[1] The appellant faces charges of professional misconduct laid by the Complaints Committee of the Canterbury District Law Society (the Society) before the New Zealand Law Practitioners Disciplinary Tribunal (the Tribunal). There was considerable delay between the Committee’s decision to proceed with such charges (following inquiry, and its reaching the conclusion that the complaint against Mr Chow was of sufficient gravity to warrant a disciplinary response) and the actual laying of the charges before the Tribunal. That delay became the basis of a challenge to the validity of the charges by way of judicial review in the High Court.
[2] This appeal is against a decision of John Hansen J (CHCH HC CIV-2004-409002191 21 April 2005), in which the Judge rejected the grounds of challenge and in particular declined to grant the relief sought being an order that the charges be dismissed or stayed.
[3] We note that the Tribunal abided the decision of the High Court and of this Court. Accordingly, Mr Gibson was granted leave to withdraw.

Complaints of professional misconduct

[4] Mr Chow was employed as a staff solicitor by a Christchurch firm between 1996 and December 2000. From January to September 2001 he was an associate of another Christchurch firm.
[5] A complaint was made to the Society by Ms J B Sirisamphan against Mr Chow, alleging that he had acted inappropriately in relation to their joint involvement in an immigration business known as the Thai Consultancy. However, this complaint was withdrawn on 24 September 2001.
[6] By letter dated 19 September 2001 the firm which first employed Mr Chow raised concerns with the Society concerning his conduct in the period mid 1999 to December 2000. The gist of concern was that monies received by the firm from immigration clients had been diverted to the Thai Consultancy, in which Mr Chow was believed to have an interest together with Ms Sirisamphan. In essence the letter alleged that in his capacity as an employed solicitor Mr Chow had misapplied money which should have been received by the firm as fees for legal services rendered in an immigration context.
[7] On 2 October 2001 the Council of the Society resolved pursuant to s 99 of the Law Practitioners Act 1982 (the Act) to further investigate these matters through its Complaints Committee, because there was reasonable cause to suspect misconduct on Mr Chow’s part in his professional capacity.
[8] Between October 2001 and June 2002 the Complaints Committee carried out an investigation. As required by s 101(3) of the Act Mr Chow was provided with particulars of the complaint and extended the opportunity to answer the allegations made against him.
[9] On 18 June 2002 the Complaints Committee reached a determination that the case was one of sufficient gravity to warrant charges being laid against Mr Chow. This conclusion was explained in a 28 page report of the Committee which set out the details of its investigation and the conclusions it had reached. The report ended on the note that it was the preliminary view of the Committee that charges should be laid before the second respondent (the national Tribunal), rather than before the disciplinary tribunal of the district Society.
[10] Mr Chow was also given the opportunity to be heard in relation to which tribunal was the more appropriate and did so by a letter from his solicitor dated 1 July 2002. On 3 July Mr Chow was advised that the Complaints Committee had concluded, despite his submission to the contrary, that the case should be referred to the national Tribunal. The letter also contained advice that a barrister had been retained to represent the Society in relation to the formulation and, in due course, the prosecution of the charges.
[11] In terms of the New Zealand Law Practitioners Disciplinary Tribunal Rules, 1984, charges must be in writing and supported by affidavits: r 3(1). Although, in December 2002 counsel retained by the Society forwarded draft charges to the Complaints Committee and these were approved, the final charges and supporting affidavits were not finalised until October 2003. Service of the charges was effected under cover of a letter dated 10 October 2003. It is this delay, between mid June 2002 when the decision to make charges was reached by the Complaints Committee and counsel was instructed, and October 2003 when the charges were served (a period of 16 months) which is at the heart of this proceeding.
[12] We need not refer to the charges in detail. There are four, although charges 1 and 2 are supported by numerous particulars. These allege that in relation to the two law firms, respectively, Mr Chow failed to disclose to, and obtain the consent of, his principals to his involvement in the Thai Consultancy and, moreover, that he did not disclose his personal relationship with Ms Sirisamphan, diverted monies to the immigration business to his own personal advantage and, thereby, caused his employers to receive other than proper reward for legal work performed by him while within the employ of each of the firms. The third charge alleges that while with the second firm Mr Chow also failed to disclose that he was a shareholder in and director of a company which operated a restaurant, in which Ms Sirisamphan likewise had a business interest. The fourth charge alleges that in the context of the immigration business Mr Chow forged Ms Sirisamphan’s signature to two cheques.
[13] We note that the charges were supported by six affidavits sworn by solicitors, and in one case a practice manager, of the two firms. An affidavit subsequently sworn in the judicial review proceeding suggests that a good deal of the delay, particularly that from December 2002 to October 2003, occurred with reference to the finalisation of the six affidavits in support of the charges. That said, the Society accepted both in the High Court and in this Court that unacceptable, and unexplained, delay had occurred in relation to the bringing of the charges.

