Boon Gunn Hong v Auckland Standards Committee No.3

• Jurisdiction: New Zealand
• Judge: Woolford J
• Judgment Date: 02 April 2015
• Neutral Citation: [2015] NZHC 667
• Docket Number: CIV-2014-404-003006
• Court: High Court
• Date: 02 April 2015

Under the Declaratory Judgments Act 1908, Judicature Amendment Act 1972, and the Lawyers and Conveyancers Act 2006

In the Matter of an application for judicial review and declaratory judgment orders

Between

Boon Gunn Hong

Plaintiff

and

Auckland Standards Committee No.3

First Defendant

Lawyers and Conveyancers Disciplinary Tribunal

Second Defendant

[2015] NZHC 667

CIV-2014-404-003006

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

Application by the Auckland Standards Committee No. 3 to strike out an application for judicial review of a decision of the Committee and a claim of misfeasance in public office — District Court (DC) Judge had queried advice given by applicant to client and had sent a copy of the judgment to the Law Society — Standards Committee had initiated an own motion investigation which it then decided on the papers — Committee had concluded applicant's conduct was unsatisfactory — application for review of the Standards Committee's decision had been out of time — applicant had not paid fine — Disciplinary Tribunal said that this constituted misconduct — Committee submitted that the claim was an attempt to re-litigate its decision and went so far as to reargue the DC judgment — applicant said that he was arguing that the Committee did not have jurisdiction to reach a decision and the procedure it had adopted breached natural justice — whether the application for review was an attempt to re-litigate the Committee's decision — whether the misfeasance in public office claim was not arguable.

Appearances:

Plaintiff in person

P Collins for First Defendant

JUDGMENT OF Woolford J

Introduction

1 The plaintiff, Boon Gunn Hong, is a lawyer. He seeks judicial review of the decisions of the Auckland Standards Committee No. 3 (Standards Committee or Committee), which was established by the New Zealand Law Society (Law Society) as part of its complaints service and the Lawyers and Conveyancers Disciplinary Tribunal (Tribunal). He also seeks to prove the tort of misfeasance in public office against the Standards Committee.

2 The Standards Committee applies to strike out the claims against it. The Tribunal abides the decision of the Court. If the Standards Committee is successful in its strike-out application, the claims against the Tribunal would still remain.

Background Facts

3 The facts relating to Mr Hong's claims are as follows. In May 2009, Mr Hong gave advice to a commercial client on his responsibilities in relation to his eviction from commercial premises. He also wrote to the Police, advising them of the law that he considered governed the eviction, as the landlord had asked the Police to accompany him in evicting the client. Mr Hong's client was subsequently charged with assault of two security guards employed by the landlord.

4 In determining the outcome of that case in the District Court, Judge Moore stated that he considered the advice given by Mr Hong to be incorrect, and that it was doubtful that “legal advice to breach the law, and with it the peace of the community, can be within the scope of proper professional conduct.” 1 He ordered that a copy of the judgment be sent to the Law Society.

5 The Law Society chose to investigate the matter on its own motion without any complaint from Mr Hong's client, the landlord or the Police. Mr Hong responded to the Law Society's request for an explanation of his actions. There is some dispute as to the content of the Law Society's request for information, and what specific aspect of Mr Hong's behaviour was being investigated.

6 There was no oral hearing and the Standards Committee determined the matter on the papers. On 14 February 2013, the Standards Committee found that Mr Hong's conduct had been unsatisfactory. Its complete findings are:

• 13 The Committee considered Mr Hong's submissions about the law of forcible entry and his letter to the police. The Committee considered that his advice was robust in that he warned the landlord's solicitor regarding re-entry and disputed the landlord's solicitor's right to re-enter. The Committee however noted the comments of the learned Judge and considered that Mr Hong's conduct with his own client was imprudent and incited or could have the potential to incite his clients into criminal actions (which eventuated). The Committee considered that a prudent and responsible practitioner would have acted differently by questioning the client and calming the situation in more moderate terms.

• 14 The Committee considered that Mr Hong's conduct in the matter was unsatisfactory.

