Mizoguchi v Immigration Advisers Complaints and Disciplinary Tribunal
[2017] NZHC 3198
•19 December 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2017-404-001318
[2017] NZHC 3198
UNDER the Judicial Review Procedure Act 2016 and the Immigration Advisers Licensing Act 2007 IN THE MATTER
of a judicial review of decisions of the Immigration Advisers Complains and
Disciplinary Tribunal and the Registrar of Immigration Advisers
BETWEEN
KOTARO MIZOGUCHI
Applicant
AND
THE IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL
First Respondent
THE REGISTRAR OF IMMIGRATION ADVISERS
Second RespondentKENTARO SHIHAKU
Third Respondent.
Hearing: 4 December 2017 Appearances:
AJB Holmes for Applicant
IMG Clarke and RDL Garden for Respondents
Judgment:
19 December 2017
JUDGMENT OF JAGOSE J
This judgment is delivered by me on 19 December 2017 at 11.30 am pursuant to r 11.5 of the High Court Rules.
MIZOGUCHI v THE IMMIGRATION ADVISERS COMPLAINTS AND DISCIPLINARY TRIBUNAL [2017] NZHC 3198 [19 December 2017]
.....................................................
Registrar / Deputy Registrar
Introduction.......................................................................................................... [1]
Complaints against immigration advisers....................................................... [13]
The application for review................................................................................ [17]
—first ground of review [17]
—second ground of review [22]
—third ground of review [36]
—fourth ground of review [37]
—fifth ground of review [42]
Result.................................................................................................................. [46]
Costs.................................................................................................................... [48]
Introduction
[1] The applicant, Kotaro Mizoguchi, is a provisionally licenced immigration advisor. A complaint against him was referred to the first respondent, the Immigration Advisers Complaints and Disciplinary Tribunal (the “Tribunal”), established by s 40 of the Immigration Advisers Licensing Act 2007 (the “Act”).
[2] The complaint was laid by the second respondent, the Registrar of Immigration Advisers (the “Registrar”), appointed under s 34(1) of the Act as part of the Immigration Advisers Authority (the “Authority”). The complaint was in relation to Mr Mizoguchi’s provision of immigration advice to the third respondent, Kentaro Shihaku. The substance of Mr Shihaku’s complaint is not presently relevant. He took no material part in the proceeding.
[3] Before referring the complaint to the Tribunal, the Registrar notified Mr Mizoguchi of the complaint, and gave him opportunity to provide a response. Mr Mizoguchi responded the concerns were finally settled in terms of a settlement deed between him and Mr Shihaku. Upon referring the complaint to the Tribunal, the Registrar characterised the complaint as breaching the Licensed Immigration Advisers
Code of Conduct (the “code of conduct”) to be observed by licensed immigration advisers in particularised ways.
[4] Mr Mizoguchi’s statement of reply to the complaint, made without benefit of legal advice, relied on the settlement deed as partially answering the complaint.
[5] The Tribunal took the view the statement of reply “invites further examination”. It scheduled a hearing only to “question Mr Mizoguchi regarding his statement of reply… a limited inquiry to examine Mr Mizoguchi’s response, not an open enquiry into the complaint”. Formally it directed Mr Mizoguchi “to appear before the Tribunal to make a statement and provide an explanation in respect of this complaint”.
[6] Mr Mizoguchi, now with legal representation, filed a further statement in which he provided a comprehensive response to the complaint, explaining in part his misunderstanding the Authority had a role in mediating disputes between advisers and their clients.
[7] At the examination hearing, after querying Mr Mizoguchi’s understanding of the Authority’s role, the Tribunal considered Mr Mizoguchi’s reliance on the settlement deed offered further grounds of complaint, beyond the scope of the Registrar’s reference to it. While asserting an inquisitorial power, the Tribunal sought the Registrar’s view of those additional issues, and adjourned the examination for that purpose. The transcript of the examination hearing is set out at the Schedule to this judgment.
[8] The Registrar responded by filing an amended statement of complaint incorporating those further grounds, but without providing Mr Mizoguchi advance opportunity to respond to the complaint’s amended content.
[9] Mr Mizoguchi alleged the examination hearing undermined the statutory complaints process by having regard to matters beyond those the subject of the original complaint, and disqualified the Tribunal member for bias from determining the substantive complaint (in original or amended form). By decision of 19 June 2017, the
Tribunal rejected the allegation, holding it had inquisitorial powers, and was not bound to give advance notice of its inquiries to those inquired about, subject to obligations of natural justice, before reaching any conclusion on its determination of a complaint.
[10] Mr Mizoguchi now applies for judicial review of aspects of the complaint’s handling by the Registrar and Tribunal, categorised variously as breaches of natural justice or ultra vires decisions, alleging:
(a)the Tribunal failed to give Mr Mizoguchi notice of the further grounds of complaint before examining him on them;
(b)the Registrar and the Tribunal – respectively in filing the amended complaint, and accepting it for filing – each failed to abide by the Act’s procedures for dealing with complaints;
(c)the Tribunal member was disqualified by apparent bias from sitting in further hearings relating to Mr Mizoguchi; and
(d)the Tribunal lacks power to go beyond the grounds of complaint before it.
[11] The Registrar accepts Mr Mizoguchi should have had, and will afford him, advance opportunity to consider the complaint’s amended content before (re-)filing it in the Tribunal. Otherwise, she says, there is nothing in the Registrar’s prosecution of the complaint, or in the Tribunal’s examination of Mr Mizoguchi, for this Court’s review.
[12]The Tribunal abides the Court’s decision.
Complaints against immigration advisers
[13] Section 41 of the Act relevantly provides the Tribunal’s functions include “mak[ing] decisions on matters about immigration advisers that are referred to the Tribunal by the Registrar under section 48”.
[14] The Act contains a detailed procedure for the making of complaints “concerning the provision of immigration advice by… a licensed immigration adviser”, requiring such complaints to be in relation to specific grounds (including “a breach of the code of conduct”), and made in writing to the Registrar.1 Section 45(1) enables the Registrar to reject such complaints for particular reasons, but otherwise she must “refer the complaint to the Tribunal for determination”.2 The Registrar also has an ‘own motion’ jurisdiction to make a complaint on s 44’s grounds, for determination by the Tribunal.3
[15]In either case, ss 47 and 48 provide:
47 Preparation of complaint for referral to Tribunal
(1)For the purpose of preparing a complaint for submission to the Tribunal, the Registrar or a person authorised by the Registrar may gather further information on the complaint, including by exercising the powers of inspection referred to in section 57.
(2)Before referring a complaint to the Tribunal, the Registrar must—
(a) notify the person complained of, in writing, of the complaint; and
(b) give both the complainant (if any) and the person complained about a reasonable opportunity to make a written statement or explanation in relation to the complaint.
