Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeKós J
Judgment Date25 May 2016
Neutral Citation[2016] NZCA 224
Docket NumberCA29/2016

[2016] NZCA 224

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Miller, Winkelmann and Kós JJ

CA29/2016

Between
Evgeny Orlov
Applicant
and
New Zealand Lawyers and Conveyancers Disciplinary Tribunal
First Respondent
The National Standards Committee No 1
Second Respondent
Counsel:

G Bogiatto for Applicant

W C Pyke for Second Respondent

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.

Held: Section 254 LCA provided that in determining whether to grant leave to appeal, the CA had to have regard to whether the question of law involved in the appeal was one that, by reason of its general or public importance or for any other reason, ought to be submitted for decision. The decision of the CA on any appeal was final.

Ground 1: admissibility of judgments — The applicant submitted the use of Harrison J's judgments was a breach of legitimate expectation, a breach of s50 Evidence Act 2006 (Civil judgment as evidence in civil or criminal proceedings), and perverse and contrary to natural justice.

The CA had already considered this issue ( Deliu v The National Standards Committee of the New Zealand Law Society). It found that judgments were admissible under s239(1) LCA when used to assist the Tribunal to deal with the matters before it. This section provided that the Tribunal could receive as evidence any statement, document, information, or matter that might, in its opinion, assist it to deal effectively with the matters before it, whether or not it would be admissible in a court of law. That was how the judgments were used in this case. No issue warranting a second appeal arose.

Ground 2: Tribunal's jurisdiction in respect of complaint to HRRT or JCC — The applicant submitted he should not be punished for making complaints on the basis of a sincerely held opinion. However, this was not a question of jurisdiction. Lawyers' professional obligations were not suspended when exercising rights to complain in connection with the provision of regulated services. It was rather a question of whether there was any absolute privilege attaching to statements made to the HRRT or JCC. That was how the applicant advanced it in the HC. The HC held there was no such privilege. Its reasoning was compelling, and the contrary view would create an inexplicable disciplinary Alsatia [a sanctuary for those who offend]. This ground was simply not tenable.

Ground 7: bias by Tribunal against the applicant — The HC's finding on that the Tribunal was not biased against the applicant was an assessment of fact. The applicant did not raise in submissions any issue with the legal approach of the HC to assessing the question of bias. The test for bias was settled ( Saxmere Co Ltd v Wool Board Disestablishment Co Ltd). Its application on the facts was not a question of law, let alone one warranting a second appeal.

Ground 8: treatment of lawyers in other decisions — The applicant said the decisions were withheld in an effort to discriminate against the applicant. It was said the prosecutor did not put these decisions before the Tribunal. However, even if these authorities ought to have been put before the Tribunal (and no view was expressed on this), any error had been cured by the HC decision. It referred to those cases in its assessment of appropriate penalty. The HC said those cases had not come close to the level of sustained misconduct involved here. There was nothing in this ground of appeal.

Ground 10: the HC Judges were biased — The applicant did not particularise any reason why Ronald Young and Simon France JJ were biased other than potential friendship and having at times sat with Harrison J. Association or friendship between Judges was not in itself a matter of concern ( Saxmere Co Ltd). Nor was the fact that a Judge had sat with another Judge. Both were aspects of the institutional framework, and a fair-minded observer would not be alarmed by either. There was no arguable basis on which leave should be granted on this ground.

Interrelationship between judicial review and appeal proceedings — The applicant submitted at a general level that because he had a right of appeal against the judicial review aspect of the HC decision, that meant there was “other reason” for the purposes of s254(2) LCA why leave should be granted ( Zhang v The Immigration and Protection Tribunal).

The LCA allowed for a right of rehearing on a first appeal, including consideration of process and procedural complaints. But it contemplated a single appeal, unless a significant question of law arose. There was not sufficient “other reason” in terms of s254(2) to grant leave to bring a second appeal. First, much of the substance of the proposed second appeal concerned procedural complaints with the HC and Tribunal processes. These matters could adequately be dealt with in the as of right judicial review appeal and remitted back to the HC if necessary. Secondly no “procedural tangle” arose in this instance in respecting Parliament's intended constraint on appeals (cf: Zhang). Thirdly, and crucially, to the extent that the proposed grounds of appeal concerned matters of substance in the HC's assessment, none were sufficient to warrant an appeal.

Application for leave to appeal declined.

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...

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3 cases
  • Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal
    • New Zealand
    • Court of Appeal
    • 21 Diciembre 2016
    ...Lawyers and Conveyancers Disciplinary Tribunal [2015] NZHC 3110 ; Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224 [CA leave decision]. 8 Under s 66 of the Judicature Act 1908. 9 Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 436; And......
  • Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal
    • New Zealand
    • Court of Appeal
    • 21 Diciembre 2016
    ...Lawyers and Conveyancers Disciplinary Tribunal [2015] NZHC 3110; Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224 leave decision]. [5] In addition to seeking leave to appeal under the Act, Mr Orlov also filed an appeal against the High Court decision in rel......
  • Guo v Culpan (no 2)
    • New Zealand
    • High Court
    • 11 Noviembre 2019
    ...relevant to why the Tribunal struck out Ms Guo’s claim. It did so 3 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224 at because Ms Guo refused to be cross-examined. Ms Guo has identified no question of law in the High Court judgment regarding that. [10] Ms ......