Nguy v Lawyers and Conveyancers Disciplinary Tribunal

[2021] NZHC 478

ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT UNTIL 16 MARCH 2021 OTHER THAN TO THE PERSONS AND ENTITIES

SPECIFIED IN [35]

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-364

[2021] NZHC 478

BETWEEN

JESSE SEANG TY NGUY

Applicant

AND

LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Respondent

Counsel:

M J Taylor-Cyphers for applicant

H M Carrad and C P C Wrightson for respondent
P N Collins for Auckland Standards Committee No 2 and New Zealand Law Society

Judgment:

11 March 2021

JUDGMENT OF TOOGOOD J

[On the papers]

This judgment was delivered by me on 11 March 2021 at 4.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors/Counsel :

Jesse & Associates, Auckland for applicant Crown Law, Wellington for respondent

Lawyers and Conveyancers Disciplinary Tribunal, Auckland P N Collins, Auckland

NGUY v LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2021] NZHC 478

[11 March 2021]

Introduction

[1] On 4 March 2021, Jesse Seang Ty Nguy, a legal practitioner, issued a proceeding for an injunction against the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal), a disciplinary body constituted under s 226 of the Lawyers and Conveyancers Act 2006 (the Act). Mr Nguy seeks an order against the Tribunal, preventing (until 16 March 2021) publication of an order it made on 2 March 2021 suspending him from practice as a barrister or solicitor or both with immediate effect until disciplinary charges against him under the Act had been disposed of.

[2]    At the time he filed the notice of proceeding and statement of claim, Mr Nguy also applied without notice to the Tribunal for an interlocutory order that:

Publication of the decision of the … Tribunal occur after fourteen days expires from the date of the [Tribunal’s suspension] order (being 2.3.21, expiring 16.3.21).

[3]    This judgment addresses the application for interlocutory relief but, as the circumstances make clear, the order sought on an interim basis without notice would effectively grant the substantive relief sought in the statement of claim.

Background

[4]The salient facts relied upon by the applicant are not disputed.

[5]    On 2 March 2021, the Tribunal conducted a hearing by video-link in which Mr Nguy did not participate but was represented by counsel (Ms Taylor-Cyphers). The Tribunal notified counsel by email at 3.07 pm that day that it had made an order on the application of the Auckland Standards Committee 2 (the Standards Committee) under s 245(1) of the Act suspending Mr Nguy from practice as a barrister or solicitor or both with immediate effect until disciplinary charges against him under the Act had been disposed of (the suspension order). Mr Nguy had made an application for an adjournment of the disciplinary proceeding before the Tribunal but it was refused.

[6]    On 10.28 am on 3 March 2021, the Tribunal, which was chaired by deputy chairperson Judge J G Adams, gave its reasons for the suspension order in a written

decision.1 A copy of the decision was sent by email to Ms Taylor-Cyphers and counsel for the Standards Committee, Mr Collins, attaching a sealed copy of the suspension order. The covering email from the Tribunal’s case manager contained the following passage:

By way of courtesy am [sic] letting you know the decision will be made available on the Ministry of Justice/Tribunal website, in its current form, either later today, or by latest tomorrow morning.

[7] Although the email did not say so, it appears the Tribunal’s notification that it intended to publish its decision containing the order under s 245(1) of the Act was founded on s 245(3), which provides:

245     Interim suspension from practice

…

(3) On the making of an order under subsection (1), or at any time while such an order is in force, the Disciplinary Tribunal may direct that, after the expiration of the period of 14 days beginning with the day on which the order is made, a notice stating the date and effect of the order is to be published in such publications as are specified by the Disciplinary Tribunal.

[8] At 11.47 am on 3 March 2021, Ms Taylor-Cyphers sent to the Tribunal an urgent memorandum, which she copied to Mr Collins, in which counsel requested “reconsideration of [the] decision on publication, with regards to timing.” Counsel referred to s 245(3) of the Act, submitting that the subsection provides a discretion on the part of the Tribunal to order publication. Ms Taylor-Cyphers argued that, if that discretion is so exercised, the Act provides that publication is to occur after 14 days have elapsed from the date of the order. Counsel said that the decision of the Tribunal delivered to her that morning was silent as to publication and, in light of that, the usual 14 days ought to elapse prior to publication. Ms Taylor-Cyphers suggested that, in the absence of specific authorisation or an order from the Tribunal, it was difficult to identify what if any basis there was for the suggested immediate publication. She requested urgent reconsideration of the publication timing in light of the legislative requirements.

