Orlov v National Standards Committee No 1

• Jurisdiction: New Zealand
• Judge: Ellen France J
• Judgment Date: 13 June 2014
• Neutral Citation: [2014] NZCA 242
• Docket Number: CA127/2014
• Court: Court of Appeal
• Date: 13 June 2014

BETWEEN

Evgeny Orlov

Appellant

and

The National Standards Committee No 1

Respondent

[2014] NZCA 242

Court:

Ellen France, French and Miller JJ

CA127/2014

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal from a decision of the High Court (HC) which debarred the appellant'lawyer from representing him — HC had invited the President of the New Zealand Bar Association to nominate counsel to appear as amicus — appellant was appealing a decision to strike him from the roll — appellant'counsel also faced disciplinary charges some of which arose from the same factual matters giving rise to the charges against the appellant — counsel had filed an affidavit the matter — HC judge said that counsel would lack objectivity as would to some extent be arguing his own case — HC Judge recused himself from hearing the appeal proper — whether denying the appellant his lawyer of choice breached the principles of natural justice in s27 New Zealand Bill of Rights Act 1990 (“NZBORA”) (principles of justice) — whether the Judge'decision to recuse himself from hearing the appeal proper, meant that he should not have adjudicated on the application to debar the appellant'counsel — whether the Judge had improperly delegated his judicial function in respect of the appointment of the amicus.

Counsel:

Appellant in person

W C Pyke for Respondent

• A The appeal is dismissed.

• B Costs are reserved.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

	Para No
Introduction	[1]
Background	[4]
The disciplinary process	[5]
The Tribunal'decision	[10]
The High Court decision	[13]
Challenge to the decision to debar Mr Deliu	[16]
The applicable law	[17]
The contents of the affidavit	[23]
Other factors	[30]
Conclusion	[38]
The Judge'decision to recuse himself	[39]
Submissions on the recusal decision	[40]
Our analysis	[43]
Appointment of counsel assisting the Court	[48]
Other matters	[54]
Result and costs	[61]

Introduction

1 Mr Orlov was in practice as a lawyer until late 2013 when he was struck off the roll of barristers and solicitors. 1 Mr Orlov appealed to the High Court against the decision to strike him off. That appeal was to be heard in April of this year and Mr Orlov had instructed a barrister, Mr Deliu, to appear for him on the appeal. Mr Deliu also faces disciplinary charges some of which arise from the factual matters giving rise to the charges against Mr Orlov.

2 The respondent, the National Standards Committee No 1, applied to have Mr Deliu debarred from appearing for Mr Orlov on the appeal in the High Court. Fogarty J granted that application and directed the appointment of counsel assisting. 2 Mr Orlov has appealed to this Court against the decision to debar Mr Deliu as his counsel. 3 He also challenges the Judge'decision to recuse himself from hearing Mr Orlov'appeal proper and the appointment of counsel assisting in that appeal.

3 The present appeal to this Court raises the following issues:

• (a) Was the Judge correct to debar Mr Deliu?

• (b) What is the impact of the Judge'decision to recuse himself from hearing the appeal against strike-off?

• (c) Was the process adopted for the appointment of counsel assisting flawed?

Background

4 To put the issues in context it is helpful, first, to briefly explain the charges faced by Mr Orlov and how they were dealt with by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). Secondly, we summarise Fogarty J'decision to debar Mr Deliu from appearing as counsel.

The disciplinary process

5 The charges concern a complaint made to the New Zealand Law Society by the then Chief High Court Judge, Randerson J, in November 2008. The subject matter of the charges is summarised by the Tribunal in its decision on liability as follows: 4

[29] Charge 1 relates to a letter sent by Mr Orlov to the Chief High Court Judge, Randerson J, in which he makes a number of serious allegations against His Honour Justice Harrison (“the Judge”). His complaints relate to comments made by the Judge in his conduct towards the practitioner in a series of proceedings in which Mr Orlov was the instructing solicitor, or appearing as Counsel, or attending at the request of the Court. This charge alleges misconduct unconnected to the provisions of regulated services.

[30] Charge 2 is an alternative charge to Charge 1, based on the same facts, but alleged misconduct occurring at the time of providing regulated services.

