BOON GUNN HONG v NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2020] NZHC 2205

BOON GUNN HONG v NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL[2020] NZHC 2205 [27 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-854[2020] NZHC 2205IN THE MATTER of an application for judicial review anddeclaratory ordersBETWEEN BOON GUNN HONGPlaintiff/ApplicantAND NEW ZEALAND LAWYERS ANDCONVEYANCERS DISCIPLINARYTRIBUNALFirst Defendant/First RespondentAUCKLAND STANDARDS COMMITTEENo 5 and the NEW ZEALAND LAWSOCIETYSecond Defendant/Second RespondentATTORNEY-GENERALThird Defendant/RespondentHearing: 5 August 2020Teleconference 11 August 2020Appearances: B Hong, self-representedP Collins for Second Defendant/RespondentJudgment: 27 August 2020JUDGMENT OF MUIR JThis judgment was delivered by me on Thursday 27 August 2020 at 3.00 pm pursuant to Rule 11.5 ofthe High Court Rules.Registrar/Deputy Registrar Date:Counsel: P Collins, AucklandSolicitors: Crown Law, Wellington.New Zealand Law Society, Auckland.Copy to: ApplicantIntroduction[1] The New Zealand Law Society (the Society) and the Auckland StandardsCommittee No 5 (the Standards Committee)1 apply for orders striking out the first,second and two causes of action identified as third, in proceedings brought byMr Hong. I will refer to the last of these as causes of action 3(1) and 3(2).[2] Although counsel for the applicants does not act for the first respondent (theTribunal), which has indicated an intention to abide the decision of the Court, theTribunal takes the position that,2 because each of causes of action 1, 2, 3(1) and 3(2)are "closely linked", the Court might likewise consider whether the claims against it3are likewise appropriately struck out. It relies on the decision of the Court of Appealin Siemer v Stiassny,4 in which it held that the power of the High Court under r 15.1to strike out a proceeding does not depend upon an application having been made, andthat the Court may exercise its powers in respect of all defendants, even though oneor more may not have brought such application. I intend to proceed accordingly.[3] The Society and Standards Committee's applications proceed on the basis thateach of the causes of action identified amount to a collateral attack on the decision ofGault J in Hong v Auckland Standards Committee No 5,5 and as such are either anabuse of process, untenable or vexatious within the terms of r 15.1.[4] Mr Hong's unapologetic position is that the decision of Gault J is wrong anddoes not stand as an impediment to any of his claims.[5] Having initially filed his proceedings against the first and second respondentsonly, Mr Hong purported to file (without an application under High Court Rule 4.56)an amended statement of claim with a cause of action against the Attorney-General.This decision does not address that claim.1 Both are named as second respondents. Each should be separately identified as such.2 Memorandum dated 2 July 2020, at [3].3 Made in causes of action 1, 2 and 3(1).4 Siemer v Stiassny [2011] NZCA 1.5 Hong v Auckland Standards Committee No 5 [2020] NZHC 744.Background[6] Mr Hong is a former Auckland solicitor. Subsequent to the disciplinaryprocesses which ultimately came before Gault J on appeal (and which resulted in hissuspension from practice for three months, an order prohibiting him from practisingon his own account and a costs award), he was subject to further disciplinaryproceedings before the Tribunal which resulted in him being struck off. Such resultwas in turn confirmed on appeal before Gordon J.6[7] The current proceedings seek, among other things, to challenge the suspensionand prohibition decisions made by the Tribunal and upheld by Gault J. In turnMr Hong has signalled an intention to bring separate claims challenging the strikingoff decision which went on appeal to Gordon J.[8] The background to the present matter is a refusal on Mr Hong's part to provideto the Society's Trust Account Inspector, Mr Strang, documents beyond those whichMr Hong considered could be properly called for under the Lawyers andConveyancers Act (Trust Account) Regulations 2008 (the Regulations).7 In particularMr Hong declined to provide specific client files which were requested of him. Hesaid that his obligations of confidentiality and in relation to client privilege compelledhim to adopt this course.[9] The Standards Committee then made an "own motion" complaint to theTribunal, which held that Mr Hong had a duty to make the client files available asrequested. It said that a practitioner's duty to co-operate was both expressly andimpliedly recognised in the Lawyers and Conveyancers Act 2006 (the Act) and theRegulations. It referred to a passage in Duncan Webb's text Ethics Professional6 Hong v Auckland Standards Committee No 5 [2020] NZHC 1599.7 Regulation 3 provides:Trust Account records, in relation to a practitioner, means –(a) all records (including all books, papers, files, accounts, statements, invoices or copies ofinvoices, documents, receipts and evidence of authority for payments, cheques, securities andtrust receipt forms used and unused) relating to the practitioner's trust accounts or to trustmoney received by the practitioner, whether kept in writing or on computer or machine or inany other manner; and(b) if any of those records are kept on computer, includes the relevant computer equipment andsoftware.Responsibility and the Lawyer,8 recognising that a practitioner's disclosure obligationsdisplaced the duty of confidence usually owed by a lawyer. The Tribunal foundMr Hong's refusal to provide the relevant files constituted misconduct as a result ofwhich he was, in light of prior disciplinary history, suspended from practice and madesubject to the other orders previously identified.[10] Mr Hong was dissatisfied with the decision. He exercised his right to appealto the High Court.9 The matter came on for hearing before Gault J on 2 April 2020.It was given priority despite Covid-19 restrictions.[11] In his reserved judgment dated 16 April 2020 his Honour summarisedMr Hong's argument in the following terms:[35] Mr Hong maintained that all trust account records were provided. Hisapproach in respect of documents or files requested that are not trust accountrecords and contain sensitive, private and confidential or commercially orlegally privileged documents is to seek client consent given his strict duty ofconfidence to clients.[38] Mr Hong submitted that the Tribunal was in error when it found thathis refusal to give to the inspectorate client files that are not trust accountrecords, when the clients have refused to grant consent, constitutedmisconduct.