Orlov v New Zealand Law Society
[2014] NZHC 1766
•29 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-2868 [2014] NZHC 1766
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
AND
NEW 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 OthersJudgment:
29 July 2014
JUDGMENT (NO. 9) OF HEATH J
This judgment was delivered by me on 29 July 2014 at 2.00pm pursuant to Rule 11.5 of the
High Court Rules
Registrar/Deputy Registrar
EVGENY ORLOV v NEW ZEALAND LAW SOCIETY [2014] NZHC 1766 [29 July 2014]
The application
[1] Mr Orlov applies for an extension of time to file a notice of opposition and affidavits in opposition to claims for costs made by the New Zealand Law Society and Standards Committees appointed under the Lawyers and Conveyancers Act 2006 (the Law Society interests), in respect of a determined judicial review application. He seeks a similar order in respect of an application by the Law Society interests for security for costs, in relation to parts of the proceeding that were severed from the
judicial review application and which are yet to be heard.1 In respect of each, there
is also an implicit application to adjourn.2
Background
[2] In February and March 2012, I heard an application for judicial review brought by Mr Orlov against the Law Society interests. Mr Orlov contended that decisions made by Standard Committees to refer a total of 24 charges to the New Zealand Lawyers’ and Conveyancers’ Disciplinary Tribunal (the Tribunal) for determination should be quashed. In a judgment given on 24 August 2012, while finding in favour of Mr Orlov on some issues (which I held did not meet an implicit threshold test), the application for judicial review failed in relation to a significant
number of charges.3
[3] On 14 June 2013, the Court of Appeal dismissed Mr Orlov’s appeal against my decision, but allowed a cross appeal by the Law Society interests. In allowing the cross appeal, the Court of Appeal took the view that there was no “threshold” test of the type I had applied, meaning that all charges should go to the Tribunal.4 Mr Orlov sought leave to appeal to the Supreme Court on the “threshold” issue, but, on
8 October 2013, that application was refused.5 Nevertheless, the Supreme Court did
leave open the possibility that the issue could be reconsidered, if any appeal were to be brought following any adverse determination of the disciplinary proceeding.6
1 See para [5] below.
2 See para [10] below.
3 Orlov v New Zealand Law Society [2013] 1 NZLR 390 (HC).
4 Orlov v New Zealand Law Society [2013] 3 NZLR 562 (CA).
5 Orlov v New Zealand Law Society [2013] NZSC 94.
6 Ibid, at para [7].
[4] Subsequently, a number of disciplinary charges were heard by the Tribunal. Mr Orlov was found guilty of misconduct in relation to certain actions involving a member of the judiciary.7 As a result, he was struck off the roll of Barristers and Solicitors.8 This Court heard an appeal against that decision on 24 June 2014. Judgment remains reserved.
[5] The proceeding in which the judicial review claim was brought was CIV-
2010-404-2868. Before the judicial review part of that proceeding was heard, it had been severed from a claim for public law compensation, damages for misfeasance in public office, and declarations under the New Zealand Bill of Rights Act 1990 (the Bill of Rights claims).9 The severed portion of that claim remains for determination. There is also a separate proceeding for malicious prosecution (and other causes of action) arising out of an incident that occurred on 14 August 2008 at the offices of
the Auckland District Law Society. That claim, seeking damages, is brought under
CIV-2010-404-5778.
Procedural developments since August 2013
[6] On 21 August 2013, after the Court of Appeal’s decision but before that of the Supreme Court refusing leave to appeal, I made directions requiring Mr Orlov to attend to preparation, filing and service of documents in relation to the Bill of Rights and malicious prosecution claims. I said:10
[5] I make the following directions:
(a) Any Amended Statement of Claim in respect of the Bill of Rights and misfeasance in public office aspects of the original judicial review proceeding and the malicious prosecution proceedings shall be filed and served on or before 19 October 2013. A Statement of Defence to any Amended Statement of Claim shall be filed and served on or before 8 November 2013.
(b) Any application to join additional parties, together with affidavits in support, shall be filed and served on or before 19 October 2013.
7 National Standards Committee v Orlov [2013] NZLCDT 45; by a 4:1 majority.
8 Auckland and National Standards Committees v Orlov [2013] NZLCDT 52.
9 Orlov v New Zealand Law Society (No. 5) HC Auckland CIV-2010-404-2868, 7 December 2011 at paras [4] and [19].
10 Orlov v New Zealand Law Society & Ors HC Auckland CIV-2010-404-2868 (Minute (No. 18)),
21 August 2013.
Notices of opposition and affidavits in opposition shall be filed and served on or before 8 November 2013.
