Evgeny Orlov v New Zealand Law Society

• Jurisdiction: New Zealand
• Judge: French J
• Judgment Date: 14 June 2013
• Neutral Citation: [2013] NZCA 230
• Docket Number: CA554/2012
• Court: Court of Appeal
• Date: 14 June 2013

Between

Evgeny Orlov

Appellant

and

New Zealand Law Society

First Respondent

and

Auckland Lawyers Standards Committee

Second Respondent

and

Auckland Lawyers Standards Committee No 1

Third Respondent

and

National Standards Committee

Fourth Respondent

[2013] NZCA 230

Court:

Stevens, Wild and French JJ

CA554/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from a High Court (“HC”) decision which partially quashed a Standards Committee decision to refer complaints against the appellant to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal — the HC found that 10 of the complaints were not sufficiently serious to refer to the Tribunal but rejected all the other grounds of review — cross-appeal by the defendant against the decision to quash the ten complaints — whether the power to refer cases to the Tribunal was subject to a threshold test of there being a real risk that practitioner might be suspended or struck off — whether appellant had been provided with sufficient particulars of the complaints — whether a Standards Committee could initiate an own motion investigation into an existing complaint — whether the Board of the New Zealand Law Society could transfer complaints from local Standards Committees to the National Standards Committee — whether the complaints relating to alleged statements made by the appellant in court and against judicial officers raised matters capable of being the subject of disciplinary proceedings — whether a Standards Committee was required to give reasons for referring a matter to the Tribunal — whether there had been undue delay in the processing of the complaints.

Counsel:

Appellant in person

K L Clark QC Amicus Curiae (23 April 2013)

P J Morgan QC (both days) and W C Pyke (23 April 2013) for Respondents

JUDGMENT OF THE COURT

A The appeal is dismissed and the decisions of the three Standards Committees are confirmed.

B The cross appeal is allowed and the orders made by the High Court relating to charges 2, 3, 4, 5, 8, 9, 10, 11, 12 and 13 laid by Auckland Lawyers Standards Committee No 1 and the s 356 Committee are quashed.

C The appellant is ordered to pay one set of costs to the respondents on a standard appeal on a band B basis. Costs for the preparation of the case on appeal are to be fixed by the Registrar, failing agreement. The Court certifies for two counsel for one day.

REASONS OF THE COURT

(Given by French J)

Table of Contents

	Para No
Introduction	[1]
The statutory framework	[5]
The charges laid against Mr Orlov	[26]
Charges laid by the Auckland Lawyers Standards Committee No 1 and the s 356 Committee	[28]
Charges laid by the National Standards Committee	[38]
Some preliminary matters	[44]
The cross appeal – is the power conferred on Standards Committees by s 152(2)(a) subject to a threshold test?	[47]
Mr Orlov's appeal	[56]
The Lellman complaint	[60]
Background	[60]
The complaints were insufficiently particularised and lacked an evidential foundation; the Committee breached its statutory duty to inquire	[64]
The matters raised in the complaint are not capable in law of being the subject of disciplinary proceedings	[75]
The National Standards Committee lacked jurisdiction to deal with the complaint because another Standards Committee was seized of the matter	[80]
The National Standards Committee had no jurisdiction to convert the complaint into an own motion investigation	[87]
Failure to give reasons	[95]
The charges submitted to the Tribunal do not reflect the allegations made by Ms Lellman	[104]
Undue delay	[105]
The Randerson complaint	[111]
Background	[111]
The making of a complaint against a judge cannot be the subject of disciplinary action	[120]
The National Standards Committee lacked jurisdiction to deal with the complaint because of the circumstances surrounding the conduct in question	[123]
Breach of natural justice	[126]
Sufficient particulars were never provided	[128]
The complaint was afforded special treatment	[133]
The Tait complaint	[136]
Background	[136]
Lack of sufficient notice	[142]
Failure to consider the threshold in the 1982 Act	[146]
Other issues	[149]
The Bujak complaint	[152]
Background	[152]
Breach of natural justice	[158]
Outcome	[162]
The appeal	[162]
The cross appeal	[164]
Costs	[172]

Introduction

1 Mr Orlov is a barrister. He is facing disciplinary proceedings under the Lawyers and Conveyancers Act 2006 (the Act) as the result of various complaints made against him to the New Zealand Law Society. Having investigated the complaints, three Standards Committees decided not to deal with the matters themselves but to exercise their power under s 152(2)(a) of the Act and refer them to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). Mr Orlov strongly objected to the matters being transferred to the Tribunal and sought judicial review in the High Court of the referral decisions.