(3)The notice required by subsection (2)(a) must identify the complainant (if any), unless the Registrar considers that exceptional circumstances justify the withholding of the complainant’s identity.
48Filing complaint with Tribunal
(1)After determining to refer a complaint to the Tribunal under section 45(2) or 46(1), the Registrar must, having gathered such further information in relation to the complaint as he or she thinks fit (if any), file the complaint or matter with the Tribunal.
(2)Upon filing the complaint, the Registrar must—
(a) give written notice of the referral, a copy of the complaint, and any further information that has been gathered on the complaint to the person to whom the complaint relates; and
(b) give written notice of the referral to the complainant (in the case of a determination under section 45(2)).
1 Immigration Advisers Licensing Act 2007, s 44.
2 Section 45(2).
3 Section 46.
[16] Section 49 permits the Tribunal to regulate its procedures as it sees fit, and gives it powers to “request further information from any person in relation to a complaint or matter” and “request that any person appear before the Tribunal to make a statement or an explanation in relation to a complaint or matter”.4 Otherwise “[m]atters or complaints must be heard on the papers”.5 If upholding the complaint, the Tribunal may impose identified sanctions, including suspension or cancellation of an immigration adviser’s licence, refund of fees or expenses, and payment of reasonable compensation. The Tribunal is required to give reasons for its decision.
The application for review
—first ground of review
[17] Mr Mizoguchi complains the Tribunal identified additional potential grounds for complaint in the documents, and examined him in relation to those additional potential grounds without their prior disclosure. Counsel for Mr Mizoguchi, Antony Holmes, argued this is a breach of natural justice, as the Tribunal failed to give Mr Mizoguchi notice of the case he was to meet. Instead, Mr Holmes submitted, Mr Mizoguchi “failed to pass a test that he did not know he was sitting”.
[18] I disagree. First, the Tribunal has a mandate broader than the particularised complaints referred to it, extending to “decisions on matters about immigration advisers” so referred.6 Second, the Tribunal is entitled to request Mr Mizoguchi appear before it to make a statement or explanation in relation to such matters.7 Third, the Tribunal was not making a decision on the matter, but only giving the Registrar opportunity to amend the complaint, if the Tribunal could not be satisfied the additional potential grounds were without substance.
[19] It is well recognised the right to natural justice in any case depends on the context,8 and its extent varies “with the power that is exercised and the particular
4 Section 49(4).
5 Section 49(3).
6 Section 41(a).
7 Section 49(4)(b).
8 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
circumstances, including the statutory context, in which a decision is made”.9 Here the power being exercised was only to request (not even ‘require’) an explanation. No decision was being made by the Tribunal at the 16 December 2016 hearing. In advance of determining the complaint, to use Mr Holmes’ analogy, the Tribunal was checking Mr Mizoguchi would be sitting the correct test.
[20] So far as the statutory context is concerned, “[t]he Registrar and Tribunal have a Parliamentary mandate to enforce standards”.10 The authors of Disciplinary and Regulatory Proceedings also observe:11
A disciplinary tribunal is an expert tribunal and should not be expected to stay mute.12 Indeed, in disciplinary proceedings, the most penetrating questions often emanate from the tribunal rather than the advocates. Provided that questions are asked fairly, and witnesses are not harassed,13 there can be no objection to a tribunal taking an active part in the proceedings by asking pertinent questions on the important issues.
[21] The Tribunal is likely obliged to consider whether the material before it gives rise to matters of prospective discipline other than the articulated complaint.14 Indeed, although of a different profession, “[i]t is in the public interest that a person charged before the Tribunal should face appropriate charges”.15 The Tribunal’s own Practice Note recognises that obligation by requiring the Registrar to include in the referred complaint “[t]he issues to be determined by the Tribunal, without limiting or confining the Tribunal if it considers other issues arise” (emphasis added).16
—second ground of review
[22] Mr Mizoguchi next complains the Registrar filed the amended complaint without receiving any complaint raising the additional potential grounds, and without giving him “a reasonable opportunity to make a written statement or explanation” in relation to it. He says that is the “mandatory statutory process”.
9 Lyttelton v Police [2016] NZHC 22, [2016] NZAR 493 at [35].
10 ZW v Immigration Advisers Authority [2012] NZHC 1069 at [41].
11 Gregory Treverton-Jones QC, Alison Foster QC, and Saima Hanif Disciplinary and Regulatory Proceedings (9th ed, 2017, LexisNexis, London) at 239.
12 See Ruscillo v The Council for the Regulation of Health Care Professional and the General Medical Council [2004] EWCA Civ 1356
13 See Roylance v General Medical Council [1999] UKPC 16.
14 Faavae v Minister of Immigration [1996] 2 NZLR 243 at 247.
15 Deliu v National Standards Committee of the New Zealand Law Society [2015] NZCA 399 at [31].
16 Immigration Advisers Complaints and Disciplinary Tribunal Practice Note 1 2010, cl 2.3.7.
[23] Again, I disagree. There is no statutory process for amending a complaint. The statutory process requires any received complaint to be referred to the Tribunal is to be “prepared for submission to the Tribunal under section 47”.17 As the ‘own motion’ provision makes plain, there is no requirement for the Registrar first to have received a complaint. ‘Own motion’ complaints are also to be prepared for referral to the Tribunal, but not expressly under s 47.18 Only preparation for referral under s 47 includes the Registrar’s provision of notice and opportunity to respond to the person complained about.
[24] Absent s 47, I am less sure natural justice alone would require, in advance of reference to the Tribunal, an opportunity for the person complained of to respond to the amended complaint. Plainly the Tribunal could not determine the amended complaint without affording Mr Mizoguchi an opportunity to respond, as an outworking of the fundamental right to be heard,19 but I do not see any necessity for that to occur in advance of the Registrar referring the amended complaint to the Tribunal.
[25] Assuming s 47 has universal application to all complaints prepared for referral to the Tribunal, however, I agree the Registrar was required first to notify Mr Mizoguchi, in writing, of the amended complaint, and give him a reasonable opportunity to make a written statement or explanation in relation to it. The Registrar accepts that was Mr Mizoguchi’s entitlement, which she failed to provide.
[26] The Registrar’s senior counsel, Isabella Clarke, sought an order remitting the amended complaint back to the Registrar. She described it as being “for completion of the consultation process”. Without any obligation on the Registrar to take account of Mr Mizoguchi’s response before referring the complaint to the Tribunal, I doubt ‘consultation’ is an apt description.20 I do agree, if the amended complaint remains on foot, it should not be referred to the Tribunal without Mr Mizoguchi having a reasonable opportunity to respond to it.
