NGUY v LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2021] NZHC 478 [11 March 2021]

NGUY v LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2021] NZHC 478[11 March 2021]ORDER PROHIBITING PUBLICATION OF THIS JUDGMENTUNTIL 16 MARCH 2021 OTHER THAN TO THE PERSONS AND ENTITIESSPECIFIED IN [35]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-364[2021] NZHC 478BETWEEN JESSE SEANG TY NGUYApplicantAND LAWYERS AND CONVEYANCERSDISCIPLINARY TRIBUNALRespondentCounsel: M J Taylor-Cyphers for applicantH M Carrad and C P C Wrightson for respondentP N Collins for Auckland Standards Committee No 2 andNew Zealand Law SocietyJudgment: 11 March 2021JUDGMENT OF TOOGOOD J[On the papers]This judgment was delivered by me on 11 March 2021 at 4.00pm, pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel :Jesse & Associates, Auckland for applicantCrown Law, Wellington for respondentLawyers and Conveyancers Disciplinary Tribunal, AucklandP N Collins, AucklandIntroduction[1] On 4 March 2021, Jesse Seang Ty Nguy, a legal practitioner, issued aproceeding for an injunction against the New Zealand Lawyers and ConveyancersDisciplinary Tribunal (the Tribunal), a disciplinary body constituted under s 226 of theLawyers and Conveyancers Act 2006 (the Act). Mr Nguy seeks an order against theTribunal, preventing (until 16 March 2021) publication of an order it made on 2 March2021 suspending him from practice as a barrister or solicitor or both with immediateeffect until disciplinary charges against him under the Act had been disposed of.[2] At the time he filed the notice of proceeding and statement of claim, Mr Nguyalso applied without notice to the Tribunal for an interlocutory order that:Publication of the decision of the Tribunal occur after fourteen days expiresfrom the date of the [Tribunal's suspension] order (being 2.3.21, expiring16.3.21).[3] This judgment addresses the application for interlocutory relief but, as thecircumstances make clear, the order sought on an interim basis without notice wouldeffectively grant the substantive relief sought in the statement of claim.Background[4] The salient facts relied upon by the applicant are not disputed.[5] On 2 March 2021, the Tribunal conducted a hearing by video-link in whichMr Nguy did not participate but was represented by counsel (Ms Taylor-Cyphers).The Tribunal notified counsel by email at 3.07 pm that day that it had made an orderon the application of the Auckland Standards Committee 2 (the Standards Committee)under s 245(1) of the Act suspending Mr Nguy from practice as a barrister or solicitoror both with immediate effect until disciplinary charges against him under the Act hadbeen disposed of (the suspension order). Mr Nguy had made an application for anadjournment of the disciplinary proceeding before the Tribunal but it was refused.[6] On 10.28 am on 3 March 2021, the Tribunal, which was chaired by deputychairperson Judge J G Adams, gave its reasons for the suspension order in a writtendecision.1 A copy of the decision was sent by email to Ms Taylor-Cyphers and counselfor the Standards Committee, Mr Collins, attaching a sealed copy of the suspensionorder. The covering email from the Tribunal's case manager contained the followingpassage:By way of courtesy am [sic] letting you know the decision will be madeavailable on the Ministry of Justice/Tribunal website, in its current form, eitherlater today, or by latest tomorrow morning.[7] Although the email did not say so, it appears the Tribunal's notification that itintended to publish its decision containing the order under s 245(1) of the Act wasfounded on s 245(3), which provides:245 Interim suspension from practice(3) On the making of an order under subsection (1), or at any time whilesuch an order is in force, the Disciplinary Tribunal may direct that,after the expiration of the period of 14 days beginning with the day onwhich the order is made, a notice stating the date and effect of theorder is to be published in such publications as are specified by theDisciplinary Tribunal.[8] At 11.47 am on 3 March 2021, Ms Taylor-Cyphers sent to the Tribunal anurgent memorandum, which she copied to Mr Collins, in which counsel requested"reconsideration of [the] decision on publication, with regards to timing." Counselreferred to s 245(3) of the Act, submitting that the subsection provides a discretion onthe part of the Tribunal to order publication. Ms Taylor-Cyphers argued that, if thatdiscretion is so exercised, the Act provides that publication is to occur after 14 dayshave elapsed from the date of the order. Counsel said that the decision of the Tribunaldelivered to her that morning was silent as to publication and, in light of that, the usual14 days ought to elapse prior to publication. Ms Taylor-Cyphers suggested that, in theabsence of specific authorisation or an order from the Tribunal, it was difficult toidentify what if any basis there was for the suggested immediate publication. Sherequested urgent reconsideration of the publication timing in light of the legislativerequirements.1 Auckland Standards Committee 2 v Nguy [2021] NZLCDT 4.