Orlov v New Zealand Law Society
[2012] NZHC 2154
•24 August 2012
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-2868 [2012] NZHC 2154
BETWEEN EVGENY ORLOV Plaintiff
ANDNEW ZEALAND LAW SOCIETY First Defendant
ANDAUCKLAND LAWYERS STANDARDS COMMITTEE (APPOINTED UNER SECTION 356 LAWYERS AND CONVEYANCERS ACT 2006)
Second Defendant
ANDAUCKLAND LAWYERS STANDARDS COMMITTEE NO. 1
Third Defendant
ANDNATIONAL STANDARDS COMMITTEE Fourth Defendant
Hearing: 28, 29 February 2012
1, 2, 5, 6, 7 March 2012
Counsel: E Orlov, in person, Plaintiff
P J Morgan QC and W C Pyke for Defendants
Judgment: 24 August 2012
JUDGMENT (NO. 8) OF HEATH J
This judgment was delivered by me on 24 August 2012 at 4.00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Glaister Ennor, PO Box 63, Auckland
Counsel:P J Morgan QC, PO Box 19021, Hamilton
W C Pyke, PO Box 19271, Hamilton
E Orlov, PO Box 8333, Auckland
ORLOV V NEW ZEALAND LAW SOCIETY HC AK CIV 2010-404-2868 [24 August 2012]
Contents
1. The proceeding [1]
2. The charges [11]
3. The complaints and disciplinary processes
(a) Introduction [14]
(b) The 1982 Act
(i) General background [16]
(ii) Complaints and disciplinary procedure [21]
(c) The 2006 Act [39]
4. Judicial review of prosecutorial decisions [58]
5. References to the Tribunal: Is there a threshold test?
(a) The nature of the issue [63]
(b) Functions and powers [67] (c) Standard of proof [77] (d) Conclusions [78]
6. Grounds of review
(a) Mr Orlov’s submissions [83]
(b) Relevance of international instruments and
Bill of Rights [86]
(c) The subordinate “legislation” [95]
7. Approach to determination [103]
8. The s 356 committee [106]
9. The No 1 Committee [113]
10. The National Standards Committee
(a) Establishment of the National Committee [127]
(b) The “own motion” investigations [132]
(c) The “own motion” investigations: threshold issues [143]
11. Conclusions [158]
12. Result [160]
13. Addendum [163]
1. The proceeding
[1] Mr Orlov is a Barrister and Solicitor of the High Court of New Zealand. Currently, he holds a practising certificate as a barrister. During 2009 and 2010, various complaints were made to the New Zealand Law Society (the Society) about Mr Orlov. They included complaints about his professional competence. Having considered the complaints, decisions were made by three Standards Committees1 to refer particular complaints or matters to the New Zealand Lawyers’ and
Conveyancers’ Disciplinary Tribunal (the Tribunal).
1 Established under s 126 of the Lawyers and Conveyancers Act 2006.
[2] Mr Orlov seeks judicial review of decisions made by each of three Standards Committees that determined that complaints with which they were dealing should be referred to the Tribunal. The decisions are captured in charges that the Standards Committees crafted, after their decisions.2 Mr Orlov’s case is that the relevant Standards Committees:
(a) improperly used the disciplinary processes as part of a concerted effort to prevent Mr Orlov from practising his profession;
(b) breached relevant principles of natural justice; (c) failed to follow its own procedures;
(d)made decisions vitiated through actual or apparent bias on the part of their members; and
(e) acted in excess of the powers conferred on them by the Act and subordinate instruments.
[3] Although raised in interlocutory applications, Mr Orlov did not press a submission that the decisions of the Standards Committees could be impugned on bad faith grounds. He submitted that the case turned on whether there had been breaches of the principles of natural justice, a failure to follow statutory procedures and actual or apparent bias.
[4] Mr Orlov also submitted that the Standards Committees had acted ultra vires in failing to apply a threshold test in determining whether the allegations contained in particular charges should be referred to the Tribunal for determination. He contended that, in determining to refer certain complaints to the Tribunal, the Standards Committees failed to take account of a threshold test: namely, whether there was enough evidence to justify the extreme step of referring a complaint to the
Tribunal, to consider whether misconduct had been proved.
2 See paras [11] and [12] below.
[5] Mr Orlov submits that Standards Committees should only formulate charges for the Tribunal’s consideration if there were a real risk, if the charges were proved, that the practitioner might be suspended from practice or struck off the roll of Barristers and Solicitors of the High Court.
[6] Mr Morgan QC, for the Society and the relevant Standards Committees, submitted that none of the grounds for review advanced by Mr Orlov had been made out. Among others, he raised three legal points which go to the heart of most of Mr Orlov’s complaints. They are:
(a) In the absence of a finding of bad faith, there is no ability for this Court, exercising its judicial review jurisdiction, to call into question the decisions of the relevant Standards Committees to lay charges before the Tribunal.3 Parliament has decided to confer jurisdiction for such matters on Standards Committees and the Tribunal and this Court should not trespass into the realms delegated to them.
(b)There was no threshold standard to which the Committees had to be satisfied before deciding not to exercise their own judicial powers to determine the complaints but to lay charges before the Tribunal.4
(c) The Court should exercise its discretion not to grant relief as Mr Orlov has failed to exhaust remedies open to him under the 2006 Act; specifically, the ability to apply to the Legal Complaints Review Officer to review a decision of a Standards Committee.5
[7] Mr Morgan summarised his response to Mr Orlov’s case as:
(a) There has been compliance with all statutory processes.
3 This submission was based on Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) per
Randerson J and the authorities to which it refers.
4 See Part 5 below.
5 Lawyers and Conveyancers Act 2006, ss 190, 193, 195, 199, 200, 209, 211 and 212. See also paras [69]–[73] below.
(b) There has been no misconduct of a type that would justify the Court’s
intervention on judicial review.
(c) Any issues about the sufficiency of evidence to bring a charge, or the merits generally, are matters for the Tribunal to determine; not the Court on judicial review.
(d)Mr Orlov has failed to exercise all statutory rights by omitting to apply to the Legal Complaints Review Officer to review the Standards Committees’ decisions.
[8] Although the Amended Statement of Claim is extensive, Mr Orlov’s submissions were even more wide-ranging. Mr Morgan made it clear that the parties whom he represented had approached the case squarely on the basis of the allegations set out in the Amended Statement of Claim. I agree with Mr Morgan that I should restrict my consideration of the issues in the same way. Having said that, there were nuanced arguments on legal issues that arose out of particular pleadings. Where necessary, I consider and determine such points.
[9] There were marked differences between Mr Orlov and Mr Morgan about the extent to which it was permissible for me to review matters of fact. I agree with Mr Morgan that it is inappropriate for me to determine whether the primary facts on which each charge rests can be proved, as a matter of evidence. Applying orthodox principles, those facts must be assumed to be capable of proof before the Tribunal. A different question arises as to whether the facts on which the Standards Committees have relied to base their charges cross any relevant threshold for reference to the Tribunal.
[10] There are two areas of conflict between counsel about this Court’s approach to judicial review which require discrete treatment before I consider the decisions made by the Standards Committees. First, there is the question whether this Court should exercise jurisdiction to review a “prosecutorial” decision. That turns on whether the decision of the Standards Committee requiring a complaint to be
considered by the Tribunal is characterised as prosecutorial or judicial in nature.6
The second is whether it was necessary for the Standards Committees to be satisfied that a particular threshold had been met before it could decide to refer a complaint to the Tribunal.7
2. The charges
[11] Two sets of charges have been formulated and laid before the Tribunal. One set, containing 13 charges, was prepared following investigations by the Auckland Lawyers Standards Committee (the s 356 Committee)8 and the Auckland Lawyers Standards Committee (No 1) (the No 1 Committee):
(a) In Charge 1, the s 356 Committee alleges that Mr Orlov misconducted himself in his professional capacity when swearing an affidavit in a proceeding in the District Court at Whangarei, on 27 September 2007.
(b)In Charge 2, the No 1 Committee alleges that Mr Orlov misconducted himself in his professional capacity by failing to comply with a lawful requirement, namely the provision of his file to the s 356 Committee in the course of its investigations into the subject matter of Charge 1. This is alleged to have occurred on 31 March 2009, the date by which the file had been required.
(c) In Charge 3, the No 1 Committee alleges that Mr Orlov misconducted himself in his professional capacity by failing to follow instructions to file a defence for a client in District Court proceedings in a timely fashion. This allegedly occurred between 22 May 2007 and 21
February 2008.
6 See Part 4 below.
7 See Part 5 below.
8 Section 356 is discussed at para [36] below.
(d)In Charge 4, the No 1 Committee alleges that Mr Orlov misconducted himself when providing regulated services between 1 September 2008 and 31 January 2009, by acting as counsel on an appeal to the High Court against a decision of the District Court, in proceedings in which his conduct as counsel was in issue.
