Orlov v New Zealand Law Society

[2012] NZCA 6

IN THE COURT OF APPEAL OF NEW ZEALAND

CA32/2012
[2012] NZCA 6

BETWEEN  EVGENY ORLOV
Appellant

AND  NEW ZEALAND LAW SOCIETY
First Respondent

AND  AUCKLAND LAWYERS STANDARDS COMMITTEE
Second Respondent

AND  AUCKLAND LAWYERS STANDARDS COMMITTEE NO. 1
Third Respondent

AND  NATIONAL STANDARDS COMMITTEE
Fourth Respondent

Counsel:         Appellant in Person
P J Morgan QC and H McKee for Respondents

Judgment:      7 February 2012

JUDGMENT OF ARNOLD J

The application for review of the Acting Registrar’s decision to refuse to waive the payment of security for costs is declined.

REASONS

Introduction

1. The appellant, Mr Orlov, has filed an appeal against a decision of Heath J given in relation to a proceeding which he is bringing against the respondents arising out of a disciplinary process that has been instituted against him.[1]  In the judgment under appeal, Heath J describes the proceeding as follows:

   [1]       In this proceeding, Mr Orlov seeks judicial review, declaratory relief in respect of alleged breaches of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and damages for misfeasance in public office.  The proceeding challenges decisions said to have been made by the New Zealand Law Society (Auckland Branch) (the Society) and three committees established by it, Auckland Standards Committee, Auckland Standards Committee No 1 and National Standards Committee (the Standards Committees).

   [2]       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.

   [1]Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 7 December 2011.

2. The proceeding has an eight day fixture commencing on Monday 27 February 2012.  In his judgment, Heath J ordered that the judicial review claim be determined at the hearing and the Bill of Rights and other claims at a later date.  The Judge also dealt with a number of other interlocutory issues, including discovery and Mr Orlov’s ability to subpoena witnesses.

3. In conjunction with his appeal, Mr Orlov sought a dispensation from the requirement to pay security for costs, which the Registrar had fixed at $5,560.00, and from the requirement to pay the setting down fee of $2,658.40.  The ground given was that the appeal raises matters of significant public interest.  Mr Orlov said this arose from the fact that Randerson J, in his then capacity as Chief High Court Judge, had made a complaint to the Law Society about Mr Orlov after Mr Orlov had complained to the Judicial Conduct Commissioner about the conduct of another Judge, Harrison J.  Mr Orlov said that Randerson J’s complaint was unlawful as it breached his rights, including his right of free speech.  Mr Orlov also claimed that because Randerson and Harrison JJ are now members of this Court, the Court is biased and not able to decide the appeal.  Consequently, he said, the appeal should be referred directly to the Supreme Court or, in the alternative, Mr Orlov should be given a certificate to the effect that he has exhausted his domestic remedies, which would enable him to take a complaint to the appropriate international body.

4. The respondents’ solicitors advised that they opposed waiver on the basis that the appeal was not arguable and did not engage matters of public importance.

5. Mr Orlov’s waiver applications were declined, on the basis that the circumstances of the appeal were not exceptional and it did not raise issues of public importance.  This was because the appeal concerned interlocutory matters which did not affect Mr Orlov’s ability, ultimately, to pursue the issues raised in the proceeding.

Discussion

Applicable principles

1. In the normal course, appellants in civil proceedings in this Court are required to pay security for costs.[2]  Where an appellant applies to the Registrar for a waiver of security, the Registrar may waive security, or vary the amount required to be paid, “if satisfied that the circumstances warrant it”.[3]

   [2]      Court of Appeal (Civil) Rules 2005, r 35(2).

   [3]      Rule 35(6).

2. Security for costs will be waived where it is in the interests of justice to do so.  There must be some exceptional circumstance to justify waiver.[4]  The appellant must honestly intend to pursue the appeal and it must be arguable, as respondents should not face the threat of hopeless appeals without provision for security.  The importance of the issues raised in the appeal will be significant, as will the question whether there is any public interest in having them determined.[5]  Impecuniosity alone is not usually sufficient to justify a waiver, but may be reason to reduce the quantum of security.[6]

   [4]       Fava v Zaghloul [2007] NZCA 498 at [9].

   [5]      Crese v Official Assignee CA196/05, 12 June 2006 at [29].

   [6]      Fava v Zaghloul at [9]; Easton v Broadcasting Commission [2009] NZCA 252 at [5].

3. In relation the setting down fee, waiver is governed by reg 5 of the Court of Appeal Fees Regulations 2001 (the Regulations).  Relevantly, reg 5(2)(b) allows for waiver where the appeal concerns a matter of genuine public interest (as defined in reg 5(4)) and the appeal is unlikely to be continued unless the fee is waived.

This case

1. This appeal concerns a number of procedural orders made by Heath J.  The most important of these was that the judicial review claim should be heard in advance of the various Bill of Rights and other claims.  The Judge made the order for severance because he was concerned that it would not be possible to hear the entire case within the eight day period set aside for the hearing and saw a need for the judicial review application to be determined as quickly as possible.  The other decisions about discovery, privilege and the issuing of subpoenas in respect of possible witnesses largely follow from the severance decision.

2. I agree that the present appeal does not raise any issue of public interest or involve any exceptional circumstances.  First, Mr Orlov’s contention that this Court cannot hear the appeal is misconceived.  The fact that two members of the Court may not be able to sit on a matter does not mean that the Court is therefore disqualified from hearing it.  Mr Orlov has made no objection in respect of any member of the Coram presently assigned to hear this appeal (Glazebrook, Arnold and Wild JJ).  Second, the effect of the orders made by Heath J is not to prevent Mr Orlov from pursuing his Bill of Rights and other claims.  They remain on foot.  The effect of the severance order is simply that the judicial review claim will be determined first.  Further, the Judge recognised that Mr Orlov may be able to renew his claims in relation to discovery and such like as the proceeding unfolds.  In that sense, the Judge’s decisions are interim.

3. In these circumstances, I consider that the decisions to decline to waive the requirements for payment of security for costs and the setting down fee were correct.  Accordingly the applications for review are declined.

4. This appeal was given an urgent fixture for 8 February 2012 because the trial is due to commence on 27 February 2012. The appeal will be called tomorrow as scheduled, but unless the outstanding matters of security for costs and the setting down fee are resolved the appeal is at risk of being struck out.

Solicitors:
E Orlov, Auckland for Appellant
Glaister Ennor, Auckland for Respondents