The decisions of the Tribunal and of the High Court

[14] At a pre-trial hearing before the Tribunal on 13 September 2004 two discrete matters were raised on behalf of Mr Chow. The first concerned whether the Tribunal should read one of the six affidavits sworn in support of the charges. The deponent was a solicitor who had acted for Mr Chow at some point. It was contended that the content of the affidavit infringed solicitor and client privilege. A ruling on this question was not required, since the Society indicated it was content to abandon its reliance on the affidavit.
[15] The second issue was delay. Mr Hair submitted that the charges should be stayed or dismissed on account of the delay which had occurred between the decision to bring charges and their actual service upon the practitioner. In the event, and for reasons which were given in an oral decision, the Tribunal concluded that it was a creature of statute, had no inherent jurisdiction and could not, for that reason, entertain an application to stay or dismiss charges. Neither in the High Court, nor in this Court, was this conclusion relied upon by the Society. Mr Osborne presumably took the view that the Tribunal enjoyed an implied power to see that its process was used fairly, including a power to stay or dismiss charges in an appropriate case, as recognised by this Court in, for example, McMenamin v Attorney-General [1985] 2 NZLR 274.
[16] On 4 October 2004 an application for judicial review of the Tribunal’s decision was filed. That proceeding was heard before John Hansen J who, on 21 April 2005, dismissed the application.
[17] The Judge was satisfied that although charges under the Act should be processed promptly and that the delay in this case was unfortunate and unexplained, the Act did not impose a statutory obligation of promptitude. On the other hand he accepted that natural justice considerations did bind the Complaints Committee in the course of its investigation. However, because the Committee’s function was not “judicial in nature”, rather investigatory, the Judge was unpersuaded that s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA) applied to the Committee (requiring it to observe the principles of natural justice under that Act, as opposed to at common law). He was similarly unpersuaded that the rights and minimum standards enjoyed by persons charged with an offence in terms of ss 24 and 25 of the NZBORA availed Mr Chow.
[18] Regardless, the Judge went on to consider the issue of delay. He did not accept the submission that delay, without more, could warrant a stay of the charges. Were delay to be considered, it would be by analogy to the approach taken in criminal cases and prejudice in relation to the availability of a fair hearing would be a highly relevant consideration. The Judge also found that the nature of the proceeding was important, in that, as a number of cases he cited demonstrated, the disciplinary jurisdiction is essentially protective in nature. That is, it serves the interests of the public and of the legal profession by seeking to protect against the actions of practitioners found to have conducted themselves without probity.
[19] The arguments advanced for the appellant in this Court were somewhat refined by comparison to the arguments in the High Court. In substance Mr Hair advanced three main points in support of the appeal:

(a) that the Act did impose an obligation upon the Complaints Committee to lay charges “promptly or in a timeous fashion”;

(b) that the NZBORA did apply to the Complaints Committee, which afforded support to the first proposition that charges must be laid promptly; and
(c) that in the circumstances of this case the charges were “invalidly” laid and the remedy of dismissal or a stay was, therefore, appropriate.

It is convenient to consider these three aspects in turn.

Does s 101 impose a time requirement?