17 Section 45(4).
18 Section 46(1).
19 Stininato v Auckland Boxing Association (Inc) [1978] 1 NZLR 1 (CA) at 28.
20 Wellington International Airport Ltd v Air New Zealand [1993] 1 NZLR 671 (CA).
[27] Mr Mizoguchi also contends the Registrar’s filing of the amended complaint was done only at the Tribunal’s direction. Mr Holmes submitted that was done without the Registrar “independently turning her mind to the issues”.
[28] There was no evidence from the Registrar herself. Instead, the Registrar relied on evidence from her legal counsel at the 16 December 2016 hearing, Alastair Dumbleton. Mr Dumbleton was first instructed on an unspecified date in October 2016. Because nothing material appears to have happened since Mr Mizoguchi filed his statement of reply in March 2016, I surmise Mr Dumbleton’s instruction followed the Tribunal’s directions for an oral hearing on 27 October 2016. On my enquiry of her, Ms Clarke advised the Attorney-General had waived privilege in Mr Dumbleton’s advice.
[29] Mr Dumbleton explained he advised the Registrar she should consider whether the original complaint addressed all grounds of complaint arising from the content of the settlement deed; if not, it would be appropriate for her to refer additional grounds of complaint to the Tribunal. He had also advised she should only amend the original complaint if she considered it inadequately addressed Mr Mizoguchi’s conduct. His advice included the irrelevancy of perceptions she was acquiescing to the Tribunal’s wishes, or her original investigation was inadequate. Mr Dumbleton deposed “The Registrar agreed with my view that the complaint as referred did not fully address the applicant’s conduct”. Mr Dumbleton then drafted the amended complaint which was filed with the Tribunal.
[30] Mr Dumbleton’s quoted assertion above is plainly a hearsay statement, which is inadmissible without reasonable assurances of its reliability, and the unavailability of, or undue expense or delay caused by requiring, its maker as a witness.21 I was not provided with any basis to conclude either, with the result the statement is not admissible.
[31] Absent the statement, I have no basis to decide whether the Registrar exercised independent judgement in referring the amended complaint to the Tribunal.
21 Evidence Act 2006, ss 17 and 18
[32] On the other hand, I do not think it matters: as noted earlier,22 the Registrar and Tribunal together carry the burden of immigration advisers’ disciplinary processes. The Registrar is charged with information gathering and preparation for referral to the Tribunal; the Tribunal is charged with making decisions on “matters about immigration advisers that are referred to the Tribunal by the Registrar”.23
[33] That latter generality may include deciding a complaint about an immigration adviser lacks specification of other applicable grounds of discipline. The Tribunal’s powers are broad.24 It is also noteworthy the Registrar’s functions on receipt of a complaint are binary: if the complaint is not diverted under s 45(1), “the Registrar must refer the complaint to the Tribunal for determination” (emphasis added).25 The Registrar lacks any discretion not to refer a qualifying complaint.
[34] From that perspective, it does not matter if the Registrar uncritically adopted the Tribunal’s identified concerns. And the evidence is she was at least advised critically to consider the concerns.
[35] However, it is unsatisfactory to have no evidence from the Registrar here. The “so-called ‘duty of candour’” – that those whose decisions are under challenge have “a duty to explain the decision-making process, the relevant factual and other circumstances and the reasons for the decision” – is a responsibility attached to public decision-making.26 Ms Clarke’s response Mr Mizoguchi bore the onus of proof is no answer. An adverse inference is open to being drawn from an unexplained lack of evidence from the Registrar – that what she could have said would not have assisted her case.27 But an affirmative adverse inference is not available because of an absent witness alone: Mr Holmes’ submission the Registrar failed independently to turn her mind to the issues is not made out.
22 See [20] above.
23 Immigration Advisers Licensing Act 2007, s 41(a).
24 See, eg, Loh v Immigration Advisers Complaints and Disciplinary Tribunal [2014] NZHC 1166 at
[16] and [46].
25 Immigration Advisers Licensing Act 2007, s 45(2).
26 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [105].
27 Ithaca (Custodians) Ltd v Perry Corporation [2004] 1 NZLR 731 at [153].
—third ground of review
[36] For the reasons I explained in relation to the second ground of review, I do not accept the Tribunal’s acceptance of the amended complaint raises any matter for review. Additionally, the Tribunal’s role in ‘accepting’ complaints referred to it is passive; it exercises no statutory power of decision but merely has complaints referred to it.28 There is nothing in the Tribunal’s role for review.29
—fourth ground of review
[37] Mr Mizoguchi alleges, by reference to a variety of contended facts, the Tribunal member gave the appearance of being biased against Mr Mizoguchi and should therefore be disqualified from determining the complaint against him. Mr Holmes contends the Tribunal’s failures to give Mr Mizoguchi notice of the additional potential grounds for complaint, and to follow the statutory process, breached “an adjudicator’s obligation not to act as prosecutor and judge”. Mr Holmes did not cite any authority for that proposition, or explain why it had application in the present context.
[38] I have held in relation to the first and third grounds of review the Tribunal did not ‘fail’ in either contended respect. As to the Tribunal member’s ‘apparent bias’, Mr Mizoguchi has a high threshold to cross: “if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.30
[39] Mr Holmes contended the Tribunal member’s view he could make findings beyond the grounds of the referred complaint, in pursuit of potential disciplinary issues not raised by the Registrar, exemplified the member’s apparent bias. Mr Holmes also relies on the cross-examination nature of the Tribunal member’s questions to Mr Mizoguchi, and the member’s contended mischaracterisation of Mr Mizoguchi’s evidence, as further illustrating his apparent bias.
28 Immigration Advisers Licensing Act 2007, s 48.
29 CMP v Director General of Social Welfare (1996) 15 FRNZ 40 (HC) at 72.
30 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [4], affirmed in Orlov v National Standards Committee 1 [2014] NZSC 133 at [6](d).
[40] For the reasons I explained at [18]-[20], Mr Holmes misapprehends the Tribunal’s statutory mandate, which would be understood by the ‘fair-minded lay observer’.31 The hypothetical observer would understand the Tribunal’s role – in “a system of competency, standards and a Conduct Code to clean up an industry which hitherto had been subject to much justified criticism”32 – extended to ensuring all prospective grounds for discipline disclosed in matters before it relating to immigration advisers were properly identified, particularised, and notified to the immigration adviser concerned, for that person’s response, before the Tribunal made any decision on them.
[41] On any objective reading of the 16 December 2016 transcript, there is nothing in it to suggest the Tribunal member would be other than impartial in determining the issues before him. What the Tribunal member was doing was ensuring all the issues for determination were (or would be) before him. The robustness of his approach is “typical of an inquisitorial hearing”.33 Viewed overall, in the context of the Tribunal’s function, such involvement is not disqualifying.
