Orlov v New Zealand Law Society
[2012] NZCA 12
•15 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA32/2012 [2012] NZCA 12 |
| BETWEEN EVGENY ORLOV |
| AND NEW ZEALAND LAW SOCIETY |
| AND AUCKLAND LAWYERS STANDARDS COMMITTEE |
| AND AUCKLAND LAWYERS STANDARDS COMMITTEE NO. 1 |
| AND NATIONAL STANDARDS COMMITTEE |
| Hearing: 8 February 2012 |
| Court: Glazebrook, Arnold and Wild JJ |
| Counsel: Appellant in Person |
| Judgment: 15 February 2012 at 11.30 am |
JUDGMENT OF THE COURT
A The appeal is dismissed.
BThe appellant is to pay the respondents’ costs for a standard appeal on a band A basis with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
This appeal
Mr Orlov appeals directions given by Heath J in a judgment he delivered on 7 December 2011, consequent upon a case management conference the Judge held on 5 December.[1] The focus of Mr Orlov’s appeal is this direction:[2]
The judicial review claim is severed from the Bill of Rights and misfeasance in public office causes of action.
Mr Orlov’s other points are subsidiary to his concern that Heath J has severed his causes of action.
Background
[1]Orlov v New Zealand Law Society (Auckland Branch) (No 5) HC Auckland CIV-2010-404-2868, 7 December 2011.
[2] At [41].
Mr Orlov is a barrister practising in Auckland. He faces numerous complaints about his professional conduct, which the respondents have referred to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). In an amended statement of claim filed on 3 October 2011 Mr Orlov combines an application for judicial review with causes of action alleging breach of the rights guaranteed to him by the New Zealand Bill of Rights Act 1990 and a claim for misfeasance in public office. There are numerous, multi-faceted grounds of claim. The amended statement of claim extends to 56 pages.
In his 7 December 2011 judgment Heath J summarised Mr Orlov’s claim in this way:[3]
At the heart of Mr Orlov’s claims are allegations that those bodies have engaged in a persistent pattern of conduct designed to destroy Mr Orlov’s career as a barrister. Mr Orlov alleges that decisions to lay disciplinary charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) have been made in bad faith. He asks the Court to quash the decisions in issue. While that summary does not do justice to the lengthy pleading and alternative claims that are made, it provides an adequate introduction to the issues that arise.
Management of the proceeding
[3] At [2].
Heath J has been managing the proceeding and is to try it. Several events relevant to this appeal have occurred in the course of management of the case. First, on 30 August 2011 Heath J set the proceeding down for hearing over eight days commencing Monday 27 February 2012.[4] Because it had not been raised, Heath J’s directions did not contemplate the possibility of any party issuing subpoenas. Instead, the Judge directed that notice was to be given by 14 November 2011 if the maker of any affidavit filed either in the proceeding or the Tribunal was required for cross-examination.[5]
[4]Orlov v New Zealand Law Society (Auckland Branch) (No 4) HC Auckland CIV-2010-404-2868, 30 August 2011 at [4].
[5]At [7].
Next, on 21 October 2011 Mr Orlov asked the Registrar of the Auckland High Court to issue 18 subpoenas. Some of the proposed witnesses had not made affidavits in the proceeding or in relation to the charges before the Tribunal.
In a minute on 2 November 2011, the Judge dealt with Mr Orlov’s request for the issue of subpoenas (which the Registrar had referred to the Judge) in this way:[6]
[4] Mr Orlov made it clear, in his request to the Registrar, that he relied on his Bill of Rights cause of action to justify issuing of subpoenas as of right. My concern is that, if these 18 witnesses are called and those who have given affidavits on behalf of the defendants are cross-examined (which is likely to some extent because of allegations of bad faith) there will be insufficient time to complete the case within the 8 days allocated, by a significant margin. I am not prepared to embark upon a hearing that is likely to be part-heard.
[5] One possibility, to salvage the hearing, is to sever the judicial review cause of action from the Bill of Rights claims. That would be justifiable on the basis that the judicial review claim would determine whether the charges laid by the Law Society could property be dealt with by the New Zealand Lawyers’ and Conveyancers’ Tribunal. That Tribunal has stayed the charges on terms requiring both parties to advance the judicial review proceeding expeditiously. My proposal would meet any concerns of the type identified by the Tribunal in its decision of 15 April 2011.
