Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal
| Jurisdiction | New Zealand |
| Judge | French J |
| Judgment Date | 21 December 2016 |
| Neutral Citation | [2016] NZCA 633 |
| Docket Number | CA555/2014 |
| Court | Court of Appeal |
| Date | 21 December 2016 |
[2016] NZCA 633
French, Miller and Winkelmann JJ
CA555/2014
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against the dismissal of a judicial review application — the applicant was a legal practitioner who was ordered to be struck off the roll of barristers and solicitors by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal after making remarks about a High Court (HC) Judge — the HC had upheld the conviction but allowed the appeal against penalty — it also had dismissed a judicial review application — the applicant alleged breaches of natural justice including late amendment of the charges, late filing of evidence, submission of evidence amounting to “ambush” and provision of “doctored” evidence in that an opinion from a QC that was favourable to him was not included among the evidence in a file that was submitted — the applicant also submitted that he should have been permitted to call evidence about derogatory statements made by other practitioners about judges, even though he calculated this would have resulted in the hearing lasting six months — whether the breach of natural justice in the process for amending the charges had prejudiced the applicant — whether there had been no case to answer because the respondent had only relied on court decisions and had no other evidence — whether there had been unfairness in the submission of the file of evidence without the QC's opinion and whether the HC had failed to address all of the applicant's grounds.
Appellant in person
No appearance for First Respondent
W C Pyke for Second Respondent
A The appeal is dismissed.
B The appellant is ordered to pay the second respondent costs for a standard appeal on a band A basis together with usual disbursements.
REASONS OF THE COURT
(Given by French J)
Mr Orlov was a legal practitioner. The New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found him guilty of five charges of professional misconduct 1 and ordered he be struck off the roll of barristers and solicitors. 2 The charges had been brought by the second respondent, the National Standards Committee No 1 of the New Zealand Law Society (the Standards Committee). All charges arose from statements Mr Orlov had made about Harrison J, which the Tribunal held were false or made without sufficient foundation.
Mr Orlov appealed the Tribunal's conviction and penalty decisions to the High Court, exercising his statutory right of appeal under s 253(1) of the Lawyers and Conveyancers Act 2006 (the Act). He also issued judicial review proceedings in the High Court. Both proceedings were heard at the same time by a full court of the High Court, comprised of Ronald Young and Simon France JJ. 3
The High Court dismissed Mr Orlov's application for judicial review and dismissed his appeal against conviction. However, it allowed his appeal against penalty, finding striking off was a disproportionate response in the circumstances of the case. 4 The Court did not consider it necessary to substitute an alternative penalty because of the length of time Mr Orlov had been subject to the striking off sanction. 5
Mr Orlov sought to appeal some aspects of the High Court decision under the statutory appeal provisions. An appeal to this Court under those provisions is limited to questions of law and leave must first be obtained. 6 Both the High Court and this Court have already considered and declined Mr Orlov's application for leave. 7
In addition to seeking leave to appeal under the Act, Mr Orlov also filed an appeal against the High Court decision in relation to the judicial review proceeding. That appeal is of right, 8 and is the subject of this judgment.
Finally in this introduction, we record two procedural matters. The first is that the Tribunal did not take an active part in the appeal, but appropriately abides the decision of the Court.
The second is that at the commencement of the hearing before us Mr Orlov applied for one of the panel — Winkelmann J — to recuse herself. The grounds of the application were that in her previous capacity as the Chief High Court Judge Winkelmann J had corresponded with the New Zealand Law Society in 2010 about the complaints made against Mr Orlov regarding Harrison J. Having viewed the complete set of correspondence, we are satisfied the letters were purely administrative and could not on any reasonable view warrant recusal. We therefore declined the application.
Mr Orlov's approach to this appeal can fairly be described as disorganised. His written submissions were not cross-referenced to his notice of appeal. They also contained 127 pages of the submissions he had made in the High Court relating to the appeal under the Act as well as the judicial review proceeding. He advanced a multiplicity of arguments, several of which were outside the proper scope of the appeal.
First, there were grounds of appeal that, correctly analysed, were arguments the Tribunal and the High Court were wrong on the evidence to find the statements Mr Orlov made about Harrison J were without sufficient foundation. That is plainly a merits argument and not a judicial review argument.
Second, there were other grounds of appeal that were arguably judicial review points but that overlapped with arguments Mr Orlov raised in the statutory appeal process. We acknowledge that the existence of a statutory appeal process does not of itself preclude judicial review proceedings as a matter of jurisdiction. It is, however, well established that arguing a ground of review that is the same or similar to a point being taken in a coordinate general appeal may result in the Court refusing relief. 9
Mr Orlov complained in his notice of appeal that the High Court wrongfully merged the judicial review with the appeal. However, because of the way he presented his case, the High Court was faced with a large volume of unstructured evidence and argument that did not properly distinguish between the different proceedings. In order to marshal the issues in an orderly and coherent way, the Court identified Mr Orlov's essential complaints and endeavoured to address them in the context of the appeal or the application for review, as was appropriate. The right of appeal was of course by way of rehearing, which, as the Standards Committee points out, enabled the High Court to give its opinion on the merits while at the same time addressing process issues.
There is now the added factor that some of the arguments Mr Orlov advanced at the hearing before us have already been assessed by this Court as so lacking in merit that leave should not be granted to argue them. 10 No new material was put before us that would persuade us to depart from that assessment and it is not necessary for us to consider them any further.
The issues that fall into this latter category are:
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(a) Admissibility of judgments as evidence in disciplinary proceedings.
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(b) Whether the Standards Committee/Tribunal had jurisdiction to prosecute a lawyer for making complaints to the Judicial Conduct Commissioner and Human Rights Review Tribunal.
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(c) Whether complaints against judges are protected by absolute privilege.
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(d) The propriety and meaning of the “sufficient foundation” test.
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(e) Whether the High Court had power to amend the charges. 11
Having identified those grounds that are outside the proper scope of the appeal and that we have therefore excluded from consideration, we now turn to those grounds of appeal that are properly before us. These can be conveniently grouped in four categories.
Mr Orlov contended in the High Court and in this Court that, due to “numerous breaches of natural justice” by the Tribunal, both before the hearing and during it, he was in essence prevented from mounting an effective defence, resulting in an unfair hearing. In support of that central contention, Mr Orlov relied on the following matters.
The Tribunal hearing was scheduled for 2 September 2013. On 18 July 2013 the Standards Committee applied to amend the charges from “deliberately or recklessly making false and scandalous allegations [against Harrison J]” to “making allegations about [Harrison J] that were either false or were made without sufficient foundation”. Mr Orlov filed a notice of opposition to the application to amend.
On 6 August 2013 the Tribunal granted the amendment on the papers. 12 The High Court held the amended charges were correct and appropriate but the process adopted by the Tribunal was flawed, amounting to a breach of natural justice. 13 The amendments were made at a late stage and they were significant. They meant the Standards Committee no longer had to prove the statements were false and made recklessly. Mr Orlov should have been given an opportunity to be heard. However, the High Court went on to hold that notwithstanding the breach of natural justice Mr Orlov had not suffered any prejudice. 14 Accordingly, the Court was not prepared to grant any relief.
On appeal, Mr Orlov submitted that, having found a breach of natural justice, the High Court was obliged to grant him a remedy. We reject that submission, which is contrary to established law. In judicial review relief is always at the discretion of the Court and prejudice is a highly relevant factor to be taken into account in exercising that discretion. 15
Mr Orlov further argued that, even if the Court did have a discretion, it was wrong to find he had not suffered any prejudice. Mr...
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