Orlov v New Zealand Law Society

[2014] NZHC 2002

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-2868 [2014] NZHC 2002

BETWEEN

EVGENY ORLOV

Plaintiff

AND

NEW ZEALAND LAW SOCIETY First Respondent

AUCKLAND LAWYERS STANDARDS COMMITTEE (APPOINTED UNDER SECTION 356 OF LAWYERS AND CONVEYANCERS ACT 2006)

Second Respondent

AUCKLAND LAWYERS STANDARDS COMMITTEE NO. 1

Third Respondent

CIV 2010-404-5778

BETWEEN  EVGENY ORLOV Plaintiff

ANDNEW ZEALAND LAW SOCIETY AND OTHERS

Respondents

Hearing:	(on the papers)
Counsel:	E Orlov, in person, Plaintiff P J Morgan QC, for New Zealand Law Society and Others
Judgment:	22 August 2014

JUDGMENT (NO. 10) OF HEATH J

This judgment was delivered by me on 22 August 2014 at 11.30am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

EVGENY ORLOV v NEW ZEALAND LAW SOCIETY [2014] NZHC 2002 [22 August 2014]

[1]      In  circumstances described in my judgment of 29 July 2014,1  Mr Orlov applies to vacate a hearing scheduled for 10am on 25 August 2014.  That hearing has been allocated to deal with an application for costs made by the New Zealand Law Society interests in respect of a failed judicial review application brought by Mr Orlov, and security for costs in respect of a severed claim for public law compensation for breaches of the New Zealand Bill of Rights Act 1990, as well as allied proceedings alleging misfeasance in public office and malicious prosecution.

[2]      In making an earlier application, Mr Orlov asked me to disqualify myself from hearing the applications.  He drew attention to the fact that senior counsel for the New Zealand Law Society interests, Mr Morgan QC, and I had both practised in Hamilton before my appointment to the Bench in 2002.  Having described relevant

background, I declined to recuse myself.2

[3]      Earlier this week, Mr Orlov sought an adjournment of the applications.  That was refused.  His application was renewed formally yesterday, 21 August 2014.  In his formal application, Mr Orlov sought an adjournment or vacation of the proposed hearing pending an appeal to the Court of Appeal against my earlier refusal to adjourn and my decision not to disqualify myself from hearing the applications.  Mr Orlov was also anxious to ascertain the result of his challenges to orders made by the New Zealand Lawyers’ and Conveyancers’ Disciplinary Tribunal (the Tribunal) in disciplinary proceedings to which the applications are linked.

[4]      Late yesterday afternoon, a Full Court of this Court delivered judgment3  on proceedings brought by Mr Orlov (by way of both appeal and judicial review) to challenge the Tribunal’s decision to find him guilty of misconduct4 and to strike him off the roll of barristers and solicitors.5

[5]      The charges  alleging professional  misconduct  were  amended  by the  Full

Court.  While Mr Orlov’s appeal against the Tribunal’s decision on those amended

1      Orlov v New Zealand Law Society (No 9) [2014] NZHC 1766.

2      Ibid, at paras [15]–[17].

3      Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987 (Ronald Young and Simon France JJ).

4      Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2013] NZLCDT 45.

5      Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2013] NZLCDT 52.

charges was dismissed, the penalty appeal was allowed.  The order striking him from the roll of barristers and solicitors has been quashed.   No alternative sanction has been imposed because of the time that Mr Orlov has been prevented from practising as a lawyer meantime.6

[6]      The  Full  Court’s  decision  may  have  relevance  to  the  applications  I  am scheduled to hear on Monday next.   Although the Law Society interests would doubtless contend that the questions of costs (and security for costs) must be judged in the context of the failed application for judicial review which allowed charges to be referred to the Tribunal,7  I cannot rule out the possibility (in the short time available to me to consider it), that there may be findings in the Full Court’s decision that could assist Mr Orlov in opposing the applications.   In those circumstances, I shall vacate the hearing scheduled for 25 August 2014 and excuse appearances.8

[7]      As  well  as  seeking  vacation  of  the  hearing,  Mr  Orlov  has  renewed  his application for me to disqualify myself.  In addition to points he has made about my association with Mr Morgan, he has raised a question about a possible link with Mr Pyke, another counsel who has represented the Law Society interests in various proceedings.  Mr Pyke also practised in Hamilton.  I had little professional contact with Mr Pyke while at the Bar, and none of a personal social nature.

[8]      Given Mr Orlov’s complaints, I also disclose that the Executive Director of the New Zealand Law Society, Ms Grice, was in practice in Hamilton around the same time.  My professional and personal relationship with her is not dissimilar to that I described in respect of Mr Morgan; with the exception that I did not appear with Ms Grice in any case.9

[9]      I do not consider that it was necessary to disclose any of those personal or professional links.  I adhere to the views expressed in my judgment of 29 July 2014

6      Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC

1987, at paras [206]–[211].

7      Orlov v New Zealand Law Society [2013] 1 NZLR 390 (HC) and Orlov v New Zealand Law Society [2013] 3 NZLR 562 (CA). Leave to appeal to the Supreme Court refused: Orlov v New Zealand Law Society [2013] NZSC 94.

8      I had reached this decision prior to receipt of a memorandum filed by Mr Orlov after delivery of

the Full Court’s decision. I do not comment on the content of that memorandum.

9      Orlov v New Zealand Law Society [2014] NZHC 1766, para [16].

as to the circumstances in which a personal or professional relationship might be sufficient to require recusal.10   I decline the renewed application for disqualification.

[10]     In my view, Mr Orlov should be given time to file and serve submissions on costs and security for costs in light of the Full Court’s decision to allow his penalty appeal.  I will fix a time which is sufficiently distant to enable Mr Orlov to seek a prompt hearing of his appeal to the Court of Appeal against my decision not to recuse myself.  I will then allow Mr Morgan time to respond.

[11]     For those reasons:

(a)      I vacate the hearing scheduled for 25 August 2014 and excuse appearances.

(b)Mr Orlov shall file and  serve submissions (and any affidavits) in opposition to the application for costs and security for costs on or before 3 October 2014.  If nothing is filed and served by that date I shall deal with the application on the existing papers.

(c)      The Law Society interests shall file and serve any submissions (and any affidavits) in reply on or before 24 October 2014.

(d)      Any request for an oral hearing shall be made on or before 31 October

2014.  If a request were made, the Registrar shall set the applications down  for  hearing  before  me  on  the  first  available  date  after  7

November 2014.   If no request were made, the Registrar shall refer

relevant papers to me for a decision to be made on the basis of them.

10 Ibid, at para [17].

[12]     All questions of costs are reserved.

P R Heath J

Delivered at 11.30am on 22 August 2014

Solicitors:
Glaister Ennor, PO Box 63, Auckland

Counsel:

P J Morgan QC, PO Box 19021, Hamilton

E Orlov, PO Box 8333, Auckland