Deliu v Hong [2012] NZHC 158; [2012] NZAR 209 (15 February 2012)

Last Updated: 20 December 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-3758 [2012] NZHC 158

UNDER the Judicature Amendment Act 1972

IN THE MATTER OF an application for judicial review

BETWEEN FRANCISC CATALIN DELIU Plaintiff

AND BOON GUNN HONG First Defendant

AND THE LEGAL COMPLAINTS REVIEW OFFICER

Second Defendant

Hearing: 2 November 2011

Counsel: Mr Deliu in person

Mr Wimsett entered appearance for Second Defendant

Mr Hodge as amicus for Second Defendant

Judgment: 15 February 2012 at 3:00 PM

_{JUDGMENT OF WINKELMANN J}

This judgment was delivered by me on 15 February 2012 at 3.00 pm pursuant to

Rule 11.5 of the High Court Rules.

_{Registrar/ Deputy Registrar}

DELIU V HONG & LCRO HC AK CIV 2011-404-3758 15 February 2012

[1] In May 2010 two junior barristers in Mr Deliu‘s chambers, were retained as counsel in proceedings issued against a conveyancing solicitor, Mr Hong. Mr Hong responded to service of those proceedings upon him by sending a letter to the two barristers asserting that the proceedings were without merit, and threatening he would take various steps if they did not withdraw the action against him. Mr Deliu regards himself as the senior member of the chambers, and so took it upon himself to respond to Mr Hong, and to lay a complaint with the New Zealand Law Society (the Law Society) about the contents of Mr Hong‘s letter. Sometime later, Mr Hong laid a complaint with the Law Society about Mr Deliu.

[2] There ensued a period of months during which Mr Deliu and Mr Hong exchanged insults and threats in correspondence with each other, often copying the Law Society into their correspondence and seeking to enlarge the scope of their respective complaints. The Law Society continued to receive the correspondence and, on occasion, forward it to the other party for comment. It was not until November 2010 that the National Standards Committee (the Standards Committee) reached a decision in relation to Mr Deliu‘s complaint. It decided to take no further action on the grounds that the overall subject matter of the complaint was trivial and the complaint was frivolous and vexatious. I am told that it also resolved to take no further action in respect of Mr Hong‘s complaint against Mr Deliu.

[3] As he was entitled to do, Mr Deliu applied for a review of that decision. The Legal Complaints Review Officer (the Review Officer) who heard the review confirmed the decision of the Standards Committee. Mr Deliu now applies to judicially review the Review Officer‘s decision.

[4] Both Mr Hong and the Review Officer abide the decision of this Court. Mr Hodge was appointed as counsel to assist the Court.

Factual Background

[5] Two barristers in Mr Deliu‘s chambers, Mr Zhao and Mr Ram, were retained

as counsel by a solicitor, Mr Baker. They were retained in respect of proceedings

issued in the District Court against various parties, including Mr Hong, in connection with the purchase of a house with water penetration issues. When proceedings were served on Mr Hong, he responded in a letter sent to Mr Zhao and Mr Ram, and to their instructing solicitor Mr Baker. In that letter Mr Hong protested at the lack of professionalism shown and pointing to what he identified as defects in the proceedings. He concluded the letter as follows:

As I am most concerned with the impact of the action on my good reputation, I am giving you the opportunity to have withdrawn immediately the action against me, failing which I will:

(a) File a strike out action;

(b) File a complaint with the NZ Law Society on the ground that you are not competent to undertake this litigation for the clients;

(c) On the striking out, seek full costs against you (rather than the clients);

(d) File defamatory action and an action in tort against you on the grounds that as the clients‘ counsels, you ought to be aware such frivolous action against me will cause a loss of my good reputation and name.

[6] The day following receipt of this letter Mr Deliu joined the fray. Writing to Mr Hong, in his capacity as head of chambers, Mr Deliu said of the threatened action outlined in Mr Hong‘s letter:

This is highly offensive and unethical (and possibly worse) in that you are saying either (I) Messrs Zhao, Ram and Baker withdraw the claim against you (contrary to their client‘s instructions and in breach of the professional duties of independence and fearlessness in litigation); or (II) you will attack them personally using a complaints procedure. To avoid doubt you will not bully anybody in this office into failing their client to avoid a complaint. You are entitled to make a complaint but I put you on notice that if you do not withdraw your repeated and vicious threats your correspondence will be tendered adverse to your interests.

