Evgeny Orlov v New Zealand Law Society

• Jurisdiction: New Zealand
• Court: Supreme Court
• Judge: McGrath,William Young,Arnold JJ
• Judgment Date: 08 October 2013
• Neutral Citation: [2013] NZSC 94
• Docket Number: SC 68/2013
• Date: 08 October 2013

[2013] NZSC 94

IN THE SUPREME COURT OF NEW ZEALAND

Court:

McGrath, William Young and Arnold JJ

SC 68/2013

BETWEEN

Evgeny Orlov

Applicant

and

New Zealand Law Society

First Respondent

Auckland Lawyers Standards Committee

Second Respondent

Auckland Lawyers Standards Committee No. 1

Third Respondent

National Standards Committee

Fourth Respondent

Counsel:

Applicant (In Person)

P J Morgan QC for Respondents

Application for leave to appeal the Court of Appeal's finding that there was no threshold standard of “sufficient seriousness” to be met before disciplinary proceedings could be determined by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal under s152 Lawyers and Conveyancers Act 2006 (Power of Standards Committee to determine complaint or matter) — whether leave to appeal should be given on preliminary point in advance of hearing — whether s13(4) Supreme Court Act 2003 (criteria for leave to appeal — interlocutory applications — leave to appeal only if in interests of justice to determine before proceeding concluded) applied.

The issues were: whether leave to appeal should be given on a preliminary point in advance of the hearing; and, whether s13(4) Supreme Court Act 2003 (“SCA”)(criteria for leave to appeal — interlocutory applications — leave to appeal only if in interests of justice to determine before proceeding concluded) applied.

Held: The policy of the SCA did not favour appeals to the Court on preliminary points that could be raised at the conclusion of the process. The requirement in s13(4) SCA (criteria for leave to appeal — interlocutory applications), that it must be in the interests of justice to determine an interlocutory application before the proceeding was concluded, would not be met if the point in issue could be taken on appeal after the substantive proceeding was concluded. Strictly, s13(4) SCA did not cover the preliminary decision by Standards Committees to decide that complaints should be determined by a Tribunal, as it did not involve an interlocutory application to a Court. However an appeal concerning such a decision was analogous to one against an interlocutory order and s13(4) SCA was highly relevant to whether it was in the interests of justice test to permit a pre-hearing appeal of such a point.

Procedural issues such as the present could have been considered by the Tribunal and thereafter appealed to the HC and then the CA. The HC would then have consolidated any concurrent judicial review proceeding with the appeal. Normally judicial review proceedings were not determined ahead of the statutory proceedings, other than in exceptional cases. Further, since the proceedings had been issued it had been settled that there was a right of review to the Legal Complaints Review Officer of Standards Committees' decisions made under s152(2)(a) LCA.

While the judicial review proceeding was determined in advance of the hearing, that did not mean it was in the interests of justice that the SC hear a second appeal. There was no settled basis of fact on which to decide whether the way the Committees proceeded, and laid charges, was lawful and fair. Importantly, there was no prejudice to O in requiring him to go through the disciplinary hearing process before raising his objections to the respondents' process on an application for leave to appeal. It was a straightforward application of the statutory procedure.

Application for leave to appeal dismissed.

JUDGMENT OF THE COURT

REASONS

1 The applicant, Mr Orlov, faces disciplinary proceedings brought by the respondents who are the New Zealand Law Society and certain of its Standards Committees constituted under the Lawyers and Conveyancers Act 2006. The applicant seeks leave to appeal against a Court of Appeal judgment in judicial review proceedings that challenged procedural decisions of the respondent Standards Committees not to deal with complaints themselves, but to lay charges against him before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. 1

2 In the High Court, Heath J held that a number of matters, the subject of complaint did not meet a standard of sufficient seriousness to warrant their reference to and determination by the Tribunal. 2 On appeal by the applicant, and cross-appeal by the respondents, the...