HONG v LEGAL COMPLAINTS REVIEW OFFICER [2015] NZHC 2444

HONG v LEGAL COMPLAINTS REVIEW OFFICER [2015] NZHC 2444 [7 October 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-2170[2015] NZHC 2444UNDER the Lawyers and Conveyancers Act 2006IN THE MATTER of an appeal against a decision of theLawyers and Conveyancers DisciplinaryTribunalBETWEEN BOON GUNN HONGAppellantAND LEGAL COMPLAINTS REVIEWOFFICERRespondentHearing: 6 October 2015Appearances: Appellant in personP Collins for respondentJudgment: 7 October 2015JUDGMENT OF KATZ J[Stay application]This judgment was delivered by me on 7 October 2015 at 3:00pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy RegistrarSolicitor: B.G. Hong Law Firm, AucklandLegal Complaints Review Officer, AucklandCounsel: P Collins, Shortland Chambers, Auckland[1] The appellant, Boon Gunn Hong, is a lawyer. He has been found guilty bythe New Zealand Lawyers and Conveyancers Disciplinary Tribunal ("Tribunal") ofmisconduct pursuant to s 7(1)(a)(i) of the Lawyers and Conveyancers Act 2006("liability decision").1[2] Mr Hong has filed an application under r 20.10 of the High Court Rules for interim relief in the form of an order directing the Tribunal not to determine his penalty until his appeal against the liability decision is heard and determined. A halfday hearing on penalty issues is currently scheduled for 14 October 2015. Therespondent, the Legal Complaints Review Officer ("LCRO") opposes the stayapplication.[3] Rule 20.10 provides:20.10 Stay of proceedings(1) An appeal does not operate as a stay-(a) of the proceeding appealed against; or(b) of enforcement of any judgment or order appealed against.(2) Despite subclause (1), the decision-maker or the court may, on application, do any one or more of the following pending determination of an appeal:(a) order a stay of proceedings in relation to the decision appealed against:(b) order a stay of enforcement of any judgment or order appealed against:(c) grant any interim relief.(3) An order made or relief granted under subclause (2) may-(a) relate to enforcement of the whole of a judgment or order or to a particular form of enforcement:(b) be subject to any conditions for the giving of security the decision-maker or the court thinks just.1 Legal Complaints Review Officer v Hong [2015] NZLCDT 27.[4] Rule 20.10(2) confers a broad discretion. In Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd, Asher J observed:2The aim is to prevent developments in the interim which may stop the appellate Court being able to do justice on the points at issue, when they aredetermined. The rule is headed "Stay of proceedings and execution". Therelief sought must have a direct connection to the proceedings, or execution of the Judgment.[5] Mr Hong submitted that he has strong grounds of appeal (which he outlinedat length in his written submissions) and that his appeal will, to some extent at least,be rendered nugatory if interim relief is not granted. He further submitted that thereis little or no risk to the public (namely consumers of legal services) if interim reliefis granted and that the failure to grant interim relief would have a catastrophic effecton his practice in the event that the Tribunal makes an order striking him off. Thiswould prejudice not only him, but his clients.[6] Similar arguments were recently considered by Simon France J in Lagolago v Wellington Standards Committee 2.3 His Honour concluded that it was not appropriate to grant an order directing the Tribunal not to determine penalty until the liability appeal was heard and determined, for the following reasons:4Sound public policy reasons underlie the normal practice of proceeding to determine the penalty hearing expeditiously. First, in the case of professional disciplinary matters it is preferable that the appropriate consequences be identified promptly. It may then be possible to stay them pending an appeal, but in some cases the need to protect the community may prevail.Second, it is more conducive to sound decision making that the Tribunal conducts the penalty hearing promptly whilst matters are fresh. It is also more efficient since otherwise there will be need to reconvene after an indeterminate period of delay. Next, it is preferable that the High Court have all appealable decisions before it at the one time. Its task on appeal is to"confirm, reverse or modify", and it is both undesirable and inefficient tohave appeals from the same matter arising on different occasions.Finally, it is plainly consistent with the stated purposes of the Act for the disciplinary hearing to be concluded as promptly as possible.5 The penalty hearing is an integral part of that process. Prolonging the process is something that should only occur for good reason.2 Fullers Bay of Islands Ltd v Otehei Bay Holdings Ltd HC Auckland CIV-2009-404-007207, 23 February 2011 at [15].3 Lagolago v Wellington Standards Committee 2 [2015] NZHC 2187.4 At [8] to [10].5 Deliu v New Zealand Law Society [2012] NZCA 359 at [10].In my view such reasoning is equally applicable in this case.[7] The Act recognises that there is a strong public interest in matters relating to the discipline of the legal profession being dealt with expeditiously. Part 7 of the Act states that the framework in relation to complaints against lawyers is intended toensure that such complaints be "processed and resolved expeditiously"6 and thatdisciplinary charges "be heard and determined expeditiously".7 The Court of Appeal has recently reaffirmed the importance of proceedings under the Act being determined expeditiously, for the benefit of consumers of legal services and for the legal profession as a whole, and noted that one of the central objectives of the Act isto provide for "a more responsive regulatory regime in relation to lawyers andconveyancers".8[8] Mr Hong will, of course, be entitled to appeal any penalty decision and willalso be able to make a further stay application at that time. Whether a stay is grantedat that stage will depend on all of the relevant circumstances, including the severityof the penalty that has been imposed. In Hart v Auckland Standards Committee 1 ofNew Zealand Law Society Lang J observed that the Court would exercise the powerto grant interim relief from suspension sparingly, and only in circumstances where itcan be confident that any order it might make would not place members of the publicat risk.9 Obviously, a stay in respect of a lesser penalty (such as a fine) may be morereadily granted.[9] Given the consumer protection purposes of the Act and the legislative focus on expedition it is not appropriate, in my view, to launch a pre-emptive strike on theTribunal's ability to determine penalty issues at this stage. Rather, the appropriate course is for the Tribunal's current disciplinary process to run its course and for any penalty appeal to be considered and determined together with the existing liability appeal. Stay issues in relation to any penalty imposed are more appropriatelyconsidered once the penalty (and the Tribunal's supporting reasoning) is known.6 Lawyers and Conveyancers Act 2006, s 120(2)(b).7 Lawyers and Conveyancers Act, s 120(3).8 Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562 at [165] to [169].See also Deliu v New Zealand Law Society [2012] NZCA 359 at [10].9 Hart v Auckland Standards Committee 1 of New Zealand Law Society [2012] NZHC 2496.[10] I accept that allowing the disciplinary process to run its course has the potential to cause hardship to Mr Hong, and his clients, pending determination of the appeal(s), particularly in the event that a stay of the penalty decision is not granted. However, as Lang J observed in Hart, Parliament must have been aware of those outcomes, but clearly chose to introduce a regime designed to ensure that the community was protected notwithstanding the consequential hardship for an appellant and his or her clients.10[11] For the reasons I have outlined, I have not been persuaded that the circumstances of the present case justify granting the interim relief Mr Hong seeks. The application is accordingly dismissed. Costs are reserved, to be determined together with the costs of the substantive appeal.____________________________Katz J10 Hart v Auckland Standards Committee 1, above n 9, at [29].