[20] The section relevantly provides:

Inquiry by District Council or committee

(1) Every such complaint or matter (in this section referred to as the complaint) shall be inquired into as soon as practicable by the District Council or, if it is referred to a complaints committee, by that committee.

(2) If in the opinion of the District Council or committee the case is of sufficient gravity to warrant the making of a charge, the District Council or committee shall -

(a) Where the complaint is against a practitioner, make a charge against him before either the District Disciplinary Tribunal or the New Zealand Disciplinary Tribunal:

(b) Where the complaint is against a person employed by a practitioner, make a charge against him before the New Zealand Disciplinary Tribunal.

(4) Subject to this section, the District Council or committee may follow such procedure in inquiring into the complaint as it thinks fit.

(5) On completion of the inquiry, the District Council or committee shall –

(a) Notify the complainant and the person complained against of its conclusions and of any action taken or to be taken by it as a result of the inquiry; and

(b) Where the complaint relates to the operation of a solicitor’s trust account or to the audit of any such account, notify the Joint Audit Board of the complaint, its conclusions, and of any action taken or to be taken by it as a result of the inquiry.

[21] Subsection (3), which we have omitted, requires the Complaints Committee to give particulars of the complaint to the person complained against and confers certain powers in relation to the investigatory process. Absent any complaint that Mr Chow was denied his rights under the subsection, the subsection is not of present relevance.
[22] The District Council, or its complaints committee as the case may be, is required to inquire into a complaint “as soon as practicable”. By contrast, there is no express requirement in subs (2) stipulating that when a decision to prosecute is taken the charge or charges against the practitioner are to be made before the appropriate tribunal within a set time or otherwise timeously.
[23] Nonetheless, Mr Hair submitted that, analysed in context, the subsection clearly contemplated that a charge must be made promptly. Counsel stressed that there was a mandatory obligation to bring a charge where a conclusion of “sufficient gravity” was reached. At that point the process of inquiry contemplated in subs (1) was completed, and the sufficient gravity finding triggered a new obligation conveyed by the words “shall ... make a charge ...”. Therefore, Mr Hair argued, it was implicit (if not express) that the charge must be laid promptly. The very terms of the subsection permitted of no other construction. Moreover, the Judge’s conclusion that there was no statutory obligation imposed upon the Committee to lay the charges promptly, was at odds with the tenor of the s 101 read as a whole.
[24] Although Mr Osborne was not disposed to accept the argument for the appellant, he was nonetheless somewhat constrained in relation to suggesting that there was not a requirement to act promptly. He stressed, however, that there was no defined statutory obligation and resisted, in particular, the suggestion that the Committee’s sufficient gravity finding represented “a point of time” at which the charge must be laid. Counsel rightly drew attention to the statutory scheme as a whole, including s 101(4) whereby the Committee has a discretion to “follow such procedure in inquiring into the complaint as it thinks fit” and to the rules which of course prescribe that any charge must be reduced to writing and, in the case of the national tribunal, must be supported by affidavit evidence (see [11]).
[25] It followed, said Mr Osborne, that a reasonable time must be allowed for these steps to be taken, albeit he did not seek to defend the 16 month delay which occurred in this instance.
[26] We are in no doubt that a charge, or charges, must be filed with the relevant tribunal promptly. That conclusion, we think, may be reached in two ways. First, the express obligation in s 101(1) to inquire into complaints “as soon as practicable” may extend to the further step of preferring charges after a sufficient gravity finding. As the circumstances of this case demonstrate, the limits of the investigative process are not of a bright line nature. It may be artificial to say that the investigation is complete at the point of the sufficient gravity finding. After all, as occurred in this case, further work of an investigatory nature remained to be undertaken, being the obtaining and settling of affidavit evidence in support of the charges. Although this function was delegated to counsel, the statutory process is susceptible of the interpretation that counsel completed the investigation on behalf of the Committee. On this approach the charges had to be laid as soon as practicable, regardless that such words do not appear in subs (2).
[27] The second approach is, in effect, that for which Mr Hair contended. The terms of subs (2) are clear. At the point that the conclusion of sufficient gravity is reached, the Committee or District Council shall make a charge before the appropriate tribunal. This is language which does not permit of delay, at least beyond that which is reasonably necessary in the particular statutory context. The extent of any delay which may be appropriate will depend on the circumstances, including the number and complexity of the charges and the work which is required to obtain supporting affidavit evidence. All of this is to be done against the background of the requirement in s 101(1) that the complaint is to be dealt with as soon as practicable which, if not expressly, in spirit at least informs the interpretation of subs (2).
[28] For these reasons we respectfully differ from the conclusion of the Judge in the High Court. We are satisfied that there is a statutory obligation to proceed promptly, perhaps better captured in the notion “as soon as practicable”. It may well be that the distinction between our view and that of the Judge is more a matter of emphasis and degree, than of substance, since he too went on to observe that there was a need for prompt action in relation to the bringing of charges.