1      Auckland Standards Committee 2 v Nguy [2021] NZLCDT 4.

[9]    The urgent memorandum was considered by Judge Adams in his role as deputy chair of the Tribunal and the following response was communicated to Ms Taylor- Cyphers and to Mr Collins:

Counsel for Mr Nguy asks that the Tribunal’s  decision not be reported for  14 days. Open justice generally requires publication to explain why the decision was made. The effect of the suspension was immediate. In the circumstances of this case, even if an appeal were lodged, Mr Nguy could not expect the suspension to be deferred. Our reasons should be available.

We decline to suppress our reasons. They shall be uploaded onto the web as indicated.

Judge J G Adams Deputy Chair

[10]Ms Taylor-Cyphers responded to the deputy chair’s note in these terms:

I’m grateful for the swift response.

My reading of Section 345(3) [sic] is that the discretion around timing of publication only arises after the expiration of the 14-day period following the making of an order (or when an order is in place).

Which is to say, the discretion vis-à-vis publication does not arise before the 14-day period expires.

If I am mistaken in this regard, further clarification would be most useful.

[11]   Judge Adams then issued a fuller minute dated 3 March 2021. The minute reads:

[1]Ms Taylor-Cyphers submits that s 245(3) prohibits the publication of an order for interim suspension until the expiration of 14 days after the order is made.

[2]Section 245 deals with interim suspension. In some cases, the jurisdiction is exercised without notice (although that was not the case here).

[3]Orders are made only where s 245(2) is satisfied. Generally, as in the present case, the essential finding involves imminent risk. An order will generally, as in the present case, take immediate effect, because such is required to deal with the risk.

[4]Reliance cannot be had solely on obedience by the practitioner. Publication is desirable in order to alert the profession and others. Those such as practitioner’s Trust account bank, solicitors involved in imminent settlements and others, need to know. Section 245(6) specifically requires the Tribunal to give written notice forthwith to the Registrar-General of Land.

[5]The Tribunal’s reading of s 245(3) is permissive, not prohibitive. Rather than suppressing open justice, the subsection enables the Tribunal to positively order publication “of a notice stating the date and effect of the order … in such publications as are specified by the Disciplinary Tribunal.” This enables notice to be disseminated by publications nominated by the Tribunal.

[6]Nothing in s 245 requires the order, or the reasons for it (the judgment), to be suppressed for a period of time.

[12]   The proceeding and the application for interlocutory relief were filed promptly the following day and, under conditions of great urgency given the Tribunal’s indication about the timing of publication, were referred to me as duty judge.

Steps taken to address the without notice application for interlocutory relief

[13]   It appeared from the papers filed in the Court that the proceeding had not been served on the Tribunal, with whom Ms Taylor-Cyphers had been in close contact, nor on Mr Collins, counsel for the Standards Committee, who had appeared at the audio- visual hearing.

[14]   Even in circumstances of great urgency, in a case where a respondent can be served informally without difficulty, it is not only fair and reasonable but also efficient and helpful to the Court for the applicant to bring a without notice application to the respondent’s attention on a Pickwick basis.2 That is particularly so when the party is known to be represented by solicitors or counsel. Then, counsel can confer to explore the possibility of either a consent order or an undertaking that provides a temporary solution. Otherwise, counsel can provide the Court with the respondent’s views.

[15]   I was not prepared to make any order in the proceeding without hearing from the Tribunal or counsel for the Standards Committee. On 4 March 2021, I issued a minute directing the applicant to serve forthwith copies of all papers filed in the Court in the proceeding, together with  a copy  of the minute, on  both the Tribunal  and  Mr Collins on behalf of the Standards Committee.

2      In such a case, the application remains a “without notice” application that has not been served in accordance with the High Court Rules 2016. If counsel for a respondent wishes to appear after receiving the papers informally, they are permitted to do so and be heard in order to assist the court: Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213 (Ch).