[7] Mr Deliu proceeded to make various remarks about Mr Hong‘s competence, including asserting that he was “grossly incompetent”. On the same day, he lodged his complaint with the Law Society, providing a copy of Mr Hong‘s letter and claiming that Mr Hong had breached various of the rules of conduct which regulate

law practitioners.[1] Receipt of the complaint was acknowledged by the Law Society which summarised his complaint as follows:

Mr Hong treated fellow practitioners in a disrespectful manner; and

Mr Hong threatened and improperly sought to coerce your colleagues into abandoning legal processes.

[8] On 13 May 2010 Mr Hong wrote to the instructing solicitor for Messrs Zhao and Ram, Mr Baker. He expressed the view that the barristers Mr Baker had engaged were venturing into areas of law beyond their level of competence and experience, and noted that on his search of the Law Society‘s database, one of the barristers did not turn up as a registered practitioner. He claimed that in the present action the lack of required skill and experience was blatantly clear and proceeded to list numerous respects in which the proceedings were defective. He concluded the letter by saying that if “nothing is rectified” (which in context meant if the proceedings were continued), and the action “took the turn” that he had indicated it would, then at the conclusion of the action “I will approach the clients to further investigate the matter and pursue possible remedies with them”.

[9] On the same day, Mr Deliu wrote to the Law Society enclosing Mr Hong‘s letter to Mr Baker and stating that he wished to amend the complaint against Mr Hong to include Mr Hong‘s conduct in sending that letter. The Law Society in turn forwarded that correspondence on to Mr Hong.

[10] In a lengthy letter Mr Hong responded to all the matters raised against him by Mr Deliu. He requested the Law Society‘s urgent intervention, particularising all the defects in the conduct of the District Court proceedings by Messrs Zhao and Ram. He said that if the Law Society could not or would not intervene then he intended to seek out the clients and advise them of their right to have another senior counsel look into investigating the concerns he outlined. That approach would be post-

_{adjudication. In a covering letter he again requested the Law Society‘s intervention.}

[11] That response was forwarded to Mr Deliu by Mr Hong and also copied to him by the Law Society. Mr Deliu then responded to the Law Society, copying “all relevant practitioners into this correspondence”. He pointed out various aspects of the correspondence which he regarded as further evidence in support of his complaint. He referred in particular to Mr Hong‘s accusation that the instructing solicitor and counsel were amateurs and also to Mr Hong‘s threat to communicate with the clients directly, although noting that was post-adjudication.

[12] On 25 May Mr Hong responded to this by email. Mr Hong said that he would instruct the Law Society to put his complaint to the Law Society against the parties on hold on several conditions, including that the complaint to the Law Society against him be withdrawn and that counsel instructed in the District Court proceedings consult him “behind the scenes”. Mr Deliu in turn responded to that, copying in Mr Hong. The Law Society then, superfluously it might be thought, copied both individuals with their own exchange of emails.

[13] On 9 June Mr Hong wrote again to the Law Society in support of his own complaint against Mr Deliu. He stated that he had “reviewed Mr Deliu‘s performance in Court pursuant to 57 judgments of which he acted as Counsel”. He enclosed a schedule detailing those 57 judgments including some commentary quoting adverse judicial comment.[2]

[14] Mr Deliu responded to this by leaving an aggressive message on Mr Hong‘s

answer phone, including the following statement:

You should know very seriously that I have gone to war with Bell Gully, Russell McVeagh, with judges of New Zealand, I am really not afraid of any of you, I can take any of you on, because frankly..eh..you are not competent lawyers as a group...”

Mr Deliu invited Mr Hong to forward that message to the Law Society “‘cos I told them how corrupt they are too”.

