Orlov v National Standards Committee No 1
[2014] NZCA 242
•13 June 2014 at 2.30 pm
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA127/2014 [2014] NZCA 242 |
| BETWEEN | EVGENY ORLOV |
| AND | THE NATIONAL STANDARDS COMMITTEE NO 1 |
| Hearing: | 27 May 2014 |
Court: | Ellen France, French and Miller JJ |
Counsel: | Appellant in person |
Judgment: | 13 June 2014 at 2.30 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BCosts are reserved.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellen France J)
Table of Contents
Para No
Introduction [1]
Background [4]
The disciplinary process[5]
The Tribunal’s decision [10]
The High Court decision [13]
Challenge to the decision to debar Mr Deliu [16]
The applicable law [17]
The contents of the affidavit [23]
Other factors [30]
Conclusion [38]
The Judge’s decision to recuse himself [39]
Submissions on the recusal decision [40]
Our analysis[43]
Appointment of counsel assisting the Court [48]
Other matters [54]
Result and costs [61]
Introduction
Mr Orlov was in practice as a lawyer until late 2013 when he was struck off the roll of barristers and solicitors.[1] Mr Orlov appealed to the High Court against the decision to strike him off. That appeal was to be heard in April of this year and Mr Orlov had instructed a barrister, Mr Deliu, to appear for him on the appeal. Mr Deliu also faces disciplinary charges some of which arise from the factual matters giving rise to the charges against Mr Orlov.
[1]National Standards Committee v Orlov [2013] NZLCDT 52.
The respondent, the National Standards Committee No 1, applied to have Mr Deliu debarred from appearing for Mr Orlov on the appeal in the High Court. Fogarty J granted that application and directed the appointment of counsel assisting.[2] Mr Orlov has appealed to this Court against the decision to debar Mr Deliu as his counsel.[3] He also challenges the Judge’s decision to recuse himself from hearing Mr Orlov’s appeal proper and the appointment of counsel assisting in that appeal.
[2]Orlov v National Standards Committee No 1 [2014] NZHC 257 [High Court judgment]. There is a related judicial review proceeding and Fogarty J subsequently debarred Mr Deliu from acting in that proceeding: Orlov v National Standards Committee No 1 [2014] NZHC 487.
[3]We granted Mr Orlov’s request to have the assistance of Mr Deliu, on an informal basis, during the course of the hearing before us.
The present appeal to this Court raises the following issues:
(a)Was the Judge correct to debar Mr Deliu?
(b)What is the impact of the Judge’s decision to recuse himself from hearing the appeal against strike-off?
(c)Was the process adopted for the appointment of counsel assisting flawed?
Background
To put the issues in context it is helpful, first, to briefly explain the charges faced by Mr Orlov and how they were dealt with by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). Secondly, we summarise Fogarty J’s decision to debar Mr Deliu from appearing as counsel.
The disciplinary process
The charges concern a complaint made to the New Zealand Law Society by the then Chief High Court Judge, Randerson J, in November 2008. The subject matter of the charges is summarised by the Tribunal in its decision on liability as follows:[4]
[4]National Standards Committee v Orlov [2013] NZLCDT 45. The charges and their history are summarised in a schedule set out at the end of this judgment. That schedule is taken from this Court’s earlier judgment in Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562.
[29] Charge 1 relates to a letter sent by Mr Orlov to the Chief High Court Judge, Randerson J, in which he makes a number of serious allegations against His Honour Justice Harrison (“the Judge”). His complaints relate to comments made by the Judge in his conduct towards the practitioner in a series of proceedings in which Mr Orlov was the instructing solicitor, or appearing as Counsel, or attending at the request of the Court. This charge alleges misconduct unconnected to the provisions of regulated services.
[30] Charge 2 is an alternative charge to Charge 1, based on the same facts, but alleged misconduct occurring at the time of providing regulated services.
[31] Charge 3 concerns an Originating Application filed by Mr Orlov’s chambers (“Equity Law”) and citing Mr Orlov as First Applicant and one Frank Deliu a lawyer in the same chambers as Second Applicant. The Application was filed with the High Court at Auckland … seeking orders directing that the High Court Registry not allocate cases on matters involving the Applicants to the Judge. It is intituled as an “application for permanent judicial recusal”. [Later, the applicants discontinued these proceedings and lodged a letter of apology with the Court.]
…
[33] It is the contents of the Originating Application which give rise to the charge. Again it includes a number of serious allegations amounting to judicial misconduct by the Judge.
[34] This charge is brought … as misconduct occurring in the course of providing regulated services.
[35] Charge 4 is an alternative to Charge 3. It is based on the same facts but alleges misconduct unconnected with the provision of regulated services.