(c) Any application for either the Bill of Rights and misfeasance in public office causes of action and/or the malicious prosecution proceeding to be tried before a jury shall be filed and served on or before 19 October 2013, together with affidavits in support. Any notice of opposition and affidavits in opposition shall be filed and served on or before 8 November 2013.
[7] The Law Society interests had also made an application for security for costs. On that topic, I said:11
[6] The Society has also made an application for security for costs. Mr Orlov has indicated that he is seeking legal aid but will seek leave to have the security for costs application brought on early if that were to be refused. In short, Mr Orlov believes that if an order for security were made it would likely prevent him from proceeding with the claim. Leave is reserved for Mr Orlov to apply by memorandum should that situation arise.
[7] All outstanding applications (at this stage the application for security for costs and the likely applications to join additional parties or to seek jury trial) shall be heard in December 2013. The Registrar is directed to allocate a one day hearing on the first available date in that month. I will need to hear the application.
[8] On the security for costs application, Mr Orlov raised an issue about the “bad faith” component of the Bill of Rights claim. He was concerned that, contrary to some Minutes I had issued before the substantive judicial review decision, the bad faith component had been removed from the judicial review but that I may have made some comments in my judgment that would prejudice him inappropriately. I have reviewed the Minutes and my judgment. Some confusion may have arisen out of the way in which the term “bad faith” has been used in respect of different aspects of the proceeding. Certainly, it is fair to say that Mr Orlov did not press bad faith as a ground for judicial review, based on his position that orthodox grounds of judicial review were sufficient to capture the type of conduct of which he complained. I recorded that position in my substantive judgment of 24
August 2012, following discussion at the conclusion of the hearing.
[9] I do not believe that I said anything in my judgment of 24 August
2012 that would prevent Mr Orlov from raising questions of bad faith in the
Bill of Rights and misfeasance in public office causes of action and in the malicious prosecution proceeding. Nor, at present, do I see any basis for the allegations of bad faith made in the pleading to be taken into account on questions of costs. Given that the Society seeks costs only on a 2B basis, the point is probably moot in any event.
[8] Mr Morgan had filed a memorandum for the 21 August 2013 conference in which costs totalling $67,116 were sought against Mr Orlov on his unsuccessful
11 Ibid.
judicial review application.12 I was satisfied that the question of costs had been reserved and that no direction had been made about whether they would be heard and determined before the severed Bill of Rights claim. I added:13
[13] In my view, the best course is to treat Mr Morgan’s memorandum on costs as an application and to require Mr Orlov to file and serve a memorandum in response on or before 8 November 2013. I will hear from counsel at the December hearing on costs.
The December 2013 hearing did not proceed.
[9] A further telephone conference was scheduled for 9 April 2014. When it was held, I was advised that Mr Orlov could not be contacted at either the landline or mobile number provided. I proceeded to hear from Mr Morgan on how I should deal with questions of security for costs and costs on the substantive judicial review application. I did so bearing in mind the factors raised by Mr Orlov in a memorandum of 8 April 2014, which had been forwarded to me by the Registrar. Mr Orlov sought an adjournment of the remaining proceedings (and interlocutory applications) until the outcome of his appeal to this Court against the strike off order had been resolved.
[10] Having considered those factors, I made a number of directions:14
[10] As it happens, I am currently engaged in a lengthy trial in the South Island and am unlikely to be available to conduct any defended hearings in Auckland until August 2014, at the earliest. That being so, Mr Orlov will effectively obtain an adjournment, though his non-compliance with earlier directions made in August 2013 persuades me that he should be required to prepare documentation readying the applications for hearing.
[11] On the question of costs on the judicial review application, Mr Orlov shall file and serve a memorandum in response to that of Mr Morgan on or before 18 July 2014. The Registrar shall set that application down for hearing before me on the first available date after 1 August 2014. If Mr Orlov does not file written submissions by 18 July 2014, I will determine the application on the papers.
[12] On the application for security for costs, Mr Orlov shall file and serve any further submissions and/or affidavits in opposition on or before 18
12 Orlov v New Zealand Law Society [2013] 1 NZLR 390 (HC) and Orlov v New Zealand Law
Society [2013] 3 NZLR 562 (CA).