Does NZBORA apply to a complaints committee?

[29] Counsel devoted considerable attention to this aspect. Mr Hair contended that s 27(1) of NZBORA applied:

Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.

The determination of the Complaints Committee that the complaint against Mr Chow was of sufficient gravity to warrant disciplinary charges, was said to be a determination which fell squarely within s 27(1). Counsel then sought to develop a submission to the effect, as we understood it, that the principles of natural justice brought into play the rights and minimal standards enjoyed pursuant to ss 24 and 25 by persons charged with an offence. This included s 25(b): the right to be tried without undue delay, in particular.

[30] Mr Osborne parted company on both propositions. Placing reliance on the decision of this Court in Chisholm v Auckland City Council [2005] NZAR 661 he argued that the decision of a complaints committee was not “a determination” as those words are used in s 27(1). In Chisholm it was stressed that a determination had to be of “an adjudicative character” in order to fall within the section, otherwise its ambit would be unduly widened.
[31] We tend to the view that a complaints committee determination of the present kind is within s 27(1), but it is not strictly necessary to decide the point. It is clear beyond doubt that complaints committees are subject to the principles of natural justice anyway. This much is clear from a reading of s 101 of the Act. Moreover, there is no doubt that in this case Mr Chow was extended his natural justice rights in terms of the section throughout the whole of the investigative phase. Indeed, no complaint was made on this score. Accordingly, we do not regard the situation as one where resort to s 27(1) of NZBORA adds anything or serves any other useful purpose.
[32] As regards Mr Hair’s second proposition, that ss 24 and 25 of NZBORA, are relevant in the present context, we share Mr Osborne’s doubts as to this. These rights, and minimum standards, are extended to those who are “charged with an offence”, which words do not sit comfortably with the bringing of disciplinary charges of the present kind. But again, we find it unnecessary to form a concluded view on the point. We understood Mr Hair’s resort to NZBORA to be made principally in aid of his first argument, that a complaints committee is bound to bring disciplinary charges promptly or as soon as practicable. We have already accepted this proposition. Again, therefore, resort to NZBORA is not strictly necessary.

What remedy, if any, is appropriate?