[36] Charge 5 relates to an Application filed with the Supreme Court for Special Leave to Appeal from a decision of the Judge in which he ordered Messrs Orlov and Deliu as Counsel to personally pay the costs of Counsel for the Children in that case on a “wasted costs” basis. The Application also challenged the refusal of the Judge to recuse himself on that costs order. The Application as filed contained serious allegations against the Judge essentially amounting to judicial misconduct. It is signed by Mr Orlov’s clients in person but filed by Frank Deliu and Evgeny Orlov on their behalf. … This charge against the practitioner alleges misconduct occurring in the course of providing regulated services. …
[37] Charge 6 alleges misconduct in the making of claims and allegations against the Judge in similar vein to those made in the preceding charges, in a letter of claim to the Human Rights Review Tribunal. … Again this charge alleges misconduct unconnected with regulated services and no charge is laid in the alternative.
[38] Charge 7 alleges misconduct unconnected with regulated services in respect to a number of claims and allegations of judicial misconduct made by Mr Orlov concerning the Judge this time in a letter of complaint to the Judicial Conduct Commissioner.
[39] Charge 8 is laid in the alternative to Charge 7 and relies on the same facts to establish misconduct occurring when providing regulated services.
There were various procedural challenges made by Mr Orlov prior to the commencement of the hearing before the Tribunal. Because it is relevant to an issue we deal with later, we note only that Mr Orlov appealed unsuccessfully to this Court in relation to a judicial review proceeding he brought challenging the Standards Committee’s decision to put all of the charges to the Tribunal.[5] At Mr Orlov’s suggestion, the eight charges presently in issue were separated out from other charges and heard first.
[5]Orlov v New Zealand Law Society, above n 4.
Mr Orlov filed his evidence in relation to the eight charges shortly before the hearing. His evidence included an affidavit from Mr Deliu. We will return later to the contents of that affidavit. There is another affidavit from Mr Deliu that was before the Tribunal. The latter is a copy of an affidavit affirmed in 2008 in one of the High Court proceedings which formed a part of the complaint against Mr Orlov. We will focus on the first of these affidavits.
The Tribunal recorded in its liability decision that it heard first from Ms Ollivier who was described as the process witness for the Committee.[6] Ms Ollivier was extensively cross-examined by Mr Orlov. The Tribunal then dealt with a “No Case to Answer” submission from Mr Orlov.
[6]At [13]–[14].
After the Tribunal rejected his submission of no case to answer Mr Orlov, who was acting for himself, withdrew and refused to make himself available for cross-examination. Mr Orlov subsequently resiled from that withdrawal to the extent that he presented submissions in reply.
The Tribunal’s decision
The Tribunal, by a majority, found five of the eight charges proved. Two charges (number 2 and number 8) were dismissed because they were laid in the alternative. No finding was made in relation to charge number 4 because the conduct was covered by charge number 3.
Following a later penalty hearing, the Tribunal struck Mr Orlov off the roll of barristers and solicitors. Mr Orlov has appealed the Tribunal’s liability findings and penalty decision to the High Court.[7]
[7]Lawyers and Conveyancers Act 2006, s 253.
We turn now to the decision of Fogarty J in relation to representation by Mr Deliu.
The High Court decision
The Judge took the view that the rule preventing a lawyer who has been a witness in the proceeding from acting as counsel in that case was not sufficient basis on which to debar Mr Deliu.[8] Fogarty J reached that view because he accepted there was force in the submission that the Tribunal’s decision would have been the same whether or not Mr Deliu’s affidavits had been filed. The Judge also noted the possibility that, on appeal, the High Court might agree to conduct the appeal on the record but ignoring Mr Deliu’s affidavits. There is also the possibility, the Judge said, “that the Court might agree that Mr Deliu appear as counsel provided he does not in any way discuss those affidavits, or rely on them”.[9]
[8]At [17]–[18].
[9]At [17].
What caused the Judge to conclude that Mr Deliu should be debarred was, essentially, his concern that Mr Deliu could not be objective because he would be arguing his own case. Fogarty J said:[10]
… the fact that Mr Deliu is subject to a very similar set of charges arising out of overlapping sets of circumstances in respect of the same High Court Judge, which is the principal factor that needs to be balanced against depriving a party of his or her lawyer of choice.
[10]At [18].
The Judge weighed up that concern against the right of Mr Orlov, who was “facing the loss of his status and income” to have the lawyer of his choice.[11] The Judge nonetheless concluded that the order to debar Mr Deliu should be made. Fogarty J said he was sure that counsel would be available to represent Mr Orlov who would “recognise the public importance of the bar ensuring that all persons are properly represented, particularly in cases where their livelihood is at stake”.[12]
Challenge to the decision to debar Mr Deliu
[11]At [21].
[12]At [23].
We first discuss the applicable legal principles.
The applicable law
The relevant principles have been summarised recently by this Court in Accent Management Ltd v Commissioner of Inland Revenue.[13] O’Regan P delivering the judgment of the Court stated:[14]
[32] The Court has jurisdiction to debar counsel or solicitors from acting where that is necessary in order for justice to be done or to be seen to be done. Removal will usually be ordered where counsel will not be able to comply with his or her duties to the Court: where there is a conflict of interest, or where there is a real risk that a client will not be represented with objectivity. The threshold for removal is a high one, requiring something extraordinary. The Court should guard against allowing removal applications to be used as a tactical weapon to disadvantage the opposing party.
