Orlov v National Standards Committee 1 - [2013] NZHC 2502

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1025 CIV-2013-404-1512 [2013] NZHC 2502

BETWEEN
EVGENY ORLOV

Applicant

AND

THE NATIONAL STANDARDS COMMITTEE 1 AND THE AUCKLAND STANDARDS COMMITTEE 1

Respondents

Hearing:

On the papers

Appearances:

E Orlov in person

W Pyke for Respondents

Judgment:

25 September 2013

JUDGMENT OF KATZ J
(Costs)

Thisjudgment was delivered by me on 25 September 2013 at 11:00 am Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: New Zealand Law Society Copy to: E Orlov, Auckland
WC Pyke, Hamilton

ORLOV v THE NATIONAL STANDARDS COMMITTEE 1 AND THE AUCKLAND STANDARDS COMMITTEE 1 [2013] NZHC 2502 [25 September 2013]

Introduction

[1] Mr Evgeny Orlov is a barrister practising in Auckland. He is currently facing disciplinary proceedings brought by two Standards Committees established by the New Zealand Law Society (“Law Society”) under the Lawyers and Conveyancers Act 2006 (“Act”).

[2] Mr Orlov unsuccessfully applied to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”) to dismiss the charges against him, prior to the substantive hearing. Mr Orlov’s argument was broadly equivalent to a civil “no case to answer” submission or a discharge application under s 347 of the Crimes Act 1961 in criminal proceedings. Mr Orlov also requested that the Tribunal either give him a “sentence indication” or convene a settlement conference. The Tribunal declined to pursue either of these options. Finally, the Tribunal also declined an application by Mr Orlov to stay the disciplinary proceedings on the grounds of undue delay.

[3] Mr Orlov appealed to this Court against each of these decisions. The Standards Committees did not accept that a pre-hearing right of appeal existed in relation to such issues. Mr Orlov therefore filed judicial review proceedings, in addition to his appeal.

[4] Both Mr Orlov’s appeal and the judicial review proceedings in respect of the decisions referred to at [2] above were unsuccessful,[1] for the reasons set out in my Judgment dated 6 August 2013 (“Judgment”). In that Judgment I expressed a preliminary view that costs should be awarded to the Standards Committees on a category 2B basis, together with disbursements as fixed by the Registrar. I reserved leave to file memoranda if costs could not be agreed based on that indication. Costs have not been agreed and accordingly now fall for determination by the Court.

Submissions

[1] Orlov v The National Standards Committee 1 and the Auckland Standards Committee 1 [2013] NZHC 1955, 6 August 2013.

[5] The Standards Committees submitted that costs calculated on a category 2B basis are appropriate in relation to both the appeal proceeding (CIV-2013-404-1025) and the judicial review proceeding (CIV-2013-404-1512). However, in order to avoid duplication, the Standards Committees claimed costs for an appeal on a category 2B basis, with two additional items. The two additional items were for filing a statement of defence in the judicial review proceeding and additional matters required for the second case management conference. The costs claim has accordingly been adjusted to reflect the fact that the two proceedings…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Orlov v National Standards Committee 1 and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NZHC 2502
Decision Date: 25 September 2013

CaseChat Overview and Summary

In this matter, the applicant, Evgeny Orlov, a barrister practising in Auckland, sought to challenge several decisions made by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal in relation to disciplinary proceedings brought against him by the National Standards Committee and the Auckland Standards Committee, both established by the New Zealand Law Society. Mr Orlov sought to dismiss the charges against him, requested a "sentence indication" or a settlement conference, and applied for a stay of proceedings due to undue delay. The Tribunal dismissed all these applications, leading Mr Orlov to appeal these decisions and file judicial review proceedings. Both the appeal and the judicial review were unsuccessful, and now the issue before the court is the allocation of costs.

The legal issues before the court were whether Mr Orlov should be liable for costs and, if so, the appropriate amount. The court had to determine which party was the successful party, assess the complexity and significance of the proceedings, apply the correct daily recovery rate, and ensure the costs awarded did not exceed the actual costs incurred. The court also needed to consider Mr Orlov's argument that an award of costs would be inappropriate and penalise him for taking a rightful and arguable appeal.

The court found that Mr Orlov's appeal and judicial review were based on a misinterpretation of the Tribunal's decision. The Tribunal had not held that it lacked jurisdiction to strike out or stay the charges pre-trial; instead, it had declined to exercise its jurisdiction at a pre-hearing stage, which was a course open to it. Consequently, the court concluded there was no basis for Mr Orlov's opposition to the payment of costs. The court also noted that the respondents had incurred legal fees amounting to just over $15,000, inclusive of GST but excluding expenses and disbursements. After reviewing the respondents' costs claim, the court decided to reduce the time allocation for the preparation of written submissions and awarded costs of $12,734.90 in favour of the respondents.

In summary, the court found that Mr Orlov was not the successful party in the proceedings and awarded costs in favour of the respondents, in the sum of $12,734.90. The court's decision was based on the fact that Mr Orlov's appeal and judicial review were unsuccessful, and the respondents had incurred significant legal costs in defending the proceedings.

Orders