[6] An urgent conference is required to discuss this issue. I allocate the conference for 9am on 11 November 2011. One hour is allocated. The conference will be held in chambers and both Mr Orlov and Mr Morgan QC shall attend in person. I do not direct the filing of memoranda in advance as I consider the better course is to discuss options before I make any decisions on how the case should proceed.
The Judge then directed the Registrar to issue the subpoenas, but that Mr Orlov was not to serve them pending the outcome of the 11 November 2011 conference. The Judge added:[7]
Mr Orlov should also be aware that if the witnesses were called on subpoena by him it would not be open for him to cross-examine them but Mr Morgan could do so.
[6]Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 2 November 2011 (Minute No 2).
[7] At [7].
Then, in a minute issued following the conference on 11 November 2011, Heath J scheduled a further conference for one day on 5 December 2011 to deal with the ambit of the hearing scheduled to commence on 27 February 2012 and of cross-examination.[8] Four aspects of this minute are pertinent. First, as to the ambit of the hearing, the Judge recorded agreement that the February hearing must be completed within the eight days allocated:[9]
… at least for the purpose of enabling some finality to be brought to the question whether charges currently before the ... Tribunal can proceed.
[8]Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 11 November 2011 (Minute No 3).
[9]At [3].
He then recorded that if Mr Orlov’s application for judicial review and claim for relief for alleged breaches of the Bill of Rights Act could not be completed within the eight days allocated:[10]
… it would be necessary to sever the judicial review claim from the Bill of Rights claims and to determine the judicial review proceedings first.
[10] At [6].
Second, as to cross-examination, the Judge extended from 14 to 23 November the time for Mr Orlov to file a memorandum setting out the extent to which he may wish to cross-examine those who had made affidavits either in the Tribunal or in the proceeding.[11] The Judge had earlier observed:[12]
While some greater precision is required in relation to regulation of the extent of cross-examination, it is likely to be necessary for Mr Orlov to have the opportunity to cross-examine on issues that relate to bad faith on the part of the four defendants in their respective decision-making, particularly, any collateral purpose they may have had in making decisions; including Mr Orlov’s allegations that they acted in a discriminatory manner.
[11] At [10].
[12] At [4].
Third, without prejudice to Mr Morgan’s ability to argue that s 10 of the Judicature Amendment Act 1972 enabled the Judge to give appropriate directions about subpoenas, the Judge directed the respondents to file and serve by 18 November 2011 any application to set aside the 18 subpoenas issued at Mr Orlov’s request.[13]
[13] At [14].
Fourth, the Judge also directed that a separate proceeding brought by Mr Orlov against the New Zealand Law Society was to be placed before the Judge at any future case management conference and at the 27 February hearing, so that it was not overlooked in the context of the issues in the proceeding the Judge was managing.[14]
Severance
[14] At [16]. The separate proceeding is Orlov v New Zealand Law Society (CIV 2010-404-5778).
Mr Orlov challenged the Judge’s severance order on three grounds. First, he submitted the Judge had no jurisdiction to make the order. He pointed out that the proceeding had been set down for hearing and that r 7.18 of the High Court Rules therefore applied: no steps to be taken after setting down without leave. He submitted that no application for severance had been made and no leave pursuant to r 7.18 had been granted.
Secondly, Mr Orlov claimed he had neither been forewarned nor given any opportunity to present argument in relation to severance. Combining this and the previous point, Mr Orlov submitted that the Court lacked jurisdiction to sever the trial after the proceeding had set it down for hearing and without giving the parties leave to file an application with the appropriate evidence and submissions. He contended the effect was a complete denial of natural justice and due process and a direct violation of the High Court Rules.
Heath J made his severance order pursuant to s 10 of the Judicature Amendment Act which he set out in his judgment. That applied to the proceeding, because it included an application for judicial review. Section 10 empowered Heath J at any time, either upon the application of a party or without such application, to hold a conference. And it empowered the Judge at that conference to give such consequential directions as he considered necessary “for the purpose of ensuring that [Mr Orlov’s application for judicial review] may be determined in a convenient and expeditious manner …”.[15]
[15] Sections 10(1) and 10(2)(l).
Mr Orlov had been forewarned by the Judge that he would be considering severance at the 5 December 2011 conference. Those forewarnings are contained in those parts of Heath J’s minutes of 2 and 11 November 2011 that we have set out in [6] and [8] above. The date for the 5 December conference was fixed in the Judge’s minute of 11 November 2011, so Mr Orlov had almost one month to prepare for it. The Judge set aside one day for the conference, so it was anything but rushed.
We reject the first two grounds on which Mr Orlov appeals the severance order.
