to the costs claim [d] seeking the strike off penalty against me. Such had also led me to the conclusion he is not fit for the role and I will be calling for him to be stood down (emphasis in original).
[91] The LCRO’s failure to plead the alternative in the first proceeding was considered by the Tribunal, who deducted $4,000 from the amount of costs ordered against the appellant to account for this. The appellant’s claim that the LCRO is biased against him is not supported by evidence and therefore is not a relevant consideration that the Tribunal should have considered.
[92] The appellant submits that he was not responsible for the errors causing the acquittal to be quashed and that the Tribunal should have taken this into account when awarding costs. This may be true; however, as no costs order was made against the appellant in relation to the acquittal, it has not been shown how this would
impact the award of costs in this case.
49 Legal Complaints Review Officer v Hong, above n 2 at [36].
[93] The appellant submits that he has already suffered as a result of the mistakes of the Tribunal and the LCRO and that the Tribunal should have taken this into account. The appellant does not make any submissions as to the nature of this suffering or how this should have been taken into account. Insufficient evidence has been provided to show that the Tribunal erred in this respect. I am not satisfied that the order for costs should be set aside.
Orders
[94] Accordingly, I order:
(a) The appeal against the liability decision is dismissed; and
(b)The order made in the penalty decision suspending the appellant for two months is quashed. The balance of the penalty decision is confirmed.
Costs
[95] Although the appellant has succeeded in reducing the penalty, his appeal has otherwise substantially failed. I am satisfied that the respondent is entitled to an order for costs on the appeal based on Category 2 Band B, plus disbursements as
fixed by the Registrar. I order accordingly.
JA Faire J
APPENDIX 1
2.2 In a letter dated 5 May 2010 to the Solicitor, the Practitioner said:
“As I am most concerned with the impact of the action on my good reputation, I am giving you the opportunity to have withdrawn immediately the action against me, failing which I will:-
(a) File a strike out action;
(b) File a complaint with the NZ Law Society on the ground that you are not competent to undertake this litigation for the client;
(c) On the strike out, seek for full costs against you (rather than the clients)
(d) File defamatory action and an action in tort against you on the grounds that as the clients’ counsels, you ought to be aware such frivolous action against me will cause a loss of my good reputation and name.”
2.3 In an email dated 13 May 2010 to the Solicitor, he said:
“Am glad you adhere to this cordiality among Practitioners. Obviously if none is shown towards me by a Practitioner I will not return that. My guess is one fellow at your end, exercised character assassination of me with my clients when he had an opportunistic meeting with them. At the conclusion of this action, it is my intent to determine whether my guess is correct and to
deal with that accordingly.
Note this advice, from a Practitioner with ample of years experience. You better get what you said you could for the clients or they will surely turn on you.”
2.4In a letter dated 13 May 2010 to the Solicitor he made allegations of incompetence against the Barrister and against the Junior Barristers, saying:
“I hope that you have checked that the barristers you engaged carry sufficient PI insurance.
Do not for a moment think that we could just take on anything, collect the fees and if anything goes wrong, that we can rely on PI insurance.
Once a claim is made and paid out, you will actually be bearing the brunt of it by way of much higher premiums.
Do not also think also that by trading through a limited liability company (and if without insurance) that one can avoid paying up, by winding up the company.”
2.5 In a letter dated 23 May 2010 to the Lawyers’ Complaints Service at
Auckland, he expressed himself in abusive and unprofessional terms
concerning the Barrister and the Junior Barristers, saying that:
(a) The drafting of pleadings by the Barrister and the Junior Barristers was characterised by “…blatant mistakes in material facts…which in my view was due to lack of due care and skill and their lack of courtesy to a fellow Practitioner”;
(b)The Barrister and the Junior Barristers “…are not competent in the areas and fields of the law that have an impact on the issues as raised in this action”;
(c) The Barrister was improperly motivated in complaining to the Lawyers’ Complaints Service because the complaint was “An attempt to silence me” and “An attempt to prevent me from communicating with [the Junior Barristers, and their instructing solicitor]…”;
(d) The Junior Barristers may be treated as “half fledged lawyers”;
(e) The Barrister and the Junior Barristers lacked “in-depth knowledge of conveyancing matters and legal precedents” and were acting outside their competency;
(f) The Barrister and the Junior Barristers had inadvertently and
incompetently breached their clients’ privileges;
(g) The Barrister and the Junior Barristers “…have no idea what a
fiduciary duty is”;
(h)Referring to pleadings prepared by the Barrister and the Junior Barristers, “…the general consensus will be that they have been done by amateurs”;
(i)The Barrister and the Junior Barristers had not complied with the intervention rule and were failing in their professional responsibilities because they “…wanted to run this litigation free of any scrutiny [by the instructing solicitor]”; and
(j)He [the Practitioner] would contact the plaintiffs directly, being the clients of the Solicitor, “…if these Counsels proceed with the action in its present form for the [plaintiffs] and disaster struck, I intend to seek out the [plaintiffs] and advise them of their right to have another senior Counsel look into addressing these concerns with the NZ Law Society”.
