Orlov v National Standards Committee 1 - [2013] NZHC 1955

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1025

CIV-2013-404-1512 [2013] NZHC 1955

BETWEEN EVGENY ORLOV Appellant

ANDTHE NATIONAL STANDARDS COMMITTEE 1 AND THE AUCKLAND STANDARDS COMMITEE 1
Respondents

Hearing: 26 June 2013

Appearances:

W Pyke for Applicants
E Orlov in person

Judgment:

6 August 2013

JUDGMENT OF KATZ J

This judgment was delivered by me on 6 August 2013 at 10:00 am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
New Zealand Law Society, Wellington

Copy to:
WC Pyke, Hamilton
E Orlov, Auckland

ORLOV v THE NATIONAL STANDARDS COMMITTEE 1 AND THE AUCKLAND STANDARDS COMMITEE 1 [2013] NZHC 1955 [6 August 2013]

Introduction

[1] Mr Evgeny Orlov is a barrister practising in Auckland. He is currently facing disciplinary proceedings brought by Standards Committees established by the New Zealand Law Society (“Law Society”) under the Lawyers and Conveyancers Act 2006 (“Act”). A substantive hearing of some of the charges against him is scheduled to take place before the Lawyers and Conveyancers Disciplinary Tribunal (“Tribunal”) in September 2013.

[2] Mr Orlov believes that there is insufficient evidence to justify the charges against him. He therefore applied to the Tribunal to dismiss the charges, 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.1 Mr Orlov’s dismissal application was unsuccessful, for reasons I discuss further below.

[3] Mr Orlov also requested the Tribunal to either give him a “sentence indication” or to convene a settlement conference. The Tribunal declined to do so.

[4] Finally, the Tribunal also declined an application by Mr Orlov to stay the proceedings on the grounds of undue delay.

[5] Mr Orlov appeals against each of these decisions. The Standards Committees do not accept that a right of appeal exists in relation to a pre-hearing interlocutory decision not to dismiss charges.2 Mr Orlov therefore filed judicial review proceedings in addition to his appeal. In light of this, the Standards Committees did not take any issue with the jurisdiction of this Court to address the various issues
raised by Mr Orlov.

1 Hall v Wellington Standards Committee (No 2) [2013] NZHC 798 per Woodhouse J.
2 Their argument was essentially that s 253(1) provides a right of appeal to the High Court only against a decision made by the Tribunal under Part 7 of the Act. The Standards Committees argue, however, that the Tribunal does not have the power under Part 7 to dismiss charges pre- hearing. Accordingly their position is that a decision not to dismiss charges pre-hearing cannot be a decision made under Part 7 of the Act. It is therefore not appealable.

[6] The outcome of this appeal/review turns on the following key issues:

(a) Does the Tribunal have either statutory jurisdiction or inherent power to strike out or otherwise dismiss charges on the basis of “insufficiency of evidence,” at a pre-hearing stage?

(b)If so, did the Tribunal err…

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.

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Details

Case: [2013] NZHC 1955
Decision Date: 6 August 2013

CaseChat Overview and Summary

In this case, Mr. Evgeny Orlov, a barrister practising in Auckland, appealed against various decisions made by the Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) in disciplinary proceedings brought against him by the National Standards Committee 1 and the Auckland Standards Committee 1 (collectively referred to as the "Standards Committees"). The Tribunal declined to dismiss the charges against Mr. Orlov on the grounds of "insufficiency of evidence," to provide a "sentence indication," to convene a settlement conference, and to stay the proceedings on the grounds of undue delay. The High Court was asked to determine whether the Tribunal had the statutory jurisdiction or inherent power to make these decisions and, if so, whether the Tribunal had erred in the exercise of those powers.

The Court found that the Tribunal had the statutory power to consider an application for dismissal of charges on a "no case to answer" basis pre-hearing, but it was not required to do so. The Court concluded that the Tribunal had not erred in declining to consider Mr. Orlov's dismissal application, as it was not appropriate to hear such an application prior to the substantive hearing in this case. The Court also found that the Tribunal had no statutory jurisdiction or inherent power to give a "sentence indication" or to convene a settlement conference. Finally, the Court held that the Tribunal did not err in declining to grant a stay of the proceedings on the grounds of undue delay, as the Tribunal was the body best placed to assess the reasons for the delays and had concluded that Mr. Orlov himself bore a large part of the responsibility for the delays.

In light of these findings, the Court dismissed Mr. Orlov's appeal and his application for judicial review. The Court indicated that costs should be awarded to the Standards Committees on a category 2B basis, along with disbursements to be fixed by the Registrar.

Orders