(e) Charge 5 is an alternative to Charge 4. The No 1 Committee alleges that Mr Orlov, was guilty of “unsatisfactory conduct”, in the circumstances described in Charge 4.
(f) In Charge 6, the No 1 Committee alleges that Mr Orlov misconducted himself between 24 October 2008 and 31 January 2009 when providing regulated services. This arises out of the filing of an appeal to the Court of Appeal, allegedly without instructions from a client.
(g)Charge 7 is an alternative to charge 6 which alleges, in the same circumstances, that Mr Orlov was guilty of unsatisfactory conduct.
(h)In Charge 8, the No 1 Committee alleges that Mr Orlov was guilty of unsatisfactory conduct by providing regulated services, between 1
September 2008 and 31 January 2009, by continuing to act as counsel when it ought to have been apparent to him that the High Court might decline to hear argument on the issues arising from an affidavit he had sworn about his conduct in a District Court proceeding.
(i)In Charge 9, the No 1 Committee alleges that Mr Orlov was guilty of misconduct in providing regulated services, between 1 December
2008 and 1 March 2009, in breach of the intervention rule.
(j)In Charge 10, the No 1 Committee alleges that Mr Orlov was guilty of unsatisfactory conduct in providing regulated services in a case in which he acted incompetently as counsel. The date on which the conduct allegedly occurred is not set out in the charge. The precise allegation is that Mr Orlov’s “conduct when acting as counsel in the ...
proceedings fell short of the standard of competence and diligence that a member of the public [was] entitled to expect of a reasonably competent lawyer”.
(k)In Charge 11, the No 1 Committee alleges that Mr Orlov was guilty of misconduct when providing regulated services, between 1 November
2008 and 19 November 2008, in proceedings in which he instructed his barrister’s clerk to take an affidavit from a client in habeas corpus proceedings, when she was not authorised by law to take an affidavit.
(l)Charge 12 is an alternative to charge 11 and alleges that, in the same circumstances, Mr Orlov was guilty of unsatisfactory conduct.
(m)In Charge 13, the No 1 Committee alleges unsatisfactory conduct against Mr Orlov between 1 November 2008 and 19 November 2008 in conducting a habeas corpus application when his “standard of competence and diligence” fell below that which “a member of the public [was] entitled to expect of a reasonably competent lawyer”.
Those charges are supported by evidence from Mr Heyns, contained in an affidavit sworn on 15 June 2010. Some are also supported by evidence from other witnesses relevant to the particular charges. These charges were laid on 15 June 2010.
[12] The second set, containing 11 charges, were laid by the National Standards
Committee (the National Committee):
(a) In Charge 1, the National Committee alleges that Mr Orlov was guilty of misconduct that would justify a finding that he was not a fit and proper person (or was otherwise unsuited) to engage in the practice of law as a result of “deliberately or recklessly making false and scandalous allegations about” Harrison J, in a letter dated 6 August
2008 to the then Chief High Court Judge, Randerson J.
(b)Charge 2 is an alternative to Charge 1. It alleges that the misconduct arose from making such allegations in circumstances “that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable”.
(c) In Charge 3, the National Committee alleged that Mr Orlov was guilty of misconduct, on the grounds that it was “disgraceful or dishonourable” when he applied for an order that Harrison J be permanently recused from all cases involving himself and a colleague, Mr Deliu. That application was based on allegations of bias (actual or apparent) and disproportionate treatment.
(d)Charge 4 is an alternative to Charge 3. It is based on the proposition that Mr Orlov “is not a fit and proper person or is otherwise unsuited” to be in practice as a lawyer.
(e) In Charge 5, the National Committee alleges that Mr Orlov was guilty of misconduct, on the “disgraceful or dishonourable” standard, by making “deliberately or recklessly” “false and scandalous allegations” about Harrison J. Those allegations were set out in a notice of application for special leave to appeal to the Supreme Court, dated 14
October 2008.
(f) Charge 6 alleges that Mr Orlov was guilty of misconduct (on “fit and proper person” grounds) by making “deliberately or recklessly” “false and scandalous allegations” about Harrison J in a claim filed in the Human Rights Tribunal, on or about 13 March 2009.
(g)Charge 7 alleges that Mr Orlov was guilty of misconduct (on fit and proper person or unsuitable to act as a lawyer grounds) by making false and scandalous allegations about Harrison J, in a letter sent on
11 February 2009 to the Judicial Conduct Commissioner.
(h) Charge 8 is an alternative to Charge 7 and alleges misconduct based
on “disgraceful or dishonourable” conduct grounds.
(i)Charge 9 alleges that Mr Orlov was guilty of misconduct in his professional capacity by making false allegations in submissions to a Family Court Judge in a case involving care and protection of a child.9
The conduct allegedly occurred between 12 November 2007 and 4
April 2008.
(j)Charge 10 also relates to the Family Court case and alleges that Mr Orlov was guilty of conduct unbecoming a barrister and solicitor between the same dates by his conduct of the proceeding; including an application to have counsel for the opposing party to be held in contempt and by eliciting irrelevant evidence in examination and cross-examination of witnesses.
(k)Charge 11 is what I characterise as a charge of “serial negligence or incompetence” and arises out of a number of cases in which Mr Orlov was involved between 1 January 2007 and 31 December 2009. It is alleged that the conduct was of such a degree and/or so frequent as to reflect upon his fitness to practise, or to bring the profession into disrepute.10
These charges are supported by affidavits from Ms Ollivier and Mr Heyns. Charges
9, 10 and 11 are also supported by counsel for the opposing party in the Family
Court case, Ms Lellman. The charges were laid on 13 May 2011.
[13] I deal later with the circumstances in which charges that had previously been before either the s 356 Committee came to be transferred to and dealt with by the
National Committee.11
9 I refer to this case as the “Family Court case” when later discussing it.
10 There are some questions involving the transitional provisions of the 2006 Act inherent in this charge because it spans periods during which the 1982 and 2006 Act (respectively) were in force. In particular, see paras [33]–[38] below.
11 See para [128] below.
3. The complaints and disciplinary processes
(a) Introduction
[14] In its original form, this proceeding sought declarations and damages arising out of alleged breaches of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and the judicial review application. In a judgment given on 7 December
2011, I severed the Bill of Rights claims from those involving judicial review, so that the time available for a hearing could be used to ensure that challenges to the charges brought could be heard in the time allocated.12 Mr Orlov appealed unsuccessfully
against that decision.13 There also remains a separate proceeding in which Mr Orlov
has sought damages for misfeasance in public office. That too stands adjourned until I determine the judicial review claims.14 The Tribunal has adjourned the hearing of the charges, pending determination of the judicial review application by this Court.15
[15] Until August 2008, the legal profession was regulated by the Law
Practitioners Act 1982 (the 1982 Act). The profession was re-organised, from 1
August 2008, by the Lawyers and Conveyancers Act 2006 (the 2006 Act). As some of the complaints about Mr Orlov’s conduct occurred at a time when the 1982 Act remained in force, it is necessary to compare the complaint and disciplinary provisions of each statute. That analysis will also require some discussion about provisions of subordinate instruments;16 namely the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (the Regulations); and Practice Note Concerning the Functions and Operations of Lawyers’ Standards Committees (the Practice Note). The Lawyers’ Complaints
Service Procedure Manual (the Procedure Manual) is also relevant.
12 Orlov v New Zealand Law Society (No 5) HC Auckland CIV 2010-404-2868, 7 December 2011.
13 Orlov v New Zealand Law Society [2012] NZCA 12.
14 I will preside over the remaining aspects of the proceedings, should they go to trial.
15 Auckland Standards Committees v Orlov [2011] NZLCDT 12.
16 See para [45] below.
(b) The 1982 Act
(i) General background
[16] Under the 1982 Act, the legal profession was divided into districts managed by District Law Societies. Together those societies made up the New Zealand Law Society, which had the following general functions:17
(a) To promote the interests of the legal profession and the interests of the public in relation to legal matters;
(b)To promote and encourage proper conduct among the members of the legal profession;
(c) To suppress illegal, dishonourable, or improper practices by members of the legal profession;
(d)To preserve and maintain the integrity and status of the legal profession;
(e) To promote opportunities for the acquisition and diffusion of legal knowledge and skills relating to the practice of law
(f) To assist in and promote the reform of the law;
(g)To provide means for the amicable settlement of professional differences between members of the legal profession.
[17] Section 5 conferred on the Society all such powers, rights and authorities as were reasonably necessary for, or conducive to, the exercise of any of its functions. This included the Society’s power to institute prosecutions against practitioners or
other persons for the breach of any statute, rules or regulations relating to the
17 Law Practitioners Act 1982, s 4.
practice of the law.18 Section 17 empowered the Society to make rules providing for the regulation and good governance of the Society and its members.19
[18] While the Society generally made rules under which lawyers practised, their enforcement was the primary responsibility of District Law Societies. Nevertheless, those functions overlapped and the complaints and disciplinary processes took place at both a district and national level. Judicial bodies were established to hear disciplinary charges; a District Disciplinary Tribunal (District Tribunal) for each district and the New Zealand Law Practitioners Disciplinary Tribunal (NZ Tribunal).