2.6In an email to the Lawyers’ Complaints Service at Auckland on 25 May 2010 he proposed an arrangement in which the complaint would be “put on hold”, while he took control of the plaintiffs’ case in the proceeding (after the claim against him had been put on hold), that he would work “behind the scenes”, that the Junior Barristers would consult with him, and that he would not communicate with the Barrister “…whom in my view is a pure waste of my
time”.
2.7In an email to the Lawyers’ Complaints Service at Auckland on 9 June 2010 he made comments disparaging of the Barrister and proposed the resolution of a conduct complaint by engaging in a form of wager with the Barrister:
“a. I have reviewed [Barrister’s] performance in Court pursuant to 57 judgments of which he acted as Counsel.
b.It is quite clear to me [Barrister] never accepts what anyone says, even learned Justices, to grave detriment of his clients.
…
h.I invite [Barrister] to ride this case against me as the [plaintiffs’] counsel. We both agree to a contingent fee. The one who loses pays that contingent fee to the other party as agreed award of costs. [Barrister] and his…Chamber counsels do not charge the [plaintiffs] at all. No costs need to be
sought. I nominate $30,000.00 plus GST. I have a counsel in mind already who was admitted in 2003. I am prepared to go as high a contingent fee as [Barrister] has funds for.
i.This will ensure as to the action against me the [plaintiffs] could not be any worse off and would only be better off, the pit will be between counsels and Practitioners and [Barrister] and his counsels will not be able to feed on such a vexatious claim. He will do so now at his own cost”.
2.8In a letter dated 17 June 2010 to the Lawyers’ Complaints Service at Auckland he made allegations about the Barrister, namely that he (the Barrister):
(a) “Holds utter contempt for our Judges”;
(b) “Holds utter contempt for our Law Society”;
(c) “Holds utter contempt for the rest of us, his fellow Kiwi colleagues as he reckoned he is the best and the rest of us incompetent”;
(d)“Has no respect of any of us, legal Practitioners and showed us no courtesy whatsoever (which makes his complaint of my being disrespectful and discourteous ludicrous and farcical)”;
(e) “By reference to Kiwis and Chinese, holds racists inclinations”;
(f) “…had shown such thuggery towards others”;
(g) Is “mentally unstable”;
(h)“…should [Barrister] be stupid enough to try, either the defamation action or anything physical, he will surely end up at the sorry end of the stick…”;
(i)Routinely breached fiduciary duties to his clients and that he “…instigated actions that were clearly not in the interest of his clients”;
(j)Routinely breached his duties to the Court and intentionally misled the Court; and
(k) Routinely breached the intervention rule.
2.9 In a letter to the Lawyers’ Complaints Service at Auckland on 15 September
2010 he made threats of menace and physical violence concerning the
Barrister:
“As to [Barrister’s] comments on my two Rottweilers and [Barrister’s]
worry of his and his staff ’s safety, I have to add these:-
One is a Border Collie and the other is a Boxer (my loyal gals). Yes, [Barrister] better be concerned about this safety should he
attempt to approach my office or me (having been warned previously not to do so…but it should not be my two gals that he should be beware off, it should be the ‘sorry end of my stick’!
I am reminded that [Barrister] had previously made a veiled physical threat against me and I have concluded that he is mentally unstable by that threat he made against me and by the intimidating behaviour against others in a Law Society meeting as reported of him in the news.
This warning from me to him is therefore to put it on record that I am very concerned and may strike pre-emptively on his approach to protect myself!
I certainly am not going to let him come close enough to jump me!”
2.10In written submissions to the Legal Complaints Review Officer, for the purpose of a review hearing on 24 May 2012, he acknowledged his own unethical practises, purportedly justified by achieving results for his clients:
“I attach…a most unorthodox memorandum I filed with the Tribunal and yes I decided to take some risks on this case too (1) continuing to act for the 5 client Practitioners despite objections from opposition counsels and (2) stated in my view these counsels acted in bad faith, all in the interest of protecting my clients particularly one who is elderly and in ill-health.
As it turned out all went good, opposition counsels did not file complaints against me [I had perceived the risks they might] and I finally managed to have this leaky claim action against these five client Practitioners discontinued.”
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