[12] The Court rejected that argument. It undertook a thorough review of therelevant legislation and authorities, concluding:[49] However, focus on a narrow meaning of "trust account records" losessight of the purpose of the regime. The relevant purposes of the Act are tomaintain public confidence in the provision of legal services and to protect theconsumers of legal services. Handling of client funds is a critical component.The Regulations are promulgated to regulate the use and audit of trustaccounts. Under the Regulations the relevant statutory functions of theinspectors are to review trust accounts and ensure compliance with the trustaccount obligations in the Act and the Regulations. This supervision byinspectors is an important aspect of maintaining public confidence. Thepowers of inspectors under the Regulations are those reasonably necessary orexpedient to enable them to carry out their statutory functions. While theserelevant statutory functions do not extend to reviewing the conduct ofpractitioners in other unrelated respects, within the scope of these functions8 Duncan Webb Ethics Professional Responsibility and the Lawyer (2nd ed, LexisNexis, Wellington,2006) at 8.83.9 Lawyers and Conveyancers Act 2006, s 253.the powers of inspectors are those reasonably necessary or expedient to enablethem to carry out these functions.[50] I therefore accept Mr Collins' submission that, where the requestedfiles have trust account transactions, the integrity of the regime indicates thatit should be the inspector's judgement rather than the lawyer's as to the scopeof the records required.(footnotes omitted)[13] Relying on the passage from Ethics Professional Responsibility and theLawyer (previously cited) and the decision in Parry-Jones v The Law Society,10 Gault Jfurther held that the functions and powers of inspectors under the Act and Regulationsexpressly or by necessary implication override the practitioner's obligation to his orher client to maintain confidentiality.[14] His Honour then considered whether Mr Hong's response constitutedmisconduct within the terms of s 7 of the Act. He held11 that although Mr Hong hadnot acted wilfully (in the sense of acting with knowledge that his actions representeda contravention of the Regulations), he had nevertheless acted recklessly in that:12He was persistent in his obstruction of the inspector's trust account review andfailed to acquaint himself with his legal obligation to permit the inspector tocarry out the review notwithstanding client confidentiality and his obstructionhad the effect of compromising the inspector's trust account review.[15] His Honour then went on to consider penalty. He concluded that Mr Hong'sconduct during the Inspector's review was "obdurate",13 and that his continuedadherence to his position indicated a lack of insight and remorse.14 He referred toMr Hong's long disciplinary history, and in particular an increase in frequency ofdisciplinary findings over more recent years, suggesting a decline in his capacity tomaintain professional standards.15 Although his Honour indicated that, in the absenceof such history, he would not have considered suspension appropriate, the lack ofinsight or any other mitigating factors coupled with the number and nature of previousdisciplinary findings justified the suspension "having regard to the protective and10 Parry-Jones v The Law Society [1969] 1 Ch1 (CA) at 7 per Lord Denning MR and at 9 per DiplockLJ.11 Hong v Auckland Standards Committee No 5 [2020] NZHC 744 at [55] - [64].12 At [64].13 At [76].14 At [76].15 At [83].deterrent aspects of the public interest".16 He also upheld the order that Mr Hong wasnot to practice on his own account until he was approved to do so. An adjustment was,however, made to the costs order against him.17[16] Mr Hong then sought leave from the High Court to appeal the decision ofGault J to the Court of Appeal.18 He identified what he considered to be five errors orquestions of law arising out of the judgment:(a) Whether in the course of a general trust account audit the inspectorateis empowered to require production of non-trust account records whenthe clients had refused to grant consent accordingly.(b) Whether it was "lawfully correct for the lawyer who had relied on theliteral meaning of the regulations in his decision to abide by his client'sinstructions not to release the files" and who had "undertaken athorough search of judicial decisions affecting the interpretation of theregulations and found none that is relevant", could be held to havemisconducted himself pursuant to s 7 of the Act by not releasing thefiles.(c) Whether it was proper and satisfactory for a lawyer who had come tothe view that the Inspectorate was not empowered to require productionof client's non-trust account records to go against his client'sinstructions, notwithstanding the requirement that the Inspectorate keepall such information confidential.(d) Whether the three-month suspension was fair and reasonable inaccordance with the objectives and purposes of the Act and judicialprinciples and precedents.(e) Whether the costs award was erroneous when "by the literalinterpretation of the Act and Regulations, the inspectorate is only16 Hong v Auckland Standards Committee No 5 [2020] NZHC 744 at [85].17 The order to pay $35,850 was quashed and a sum of $30,850 substituted.18 Lawyers and Conveyancers Act 2006, s 254.entitled to trust account records and as such this challenge by theappellant is a test case".[17] In his decision dated 3 July 2020 Gault J dismissed the application for leave.In respect of question (a) he said that although it did raise an issue of law, he did notconsider it was one capable of bona fide and serious argument. He said that for thereasons his substantive judgment set out, he considered that "a narrow interpretationof the meaning of "trust accounts records" lost sight of the purposes of the statutoryregime.19[18] In respect of question (b) he said that this represented a challenge to his findingof reckless (but not wilful) contravention and as such did not raise a point of law or, ifit did, one capable of bona fide and serious argument.