[19] Part 7 of the 1982 Act governed the complaints and disciplinary procedure. In summary, it provided for:20
(a) the making of complaints by members of the public,21 (b) the initiation of an investigation by a District Council,22 (c) the establishment of District Complaints Committees,23
(d)the carrying out of an inquiry into complaints and the laying of charges against a practitioner,24
(e) the establishment of District Tribunals and the NZ Tribunal to hear charges,25
(f) the appointment of lay members to each of the Tribunals,26
18 Law Practitioners Act 1982, s 5(d).
19 For example, the Rules of Professional Conduct for Barristers and Solicitors (1998).
20 Part 8 of the 1982 Act also contained discrete provisions that dealt with complaints about fees rendered by a practitioner. Those provisions need not be considered for present purposes.
21 Ibid, s 98.
22 Ibid, s 99.
23 Ibid, 100.
24 Ibid, s 101.
25 Ibid, ss 103 and 108.
26 Ibid.
(g) the function and powers of both Tribunals,27
(h)the interim suspension of a practitioner by the NZ Tribunal, pending the hearing of charges,28
(i)the provision of a right of appeal to the NZ Tribunal from a decision of a District Tribunal,29
(j) the conduct of hearings in public,30
(k)the making of orders striking the practitioner off the roll, suspending the practitioner or relating to the employment of the practitioner,31
(l) a right of appeal to the High Court against an order or decision of the
NZ Tribunal.32
[20] The High Court's historical (summary) jurisdiction over law practitioners was retained.33 Sections 92 and 93 of the 1982 Act provided that an application could be made to the High Court for the name of a practitioner to be struck off the roll for reasonable cause, in accordance with s 93.34
(ii) Complaints and disciplinary procedure
[21] Under the 1982 Act, a complaint by a member of the public was received by the District Law Society of which the practitioner in question was a member at the relevant time.35 If the District Council had reasonable cause to suspect that a
practitioner had been guilty of conduct of a kind specified in s 106(3)(a) to (c), or
27 Ibid, and s 112.
28 Ibid, s 115.
29 Ibid, s 107.
30 Ibid, s 111.
31 Ibid, ss113 and 114.
32 Ibid, s 118.
33 Ibid, ss 92, 93 and 94.
34 For example, Auckland District Law Society v Neutze [2006] 2 NZLR 551 (HC).
35 Law Practitioners Act 1982, s 98.
had been convicted of an offence punishable by imprisonment it could instigate an own motion investigation into the matter.36
[22] The subsequent inquiry (whether on a complaint or of the District Council’s own motion) could be undertaken by the District Council, or by one or more Complaints Committees appointed under s 100.37 Either way, the person against whom the complaint was made had to be informed of the particulars of the complaint against him or her, and invited to provide a written explanation in answer to the complaint.38
[23] If, at the conclusion of its investigation, the District Council or Committee was of the opinion the case was of sufficient gravity to warrant the making of a charge, it was required to bring a charge against the practitioner, before either the District Tribunal or the NZ Tribunal.39 Section 101(5) required the District Council or Committee to notify the complainant and the person complained against of its conclusions and of any action taken or to be taken by it as a result of the inquiry.
[24] Each District Tribunal consisted of five to eight practitioners and two lay members.40 Except as provided by the 1982 Act, each could determine its own procedure.41 However, neither a District nor NZ Tribunal could exercise any of the disciplinary functions conferred on it by Part 7 without giving the practitioner a reasonable opportunity to be heard in his or her own defence, either in person or by
counsel.42
[25] The powers of the District Tribunal were set out in s 106. Having inquired into any charge against a practitioner, the District Tribunal could make a finding that
the practitioner had been guilty of misconduct in his professional capacity,43 conduct
36 Ibid, s 99.
37 Ibid, s 101(1).
38 Ibid, s 101(3)(a).
39 Ibid, s 101(2).
40 No member of a District Law Society who had taken part in the investigation of a complaint
against any person under s 101 was eligible to sit as a member of the District Tribunal on the hearing or determination of any charge against that person arising out of the same complaint.
41 Law Practitioners Act 1982, s 103(7).
42 Ibid, s 124.
43 Ibid, s 106(3)(a).
unbecoming a barrister or a solicitor,44 qualifying negligence or incompetence in his professional capacity45 or had been convicted of a relevant offence punishable by imprisonment.46
[26] Concepts such as “misconduct in his or her professional capacity” and “conduct unbecoming a barrister or solicitor” were not defined in the 1982 Act, although several provisions deemed a practitioner, in particular circumstances, to be guilty of misconduct in a professional capacity.47 The terms were judicially defined, from time to time, but, for present purposes, it is unnecessary to go into the relevant cases.
[27] If, following the making of such a finding, the District Tribunal was of the opinion that the case was of sufficient gravity to warrant its referral to the NZ Tribunal, it was required to refer the case accordingly.48 If that threshold was not met, it could make any of the orders under s 106(4) that it considered appropriate, such as:
(a) imposing a penalty payable to the District Law Society;49
(b) censuring the practitioner;50
(c) placing conditions on the practitioners work;51
44 Ibid, s 106(3)(b).
45 Ibid, s 106(3)(c).
46 Ibid, s 106(3)(d).
47 See for example s 67 (Solicitors not to act as agents for unqualified persons) and ss 59 and 114 (acting in contravention of orders of the District Council or Tribunal, respectively)
48 Ibid, s 106(2).
49 Ibid, s 106(4)(a).
50 Ibid, s 106(4)(b).
51 This includes an order that the practitioner shall cease to accept work, or to hold himself out as competent, in such fields of practice, and for such period or periods, as are specified in the order
(s 106(4)(c)); order the practitioner to reduce fees for any work done by him that is the subject of proceedings before the Tribunal (s 106(4)(f); order the practitioner to make his practice available for inspection (s 106(4)(g)); order the practitioner to make reports on his practice (s 106(4)(h)); order the practitioner to take advice in relation to the management of his practice from such persons as are specified in the order.
(d) requiring him or her to complete work for (or pay compensation to)52
any specified person;53 and
(e) requiring him or her to pay to the District Law Society such sums as the Tribunal thinks fit in respect of costs and expenses of inquiry into the matter.54
[28] If no referral to the NZ Tribunal was made, and the District Tribunal did not consider the practitioner to be guilty of any of the conduct described in s 106(3), but was of the opinion, having regard to the circumstances of the case, that the making of the charge was justified, it had power to make one or more of the orders set out in s 106(4)(e) – (i), namely those directed at matters such as payment of compensation, fees, reporting and practice management.
[29] The NZ Tribunal comprised five to 12 practitioners and three lay persons.55
Unless the 1982 Act provided otherwise the NZ Tribunal determined its own procedure,56 and was empowered to make rules in respect of the making, hearing and determination of applications, inquiries, appeals and other proceedings before it or before any District Tribunal.57 Except in the particular circumstances described in s
111, every hearing of the NZ Tribunal was required to be held in public.
[30] The functions of the NZ Tribunal were set out in s 110:
110 Functions of New Zealand Disciplinary Tribunal
(1) The principal function of the New Zealand Law Practitioners
Disciplinary Tribunal shall be to hear and determine—
(a) Any charge against a practitioner that is referred to it by a
District Disciplinary Tribunal:
52 Law Practitioners Act 1982, s 106(4)(e).
53 Ibid, s 106(4)(d).
54 Ibid, s 106(4)(j).
55 Ibid, s 108(2). As with the District Tribunal, a practitioner who was a member of the District
Tribunal, District Council or a Complaints Committee considering a complaint was not eligible to sit as a member of the NZ Tribunal on the hearing or determination of any proceedings before it in respect of a practitioner who practises in the district in which the District Tribunal, District Council or Committee of which he is a member had jurisdiction (section 109(3)).
56 Ibid, s 108.
57 Ibid, s 130.
(b) Any charge against a practitioner or an employee of a practitioner that is made to it by a District Council or a complaints committee:
(c) Any appeal against a decision of a District Disciplinary
Tribunal.
(2) The Tribunal shall have such other functions as are conferred on it by this Act.
[31] The NZ Tribunal’s powers were set out in s 112:
112 Powers of New Zealand Disciplinary Tribunal in respect of charge against practitioner
(1) Subject to this Part of this Act, if the New Zealand Disciplinary
Tribunal—
(a) Is of the opinion that the practitioner has been guilty of misconduct in his professional capacity; or
(b) Is of the opinion that the practitioner has been guilty of conduct unbecoming a barrister or a solicitor; or
(c) Is of the opinion that the practitioner has been guilty of negligence or incompetence in his professional capacity, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his fitness to practise as a barrister or solicitor or as to tend to bring the profession into disrepute; or
(d) Is satisfied that the practitioner has been convicted of an offence punishable by imprisonment, and is of the opinion that the conviction reflects on his fitness to practise as a barrister or solicitor, or tends to bring the profession into disrepute,—
it may if it thinks fit make an order under this section.
[32] The orders available to the NZ Tribunal upon making a finding that a practitioner was guilty of conduct of the type describes in s 112(1)(a) to (d) were of a more severe nature than those available to the District Tribunal.58 They included
striking the practitioner’s name off the roll,59 suspending the practitioner from
practice for a period of up to three years, restricting the practitioner’s ability to
practice on his own account, fining or censuring the practitioner, and making any
58 Ibid, s 112(2).
59 Subject to s 113, which provided that an order striking a practitioner’s name off the roll could not be made unless the NZ Tribunal was of the opinion, by reason of the practitioner’s conduct, that he was not a fit and proper person to practise as a barrister or solicitor.
order that could be made by a District Tribunal under paragraphs (e) to (i) of s
106(4).60
(c) Transitional provisions
[33] The 2006 Act came into force on 1 August 2008. Sections 350–361 of the
2006 Act set out a number of transitional provisions, in respect of complaints and disciplinary proceedings. These transitional provisions are relevant to the alleged conduct of Mr Orlov before 1 August 2008, on which some charges have been based.61
[34] Relevantly, ss 350 and 351 provide:
350 Prohibition on complaints and investigations under Law
Practitioners Act 1982
After the commencement of this section,—
(a) no complaint may be made under section 98(1) of the Law
Practitioners Act 1982; and
(b) no complaint (other than a complaint received before the commencement of this section) may be referred, under section 98(2) of the Law Practitioners Act 1982, to a District Law Society; and
(c) no investigation into any matter may be commenced under section 99 of the Law Practitioners Act 1982.
351 Complaints about conduct before commencement of section
(1) If a lawyer or former lawyer or employee or former employee of a lawyer is alleged to have been guilty, before the commencement of this section, of conduct in respect of which proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982, a complaint about that conduct may be made, after the commencement of this section, to the complaints service established under section 121(1) by the New Zealand Law Society.
60 An order that could be made under any one or more of the provisions of s 106(4)(e) to (i) of the
1982 Act by the District Tribunal could also be made by the NZ Tribunal if no finding of improper conduct under s 112(1) were made, but in the circumstances of the case the Tribunal were nonetheless of the opinion that the making of the charge was justified.
61 See para [11] above, Charges 1 and 3 and para [12], Charges 9, 10 and 11.
(2) Despite subsection (1), no person is entitled to make under this
Act—
(a) a complaint that has been disposed of under the Law
Practitioners Act 1982; or
(b) a complaint in respect of—
(i) conduct that occurred more than 6 years before the commencement of this section; or
(ii) regulated services that were delivered more than 6 years before the commencement of this section; or
(iii) a bill of costs that was rendered more than 6 years before the commencement of this section.
...
Section 351(3) specifies when a complaint is treated as having been disposed of under the 1982 Act. Section 353 provides that, subject to ss 354 to 361, disciplinary proceedings already underway at the commencement of the 2006 Act are to be continued and completed as if the 1982 Act had not been repealed.
[35] Section 352 provides that if a complaint were made under the 2006 Act about conduct that occurred before its commencement, any penalty imposed in respect of that conduct must be a penalty that could have been imposed in respect of that conduct under the 1982 Act, unless the practitioner in question gives consent for a penalty to be imposed that could only have been imposed in respect of conduct occurring after the commencement of the Act.
[36] Section 356 provides that if any proceedings to which s 353 of the 2006 Act applies have not been determined by the close of the period of six months from the date of commencement of the Act, the Society must appoint a Lawyers’ Standards Committee62 to carry out the duties and exercise the powers that a Complaints Committee (appointed pursuant to section 100 of the 1982 Act) would have had.
[37] Section 357 provides for a similar process to be undertaken in appointing a
Lawyers Standards Committee (not being a s 356 Committee) to exercise the role of
62 Not being a Lawyers’ Standards Committee that has under s 357 of the Act the powers of a
District Disciplinary Tribunal in relation to those proceedings.
the District Tribunal. Section 106(4) of the 1982 Act, which sets out the types of orders the District Tribunal could make following a finding of improper conduct, continues to have effect for the purposes of s 357.
[38] Finally, if proceedings to which s 353 of the Act applied were not determined by the close of the period of six months from the date of commencement of the Act, then, from the close of that period, the Tribunal had, despite the repeals effected by the Act, the duties and powers that the NZ Tribunal (established under the 1982 Act) would have had in relation to those proceedings, if the 1982 Act had not been repealed.63
(c) The 2006 Act
[39] The 2006 Act is focussed on consumer protection and the need for public confidence in the provision of legal services. It sets out three express purposes: 64
(a) to maintain public confidence in the provision of legal services and conveyancing services,
(b) to protect the consumers of legal and conveyancing services,
(c) to recognise the status of the legal profession and to establish the new profession of conveyancing practitioner.
[40] Those purposes are more directly focussed on the protection of clients and confidence of the public in the legal system than was the 1982 Act.65 To achieve those purposes the 2006 Act (among other things) endeavours to provide a regulatory
regime that is more responsive to consumer concerns.66
63 Lawyers and Conveyancers Act 2006, s 358(1).
64 Ibid, s 3(1).
65 See para [16] above.
66 Lawyers and Conveyancers Act 2006, s 3(2)(b).
[41] Part 7 of the 2006 Act, establishes procedures for complaints and discipline. It must be read subject to what are termed “fundamental obligations of lawyers”, set out in s 4 of the 2006 Act:
4 Fundamental obligations of lawyers
Every lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:
(a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:
(b) the obligation to be independent in providing regulated services to his or her clients:
(c) the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:
(d) the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.
[42] Part 7 is designed to enable complaints to be addressed and for disciplinary charges to be heard and determined expeditiously.67 To achieve those goals, the Society is authorised to make necessary rules to give effect to the framework.68 The inherent jurisdiction of this Court to discipline lawyers, in their capacity as officers of the High Court, is not affected.69
[43] The Society is required to establish one or more Lawyers’ Standards’ Committees.70 Each Standards Committee consists of at least three persons, one of whom must be a lay member.71 The functions of Standards Committees are set out
in s 130:
67 Ibid, s 120(3).
68 Ibid, s 120(4).
69 Ibid, s 120(6). As an example of the exercise of that summary jurisdiction, in the context of an application to suspend a practitioner, see Auckland District Law Society v Neutze [2006] 2
NZLR 551 (HC). Neutze was decided while the 1982 Act was in force and reliance was also placed on s 94 of that Act.
70 Ibid, s 126.
71 Ibid, s 129(1) and (2).
130 Functions of Standards Committees
The functions of each Standards Committee are (subject to any limitations imposed on the committee by or under this Act or the rules that govern the operation of the committee)—
(a) to inquire into and investigate complaints made under section 132: (b) to promote, in appropriate cases, the resolution of complaints by
negotiation, conciliation, or mediation:
(c) to investigate of its own motion any act, omission, allegation, practice, or other matter that appears to indicate that there may have been misconduct or unsatisfactory conduct on the part of a practitioner or any other person who belongs to any of the classes of persons described in section 121:
(d) to intervene, in the circumstances prescribed by this Act, in the affairs of practitioners or former practitioners or incorporated firms:
(e) to make final determinations in relation to complaints:
(f) to lay, and prosecute, charges before the Disciplinary Tribunal.
(emphasis added)
[44] For the purposes of s 130(c), the terms “misconduct” and “unsatisfactory conduct” are defined; ss 6, 7(1) and 12 are relevant:
(a) Section 6
misconduct has,—
(a) in relation to a lawyer (whether in practice on his or her own account or not), the meaning given to it by section 7;
unsatisfactory conduct has,—
(a) in relation to a lawyer (whether in practice on his or her own account or not), the meaning given to it by section 12;
...
(b) Section 7
7 Misconduct defined in relation to lawyer and incorporated law firm
(1) In this Act, misconduct, in relation to a lawyer or an incorporated law firm,—
(a) means conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct—
(i) that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable; or
(ii) that consists of a wilful or reckless contravention of any provision of this Act or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm or of any other Act relating to the provision of regulated services; or
(iii) that consists of a wilful or reckless failure on the part of the lawyer, or, in the case of an incorporated law firm, on the part of a lawyer who is actively involved in the provision by the incorporated law firm of regulated services, to comply with a condition or restriction to which a practising certificate held by the lawyer, or the lawyer so actively involved, is subject; or
(iv) that consists of the charging of grossly excessive costs for legal work carried out by the lawyer or incorporated law firm; and
(b) includes—
(i) conduct of the lawyer or incorporated law firm that is misconduct under subsection (2) or subsection (3); and
(ii) conduct of the lawyer or incorporated law firm which is unconnected with the provision of regulated services by the lawyer or incorporated law firm but which would justify a finding that the lawyer or incorporated law firm is not a fit and proper person or is otherwise unsuited to engage in practice as a lawyer or an incorporated law firm.