Thirdly, Mr Orlov submitted the severance order prejudiced him because:[16]
a…
IIt would mean that there would be a second trial on the same facts and issues with the concomitant costs associated with such a trial.
IIThe appellant had a legitimate expectation that the High Court would determine all issues in one hearing and further such issues would be determined prior to the tribunal proceedings.
bA fair trial without subpoenas and cross examination on the issue of bad faith and bias is impossible, all parties prepared the case on the legitimate expectation that the eight day trial would involve considerations of bad faith and scrutiny of the decision makers and the process in which they engaged.
cIt would in effect create a predetermination of the issues because the issues of bias could not be found without full cross examination and the appellant has been prevented from doing so.
dThe bill of rights matters are tied up intricately with the judicial review and it would be an injustice to split them. The appellant has framed his whole case on the basis of the Bill of Rights Act and the international protocols and the underlying principle of s 27 of BORA. This is inseparable from the judicial review.
[16] Paragraph 23 of Mr Orlov’s memorandum of submissions for the 8 February 2012 hearing.
Mr Orlov told us he had filed affidavits detailing the matters he says indicate bad faith on the part of the respondents. We do not have those affidavits.
It became apparent to us from Mr Orlov’s oral submissions that he anticipated the respondents would answer his affidavits by filing affidavits by the decision makers — the members of the three Standards Committees. Mr Orlov clearly expected he would have the opportunity at the hearing later this month to cross-examine those decision makers.
As Heath J noted in his 7 December 2011 judgment, the respondents “have elected not to call evidence from anyone involved in the decision-making process”.[17] Rather, our understanding is that the respondents have chosen to place their “record” before the Court. In his 30 August 2011 judgment Heath J directed that the record of the Tribunal be transmitted to the Court.[18] He also directed the respondents to identify the affidavits filed with the Tribunal on which they intended to rely, and to file and serve any other affidavits responding to Mr Orlov’s claims by 15 November.[19] The respondents have filed affidavits from Ms Ollivier and Mr Heyns. Again, we do not have those affidavits but our understanding is that they detail the decision making process of the Standards Committees. However, those two deponents were not the relevant decision makers.
[17] At [16].
[18] At [6].
[19] At [8] and [5](b)(iv) respectively.
We consider the starting point in considering the Judge’s severance order is the need “to fulfil the purposes of judicial review as a relatively simple, untechnical and prompt procedure”.[20] This Court reiterated the importance of that aspiration in 2006 in Commerce Commission v Powerco Ltd.[21] In his Minute (No 3) Heath J recorded the parties’ agreement that the hearing scheduled to begin on 27 February must achieve finality on “the question whether charges currently before the … Tribunal can proceed”.[22]
[20]Minister of Energy v Petrocorp Exploration Ltd [1989] 1 NZLR 348 (CA) per Cooke P delivering the Court’s judgment at 353.
[21] Commerce Commission v Powerco Ltd CA123/06, 9 November 2006 at [40].
[22] At [3], referred to in [7] above.
If there is any justification for combining another claim or claims with an application for judicial review, it can only be that that course will be the most “convenient and expeditious” way of enabling the Court to determine “all matters in dispute … effectively and completely”. Those are the words in s 10(1) of the Judicature Amendment Act. If that were ever the case here, Heath J was satisfied that it no longer was, because all the claims combined in Mr Orlov’s amended statement of claim cannot be heard in the eight day hearing allocated for later this month. Mr Orlov confirmed that at the hearing before us: he told us that it was likely he would need all eight hearing days to take the Judge through the documentary evidence relating to his application for judicial review.
We will come back in a moment to Mr Orlov’s concerns that severance will prejudice his claims. But Heath J was rightly also concerned with the position of other affected parties. They include the respondents, and all the members of the first respondent, the New Zealand Law Society. Indeed, all legal practitioners have an interest in the timely disciplining of fellow practitioners. That interest is shared by the general public. Particularly interested and affected by Mr Orlov’s application for judicial review are those who have complained about Mr Orlov’s conduct. Essentially no progress has been made with the charges against Mr Orlov since they were referred to the Tribunal in 2010. In the face of Mr Orlov’s application for judicial review, the Tribunal made a decision on 15 April 2011 to adjourn hearing the charges until 13 September 2011. It has since further adjourned hearing the charges, until Mr Orlov’s judicial review claim has been determined. Heath J pointed that out in his 7 December 2011 judgment.[23] We agree with Heath J that Mr Orlov’s application judicially to review the decisions referring the charges against him to the Tribunal must be dealt with at the hearing scheduled for later this month.