[19] He described question (c) as a corollary of question (b) and amenable to thesame answer. He distinguished the decision of the Court of Appeal in Keene v LegalComplaints Review Officer20 which Mr Hong referred him to in a supplementarysubmission, on the grounds that the approach adopted by the practitioner in that casewas one reasonably open to him and not simply "arguable" as Mr Hong had contendedin the present case. He held, in any event, that his finding of reckless contraventionwas based in Mr Hong's persistent obstruction of the Inspector's review and failureadequately to acquaint himself with his legal obligation.21[20] In respect of questions (d) and (e) he said that they did not raise questions oflaw and otherwise doubled back on the primary issue.[21] In the final paragraph of the judgment his Honour noted that:22Mr Hong's submission also raised allegations of discrimination against theLawyers Complaints Service. He filed yet another submission referring to ajudicial review application and raising issues of corruption. These new factualallegations cannot be raised by way of leave to appeal.19 Hong v Auckland Standards Committee No 5 [2020] NZHC 1572 at [8].20 Keene v Legal Complaints Review Officer [2019] NZCA 559.21 Hong v Auckland Standards Committee No 5 [2020] NZHC 1572 at [11].22 At [14].[22] This observation was, however, prescient in terms of the statement of claimthat I am required to consider.[23] Mr Hong has now made a second application for leave direct to the Court ofAppeal.23 At the time of preparation of this judgment that application is unresolved.What Mr Hong claims in his new proceedings[24] Mr Hong's first amended statement of claim is 50 pages and 274 paragraphslong. It is intituled; In the Matter of the Senior Courts Act 2016, the Judicial ReviewProcedure Act 2016, the Lawyers and Conveyancers Act 2006 and the New ZealandBill of Rights Act 1990. It is said to be an application for judicial review anddeclaratory orders. I endeavour to summarise its component parts as follows:Paragraphs [1] – [28][25] These include introductory paragraphs identifying the parties followed by whatis described as a "summary of background facts and events concerning the Tribunaland this Court's decisions". I accept Mr Collins' submission that the paragraphscontain a combination of factual allegations and argument about the merits of therelevant disciplinary proceeding against Mr Hong and, in particular, whether he erredin his assessment of his obligations under the Regulations.[26] Mr Hong describes the substantive judgment of Gault J as having confineditself to a finding of reckless contravention of the Regulations but having otherwise"rubber stamped the rest of the Tribunal's findings in both its determinations".Significantly at paragraph [26] Mr Hong pleads:On 18 May 2020 I filed an application seeking leave of this Court to refer andappeal on Questions of Law to our Court of Appeal (CA), as opposed to byASC5 [the Standards Committee], in which I seek to challenge this Court'sjurisprudence. As I have informed and complained to the Court, I have to filethis JR [judicial review] application to ensure I get to the CA as of right andas this is the second time that without this JR [judicial review] application,this Court seemed to me, would just rubber stamp the Tribunal's finding.(emphasis added)23 Lawyers and Conveyancers Act 2006, s 254(i).[27] The pleaded position is therefore that Gault J did not bring his independentjudgment to the issues which exercised the Tribunal and that Mr Hong could not expectthis Court to adjudicate appropriately on his judicial review proceedings, but that bybringing such proceedings he would have an appeal, as of right, to the Court of Appeal.Cause of action 1[28] The first cause of action is against both the first and second defendants. Thepreamble identifies it as seeking:Judicial review of the Tribunal's Misconduct Liability and Penalty and CostsDeterminations against the Applicant, the Tribunal had been bias (sic), hadacted contrary to the Law and Legal Principles and had acted in BAD FAITH.[29] At [42] he pleads that the finding of misconduct against him "under theindisputable facts and circumstances is wrong at Law" and, at [61], that if hisinterpretation of the Regulations is not "wholly untenable" it should be resolved in hisfavour.[30] At paragraphs [62] – [72] he states that the Tribunal erred in law and on thefacts when it took into account irrelevant considerations and disregarded relevant ones.The essence of his complaint is that the Tribunal failed in its duty to interpret the Actand Regulations and abdicated proper interpretation to its Inspector.[31] At paragraphs [73] – [74] he pleads that there was no misconduct or evenunsatisfactory conduct as "The Misconduct Liability Determination by the Tribunalagainst me as such is wrong at Law" and that he had been "guided strictly by the saidL&R [Law and Regulations] by the literal interpretation thereof". He then pleads thatthe suspension penalty imposed on him did not apply relevant legal principles, wasmanifestly excessive, incorrectly assessed the nature and quality of the misconduct,incorrectly relied on previous disciplinary history, incorrectly invoked the deterrentprinciple and failed to impose the least restrictive outcome.[32] At paragraphs [101] to [104] he pleads that the imposition of a suspensionpenalty was ultra vires and that "at worse (sic) a fine and censure would be theappropriate penalty".[33] At paragraphs [105] – [111] he pleads that the Tribunal was unreasonable in itsimposition of its costs award and failed to take into account the fact that his was a "testcase".[34] At paragraphs [112] – [115] he pleads that the order prohibiting him frompractising on his own account was invalid, is not serving any relevant objective and ispunitive in nature.[35] At paragraphs [116] – [122] he pleads that he had a legitimate expectation thata specialist Tribunal "constituted with lawyer members of Good Standing and a chairwho is a retired Judge" would discharge their statutory obligations in accordance withthe law and legal principle and, contrary to such expectation, it had issued a "PerverseDetermination".[36] At paragraph [121] the Standards Committee and the Law Society are said tobe "jointly culpable with the Tribunal".[37] And at paragraph [122] he makes a bare allegation that "it is not plausible" foreach of the first and second respondents "to make so many errors" and that they have"acted with BIAS, in DISCRIMINATION and in BAD FAITH against me".