...
(c) Section 12
12 Unsatisfactory conduct defined in relation to lawyers and incorporated law firms
In this Act, unsatisfactory conduct, in relation to a lawyer or an incorporated law firm, means—
(a) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that falls short of the standard of competence
and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; or
(b) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that would be regarded by lawyers of good standing as being unacceptable, including—
(i) conduct unbecoming a lawyer or an incorporated law firm; or
(ii) unprofessional conduct; or
(c) conduct consisting of a contravention of this Act, or of any regulations or practice rules made under this Act that apply to the lawyer or incorporated law firm, or of any other Act relating to the provision of regulated services (not being a contravention that amounts to misconduct under section 7); or
(d) conduct consisting of a failure on the part of the lawyer, or, in the case of an incorporated law firm, on the part of a lawyer who is actively involved in the provision by the incorporated law firm of regulated services, to comply with a condition or restriction to which a practising certificate held by the lawyer, or the lawyer so actively involved, is subject (not being a failure that amounts to misconduct under section 7).
(emphasis added)
[45] The Society is required to make rules to govern the operation of a Standards Committee. Such rules are to provide for the procedures to be followed in relation to complaints and to specify the manner in which a Standards Committee is to exercise functions and powers.72 Those rules are found in the Regulations. In addition, the Society has promulgated two other documents under the 2006 Act: the Practice Note and the Procedures Manual.73 The latter is intended to ensure consistency and quality of the complaints service and to facilitate the working and operation of Part 7 of the Act.
[46] As is clear from s 130, Standards Committees have a number of discrete functions.74 They involve:
72 Ibid, s 131(a) and (b).
73 1 August 2008.
74 Section 130 of the 2006 Act is set out at para [43] above.
(a) Receiving complaints from the Complaints Service established under the Act.75
(b) Deciding whether to take action on a complaint.76
(c) Determining whether to undertake an inquiry.77
(d)Considering the possibility of alternative dispute resolution, involving negotiation, conciliation and mediation.78
(e) Inquiring into the complaint, including obtaining and evaluating information.79
(f) Hearing a complaint.80
(g)Determining what action to take on a complaint; including whether to make orders following any determination of unsatisfactory conduct81 or to refer a complaint to the Tribunal.82
[47] Section 132 makes it clear that “any person” may complain to an “appropriate complaints service” about the way in which a practitioner has undertaken responsibilities he or she may have assumed.83 Section 136(a) expands the category of persons who might make complaints by declaring that a member of
the Council of the Society, or any person acting on its behalf, may do so.
75 Ibid, s 135(1).
76 Ibid, ss 138–139.
77 Ibid, ss 140–154.
78 Ibid, s 143.
79 Ibid, s 141.
80 Ibid, s 153. Unless a Standards Committee directs otherwise, the hearing is conducted on the papers.
81 Ibid, s 152(2)(a).
82 Ibid, s 152(2)(a).
83 Although I refer to individual practitioners, s 132 envisages that incorporated firms and employees may also be the subject of a complaint into which a Standards Committee can inquire.
[48] The initial complaint is made to a Complaints Service.84 A complaint about a practitioner must be in writing and be referred to a Standards Committee for consideration.85 The Standards Committee must consider the complaint, by inquiring into it86 or giving a direction that the parties explore the possibility of resolution “by negotiation, conciliation, or mediation”87 or decide to take no action on the complaint.88
[49] In exercising the power to investigate, a Standards Committee may appoint a person to undertake an inquiry and to report to it.89 For the purpose of inquiring into a complaint, a Standards Committee may require an investigator to inquire into the complaint and any matters related to it and to furnish a report to the Standards Committee.90 Consideration of a report from an investigator must take place in private.91 Nevertheless, generally, the report must be disclosed to the practitioner
against whom the complaint is made.92
[50] In exercising its jurisdiction to deal with the complaint, s 151 provides:
151 Evidence
(1) A Standards Committee may receive in evidence any statement, document, information, or matter that may in its opinion assist it to deal effectively with the matters before it, whether or not the statement, document, information, or matter would be admissible in a court of law.
(2) A Standards Committee may take evidence on oath, and for that purpose, any member or officer of the Standards Committee may administer an oath.
(3) A Standards Committee may permit a person appearing as a witness before it to give evidence by tendering a written statement and, if the Standards Committee thinks fit, verifying that statement by oath.
84 Lawyers and Conveyancers Act 2006, s, s 135(1).
85 Ibid, ss 132–135(1).
86 Ibid, s 137(1)(a).
87 Ibid, ss 137(1)(b) and 143.
88 Ibid, ss 137(1)(c) and 138.
89 Ibid, ss 144–146. Such a power may also be exercised by the Society: s 144(1).
90 Ibid, s 146(1). The investigator’s jurisdiction is identified in ss 146(2) and 147(2).
91 Ibid, s 148(1).
92 Ibid, ss 149 and 150.
(4) Subject to subsections (1) to (3), the Evidence Act 2006 applies to a Standards Committee in the same manner as if it were a court within the meaning of that Act.
(5) This section is subject to sections 142(1) and 143(5).
[51] A Standards Committee must advise the complainant and the person against whom the complaint has been made of the process to be adopted on receipt of the complaint.93 Written notice of a decision to take no action, or no further action, must be given forthwith to the complainant and the person to whom the complaint relates.94 The notice must state the decision and the reasons for it, as well as describe the right of review conferred by s 193 of the Act.95
[52] Section 138 of the Act explains what a Standards Committee must do if it were to decide to take no action or no further action:
138 Decision to take no action on complaint
(1) A Standards Committee may, in its discretion, decide to take no action or, as the case may require, no further action, on any complaint if, in the opinion of the Standards Committee,—
(a) the length of time that has elapsed between the date when the subject matter of the complaint arose and the date when the complaint was made is such that an investigation of the complaint is no longer practicable or desirable; or
(b) the subject matter of the complaint is trivial; or
(c) the complaint is frivolous or vexatious or is not made in good faith; or
(d) the person alleged to be aggrieved does not desire that action be taken or, as the case may be, continued; or
(e) the complainant does not have sufficient personal interest in the subject matter of the complaint; or
(f) there is in all the circumstances an adequate remedy or right of appeal, other than the right to petition the House of Representatives or to make a complaint to an Ombudsman, that it would be reasonable for the person aggrieved to exercise.
93 Ibid, s 137(2).
94 Ibid, s 139(1)(a) and (b).
95 Ibid, s 139(2)(a). Section 193 establishes a right to seek review of a Standards Committee’s
decision from the Legal Complaints Review Officer.
(2) Despite anything in subsection (1), a Standards Committee may, in its discretion, decide not to take any further action on a complaint if, in the course of the investigation of the complaint, it appears to the Standards Committee that, having regard to all the circumstances of the case, any further action is unnecessary or inappropriate.
[53] If a Standards Committee decides to inquire into a complaint, it must do so as soon as practicable.96 Section 141 of the Act provides:
141 Notice to person to whom complaint or inquiry relates
The Standards Committee—
(a) must send particulars of the complaint or matter to the person to whom the complaint or inquiry relates, and invite that person to make a written explanation in relation to the complaint or matter:
(b) may require the person complained against to appear before it to make an explanation in relation to the complaint or matter:
(c) may, by written notice served on the person complained against, request that specified information be supplied to the Standards Committee in writing.
[54] Section 152 sets out the powers of a Standards Committee to determine a complaint. Section 152(1) and (2) provide:
152Power of Standards Committee to determine complaint or matter
(1) A Standards Committee may,—
(a) after both inquiring into a complaint and conducting a hearing with regard to that complaint; or
(b) after both inquiring into a matter under section 130(c) and conducting a hearing with regard to that matter,—
make 1 or more of the determinations described in subsection (2).
(2) The determinations that the Standards Committee may make are as follows:
(a) a determination that the complaint or matter, or any issue involved in the complaint or matter, be considered by the Disciplinary Tribunal:
(b) a determination that there has been unsatisfactory conduct on the part of—
96 Ibid, s 140.
(i) a practitioner or former practitioner; or
(ii) an incorporated firm or former incorporated firm; or
(iii) an employee or former employee of a practitioner or incorporated firm:
(c) a determination that the Standards Committee take no further action with regard to the complaint or matter or any issue involved in the complaint or matter.
...
Any hearing conducted under s 152(1) is to be a hearing on the papers, unless the Standards Committee otherwise directs.97 That means that compliance with the rules of natural justice can be satisfied through an “on the papers” hearing held in a manner that is designed to meet the 2006 Act’s emphasis on an “expeditious” determination of a complaint.98
[55] Section 153(2) makes it clear that the procedures set out in s 153(3)–(8) apply only to hearings on the papers. This includes receiving written, but not oral, submissions from the complainant and the person in respect of whom the complaint was made.99 In other cases, the Standards Committees must tailor its processes to meet the needs of a particular case.