[13]Accent Management Ltd v Commissioner of Inland Revenue [2013] NZCA 155, [2013] 3 NZLR 374.
[14]Footnotes omitted.
The Court referred in this context to Black v Taylor and other authorities.[15] In Black v Taylor, Richardson J noted the importance of the right to choice of one’s counsel but made the point that this is not an absolute value.[16]
[15]Black v Taylor [1993] 3 NZLR 403 (CA); Clear Communications Ltd v Telecom Corp of New Zealand Ltd (1999) 14 PRNZ 477 (HC); Beggs v Attorney-General [2006] 2 NZLR 129 (HC); and Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 (HC). This Court in Fava v Aral Property Holdings Ltd endorsed various points made by Fisher J in Clear Communications: Fava v Aral Property Holdings Ltd [2012] NZCA 585 at [34].
[16]At 409; see also Clark v Registrar of the Manukau District Court [2012] NZCA 193, (2012) 9 HRNZ 498 at [93].
The authorities make it clear that there is jurisdiction to remove counsel in a case in which he or she has sworn an affidavit on a contentious aspect or intends to give evidence.[17] The underlying concern about the duality of roles is the impact on independence and objectivity.[18] On this aspect, in Vector Gas Ltd v Bay of Plenty Energy Ltd, Wilson J observed:[19]
[147] Whatever the court or tribunal in which they are appearing, it is undesirable for practitioners to appear as counsel in litigation where they have been personally involved in the matters which are being litigated. In that situation, counsel are at risk of acting as witnesses and of losing objectivity.
[148] These dangers have long been recognised. In 1940, Myers CJ stated clearly in Hutchinson v Davis that “a practitioner cannot be allowed to act in the dual capacities of counsel and witness”. Northcroft and Blair JJ agreed.
[17]Hutchinson v Davis [1940] NZLR 490 (CA) at 506; R v Lui [1989] 1 NZLR 496 (CA) at 500; and see the discussion in Beggs v Attorney-General, above n 15, at [21]–[30] which includes a description of the overseas authorities; and Douglas White “Rule 13.5.2 – independence in litigation” (2009) 726 Lawtalk 12.
[18]See, for example, the application of these principles in Pioneer Insurance Co Ltd v Anderson (2008) 19 PRNZ 45 (HC); Greenmount Manufacturing Ltd v Southbourne Investments Ltd (2008) 19 PRNZ 58 (HC); rev’d Greenmount Manufacturing Ltd v Southbourne Investments Ltd [Review] (2008) 19 PRNZ 84 (HC) on the facts but with explicit agreement on the applicable principles: at [3]; Baker v Waimakuku Whanau Trust Board Inc HC Napier CIV-2010-441-581, 13 May 2011 at [24]–[33]; and HMI Technologies Ltd v Signopsys Electronic Signs Ltd HC Auckland CIV-2009-404-1520, 10 July 2009.
[19]Vector Gas Ltd v Bay of Plenty Energy Ltd [2010] NZSC 5, [2010] 2 NZLR 44 (footnote omitted); see also at [51] per Tipping J and [99] per McGrath J where each Judge agreed with Wilson J’s observations on this point.
Assistance as to the relevant policy considerations underpinning these principles can be found in the Lawyers and Conveyancers Act 2006 and in the associated Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008.[20] Under s 107(1) of the Act, the Rules are binding on all lawyers and former lawyers. Section 4(b) of the Act states that every lawyer providing regulated services must in the course of practice comply with a number of fundamental obligations including:
(b)the obligation to be independent in providing regulated services to his or her clients:
[20]Accent Management Ltd, above n 13, at [33]; Beggs v Attorney-General, above n 15, at [18].
Rule 13.5 of the Rules expresses the rule that a lawyer engaged in litigation for a client must maintain his or her independence at all times. There are a number of aspects to this rule. First, r 13.5.1 provides that a lawyer must not act in a proceeding “if the lawyer may be required to give evidence of a contentious nature” in person or by affidavit in the matter. Further, r 13.5.2 requires the lawyer to inform the court and, unless the court directs otherwise, cease acting in the situation where it subsequently becomes apparent that the lawyer or a member of the lawyer’s practice is to give evidence of a contentious nature. Further, a lawyer must not act in a proceeding if the conduct or advice of that lawyer or of another member of the lawyer’s practice is in issue in the matter before the court.[21] Finally, a lawyer must not make submissions or express views to a court “on any material evidence or material issue in a case in terms that convey or appear to convey the lawyer’s personal opinion on the merits of that evidence or issue”.[22]
[21]Rule 13.5.3. This rule does not apply where the lawyer is acting for him or herself or for the member of the practice whose actions are in issue.
[22]Rule 13.5.4.
There is no real dispute about these principles. Rather, the issue is whether applying those principles to Mr Deliu’s affidavit is a basis for debarring him from acting in this case. In this respect, we record that the respondent filed a notice to support the judgment on other grounds, namely, that Mr Deliu was debarred from appearing for Mr Orlov because of the affidavit he filed in the Tribunal.
