Orlov v Gates

[2012] NZHC 2687

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-2868 [2012] NZHC 2687

BETWEEN  EVGENY ORLOV Plaintiff

AND  D G GATES

CHRIS PATTERSON DAVID DUNSTAN

MR AND MRS JOHNSTON Non-Partys

Hearing:         (on the papers)

Counsel:         E Orlov, in person, Plaintiff

C T Patterson for non-parties (himself, Mr Dunstan and Mr Gittos) Judgment:  15 October 2012

JUDGMENT (NO. 9) OF HEATH J

This judgment was delivered by me on 15 October 2012 at 2.30pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Marsden Woods Inskip & Smith, PO Box 146, Whangarei
Counsel:
C T Patterson, PO Box 2886, Auckland

E Orlov, PO Box 8333 , Auckland

ORLOV V GATES HC AK CIV 2010-404-2868 [15 October 2012]

[1]      On 21 December 2010,[1] I determined a number of interlocutory applications, prior to the hearing of Mr Orlov’s application for judicial review of decisions made by a number of Standards Committees under the Lawyers and Conveyancers Act

2006.  One of the outstanding issues arising out of the 21 December 2010 judgment was a question of costs as between non-parties to the proceeding (Mr Dunstan, Mr Gittos and Mr Patterson) and Mr Orlov, on the latter’s unsuccessful application for non-party discovery.

[1] Orlov v New Zealand Law Society Auckland Branch HC Auckland CIV 2010-404-2868, 21

December 2012 (Judgment (No. 3).

[2]      I intended to defer resolution of the costs issue until, at least, the substantive proceeding was heard – lest the point be resurrected.  I had dismissed the application without  prejudice  to  the  possibility  that  a  further  one  might  be  made.[2]      The

substantive proceeding has now been resolved, with Mr Orlov successful in part.[3]

[2] Orlov v New Zealand Law Society Auckland Branch HC Auckland CIV 2010-404-2868, 21

December 2012 (Judgment (No. 3) at paras [21]–[27].

[3] Orlov v New Zealand Law Society Auckland Branch [2012] NZHC 2154, at para [24].

[3]      Both Mr Patterson, a practising lawyer, and Mr Orlov have filed written submissions on the costs application.  I indicated that the application would be dealt with on the papers.[4]  This I now do.

[4] Orlov v New Zealand Law Society Auckland Branch HC Auckland CIV 2010-404-2868, 21

December 2012 (Judgment (No. 3), at para [27].

[4]      The non-party discovery issue arose out of a proceeding in Whangarei, Axon Projects Ltd v Dunstan.[5]   This was one of the cases in which Mr Orlov was involved that gave rise to a complaint with which a Standards Committee dealt.   In my judgment of 21 December 2010, I said:

[5] Axon Projects Ltd v Dunstan HC Whangarei CIV 2008-488-380 (24 October 2008).

[22]      ..., what Mr Orlov seeks here is information from the other side of the transaction.  As I explained to Mr Orlov in the course of the hearing, information held by those from whom he seeks non-party discovery is not likely to be relevant to whether the Society and its Standards’ Committees had sufficient information on which to base a decision to prosecute; or, whether that decision was made in good or bad faith.

[23]      Once evidence for the Society is filed, Mr Orlov will be able to make submissions on what, if any, further information the Society could

have obtained and whether what it had was sufficient to make the decisions he seeks to impugn.

[24]      In those circumstances, I see no need for non-party discovery at this stage and dismiss the application, without prejudice to a further application being made later if circumstances change.

[5]      Mr Patterson, who was acting for Mr Dunstan on instructions from Mr Gittos, rendered a fee note to Mr Dunstan in respect of the non-party discovery issue on 21

December 2010.  That fee was $5,048.22.  The following day Mr Gittos rendered a fee note for $517.50.  Thus, the total amount billed for which Mr Dunstan is liable is

$5,565.72. An order for indemnity costs is sought for that sum.

[6]      Costs as between parties (on the one hand) and a party and non-party (on the other) are treated  differently by the  High  Court  Rules.   For example,  in  Clear Communications Ltd v Telecom Corporation of New Zealand Ltd,[6]  McGechan J observed that there are two distinct costs issues in applications involving non-parties: the costs of the application and the costs of compliance with an order for discovery.

[6] Clear Communications Ltd v Telecom Corporation of New Zealand (1994) 8 PRNZ 200 (HC) at

201–202.

[7]      In  Australian  Mutual  Provident  Society  v  Architectural  Windows  Ltd,[7]

Chilwell J made it clear that, while the question of costs was in the discretion of the Court, the underlying intention of the rules was that there should be reimbursement for all expenses, not only solicitor and client costs, incurred by a non-party.   It is because a non-party has no interest in the litigation that provides a basis for treating that person differently from a party to the proceeding.

[7] Australian Mutual Provident Society v Architectural Windows Ltd [1986] 2 NZLR 190 (HC) at

203.

[8]      In this case, when I gave my judgment of 21 December 2010, I had thought that costs had been incurred by Mr Patterson personally.   He was also listed as a person against whom non-party discovery was sought.   However, having since reviewed  the  Court  of Appeal’s  decision  in  Brownie  Wills  v  Shrimpton,[8]   I  am satisfied that the Court, in any event, would have had jurisdiction to award costs in

favour of a practising lawyer acting on his own behalf on an application such as this.

[8] Brownie Wills v Shrimpton [1998] 2 NZLR 320 (CA) at 327 (Gault and Blanchard JJ, with whom Tipping J agreed on this point).

[9]      In my view, the interests of all parties are best served by making a global order for costs, and disbursements in the sum of $5000.  That shall be paid by Mr Orlov to Mr Dunstan.  In my view, that amounts to a reasonable contribution to his costs, in circumstances where the application for non-party discovery was opposed and  dismissed  as  being  premature;  especially  when  the  application  was  never

renewed.

P R Heath J

Delivered at 2.30pm on 15 October 2012