[56] If, under s 152(2)(a), a Standards Committee were to make a determination that the complaint or other matter ought to be considered by the Tribunal, s 154 applies:
154 Reference of complaint or matter to Disciplinary Tribunal
(1) If a Standards Committee makes a determination that the complaint or matter be determined by the Disciplinary Tribunal, the Standards Committee must—
(a) frame an appropriate charge and lay it before the Disciplinary Tribunal by submitting it in writing to the chairperson of the Disciplinary Tribunal; and
97 Ibid, s 153(1).
98 See para [42] above.
99 Lawyers and Conveyancers Act 2006, s 153(3).
(b) give written notice of that determination and a copy of the charge to the person to whom the charge relates; and
(c) if the determination relates to a complaint, give both written notice of that determination and a copy of the charge to the complainant.
(2) If the person who is the subject of the complaint or matter is a provider under the Legal Services Act 2011, the Standards Committee must provide a written notice of the determination to the Secretary for Justice.
[57] Unlike the Standards Committees, the Tribunal must hold its hearings in public.100 Also, the range of orders it may make to respond to proved misconduct or unsatisfactory conduct are greater; for example, it may order that a practitioner be suspended101 or that he or she be struck off the roll of barristers and solicitors.102
4. Judicial review of prosecutorial decisions
[58] Mr Morgan submitted that the Committee’s decisions to refer complaints to the Tribunal was a specie of prosecutorial discretion. He relied on Polynesian Spa Ltd v Osborne103 as authority for the proposition that judicial review was unavailable in respect of such decisions. For his part, Mr Orlov accepted that if Mr Morgan’s submission were correct, his application for judicial review must fail. Mr Orlov’s position is that a determination to refer a complaint to the Tribunal is reviewable.
Alternatively, he submits that a decision of that type is, at least, reviewable in respect of the application of any threshold test.
[59] In Polynesian Spa, Randerson J, after a fulsome review of relevant authority, explained why the Courts have “shown a marked reluctance to interfere with the exercise of a discretion to prosecute”.104 His Honour said:105
...
100 Ibid, s 238.
101 Ibid, s 242(1)(e).
102 Ibid, s 242(1)(c).
103 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC).
104 Ibid, at para [61].
105 Ibid, at para [62].
(a) It is important that the proper constitutional boundaries be observed.
The discretion to prosecute on behalf of the state is a function of
Executive government rather than the Courts whose function is to ensure the proper and fair conduct of trials: Fox v Attorney-General [2002] 3 NZLR 62 (CA) at para [31]. See also Police v Hall [1976] 2
NZLR 678 (CA) at p 683 and R v Sang [1980] AC 402, at p 454.
(b) Criminal proceedings should not generally be subject to collateral challenge. Entertaining challenges of this kind outside the trial and appeal process is likely seriously to disrupt the criminal justice system: R v Director of Public Prosecutions, ex parte Kebilene [1999] 4 All ER 801 at p 834 per Lord Steyn.
(c) As noted in Fox in the same passage, decisions to initiate and continue prosecutions generally involve a high content of judgment and discretion in the decisions reached.
(d) Where a prosecution ensues, the Courts possess an inherent power to stay or dismiss a prosecution for abuse of process. Fox reviewed the principles upon which a Court may act to protect against such an abuse.
(e) The conclusion on behalf of a prosecuting authority that an offence has been committed is merely an expression of opinion which is capable of being challenged in Court: R v Sloan [1990] 1 NZLR 474 at p 478.
(f) If factual errors are made in an investigation by a prosecuting authority or if there is further or other material which a defendant considers ought to have been weighed by the prosecuting authority, there is an opportunity to explore and test such issues at trial and to bring such further evidence as the defendant sees fit.
...
[68] In summary, where a decision to prosecute has been taken, there is jurisdiction to entertain a challenge on judicial review. But it will only be in rare cases that any such challenge will be successful for the substantial policy and constitutional reasons reviewed in para [62] above. Ordinarily, matters which may have afforded grounds for judicial review in other contexts are properly addressed by the Court exercising jurisdiction at trial. Those powers include jurisdiction to stay or dismiss for abuse of process or to allow time for any defects in disclosure to be remedied. Importantly, issues of law, fact or opinion may be fully ventilated at trial with full opportunity to test the prosecution case and to adduce such evidence as the defendant sees fit.
(emphasis added)
[60] Mr Orlov contends that Polynesian Spa does not govern this case because a Standards Committees’ determination to refer a complaint to the Tribunal is not akin to a decision involving prosecutorial discretion. He submits that the decision to refer
the complaint to the Tribunal (made under s 152(2)(a))106 is one reached after an inquiry into a complaint and a hearing, whether on the papers or otherwise.107
[61] In my view, at the time the Standards Committees determined to refer complaints to the Tribunal they were acting judicially, not as prosecutors, because:
(a) A determination made under s 152(2)(a) of the 2006 Act, is one reached after considering relevant evidence, written submissions and hearing108 from the parties. That is, quintessentially, a judicial function.
(b)Only after that determination is made does the Standards Committee metamorphose into a prosecutor. Under s 154(1)(a), it is then required to “frame an appropriate charge and lay it before” the Tribunal.109
[62] In those circumstances, a decision to refer a complaint to the Tribunal is reviewable in the same way and on the same grounds as any other decision made by any court or tribunal that is susceptible to this Court’s supervisory jurisdiction. In the context of the need to observe the “principles” or “rules” of natural justice, the general provisions of s 27(1) of the New Zealand Bill of Rights Act 1990 and the specific terms of s 142(1) of the 2006 Act are relevant:
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
...
142 Procedure of Standards Committee
106 See para [54] above.
107 Lawyers and Conveyancers Act 2006, s 152(1).
108 The Standards Committee may require the person complained against to appear before it to provide an explanation in relation to the complaint or matter: Ibid, s 141(b).
109 Section 154 is set out at para [56] above.
(1) A Standards Committee must exercise and perform its duties, powers, and functions in a way that is consistent with the rules of natural justice.
....
5. References to the Tribunal: Is there a threshold test?
(a) The nature of the issue
[63] The next question is whether a Standards Committee is required to apply any test in determining whether to refer a complaint, relating to conduct that occurred before 1 August 2008, to the Tribunal for determination. Accepting that the test used in the 1982 Act has been omitted from the equivalent provision in the 2006 Act, Mr Orlov submits that a threshold test must be implied, to avoid the possibility that relatively trivial matters might be referred to the Tribunal at the whim of a Standards Committee.
[64] Mr Morgan contended that it would be inappropriate for the Court to put a gloss on s 152(2)(a)110 to reintroduce a test that Parliament had deliberately discarded. In addressing the statutory scheme, he submitted:
(a) Section 152(2)(a) conferred a general discretion on a Standards Committee to determine that a “complaint or matter, or any issue involved in the complaint or matter, be considered by” the Tribunal.
(b)Unlike the situation that pertains if a Standards Committee makes a determination of “unsatisfactory conduct”,111 or decides that no (or no further) action be taken in respect of a complaint,112 there is no requirement for a Standards Committee to give reasons for its
decision when referring a complaint to the Tribunal.
110 Set out at para [54] above.
111 Lawyers and Conveyancers Act 2006, ss 152(2)(b) and 158(2)(a).
112 Ibid, ss 139(1) and (2)(a), 152(2)(c) and 158(1) and (2)(a).
(c) Section 154 limits the Committee’s obligations, when referring a complaint to the Tribunal, to framing an appropriate charge, laying it before the Tribunal113 and giving the requisite written notices.
[65] In my view, the following factors are relevant to determination of whether a threshold test exists:
(a) The functions and powers of the Tribunal, as opposed to those of
Standards Committees.
(b)The existence of an adversarial standard of proof (as opposed to a power to inquire) to be met before a finding of misconduct can be made. In Z v Dental Complaints Assessment Committee,114 it was held that the standard is one of balance of probabilities, flexibly applied. A majority of the Supreme Court (Elias CJ dissenting)115 held that this did not change the degree of probability required to establish a charge but, rather, recognised that judicial officers require stronger evidence of more serious allegations before they can be satisfied that an issue in dispute has been proved.116
[66] Before discussing the weighting to be given to each of those factors, I deal briefly with a submission made in Mr Orlov, by which he suggested that three recent decisions of the Legal Complaints Review Officer had confirmed the need for some threshold test.117 Having considered those decisions, while they suggest that a “higher threshold” might now be required to demonstrate misconduct, none of them address whether any threshold standard must be applied by a Standards Committee
in determining to refer a complaint to the Tribunal.118
113 Ibid, s 154(1)(a).
114 Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1.
115 Ibid, at para [4]. The Chief Justice would have adopted the higher criminal standard of proof.
See also paras [49], [50] and [55].
