DELIU v HONG & ANOTHER [2015] NZHC 492

DELIU v HONG & ANOTHER [2015] NZHC 492

The High Court quashed the Tribunal's decision and remitted the charge because the Tribunal proceeded on a mistake of fact (incorrectly treating the charge as the respondent's sole prior disciplinary indiscretion) and erred in law by failing to consider or exercise its statutory power under reg 24 to amend or add alternative charges (including under s12(c) or s7(1)(a)), such failures amounted to reviewable error warranting quashing and remittal for reconsideration.

Citation
[2015] NZHC 492
Parties
Plaintiff: Francisc Catalin Deliu; First Defendant: Boon Gunn Hong; Second Defendant: New Zealand Lawyers and Conveyancers Disciplinary Tribunal
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 March 2015
Procedural Posture
Judicial Review / Judgment on Judicial Review (decision Reserved and Delivered)
Outcome
Tribunal decision quashed; charge remitted to the Disciplinary Tribunal for reconsideration
Legal Topics
Misconduct, Unsatisfactory Conduct, Disciplinary Tribunal Procedure, Statutory Interpretation, Remedies Quash and Remit, Procedural Error
Professional Disciplinary Law Administrative Law Judicial Review Legal Ethics Misconduct Unsatisfactory Conduct Disciplinary Tribunal Procedure Statutory Interpretation +2 more

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Parties

Francisc Catalin Deliu

Plaintiff

Boon Gunn Hong

First Defendant

New Zealand Lawyers and Conveyancers Disciplinary Tribunal

Second Defendant

Procedural Posture

Judicial Review / Judgment on Judicial Review (decision Reserved and Delivered)

Legal Issues

  1. 1 Whether the Tribunal proceeded under a mistake of fact concerning respondent's prior disciplinary history
  2. 2 Whether the Tribunal erred in law by treating the conduct as unconnected with provision of regulated services (s7(1)(b)(ii)) rather than considering s7(1)(a) or s12(c)
  3. 3 Whether the Tribunal should have used reg 24 to amend or add charges

Ratio Decidendi

The High Court quashed the Tribunal's decision and remitted the charge because the Tribunal proceeded on a mistake of fact (incorrectly treating the charge as the respondent's sole prior disciplinary indiscretion) and erred in law by failing to consider or exercise its statutory power under reg 24 to amend or add alternative charges (including under s12(c) or s7(1)(a)), such failures amounted to reviewable error warranting quashing and remittal for reconsideration.

Court Disposition

Tribunal decision quashed; charge remitted to the Disciplinary Tribunal for reconsideration

Orders

  • Tribunal decision quashed and charge remitted for reconsideration
  • Costs reserved; applicant to file memorandum within ten working days and defendants to file memoranda within a further ten working days