Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeFrench J
Judgment Date21 Dec 2016
Neutral Citation[2016] NZCA 633
Docket NumberCA555/2014

[2016] NZCA 633

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

French, Miller and Winkelmann JJ

CA555/2014

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

Appellant in person

No appearance for First Respondent

W C Pyke for Second Respondent

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.

Held: There were grounds of appeal that, correctly analysed, were arguments the Tribunal and the HC were wrong on the evidence to find the statements O made about Harrison J were without sufficient foundation. That was plainly a merits argument, not a judicial review argument.

Other grounds of appeal were arguably judicial review points but they overlapped with arguments O raised in the statutory appeal process. While the appeal process did not of itself preclude judicial review proceedings, it was well established that arguing a ground of review that was the same or similar to a point being taken in a coordinate general appeal might result in the Court refusing relief.

There had been adequate time to obtain the evidence to establish a foundation for O's comments. And even if this was wrong O could have applied for an adjournment. Further, in so far as the proposed evidence would apparently have included expert testimony critiquing the reasonableness of Harrison J's decisions, it would be plainly inadmissible as not substantially helpful. Court decisions spoke for themselves.

The submission that late filing of evidence was a breach of natural justice was rightly rejected by the HC. The two volumes consisted of files from cases in which O as counsel had clashed with Harrison J. None of this was new to O. Further, there was no obligation on the Standards Committee to detail in advance how they intended to use the documents in the hearing.

The complaint in respect of the ADLS file was not tenable. O had himself exhibited documents from the file in his own affidavit and had cross-examined a prosecution witness about the file. O declined to show the witness what documents he was referring to. The file had been discovered in separate proceedings involving O and the Law Society and Auckland Standards Committees. O was aware of the existence and content of the opinion that had been omitted and he had the opportunity to put it to the witness.

The fact a QC advised a complaints committee there was insufficient evidence to prosecute for incompetence did not amount to sufficient foundation for the intemperate comments made by O against Harrison J. In all the circumstances, O was not prejudiced.

The issue relating to the no case to answer application was entirely moot and for that reason the HC deliberately limited itself to observing that a disciplinary hearing was not a criminal trial and that practitioners were expected to fully participate and engage with the substance of the charge. A no case to answer application should be reserved for cases akin to a strike out.

It would have been entirely proper for O to raise disparity of treatment issues at the penalty hearing by reference to the Tribunal's published decisions. But his contention went well beyond that into the realm of prosecutorial discretion and thus outside the proper scope of the Tribunal's inquiry, namely an inquiry into O's conduct.

O's contention that the Tribunal was biased was rejected. There were some robust exchanges between O and members of the Tribunal. However, there was no bias or open hostility to O. The comments showed a measure of frustration and at times understandable exasperation with the inappropriate way O was conducting the hearing.

The fact the Tribunal was found to have erred in its penalty decision and breached the rules of natural justice could not of itself be evidence of bias. The record did not support O's extravagant claims of a “systemic denial of natural justice”.

O's contention that without the judgments there was no evidence to support the charges was rejected. Judgments were admissible in Tribunal proceedings to assist the Tribunal to deal with matters before it. This argument was without merit.

The HC expressly acknowledged O had complaints about the summaries of the cases and considered them one-sided but was satisfied the summaries adequately reviewed the background. Further, none of the alleged errors identified by O could fall within the category of an objectively verifiable mistake of fact justifying judicial review.

O's submissions as to the evidential and legal foundation for the complaints comprised O's highly subjective critique of Harrison J's judgments. They did not undermine the HC finding that his more extreme allegations against Harrison J were without foundation.

The HC did not formally consider O's claim for a declaration that the prosecution of a lawyer in his circumstances breached the New Zealand Bill of Rights Act 1990 and New Zealand's obligations under the International Covenant of Civil and Political Rights. However, while there was no express refusal of declaratory relief, it was plain from the findings that relief was not and could not be granted.

The HC fairly heard and determined O's grounds of review. It was not required to address every single point raised within those grounds. It did, however, address the key complaints and provide a substantive response to the essence of those complaints. The fact it did not did so by reference to O's pleadings reflected the quality of those pleadings. It was not a sustainable ground of appeal.

Appeal dismissed.

JUDGMENT OF THE COURT

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)

Introduction
1

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.

2

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

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

4

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

5

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.

6

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.

7

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.

Arguments outside the proper scope of this appeal
8

Mr Orlov's approach to this appeal can fairly be described as disorganised....

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT