Orlov v The Nz Lawyers and Conveyancers Disciplinary Tribunal

• Jurisdiction: New Zealand
• Judge: Simon France J
• Judgment Date: 21 August 2014
• Neutral Citation: [2014] NZHC 1987
• Docket Number: CIV 2013-404-5088
• Court: High Court
• Date: 21 August 2014

Under the Judicature Amendment Act 1972 and Declaratory Judgments Act 1908

In the Matter of an application for judicial review of decisions of the Lawyers and Conveyancers Disciplinary Tribunal

BETWEEN

Evgeny Orlov

Applicant

and

The New Zealand Lawyers and Conveyancers Disciplinary Tribunal

First Respondent

and

The National Standards Committee No 1

Second Respondent

and

[2014] NZHC 1987

Court:

Ronald Young and Simon France JJ

CIV 2013-404-5088

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for judicial review of decisions of the first respondent which struck the appellant from the roll of barristers and solicitors — appeal against conviction on charges brought under s7(1)(a)(i) of the Lawyers and Conveyancers Act 2006 (“LCA”) (misconduct defined — conduct which would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable) — second respondent laid five charges of professional misconduct stemming from statements the appellant made about a judge alleging racially motivated bias — whether the first respondent'decision to amend the charges two months before the hearing and a late tendering of evidence by the second respondent had prejudiced the appellant — whether that evidence (documents from the court files of cases between the appellant and the judge) was admissible — whether absolute privilege attached to charged statements — whether appellant protected by freedom of speech-meaning of “unconnected with the provision of regulated services” under s7 LCA when distinguishing between professional and personal misconduct — whether the penalty of striking off was too severe.

Appearances:

Appellant/Applicant in Person

W C Pyke for Respondents

R J Hollyman as Amicus Curiae

• A The five operative charges are all amended to be charges alleging a breach of s 7(1)(a)(i) of the Lawyers and Conveyancers Act 2006.

• B Mr Orlov'appeal against conviction on these charges is dismissed.

• C Mr Orlov'penalty appeal is allowed. The order striking him from the roll of barristers and solicitors is quashed. No alternative sanction is imposed.

JUDGMENT OF THE COURT

Reasons of the Court

(Given by Simon France J)

Table of Contents

	Paragraph No.
I Introduction	[1]
A Background	[3]
B Further Context	[21]
II Conviction Appeal and Judicial Review	[22]
A Issue One: Amendment of Charges	[22]
B Issue Two: Late Filing of Evidence	[37]
C Issue Three: No Case to Answer	[54]
D Issue Four: Absolute Privilege Attaching to Charged Statements	[70]
E Issue Five: The Admissibility of Judgments	[78]
F Issue Six: Freedom of Expression	[81]
G Issue Seven — The Appeals	[94]
1 The correct charges — the meaning of — unconnected with the provision of regulated services”	[96]
2 Is Mr Orlov responsible for the charged conduct?	[116]
3 The charges considered	[122]
a Letter to the Chief High Court Judge	[131]
b Originating application filed in High Court	[142]
c Application filed in Supreme Court	[147]
d Complaint to Human Rights Review Tribunal	[160]
e Complaint to Judicial Conduct Commissioner	[167]
H Issue Eight: Composition of the Disciplinary Tribunal and Bias	[176]
I Conclusion	[183]
III Sentence appeal	[184]
A Procedural Issues	[185]
B Reasons for Striking Off	[187]
C Our Analysis	[189]
IV Conclusion	[206]

I Introduction

1 Mr Orlov was a litigation lawyer based in Auckland. Five charges of professional misconduct were laid against him by the National Standards Committee of the New Zealand Law Society (“the Committee”). 1 All charges stem from statements he made about Harrison J, who was then a High Court Judge based in Auckland. Following a five day hearing before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“the Disciplinary Tribunal”), Mr Orlov was found guilty of misconduct. 2 It was held that he had made statements that were false or made without sufficient foundation, and that the nature of the statements meant he was not a fit and proper person to be a lawyer. Following a separate penalty hearing, Mr Orlov was struck off. 3

2 Mr Orlov has appealed both decisions, and has also filed judicial review proceedings. All matters have been heard together. 4 Mr Hollyman was appointed amicus, and we record our appreciation of his assistance.

A Background

3 By way of background, we observe there was clearly tension between Mr Orlov and Harrison J. It is plain from the record that Harrison J had concerns about Mr Orlov'approach and competency. The manifestations of these concerns (interspersed with Mr Orlov'responses) were:

• (a) On the first occasion of contact, Harrison J warned Mr Orlov that he considered him to be in contempt of court. Matters were stood down to allow Mr Orlov to obtain assistance from senior counsel who shortly after appeared on Mr Orlov'behalf. Matters were resolved.

• (b) On the second occasion, when declining an application by Mr Orlov for adjournment, Harrison J directed that his adjournment judgment be sent to the Professional Standards Director of the Auckland District Law Society. Then in the substantive judgment Harrison J put Mr Orlov on notice of a risk of a personal costs award.

• (c) Following this hearing, Harrison J wrote to the Auckland District Law Society requesting it to inquire into Mr Orlov'competency and qualifications.

• (d) There was a two year hiatus prior to any further contact. However, on this occasion Harrison J again directed that his substantive judgment, striking out judicial review proceedings, be referred to the Professional Standards Director of the Auckland District Law Society. His Honour adjourned the costs issue for consideration as to whether personal costs should be ordered against Mr Orlov and Mr Deliu (a lawyer associated with Mr Orlov).

• (e) It was at this point Mr Orlov wrote to the Chief High Court Judge requesting that he direct that Harrison J not be allocated to any case involving Mr Orlov or his firm. Justice Randerson declined. Comments made by Mr Orlov in this letter and an accompanying document were the subject of charges 1 and 2.

• (f) Mr Orlov and Mr Deliu then filed an originating application in the High Court seeking orders that the Registry not allocate any of their cases to Harrison J. Mr Orlov filed an affidavit in support. This application and the accompanying affidavit underlie charges 3 and 4.

• (g) Justice Harrison then made an award of personal costs against the two lawyers in relation to the case discussed at (d) above.

• (h) Mr Orlov and Mr Deliu filed an application in the Supreme Court for leave to appeal the costs award. The contents of this application are the basis of charge 5.

• (i) Mr Orlov around this time also made his complaint to the Judicial Conduct Commissioner. The statements made in that complaint underlie charges 7 and 8.

• (j) Next, a case of Mr Orlov' was called before Harrison J in a Chambers list. Justice Harrison directed the resulting judgment to be referred to the Professional Standards Director of both the Auckland District Law Society and the New Zealand Law Society.

• (k) Mr Orlov then made a complaint to the Human Rights Review Tribunal complaining of discrimination. The nature of the comments made there underlie charge 6.

4 The complaints made by Mr Orlov largely follow a similar pattern. Mr Orlov would identify in relation to each of the cases he had before Harrison J, the things he thought were wrong with what the Judge did. We refer to these as the primary facts (as alleged by Mr Orlov). There were two categories of primary fact 5 — first, descriptions of what is said to be improper conduct by Harrison J and second, the circumstances of the actual case. Mr Orlov at times described these circumstances in detail to illustrate what he regarded as bad decision-making by the Judge.

5 The primary facts having been set out (improper conduct and bad decisions), Mr Orlov then ventured opinions on why these things were occurring. Why did the Judge query his competence, ask about his qualifications, get angry at him, and make these poor decisions which caused harm to his clients? Mr Orlov'answers vary slightly but have a broad consistency. In his view the Judge was biased against him because the Judge did not like Mr Orlov, and did not like foreign lawyers. It is also said Harrison J discriminated against him because of his political beliefs, these seeming to be that Maori were disadvantaged and human rights were important. Mr

Orlov went further again and suggested that these prejudices impacted on the substantive decisions. He suggests, for example, that the bad decisions in one case are explicable by the fact that Mr Orlov'client was Russian as is Mr Orlov

6 The five charges laid by the Committee relate to five separate occasions on which Mr Orlov wrote complaints about Harrison J. These are the events described above in sub-paras (e), (f), (h), (i) and (k) of para [3].

7 The charges focus on the manner in which the complaints were expressed. Not content with identifying and objecting to conduct, Mr Orlov attributes both extreme characteristics (for example, maliciousness, vindictiveness and spitefulness) and ulterior motives to that conduct. Mr Orlov variously claims the Judge to be motivated by spite, by a desire to punish Mr Orlov, by a desire to ruin his career, and by dislike of Mr Orlov based either in prejudice against his political opinions (pro human rights, and believing Maori to be oppressed) or his ethnicity (Mr Orlov is of Russian origins, but came to New Zealand as a young boy). It is at times alleged Harrison J was racist against Maori, 6 is “a danger to the public” and that the discriminatory attacks on Mr Orlov are likely to increase in severity.

8 The five charges allege that Mr Orlov, by these...