[9] The urgent memorandum was considered by Judge Adams in his role as deputychair of the Tribunal and the following response was communicated to Ms Taylor-Cyphers and to Mr Collins:Counsel for Mr Nguy asks that the Tribunal's decision not be reported for14 days. Open justice generally requires publication to explain why thedecision was made. The effect of the suspension was immediate. In thecircumstances of this case, even if an appeal were lodged, Mr Nguy could notexpect the suspension to be deferred. Our reasons should be available.We decline to suppress our reasons. They shall be uploaded onto the web asindicated.Judge J G AdamsDeputy Chair[10] Ms Taylor-Cyphers responded to the deputy chair's note in these terms:I'm grateful for the swift response.My reading of Section 345(3) [sic] is that the discretion around timing ofpublication only arises after the expiration of the 14-day period following themaking of an order (or when an order is in place).Which is to say, the discretion vis-à-vis publication does not arise before the14-day period expires.If I am mistaken in this regard, further clarification would be most useful.[11] Judge Adams then issued a fuller minute dated 3 March 2021. The minutereads:[1] Ms Taylor-Cyphers submits that s 245(3) prohibits the publication ofan order for interim suspension until the expiration of 14 days afterthe order is made.[2] Section 245 deals with interim suspension. In some cases, thejurisdiction is exercised without notice (although that was not the casehere).[3] Orders are made only where s 245(2) is satisfied. Generally, as in thepresent case, the essential finding involves imminent risk. An orderwill generally, as in the present case, take immediate effect, becausesuch is required to deal with the risk.[4] Reliance cannot be had solely on obedience by the practitioner.Publication is desirable in order to alert the profession and others.Those such as practitioner's Trust account bank, solicitors involved inimminent settlements and others, need to know. Section 245(6)specifically requires the Tribunal to give written notice forthwith tothe Registrar-General of Land.[5] The Tribunal's reading of s 245(3) is permissive, not prohibitive.Rather than suppressing open justice, the subsection enables theTribunal to positively order publication "of a notice stating the dateand effect of the order in such publications as are specified by theDisciplinary Tribunal." This enables notice to be disseminated bypublications nominated by the Tribunal.[6] Nothing in s 245 requires the order, or the reasons for it (thejudgment), to be suppressed for a period of time.[12] The proceeding and the application for interlocutory relief were filed promptlythe following day and, under conditions of great urgency given the Tribunal'sindication about the timing of publication, were referred to me as duty judge.Steps taken to address the without notice application for interlocutory relief[13] It appeared from the papers filed in the Court that the proceeding had not beenserved on the Tribunal, with whom Ms Taylor-Cyphers had been in close contact, noron Mr Collins, counsel for the Standards Committee, who had appeared at the audio-visual hearing.[14] Even in circumstances of great urgency, in a case where a respondent can beserved informally without difficulty, it is not only fair and reasonable but also efficientand helpful to the Court for the applicant to bring a without notice application to therespondent's attention on a Pickwick basis.2 That is particularly so when the party isknown to be represented by solicitors or counsel. Then, counsel can confer to explorethe possibility of either a consent order or an undertaking that provides a temporarysolution. Otherwise, counsel can provide the Court with the respondent's views.[15] I was not prepared to make any order in the proceeding without hearing fromthe Tribunal or counsel for the Standards Committee. On 4 March 2021, I issued aminute directing the applicant to serve forthwith copies of all papers filed in the Courtin the proceeding, together with a copy of the minute, on both the Tribunal andMr Collins on behalf of the Standards Committee.2 In such a case, the application remains a "without notice" application that has not been served inaccordance with the High Court Rules 2016. If counsel for a respondent wishes to appear afterreceiving the papers informally, they are permitted to do so and be heard in order to assist thecourt: Pickwick International Inc (GB) Ltd v Multiple Sound Distributors Ltd [1972] 1 WLR 1213(Ch).[16] The Registrar arranged an urgent telephone conference with counsel at 4.00 pmthat day. Mr Collins participated on behalf of the Tribunal (to inform me that theTribunal abided the decision of the Court) and the Standards Committee.[17] Counsel had conferred in the very short time available before the conference.Mr Collins indicated that the applicant's status as a lawyer under suspension has beenrecorded on the New Zealand Law Society's register as required by the terms of theLawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008.3 Stepswere being taken immediately to arrange for attorneys to assume responsibility for theapplicant's practice. Ms Taylor-Cyphers said the applicant did not object to this courseand was co-operating fully with the Law Society. Mr Collins said that no step hadbeen taken at that stage to publicise the suspension any further on any Ministry ofJustice or Tribunal website in accordance with the direction of the Tribunal.[18] I was told that, so far as the New Zealand Law Society was concerned, therewas no immediate need to give such publicity, although Mr Collins was respectful ofthe wish of the deputy chair that the reasons for the Tribunal's decision should bebrought to the attention of the public as soon as that may be properly done. Mr Collinssaid he was not aware of any prior consideration having been given to the point whichhas arisen in this case, namely, whether the terms of s 245(3) of the Act prohibitpublication any sooner than 14 days after the date of the Tribunal's decision.[19] I issued a further minute setting the application down for a one hour hearingon 11 March 2021 so that the issues could be argued more fully than had been possibleto that point, and asking counsel to file memoranda by 4.00 pm on 5 March 2021indicating whether the Court's further intervention was required at that stage.[20] On 5 March 2021, however, I received a joint memorandum on behalf of theTribunal, the Standards Committee and the New Zealand Law Society, which wasendorsed also by Ms Taylor-Cyphers on behalf of the applicant. I was informed thatthe Tribunal, the Law Society and the Standards Committee abided the decision of theCourt, but reserved the right to be heard on any question of costs. Counsel said,3 Regulation 10.however, that the Tribunal would appreciate this Court's guidance on the correctinterpretation of s 245(3) if the Court was minded to provide it.[21] Importantly, counsel indicated that both the Tribunal and the StandardsCommittee undertook not to publish the Tribunal's decision prior to 16 March 2021,unless permitted to do so by an order of the Court.[22] Counsel informed the Court that the issue of costs remains in dispute. I wasreferred to Greendrake v District Court at Invercargill and Coroner's Court v Newtonas authority for the proposition that there is no basis for awarding costs against theTribunal.4Discussion[23] It appears to be the view of the Tribunal that the effect of s 245(3) is not tosuppress open justice but to enable the Tribunal to direct publication of a notice statingthe date and effect of the order. Importantly, the Tribunal considers that the terms ofs 245(3) do not prohibit it from directing such publication immediately if an order forsuspension has been made with immediate effect.[24] Notwithstanding my respect for the views of the specialist tribunal, however, Iaccept Ms Taylor-Cyphers' submission that the Tribunal's position does notadequately reflect the wording of the subsection. The word "order" is usedconsistently throughout the subsection to mean the suspension order made by theTribunal. It seems to me that the legislative intent is clear. To quote the section, theTribunal may direct that, "after the expiration of the period of 14 days beginning withthe day on which the [suspension] order is made, a notice is to be published ".5[25] I acknowledge that I have not had the benefit of argument from counsel for theLaw Society or the Tribunal on the point. Nevertheless, I am satisfied, for the purposesof the application for interim relief at least, that the effect of s 245(3) is to enable theTribunal to direct publication of the date and effect of the suspension order but that4 Greendrake v District Court at Invercargill [2021] NZHC 26 at [14]; Coroner's Court v Newton[2006] NZAR 312 (CA) at [44].5 Lawyers and Conveyancers Act 2006, s 245(3). Emphasis added.such publication may not take effect until after the period of 14 days has expired fromthe date on which the suspension order has been made.[26] There is good reason for the statutory hiatus. A practitioner in respect of whoman interim suspension order is made under s 245 has a right to apply to the Tribunal,at any time, for the revocation of the order or any direction for publication given undersubs (3), or both.6 By s 245(5), the Tribunal is required to hear any application forrevocation within seven days after the day on which it is received by the Tribunal andthereafter may grant or refuse the application as it thinks fit.