[38] The relief sought is, inter alia, an order setting aside or quashing the Tribunal'sdetermination and declaratory orders that the second respondents acted ultra vires inrequiring production of the relevant materials.Cause of action 2[39] This cause of action is also against both the first and second respondents. It ispurportedly based on a breach of statutory duty evidenced by delivery of "PerverseDeterminations" reflecting discrimination, bias and bad faith with the result that:24Such is NOT an adjudication such is a perversion of justice. If and when thereis such a perverse judgment we the Public will be concerned of there being(sic) CORRUPTION, that is why we have the legal maxim of Justice must notonly be done BUT MUST be seen to be done.24 First Amended Statement of Claim, dated 15 July 2020, at [132].[40] At paragraph [141] he pleads that neither the Society, the Standards Committeenor its personnel are protected by statutory immunity because they have acted in badfaith. Again the pleading is focused on the matter which ultimately came beforeGault J.[41] At paragraphs [148] – [158] Mr Hong pleads that he has suffered financial lossin an amount to be quantified as a result of "the Respondent's actions against me" andin particular his inability to work during his suspension. He pleads also that he hasbeen demeaned by the requirement to seek leave to again practice on his own accountand that he has suffered humiliation and distress in consequence. He again seeksorders setting aside or quashing the Tribunal's determinations as to liability andpenalty together with declarations that the respondents have acted ultra vires, and forunspecified damages.Cause of action 3(1)[42] This cause of action, which is also against both first and second defendants,pleads a breach of the plaintiff's rights under the "New Zealand Bill of Rights Act1990 (BORA) and Magna Carta 1927 (sic)". The focus is again the decision made bythe Tribunal which was subsequently appealed to this Court. Again, the Tribunal'sfindings are described as "Perverse Determinations". The remedies duplicate thosepreviously sought.Cause of action 3(2)[43] This is a more generalised pleading. It is against the second defendant only. Itranges well outside the matters which came before Gault J to include allegations of a"systemic discriminatory campaign by Dark Forces"25 evidenced by (seemingly)every disciplinary decision made against Mr Hong since 1997 and, in the case of theSociety, its decision to "disapprove of my Practice Attorney to act for me withoutallowing and affording us an opportunity to be heard".26 Mr Hong pleads that as aresult of this systemic discrimination and bad faith the second defendants havebreached their statutory duty against him or in the alternative have "committed the tort25 First Amended Statement of Claim, dated 15 July 2020, at [183].26 At [206].of negligence, by their lack of care in their deliberations of each of the complaints andinquiries and requiring me to wind up my practice".[44] The prayer for relief seeks, among other things, declarations that the findingsof liability, penalty and costs against him have been disproportionate anddiscriminatory and are in breach of his NZBORA and Magna Carta rights. He pleadsalso specific relief in respect of the matter appealed to Gault J by way of a finding that"NZLS and its inspectorate had acted ultra vires in breach of TAR [Trust AccountRegulations] reg 32" and that "the ASC5's [Standards Committee's] resolution to haveme prosecuted before the Tribunal is invalid null and void" when executed inbreach of the [Law and Regulations].Cause of action 4[45] As indicated, review of this cause of action is beyond the scope of the presentapplication but for completeness I record that it pleads the infiltration of "Dark Forces"in the administration of law and justice, that the decision of Gault J dismissing theappeal was "perverse", "predetermined" and intended to "rubber stamp the Tribunal'sDeterminations against [Mr Hong]"27 and that the decision to decline leave to appealwas "biased and discriminatory against [Mr Hong]". 28[46] Mr Hong pleads that the international reputation of New Zealand will bedamaged if the Attorney-General does not intervene and seeks a declaratory order, thathe has a "statutory duty to step in", together with orders setting aside Gault J'sjudgments on the appeal and application for leave.The strike-out jurisdiction[47] The second respondents apply to strike-out causes of action 1, 2, 3(1) and 3(2)under r 15.1 of the High Court Rules. This provides:27 First Amended Statement of Claim, dated 15 July 2020, at [238] - [239].28 At [249].15.1 Dismissing or staying all or part of proceeding(1) The court may strike out all or part of a pleading if it—(a) discloses no reasonably arguable cause of action, defence, orcase appropriate to the nature of the pleading; or(b) is likely to cause prejudice or delay; or(c) is frivolous or vexatious; or(d) is otherwise an abuse of the process of the court.(2) If the court strikes out a statement of claim or a counterclaim undersubclause (1), it may by the same or a subsequent order dismiss theproceeding or the counterclaim.(3) Instead of striking out all or part of a pleading under subclause (1),the court may stay all or part of the proceeding on such conditions asare considered just.(4) This rule does not affect the court's inherent jurisdiction.[48] They rely specifically on rr 15.1(1)(a), (c) and (d).[49] In respect of an application to strike-out for want of a reasonably arguablecause of action, the principles are well settled, being those identified by the Court ofAppeal in Attorney-General v Prince29 and the Supreme Court in Couch v Attorney-General.30(a) pleaded facts, whether or not they are admitted, are assumed to be true.This does not extend to pleaded allegations which are entirelyspeculative and without foundation;(b) the cause of action must be clearly untenable and the Court should notstrike-out a proceeding unless it is certain it cannot succeed;(c) the strike-out jurisdiction is to be exercised sparingly and only in clearcases;29 Attorney-General v Prince [1998] 1 NZLR 262 (CA) at 267.30 Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].(d) the jurisdiction is not excluded by the need to decide difficult questionsof law; and(e) the Court should be slow to strike-out a claim in any developing areaof the law.[50] The second respondents also submit that the proceedings are an abuse ofprocess, or frivolous and vexatious. The identified abuse of process is an allegedattempt by Mr Hong to relitigate matters already determined by judgment of the HighCourt. Such attempts have been held to "strike at the public confidence in the Court'sprocesses and so diminish the Court's ability to fulfil its function as a Court of law".31In Siemer v Heron the Court considered:32[attempts to relitigate] damage the Court system. They place continuedexpenses and stress on the parties. They place work with the Court systemwhich will displace other causes which are brought for proper purposes. Theyare an abuse of procedure.