[16]   The Registrar arranged an urgent telephone conference with counsel at 4.00 pm that day. Mr Collins participated on behalf of the Tribunal (to inform me that the Tribunal abided the decision of the Court) and the Standards Committee.

[17] Counsel had conferred in the very short time available before the conference. Mr Collins indicated that the applicant’s status as a lawyer under suspension has been recorded on the New Zealand Law Society’s register as required by the terms of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008.3 Steps were being taken immediately to arrange for attorneys to assume responsibility for the applicant’s practice. Ms Taylor-Cyphers said the applicant did not object to this course and was co-operating fully with the Law Society. Mr Collins said that no step had been taken at that stage to publicise the suspension any further on any Ministry of Justice or Tribunal website in accordance with the direction of the Tribunal.

[18] I was told that, so far as the New Zealand Law Society was concerned, there was no immediate need to give such publicity, although Mr Collins was respectful of the wish of the deputy chair that the reasons for the Tribunal’s decision should be brought to the attention of the public as soon as that may be properly done. Mr Collins said he was not aware of any prior consideration having been given to the point which has arisen in this case, namely, whether the terms of s 245(3) of the Act prohibit publication any sooner than 14 days after the date of the Tribunal’s decision.

[19]   I issued a further minute setting the application down for a one hour hearing on 11 March 2021 so that the issues could be argued more fully than had been possible to that point, and asking counsel to file memoranda by 4.00 pm on 5 March 2021 indicating whether the Court’s further intervention was required at that stage.

[20]   On 5 March 2021, however, I received a joint memorandum on behalf of the Tribunal, the Standards Committee and the New Zealand Law Society, which was endorsed also by Ms Taylor-Cyphers on behalf of the applicant. I was informed that the Tribunal, the Law Society and the Standards Committee abided the decision of the Court, but reserved the right to be heard on any question of costs. Counsel said,

3      Regulation 10.

however, that the Tribunal would appreciate this Court’s guidance on the correct interpretation of s 245(3) if the Court was minded to provide it.

[21]   Importantly, counsel indicated that both the Tribunal and the Standards Committee undertook not to publish the Tribunal’s decision prior to 16 March 2021, unless permitted to do so by an order of the Court.

[22]   Counsel informed the Court that the issue of costs remains in dispute. I was referred to Greendrake v District Court at Invercargill and Coroner’s Court v Newton as authority for the proposition that there is no basis for awarding costs against the Tribunal.4

Discussion

[23] It appears to be the view of the Tribunal that the effect of s 245(3) is not to suppress open justice but to enable the Tribunal to direct publication of a notice stating the date and effect of the order. Importantly, the Tribunal considers that the terms of s 245(3) do not prohibit it from directing such publication immediately if an order for suspension has been made with immediate effect.

[24]   Notwithstanding my respect for the views of the specialist tribunal, however, I accept Ms Taylor-Cyphers’ submission that the Tribunal’s position does not adequately reflect the wording of the subsection. The word “order” is used consistently throughout the subsection to mean the suspension order made by the Tribunal. It seems to me that the legislative intent is clear. To quote the section, the Tribunal may direct that, “after the expiration of the period of 14 days beginning with the day on which the [suspension] order is made, a notice … is to be published …”.5

[25] I acknowledge that I have not had the benefit of argument from counsel for the Law Society or the Tribunal on the point. Nevertheless, I am satisfied, for the purposes of the application for interim relief at least, that the effect of s 245(3) is to enable the Tribunal to direct publication of the date and effect of the suspension order but that

4      Greendrake v District Court at Invercargill [2021] NZHC 26 at [14]; Coroner’s Court v Newton

[2006] NZAR 312 (CA) at [44].

5 Lawyers and Conveyancers Act 2006, s 245(3). Emphasis added.

such publication may not take effect until after the period of 14 days has expired from the date on which the suspension order has been made.

[26]   There is good reason for the statutory hiatus. A practitioner in respect of whom an interim suspension order is made under s 245 has a right to apply to the Tribunal, at any time, for the revocation of the order or any direction for publication given under subs (3), or both.6 By s 245(5), the Tribunal is required to hear any application for revocation within seven days after the day on which it is received by the Tribunal and thereafter may grant or refuse the application as it thinks fit.

