Hong v Legal Complaints Review Officer

[2015] NZHC 2444

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2170 [2015] NZHC 2444

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:	6 October 2015
Appearances:	Appellant in person P Collins for respondent
Judgment:	7 October 2015

JUDGMENT OF KATZ J [Stay application]

This judgment was delivered by me on 7 October 2015 at 3:00pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitor:           B.G. Hong Law Firm, Auckland

Legal Complaints Review Officer, Auckland

Counsel:           P Collins, Shortland Chambers, Auckland

HONG v LEGAL COMPLAINTS REVIEW OFFICER [2015] NZHC 2444 [7 October 2015]

[1] The appellant, Boon Gunn Hong, is a lawyer. He has been found guilty by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”) of misconduct pursuant to s 7(1)(a)(i) of the Lawyers and Conveyancers Act 2006 (“liability decision”).1

[2]      Mr Hong has filed an application under r 20.10 of the High Court Rules for interim relief in the form of an order directing the Tribunal not to determine his penalty until his appeal against the liability decision is heard and determined.  A half day  hearing  on  penalty  issues  is  currently  scheduled  for  14 October  2015. The respondent, the Legal Complaints Review Officer (“LCRO”) opposes the stay application.

[3]      Rule 20.10 provides:

20.10 Stay of proceedings

(1)      An appeal does not operate as a stay-

(a)      of the proceeding appealed against; or

(b)      of enforcement of any judgment or order appealed against.

(2)      Despite subclause (1), the decision-maker or the court may, on application, do any one or more of the following pending determination of an appeal:

(a)      order  a  stay  of  proceedings  in  relation  to  the  decision appealed against:

(b)      order  a  stay  of  enforcement  of  any  judgment  or  order appealed against:

(c)      grant any interim relief.

(3)      An order made or relief granted under subclause (2) may-

(a)      relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:

(b)      be subject to any conditions for the giving of security the decision-maker or the court thinks just.

1      Legal Complaints Review Officer v Hong [2015] NZLCDT 27.

[4]      Rule 20.10(2) confers a broad discretion.   In Fullers Bay of Islands Ltd v

Otehei Bay Holdings Ltd, Asher J observed:2

The aim is to prevent developments in the interim which may stop the appellate Court being able to do justice on the points at issue, when they are determined. The rule is headed “Stay of proceedings and execution”. The relief sought must have a direct connection to the proceedings, or execution of the Judgment.

[5]      Mr Hong submitted that he has strong grounds of appeal (which he outlined at length in his written submissions) and that his appeal will, to some extent at least, be rendered nugatory if interim relief is not granted.  He further submitted that there is little or no risk to the public (namely consumers of legal services) if interim relief is granted and that the failure to grant interim relief would have a catastrophic effect on his practice in the event that the Tribunal makes an order striking him off.  This would prejudice not only him, but his clients.

[6]      Similar arguments were recently considered by Simon France J in Lagolago v Wellington  Standards  Committee  2.3    His  Honour  concluded  that  it  was  not appropriate to grant an order directing the Tribunal not to determine penalty until the liability appeal was heard and determined, for the following reasons:4

Sound public policy reasons underlie the normal practice of proceeding to determine   the   penalty   hearing   expeditiously.  First,   in   the   case   of professional disciplinary matters it is preferable that the appropriate consequences be identified promptly.  It may then be possible to stay them pending an appeal, but in some cases the need to protect the community may prevail.

Second, it is more conducive to sound decision making that the Tribunal conducts the penalty hearing promptly whilst matters are fresh. It is also more efficient since otherwise there will be need to reconvene after an indeterminate period of delay. Next, it is preferable that the High Court have all appealable decisions before it at the one time. Its task on appeal is to “confirm, reverse or modify”, and it is both undesirable and inefficient to have appeals from the same matter arising on different occasions.

Finally, it is plainly consistent with the stated purposes of the Act for the disciplinary hearing to be concluded as promptly as possible.5    The penalty hearing  is  an  integral  part  of  that  process.  Prolonging  the  process  is something that should only occur for good reason.

2      Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-007207,

23 February 2011 at [15].

3      Lagolago v Wellington Standards Committee 2 [2015] NZHC 2187.

4      At [8] to [10].

5      Deliu v New Zealand Law Society [2012] NZCA 359 at [10].

In my view such reasoning is equally applicable in this case.

[7]      The Act recognises that there is a strong public interest in matters relating to the discipline of the legal profession being dealt with expeditiously.  Part 7 of the Act states that the framework in relation to complaints against lawyers is intended to ensure that such complaints be “processed and resolved expeditiously”6  and that disciplinary charges “be heard and determined expeditiously”.7   The Court of Appeal

has  recently  reaffirmed  the  importance  of  proceedings  under  the  Act  being determined expeditiously, for the benefit of consumers of legal services and for the legal profession as a whole, and noted that one of the central objectives of the Act is to provide for “a more responsive regulatory regime in  relation to lawyers and conveyancers”.8

[8]      Mr Hong will, of course, be entitled to appeal any penalty decision and will also be able to make a further stay application at that time. Whether a stay is granted at that stage will depend on all of the relevant circumstances, including the severity of the penalty that has been imposed.  In Hart v Auckland Standards Committee 1 of New Zealand Law Society Lang J observed that the Court would exercise the power to grant interim relief from suspension sparingly, and only in circumstances where it can be confident that any order it might make would not place members of the public

at risk.9   Obviously, a stay in respect of a lesser penalty (such as a fine) may be more

readily granted.

[9]      Given the consumer protection purposes of the Act and the legislative focus on expedition it is not appropriate, in my view, to launch a  pre-emptive strike on the Tribunal’s ability to determine penalty issues at this stage.  Rather, the appropriate course is for the Tribunal’s current disciplinary process to run its course and for any penalty appeal to be considered and determined together with the existing liability appeal.    Stay issues  in  relation  to  any penalty  imposed  are  more  appropriately

considered once the penalty (and the Tribunal’s supporting reasoning) is known.

6 Lawyers and Conveyancers Act 2006, s 120(2)(b).

7 Lawyers and Conveyancers Act, s 120(3).

8      Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562 at [165] to [169].

See also Deliu v New Zealand Law Society [2012] NZCA 359 at [10].

9      Hart v Auckland Standards Committee 1 of New Zealand Law Society [2012] NZHC 2496.

[10]     I  accept  that  allowing  the  disciplinary process  to  run  its  course  has  the potential to cause hardship to Mr Hong, and his clients, pending determination of the appeal(s), particularly in the event that a stay of the penalty decision is not granted. However, as Lang J observed in Hart, Parliament must have been aware of those outcomes, but clearly chose to introduce a regime designed to ensure that the community  was  protected  notwithstanding  the  consequential  hardship  for  an

appellant and his or her clients.10

[11]   For the reasons I have outlined, I have not been persuaded that the circumstances of the present case justify granting the interim relief Mr Hong seeks. The application is accordingly dismissed.   Costs are reserved, to be determined

together with the costs of the substantive appeal.

Katz J

10     Hart v Auckland Standards Committee 1, above n 9, at [29].