[51] Often the attempt to relitigate will be by way of what is termed a "collateralattack". Lord Diplock described the process in Hunter v Chief Constable of WestMidlands Police:33The abuse of process which the instant case exemplifies is the initiation ofproceedings in a court of justice for the purpose of mounting a collateral attackupon a final decision against the intending plaintiff which has been made byanother court of competent jurisdiction in previous proceedings in which theintending plaintiff had a full opportunity of contesting the decision in theCourt by which it was made.[52] In another House of Lords judgment, Ampthill Peerage Case,34 LordWilberforce stated:English law, and it is safe to say, all comparable legal systems, place high inthe category of essential principles that which requires that limits be placedon the right of citizens to open or to re-open disputes. The principle which wefind in the Act of 1858 is the same principle as that which requires judgmentsin the courts to be binding, and that which prohibits litigation after the expiryof limitation periods. Any determination of disputable fact may, the lawrecognises, be imperfect; the law aims at providing the best and safest solution31 Moevao v Department of Labour [1980] 1 NZLR 464 (CA) at 482.32 Siemer v Heron [2014] NZHC 1639 at [23].33 Hunter v Chief Constable of West Midlands Police [1981] UKHL 13 at 541.34 Ampthill Peerage Case [1977] AC 547 at 569.compatible with human fallibility and having reached that conclusion it closesthe book.[53] A recent New Zealand example of an attempt to use judicial review to subverta final judgment of this Court and which was struck out as an abuse of process on thegrounds of collateral attack is Jin v District Court at North Shore.35 In that caseGilbert J stated:36There is no escape from the fact that Ms Jin is simply attempting through theseproceedings to achieve a better outcome on costs than she obtained fromWoodhouse J on her costs appeal. The present proceeding is nothing more thanan impermissible attempt to collaterally attack the final judgment of this Courton the costs issue. It is therefore an abuse of process and must be struck out.The public interest requires that there be finality in litigation.[54] In respect of frivolousness or vexatiousness, the concepts are disjunctive.37Frivolousness imports a claim of little or no value or importance while proceedingsare vexatious if they have a tendency to vex the party obliged to defend them. It isvexatious to bring proceedings in a different form (or in a different forum) to obtain aresult which the plaintiff failed to achieve in earlier legitimate proceedings.38[55] In the present case the second respondents allege that the claim is frivolousbecause it attempts to avoid the consequences of a final determination through meansother than those legitimately available to Mr Hong at law39 and it is vexatious becauseit requires the first and second respondents to defend matters already finallydetermined by the High Court.The parties' position[56] Although the second respondents point to multiple bases on which the causesof action might be struck out, ultimately their submissions return to the point that theplaintiff's claims seek to relitigate, by way of judicial review, a matter alreadydetermined by this Court on appeal, and such action constitutes an abuse of process.35 Jin v District Court at North Shore & Another [2017] NZHC 759.36 At [14].37 Deliu v Hong [2011] NZAR 681 at [21].38 Registered Securities Ltd (in liq) v Yates (1991) 5 PRNZ 68.39 Namely by leave to appeal from this Court or the Court of Appeal.[57] In response Mr Hong submits that there is no abuse of process in relation toany of his claims. He says that because he has an outstanding leave application to theCourt of Appeal there is no final judgment of this Court and that in any event his fourthcause of action against the Attorney-General applies to set aside the substantivejudgment of Gault J as perverse.[58] He submits that there is no statutory prohibition on him running what areeffectively parallel judicial review proceedings, and that this Court's appellatejurisdiction differs from its judicial review jurisdiction in that, in the latter, the Courtfulfils the constitutional role of ensuring public powers are exercised in accordancewith the law.[59] He submits that this "requires a detailed examination in interpretation of the[Law and Regulations] which is the intent of [his judicial review application]". Tothat end he contends that in its judicial review capacity this Court is entitled to andshould revisit, the interpretation of the Act and Regulations which it has alreadyundertaken in the context of the appeal. Paragraph [6] of his supplementary synopsisputs the position succinctly from his perspective: [Mr Hong's] [judicial review application] will require the Court to havefocused and determined whether the Respondents had properly determined theinterpretation of the [Law and Regulations] and the effects thereof as towhether Inspectorate is empowered to require the production of [non-trustaccount records] when the Clients have refused to grant their consent.[60] He further submits that the judicial review proceedings raise new issues interms of bad faith and discrimination. He says this is evidenced by the Tribunaldecision which was appealed to Gault J because "our Complaints Regime must knowwhat the law and legal principles were, [but] had chosen to ignore and not applysuch".40 He says further that the second defendants acted with "BAD FAITH AND INDISCRIMINATION when they embarked on the campaign to first defile mycomplaints history then use all of such to have me struck-off".4140 Synopsis of submission, dated 4 August 2020, at [6].41 At [6].[61] Finally, he submits that there is no proscription on judicial review applicationsfiled subsequent to an appeal process and indeed, that such is the most appropriatetime for them. He emphasises the fact that the right to judicial review is enshrined inthe Bill of Rights Act and that in circumstances which have been so "grave andhumiliating"42 this Court should allow all his arguments to be ventilated in a fullhearing with evidence.Discussion[62] In my view Mr Collins is correct in identifying at least causes of action 1, 2and 3(1) as collateral attacks on the judgment of Gault J on appeal. That judgmentproceeded (as Mr Hong acknowledged in argument) against a factual backgroundwhich was not in dispute. It did so against a statutory mandate that it be by way of re-hearing,43 and against the principles enunciated in Austin, Nichols & Co Inc v StichtingLodestar44 and Kacem v Bashir,45 whereby the appellate court has the responsibilityof considering the merits of the case afresh. Its focus was on whether, as a matter ofstatutory interpretation, Mr Hong was in breach of the Regulations by non-provisionof the requested information (a pure issue of law), whether his actions constitutedmisconduct and whether the Tribunal's penalty was appropriate.