Orlov v New Zealand Law Society
[2014] NZCA 569
•27 November 2014 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA456/2014 [2014] NZCA 569 |
| BETWEEN | EVGENY ORLOV |
| AND | NEW ZEALAND LAW SOCIETY AUCKLAND LAWYERS STANDARDS COMMITTEE (APPOINTED UNDER SECTION 356 OF LAWYERS AND CONVEYANCERS ACT 2006) AUCKLAND LAWYERS STANDARDS COMMITTEE NO 1 NATIONAL STANDARDS COMMITTEE |
| Counsel: | Appellant in person |
Judgment: (On the papers) | 27 November 2014 at 3 pm |
JUDGMENT OF ELLEN FRANCE P
(Review of Registrar’s decision)
A The application for review of the Registrar’s decision refusing to dispense with or vary the payment of security for costs is dismissed.
BSecurity for costs of $5,880 must be paid into Court within 20 working days of the date of this judgment.
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REASONS
Introduction
The appellant, Mr Orlov, filed an appeal in this Court against a decision of Heath J in the High Court in which the Judge refused to recuse himself from sitting on applications in proceedings involving Mr Orlov and the New Zealand Law Society.[1] Security for costs on the appeal was set at $5,880. The Registrar subsequently declined an application by Mr Orlov for dispensation from the requirement to pay security for costs. The Registrar also declined to consider a later application by Mr Orlov for reduction of the amount of security. This is an application for review of the Registrar’s decision.
Background
[1]Orlov v New Zealand Law Society (No 9) [2014] NZHC 1766.
Since 2011 Heath J has been dealing with various aspects of a proceeding brought by Mr Orlov against the New Zealand Law Society. As I understand it, after various procedural decisions have been made, the matter ultimately for determination will be a claim by Mr Orlov for public law compensation, damages for misfeasance in public office and malicious prosecution and declarations under the New Zealand Bill of Rights Act 1990 (the Bill of Rights claim).[2]
[2]Orlov, above n 1, at [5].
The Bill of Rights claim arises in the context of disciplinary charges made against Mr Orlov which were referred to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. One set of those charges was heard by the Tribunal. Mr Orlov, having been found guilty, was struck off the Roll of Barristers and Solicitors.[3] His appeal against the finding he was guilty of those charges was unsuccessful but his appeal against the decision that he be struck off was successful.[4] The respondents advise a decision on Mr Orlov’s application for a practising certificate to enable him to resume practice is imminent.
[3]National Standards Committee v Orlov [2013] NZLCDT 52.
[4]Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987.
The decision under appeal arose in the context of applications by the respondents for costs and security for costs. Mr Morgan QC is counsel for the respondents. Mr Orlov asked Heath J to recuse himself because of the Judge’s association with Mr Morgan.
Heath J declined to recuse himself. The Judge explained as follows:[5]
[16] Mr Morgan and I both practised in Hamilton before my appointment to the Bench in 2002. Contrary to Mr Orlov’s suggestions, I was not in chambers with Mr Morgan. Nor were there any cases in which we “split fees”. Mr Morgan appeared with me in one case but in the main we appeared on opposite sides of litigation. While I have socialised with Mr Morgan and am on friendly terms with him, our relationship could not be characterised as “close”.
[17] In any event, even a “close” personal or professional relationship between a Judge and counsel is insufficient, of itself, to require recusal. In Saxmere Company Ltd v Wool Board Disestablishment Company Ltd the Supreme Court held that the relationship between Wilson J and Mr Galbraith QC (counsel) was not sufficient to require the former to disqualify himself from hearing an appeal in which Mr Galbraith was appearing as counsel, even though they were described as “close personal friends of long standing”, and were engaged together in business activities. The Supreme Court subsequently recalled that decision and reached a different view only because of the existence of a previously undisclosed aspect of their joint business interest that the Court found gave the perception that Wilson J may be “beholden” to Mr Galbraith.
[5]Footnotes omitted.
Mr Orlov’s appeal is against this decision. He also appeals against Heath J’s decision declining to adjourn the hearing of the costs applications.[6]
The application for review
[6]At [14].
Mr Orlov says he should not be required to pay security or the full amount of security because he is impecunious and that impecuniosity results from the respondents’ actions. He further says the nature of the proceeding is such that the need for justice to be seen to be done is heightened so that “no judge who is in any way connected with the opposition or their lawyer should be acting”.
The respondents oppose the application. They say there is no evidence of impecuniosity or that any impecuniosity has been caused by them. They also say the appeal is frivolous or vexatious.
Discussion
The material before me suggests the appeal against the recusal decision is hopeless such that a reasonable and solvent litigant would not proceed with it.[7] That is because the Judge applied settled principles. Further, applying those principles to the present facts as set out by the Judge, there is nothing on the face of it to suggest “a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.[8]
[7]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [35].
[8]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] and [33]; this was endorsed by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3] per Blanchard J, [37] per Tipping J, [89] per McGrath J, [124] per Gault J and [127] per Anderson J.
As to the challenge to the Judge’s failure to adjourn the hearing of the costs applications, those applications were to be heard in late August 2014. The hearing has since been adjourned.[9] There cannot be any merit in pursuing that part of the appeal. Indeed, the pursuit of this appeal, together with non-payment of earlier costs awards by Mr Orlov, provides some support for the respondents’ submission that the appeal is vexatious.
[9]Orlov vNew Zealand Law Society (No 10) [2014] NZHC 2002.
In any event, there is no evidence of impecuniosity. The Registrar sought further information from Mr Orlov about his financial circumstances on 6 October 2014. No information was provided. Nor was any such information provided by Mr Orlov when he, belatedly, sought a reduction in security on 29 October 2014 or, indeed, for the present application.
Finally, I should add that in all of these circumstances I see no reason to reduce the amount of security payable. The basis advanced for reduction is that the anticipated hearing time for the appeal is one and a half hours. However, as counsel for the respondents submits, security for costs reflects the costs of preparation as well as the amount of time required for hearing.[10]
[10]Wislang v Family Court at North Shore [2013] NZCA 439 at [3].
In all the circumstances, the Registrar was right to conclude the respondents are entitled to protection for their costs in responding to the appeal.
Decision
The application for review of the Registrar’s decision refusing to dispense with or vary the payment of security for costs is dismissed. Security for costs of $5,880 must be paid into Court within 20 working days of the date of this judgment.
Solicitors:
Glaister Ennor, Auckland for Respondents
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