[27] It is significant, in my view, that the Tribunal may make a suspension orderand a direction for publication under subs (3) may be made without the practitionerbeing given an opportunity to appear or be heard. It would be unjust if, on the makingof a suspension order and a publication direction under the section without notice tothe practitioner, the Tribunal could order immediate publication of the notice ofsuspension.[28] It may be inferred, therefore, that the reason for requiring the expiration of14 days from the making of the suspension order before a direction about publicationcan take effect is to provide the practitioner with an opportunity to apply for revocationbefore any publicity is given to the suspension. I endorse the Tribunal's concern toensure that the public is informed of a decision by the Tribunal that a practitionershould be suspended forthwith; but a suspended practitioner is entitled to have areasonable amount of time set aside to enable the practitioner to exercise their rightsto a review of the suspension or a direction about publication.Result[29] In the absence of the undertaking from the Tribunal and the Law Society notto publish the Tribunal's decision before 16 March 2021, after the end of the 14 dayperiod, I would have been prepared to grant interim relief as sought, even though theeffect of the order would have been to provide Mr Nguy with the substantive relief heseeks in the proceeding. But the Tribunal and the Law Society can be relied upon to6 Lawyers and Conveyancers Act 2006, s 245(4).honour the solemn undertaking to the Court.7 In those circumstances, I exercise theCourt's discretion against the grant of the interim order that is sought.[30] I direct that the proceeding be placed in a duty judge list in the week beginning29 March 2021 for mention. The appearances of counsel for the Tribunal and theStandards Committee/New Zealand Law Society at that hearing are excused.Non-publication[31] In a minute dated 9 March 2021, I raised the issue of anonymising Mr Nguy'sname in this judgment, given the nature of the proceeding. Ms Taylor-Cyphersresponded by submitting that the usual position regarding publication is that mattersbefore a Standards Committee are confidential whereas matters before the Tribunalare public. She said that, although the investigation is on foot and there has been anorder for interim suspension, there has been no hearing and accordingly no findingsmade against Mr Nguy. In the ordinary course of matters, counsel submits, Mr Nguy'ssituation would not be public knowledge because of the preliminary stage of theinvestigation. Ms Taylor-Cyphers argues that publication of Mr Nguy's name in thisjudgment would jump ahead of the usual Tribunal process whereby publication of thedetails of the evidence and findings would not occur until after a hearing. She submitsthat publication would penalise Mr Nguy for bringing the application for interim reliefby increasing the adverse effects of publication when the application for an orderstaying publication of the suspension order was brought to delay the adverse effectsof publication.[32] Anonymisation or an order preventing publication of this judgment areopposed by the Standards Committee and the New Zealand Law Society. Mr Collinssought to support this opposition by referring to the nature of the evidence before theTribunal, but I am satisfied that I do not need to discuss the case which the StandardsCommittee has brought against Mr Nguy in order to resolve this issue.[33] The short point, as Mr Collins correctly submits, is that the relief which isavailable to Mr Nguy is for an order preventing publication of the Tribunal's decision7 Referred to above, at [21].to suspend him from practice until the expiry of the 14 day statutory period in s 245(3).That is now only four days hence.[34] The protection that Ms Taylor-Cyphers seeks can be provided by an orderdelaying publication of the judgment.[35] Accordingly, I direct that this judgment shall not be published until 16 March2021, other than to the parties, the New Zealand Law Society and the AucklandStandards Committee No 2.Costs[36] The applicant has applied for an order for costs. My tentative preliminary viewis that an award of costs is not appropriate. Costs would not be awarded against theTribunal, for the reasons given in the authorities cited by counsel. Moreover, theStandards Committee did not seek immediate publication of the suspension; it is not aparty to the proceeding but instructed counsel to appear to assist the Court; it did notoppose the application for interim relief and it provided a suitable undertaking. Insuch circumstances, I consider it unlikely that I will be persuaded to make an order forcosts.[37] Nevertheless, any application for costs in this proceeding to date shall be madeby way of memorandum filed and served not later than 1 April 2021. I will thendetermine whether I will invite the Tribunal or the Standards Committee to file amemorandum in opposition.Toogood J