—fifth ground of review
[42] Mr Mizoguchi’s last ground of review complains the Tribunal lacked power to consider the basis for, or seek the Registrar’s amendment of the complaint to encompass, additional potential grounds for discipline. Mr Holmes particularly disputed the Tribunal’s decision it has inquisitorial powers, and noted the authorities on which the Tribunal relied were each ones in which the inquisitorial jurisdiction was explicit in the empowering statute, or the empowering statute called in the Commission of Inquiry Act.
[43] Given what I said at [18]-[20] and [31]-[32], I disagree. Section 49(3) provides for the Tribunal to “request further information from any person in relation to a complaint or matter”. That is an inquisitorial power. It is not bounded by the specified grounds of complaint, but is more generally exercisable ‘in relation to’ a complaint or matter.
31 Zaoui v Greig HC Auckland CIV-2004-404-317, 31 March 2004 at [57].
32 ZW v Immigration Advisers Authority, above n 10, at [41].
33 Riverside Casino v Moxon [2001] 2 NZLR 78 (CA) at [73].
[44] A ‘matter’ is at a level of generality beyond a ‘complaint’. Section 48(1) requires the Registrar, after determining to refer a complaint to the Tribunal, to “file the complaint or matter with the Tribunal”. The only ‘matter’ other than the complaint there referred to is “such further information in relation to the complaint” gathered by the Registrar, presumably including any response from the complained-of adviser. And s 41(a) provides the Tribunal’s functions include “to make decisions on matters about immigration advisers that are referred to the Tribunal by the Registrar under section 48”.
[45] For that last reason, however, I doubt the Tribunal has power to make decisions on matters (including complaints) about immigration advisers that are not referred to the Tribunal by the Registrar under s 48. To the extent the Tribunal, by indicating it could change the grounds of complaint, is to be taken to be expressing a different view, I respectfully disagree. I note, in Sparks v Immigration Advisers Complaints and Disciplinary Tribunal, Dobson J held the subject matter of the Tribunal’s determination of a third breach, in addition to the two referred to it by the Registrar, was “sufficiently distinct to require specific notice prior to the hearing, and the lack of it constitutes a deficiency in the procedure that amounts to an error”.34
Result
[46] Mr Mizoguchi has partially succeeded on his second ground of review – specifically, the Registrar should not have filed the amended complaint with the Tribunal without first complying with s 47(2) of the Act. The balance of the second ground of review, and all other grounds, are dismissed.
[47] I order the Tribunal remit the amended complaint to the Registrar for her decision under ss 45 or 46 and, if to refer the amended complaint to the Tribunal, her compliance with s 47.
34 Sparks v Immigration Advisers Complaints and Disciplinary Tribunal [2017] NZHC 376 at [62].
Costs
[48] My preliminary view is the Registrar should be liable to Mr Mizoguchi for 2B costs for all steps taken in the proceeding. If that is not accepted by the parties, costs are reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by:
(a)Mr Mizoguchi within ten working days of the date of this judgment;
(b)the Registrar within five working days of service of Mr Mizoguchi’s memorandum; and
(c)Mr Mizoguchi strictly in reply within five working days of service of Mr Beasley’s memorandum.
—Jagose J
Counsel/Solicitors:
Antony Holmes, Barrister, Auckland Crown Law, Wellington
Copy to:
Vincent Carmine, Auckland
SCHEDULE
TRANSCRIPT OF HEARING ON 16 DECEMBER 2016
DUMBLETON for Registrar of Immigration Advisors CHAIR
HOLMES for the advisor Mr Mizoguchi CHAIR
(OTOMO) VIA TRANSLATOR MR MIZOGUCHI – SWORN IN
10:13:38AM
CHAIRMr Holmes I’ll leave you to confirm the statement and any additional matters that you wish.
HOLMES So you need me to confirm… CHAIR To have the statement confirmed. HOLMES
QMr Mizoguchi have you prepared a statement for this hearing? Do you have it with you?
A Yes
Q could you sign it on the last page and date it with today’s date. A Yes here.
You can stay seated, oh it’s the 16th today. And do you confirm that statement is your evidence for this hearing. Yes.
CHAIR Thank you no supplementary matters you want to pursue.
HOLMES No not at this time.
EXAMINATION OF CHAIR OF MR MIZOGUCHI
CHAIR Right thank you.
Q Mr Mizoguchi I’d like for you to turn to paragraph 19 of your statement. A Yes
QNow at paragraph 19 you say I thought this may be helpful in having a neutral third party work out what is a fair and reasonable fee for the work I had completed which would help resolve matters with the client. I now realise that I had misunderstood the role of the Authority. Now could you just clarify for me what you’re intending to say there.
AOh yes if we have the dispute with the client on the fair and reasonable course we can deduct from the retainer. I don't want to push the clients to make agreement so that we want to but on the other hand we want to have the we deducted fair and reasonable course for the work already done but if we cannot reach that agreement, it is very hard to have the solution so that we now that I want to have the third party intervention to reach agreement between the applicants, my client and me myself. To make it clear how much is the fee in a fair and reasonable course.
QNow what you are saying because I now realise that I misunderstood the role of the Authority. Now what do you mean by that?
AYes after I heard from the complainants that they refer they made the complaint to the IAA, and I expect IAA or the ? to ?? or determine on the fair and reasonable fee. So that but I know that from my counsel that it is not the role of the Authority. So that is what I meant in the statement.
QNow at what point and time did you realise what the true role of the Authority is?
AAt the time that I heard from the complainant that the case was referred to IAA, I still had the misunderstanding and the in the first statement of the reply that I told that the that I want to see that kind of third party intervention.
QSo am I understanding correctly you thought the role of the Authority was just to assist with the mediation or reaching settlement, is that what you understood?
A Yes
Q You’ve fully considered that answer and your satisfied that’s the complete
truth?
A Yes
HOLMESSir, I'm just slightly concerned by the previous questions were about what the role was with this and then in your last question there was a reference to the word "just" i.e. that that's the only role of the Authority which I think is not quite the same as the other questions that were then put to.
CHAIR
QWell what I'm wanting to know what he thought the Authority's role was in this case. I want to know what you thought was meant by the references to the Authority in this case. So, what do you would you please elaborate.
AYes now that I understand that the Authority was determined for the breach of the Code. And there is ... well it does not apply to seek the mediation of the dispute at the first instance.
QWell just to put it simply, what I'm trying to understand is what I see here seems to be you telling me that you didn't understand that there was a threat to refer to you to the Authority, that the Authority will deal with a or receive a disciplinary complaint and decide what sort of action it was going to take. Now that's putting it simply and that's what I think you telling me but I'm trying to understand are you telling me that? Just fully explain how you understood it.
ANow that I understand the role of the Authority is to determine the breach of the Code, but I thought that the Authority also has the discretion on the fair and reasonable fee because it was one of the causes to delay the refund.