[63] Mr Hong candidly acknowledges that the essential thrust of each of thesecauses of action is to revisit the Tribunal's conclusion that his actions were in breachof the Regulations, albeit that such was confirmed on appeal by Gault J. He sayssimply that Gault J's decision is wrong, indeed that it is a "Perverse Judgment" as hedefines that phrase.46 He says in what approaches a "boot strap" argument that,because it is wrong, he can now revisit the whole underlying argument about properinterpretation of the Regulations by way of judicial review. And because he thinksthat the High Court simply "rubber stamps" decisions of the Tribunal and that, if giventhe opportunity, it will simply "rubber stamp" Gault J's decision again, he chooses thevehicle of judicial review, to give him an alleged "as of right" opportunity to re-argue42 Synopsis of Submission dated 4 August 2020 at [8].43 Lawyers and Conveyancers Act 2006, s 253(3)(a).44 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [73].45 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31] - [32].46 First Amended Statement of Claim, dated 15 July 2020 at [132].his interpretation of the Regulations before the Court of Appeal. Indeed he pleadsprecisely that,47 almost celebrating the notion of collateral attack.[64] Mr Hong had a right of appeal to this Court from the Tribunal's decision. Hechose to exercise it. He did so on the same grounds that underpin all his judicial reviewarguments except those based in alleged bias. Each of the causes of action 1, 2 and3(1), whether nominally claims under NZBORA, the Magna Carta, in tort or breachof statutory duty are all ultimately based on the same proposition, namely that theTribunal incorrectly interpreted the relevant Regulations, incorrectly found him guiltyof misconduct and incorrectly suspended him from practice – the very issues which hebought to this Court on Appeal. In that respect he has a final judgment without anyright of appeal. One application for leave has already been declined.[65] As Cooke J noted in Norrie v Senate of the University of Auckland,48 in mostcases where an applicant has had resort to a domestic remedy courts should beunwilling to grant discretionary remedies. The same point was made byBaragwanath J in Ding v Minister of Immigration,49 where he said relief by way ofjudicial review was "likely to be withheld where the party seeking review has hadavailable statutory rights of appeal against the challenged decision which . havefailed".[66] Although neither case is expressed in absolute terms, both emphasise thisCourt's strong reluctance to entertain judicial review arguments following the exerciseof appeal rights. Such resistance has to be even greater when:(a) Stripped of all unnecessary gloss and incantation the judicial reviewarguments on causes of action 1, 2, and 3(1) are a rerun of the argumenton appeal or, insofar as 1 and 2, introduce the new concepts of "bias","discrimination" or "bad faith," are premised on the assumption thatthe Tribunal decision was so legally flawed (despite being upheld onappeal), that it ex hypothesi evidences the bad faith alleged.47 First Amended Statement of Claim, dated 15 July 2020 at [26].48 Norrie v Senate of the University of Auckland [1984] 1 NZLR 129 (CA) at 141.49 Ding v Minister of Immigration (2006) 25 FRNZ 568 (HC) at [15].(b) The appeal was one to the High Court.(c) The appeal proceeded as a rehearing with the merits considered afresh.(d) There is no right of further appeal.(e) The decision of the High Court comprehensively addresses all issuesbefore it.[67] Of this list item (a) represents a stand-alone basis to strike-out the causes ofaction, invoking as it does the concept of collateral attack. But items (b), (c), (d) and(e) are also relevant because, insofar as Mr Hong alleges bad faith against the Tribunalin cause of action 2, I consider the conclusion almost irresistible that such has been"cured" on appeal to this Court. Indeed, there is the prospect of a double "cure"because the original reference by the Standards Committee was itself subject toTribunal review. For present purposes, however, I concentrate on the position of theHigh Court only.[68] Although the concept of bad faith is reasonably elastic and may extend beyondany imputation of the decision maker's motive to include the concepts ofunreasonable, arbitrary or irrational decision making,50 at least where there isknowledge a reviewable error is being committed, the bad faith alleged in causes ofaction 1 and 2 is based on alleged bias and discrimination (allegations which Mr Hongfurther develops in his causes of action 3(2) and (4)). It therefore goes directly tomotive or honesty.[69] It is well established that irregularities (including allegations of bias) in ahearing process can be cured by virtue of a further process of appeal or review in thenature of a rehearing.51 For example in NR v MR the Court of Appeal held that anybias exhibited on the part of the District Court Judge was cured by a subsequent appealto the High Court which had considered the matter afresh.52 Similarly in Russell v50 Ririnui v Landcorp Farming Ltd [2016] NZSC 62, [2016] 1 NZLR 1056 at [102]. Taylor v SocialSecurity Appeal authority [2019] NZHC 1718 at [65]. See also Graham Taylor Judicial Review:A New Zealand Perspective (4th ed, LexisNexis, Wellington, 20188) at [15.82].51 Secretary for Justice v Simes [2012] NZCA 459, [2012] NZAR 1044 at [102].52 NR v MR [2015] NZCA 81 at [29].Taxation Review Authority, the Court of Appeal held that any apparent bias in the firstinstance decision was "cured by the High Court's judgment on appeal, where "uponundisputed facts [the Judge] decided the issues with a fresh mind, unaffected by anysuggestion of apparent bias or predetermination".53[70] I accept that there is no absolute rule that an appeal will satisfactorily remedyan error of process or substance at first instance.54 Matthew Smith notes in The NewZealand Judicial