Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal

• Jurisdiction: New Zealand
• Judge: Kós J
• Judgment Date: 25 May 2016
• Neutral Citation: [2016] NZCA 224
• Docket Number: CA29/2016
• Court: Court of Appeal
• Date: 25 May 2016

Between

Evgeny Orlov

Applicant

and

New Zealand Lawyers and Conveyancers Disciplinary Tribunal

First Respondent

The National Standards Committee No 1

Second Respondent

[2016] NZCA 224

Court:

Miller, Winkelmann and Kós JJ

CA29/2016

IN THE COURT OF APPEAL OF NEW ZEALAND

Application for leave to appeal — the applicant proposed 11 grounds of appeal — in response to statements the applicant lawyer made about a judge, the Standards Committee placed charges against the applicant before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal — an appeal and judicial review of the Tribunal's decision were heard together — the High Court (HC) upheld the charges but set aside the penalty of striking off — the applicant had an as of right appeal against the HC's decision on the judicial review but leave was declined to bring a second appeal against the appeal aspect of the HC decision — the applicant's proposed grounds included questions relating to the Tribunal's jurisdiction to prosecute a lawyer for claims made to the Human Rights Review Tribunal and the Judicial Conduct Commissioner; alleged bias by the Tribunal against the applicant; and alleged failure by the HC to address alleged deliberate withholding from the Tribunal of authorities in which lawyers were not prosecuted for similar conduct — whether the HC Judges should have recused themselves as they were close colleagues of the judge — whether the applicant's right of appeal against the judicial review aspect of the HC decision meant that leave should be granted on the appeal aspect — and whether any of the proposed questions of law were ones that, by reason of their general or public importance or for any other reason, ought to be submitted for decision.

Counsel:

G Bogiatto for Applicant

W C Pyke for Second Respondent

JUDGMENT OF THE COURT

A The application for leave to appeal is declined.

B The applicant is to pay costs to the second respondent for a standard application on a band A basis together with usual disbursements.

REASONS OF THE COURT

(Given by Kós J)

1 In response to statements the applicant made about Harrison J, the Standards Committee placed charges before the Disciplinary Tribunal. The Disciplinary Tribunal found the charges proved and struck him off the roll of barristers and solicitors. The applicant appealed the Tribunal's decision and sought judicial review of the Tribunal's decision in the High Court. The first appeal and judicial review were heard together. Ronald Young and Simon France JJ amended and upheld the substance of those charges, but revoked the penalty imposed. 1 No alternative penalty was imposed bearing in mind the time the applicant had been struck off.

2 The applicant has filed an appeal against the judicial review aspect of the High Court decision as of right (CA555/2014). 2

3 He also wishes to bring a second appeal against the appeal aspect of the High Court decision, for which leave is required. 3

4 Simon France J declined an application for leave in the High Court. 4 The applicant now applies for leave in this Court.

5 The second respondent, the National Standards Committee (No 1), opposes the grant of leave. The first respondent, the Tribunal, abides the decision of the Court in the entire proceeding.

6 We note that the applicant's written submissions were prepared by him personally. He is overseas. We are grateful to Mr Bogiatto for entering appearance for the applicant and making helpful and coherent oral submissions to us.

Relevant leave provision

7 Section 254 of the Lawyers and Conveyancers Act 2006 provides:

254 Appeal to Court of Appeal on question of law

• (1) Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 66 of the Judicature Act 1908 applies to any such appeal.

• (2) In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

• (3) The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.

• (4) The decision of the Court of Appeal on any appeal under this section is final.

Grounds advanced

8 The applicant raises 11 proposed grounds of appeal which he says are issues of public importance.

Ground 1: admissibility of judgments

9 This ground is the High Court erred in considering that Harrison J's judgments can be used as evidence against the applicant in disciplinary proceedings.

10 The applicant submits the use of these judgments was a breach of legitimate expectation, a breach of s 50 of the Evidence Act 2006, and perverse and contrary to natural justice.

11 This Court has already considered this issue. 5 It found that judgments are admissible under s 239(1) of the Lawyers and Conveyancers Act when used to assist

the Tribunal to deal with the matters before it. That is how the judgments were used in this case. No issue warranting a second appeal arises

Ground 2: jurisdiction of Tribunal to prosecute a lawyer for claims made to the Human Rights Review Tribunal and the Judicial Conduct Commissioner

12 This ground is that the High Court erred in holding that there was jurisdiction to prosecute a lawyer for a claim to the Human Rights Review Tribunal (HRRT) or a complaint to the Judicial Conduct Commissioner (JCC) made in good faith.

13 The applicant submits he should not be punished for making complaints on the basis of a sincerely held opinion.

14 This is not a question of jurisdiction. Lawyers' professional obligations are not suspended when exercising rights to complain in connection with the provision of regulated services. 6 It is rather a question of whether there is any absolute privilege attaching to statements made to the HRRT or JCC. That is how the applicant advanced it in the High Court. The High Court held there was no such privilege. 7 Its reasoning is compelling, and the contrary view would create an inexplicable disciplinary Alsatia. This ground is simply not tenable.

Grounds 3 and 6: sufficient foundation test

15 These grounds may be considered together. They relate to whether there was a sufficient foundation for the applicant's complaints about Harrison J. Did the High Court err in applying the sufficient foundation test or in the content of that test? Did the High Court act perversely or irrationally in holding there was no evidence providing a sufficient foundation for making a complaint?

16 The applicant submits the sufficient foundation test is improper because it punishes a lawyer for holding an opinion.

17 This at base is a question of fact, not of law. The test of “sufficient foundation” is settled law. 8 Its application is a fact-intense issue not amounting to a question of law and not warranting a second appeal.

Ground 4: amendment of charges

18 The ground is whether the High Court erred in amending some of the charges to charges of misconduct occurring at a time when Mr Orlov was providing regulated services in terms of s 7(1)(a)(i) of the Lawyers and Conveyancers Act.

19 The applicant submits he was not providing regulated services when he made the relevant statements and the amendment of the charges was made without warning or opportunity to respond.

20 There is no doubt that the High Court had power to amend the charges. 9 The questions of whether it was appropriate to do so or whether the amendment engendered any prejudice to the applicant are matters of fact and were dealt with by the High Court. 10 They are not questions of law and do not raise a question of public importance warranting a second appeal.

Ground 5: charges on account of another lawyer's conduct

21 The ground is whether the High Court erred in permitting the applicant to be charged for matters which he had not drafted nor filed where another lawyer was acting. It concerns documents which were allegedly filed by Mr Deliu acting on behalf of the...