[15] On 14 June 2010 Mr Hong filed in the District Court proceedings a document described as “Second Defendant‘s Notice of Counterclaim”. The “counterclaim” was in fact an application for indemnity costs against the lawyers acting on behalf of the plaintiffs “for initiating an unmeritorious and vexatious claim” against him.

[16] The correspondence between Mr Deliu and Mr Hong (copied to the Law Society) continued in similar vein for some time. In one letter Mr Hong complained that he felt threatened by Mr Deliu and that he regarded him as mentally unstable.[3]

He supplied details of investigations he had undertaken in respect of Mr Deliu‘s practice, which included hiring a private investigator to locate clients Mr Deliu had represented.

[17] On 10 September 2010 Mr Deliu forwarded to the Law Society a further set of proceedings in which Mr Ram was instructed as counsel, and in which there was an allegation against Mr Hong of negligence. Mr Deliu claimed the allegations were a “further indication that Mr Hong may be grossly incompetent and thus not a fit and proper person to practice law”.

[18] In an email in September, Mr Deliu told Mr Hong that he was drafting up proceedings against him and would seek an injunction against him. He asked whether he should serve the proceedings on Mr Hong or on counsel acting for him. Mr Hong responded and said that Mr Deliu should not approach his offices. Mr Deliu emailed the Law Society, and said:

I am frankly worried for my safety, and to a lesser extent, the safety of my staff because a former client of Mr Hong‘s has told me he is very paranoid and at all times in his office has two Rottweilers on hand. I urge the Society to hold Mr Hong to account.

[19] In his letter to the Law Society, Mr Hong responded to this as follows:

As to his comments on my two Rottweilers and Mr Deliu‘s worry of his and

his staffs safety, I have had these:

5.5.1 One is a Border Collie and the other is a Boxer (my loyal gals).

5.5.2 Yes, Mr Deliu better be concerned about his safety should he attempt to approach my office or me (having been warned previously not to do so [see below]). But it should not be my two gals that he should beware of, it should be the “sorry end of my stick!”.

5.5.3 I am reminded that Mr Deliu has previously made a veiled physical threat against me and I have concluded that he is mentally unstable by that threat he made against me and by the intimidating behaviour against others in a Law Society meeting as reported of him in the news.

5.5.4 The warning from me to him is therefore to put it on record that I am very concerned and may strike pre-emptively on his approach to protect myself!

5.5.5. I certainly am not going to let him come close enough to jump me!

[20] In mid-September Mr Deliu wrote to the Law Society adding additional material to the complaint against Mr Hong including that he was conducting investigations into files in which Mr Deliu was involved.

[21] On 16 September the Standards Committee met and resolved to take no

further action in respect of either Mr Hong‘s or Mr Deliu‘s complaint. However, on

1 October 2010 the Law Society wrote to both Mr Hong and Mr Deliu saying that when the Standards Committee made that decision it did not have all of the correspondence, and had now received additional correspondence in the form of further complaints. It therefore rescinded the earlier decision to take no further action. It also offered the parties mediation, which was declined.

[22] Prior to the Law Society‘s decision to reconsider the complaints, on 23

September 2010 Mr Deliu filed proceedings in the High Court seeking an injunction to prevent Mr Hong making further defamatory statements or malicious falsehoods against Mr Deliu. No injunction was granted, although Mr Hong gave undertakings to the Court not to make certain types of statement about Mr Deliu.

[23] Also relevant to this proceeding is that on 20 December 2010, Judge Sharp issued her decision in the District Court proceedings in respect of an application by the plaintiff to those proceedings to strike out Mr Hong‘s “Second Defendant‘s

Notice of Counterclaim”. The Judge said that the counterclaim against non-parties was spurious and that it could and would lead to embarrassment. She said:[4]

It is an abuse of process. It could create a conflict between the plaintiffs and their counsel, the non-parties, and it probably does also amount to an attack on the independence of the Bar.

If this sort of action was permitted, then it is hard to imagine the litigation would ever be concluded, because all counsel conducting litigation would be liable to become the subject of a counterclaim during the conduct of the substantive proceeding, for costs personally against them, requiring them to then stand aside and instruct new counsel.

