Orlov v National Standards Committee No 1 - [2014] NZCA 242

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA127/2014
[2014] NZCA 242

BETWEEN	EVGENY ORLOV Appellant
AND	THE NATIONAL STANDARDS COMMITTEE NO 1 Respondent

Hearing:	27 May 2014
Court:	Ellen France, French and Miller JJ
Counsel:	Appellant in person W C Pyke for Respondent
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…

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: [2014] NZCA 242
Decision Date: 13 June 2014 at 2.30 pm

CaseChat Overview and Summary

Evgeny Orlov appeals against the decision of Fogarty J to debar Frank Deliu from acting as his counsel in the High Court appeal against the Tribunal's decision to strike him off. The appeal was dismissed by the Court of Appeal of New Zealand. The Court found that the Judge was right to order that Mr Deliu be debarred from acting for Mr Orlov on the strike-off appeal. The Court found that Mr Deliu was unlikely to be able to represent Mr Orlov with the necessary objectivity or to comply with his duties to the Court. This was because he had an immediate conflict of interest which was reflected in the affidavit he had filed. The Court also found that the Judge's decision to recuse himself from hearing the appeal proper was not a basis for the appeal against the decision to debar Mr Deliu. Finally, the Court found that there was no flaw in the process adopted for the appointment of counsel assisting in the appeal.

Orders