Orlov v New Zealand Law Society (Auckland Branch)
| Jurisdiction | New Zealand |
| Judge | Heath J |
| Judgment Date | 07 December 2011 |
| Neutral Citation | [2011] NZHC 1749 |
| Docket Number | CIV 2010-404-2868 |
| Court | High Court |
| Date | 07 December 2011 |
And
And
And
[2011] NZHC 1749
CIV 2010-404-2868
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Determination of five procedural points — substantive proceedings involved application for judicial review and declaration that respondent breached the New Zealand Bill of Rights Act 1990 in its treatment of applicant — applicant was practicing lawyer who was subject of disciplinary hearings — alleged respondent treated him unfairly and in a disproportionate way to other lawyers — whether the judicial review and bill of rights claims should be separated under r10.4 High Court Rules (court may order separate trials) — whether applicant should be permitted to call witnesses on subpoena — whether a discovery order should be made against the respondent and Standards Committees in relation to internal communications.
E Orlov, in person, Plaintiff
P J Morgan QC for Defendantst
P J Morgan QC PO Box 1902 1, Hamilton
W C Pyke, PO Box 19271, Hamilton
JUDGMENT (NO. 5) OF Heath J
In this proceeding, Mr Orlov seeks judicial review, declaratory relief in respect of alleged breaches of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and damages for misfeasance in public office. The proceeding challenges decisions said to have been made by the New Zealand Law Society (Auckland Branch) (the Society) and three committees established by it, Auckland Standards Committee, Auckland Standards Committee No 1 and National Standards Committee (the Standards Committees).
At the heart of Mr Orlov's claims are allegations that those bodies have engaged in a persistent pattern of conduct designed to destroy Mr Orlov's career as a barrister. Mr Orlov alleges that decisions to lay disciplinary charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) have been made in bad faith. He asks the Court to quash the decisions in issue. While that summary does not do justice to the lengthy pleading and alternative claims that are made, it provides an adequate introduction to the issues that arise.
The present proceeding has been set down for a hearing over eight days, commencing 27 February 2012. On 5 December 2011, a case management conference was held. Procedural rulings are required to ensure the trial is ready to proceed in February.
Mr Orlov accepts that the misfeasance cause of action cannot conveniently be dealt with at the same time as the judicial review proceeding. That cause of action is better left to be determined in conjunction with separate proceedings brought against the New Zealand Law Society (Auckland Branch), for malicious prosecution. 1 In those proceedings, Mr Orlov has sought trial before a jury.
Mr Orlov has particularised the bases on which he alleges that the Society and the Standards Committees have breached the Bill of Rights: 2
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(a) [They] have treated [him] unfairly and with bias and/or in a discriminatory and disproportionate manner to other practitioners.
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(b) [They] have consistently and recklessly or deliberately breached their own policies rules and regulations and the Lawyers and Conveyancers Act 2006 in relation to [him].
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(c) [They] have during hearings insulted or defamed [him] and committed other unlawful acts.
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(d) [They] have used their statutory powers for improper and unlawful purposes to harass and vex and cause harm to [him].
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(e) [They] have attacked, prosecuted or used their powers against [him] for [his] fearless and pro bono advocacy of human rights cases against the Crown in order to suppress or punish [him] for defending his clients.
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(f) [They] have taken [him] to the Tribunal for incompetence when they are aware that he is a competent Counsel that has conducted more matters in the Supreme Court than majority of senior Counsel and when they are aware that he is briefed regularly on human rights matters of extreme complexity.
Initially, Mr Orlov sought damages for the alleged breaches. He has now abandoned that claim and, insteadxs, seeks a declaration that the rights set out in ss 9,
, 19 and 27 of the Bill of Rights have been breached.
There are five issues with which I deal in this judgment:
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(a) Should the judicial review and Bill of Rights claims be heard together at the February/March 2012 hearing?