Review Handbook55 that "curing only goes to remedial discretion"and as Tipping J observed in Nicholls v Registrar of the Court of Appeal,56 the questionof whether an appeal has remedied the alleged error involves a two-stage assessment:57The Court should first identify the error, or errors, which are said to vitiate thefirst instance decision. The second step is to examine what effect the appealhas had on the error, or errors, found at the first stage. If the appeal has insubstance removed the prejudice which would otherwise have resulted to thecomplaining party, the Court should exercise its discretion against relief,because overall no continuing prejudice from what went wrong at firstinstance can be shown. Where, as here, there has been review by way of arehearing, which is said to have cured any earlier problems, I would put theonus on the applicant for judicial review to demonstrate continuing prejudice.It is only if there is continuing prejudice that the first instance error, or errors,have continuing relevance.[71] However, focusing for present purposes on the "bias", "discrimination" and"bad faith" allegations in causes of action 1 and 2,58 I consider the case for the exerciseof remedial discretion against Mr Hong to be so overwhelming as one I maylegitimately take into account in my assessment of whether his proceedings should bestruck-out now on either abuse of process or vexatious grounds. That is because thebad faith alleged in these causes of action (unlike the more comprehensive attack incause of action 3(2)) is based on the premise no unbiased Tribunal could come to thedecision it did – a conclusion belied by the High Court's findings. As such the biasissue is in reality simply another facet of the collateral attack issue.53 Russel v Taxation Review Authority [2011] NZCA 158, [2011] NZAR 310 at [45].54 CLM v Chief Executive of the Ministry of Social Development [2011] NZFLR 11 and Nicholls vRegistrar of the Court of Appeal [1998] 2 NZLR 385 (CA).55 The New Zealand Judicial Review Handbook (2nd ed, Thompson Reuters, Wellington, 2016) at[79.1.2].56 Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA).57 At 437.58 Or what Mr Hong compendiously refers to in his submission as "discrimination" directed towardshim.[72] Moreover, the "curative" decision is that of the High Court which in theabsence of some cogent particularisation of bias on the part of the individual judgeinvolved, must be assumed to act with a fresh, independent and judicial mind. A mereallegation that it "rubber stamps" decisions of the Tribunal59 cannot be sufficient,being so demonstrably at odds not only with the judicial oath but this Court's historyof independence in exercise of its appellate function from the Tribunal – evidenced inthe present case by Gault J's modification of the Tribunal's costs order.[73] Accordingly, even insofar as causes of action 1 and/or 2 raise an ostensiblynew issue – bias, discrimination and/or bad faith on what I have called an "exhypothesi" basis – I consider them appropriately struck-out as an abuse of process.[74] I note for completeness Mr Collins' submission that cause of action 2 (breachof statutory duty or in the alternative negligence) faces the further potential problemthat it presupposes a private law remedy (damages) in respect of the actions of ajudicial tribunal where the statute provides alternative method of redress, namely onappeal.60 However, that in turn needs to be considered in light of ss 185 and 272 ofthe Act which recognise the potential for civil liability in the event of bad faith action.[75] Mr Collins primary argument in respect of cause of action 2 is, however, thatit is likewise a collateral attack on the decision of Gault J. I agree that is the case –the essence of the alleged breach of statutory duty is that the Tribunal delivered aperverse judgment – a proposition which simply cannot stand in light of the judgmentof Gault J. Necessarily the claim collaterally attacks the High Court's decision.[76] For these reasons I consider causes of action 1, 2 and 3(1) appropriately struckout against the second defendants as abuses of process and/or vexatious. Nor do I seethe position of the first respondent as any different. Relying on the jurisdiction59 As asserted in Cause of Action 3(2).60 See Feary v Commissioner of Crown Lands [2001] 1 NZLR 704 (HC).recognised in Siemer v Stiassny,61 I therefore strike out these causes of action againstall defendants.62[77] I come then to cause of action 3(2) alleging among other things a "systemicdiscriminatory campaign by Dark Forces" and based on the disciplinary and otherresponses against Mr Hong during his period of practice.[78] In argument Mr Collins acknowledged that, although in his view completelyuntenable as a matter of fact, Mr Hong could theoretically bring a claim which mightsurvive strike-out, alleging systemic racism and therefore bad faith by those (whetherCommittees, Tribunals or individual Legal Complaints Review Officers (LCEO's))who had made decisions adverse to him. However, he submitted that the currentpleading fell well short of what was required in that respect, in that:(a) it did not include the relevant parties to the decisions, some of whichwere made by the Auckland District Law Practitioners DisciplinaryTribunal (a Tribunal no longer in existence with the result that Mr Hongwould have to consider the transitional provisions of the LawPractitioners Act 2006) and three of which were made by LCROs whoare not named as parties;(b) the particulars of bad faith are inadequately pleaded, detailedparticulars being necessary;6361 Siemer v Stiassny [2011] NZCA 1 at [14].62 I have in that context considered but rejected Mr Hong's argument that I should delay judgmentuntil the outcome of his application for leave to appeal to the Court of Appeal is known. That maybe sometime distant. The second defendants are entitled, in my view, to have their applicationdetermined promptly and on the basis of the existing position. Moreover, in the event leave wasgranted and a subsequent appeal succeeded, causes of action 1, 2 and 3(1) are likely, in my view,to fall away in any event.63 Rule 5.17(2) provides that if a party alleges a state of mind of a person the party pleading mustgive particulars of the facts relied on in alleging that state of mind. See generally the authoritiescollected in McGechan on Procedure High Court Rule 5.26.08(1). In Schmidt v Pepper NewZealand (Cutodians) Ltd [2012] NZAR 434, (2019) 24 PRNZ 645 at [15] the Court of Appealemphasised that allegations of fraud should not be made in any pleading drafted by counsel unlessthey have reasonably credible material establishing a prima facie case and that "[g]eneralallegations, however strong the words may appear to be, are insufficient to amount to a properallegation of fraud". Although the test relates to fraud and not bad faith, similar principles apply,at least where the decision maker's motives or honesty are in issue.