13 Ibid, para [13].
14 Orlov v New Zealand Law Society HC Auckland CIV-2010-404-2868, 9 April 2014 (Minute
(No. 19)).
July 2014. That application shall be set down for hearing contemporaneously with the costs application. If no further submissions or affidavits are filed by Mr Orlov by the specified date, I will determine the application on the papers.
[13] In respect of all remaining issues relating to the two proceedings, I will hold a case management conference at the next hearing and make further directions then. If the hearing does not proceed, I will convene a telephone conference in any judgment that I give that deals with costs and security for costs.
[14] In the meantime, all questions of costs are reserved.
Mr Orlov’s latest application
(a) The application
[11] On 17 July 2014, Mr Orlov filed an application in these terms:
(a) That [Mr Orlov] be given an extension of time to file affidavit evidence in support of the opposition concerning security for costs with such extension to be until such time the High Court hands down its decision in the appeal against the striking off by the Disciplinary Tribunal and/or that a hearing of the opposition be deferred until the said appeal is finally determined.
(b) That the issue of costs in the judicial review CIV-2013-404-2868 and the requirement to file submissions be deferred until the question of threshold is finally determined by the Supreme Court and/or until the [Bill of Rights’] claim has been finally determined and that [Mr Orlov] be given the opportunity of an oral hearing on the issue.
(c) That Justice Heath consider the issues concerning his relationship with Mr Morgan QC in terms of the Saxmere principles and issue a reasoned decision or minute concerning whether or not he has had a professional relationship with Mr Morgan.
(d) That Justice Heath set down a hearing as to the issue of whether he has already determined the question of bad faith in the circumstances where bad faith was specifically reserved for the [Bill of Rights] proceedings and [Mr Orlov] be granted an opportunity to make submission and file evidence on the question.
(b) Extension of time
[12] I am aware that the Registrar has allocated a hearing for the costs and security for costs applications at 10am on 25 August 2014. One day has been allocated. As it happens, the trial in the South Island to which I referred in my Minute of 9 April 2014 is continuing, and is likely to finish either late next week or
the week after. That being so, it is unlikely that I would have time to write a judgment on the papers before that intended hearing.
[13] While I have reservations about the appropriateness of Mr Orlov’s continuing applications to adjourn the present proceedings until after his appeal against the strike off decision has been finally determined, I am not prepared to deprive him of an opportunity to be heard when it is unlikely that the issue could be resolved before
25 August 2014, in any event. Accordingly, on Mr Orlov’s application, I extend time for him to file and serve papers in terms of my previous directions15 until 5pm on Friday 15 August 2014.
[14] I am not prepared to adjourn the present applications beyond 25 August 2014. There is no cogent medical evidence to suggest Mr Orlov is unable to deal with two relatively routine issues at that time.
(c) Recusal
[15] The second point that Mr Orlov has raised relates to recusal. This is the first time this point has been raised since I became seized of the proceeding in 2011. I decline to disqualify myself.
[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.16 In Saxmere Company Ltd v Wool Board Disestablishment Company Ltd17 the Supreme Court held that the
relationship between Wilson J and Mr Galbraith QC (counsel) was not sufficient to
15 Ibid, at paras [11] and [12], set out at para [10] above.
16 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2010] 1 NZLR 35 (SC).
17 Ibid.
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.18 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.19
(c) “Bad faith” issues
[18] The question of “bad faith” raised by Mr Orlov20 has already been determined by me.21
Result
[19] Mr Orlov’s application to extend time is granted.22 The two applications will be heard at 10am on 25 August 2014 in Auckland.
[20] I decline to disqualify myself from hearing the two applications for hearing on 25 August 2014, and the remaining Bill of Rights and malicious prosecution
proceedings.23 I have already dealt with the “bad faith” issue.24
18 Ibid, at para [16].
19 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2010] 1 NZLR 76 (SC), at paras [17], [18] and [19].
20 See para (d) of his application: set out at para [11] above.
21 Orlov v New Zealand Law Society HC Auckland CIV-2010-404-2868, 21 August 2013, at paras
[8] and [9] set out at para [6] above.
22 See para [13] above.
23 See paras [15]–[17] above.
24 See para [19] above.
[21] In the meantime, all questions of costs remain reserved.
P R Heath J
Delivered at 2.00pm on 29 July 2014
Solicitors:
Glaister Ennor, PO Box 63, Auckland
Counsel:P J Morgan QC, PO Box 19021, Hamilton
E Orlov, PO Box 8333, Auckland
2