QWell just putting it another way. Did you realise that there was a threat to refer your conduct to the Authority as a formal complaint?
A Pardon.
QDid you understand that there was a threat to refer your authority your conduct to the Authority as a form of complaint?
A Sorry.
QOkay I'm trying to understand what you were saying your state of mind was about this circumstances at the time.
A At the time.
QYes so at that time did you understand that your client or the client's agent threatened to refer you to the Authority?
HOLMESSir I don't think there was a threat. I think the complaint was made and then Mr Mizoguchi was advised of it. I think that might the confusion.
CHAIR I’ll give you the opportunity to re-examine.
QSo was that what you were thinking at the time? I want to know did you believe that your client was threatening to refer to you to the Authority?
AI'm not sure that they are threatening. The word threat is the appropriate word. But they told me that they may refer the case to the Tribunal.
Q Have you got a copy of the statement of complaint? A Can I take it from here?
Q Sure.
A Yes
CHAIR No the bundle of documents as well. Do you..
HOLMES I’ve only got one copy Sir this isn’t mine.
CHAIR In that case could you please sit beside your counsel.
Q Now if you go back to page to paragraph 18.
HOLMES Of which document Sir.
QParagraph 18 of your recent statement, paragraph 18 of your recent statement, now I just want to try and understand the timeline here. Now in the bottom third of that you say the complainant's accountant then wrote back to me on 7 August 2015 and said she did not agree and proposed a refund of $4,850. She said she wanted to continue to negotiate and asked for contact details of my lawyers. She also said that the complainant intended to complaint to the Authority. Now I'm just trying to identify the timeline here. Now on page 573, if you have a look at that, have you got page 573? Now that I understand is the 7 August email that you're referring to. Now if you read through that it doesn't mention anything about the Authority. I'm just trying to understand when you what you're meaning when she also said that the complainant intended to complain to the Authority. Can you tell me what you're referring to there?
HOLMESSir is there no other copy of the bundle that's available? It's just a little bit difficult because I'm wanting to turn to find other ... as we go to prepare questions in response and I don't want to do that in front .. so that the suggestion is that I'm leading Mr Mizoguchi to particular emails.
CHAIRI'm really not concerned about that at the moment you trying to find out the position at the moment. I'm quite happy for you to help him find documents.
HOLMESI think may be perhaps ask him about the question if it's in his email and then we'll move on.
CHAIRBecause what I'm trying to get at is when you say you didn't understand the role of the Authority because I'm really understanding that you're saying to me that you didn't understand that there was a formal complaint and that wasn't what you were facing and I'm trying to get the timeline for that.
HOLMESSorry Sir, your statement in that you didn't understand that there was a formal complaint.
CHAIRWell the understanding of paragraph 19 is telling me that Mr Mizoguchi at this point in time misunderstood the role of the Authority and he thought it was essentially a mediation service and that was how he
apprehended the situation at that point and time. And I'm trying to find out what that point and time is because he has told me initially that it was only after consulting counsel that he gained a full apprehension but then after reconsidering he realised that he'd thought about that earlier.
HOLMES Sir I think we probably do need to clear that up because my understanding of
..
CHAIR I’m quite happy for you to help him do that.
ASo basically that the present?? Of Mr Sh?? In Japan and I communicated by email so that I can think I can find it on ... correspondence with ... but it takes time to identify where it is.
CHAIR Sorry its page 9 of the bundle?
HOLMESIn terms of the timeline Sir the earlier email we were looking at was 7 August and then this is 19 August.
CHAIR Right okay.
Q Right so by 19 August you knew that this was a serious dispute is that right? A Yes on fees what I can deduct the fee from the retainer.
HOLMESSir is the question you're asking whether at the time of receiving the complaint Mr Mizoguchi considered that there was a the role of the Authority would help resolve the dispute that had arisen?
CHAIRNo no I'm asking about the reasons that Mr Mizoguchi made because I'm understanding and I'll just make it clear and this is important to counsel for the Registrar as well.
10:36:25AM
CHAIRIn the background paragraph 2.11 of the statement of complaint says on 30 November 2015 the advisor stated his conditions in order for a refund to be provided they were that the complainant must agree that the amount to be refunded is $2,300 and not ask for a further refund. The complainant must confirm there is no trouble between him and the
advisor and the complainant must withdraw his complaint to the Authority. Mr Otomo agreed to these conditions by email two days later and paragraph 2.12 the advisor then proceeded to prepare a settlement deed to the effect of his terms stated above. This required the complainant's signature before he would proceed with any refund. This was sent to Mr Otomo in order to obtain the complainant's signature on 8 December 2015.
In terms of the breaches the statement of claim and complaint in paragraph 6 says by delaying the refund payable for eight months, the advisor may have breached his obligations under clause 24(c) of the Code of Conduct 2014 to promptly provide any refunds payable on completing or ceasing a contract for services. The only issue that is raised in the statement of complaint is delay. I have an inquisitorial function and I have concerns about the response i.e. I have concerns about the settlement agreement on its face appears to indemnify require the complainant to indemnity Mr Mizoguchi against the costs of this proceeding and other matters. On page 442 there is an email from Mr Mizoguchi and I found it I wanted to explore that question of what paragraph 19 meant because on the 30th of November 2015 he said I cannot really understand the meaning of peaceful settlement that you're saying since he has been taking such legal action. For me I would like him to agree to proposed amount of refund that is our handling fee $2,300 and at the same time agree to the amount of refund $2,300 and will not ask further refund. I confirm there is no trouble between matters between two of us at the time of transferring refund of final settlement, withdraw a complaint to the IAA and if you can agree to these I will make the settlement deed and prepare refund. And then there was a settlement agreement which purports to indemnify Mr Mizoguchi. It appears that one view of this is that it was a calculated attempt to have a chilling effect on the complaint process but the registrar has only articulated timeliness. Mr Mizoguchi has provided an explanation saying that he had a misunderstanding regarding the role of the Authority and I wish to explore that but I really need to understand the Registrar's position given that these matters are on the face of the complaint but not as grounds. Now depending on what the Registrar's view is, I'll have to decide whether to give notice
of these concerns and an opportunity for the parties to be heard on them but I was exploring paragraph 19 to ascertain whether this was all the result of a misunderstanding. So Mr Dumbleton you may need time to reflect on that but um.
DUMBLETON Yes I um I did notice Sir that Mr Mizoguchi no longer refers to the deed of settlement in the statement.
CHAIR Yes
DUMBLETON That he's provided this morning and was going to ask him about that and perhaps the obvious question is to whether he now regards the deed of settlement as ineffective. Why he entered into it of course is a different matter. Why how it came to be purportedly entered into is a different matter but I don't know whether he regards it now as ineffective. It appears to me the submission can be made that it is because it's actually not his settlement. It actually purports to be a deed of settlement .. and again the entity that he works for appears to be personally responsible. So perhaps there are issues that the Crown can now add in. And I don't know whether that's the way the Registrar viewed it at the time. I understand ... I don't have instructions at this point.
HOLMESThis isn't something which has been raised prior to this hearing so we have not come prepared to deal with that and that' ... significant issues of fairness of process which would need to be raised if this is going to be a ground...
CHAIR I understand that. You did not hear me.
HOLMES And I appreciate …
CHAIRI'll give an opportunity to be heard on this issue if it is an issue. You submitted the statement. You moved away from what the former position was relating to the settlement which is Mr Mizoguchi's initial response and um it appeared that your response potentially contained an answer to this issue but a great deal depends on what Mr Mizoguchi understood, what he intended and how he now intends to address things.
HOLMESSir I understand that. The point about the statement as prepared is that the statement is addressing the reply but also the complaint so there isn't. The settlement deed doesn't feature in the complaint.
CHAIR I understand that.
HOLMESSo there's no need to address it in that statement. So, if there's going to be sort of criticism about moving away from it that's not something fairly put. I think that if we could take a brief adjournment as its slightly out of the ordinary because Mr Mizoguchi has now been put on oath to be questioned about matters which he has been given no advance notice of.
CHAIR Yeah but all I’ve ask him about is this statement
HOLMES No I appreciate that but that’s…
CHAIR That’s why I am now addressing counsel about them.
HOLMESBut what I was going to suggest was that we had a brief adjournment now so that I can just discuss with Mr Mizoguchi the issues basically and then we can come back and..
CHAIRI'll make it very clear that um you're entirely free to communicate with Mr Mizoguchi ie while I'm examining him in a sense it's of an exploratory nature and I don't regard any of the constraints will apply to cross-examination of being applicable at all.
DUMBLETON Can I just disagree with my friend about notice of the nature of this meeting because my reading of it your direction was quite clear that this was to examine Mr Mizoguchi on his reply to the complaint which is an earlier document and that document quite clearly relies on this deed of settlement in there is central to it.
CHAIR Exactly and the reply has failed to identify… DUMBLETON He must have expected to be asked about that. CHAIR Yes.
HOLMES Sir the direction does refer to that but this is a hearing of the complaint.
CHAIR Indeed it is.
HOLMESAnd this does not form part of the complaint so it is a new matter which is being raised and Sir you've referred to your inquisitorial powers and so that is something that we can address but this isn't part of the complaint so it's not something that we came necessarily expecting to deal with.
CHAIRI identify that. If I changed the grounds that I'm considering there will be an opportunity to be heard and you will have particulars of those grounds before you're required to answer them. What I'm doing is exploring whether that is a track that I need to go down.
HOLMESAnd I accept that but Mr Mizoguchi's been asked to voluntarily come in accordance with your request to give evidence on oath now on matters which he's not been given advance notice of. If it is to go forward but he needs to be given the opportunity to understand to take advice Sir.
CHAIRI understand that and I have already said that he will have the opportunity to take advice.
HOLMES Before we continue the questioning Sir?
CHAIRAbsolutely. I think that if we're going to pursue further matters it's unlikely that I'll be pursuing anything further today but I do need to because this is a particular matter that what was in Mr Mizoguchi's mind at the time and what's in his mind now pivotal is very often the case in relation to professional disciplinary matters. Attitude is extremely important.
HOLMES Absolutely.
CHAIRAnd in ordinary circumstances I would place significant reliance on the Registrar's perspective because the Registrar is the primary person protecting the public interest but before me I have um also conduct where I am concerned on the face of it that at the level of reduction in the fees, the level of the refund. There may well be entirely justified but on its face that's not necessarily the case and I see that combined with a settlement deed which contains terms that are concerning to me. The concept of someone on its face it appears to indemnify require the complainant to indemnity Mr Mizoguchi against the costs of this hearing on a solicitor client basis and Mr Mizoguchi's communications
insisting that he would provide no refund unless terms were agreed and those were the terms that were settled. Those matters depending on what Mr Mizoguchi's level of understanding were are potentially very serious matters. So that's where it sits and it seems to me that it would be very valuable for you to take instructions from Mr Mizoguchi but very importantly for you and Mr Dumbleton to confer because the Registrar's view of this matter would be very important as far as I'm concerned.
DUMBLETON I do raise an objection though to Mr Mizoguchi having an opportunity to confer with his counsel. He's been put on clear notice as to the nature of this hearing, the matters that have been raised are all those that hecould reasonably have contemplated would come up. I've contemplated they would come up by reading your direction and reading his reply to the statement of complaint and so I simply ask that my objection be noted ... opportunity to go through that with counsel rather than by responding directly to your questions with unrehearsed answers.
CHAIRI understand what you saying Mr Dumbleton but my concern is that the statement of complaint has identified timeliness only and for that reason Mr Mizoguchi is entitled to take advice on the issue. Certainly in my view its need to be clearly particularised and that is my view of it, so I will permit the unrestricted consultation but it does seem to me that with particulars and the written record there really ought to be no real element of surprise when Mr Mizoguchi does address these issues. So what I address is initially we have a brief adjournment for both counsel to get perspective as to how they view the matter and then we can look at the way forward and if it does require further discussion between the ... over a period of time then that's fine too but as I say the Registrar's perspective on this is a significant one.
DUMBLETON I'll just make the Tribunal aware that I found out this morning that the Registrar is on leave now until the middle of next month so I won't be able to speak directly to her or it's unlikely depending on where she's gone but there will be an officer in the IAA ... who may be able to establish something from that. But just for my understanding the Tribunal wishes to know what the IAA or what the Registrar made of
the issue of the deed of settlement and why that isn’t, why that doesn’t raise a ground of complaint.
CHAIRWell essentially my concern is this. The statement of complaint sets out a narrative and the circumstances around the refund are plainly in issue and paragraph 2.11 and 2.12 raise these issues relating to the refund and settlement but the only issue relating to the refund is in paragraph 6 and that issue is simply timeliness not quantum and not the circumstances, not the withholding not withholding the refund until these terms were agreed. Now on the face of it that will constitute misconduct at a high level but that is very dependent on the attitude of the person who took those actions and it may well be that the Registrar was and is satisfied that this is in fact an innocuous and explicable matter and it would appear that paragraph 19 may have been part of that, that explanation, but if the Registrar is still satisfied that paragraph 6 fully incaptures disciplinary matters that arise in that background narrative or the background narrative is wrong, then I'll consider that, but if the Registrar is of the view that this is a matter that I ought to be making a determination around then I'll have to consider the position, that's what I'm asking. Does that make it clear Mr Dumbleton?
DUMBLETON Yes thank you.