[24] The Judge went on to discuss Mr Hong‘s conduct. She said:[5]

Mr Hong is a solicitor in this country. He has been a solicitor for some considerable time and he is no stranger to litigation. He has appeared in this Court more times than I care to remember. Mr Hong should have known better. He was given every opportunity to withdraw the counterclaim, even though he should never have issued it in the first place. His actions in continuing with it and his opposition of the application to strike out, make it obvious that he is completely unable to stand aside and look objectively at the situation in which he is involved as a party.

[25] The Judge granted indemnity costs against Mr Hong.

[26] The Standards Committee met again in November to consider Mr Deliu‘s complaint against Mr Hong. It narrated some but not, by any means, all of the chronology of events set out above. It referred to the initiating complaint, and the fact of a cross complaint. It decided, pursuant to s 138(1)(b) and (c) of the Lawyers and Conveyancers Act 2006, to take no further action because the overall subject matter of the complaint was trivial and the complaint was frivolous and vexatious. Section 138(1) provides:

(1) A Standards Committee may, in its discretion, decide to take no action or, as the case may require, no further action, on any complaint if, in the opinion of the Standards Committee,—

(a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or

(b) the subject matter of the complaint is trivial; or

(c) the complaint is frivolous or vexatious or is not made in good faith; or

(d) the person alleged to be aggrieved does not desire that action be taken or, as the case may be, continued; or

(e) the complainant does not have sufficient personal interest in the subject matter of the complaint; or

(f) there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person aggrieved to exercise.

[27] Mr Deliu filed an application to review that decision. This was in addition to an earlier review application he had filed in respect of the September decision of the Standards Committee. The Review Officer resolved to hold an applicant only hearing, which Mr Hong was told he could but was not required to attend. That approach was protested by Mr Deliu both before and during the Review hearing, and the decision to proceed with an applicant only hearing is one of the grounds of review pleaded in this proceeding.

Decision of the Review Officer

[28] The applicant only hearing took place on 14 April 2011 and the Review Officer issued her decision on 3 June 2011. She initially dealt with Mr Deliu‘s complaint concerning the applicant only hearing. She said that Review Officers may adopt procedures not spelt out in the Legal Complaints Review Officer Guidelines (the Guidelines) where circumstances arise that the Guidelines did not contemplate, such as where there is a degree of animosity between the parties such that it would not be prudent that they should meet. But in this case the reason for the applicant only procedure was to seek clarification from Mr Deliu because of the insufficiency or confusion in the reasons he gave for seeking the review.

[29] She then turned to the grounds of review before her. She recorded that Mr Deliu submitted that the Standards Committee had failed to provide reasons or adequate reasons. She said that although the Standards Committee had set out some

background she accepted that it might have been helpful if it had enlarged its decision to include a brief explanation about why it took the approach that it did. However she noted that the review process can cure defects or deficiencies in the prior process and she had heard Mr Deliu as to why the Standards Committee had erred in reaching its conclusion. She said that the issue for her was whether there was a proper basis for the Standards Committee‘s decision. She said that in considering the question she was not required to decide whether a different decision might preferably have been made, but rather whether the decision that was made was one properly open to the decision maker on the evidence before it.

[30] She noted Mr Deliu‘s assertion that the evidence provided demonstrated that Mr Hong‘s conduct amounted to a breach of professional rules and that he had provided numerous examples of offending correspondence, and further examples that demonstrated the personal nature of the communications and actions of Mr Hong. She recorded that she had been referred to the District Court decision of Judge Sharp. She said she had read a sample of the emails, and in respect of those said:

In my view any question about whose communications are most offensive becomes moot when the communications of both Practitioners might be considered sufficiently equivalent such that if the emails of one breaches Rule 10.1 then those of the other also breaches the Rule.

[31] The Review Officer said that she had put to Mr Deliu that he had sent similar emails to Mr Hong but that was not accepted by him. He said that his own emails were not relevant and his own part ought not to be factored into the decision.