[31] Charge 3 concerns an Originating Application filed by Mr Orlov'chambers (“Equity Law”) and citing Mr Orlov as First Applicant and one Frank Deliu a lawyer in the same chambers as Second Applicant. The Application was filed with the High Court at Auckland … seeking orders directing that the High Court Registry not allocate cases on matters involving the Applicants to the Judge. It is intituled as an “application for permanent judicial recusal”. [Later, the applicants discontinued these proceedings and lodged a letter of apology with the Court.]

…

[33] It is the contents of the Originating Application which give rise to the charge. Again it includes a number of serious allegations amounting to judicial misconduct by the Judge.

[34] This charge is brought … as misconduct occurring in the course of providing regulated services.

[35] Charge 4 is an alternative to Charge 3. It is based on the same facts but alleges misconduct unconnected with the provision of regulated services.

[36] Charge 5 relates to an Application filed with the Supreme Court for Special Leave to Appeal from a decision of the Judge in which he ordered Messrs Orlov and Deliu as Counsel to personally pay the costs of Counsel for the Children in that case on a “wasted costs” basis. The Application also challenged the refusal of the Judge to recuse himself on that costs order. The Application as filed contained serious allegations against the Judge essentially amounting to judicial misconduct. It is signed by Mr Orlov'clients in person but filed by Frank Deliu and Evgeny Orlov on their behalf.

… This charge against the practitioner alleges misconduct occurring in the course of providing regulated services. …

[37] Charge 6 alleges misconduct in the making of claims and allegations against the Judge in similar vein to those made in the preceding charges, in a letter of claim to the Human Rights Review Tribunal. … Again this charge alleges misconduct unconnected with regulated services and no charge is laid in the alternative.

[38] Charge 7 alleges misconduct unconnected with regulated services in respect to a number of claims and allegations of judicial misconduct made by Mr Orlov concerning the Judge this time in a letter of complaint to the Judicial Conduct Commissioner.

[39] Charge 8 is laid in the alternative to Charge 7 and relies on the same facts to establish misconduct occurring when providing regulated services.

6 There were various procedural challenges made by Mr Orlov prior to the commencement of the hearing before the Tribunal. Because it is relevant to an issue we deal with later, we note only that Mr Orlov appealed unsuccessfully to this Court in relation to a judicial review proceeding he brought challenging the Standards Committee'decision to put all of the charges to the Tribunal. 5 At Mr Orlov'suggestion, the eight charges presently in issue were separated out from other charges and heard first.

7 Mr Orlov filed his evidence in relation to the eight charges shortly before the hearing. His evidence included an affidavit from Mr Deliu. We will return later to the contents of that affidavit. There is another affidavit from Mr Deliu that was

before the Tribunal. The latter is a copy of an affidavit affirmed in 2008 in one of the High Court proceedings which formed a part of the complaint against Mr Orlov. We will focus on the first of these affidavits

8 The Tribunal recorded in its liability decision that it heard first from Ms Ollivier who was described as the process witness for the Committee. 6 Ms Ollivier was extensively cross-examined by Mr Orlov. The Tribunal then dealt with a “No Case to Answer” submission from Mr Orlov.

9 After the Tribunal rejected his submission of no case to answer Mr Orlov, who was acting for himself, withdrew and refused to make himself available for cross-examination. Mr Orlov subsequently resiled from that withdrawal to the extent that he presented submissions in reply.

The Tribunal'decision

10 The Tribunal, by a majority, found five of the eight charges proved. Two charges (number 2 and number 8) were dismissed because they were laid in the alternative. No finding was made in relation to charge number 4 because the conduct was covered by charge number 3.

11 Following a later penalty hearing, the Tribunal struck Mr Orlov off the roll of barristers and solicitors. Mr Orlov has appealed the Tribunal'liability findings and penalty decision to the High Court. 7

12 We turn now to the decision of Fogarty J in relation to representation by Mr Deliu.

The High Court decision

13 The Judge took the view that the rule preventing a lawyer who has been a witness in the proceeding from acting as counsel in that case was not sufficient basis on which to debar Mr Deliu. 8 Fogarty J reached that view because he accepted there

was force in the submission that the Tribunal'decision would have been the same whether or not Mr Deliu'affidavits had been filed. The Judge also noted the possibility that, on appeal, the High Court might agree to conduct the appeal on the record but ignoring Mr Deliu'affidavits. There is also the possibility, the Judge said, “that the Court might agree that Mr Deliu appear as counsel provided he does not in any way discuss those affidavits, or rely on them”. 9

14 What caused the Judge to conclude that Mr Deliu should be debarred was, essentially, his...