Orlov v New Zealand Law Society Hc Ak

• Jurisdiction: New Zealand
• Judge: Heath J
• Judgment Date: 24 August 2012
• Neutral Citation: [2012] NZHC 2154
• Docket Number: CIV 2010-404-2868
• Court: High Court
• Date: 24 August 2012

BETWEEN

Evgeny Orlov

Plaintiff

and

New Zealand Law Society

First Defendant

And

Auckland Lawyers Standards Committee (Appointed Uner Section 356 Lawyers and Conveyancers Act 2006)

Second Defendant

And

Auckland Lawyers Standards Committee No. 1

Third Defendant

And

National Standards Committee

Fourth Defendant

[2012] NZHC 2154

CIV 2010-404-2868

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for judicial review of decisions made by three Standards Committees (second, third and fourth defendants) to refer complaints to the Lawyers and Conveyancers Disciplinary Tribunal — complaints concerned alleged misconduct and unsatisfactory conduct — whether attack on members of judiciary and other lawyers was protected by s14 New Zealand Bill Of Rights Act 1990 (freedom of expression) — whether decisions made by the defendants were exercises of prosecutorial discretion and not amendable to judicial review — whether defendants had acted ultra vires by failing to apply a threshold test as to whether the complaints should be referred on

Counsel:

E Orlov, in person, Plaintiff

P J Morgan QC and W C Pyke for Defendants

P J Morgan QC, PO Box 19021,

Hamilton W C Pyke, PO Box 19271,

Hamilton E Orlov, PO Box 8333, Auckland

JUDGMENT (NO. 8) OF Heath J

Contents

1. The proceeding	[1]
2. The charges	[11]
3. The complaints and disciplinary processes
(a) Introduction	[14]
(b) The 1982 Act
(i) General background	[16]
(ii) Complaints and disciplinary procedure	[21]
(c) The 2006 Act	[39]
4. Judicial review of prosecutorial decisions	[58]
5. References to the Tribunal: Is there a threshold test?
(a) The nature of the issue	[63]
(b) Functions and powers	[67]
(C) Standard of proof	[77]
(d) Conclusions	[78]
6. Grounds of review
(a) Mr Orlov's submissions	[83]
(b) Relevance of international instruments and Bill of Rights	[86]
(c) The subordinate “legislation”	[95]
7. Approach to determination	[103]
8. The s 356 committee	[106]
9. The No 1 Committee	[113]
10. The National Standards Committee
(a) Establishment of the National Committee	[127]
(b) The “own motion” investigations	[132]
(c) The “own motion” investigations: threshold issues	[143]
11. Conclusions	[158]
12. Result	[160]
13. Addendum	[163]

1. The proceeding

1 Mr Orlov is a Barrister and Solicitor of the High Court of New Zealand. Currently, he holds a practising certificate as a barrister. During 2009 and 2010, various complaints were made to the New Zealand Law Society (the Society) about Mr Orlov. They included complaints about his professional competence. Having considered the complaints, decisions were made by three Standards Committees 1 to refer particular complaints or matters to the New Zealand Lawyers' and Conveyancers' Disciplinary Tribunal (the Tribunal).

2 Mr Orlov seeks judicial review of decisions made by each of three Standards Committees that determined that complaints with which they were dealing should be referred to the Tribunal. The decisions are captured in charges that the Standards Committees crafted, after their decisions 2. Mr Orlov's case is that the relevant Standards Committees:

• (a) improperly used the disciplinary processes as part of a concerted effort to prevent Mr Orlov from practising his profession;

• (b) breached relevant principles of natural justice;

• (c) failed to follow its own procedures;

• (d) made decisions vitiated through actual or apparent bias on the part of their members; and

• (e) acted in excess of the powers conferred on them by the Act and subordinate instruments.

3 Although raised in interlocutory applications, Mr Orlov did not press a submission that the decisions of the Standards Committees could be impugned on bad faith grounds. He submitted that the case turned on whether there had been breaches of the principles of natural justice, a failure to follow statutory procedures and actual or apparent bias.

4 Mr Orlov also submitted that the Standards Committees had acted ultra vires in failing to apply a threshold test in determining whether the allegations contained in particular charges should be referred to the Tribunal for determination. He contended that, in determining to refer certain complaints to the Tribunal, the Standards Committees failed to take account of a threshold test: namely, whether there was enough evidence to justify the extreme step of referring a complaint to the Tribunal, to consider whether misconduct had been proved.