The contents of the affidavit
Mr Deliu filed the affidavit himself. He explains the basis on which he was making the affidavit in this way, namely, that Mr Orlov had asked him to prepare an affidavit in relation to the charges Mr Orlov “faces from having allegedly said naughty words about [Harrison J]”. Mr Deliu explained that he was willing to file this affidavit but he was currently facing charges in the Tribunal “for having allegedly said naughty things about Justice Harrison and his brethren [Randerson J]” so he was concerned that giving honest evidence about the Judges might lead to further investigation and/or prosecution of him. Mr Deliu went on to say that Mr Orlov had said he would subpoena Mr Deliu and so, he explains, “I give this affidavit on the basis that either voluntarily or under compulsion I will have to tell the Tribunal about these matters”. Mr Deliu said that he had been provided with a copy of the charges laid in relation to Mr Orlov.
The substantive part of the affidavit commences with a statement that Mr Deliu did not believe Mr Orlov had “deliberately or recklessly” made false and scandalous allegations against Harrison J in the August 2008 letter sent to Randerson J. The affidavit then discusses the various charges in some detail.
As we read it, the affidavit is advanced as a factual response to each of the eight charges faced by Mr Orlov. The affidavit comprises a commentary of what is presumably intended to be seen as an alternative and correct view of the events that occurred by contrast to the view of the facts advanced by the Standards Committee. For example, Mr Deliu records that in relation to one appearance before Harrison J in the High Court,[23] Mr Orlov told Mr Deliu that Harrison J asked Mr Orlov what legal qualifications he had. Mr Deliu says that, in 2012, he undertook an inspection in the High Court of some of Mr Orlov’s files. He says that, “sure enough”, he came across:
… paperwork that evinced that the [Auckland District Law Society] had investigated Mr Orlov extensively, I understand including the issue of his qualifications, on the instigation of Justice Harrison. Mr Orlov was completely exonerated, so I think it would be fair to say that he was wrongly accused [by Harrison J].
[23]In one of the cases which is part of the background to the letter of complaint from Randerson J.
We accept, as Mr Orlov submits, that there are aspects of the affidavit that could have been advanced by way of submission, for example, parts of the affidavit are a recitation of the chronology of events as reported to Mr Deliu by Mr Orlov. But, on a reading of the affidavit as a whole, that is not the primary focus. That the affidavit is primarily factual not submission is supported by Mr Deliu’s observation that he did not think that “this evidence is [otherwise] before the Tribunal”. Further, by way of illustration, in terms of the third and fourth charges relating to the originating application, Mr Deliu said this:
a.the originating application was one that sought recusal. As far as I know, it is a legal application that is sanctioned by, inter alia, the Supreme Court such as in the seminal Saxmere Company Ltd v Wool Board Disestablishment Company Ltd decisions. I have above not outlined all of the attacks which Mr Orlov and I have been subjected to from Justice Harrison, there were other instances such as in the Hung and at least one other case that I am aware of where Mr Orlov was attacked by Justice Harrison. …
b.I thought it perfectly appropriate to try and actually distance the three of us to avoid these unseemly conflicts. So, if anything, I thought at the time that we were trying to calm the situation to avoid the administration of justice from being brought into disrepute.
The affidavit also contains a fair amount of material about Mr Deliu’s own case. Some of that advances the proposition that the two men were wrongly linked together by Harrison J. For example, in relation to the first and second charges Mr Deliu said that Harrison J:
[F]ailed to distinguish between my and Mr Orlov’s actions, as if we were just one entity when in fact we had played very different roles in the case, which I remember thinking at the time that his Honour did not even bother going through the file to discern between us.
Further, Mr Deliu affirmed that:
Back in 2008-09 [I] decided that there was little realistic hope of justice domestically and that I would inevitably be disbarred for daring to stand up to Justice Harrison for having attacked me so I decided I would spend whatever time I had left in New Zealand creating as much of a paper trail as I could to show the United Nations Human Rights Committee that I had been targeted for persecution by Justice Harrison so that this country’s justice system would hopefully be shamed internationally … .
Accordingly, we do not accept Mr Orlov’s submission that the affidavit is one of support and not contentious. Rather, on its face, the affidavit is of the sort that would debar counsel from acting in an appeal from the Tribunal’s decision. As Mr Orlov ultimately accepted, it is no answer to differentiate between appearance on an appeal from appearance in the initial proceeding.
Other factors
We have considered, first, whether the position should be different here because the Tribunal said it did not give much weight to the affidavit. In particular, the Tribunal said:[24]
[20] Some further comment is required on the evidence from Mr Orlov. Dr F. Deliu provided an affidavit in support of Mr Orlov, somewhat unusually, this was filed by him directly, rather than by Mr Orlov. He was not made available for cross-examination. His affidavit is largely a hearsay account of what he has been told by Mr Orlov of the latter’s interactions with Harrison J. It would seem that he was not present on these occasions. The remainder of the affidavit is irrelevant in that it does not relate to the charges before us, but refers to Dr Deliu’s own experiences, in other situations. We place little if any weight on this affidavit.
[24]National Standards Committee v Orlov, above n 4.