[32] She said that in considering whether there was a proper basis for the Standards Committee‘s decision she had examined the applicant‘s complaint and the larger circumstances in which the complaints had been made. She concluded:

[40] ... The evidence showed that both lawyers had been engaged for some length of time in exchanging what might be reasonably described as

“robust” and often offensive communications between themselves. There is

no doubt in my mind that the emails sent by the lawyers to one another were largely equivalent in tone and content. These exchanges had continued for a good many months. I accept the Applicant‘s submission that there is a personal element to them. Eventually one party triggered a complaint to the NZLS to be followed by a reciprocal complaint by the other.

[33] She did not accept Mr Deliu‘s submission that his own conduct should not be taken into account. She saw that background as relevant because while the Standards Committee needed to take into consideration the purposes and objectives of the Act and their obligation to set standards for the legal profession, they were empowered, when assessing complaints, to decide whether any further action was required.

[34] She continued:

[45] Where a lawyer has a genuine concern about the professional conduct of another lawyer there are clear statutory procedures for filing a complaint with the NZLS. That is, the rules themselves provide a mechanism for objectionable conduct to be investigated. In this case the Applicant had not availed himself of the complaints procedure in any timely manner, but instead continued to trade emails with H for quite some time before filing a complaint.

[46] In describing the subject matter of the complaint as ‗trivial‘, and the complaint in terms of ‗frivolous and vexatious‘ the Committee was not pronouncing on the conduct of H but rather making observations about the fact of the complaint having been made. The Standards Committee might instead have pursued enquiries into the conduct of the lawyers, but it was not obliged to do so where there was a proper basis for a view that the complaints did not justify invoking the disciplinary machinery of the Act.

[ ... ]

[48] Where, as here, the Applicant did not avail himself at the outset of the statutory provisions available for pursuing a Rule 10.1 grievance about the conduct of another lawyer, but instead, engaged in like conduct, there is a proper basis for questioning whether the complaint was made in good faith. Given that the Committee‘s decision was also based on Section 138(1)(c) and I see no reason for intervening with the Committee‘s decision in this case. The application is declined.

Mr Deliu’s arguments

[35] As pleaded, the grounds of review advanced by Mr Deliu are:

(a) The Review Officer‘s decision was unreasonable as no reasonable decision maker would allow Mr Hong‘s “scurrilous, scandalous and abusive conduct to go completely unpunished”.

(b) The Review Officer failed to take into account relevant

considerations, namely all of Mr Deliu‘s grievances against Mr Hong.

(c) The Review Officer breached Mr Deliu‘s legitimate expectation that a full review would take place by fettering her decision making in considering only whether or not to uphold the Standard Committee‘s decision.

(d) The Review Officer took into account an irrelevant consideration,

namely Mr Deliu‘s conduct.

(e) The Review Officer breached natural justice in that Mr Hong was not required to attend, and answer for his actions.

(f) The Review Officer proceeded upon the basis of a mistake of fact namely that Mr Deliu did not promptly complain, and this resulted in an error of law when she concluded that this was a basis to question the bona fides of the his complaint.

[36] During the course of the hearing before me, Mr Deliu abandoned the argument that the applicant only hearing process followed by the Review Officer was in breach of natural justice. He was right to abandon that ground, as the requirements of natural justice did not entitle Mr Deliu to have Mr Hong called before the Review Officer to answer for his conduct.

Analysis

Breach of Legitimate Expectation

[37] The first issue is whether the Review Officer applied the correct approach to the review before her. Mr Deliu has styled this ground of review, “breach of legitimate expectation”. It is more accurately characterised as an argument that the Review Officer committed an error of law in directing herself that the issue for her was whether the decision of the Standards Committee was open to it.

[38] Mr Hodge presented argument that since Mr Deliu was in substance appealing the exercise of a discretion, the Review Officer was correct to take the approach that she did. It was consistent with the Guidelines which say:

However, where the matter under review concerned the exercise of a discretion by a Standards Committee or the professional propriety of a particular course of action, the LCRO will be cautious to substitute his/her judgment for that of the Standards Committee without good reason.