5 Mr Orlov submits that Standards Committees should only formulate charges for the Tribunal's consideration if there were a real risk, if the charges were proved, that the practitioner might be suspended from practice or struck off the roll of Barristers and Solicitors of the High Court.

6 Mr Morgan QC, for the Society and the relevant Standards Committees, submitted that none of the grounds for review advanced by Mr Orlov had been made out, Among others, he raised three legal points which go to the heart of most of Mr Orlov's complaints. They are:

• (a) In the absence of a finding of bad faith, there is no ability for this Court, exercising its judicial review jurisdiction, to call into question the decisions of the relevant Standards Committees to lay charges before the Tribunal. 3 Parliament has decided to confer jurisdiction for such matters on Standards Committees and the Tribunal and this Court should not trespass into the realms delegated to them.

• (b) There was no threshold standard to which the Committees had to be satisfied before deciding not to exercise their own judicial powers to determine the complaints but to lay charges before the Tribunal. 4

• (c) The Court should exercise its discretion not to grant relief as Mr Orlov has failed to exhaust remedies open to him under the 2006 Act; specifically, the ability to apply to the Legal Complaints Review Officer to review a decision of a Standards Committee. 5

7 Mr Morgan summarised his response to Mr Orlov's case as:

• (a) There has been compliance with all statutory processes.

• (b) There has been no misconduct of a type that would justify the Court's intervention on judicial review.

• (c) Any issues about the sufficiency of evidence to bring a charge, or the merits generally, are matters for the Tribunal to determine; not the Court on judicial review.

• (d) Mr Orlov has failed to exercise all statutory rights by omitting to apply to the Legal Complaints Review Officer to review the Standards Committees' decisions.

8 Although the Amended Statement of Claim is extensive, Mr Orlov's submissions were even more wide-ranging. Mr Morgan made it clear that the parties whom he represented had approached the case squarely on the basis of the allegations set out in the Amended Statement of Claim. I agree with Mr Morgan that I should restrict my consideration of the issues in the same way. Having said that, there were nuanced arguments on legal issues that arose out of particular pleadings. Where necessary, I consider and determine such points.

9 There were marked differences between Mr Orlov and Mr Morgan about the extent to which it was permissible for me to review matters of fact. I agree with Mr Morgan that it is inappropriate for me to determine whether the primary facts on which each charge rests can be proved, as a matter of evidence. Applying orthodox principles, those facts must be assumed to be capable of proof before the Tribunal. A different question arises as to whether the facts on which the Standards Committees have relied to base their charges cross any relevant threshold for reference to the Tribunal.

10 There are two areas of conflict between counsel about this Court's approach to judicial review which require discrete treatment before I consider the decisions made by the Standards Committees. First, there is the question whether this Court should exercise jurisdiction to review a “prosecutorial” decision. That turns on whether the decision of the Standards Committee requiring a complaint to be considered by the Tribunal is characterised as prosecutorial or judicial in nature. 6 The second is whether it was necessary for the Standards Committees to be satisfied that a particular threshold had been met before it could decide to refer a complaint to the Tribunal. 7

2. The charges

11 Two sets of charges have been formulated and laid before the Tribunal. One set, containing 13 charges, was prepared following investigations by the Auckland Lawyers Standards Committee (the s 356 Committee) 8 and the Auckland Lawyers Standards Committee (No 1) (the No 1 Committee):

• (a) In Charge 1, the s 356 Committee alleges that Mr Orlov misconducted himself in his professional capacity when swearing an affidavit in a proceeding in the District Court at Whangarei, on 27 September 2007.

• (b) In Charge 2, the No 1 Committee alleges that Mr Orlov misconducted himself in his professional capacity by failing to comply with a lawful requirement, namely the provision of his file to the s 356 Committee in the course of its investigations into the subject matter of Charge 1. This is alleged to have occurred on 31 March 2009, the date by which the file had been required.

• (c) In Charge 3, the No 1 Committee alleges that Mr Orlov misconducted himself in his professional capacity by failing to follow instructions to file a defence for a client in District Court proceedings in a timely fashion. This allegedly occurred between 22 May 2007 and 21 February 2008.

• (d) In Charge 4, the No 1 Committee alleges that Mr Orlov misconducted himself when providing regulated services between 1...