CHAIRWell I suggest initially adjourn for perhaps 20 minutes? Does that sound reasonable and between the two of you you can see what the way forward should be but if it requires more time, that's entirely understandable and we'll deal with that. But certainly if this is a live issue then I certainly don't propose to try and deal with it today. Mr Mizoguchi is entitled to have the opportunity to prepare and have particulars of it so I'll resume in 20 minutes.
RESUMES 11:35
CHAIR Right thank you, now who would like to start?
HOLMESSir perhaps, I've, we've spoken with Mr Mizoguchi. It may help if I just address the deed, settlement deeds slightly Sir. The settlement deed isn't with Mr Mizoguchi. (which page is it) I don't actually know if it's in the bundle (yes it is), then sorry I don't know the page within the
bundle. Oh it may be no that's about the emails. But I think it was observed before it's with JSK Consulting, it's not with (give me a moment) Mr Mizoguchi. (Chair page 434). So, it's with JSK Consulting. You're right in that it does contain this indemnity about Paul JSK?? but there's no suggestion by Mr Mizoguchi that this is indemnifying him in respect of, this isn't a well prepared document and so it's not it certainly doesn't preclude this complaint being determined and it has not been put up as that but..
CHAIR It doesn’t matter what it says it can’t do that.
HOLMESThat's right and it is about, what it was about was about setting reaching agreement as to the amount of the refund which would be payable and the fair and reasonable amount of the refund agreed between the two parties and I do note Sir that there is an email at the back of page 643 which is from the Immigration Advisors Authority to the complainant and it says that Kitaro and Tatsua who are the complainants, can still attempt to resolve the issues with the advisor and this can happen while the complaint is still active.
CHAIR Yes there’s no dispute about that.
HOLMESAnd just in terms of the timeline with the dates Sir, the complaint, the settlement deed was sent prior to Mr Mizoguchi receiving any, he'd received notice for the requirements to produce the file and he'd been advised that there was a complaint but it's not, but he hadn't received the letter from the Authority setting out the advisor grounds letter. So if I can put it this way, it's a sort of a hand fisted resolution of the amount, the agreed amount to be refunded between the advisor and the complainant to address that issue. On the issue of delay, it is accepted that this just took far too long. And Mr Mizoguchi says as much in his statement of evidence. Then just turning to the question of the Chair's suggestion that the Registrar may wish to amend the grounds of complaint, I understand from my friend that he's not been able to get receive any instructions toady. We are here today to have this complaint heard and are ready to proceed on the complaint. As you will be aware the functions of the Tribunal are to determine complaints and those are the complaints that are before it and while there is the power to request further information by the Tribunal and
request people to come and give evidence before the Tribunal or make statements before the Tribunal, that does not in my submission extend to suggestions of the Registrar amending the grounds of complaint or adjourning the hearing of a complaint to allow such amendments to occur. The tribunal is given the function of determining the complaints and the powers on hearing the complaints are squarely set out in s50(1) I think of the Act.
CHAIRWell the difficulty the complaint before me includes paragraphs 2.11 and 2.12 and in terms of the grounds of the complaint, the Registrar says determined and may disclose one or more of the following grounds. Now in my view that doesn't mean they're the only grounds that I can find and I'm putting you on notice and it's not just the Registrar amending it. I will potentially make a finding that Mr Mizoguchi has breached his professional obligations in the terms of the way he has dealt with the refund and it will not be limited to the timeliness issue. So if you want me to proceed today with that issue, I'm very happy to do so.
HOLMESWell of course Sir the directions of the Tribunal previously made is a process require there to a property particularisation of the complaint.
CHAIR Which is why I said I will adjourn it if necessary.
HOLMES Well Sir and if that complaint is to be brought then.
CHAIRThe complaint has been brought, it is before me and that's one of the findings I may make.
HOLMES Well Sir.
CHAIRWe’ll be on notice of it, so if you wish to proceed today we’ll need to deal with it including that matter. I can.
HOLMESSir we need a direction from your honour regarding the decision to proceed without particularising the complaint. That would be a part of it because we are here and prepared to deal with the complaint as it has been particularised and the grounds of complaint as they are set out in this but if your honour wishes to move beyond those, then that will need to be part of a direction because it is contrary to
CHAIR I told you that would occur.
HOLMES You’ve told us that now yes and so I think.
CHAIRI told you that earlier and I said there would be a full opportunity to be heard on that issue. I've referred to providing particulars repeatedly. (Yes). The situation is clear. I'm not going to proceed to hear it unless you wish me to do so on the basis that you can adequately respond.
HOLMES No if you wish to amend and request the Registrar to amend the complaint.
CHAIRI'm not going to do that. I'm putting you on notice that one of the potential outcomes is a finding that is not included in what the Registrar has set out in paragraph in section (c).
HOLMES Sorry who is proposed to particularise?
CHAIRThere are no provisions that make it mandatory for the Registrar to prosecute complaints. You'll find that the Registrar takes the view that that is not their function. She simply puts matters before the Tribunal to determine amongst the facts that she has put before the Tribunal. If I found that that was the situation in terms of the facts, my view is that they potentially constitute grounds under a different part of the Code and potentially the Act and I would put you on full notice of exactly what those findings would potentially be so you would have an opportunity to respond.
HOLMESSo the Chair will, the Tribunal will be particularising the further grounds of complaint in a further direction is that?
CHAIRUnless the Registrar wishes to apply to amend her approach but as with all disciplinary Tribunals there is an inquisitorial function and if the Tribunal identifies something that arises out of the matters that it is seized of then it is obliged to deal with the matter subject to adequate notice.
HOLMESSir I guess from our position if obviously we cannot be expected to deal with a complaint which hasn't been particularised.
CHAIR That is why I said.
HOLMESWe are here ready to deal with complaints that are particularised. If the Chair's if the Tribunal or if the Registrar wishes to seek an adjournment of today to particularise or if the Chair wishes to seek an adjournment today to particularise the complaint or to request that the Registrar amend the complaint, I'm not quite, whichever process then I think we just need a clear statement/direction issued today that just sets out the basis of that adjournment and then we can. So if those are matters which the Tribunal wishes to explore then that's I guess how we'll have to deal with it but I would like it to be recorded in the directions that we are here, able, prepared and willing to deal with the complaint as it is, as it has been put today.
CHAIR Yes Mr Dumbleton.
