Hong v Auckland Standards Committee no.3

[2016] NZHC 281

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-3006 [2016] NZHC 281

BETWEEN

BOON GUNN HONG

Plaintiff

AND

AUCKLAND STANDARDS COMMITTEE NO 3

First Defendant

AND

LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

Second Defendant

In Chambers:	On the papers
Judgment:	26 February 2016

JUDGMENT OF THE HON JUSTICE KÓS (Costs)

[1]      Mr Hong was successful before me in an application for judicial review of the Auckland Standards Committee No 3’s finding that he had engaged in unsatisfactory conduct.1

[2]      I  found  that  the  Committee  had  erred  in  three  respects.    First,  it  relied excessively on the complaint (made by a District Court Judge), whereas that complaint was provisional only, not based on full information, founded on an error of law and required further investigation.   Secondly, the Committee had failed to consider contrary evidence put forward by Mr Hong which was cogent and relevant. Thirdly, the Committee should have convened a hearing rather than proceeding on

the papers.

1      Hong v Auckland Standards Committee No 3 [2015] NZHC 2521.

HONG v AUCKLAND STANDARDS COMMITTEE NO 3 [2016] NZHC 281 [26 February 2016]

[3]      I also quashed the subsequent decision of the Lawyers and Conveyancers Disciplinary Tribunal suspending Mr Hong from practice for ten months when he failed to comply with the Committee’s penalty decision.   The Tribunal abided the decision of the Court.  That decision was close-run given (1) Mr Hong should not have defied the Committee’s decision simply because he considered it unlawful and (2) the Tribunal found the account of events given to it by Mr Hong to be false.

[4]      I held that costs should follow the event.   I invited brief memoranda if the parties could not reach agreement. Agreement was not reached.

Submissions

[5]      Mr Hong seeks costs uplifted by 50 per cent.  His application for increased costs is against “the respondent”.   I infer that this is the first defendant, the Committee.  The basis for his request appears to be (to the extent I can discern it from  his  memorandum)  that  the  error  by  the  Committee  was  egregious,  that opposing counsel had “committed judicial fraud” before the Tribunal,2 that the proceedings had caused him great stress and, interestingly, that the Law Society had been “infiltrated and taken over by … dark forces”.

[6]      The Committee opposes increased costs.  Instead it seeks a reduction in costs against it under r 14.7(d), (f)(ii) and (g).   In particular it  points to [40] of my judgment and the trenchant criticism I made there of Mr Hong’s pleadings.  These I described as incoherent and hopeless.

Discussion

[7]      Mr Hong acted for himself.   The practice in this country is that a lawyer acting for himself or herself may claim costs, save for costs of self-attendance.3

2      I  note  that  nothing on  the  record  sustains this  allegation.     The Tribunal reached  its  own

conclusion on the facts that Mr Hong’s account of events was false.

3      Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA); New Zealand Law Society v Deliu

[2015] NZHC 652 at [3] to [4].

Increased costs?

[8]      I am satisfied that there is no basis for increased costs in this case.  The focus of  r  14.6(3)  is  upon  the  unreasonable  conduct  of  proceedings  by  a  litigant: r 14.6(3)(b).  None of the other three grounds in r 14.6(3) would apply here.  I am satisfied that nothing done by the Committee in the conduct of the judicial review justifies increased costs.  The proceeding was defended responsibly and efficiently. The failed strike-out application by the Committee will sound in costs in the usual way.

Reduced costs?

[9]      I am satisfied that a modest reduction in Mr Hong’s costs should be made for the reasons provided in r 14.7(d) and (f)(ii).  Mr Hong grossly inflated the scope of his claim, and the material which might be relevant to that claim.   Ten purported causes of action were advanced, some of which were either not causes of action at all, or were ones of no marginal merit.4     This was a simple case, made complex.  In a nutshell, the Committee placed undue weight on the complaint, failed to consider

relevant considerations put before it by Mr Hong, and failed to conduct a hearing. That is all.  Competent counsel would have confined the case thus.  In addition, a vast plethora of irrelevant material was filed by Mr Hong.

[10]     These circumstances would justify a significant reduction in costs because of undue enlargement of the defendant’s costs.  However only modest reduction need be made in this case.  That is because Mr Collins, demonstrating his usual sensible discrimination, was largely able to ignore what was patently irrelevant and focus on what mattered.  In consequence I will reduce Mr Hong’s eligible costs in schedule 3 by 25 per cent.  I will also not award him disbursements for photocopying and like matters, most of which was wholly superfluous.

[11]     I record that aggrieved as he might justifiably be, Mr Hong has not assisted the Court in the manner to be expected of one of its officers.  I repeat an observation

made at the hearing that he should engage independent counsel in matters involving

4      For  instance,  “The  practice  note  concerning  the  functions  and  operations  of  the  Lawyers Standards Committees”, “Breached Crown Law Office prosecution guidelines 2010” and “Breached the provisions of the 1990 United Nations Basic Principles of the Role of Lawyers”.

his own interests.  The Court and other parties then will not need to deal with these excessive irrelevancies.

Result

[12]     Mr Hong will have costs against the Committee on a category 2 band B basis for schedule 3 items 1, 11 (x2), 23, 24, 26, 30, 31, 33 and 34 in accordance with the first defendant’s memorandum, but on a category 2 band B basis, reduced by 25 per cent in accordance with r 14.7(d) and (f)(ii).

[13]     In addition Mr Hong will have his application fee of $540 and scheduling fee of $640.  But no other disbursements.

Stephen Kós J

Solicitors:

Plaintiff in person

New Zealand Law Society, Auckland