(c) there is no attempt to quantify Mr Hong's alleged claim in damages;(d) the cause of action offends the proscription on collateral attack byvirtue of its prayer for relief (b)(i) seeking an order that the Tribunaldecision which was appealed to Gault J be "set aside or squashed (sic)";and(e) the claim fails to recognise the "curative principle" in respect of alldecisions elevated to this Court.[79] Mr Collins further submitted that the deficiencies in the pleading were sosubstantial that I should strike it out as being, at a minimum, vexatious. He said thatthis would give Mr Hong an opportunity to "soberly reflect" on whether to bring anew and properly pleaded claim.[80] I agree that there is a necessity for sober reflection on Mr Hong's part aboutthe course he seems currently determined to pursue. The allegation that for over 20years and by multiple senior members of the profession Mr Hong has been the subjectof systemic racism is one in respect of which considerable care is necessary.[81] I agree also that the current pleading is deficient in all the respects Mr Collinsidentifies and is generally prolix. However, the question I must answer is whether,having regard to the Court's traditional reluctance to strike out claims which arecapable of being cured by amendment (and associated access to justiceconsiderations), I should give Mr Hong an opportunity to make such improvement (oralternatively discontinue) before the sword of Damacles potentially descends on thisaspect of the claim.[82] The relevant test has been colourfully described in terms of whether thepleading is one "which is a total write-off [or] which is deficient but is capable ofeffective repair".64 Typically, the Court will have been provided with proposedamendments in advance. That is not the case here. However, nor can I say the pleading64 Marshall Fixtures Ltd v Marshall [1992] 1 NZLR 316 (HC).is a "total write-off". In its reference to a refusal to "Kow Tow,"65 to a "systemicdiscriminatory campaign" to impose greater penalties on him than on othercomparable transgressors66 and to a failure (borne of bias) to impose the leastrestrictive outcome,67 the pleading contains at least the beginnings of the frameworkof a claim, however difficult it may ultimately be to establish. Mr Hong pleads thathe will provide "full particulars of such discrimination against me in mySubmissions".68 That is not the appropriate time for particularisation of a claim of badfaith. The defendants are entitled to a Rule compliant pleading now. And whereserious claims are made, tantamount to misfeasance, what is required are prima faciegrounds, particularised accordingly.69[83] I consider the appropriate course is to allow Mr Hong an opportunity to repleadcause of action 3(2) on a basis which addresses the identified deficiencies70 and toreserve to the second respondents the ability to apply further to strike out the amendedpleading if considered appropriate. I do so with an element of resignation that MrHong cannot, at this point at least, seemingly be dissuaded from the view that hisdisciplinary troubles stem not from any inadequacies in his own practice orinterrelationships with clients, practitioners and others, but from systemic racismdirected towards him as a Malaysian Chinese practitioner. As a result, any orderstriking out cause of action 3(2) is in my view no more likely to engender the "soberreflection" Mr Collins seeks than the alternative I have identified as appropriate. Irepeat, however, the desirability of such reflection.Result[84] I strike out causes of action 1, 2 and 3 (being the first cause of action identifiedas such in the plaintiff's first statement of claim dated 15 July 2020 and referred byme in this judgment as cause of action 3(1)).65 First Amended Statement of Claim dated 15 July 2020 at [181].66 At [183] and [189].67 At [181(c)].68 At [189].69 Refer fn 63 above. See also Deep v Auckland Goldline Co-operative Taxi Society [2018] NZHC2362 at [11].70 Mr Hong should also give active consideration to any limitation issues if his reference to historicdisciplinary procedures is intended to be anything more than evidence of alleged systemicdiscrimination in respect of decisions which are not time limited (if any are).[85] In respect of the second cause of action identified by me as 3(2), I directMr Hong to file and serve by 28 September 2020 a second amended statement of claimtogether with such applications as may be necessary under r 4.56,71 addressing thematters identified in [78] above and any relevant limitation constraints.[86] I urge Mr Hong to take independent advice before doing so and in theformulation of any amended claim.[87] I reserve leave to the second defendants to bring a second application to strikeout if the amended pleading is amenable to the jurisdiction in r 15.1.[88] I set the matter down for a case management conference on the first availabledate after 12 October 2020.Costs[89] The second respondents have been substantially successful and in my view areentitled to costs. They seek these on an indemnity basis.[90] My provisional view is that they should be awarded on a 2B basis havingregard to the fact that, although the plaintiff's pursuit of causes of action constitutingan abuse of process may otherwise have attracted an indemnity or uplifted award, notall causes of action against the second defendants have been struck out, at least at thisstage.[91] In the absence of agreement as to costs, memoranda (with a strict maximum ofthree pages)72 may be served and filed on the following timetable:(a) By second defendants in support by 11 September 2020.(b) By Mr Hong in opposition by 25 September 2020.71 Mr Hong is directed to the commentary in McGechan on Procedure HCR 4.56.02.72 I emphasise the point because of Mr Hong's failure, in the context of this application, to adhere tothe page limitation in r 7.39 (his submissions were 35 pages in length and only read after an expost grant of leave). A further eight page submission was filed on 10 August 2020.(c) By the second respondent in reply by 2 October 2020.[92] My expectation is that costs should be capable of agreement.__________________________Muir J