[33] Mr Hair’s written submissions asserted that the charges should, on account of delay, be characterised as “invalid”. However, in argument counsel felt constrained to accept that a balancing exercise was required, but one which reflected public law principles as opposed to an approach based squarely on invocation of the inherent jurisdiction to dismiss criminal charges as an abuse of process. The latter analysis, counsel stressed, proceeds in the absence of any breach of a statutory duty, and is fundamentally different in nature for that reason. The Judge, Mr Hair contended, had erred in saying it was “appropriate to consider criminal cases by analogy”.
[34] Mr Osborne argued that the appellant’s case, particularly in its written form, suffered from an unfounded assumption that delay in bringing the charges resulted in invalidity, or, more particularly, an entitlement to the relief sought being either their dismissal or an order that they be stayed. While not conceding any breach of s 101 had occurred, Mr Osborne agreed that in the event of non-compliance an evaluation was required of all relevant factors in order to determine the appropriate response. This involved an examination of the nature of the statutory duty, the degree of non-compliance and the effects of non-compliance, here on account of delay. In addition, counsel urged that the particular context was important.
[35] In this regard our attention was drawn to Australian authorities, Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378 and R v Davis [1995] FCA 1321; (1995) 57 FCR 512, in which the question whether disciplinary proceedings should be stayed on account of delay was considered. Both the High Court of Australia and the Federal Court concluded that a weighing process, similar to that undertaken in a criminal case, was required, but with account also to be taken of the protective nature of the disciplinary jurisdiction. That is, disciplinary proceedings are not punitive in nature, but essentially protective of societal interests.
[36] We accept that the issue of remedy is to be approached on the basis of an application of administrative law principles. It follows that non-compliance with the statutory requirement that charges are brought as soon as practicable does not bring about an automatic response. In particular, the charges are not rendered “invalid”, nor is a stay or dismissal of the charges necessarily appropriate.
[37] Rather, a judicial assessment of all relevant factors is required. The extent of, and the effects caused by, the non-compliance and the disciplinary context itself, are all highly relevant considerations, as is the nature and seriousness of the charges.
[38] We are unpersuaded that the Judge erred in his approach to this aspect. The particular criticism made was that undue emphasis was placed upon the need for prejudice affecting the availability of a fair hearing before it would be appropriate to grant a remedy. We do not consider that the Judge gave undue weight to this factor or that he proceeded as if the matter was to be assessed in terms of an abuse of process. We consider it is readily apparent that he was alive to the protective nature of the jurisdiction and to the need to bring that aspect to account.
[39] In this case there was substantial non-compliance with the requirement to bring charges as soon as practicable. That, necessarily, is the starting-point in the evaluative exercise. An unexplained delay of 16 months is undoubtedly significant. That said, a reasonable time was needed to enable counsel instructed by the Society to frame the charges and prepare supporting affidavit evidence. The fact that draft charges were forwarded to the Society, and approved, in December 2002, suggests that by then at least the necessary work should have been completed. A further 10 months passed.
[40] We accept Mr Hair’s submission that as a consequence Mr Chow and his family have been exposed to unnecessary delay and anxiety. Even this, however, is to be assessed bearing in mind that had the charges been brought promptly delay and anxiety would still have ensued. It is the increase therein caused by the extra delay which is presently relevant.
[41] There is no evidence that the delay in this case has caused prejudice in terms of the availability of a fair hearing. This is perhaps unsurprising, given that Mr Chow was promptly advised of the allegations when they were first made and that he was supplied with a copy of the Complaints Committee’s lengthy report following its decision to bring charges. We are also of the view that these are serious allegations of their kind. This is indicated by the nature of the charges, to which we have already referred (see [12]) and by the circumstance that the charges have been brought before the national Tribunal, rather than the local one.
[42] Finally, we regard the protective nature of the jurisdiction as highly significant, indeed necessarily decisive, in the circumstances of this case. In Auckland District Law Society v Leary HC AK M1471/84 12 November 1985 Hardie Boys J, after observing that a disciplinary charge was not a criminal prosecution, continued at 18 of the judgment:

(This) is a special jurisdiction having the principal protective purpose I have already discussed. That purpose requires that there should be a full investigation of allegations of misconduct, and that the Court should be slow to adopt a course which may inhibit such an investigation. The interests of justice extend far beyond the interests of the practitioner.

We agree. In short and in all the circumstances of this case, it is unthinkable that these disciplinary charges should not proceed to hearing, despite the unfortunate delay which has occurred.

Result

[43] For these reasons the appeal is dismissed.
[44] We make no order for costs, since Mr Chow is legally-aided and also record that the Society does not seek a certificate as to the costs which would otherwise be awarded.

Solicitors:
Malley & Co, Christchurch for Appellant
Duncan Cotterill, Christchurch for First Respondent
Wynn Williams & Co, Christchurch for Second Respondent

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2005/313.html