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(b) Should the Bill of Rights claims proceed by way of formal proof?
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(c) Should Mr Orlov be permitted to call witnesses on subpoena, in support of his judicial review and/or Bill of Rights claims?
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(d) Should an order for discovery be made against the Society and the Standards Committees?
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(e) Are documents currently withheld from inspection by Mr Orlov protected by claims of legal professional and public interest privilege?
A sixth issue is whether Mr Orlov, as a self-represented litigant who holds a practising certificate as a Barrister, is entitled to seek costs, if his claims were successful. Based on the Court of Appeal's decision in Brownie Wills v Shrimpton, 3 Mr Morgan QC, for the Society and the Standards Committees, accepts that such a jurisdiction exists. I record that position. It is (as Mr Orlov acknowledged) inappropriate to embark upon a consideration of whether costs should be ordered, in advance of trial.
The five procedural points to which I have referred require determination against the need for the judicial review application to be determined promptly following the hearing in February and March 2012. In the meantime, proceedings before the Tribunal have been adjourned, pending the outcome of that application to review. 4 The prospect of a part-heard claim is unacceptable to all concerned and must (provided there is no prejudice to Mr Orlov) be avoided.
It follows that, if there were any risk that the judicial review proceeding could not be completed within the eight days allocated, steps need to be taken now to separate the judicial review claims from those brought under the Bill of Rights.
In considering severance, the jurisdiction of this Court to regulate the way in which evidence is given and discovery made, for the purpose of judicial review proceedings, is an important consideration. Section 10 of the Judicature Amendment Act 1972 provides:
10 Powers of Judge to call conference and give directions
(1) For the purpose of ensuring that any application or intended application for review may be determined in a convenient and expeditious manner, and that all matters in dispute may be effectively and completely determined, a Judge may at any time, either on the application of any party or intended party or without any such application, and on such terms as he thinks fit, direct the holding of a conference of parties or intended parties or their counsel presided over by a Judge.
(2) At any such conference the Judge presiding may-
(a) Settle the issues to be determined:
(b) Direct what persons shall be cited, or need not be cited, as respondents to the application for review, or direct that the name of any party be added or struck out:
(c) Direct what parties shall be served:
(d) Direct by whom and within what time any statement of defence shall be filed:
(e) Require any party to make admissions in respect of questions of fact; and, if that party refuses to make an admission in respect of any such question, that party shall be liable to bear the costs of proving that question, unless the Judge by whom the application for review is finally determined is satisfied that the party's refusal was reasonable in all the circumstances, and accordingly orders otherwise in respect of those costs:
(f) Fix a time by which any affidavits or other documents shall be filed:
(g) Fix a time and place for the hearing of the application for review:
(h) Require further or better particulars of any facts, or of the grounds for relief, or of the relief sought, or of the grounds of defence, or of any other circumstances connected with the application for review:
(i) Require any party to make discovery of documents, or permit any party to administer interrogatories:
(j) In the case of an application for review of a decision made in the exercise of a statutory power of decision, determine whether the whole or any part of the record of the proceedings in which the decision was made should be filed in Court, and give such directions as he thinks fit as to its filing:
(k) Exercise any powers of direction or appointment vested in the Court or a Judge by its rules of Court in respect of originating applications:
(l) Give such consequential directions as may be necessary.
(3) Notwithstanding any of the foregoing provisions of this section, a Judge may, at any time before the hearing of an application for review has been commenced, exercise any of the powers specified in subsection (2) of this section without holding a conference under subsection (1) of this section.
There is jurisdiction for this Court to sever the trial of causes of action pleaded in a single Statement of Claim. Rule 10.4 of the High Court Rules provides:
10.4 Court may order separate trials
When justice requires, the court may order separate trials of causes of action and it may also direct the sequence of the separate trials and make any supplementary order that is just.
In Deliu v New Zealand Law Society, 5 in remarkably similar circumstances, Peters J directed that judicial...
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