We consider the position is that, although not of importance in the Tribunal, the affidavit may be of relevance on the appeal. We say that primarily because the grounds of appeal filed by Mr Orlov potentially engage the affidavit. We refer in particular to, first, Mr Orlov’s challenge to the Tribunal’s decision based on the acceptance by the Tribunal of the “prosecution summary of interactions with the judge without seeking evidence and support for such”. That is a reference to the facts underlying the charges. Mr Deliu’s affidavit is, as we have noted, a commentary on those factual matters. Secondly, Mr Orlov wishes to argue that the Tribunal erred in law and in fact in its finding that “the originating application seeking to avoid judicial conflict could be seen as disgraceful in the eyes of the legal profession”. As we have discussed above, Mr Deliu explains in some detail in his affidavit why it was seen as necessary to proceed by way of originating application.
It also needs to be remembered that the matter proceeds in the High Court by way of rehearing[25] so the High Court may or may not take a different view on the weight to be attached to the affidavit. In that context, we note Mr Pyke’s submission is that the respondent will argue in the High Court that Mr Deliu’s role in relation to Mr Orlov’s conduct encouraged and was interwoven with what occurred. That line of argument could mean that if Mr Deliu was also appearing in the High Court he might be put in a position of having to justify his conduct in that Court. Finally, we understand that Mr Orlov may seek to challenge the procedure adopted by the Tribunal, particularly, the decision to reject the no case to answer submission. We understand that may involve an argument that the evidence Mr Orlov filed in the Tribunal should not have been considered at all. That, too, may involve some consideration of the affidavit.
[25]Lawyers and Conveyancers Act, s 253(3)(a).
On the issue of Mr Deliu’s objectivity, Mr Orlov emphasises the importance of counsel of one’s choice and he relies on the recognition of the principles of natural justice in s 27 of the New Zealand Bill of Rights Act 1990. Mr Orlov also draws on the International Covenant on Civil and Political Rights.[26] Mr Orlov characterises his case as a political one and says he should be entitled to be represented by someone who will advance his case enthusiastically. Next, Mr Orlov makes the point that there may well be cases where an advocate has strong personal views which would not of themselves debar the lawyer from acting.
[26]International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
We accept the latter proposition and we attach weight to the importance to Mr Orlov of the case and his strong belief that he should be represented by counsel of his choice, as did Fogarty J. There are some classic illustrations of the approach to which Mr Orlov refers, for example, the lawyer who favours reform of cannabis or abortion laws is not automatically debarred from appearance to defend someone facing charges in relation to those laws. However, that is not the present case. In this case, the concern about objectivity has two distinct sources. The first source is the filing of the affidavit and the second is the fact that Mr Deliu is facing similar charges.
That last point leads us to consider Mr Orlov’s criticism of what he says is an absence of an evidential basis for the Judge’s conclusions that the charges faced by Mr Deliu are similar to those faced by Mr Orlov. Mr Orlov says there was no evidence as to the detail of the charges faced by Mr Deliu and how they would impact on his objectivity. As we understand it, the record of the Tribunal which is before the High Court does not detail the charges faced by Mr Deliu. However, there is some information as to the charges faced by Mr Deliu which is part of the public record.[27] It also seems clear that the hearing in the High Court proceeded on the basis that there were similarities in the charges and, certainly, that some at least of the charges faced by Mr Deliu arise out of the same or a similar factual situation. There is direct support for that approach in Mr Deliu’s affidavit. That affidavit confirmed, as we have indicated, that Mr Deliu was facing charges for having “allegedly said naughty things” about Harrison J. Further, Mr Deliu concludes his affidavit by referring to his potential loss of his licence, career, business and reputation for “simply saying what we [he and Mr Orlov] believe”.
[27]National Standard Committee v Deliu [2014] NZLCDT 24.
The final point we need to address is the practical effect of the decision to debar Mr Deliu on Mr Orlov’s case. As Richardson J observed in Black v Taylor, “considerations of delay, inconvenience and expense arising from a change in representation may be important in determining in particular cases whether the interests of justice truly demand disqualification”.[28]
[28]Black v Taylor, above n 15, at 412.
Mr Orlov submits that if Mr Deliu cannot appear for him he will be forced to represent himself. It is not at all clear that this will be the outcome. We make four points. First, Mr Orlov has said he is applying for legal aid. We do not know what the outcome of that exercise will be. Secondly, there is insufficient information before us to conclude that Mr Orlov will not be able to retain another counsel. Thirdly, Mr Orlov’s submission depends in part on his assessment of the complexities of his case. Whilst we accept the case raises some important issues, it is not unduly complex. The factual narrative is relatively confined. Finally, whether or not the current fixture (24–26 June 2014) should be maintained is a matter that can be considered in the High Court.
Conclusion
In the end, this is not a finely balanced case. The respondent has shown convincingly that Mr Deliu is unlikely to be able to represent Mr Orlov with the necessary objectivity or to comply with his duties to the Court.[29] That is so because he has an immediate conflict of interest which is reflected in the affidavit he has filed.We conclude the Judge was right to order that Mr Deliu be debarred from acting for Mr Orlov on the strike-off appeal.
