Evgeny Orlov v New Zealand Law Society

JurisdictionNew Zealand
CourtSupreme Court
JudgeMcGrath,William Young,Arnold JJ
Judgment Date08 October 2013
Neutral Citation[2013] NZSC 94
Docket NumberSC 68/2013
Date08 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...

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6 cases
  • Francisc Catalin Deliu v The New Zealand Law Society
    • New Zealand
    • Supreme Court
    • 2 June 2015
    ...application for leave to appeal is dismissed. The applicant must pay the respondent costs of $2,500. 1 Orlov v New Zealand Law Society [2013] NZSC 94 2 At [6]. 3 Deliu v New Zealand Law Society [2015] NZCA 12 . 4 Wilson v Attorney General [2011] 1 NZLR 399 (HC) . 5 See Orlov v New Zeala......
  • Terranova Homes and Care Ltd v Service and Foodworkers Union Nga Ringa Tota Incorporated
    • New Zealand
    • Supreme Court
    • 22 December 2014
    ...... [2014] NZSC 196 IN THE SUPREME COURT OF NEW ZEALAND . Court:. McGrath, William Young and Glazebrook JJ. SC ... points that can be raised at the conclusion of the process”: Orlov v New Zealand Law Society [2013] NZSC 94. 6Terranova (Employment Court), ......
  • Deliu v National Standards Committee 1 of The New Zealand Law Society
    • New Zealand
    • High Court
    • 25 May 2021
    ...footnote 11 above. 51 As summarised by Mr Hodge at 2.17 of his submissions, quoted above at [18]. 52 Orlov v New Zealand Law Society [2013] NZSC 94. 53 At 54 A Lawyer v New Zealand Law Society [2019] NZHC 1961. 55 See [13] above. 56 Burcher v Auckland Standards Committee 5 [2020] NZHC 43.......
  • Deliu v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal
    • New Zealand
    • High Court
    • 19 November 2013
    ...... First Defendant and The National Standards Committee of the New Zealand Law Society Second Defendant . Appearances: Plaintiff in person . W C Pyke for Second ... 62 In Orlov v New Zealand Law Society & Ors the Court of Appeal held that the power of a standards committee ......
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