116 Ibid, at [102], [105] and [116] (Blanchard, Tipping and McGrath JJ) and [145] (Anderson J).
117 Kidderminster v Orkney [2010] NZLCRO 33, AP v ZK [2011] NZLCRO 8 and CM v XH [2011] NZLCRO 31.
118 For example, see CM v XH [2011] NZLCRO 31, at paras [15] and [16].
(b) Functions and powers
[67] As previously indicated, Standards Committees have a number of discrete functions.119 For present purposes, the relevant functions are the need to inquire into a complaint (through obtaining and evaluating information),120 hearing a complaint121 and determining what action to take on it.122 In carrying out those functions, a Standards Committee must act “in a way that is consistent with the rules of natural justice”.123 If a Standards Committee were to decide that a practitioner was guilty of “unsatisfactory conduct”124 it may make orders to respond to the relevant conduct. The orders available to the Standards Committees are extensive,
but do not include either the power to strike a practitioner from the roll of barristers and solicitors or to suspend him or her from practice.125
[68] Members of Standards Committees are appointed by the Society.126 Those members of the Tribunal who are lawyers are appointed by the Society.127 The chairperson and deputy chairperson of the Tribunal are appointed by the Governor- General on the recommendation of the Minister of Justice.128 Lay members are appointed by the Governor-General, on the recommendation of the Minister, after consultation with the chairperson and the Council of the Society.129 The need for appointments to be made at that level indicates the importance of the Tribunal’s jurisdiction, in the context of the serious charges it is expected to hear and determine.
[69] In order to compare the functions and powers of Standards Committees with those of the Tribunal, the role of the Legal Complaints Review Officer (Review
119 See para [46] above.
120 Lawyers and Conveyancers Act 2006, s 141.
121 Ibid, s 153.
122 Ibid, s 152.
123 Ibid, s 142(1).
124 Ibid, s 152(2)(b).
125 Ibid, s 156(1).
126 Ibid, s 126(1).
127 Ibid, s 233(2).
128 Ibid, s 230.
129 Ibid, s 233.
Officer) must be brought to account. His or her functions are set out in s 192 of the
2006 Act:
192 Functions of Legal Complaints Review Officer
The functions of the Legal Complaints Review Officer are—
(a) to exercise the powers of review conferred on the Legal
Complaints Review Officer by this Act:
(b) to promote, in appropriate cases, the resolution, by negotiation, conciliation, or mediation, of—
(i) complaints; or
(ii) such issues relating to complaints as the Legal
Complaints Review Officer specifies:
(c) to provide advice to the New Zealand Law Society and the New Zealand Society of Conveyancers and the Minister on any issue that the Legal Complaints Review Officer identifies in the course of carrying out reviews (being an issue that relates to the manner in which complaints are received and dealt with under this Act or any rules made under this Act).
[70] For the purposes of the present proceeding, a Review Officer may entertain an application from a practitioner against whom a complaint was made to review any decision of a Standards Committee, in relation to the complaint.130 On receiving an
application for review, the Review Officer has a duty to conduct the review.131 A
review is conducted in private.132 Section 200 of the 2006 Act provides:
200 Avoidance of unnecessary formality
The Legal Complaints Review Officer must conduct any review with as little formality and technicality, and as much expedition, as is permitted by—
(a) the requirements of this Act; and
(b) a proper consideration of the review; and
(c) the rules of natural justice.
130 Ibid, ss 193 and 194. An application for review must be made in accordance with s 198.
131 Ibid, s 199.
132 Ibid, s 206(1).
[71] The statutory emphasis on the need for the Review Officer to conduct any review “with as little formality and technicality, and as much expedition” as is consistent with (among other things) the rules of natural justice, emphasises a Parliamentary intention for complaints to be dealt with promptly, with the necessary tailoring of the application of the rules of natural justice to enable that to be done
properly.133
[72] A Review Officer may direct reconsideration of complaints or decisions made by Standards Committees arising out of a complaint. Section 209 of the 2006 Act provides:
209 Power to direct reconsideration of complaints, matters, or decisions
(1) The Legal Complaints Review Officer may—
(a) direct a Standards Committee to reconsider and determine, either generally or in respect of any specified matters, the whole or any part of the complaint, matter, or decision to which any application for review relates:
(b) give to a Standards Committee, in any case where the Legal Complaints Review Officer gives a direction under paragraph (a),—
(i) his or her reasons for the direction; and
(ii) such other directions as he or she thinks just as to the reconsideration or otherwise of the whole or any part of the complaint, matter, or decision that is referred back for reconsideration:
(c) request, in giving a direction under paragraph (a), that the Standards Committee supply a follow-up report to him or her when it has complied with the direction.
(2) A Standards Committee, in reconsidering any complaint, matter, or decision referred back to it under subsection (1)(a), must have regard to the direction given by the Legal Complaints Review Officer and to his or her reasons for giving the direction.
[73] The Review Officer may confirm, modify or reverse any decision of a
Standards Committee and exercise any powers that could have been exercised by
133 Compare to the position with regard to Standards Committees, discussed at para [54] above.
that Committee. Those powers include the ability to lay a charge before the Tribunal, in the event that the Review Officer considers that should be done.134 In that sense, the Review Officer can exercise the same type of prosecutorial functions as a Standards Committee. A charge laid by either is heard by the Tribunal.135
[74] Unlike a Standards Committee or the Review Officer, the Tribunal sits in public and parties are entitled to be heard in person, or through counsel.136 The Tribunal “must, in performing and exercising its functions and powers, observe the rules of natural justice”.137 Section 241 identifies charges that may be brought before the Tribunal:
241 Charges that may be brought before Disciplinary Tribunal
If the Disciplinary Tribunal, after hearing any charge against a person who is a practitioner or former practitioner or an employee or former employee of a practitioner or incorporated firm, is satisfied that it has been proved on the balance of probabilities that the person—
(a) has been guilty of misconduct; or
(b) has been guilty of unsatisfactory conduct that is not so gross, wilful, or reckless as to amount to misconduct; or
(c) has been guilty of negligence or incompetence in his or her professional capacity, and that the negligence or incompetence has been of such a degree or so frequent as to reflect on his or her fitness to practise or as to bring his or her profession into disrepute; or
(d) has been convicted of an offence punishable by imprisonment and the conviction reflects on his or her fitness to practise, or tends to bring his or her profession into disrepute,—
it may, if it thinks fit, make any 1 or more of the orders authorised by section
242.
[75] Section 242 sets out the orders that can be made if a charge were proved. In the context of this case, s 242(1) provides:
134 Ibid, ss 211 and 212.
135 Ibid, s 227.
136 Ibid, ss 237 and 238.
137 Ibid, s 236.
242 Orders that may be made where charge proved
(1) In any case to which section 241 applies, the Disciplinary Tribunal may make—
(a) any order that a Standards Committee has power to make under section 156 on the final determination of a complaint:
(b) an order declaring that, in the opinion of the Disciplinary Tribunal, any of the circumstances specified in section 163 exist in respect of the practitioner or former practitioner and directing a Standards Committee to exercise any power under section 164 or section 169:
(c) if the person is a lawyer, an order that his or her name be struck off the roll:
...
(e) if the person is a lawyer, an order that the practitioner be suspended from practice as a barrister or as a solicitor, or as both, for such period, not exceeding 36 months, as the Disciplinary Tribunal thinks fit:
...
(g) an order prohibiting the practitioner from practising on his or her own account, whether in partnership or otherwise, until authorised by the Disciplinary Tribunal to do so:
...
(2) Paragraphs (c) and (d) of subsection (1) are subject to section 244.
[76] As s 242(2) indicates, there are restrictions on the circumstances in which a practitioner may be struck off the roll or suspended from practice. Section 244 provides:
244 Making of order for striking off roll, cancellation of registration, or suspension from practice
(1) The Disciplinary Tribunal may not make an order, under section
242(1)(c), striking the name of a practitioner off the roll or an order, under section 242(1)(d), cancelling the registration of a practitioner unless in its
opinion the practitioner is, by reason of his or her conduct, not a fit and proper person to be a practitioner.
(2) Except by consent, the Disciplinary Tribunal may not make—
(a) an order, under section 242(1)(c), striking the name of a practitioner off the roll; or
...
(c) an order, under section 242(1)(e), suspending a practitioner from practice,—
unless at least 5 members of the Disciplinary Tribunal are present and vote in favour of the order and those members are either the only members present and voting at the sitting of the Disciplinary Tribunal or the division of the Disciplinary Tribunal or are a majority of the members present and voting at the sitting of the Disciplinary Tribunal or the division of the Disciplinary Tribunal.
(3) Where the Disciplinary Tribunal makes an order, under section
242(1)(c), striking the name of a practitioner off the roll or an order, ... , cancelling the registration of a practitioner, the order is, until the expiry of the time allowed for appeal under section 253 or, if an appeal is commenced, until the determination of the appeal, to take effect only as an order that the practitioner be suspended from practice ... , as the case may require.