The Judge’s decision to recuse himself
[29]Accent Management Ltd, above n 13, at [32].
After delivering the judgment under appeal, Fogarty J, in a minute dated 3 March 2014, said he had recused himself from hearing the appeal proper.[30]
Submissions on the recusal decision
[30]Orlov v National Standards Committee No 1 HC Auckland CIV-2013-404-4757, 3 March 2014 at [5].
Mr Orlov’s submission is that if it was necessary for the Judge to recuse himself from hearing the appeal proper, that must mean the Judge was not able to have adjudicated on the application to debar Mr Deliu. Mr Orlov says that follows from the fact that a judge cannot recuse him or herself except for actual or apparent bias. Mr Orlov submits that it is not a sufficient basis for recusal that a judge finds a matter distasteful.
Initially, Mr Orlov said it must follow that there was actual bias on the part of the Judge, because there was no apparent bias. However, in developing his submissions Mr Orlov’s position was that we should remit the matter back to Fogarty J for the Judge to reconsider the decision to debar unless the Judge decided, having reconsidered the matter and providing reasons, that he was biased. Finally, Mr Orlov is critical of the Judge recusing himself of his own motion without giving Mr Orlov an opportunity to say anything about it.
For the respondent, Mr Pyke makes the point that the appeal raises the question of a Judge’s duty to sit but, at the time of recusal, Fogarty J had not been assigned to hear the appeal. Accordingly, the submission is that it cannot be contended that the Judge was going to be assigned to the case. For example, the Judge may not have been available to sit on the relevant date. In these circumstances, even if there is a technical appeal against the decision,[31] Mr Pyke says that it cannot assist Mr Orlov.
Our analysis
[31]See Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309; contrast Muir v Commissioner of Inland Revenue [2007] NZCA 334, [2007] 3 NZLR 495 at [111]–[118].
Mr Orlov’s primary submission that recusal from the appeal proper must indicate a need for recusal at the earlier stage, is not sustainable in terms of the authorities. The Supreme Court has made the point in Jessop v R that involvement in a subsequent stage of the same earlier proceeding in itself does not necessarily mean disqualification.[32] Rather, it is necessary for there to be some “ground for doubting the ability of the judge to bring an objective judgment to bear”.[33] The Supreme Court cited for this proposition the decision of the Court of Appeal of England and Wales in Locabail (UK) Ltd v Bayfield Properties Ltd.[34] In that case, the Court referred to the situation where the judge in a previous case had rejected the evidence of a witness whose credibility was in issue in the later case in “such outspoken terms” so as “to throw doubt” on the ability to approach the matter with an open mind or where views were expressed in the earlier case “in such extreme and unbalanced terms” as to raise doubts about objectivity.[35]
[32]Jessop v R [2007] NZSC 96 at [6].
[33]At [6] (footnote omitted).
[34]Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA).
[35]At [25].
It must follow from this line of reasoning that the mere fact that a judge considers, at a later point in a proceeding, that he or she should recuse him or herself, does not necessarily mean that this was the position from the outset. A judge may reach the decision at a later stage of a proceeding that he or she should no longer sit even though that will not mean their earlier role is in any way impugned. There is nothing to suggest the position is other than that here. We add that Mr Orlov has now had the benefit of a reconsideration of the decision to debar Mr Deliu. There is no practical benefit in referring the matter back to Fogarty J.
We doubt whether Fogarty J was bound to give reasons in a situation such as that which arose here.[36] Discussion about the need to give reasons is more commonly directed to the situation where a party raises an issue about a possible conflict on the part of the judge or where the judge discloses an interest to the parties in the context of deciding whether or not recusal is necessary.[37] For example, in the context of a discussion about a contested hearing on recusal, Sir Grant Hammond states:[38]
To what extent the judge is required, if at all, to deliver a reasoned decision is again problematic. While a judge should ideally give at least short reasons, and in jurisdictions with Bill of Rights-type provisions they are arguably required, a judge will often simply announce an outcome.
[36]A recent article on United States practice notes that “most” recusal decisions are made without explanation: Raymond J McKoski “Disqualifying Judges When Their Impartiality Might Reasonably Be Questioned: Moving Beyond a Failed Standard” (2014) 56 Ariz L Rev 411 at 438 citing Amanda Frost “Keeping Up Appearances: A Process-Oriented Approach to Judicial Recusal” (2005) 53 U Kan L Rev 531 at 569 who states: “Judges who recuse themselves rarely issue a decision explaining why.”
[37]See, for example, the discussion of principles relating to disclosure in the Guidelines for Judicial Conduct (Ministry of Justice, March 2013) Courts of New Zealand < at [41]–[43]; and Muir v Commissioner of Inland Revenue, above n 31, at [65]–[67].
[38]Grant Hammond Judicial Recusal: Principles, Process and Problems (Hart Publishing, Oxford, 2009) at 82.