2 The judicial review proceeding was heard by Heath J. He found that before exercising its power to refer a complaint to the Tribunal, a Standards Committee must be satisfied there is a real risk that the legal practitioner might be suspended or struck off if the complaint is upheld. 1 Applying that test to each of the complaints against Mr Orlov, Heath J found that 10 of the complaints were not sufficiently serious to justify referral. The Judge therefore quashed the decision of the relevant Standards Committee relating to the 10 complaints but rejected all the other grounds of review argued by Mr Orlov. The effect of Heath J's decision was that the 10 complaints were to be withdrawn from the Tribunal's consideration and remitted to the relevant Standards Committee for determination, but the remaining complaints were to be determined by the Tribunal.

3 Mr Orlov now appeals the Judge's decision relating to the remaining complaints. One of the Standards Committees has cross appealed the Judge's decision relating to the 10 complaints.

4 The key issues raised by the appeal and cross appeal are:

• (a) Is the power of a Standards Committee to refer cases to the Tribunal under s 152(2)(a) subject to a threshold test such as that postulated by Heath J?

• (b) Was Mr Orlov provided with sufficient particulars of the complaints?

• (c) Is a Standards Committee entitled to initiate an own motion investigation into an existing complaint?

• (d) Was the Board of the New Zealand Law Society lawfully entitled to transfer complaints from local Standards Committees to the National Standards Committee?

• (e) Did the complaints relating to alleged statements made by Mr Orlov in court and against judicial officers raise matters capable of being the subject of disciplinary proceedings?

• (f) Is a Standards Committee required to give reasons for a decision to refer a matter to the Tribunal?

• (g) Has there been undue delay in the processing of the complaints warranting judicial intervention?

The statutory framework

5 Before considering the factual background of this case, it is necessary to explain the relevant legislative scheme and the functions of Standards Committees. The following exposition is derived in large measure from the decision of the Full Court of the High Court in Hart v Auckland Standards Committee 1 of New Zealand Law Society, which we have found very helpful. 2

6 The Act came into force on 1 August 2008. Prior to that date, regulation of the legal profession was governed by the Law Practitioners Act 1982.

7 Under the 1982 Act, complaints against a legal practitioner were received in the first instance by the District Law Society of which the practitioner in question was a member. If the Council of that Society had reasonable cause to suspect that the practitioner had been guilty of conduct of a specified kind, the Council could itself investigate the matter. The inquiry would be undertaken by either the Council or one or more of its Complaints Committees. If, at the conclusion of the investigation, the Council or Complaints Committee was of the opinion that the case was of sufficient gravity to warrant the laying of a charge, it was required to lay a charge before either a District Disciplinary Tribunal or the New Zealand Law Practitioners Disciplinary Tribunal.

8 A District Disciplinary Tribunal could make a finding that the practitioner had been guilty of any of the types of conduct specified in the legislation. If, having made such a finding, the District Tribunal was of the view that the case was of sufficient gravity to warrant its referral to the New Zealand Law Practitioners Disciplinary Tribunal, it was required to refer the case to the national body accordingly. If the case did not meet that threshold, but the District Tribunal nevertheless considered that the laying of a charge was justified, the District Tribunal could impose various sanctions against the practitioner including orders for payment of compensation and reduction of fees.

9 If the matter was referred to the New Zealand Disciplinary Tribunal and that tribunal found the practitioner was guilty of any of the specified conduct, it could make orders of a more serious nature, including striking the practitioner off, and suspending the practitioner from practice for up to three years.

10 On 1 August 2008, the Law Practitioners Act was replaced by the Lawyers and Conveyancers Act. There are significant differences between the two statutes, including the fact that the Lawyers and Conveyancers Act has a greater focus on consumer protection. The first two purposes listed in s 3(1) of the 2006 Act are:

One of the means by which the Act aims to achieve those purposes is by providing for “a...