More significantly, Mr Hodge said, the Review Officer‘s approach was in accordance with the approach to appeals against the exercise of a discretion, confirmed and described by the Supreme Court in Kacem v Bashir as follows:[6]

... the important point arising from Austin, Nichols is that those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion involves an assessment of fact and degree and entails a value judgment. In this context a general appeal is to be distinguished from an appeal against a decision made in the exercise of discretion. In that kind of case the criteria for a successful appeal are stricter: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.

(Footnotes omitted).

[39] It is true that s 138 is expressed in terms of the exercise of a discretion, however the power of review conferred upon Review Officers is not appropriately equated with a general appeal. The obligations and powers of the Review Officer as described in the Act create a very particular statutory process.

[40] The Review Officer has broad powers to conduct his or her own investigations including the power to exercise for that purpose all the powers of a Standards Committee or an investigator and seek and receive evidence.[7] These powers extend to “any review”. He or she may also postpone the review while

_{attempting to negotiate, conciliate or mediate a resolution.}

[41] In my view the power of review is much broader than an appeal.[8] It gives the Review Officer discretion as to the approach to be taken on any particular review as to the extent of the investigations necessary to conduct that review, and therefore clearly contemplates the Review Officer reaching his or her own view on the evidence before her. Nevertheless, as the Guidelines properly recognise, where the review is of the exercise of a discretion, it is appropriate for the Review Officer to exercise some particular caution before substituting his or her own judgment without good reason.

[42] In this case, the approach described by the Review Officer was not consistent with the statutory scheme for review, or with the Legal Complaints Review Officers Guidelines. It was particularly problematic when the Standards Committee did not provide full reasons for its decision, so that the Review Officer had to attempt to deduce those reasons.

[43] That error undoubtedly permeates the review, as the reasons she has provided for dismissing the review application are all couched in terms of whether the decision was open to the Standards Committee. This ground of review is made out.

Mistake of fact; Error of Law

[44] The Review Officer characterised the Standards Committee decision as turning entirely upon its interpretation of the bona fides of the complaint. She said that the Standards Committee was not pronouncing upon the conduct of Mr Hong when deciding that the complaint did not justify invoking the disciplinary machinery of the Act. She said this was open to them when Mr Deliu had not availed himself

“at the outset” of the statutory provisions available to him.

[45] However it is apparent from reading the Review Officer‘s decision that she

proceeded upon the mistaken basis that Mr Deliu had not immediately responded to

_{Mr Hong‘s conduct by lodging a complaint. She saw this as relevant to the bona}

fides of the complaint. In fact, Mr Deliu‘s complaint was lodged the day following receipt of the letter which initiated this series of events. Consideration of the Review Officer‘s reasons makes clear that this mistaken view was critical in her decision, and that this mistake of fact has therefore given rise to an error of law.

Failed to take into account a relevant consideration/took into account an irrelevant consideration

[46] Mr Deliu argued that the Review Officer was obliged to consider the conduct of Mr Hong and that this error was linked to another error, that she saw Mr Deliu‘s own conduct as relevant to the complaint against Mr Hong.

[47] There is some merit in these arguments. The Review Officer said it was open to the Standards Committee to decline to consider the conduct of Mr Hong, having determined that the making of the complaint was trivial, frivolous and vexatious. Although the Review Officer may be correct that this was the approach of the Standards Committee, this was not an approach that was open to the Standards Committee or to her.

[48] The Standards Committee based its decision on both s 138(1)(b) (the subject matter of the complaint is trivial) and s 138(1)(c) (the complaint is frivolous, vexatious or is not made in good faith). In proceeding on the basis of s 138(1)(b), the Standards Committee had to be satisfied that that the subject matter of the complaint, that is the conduct complained of, was trivial. And though s 138(1)(c) focuses on the complaint, it is difficult to conceive that this would be invoked by a Standards Committee in circumstances where there was compelling evidence of significant misconduct by the practitioner complained of.