In any event, we do not need to decide this point. The Judge’s decision was made against the background of the discussion in the minute about the appointment of counsel assisting. From that minute, it is apparent that the Judge was simply being particularly scrupulous about the case. In this situation, while the Judge could have expressed his reasons more explicitly, we do not consider anything turns on the lack of specificity.
We add that we do not see any merit in Mr Orlov’s claim that if Fogarty J is not biased, he must hear the case. The allocation of judges to High Court fixtures is a matter for the High Court.
Appointment of counsel assisting the Court
Fogarty J said counsel would be appointed to assist the Court on the appeal with the qualification that Mr Orlov might elect to instruct that person as his counsel.[39] Fogarty J invited the President of the New Zealand Bar Association to nominate counsel for this task. Subsequently, Mr Bob Hollyman was appointed as counsel assisting.[40]
[39]High Court judgment, above n 2, at [25].
[40]Orlov v National Standards Committee No 1 HC Auckland CIV-2013-404-4757, 25 February 2014 (Minute of Fogarty J) at [2].
Mr Orlov submits that by utilising this process, that is, involving the President of the New Zealand Bar Association, the Judge has improperly delegated his judicial function. The submission is that the wrongful delegation has prejudiced Mr Orlov because it has denied him the benefit of a transparent process. Mr Orlov stresses the importance of the choice of counsel assisting in this case.
Fogarty J explains his decision as follows:[41]
[4] I deliberately asked the President of the New Zealand Bar Association to select the amicus. This was because I did not want it to be seen in any way that a High Court Judge was choosing the amicus in respect of proceedings which have as their subject matter the relationship between Mr Orlov and another Judge of the High Court. Mr Stephen Mills QC [the President of the New Zealand Bar Association] had a copy of my judgment.
[41]Orlov, above n 30.
We agree with the respondent that it is clear, nonetheless, that the Judge has himself made the decision to appoint Mr Hollyman as counsel assisting. The first point we note in this respect is that in his judgment, Fogarty J said:[42]
[T]he Court also will appoint an amicus curiae with the qualification that Mr Orlov might elect to instruct that person as his counsel. If he does not, that person will remain the amicus curiae. I invite the President of the New Zealand Bar Association to nominate counsel for this task. A copy of this judgment is to be sent to the New Zealand Bar Association immediately, as the fixture is set for 1 and 2 April.
[42]At [25].
Secondly, in the minute of 25 February 2014 appointing counsel assisting, Fogarty J recorded that Mr Mills QC had recommended Mr Bob Hollyman and that Mr Hollyman had agreed to accept appointment. The Judge then ordered as follows:
Mr Bob Hollyman is now appointed as amicus curiae of the Court for the purpose of the appeals.
We see nothing in the challenge to this appointment process. The Judge was, again, trying to be careful about the process he followed albeit probably unduly cautious. We add that it seems the Judge envisages that counsel assisting will take a non‑partisan role, that is, “to help the court by expounding the law impartially” rather than “advancing … legal arguments” on Mr Orlov’s behalf unless Mr Orlov elected to instruct Mr Hollyman to act on his behalf.[43] Accordingly, the appointment is one for the assistance of the Court.
Other matters
[43]Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 (CA) at 266; and see discussion in Beneficial Owners of Whangaruru Whakaturia No 4 v Warin [2009] NZCA 60, [2009] NZAR 523 at [19]–[26].
Our conclusions on these matters dispose of Mr Orlov’s appeal. However, we also need to deal with two other matters that arose in the course of the hearing. The first issue is our refusal to allow Mr Orlov to record the hearing and the second is our decision to decline an application by Mr Orlov made at the start of the hearing that French J recuse herself.
As to the first issue, Mr Pyke drew our attention to Mr Orlov’s intention to record the hearing. Mr Orlov said he wanted to record the hearing because on other occasions he had not subsequently been able to obtain copies of recordings/transcripts. We saw no need for Mr Orlov to make his own recording given the hearing was being recorded in the usual way and a transcript could be provided if necessary.
Mr Orlov challenged our ability to prevent him from recording the hearing. As we have said before:[44]
[11] The Judges of all superior Courts have an inherent jurisdiction to control the conduct of hearings in the courtroom. We consider that the making of audio recordings is very much a matter within the control of the Judge or Judges hearing a case. We emphasise that a lawyer ought not to make an audio recording of the proceedings of the Court without first obtaining the permission of the Judge or Judges concerned. The same principle would apply to a litigant in person.
[44]Orlov v Chief Executive of the Ministry of Social Development CA280/2009, 4 February 2011 (Minute of the Court); see also Chief Justice’s Review Panel for In-Court Media In-Court Media Coverage – a consultation paper (Ministry of Justice, 6 March 2014) at [22]–[23] and appendix B at [13]; Daniel Stepniak Audio-Visual Coverage of Courts (Cambridge University Press, Cambridge, 2008) at 300; and reference to the same position in Australia in Access to Justice Advisory Committee Access to Justice – an Action Plan (1994) at [20.6].
