Young v National Standards Committee - [2019] NZHC 2268

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-1141

CIV-2018-404-1150 [2019] NZHC 2268

UNDER The Lawyers and Conveyancers Act 2006

IN THE MATTER

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

BETWEEN

JINYUE YOUNG

Appellant

AND

NATIONAL STANDARDS COMMITTEE

Respondent

Hearing: 23 May 2019, further submissions 8, 13 and 17 June 2019

Counsel:

Appellant in person

J Simpson for Respondent

Judgment:

13 September 2019

JUDGMENT OF WHATA J

This judgment was delivered by me on 13 September 2019 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors: Meredith Connell, Auckland

YOUNG v NATIONAL STANDARDS COMMITTEE [2019] NZHC 2268 [13 September 2019]

[1] Mr Young was found guilty of three charges of misconduct, pursuant to s 7 of the Lawyers and Conveyancers Act 2006 (the Act), and one charge of negligence, pursuant to s 241 of the Act.1 He was suspended from practice for 15 months. The charges were (in summary) that Mr Young:

(a)swore a false affidavit of documents;

(b)threatened to use the complaints process for an improper purpose;

(c)engaged in misconceived and meritless litigation; and

(d)made serious allegations against another party and counsel.

[2] He was also ordered to pay a substantial sum for costs. He sought leave to appeal the misconduct decision out of time. He was given leave to appeal on liability in respect of one charge. Mr Young also appeals against penalty and costs.

Leave decision

[3] Mr Young’s appeal was filed out of time. Courtney J declined leave to appeal, save in one respect.2 The Judge observed that the only proposed ground of appeal that had any merit was that the Tribunal erred in finding that all the charges fell within s 7(1)(a). That subsection relates only to misconduct in the provision of regulated services to any person. As the Tribunal had found that Charge 1 related to conduct that did not involve regulated services for any person, Courtney J observed it was arguable Charge 1 did not fall within the scope of s 7(1). Leave to appeal was therefore granted in terms of Charge 1 only.

Background

[4] As the Tribunal noted, from April 2013, Mr Young was involved in a dispute between his wife’s company, King David Ltd (KDL), and Ms Z, the client of Mr D, the complainant. KDL attempted to withdraw from an agreement for sale and purchase

1 National Standards Committee v Young [2017] NZLCDT 41.
2 Young v National Standards Committee [2018] NZHC 3047.

of a Hoteo Avenue property (the agreement), which Ms Z alleged was completed. Proceedings were issued for breach of the contract and relief included specific performance. There was a further cause of action against Mr Young personally for “tortious interference with contractual relations”.3

[5] As part of the discovery process, Mr Young swore an affidavit of documents on 8 December 2014. However, during the hearing in July 2016, Mr D says…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2268
Decision Date: 13 September 2019

CaseChat Overview and Summary

Jinyue Young, a lawyer, appeals a decision of the Lawyers and Conveyancers Disciplinary Tribunal which found him guilty of three charges of misconduct and one charge of negligence. He was suspended from practice for 15 months and ordered to pay substantial costs. The Tribunal found that Mr Young had sworn a false affidavit of documents, threatened to use the complaints process for an improper purpose, engaged in misconceived and meritless litigation, and made serious allegations against another party and counsel. Mr Young appealed the decision on liability in respect of one charge, and the penalty and costs. The central issue in the appeal is whether the Tribunal erred in finding that all the charges fell within s 7(1)(a) of the Lawyers and Conveyancers Act 2006. The appeal against liability on Charge 1 is dismissed. The appeal against penalty and costs are also dismissed. The court found that the Tribunal's assessment of Mr Young's lack of fitness to practice cannot be faulted. The nature and scale of his misconduct, spanning a lengthy period, combined with a lack of awareness of the significance of his own shortcomings, justified suspension for a lengthy period. The length of suspension was, nevertheless, harsh. It was considerably longer than Mr Young's period of practice prior to the conduct said to give rise to Charge 1. However, a lesser period of suspension of, say six to twelve months, combined with an order requiring further practical training and education directed to Mr Young's needs, was available to the Tribunal. In this regard, a sentence of suspension greater than six months carries with it a requirement to be readmitted. The PAC will consider the practitioner's fitness to practice. It is a backstop enabling protection of the public to be achieved. Because of this backstop, the length of suspension can be moderated to better achieve a rehabilitative outcome. The appeal against penalty is therefore dismissed. The appeal against costs is also dismissed.

Orders