[27]   It is significant, in my view, that the Tribunal may make a suspension order and a direction for publication under subs (3) may be made without the practitioner being given an opportunity to appear or be heard. It would be unjust if, on the making of a suspension order and a publication direction under the section without notice to the practitioner, the Tribunal could order immediate publication of the notice of suspension.

[28]   It may be inferred, therefore, that the reason for requiring the expiration of  14 days from the making of the suspension order before a direction about publication can take effect is to provide the practitioner with an opportunity to apply for revocation before any publicity is given to the suspension. I endorse the Tribunal’s concern to ensure that the public is informed of a decision by the Tribunal that a practitioner should be suspended forthwith; but a suspended practitioner is entitled to have a reasonable amount of time set aside to enable the practitioner to exercise their rights to a review of the suspension or a direction about publication.

Result

[29]   In the absence of the undertaking from the Tribunal and the Law Society not to publish the Tribunal’s decision before 16 March 2021, after the end of the 14 day period, I would have been prepared to grant interim relief as sought, even though the effect of the order would have been to provide Mr Nguy with the substantive relief he seeks in the proceeding. But the Tribunal and the Law Society can be relied upon to

6 Lawyers and Conveyancers Act 2006, s 245(4).

honour the solemn undertaking to the Court.7 In those circumstances, I exercise the Court’s discretion against the grant of the interim order that is sought.

[30]   I direct that the proceeding be placed in a duty judge list in the week beginning 29 March 2021 for mention. The appearances of counsel for the Tribunal and the Standards Committee/New Zealand Law Society at that hearing are excused.

Non-publication

[31]   In a minute dated 9 March 2021, I raised the issue of anonymising Mr Nguy’s name in this judgment, given the nature of the proceeding. Ms Taylor-Cyphers responded by submitting that the usual position regarding publication is that matters before a Standards Committee are confidential whereas matters before the Tribunal are public. She said that, although the investigation is on foot and there has been an order for interim suspension, there has been no hearing and accordingly no findings made against Mr Nguy. In the ordinary course of matters, counsel submits, Mr Nguy’s situation would not be public knowledge because of the preliminary stage of the investigation. Ms Taylor-Cyphers argues that publication of Mr Nguy’s name in this judgment would jump ahead of the usual Tribunal process whereby publication of the details of the evidence and findings would not occur until after a hearing. She submits that publication would penalise Mr Nguy for bringing the application for interim relief by increasing the adverse effects of publication when the application for an order staying publication of the suspension order was brought to delay the adverse effects of publication.

[32]   Anonymisation or an order preventing publication of this judgment are opposed by the Standards Committee and the New Zealand Law Society. Mr Collins sought to support this opposition by referring to the nature of the evidence before the Tribunal, but I am satisfied that I do not need to discuss the case which the Standards Committee has brought against Mr Nguy in order to resolve this issue.

[33]   The short point, as Mr Collins correctly submits, is that the relief which is available to Mr Nguy is for an order preventing publication of the Tribunal’s decision

7 Referred to above, at [21].

to suspend him from practice until the expiry of the 14 day statutory period in s 245(3). That is now only four days hence.

[34]   The protection that Ms Taylor-Cyphers seeks can be provided by an order delaying publication of the judgment.

[35]   Accordingly, I direct that this judgment shall not be published until 16 March 2021, other than to the parties, the New Zealand Law Society and the Auckland Standards Committee No 2.

Costs

[36]   The applicant has applied for an order for costs. My tentative preliminary view is that an award of costs is not appropriate. Costs would not be awarded against the Tribunal, for the reasons given in the authorities cited by counsel. Moreover, the Standards Committee did not seek immediate publication of the suspension; it is not a party to the proceeding but instructed counsel to appear to assist the Court; it did not oppose the application for interim relief and it provided a suitable undertaking. In such circumstances, I consider it unlikely that I will be persuaded to make an order for costs.

[37]   Nevertheless, any application for costs in this proceeding to date shall be made by way of memorandum filed and served not later than 1 April 2021. I will then determine whether I will invite the Tribunal or the Standards Committee to file a memorandum in opposition.

Toogood J