[23] At [9], with the detail in footnote 4.
A further major consideration is the position of the High Court and of parties to other litigation. This was referred to by Master Thomson in Goodship v The Minister of Fisheries,[24] a decision cited to us by Mr Orlov. There are two aspects to this. First, if Heath J had not severed the trial of Mr Orlov’s causes of action, the hearing may have run beyond eight days. Indeed, in his 7 December 2011 judgment Heath J viewed that as inevitable. He considered the eight days allocated would be insufficient “by a significant margin”.[25] Unless the Judge adjourned the hearing part-heard, the consequence would be that the next case or cases Heath J was assigned to hear would lose their fixtures. That is not fair to the parties to those other cases who have been patiently awaiting and preparing for their scheduled fixture. We add that the prospect of adjourning the case part-heard would be as unattractive to Heath J as it would be to the parties. The second aspect is the consequences if Heath J simply vacated the fixture scheduled for 27 February. At this stage it may be impossible to fill the eight hearing days allocated with another case or cases. That potential waste of judicial and Court resources is to be avoided.
[24] Goodship v The Minister of Fisheries [2001] NZAR 274 (HC) at [10].
[25] At [18].
We return to Mr Orlov’s contention that Heath J erred in failing to recognise that severance prejudiced his claims. This is Heath J’s assessment in his 7 December 2011 judgment of the position:
[17] If anything, the approach adopted by the Society and the Standards Committees assists Mr Orlov. In the absence of evidence (oral or documentary) contradicting primary evidence from Mr Orlov about bad faith considerations, the Society and the Standards Committees will be limited to challenging (by cross-examination or submission) his evaluation of events, and the inferences he seeks to draw from the way in which the events unfolded. The Society will not be able to put into evidence documents in its possession or control that have not been discovered. And, in the absence of witnesses who can contradict primary facts on which Mr Orlov has given evidence, they may have difficulty (in the absence of any concessions under cross-examination) in rebutting what Mr Orlov has said. However, that is the way in which the Society and the Standards Committee have chosen to run their case. It is not for the Court to second-guess that tactical decision.
Essentially, the Judge considered that Mr Orlov was advantaged by the manner in which the respondents have chosen to meet Mr Orlov’s claims. In particular, the Judge considered Mr Orlov was not prejudiced by the inability to cross-examine the decision makers because the respondents had chosen not to file and serve affidavits from them.
Heath J has yet to give directions about cross-examination. But he has recognised that it may be necessary for Mr Orlov to question Ms Ollivier and Mr Heyns to clarify the extent of their knowledge of the way in which particular decisions were made.[26] To the extent that the respondents intend relying on affidavits filed with the Tribunal, Mr Orlov must have an opportunity to cross-examine the makers of those affidavits. In his oral submissions Mr Morgan accepted that.
[26] Orlov v New Zealand Law Society (No 5) at [15].
We cannot fault Heath J’s assessment of the position. We do not accept that the Judge’s severance order has prejudiced Mr Orlov. In particular, we do not accept Mr Orlov’s oral submission to us that it was “hopeless that I cannot cross-examine the actual decision makers when the whole issue is bad faith”. We pointed out to Mr Orlov — as had the Judge[27] — that he would not be able to cross-examine the witnesses he had subpoenaed. He responded to us that he would call them and “declare them hostile”. This response misunderstands the position. And the utility of calling a witness in order to ask the witness whether he or she made a decision in bad faith is doubtful, to say the least.
[27] Orlov v New Zealand Law Society (Minute No 3) at [7].
These observations largely dispose of Mr Orlov’s concerns that the severance order will result in duplication of hearing time, a risk of inconsistent findings of fact and that he will be confronted with a plea of res judicata. Heath J will be presiding at both hearings. Any new or different evidence at the second hearing may result in a different finding(s). Heath J has already recognised that Mr Orlov will have the right to subpoena witnesses in support of his claims that his rights under the Bill of Rights Act were breached.[28] We need not reiterate what we have said about the utility of Mr Orlov doing that.
Result
[28] Orlov v New Zealand Law Society(No 5) at [18].
For the reasons we have given we do not consider that the Judge’s severance order, or the consequences of it, will prejudice Mr Orlov in advancing the claims in his amended statement of claim at two separate hearings.
Accordingly, we dismiss the appeal.
Mr Orlov is to pay the respondents’ costs (one set of costs) for a standard appeal on a band A basis with usual disbursements.
Solicitors:
Glaister Ennor, Auckland for the Respondent
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