[49] Both the Standards Committee and the Review Officer should have considered the evidence in relation to Mr Hong‘s conduct. If they had they would have seen that there was ample cause for concern. Mr Hong told the Law Society that he had hired a private investigator to investigate another practitioner, Mr Deliu. He issued a meritless and vexatious counterclaim in the District Court thereby extending the unseemly and abusive dispute that had developed over the original

District Court proceedings. He engaged in offensive and intemperate correspondence. His conduct could not reasonably have been described as trivial, nor the complaint frivolous or vexatious. Nor could it properly be characterised as a dispute “personal to the parties,” because it drew others into the dispute, including other lawyers and former clients of both Mr Hong and Mr Deliu, and the District Court. It wasted court resources. It had the potential at least to undermine public confidence in the profession.

[50] The fact that criticism can also be made of the complainant Mr Deliu is, in this context irrelevant. Although provocative conduct by another practitioner, (and Mr Deliu‘s conduct was undoubtedly provocative) may be relevant context to conduct, no practitioner is justified in responding to the conduct of another in the way that Mr Hong did. If the Standards Committee felt that Mr Deliu‘s conduct was roughly equivalent to Mr Hong‘s, then they should have addressed that in the context of the complaint against him.

[51] The behaviour which is the subject of the complaint against Mr Hong sheds a troubling light on his conduct and judgment as a practitioner, but neither the Standards Committee nor the Review Officer turned their minds to this. It seems that both the Committee and the Review Officer lost their way in considering this complaint because of the dim view they took of the conduct of Mr Deliu. The disciplinary functions of the Law Society are exercised not just for the benefit of the complainant, but also for the benefit of the public and the wider profession.

[52] The Law Society has an important role in setting standards for our profession. Spats between practitioners such as this, which some may see as risible, others as deplorable, reflect not only on the standing of those practitioners, but also upon the standing of the profession in general. In this particular case the administration of justice has been adversely affected through wasted court time. Mr Hong did not limit himself to trading verbal blows, but rather involved the professional body, and the Court. On his own account he has approached others to collect information and evidence against Mr Deliu.

[53] There is one troubling aspect of this series of events I draw to the attention of the Law Society. It is this. The Law Society sat passively by while these men traded verbal blows, often in the course of furthering their complaints. It was around six months from filing of the initial complaints until they were considered by the Standards Committee. In view of the escalation of hostilities that was apparent on the face of the correspondence, the Law Society should have given consideration to what urgent action it could take to bring this conflict to an end. An obvious suggestion would have been to insist upon mediation at a much earlier point in time. Alternatively, the Law Society could have urgently convened a Standards Committee to consider the complaints.

Exercise of Discretion

[54] The Review Officer committed several reviewable errors. The errors I have identified go to the heart of the decisions reached by the Review Officer. Moreover, I consider that there is sufficient in the complaint against Mr Hong that the Review Officer should give consideration to that complaint using the appropriate legal framework, something which has not occurred to date. Counsel were in agreement that if I found reviewable error, the complaint should be sent back to a Review Officer for re-consideration. It is appropriate to quash the decision of the Review Officer and remit the matter for re-consideration by a Review Officer.

[55] I note that while proceedings before a Review Officer are presumptively private, name suppression has not been sought in this case. In any case, in light of earlier publicity around aspects of this case I see no point to ordering suppression of the identities of those involved.

Result

[56] The decision of the Review Officer is quashed, and the review application remitted back to a Review Officer for reconsideration. Costs and disbursements are to lie where they fall as neither defendant took an active role in the proceeding and, furthermore, the Review Officer was fulfilling a quasi-judicial function in making the decision which was the subject of challenge.

Winkelmann J

F C Deliu, Auckland - [e-mail]

B G Hong Law Firm – [e-mail]

Crown Law, Wellington - [e-mail]

Meredith Connell, Auckland - [e-mail]

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[1] Lawyers and Conveyancers Act (Lawyer: Conduct and Client Care) Rules 2008, rr 2.2, 2.7, 8,

10.1, 13.2.1, 13.8.2.

[2] I have not checked the accuracy of the quotes that Mr Hong sets out in that document

[3] Letter of 17 June 2010.

[4] Ma v Ho DC Auckland CIV-2010-004-0956, 20 December 2010 at [14] – [15].

[5] At [30].

[6] Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

[7] Lawyers and Conveyancers Act 2006, Section 207.

[8] This same point was made by a Review Officer in the review decision, BK v YM LCRO

177/2010.