Boon Gunn Hong v Auckland Standards Committee No.3

JurisdictionNew Zealand
CourtHigh Court
JudgeWoolford J
Judgment Date02 April 2015
Neutral Citation[2015] NZHC 667
Docket NumberCIV-2014-404-003006

[2015] NZHC 667

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2014-404-003006

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
Appearances:

Plaintiff in person

P Collins for First Defendant

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.

Held: H substantively sought, through a number of different mechanisms, to obtain reconsideration and review of the decision-making process and the decision which found his actions in relation to his client were “unsatisfactory conduct”. This was not re-litigation of any question of law that had already been considered.

It was not correct that, by considering the appropriateness of the penalty, the HC had also implicitly upheld the substantive unsatisfactory conduct finding. The Judge clearly did not consider the correctness of either the original unsatisfactory conduct finding or the subsequent misconduct finding. He heard no submissions on either issue, meaning that determining the appropriateness of the Committee's finding would have been beyond the scope of the appeal with which he was dealing. The application for judicial review was unrelated to the findings made by the HC, which were confined to a much narrower legal issue.

The Tribunal's decision was similarly directed toward the question of whether H had, in fact, breached the penalty orders made by the Committee, While H had made admissions in this regard, they were not relevant to considering the validity of the finding of unsatisfactory conduct. No evidence was put before the Court to indicate that when H acknowledged that he was obliged to comply with the penalty orders, he had acknowledged anything to do with his culpability for the original finding.

Likewise, H had been out of time obtain substantive review by the LCRO. There could be no collateral attack on a decision which had not occurred. The purpose behind the rule was to prevent reconsideration of the same areas of law where an intending plaintiff had already obtained a full opportunity of contesting the decision ( Hunter v Chief Constable of West Midlands Police). The purpose was not to stop initial consideration of a decision's validity.

Even if H had been able to seek substantive review by the LCRO, it would not preclude judicial review. It was not a challenge to the finality of litigation to apply for judicial review in the HC of decisions made by specialist tribunals and bodies. Precluding the use of judicial review to assess the legitimacy of decisions and processes of specialist bodies, leaving the Committee isolated from review, would be more likely to strike at public confidence in the Court and lawyers' disciplinary processes than it would by allowing challenge.

The question of the effect of substantive review on the legitimacy of the later misconduct charge and associated penalties had not been considered before, and there could be an argument that successful review would have implications for the legitimacy of the later misconduct charge and associated penalties. The possible effect on associated judgments did not preclude the legitimacy of seeking review of a judicial process which had not been considered before and which had considerable impacts on individuals.

H's claims canvassed fresh legal issues. The application for judicial review was not an abuse of process through collateral attack, nor was it a vexatious attempt to disrupt settled litigation. There was nothing frivolous in a claim which sought to establish whether statutory bodies with significant public responsibilities in regulating lawyers had followed procedure and processes which adequately respected natural justice and due process.

The standard for striking out a claim as not reasonably arguable was a very high one. As long as the facts were not completely speculative, they had to be assumed to be true. In this case, although some of the grounds put forward might ultimately fail, the application for judicial review was not so untenable that it could not succeed. The allegations of bad faith and not following proper processes derived from actions which actually took place, leaving only the question of motivation and processes that followed. This could be contrasted with factually baseless cases, in which the actual facts were demonstrably at odds with judgments of the courts. The application for judicial review was not so plainly untenable that it must be struck out.

Although, given the high standard for proving misfeasance in public office, the action might ultimately be unsuccessful, the blanket statement that the allegations were baseless and speculative was insufficient to meet the high standard for striking out a cause of action.

Application for strike out declined.

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

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