We turn then to the second issue, namely, the belated application that French J should recuse herself from hearing this appeal. The application was made on very flimsy grounds. Essentially, Mr Orlov advanced the proposition that observations made in this Court’s earlier judgment[45] disqualified French J, who wrote the Court’s judgment from considering this appeal. The passages to which Mr Orlov referred included the observation that Mr Orlov had sought, in the context of that judicial review proceeding, “to take every conceivable point, none of which [had] any merit. There is no sound basis for judicial review.”[46] Further, the Court stated that by raising the various procedural objections considered in the judgment “Mr Orlov has thwarted and delayed the disciplinary process”.[47] Mr Orlov’s submission was that these comments were gratuitous and represented bias on the part of the panel.
[45]Orlov v New Zealand Law Society, above n 4.
[46]At [162].
[47]At [168].
As we have indicated earlier by reference to the Supreme Court decision in Jessop and that of the Court of Appeal of England and Wales in Locabail, there must be established some ground for expecting the Judge not to be impartial. The fact there was strong but measured criticism directed to the merits of pursuing points on the appeal is not a basis for recusal. We add that the comments about delay were made in the context of discussion about the objectives and benefits of the profession’s disciplinary regime.
Having considered Mr Orlov’s application, we advised Mr Orlov that French J would remain part of the coram hearing the appeal. We add that, as is made plain in this Court’s publicly available guidelines for recusal, applications for recusal should be made well in advance.[48] Details of the panels for upcoming appeals are published on the Courts of New Zealand website approximately one month in advance. If Mr Orlov was concerned about the ability of a panel member to sit on the appeal, he should have made his application for recusal in writing much earlier.
[48]Court of Appeal Recusal Guidelines (Ministry of Justice, June 2013) Courts of New Zealand < at 2(f).
Finally, we note that the passage to the hearing of this appeal was somewhat chequered and there have been two earlier judgments about security for costs.[49] We should therefore record that the respondent ultimately did not seek payment of security for costs and abandoned its application for strike out on the basis of non‑payment of security. That application is formally dismissed.
Result and costs
[49]Orlov v National Standards Committee No 1 [2014] NZCA 182 per Wild J; Orlov v National Standards Committee No 1 [2014] NZCA 195 per Stevens J.
The appeal is dismissed. By consent, we reserve costs. If the respondent decides to pursue the question of costs, a memorandum may be filed but, as the parties agreed, not before 31 October 2014.
Solicitors:
New Zealand Law Society, Wellington for Respondent
SCHEDULE
[C]harges laid by the National Standards Committee (NSC)
| Charge Number | Conduct Alleged | Date of Alleged Conduct | Governing Legislation | Transfer to NSC | Own Motion Investigation Commenced by NSC | Decision to Refer to Tribunal | Charge Laid |
| 1 | Allegation of misconduct that would justify a finding that Mr Orlov was not a fit and proper person to engage in the practice of law based on the deliberate or reckless making of false and scandalous allegations about Harrison J in a letter to the Chief High Court Judge. | 6 August 2008 | 2006 Act | 1 April 2010 | 23 April 2010 | 16 September 2010 | 13 May 2011 |
| 2 | Alternative to charge 1. Allegation of misconduct based on the making of the allegations described in charge 1 in circumstances that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable. | 6 August 2008 | 2006 Act | 1 April 2010 | 23 April 2010 | 16 September 2010 | 13 May 2011 |
| 3 | Allegation of misconduct that was disgraceful or dishonourable based on application by Mr Orlov for an order that Harrison J be permanently recused from all cases involving Mr Orlov and a colleague. | 5 September 2008 | 2006 Act | 1 April 2010 | 23 April 2010 | 16 September 2010 | 13 May 2011 |
| 4 | Alternative to charge 3. Allegation that Mr Orlov is not a fit and proper person to be in practice as a lawyer. | 5 September 2008 | 2006 Act | 1 April 2010 | 23 April 2010 | 16 September 2010 | 13 May 2011 |
5 | Allegation of misconduct that was disgraceful or dishonourable based on the deliberate or reckless making of false and scandalous allegations about Harrison J in a notice of application for special leave to appeal to the Supreme Court. | 14 October 2008 | 2006 Act | 1 April 2010 | 23 April 2010 | 16 September 2010 | 13 May 2011 |
| 6 | Allegation of misconduct that would justify a finding that Mr Orlov was not a fit and proper person to engage in the practice of law based on the deliberate or reckless making of false and scandalous allegations about Harrison J in a claim filed in the Human Rights Tribunal. | 13 March 2009 | 2006 Act | 1 April 2010 | 23 April 2010 | 16 September 2010 | 13 May 2011 |
| 7 | Allegation of misconduct that would justify a finding that Mr Orlov was not a fit and proper person to engage in the practice of law based on the making of false and scandalous allegations about Harrison J in a letter to the Judicial Conduct Commissioner. | 11 February 2009 | 2006 Act | 1 April 2010 | 23 April 2010 | 16 September 2010 | 13 May 2011 |
| 8 | Alternative to charge 7. Allegation of misconduct that was disgraceful or dishonourable based on the facts alleged in support of charge 7. | 11 February 2009 | 2006 Act | 1 April 2010 | 23 April 2010 | 16 September 2010 | 13 May 2011 |
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