After it dismissed a charge of misconduct, the New Zealand Lawyers and Conveyancers Disciplinary Tribunal then erred in failing to consider an alternative charge, the High Court has found.
In  NZHC 492, Justice Andrews was considering an application by Francisc Catalin Deliu for judicial review of The Tribunal’s decision that a misconduct charge brought against Boon Gunn Hong was not proven.
In May 2010, Mr Deliu laid a complaint with the New Zealand Law Society against Mr Hong in relation to letters sent by him to two junior barristers in Mr Deliu’s chambers, and to their instructing solicitor. The barristers had been instructed as counsel in proceedings against Mr Hong, and the communications included a threat to complain to the Law Society if the proceedings were not withdrawn. Mr Hong later laid a complaint against Mr Deliu.
In November 2010, a lawyers standards committee resolved to take no further action in relation to Mr Deliu’s complaint. It also resolved to take no further action in relation to Mr Hong’s complaint.
Mr Deliu applied to the Legal Complaints Review Officer (LCRO) to review the standards committee’s decision. In a decision dated 3 June 2011 the LCRO confirmed the decision of the standards committee.
Mr Deliu then applied for judicial review of the LCRO’s decision. In  NZHC 158, delivered on 15 February 2012, Justice Winkelmann held that the LCRO had committed several reviewable errors, and directed that it reconsider the complaint.
The complaint was then reviewed and in a decision issued on 25 June 2012, the LCRO reversed the standards committee’s decision and referred Mr Hong’s conduct to the Disciplinary Tribunal for consideration.
The Tribunal observed that the context of the charges, which it described as an “unseemly and unprofessional dispute between two practitioners involved in a personal clash that escalated into complaint and cross-complaint and investigation under the disciplinary regime” needed to be taken into account. The Tribunal concluded:
“We do not consider that the breaches proven do have such a degree of seriousness, having regard to the purposes of the disciplinary regime with its protection of the public interest emphasis. We do not consider that there is a public risk interest in Mr Hong practising. Our view is reinforced by the fact that Mr Hong has clearly learnt his lesson in this unfortunate episode. He made it clear to the Tribunal in questioning that he accepted he had lost his way when he personalised matters and he would be vigilant to ensure that he did not expose himself again to such proceedings. His evidence also noted that in his many years of practice this was his sole indiscretion resulting in disciplinary charges.
“Taking into account the particular circumstances and context of Mr Hong’s conduct found to breach [the Rules of Conduct and Client Care], Mr Hong’s belief and consequent motivation for his behaviour in evidence before us, and Mr Hong’s acknowledgement that he would take care not to let himself get into such a situation again, we do not consider that there are issues here which require disciplinary intervention to ensure the public interest is protected. In short, we do not consider that the conduct rises to a level of seriousness which reflects fitness to practice issues or that Mr Hong is unsuited to engage in practice as a lawyer.
“Accordingly we find the misconduct charge not proven, and it is dismissed.”
In her judgment, Justice Andrews referred to evidence that Mr Hong had a series of prior complaints, including a complaint from a client. She noted that evidence had not been before the Tribunal.
“In the absence of Mr Deliu’s submission being put to Mr Hong, I would not be prepared to find that Mr Hong misled the Tribunal,” Justice Andrews said.
“However, it is evident that the Tribunal placed some weight on the charge before it being Mr Hong’s ‘sole indiscretion resulting in disciplinary charges’ in reaching its conclusion that the charge of misconduct was not proved. It did so under a mistake of fact.”
Justice Andrews found the following reviewable errors:
a) The Tribunal proceeded under a mistake of fact, namely that Mr Hong – in his many years of practice – had never before had a client complaint.
b) The Tribunal was in error of law in failing to exercise, or consider the exercise of its power to amend the charge or add a charge.
c) The Tribunal erred in failing to consider an alternative charge.
“The errors set out in (b) and (c) above, in particular, are sufficient for Mr Deliu’s application for judicial review to succeed,” Justice Andrews said.
“Mr Deliu submitted that if I were to find in his favour, then I should remit the matter to the Tribunal for reconsideration. Accordingly, the Tribunal’s decision is quashed and the charge against Mr Hong is remitted to the Tribunal for reconsideration.”