7 There are some further disputed facts regarding the date on which Mr Hong received the Standards Committee's decision. However, it is clear that, even after acknowledging receipt of its decision, Mr Hong did not comply with the penalty order imposed by the Standards Committee, which was to pay a fine of $1000, costs of $1000 and attend a Law Society seminar.

8 Mr Hong attempted to review the decision by applying to the Legal Complaints Review Officer (Review Officer), which is the appropriate statutory mechanism for reviewing a decision of the Standards Committee. However, the Review Officer declined to review the decision as the application made by Mr Hong was outside the 30 working days statutory period within which such applications had to be made.

9 The Standards Committee subsequently reconvened and resolved that the non-compliance with its penalty order should be considered by the Tribunal. The Tribunal subsequently found that Mr Hong's failure to comply with the Standards Committee's penalty order went beyond unsatisfactory conduct, and constituted misconduct, which required sanction in the form of suspension from practice. 2

10 Mr Hong subsequently appealed the penalty to the High Court. On appeal, Gilbert J found that the penalty of 10 months suspension was disproportionately severe. He reduced it to the equivalent of “time served” or the four months he had already been suspended from practice. 3

11 In his statement of claim, dated 11 November 2014, Mr Hong seeks to judicially review the Standards Committee's decision. He advances a number of grounds for judicial review, including errors of law, acting ultra vires, breaches of natural justice, no probative evidence to support finding, procedural irregularities, failing to give proper notice, irrationality, unreasonableness and bias, factual errors, as well as failing to take into account relevant considerations and taking into account irrelevant considerations.

12 Mr Hong also alleges that the Standards Committee committed the tort of misfeasance in a public office through bad faith, in knowingly and intentionally acting to cause harm and damage to him.

13 Finally, he seeks to judicially review the Tribunal's findings that his disobedient conduct warranted a finding of misconduct. Mr Hong alleges that the Tribunal made a number of errors of law, including disallowing a defence that he genuinely believed that the decision of the Standards Committee was ultra vires and therefore void.

Submissions

Defendant's Submissions

14 The grounds on which the strike out order are sought are:

• (a) the statement of claim discloses no reasonably arguable cause of action;

• (b) the proceeding is frivolous or vexatious; and

• (c) the proceeding is an abuse of process by attempting to relitigate matters already determined judicially.

15 The Standards Committee submits that Mr Hong's claim is an attempt to relitigate its decision and goes so far as to reargue the judgment of Judge Moore in the District Court, which was the foundation of its decision.

16 It further submits that its decision was subject to scrutiny both by the Tribunal and the High Court in the appeal against penalty. The allegations of misfeasance in a public office are also baseless and speculative allegations without any evidential foundation and are a further attempt to relitigate its decision.

17 The Standards Committee relies on the judgment of Gilbert J in the High Court and says that although his decision was specifically concerned with penalty, he “could reasonably have been expected to identify any serious errors or miscarriages of justice of the sort relied on by the plaintiff in his pleadings”.

18 It submits that it is also an abuse of the Court's process for Mr Hong to have made concessions in the appeal which are at variance with the allegations on which he relies in his statement of claim. The Standards Committee concludes that there is an important public interest in the Court ensuring finality of cases of the sort which underlie Mr Hong's first and second causes of action where a right of review or appeal have either not been pursued or have been pursued to their conclusion.

Plaintiff's Submissions

19 Mr Hong submits that the issues relating to the Standards Committee's decision raised in his application for the judicial review have never been scrutinised by the Review Officer, the Tribunal or the High Court. He submits that any deficiencies in his pleadings can be remedied, and that the statement of claim filed is merely his first attempt at framing the issues involved. Mr Hong suggests he may either expand the statement of claim to consider alternative causes of action, or sever the application for judicial review from the tortious claim of misfeasance in public office.

20 Mr Hong further submits that his concession that breaching the Standard Committee's penalty order was misconduct is unrelated to the current proceeding, as he is not appealing against that finding, and has already appealed the associated penalty. He also submits that his claims cannot be struck out without further consideration of all the facts involved, making it inappropriate for a strike out action.

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