DUMBLETON Yes Sir I'd like to seek an opportunity to confer with the Registrar or investigating officer I have only been able to speak to a Mr Ashton whose
name appears on the complaint I think about that and it seems to me that it would be worthwhile for the Registrar to have an opportunity to consider it. It cannot be contrary to the purposes of the Act for the Registrar to reconsider a complaint or for the Tribunal to consider a fresh complaint whether of its own motion or ?? and really we're talking about procedural matters which ...
submission progressed by allowing an opportunity for Mr Mizoguchi to be
heard on any new complaint so I think it is only if this causes delay and cost then that can be addressed in that manner by costs applications or otherwise it seems perfectly consistent and able to be done under the wide discretion of the Tribunal here as to sentence and procedure?? So it does seem to me it will be worthwhile for the Registrar to review the complaint in the light of the circumstances in which the deed of settlement is entered into and purports
to be what came into existence in the first place so but um that because the
time of year later in January so there will be some delay. I'll just add that it
seemed to me that it was never contemplated that this would be the final hearing of the matter anyway it was a hearing to take place on the limited grounds and that was of the Chair for yourself Sir to explore the statement in reply to the complaint that was made by Mr Mizoguchi not necessarily an oral hearing of the full complaint ...
HOLMESSir there was part of the direction was that submissions could be made on the complaint at this hearing and we had come prepared to do that because this was to be a hearing of the complaint. The mode of evidence was going to be limited but otherwise it was due to be a hearing of the complaint today so this is the delay. There is some prejudice to having this being set off and dealt with again but if that's. There are matters of justice being done and all those aspects about having things resolved in a timely manner for the complainant and/or the advisor as well. So.
CHAIR Thank you.
11:52
CHAIRThe Registrar lodged a statement of complaint in this matter dated 3 March 2016. The advisor filed a statement of reply and it attached a settlement statement. The advisor also wrote a letter dated 21 March 2016 containing additional information. The Tribunal using its inquisitorial powers set down a hearing for the 16th of December so that the Tribunal could make enquiries into the response that had been lodged by Mr Mizoguchi. In those directions it provided that Mr Mizoguchi would have the opportunity to provide any further information in writing down to 5 days prior to the hearing and would be required to give sworn evidence at the hearing and that the Tribunal would question Mr Mizoguchi regarding his statement of reply. And then the complainant and the Registrar would have the opportunity to cross-examine on any issues that had been addressed by the Tribunal. Accordingly the proposal was for some further inquiry but primarily the hearing would be on the papers. Mr Mizoguchi filed an additional statement on the 9th of December 2016. Some of the information was new, some of it had already been traversed. The statement of complaint included paragraphs 2.11 and 2.12. 2.11 said that on 30 November 2015 the advisor stated his conditions in order for a refund to be provided. These were that the complainant must agree that the amount to be refunded is $2,300 and not ask for a further refund. The complainant must confirm there is no trouble between him and the advisor and the complainant must withdraw his complaint to the authority. Mr Otomo agreed to these conditions by email two days
later. The advisor then proceeded to prepare a settlement statement to the effect of his terms stated above. This required the complainant's signature before he would proceed with any refund. This was sent to Mr Otomo in order to obtain the complainant's on 8 December 2015. The circumstances relating to those matters is not further set out in the statement of complaint itself but there are various documents attached that pertain to those matters. The Registrar takes the view that she does not prosecute complaints but simply sets out the relevant information for the Tribunal to determine. In her statement of complaint in section (c) she identified grounds of complaint and in relation to the issue of refund which the factual allegations I've just referred to relate, she identified a potential breach of clause 24(c) of the Code of Conduct 2014 but only in relation to the timeliness of the refund. The factual narrative of the documents in the bundle do potentially raise issues as to whether the refund was sufficient in terms of its quantum and also whether the conduct relating to securing the complainant to enter into the agreement and the terms of the agreement did meet proper professional standards. Those issues were not identified as matters that the Registrar were potential findings that the Tribunal might make. Having examined the statement that was filed on 9 December 2016 and having endeavoured to question Mr Mizoguchi as to possible misunderstandings that would have made the circumstances rather more innocuous than a potential view, I have concluded that one of the issues that the Tribunal should explore is whether the quantum of the refund was adequate and whether Mr Mizoguchi met his professional obligations in terms of the pressure that he applied in particular that he refused to or appeared to refuse to be willing to refund any money unless his client agreed to not pursue a complaint to the Authority but furthermore that the settlement deed itself on its face appears to potentially indemnify or have the complainant indemnify Mr Mizoguchi against the costs of a complaint being pursued. Those matters depending on the circumstances are potentially serious disciplinary issues. Accordingly, when having begun to explore those issues with Mr Mizoguchi, and it not being apparent to me that there was necessarily an answer that was explanatory at least in terms of what Mr Mizoguchi understood at the time I explored with counsel what their view of the matter was and particularly I asked that
the counsel for the Registrar explain to me what the Registrar's view of the issue was. As it's transpired, counsel for the Registrar is not able to obtain instructions immediately from the Registrar as she's currently on annual leave. Counsel for Mr Mizoguchi urges on the one hand that the matter has been set down for hearing today however he takes the position that he is not in a position to deal completely with the issues relating to the quantum of the refund and the circumstances ofsecuring the refund and the terms of the settlement. In these circumstances I'm satisfied that the appropriate course is to adjourn this examination. I will not proceed to deal with the matter on the papers further until the Registrar has had an opportunity to indicate what her view is because there may be circumstances that satisfy the Registrar that this was not a matter that needs to be enquired into and I would certainly consider that but nonetheless the Tribunal does have an inquisitorial power and an obligation to deal properly with complaints that are before it and pursue matters that appears to be potential disciplinary issues. Counsel for Mr Mizoguchi has raised the concern of the prejudice due to delay however I'm satisfied that it is essential that Mr Mizoguchi be put clearly on notice of any potential findings that might arise out of this issue. Accordingly, I'm going to adjourn this matter to a telephone conference on a date to be determined in late January and then make a decision as to whether there is anything additional to be pursued and if so whether the Registrar wishes to particularise it or whether the Tribunal needs to identify the concerns that it is exploring in the course of its inquisitorial powers. Accordingly, the matter will be adjourned and the next step will be a telephone conference in late January.
HOLMESSir in terms of my concern is recorded it's not that we're not prepared to deal with the issues it's that the issues which are sought to be raised do not form part of the grounds of complaint, one of the grounds of complaint. So that's the point here is that this isn't part of the complaint and we're here to deal with the complaint. These are additional.
CHAIRMr Holmes has identified that in his view the matters that I have identified do not form part of the original grounds of complaint. I reject his submission because the issues are clearly identified as facts. This is not a proceeding in the same form as a criminal proceeding where a
charge is set out and it is necessary to amend the charge, a complaint is simply information relating to circumstances. The legislation governing this Tribunal is very broad. The Tribunal is required to determine its own procedure. It has through the use of practice notes endeavoured to ensure that there is as much clarity as possible but nonetheless in my view the issue is part of the complaint that is before me. Thank you.
Right matters have adjourned but if there is any reason to advance the telephone conference, by all means let the case officer know and I'd be happy to do that.
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