(c) Standard of proof
[77] While the 2006 Act creates a process by which a Standards Committee must consider and determine a complaint, there is no express provision as to the standard to which a Committee needs to be satisfied before it decides what determination to make under s 152(2). That is in contrast to the position that pertains when a charge of misconduct is before a Tribunal.138 This does not, of itself, affect an assessment of whether a threshold requirement is present. Rather, it aims to meet the need for compelling evidence if a charge of misconduct were brought against a professional person, with all of the implications that may have on the person’s ability to make a
living.
(d) Conclusions
[78] While a Standards Committee performs investigative, judicial and prosecutorial functions, the Tribunal’s role is strictly judicial in nature. The type of orders available to the Tribunal suggest that it should deal only with those cases in which there is a real risk that orders going beyond those within a Standards Committee’s jurisdiction may be made. That is consistent with the limitation on
circumstances in which an order striking a practitioner’s name from the roll may be
138 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 (SC).
made: namely, the need for the Tribunal to form an “opinion [that] the practitioner is, by reason of his or her conduct, not a fit and proper person to be a practitioner”.139
[79] The Tribunal’s judicial role, the requirement that charges before the Tribunal be heard in public, its obligation to observe the rules of natural justice, its exclusive jurisdiction both to find misconduct and to strike a practitioner’s name from the roll (or to suspend him or her from practice), all suggest that a significant threshold must be crossed before a Standards Committee can refer charges to it.
[80] The test under the 1982 Act was whether “the case [was] of sufficient gravity to warrant its referral” to the NZ Tribunal. It is difficult to see why a similar test should not apply. In my view, a test that considers whether there is a real risk that the practitioner might be suspended or struck off is consistent with the statutory language.
[81] The existence of a threshold test has the advantage of focussing the collective minds of members of a Standards Committee on the likely outcomes of a consideration of a charge (or charges) by the Tribunal and creates a disincentive (in far less likely circumstances) for anyone who might bear animosity or ill-will towards a particular practitioner (with whom he or she also may be in competition) from referring unwarranted charges to the Tribunal.
[82] I have not overlooked the fact that the 2006 Act does not require reasons to be given for deciding to refer a complaint to the Tribunal. Equally, however, it does not prohibit that course. Where reasons are not given, it is open to a Court, on judicial review, to consider the nature of the conduct, the form of any charge drafted and the bases for it, to determine whether the Standards Committee has exceeded its jurisdiction. So far as reasons are concerned, it is my view that it is sufficient for the Committee considering the charge to find that the conduct was “sufficiently serious
or suspension.
187 See para [11](h) above.
188 See para [11](i) above.
189 See para [11](j) above.
190 See para [11](k) and (l) above.
191 See para [11](m) above.
192 See para [11](f) and (g) above.
[124] The charges that I have held are insufficient to go to the Tribunal all involve questions of judgment about the way in which certain proceedings were conducted by Mr Orlov. They tend to reflect alleged carelessness or negligence, rather than recklessness or deliberate conduct. In the former case, it seems to me that the Standards Committee is the appropriate body to determine whether there is unsatisfactory conduct and to impose an appropriate response.
[125] In relation to the allegation of filing an appeal without instructions, I am satisfied that Mr Orlov was sufficiently informed of the particulars of the complaint against him, and had adequate opportunity to respond to the allegation before the No
1 Committee made its decision. There is no indication of bias or bad faith on the part of the No 1 Committee in making that decision. It is one that was open to it having regard to the seriousness of the complaint.
[126] Although there was no oral hearing, the presumptive position is that a hearing on the papers is adequate.193 There was no breach of the principles of natural justice, so far as this decision was concerned.
10. The National Standards Committee
(a) Establishment of the National Committee
[127] The eleven charges laid by the National Committee have been set out earlier.194 They arose out of the National Committee’s receipt of all complaints made to the Complaints Service about Mr Orlov that had not previously been the subject of a decision by either the Section 356 or the No 1 Committee.
[128] These complaints were transferred to the National Committee for investigation and completion as a result of a resolution passed by the Board of the Society, on 1 April 2010. Following discussion of the issue at a teleconference, the
Board resolved:
193 Lawyers and Conveyancers Act 2006, s 153(1). See also para [54] above.
194 See para [12] above.
The Board considered this matter in committee. RESOLVED: that
-in order to ensure maximum efficiency, speed and economy in the handling of all complaints submitted to the Lawyers Complaints Service by or against the lawyers Evgeny Orlov and [name deleted] and any current own motion investigations relating to either of those lawyers, it is resolved that all existing complaints or own motion files relating to either be transferred to the National Standards Committee for investigation and completion;
-this resolution relates to all matters currently with any Auckland Standards Committee, other than those where a final decision or determination has already been made by the relevant committee. It also relates to any complaints currently with the Complaints Service but not allocated to a Standards Committee. Any matters that might arise after the date of this resolution relating to complaints by or against Mr Orlov or [name deleted] must also be referred to the National Standards Committee.
This resolution was made in accordance with paragraphs 2.10 and 2.11 of the Practice Note concerning the functions and operations of Lawyers Standards Committees.
[129] Mr Nigel Hampton QC was appointed as Convenor and Chair of the National Committee, “specifically to deal with matters referred to it by the Complaints Service concerning” Mr Orlov and another (or other) practitioner(s). After considering documentation forwarded to him, Mr Hampton wrote, on 21 May 2010, to the Society’s General Manager (Regulatory), Ms Ollivier, suggesting “a clear way forward with these vexed matters”.
[130] Mr Hampton proposed a provisional agenda for a meeting of the National Committee and attached a fee note. Initially, an indication that one of the Committee to hear and determine the complaints was being paid for services that were, apparently, being rendered to the Society caused me some concern. However, it was explained satisfactorily. The Society pays a fee to the person acting as Convenor of a National Committee because of the additional work shouldered by that person. The work undertaken by Mr Hampton was carried out in his capacity as Convenor of the National Committee.
[131] In my view, receipt of a fee by Mr Hampton for work undertaken to decide how best the National Committee should approach its tasks did not compromise his
role as a member of a judicial body. Mr Hampton did not assume any inappropriate role as an advisor to the Society, in conflict with his judicial role as Convenor of the National Committee’s functions.
(b) The “own motion” investigations
[132] At a meeting held on 14 June 2010, the National Committee decided to commence an “own motion” investigation in relation to complaints previously before the s 356 and No 1 Committees that had not previously been determined. Subsequently, both Mr Orlov and the complainants were to be advised of the National Committee’s resolution and invited to make further submissions or to rely on submissions previously tendered.
[133] Those complaints that were to form part of the “own motion” inquiries were those made by Ms Lellman, Harrison J, Mr Bujak, Mr Tait, Cooper J and Buddle Findlay. Another “complaint” that had been referred to the Society’s President by the then Chief High Court Judge (Randerson J) was also treated as part of the “own motion” inquiry.195 The National Committee had previously resolved to investigate that matter of its own motion, on 23 April 2010.
[134] On 29 June 2010, Ms Ollivier had written to Mr Orlov stating:
...
2. The Committee passed the following resolution:
That pursuant to section 130(c) of the Lawyers and Conveyancers Act 2006 it would commence an own motion investigation encompassing the following files:
File 427: Complaint by Ms Lellman.
File 572: previous own motion by SC 1 (Harrison J). File 1701: Complaint by Mr Bujak.
File 1973: previous own motion by SC 1 (Cooper J).
195 While Mr Orlov submitted that it was inappropriate for the Chief High Court Judge to write directly to the President, I see nothing of any substance in that point. It goes only to the mechanism by which the National Committee became seized of it.
File 1815: Complaint by Mr Tait.
File 2189: previous own motion by SC 1 (Buddle Findlay).
The Committee was of the view that there are matters, in each of the above files, that appear to indicate that there may have been misconduct or unsatisfactory conduct on your part. The own motion resolution encompasses all the above 6 files and the Committee will commence its own investigation anew.
3.Each of the complainants will be notified of the own motion resolution and will be asked if they wish to add any further comments additional to the materials each of them has already put forward.
4.Pursuant to s.141 of the Act, the Committee invites you to make written submissions on this own motion investigation and on each of the 6 individual files now encompassed within the own motion investigation. However you can, if you prefer, rely on your previous submissions made on each of those 6 files.
...
6. Could you please file any new submissions by 14 July 2010.
7.I understand that these complaints have been concerning you for some time and you will be anxious that there is no further delay. The Committee hopes to be in a position to conclude the above matters as soon as is practically possible.
[135] The Committee met again on 20 July 2010. A lay member of the Committee, Mr Robb, indicated a potential conflict of interest. The National Committee determined that “all final decisions reached by the [National] Committee at its meeting of 14 June 2010 should be rescinded and looked at afresh”. However, decisions “that were not determinative in any way such as those reached pursuant to ss 130 and 137” of the 2006 Act “will stand”. The Committee resolved:
(a) To hold a hearing into its own motion investigation against Mr Orlov.
(b)Hold a hearing into the complaint initiated by Randerson J, which had been treated as an own motion complaint.
There is no evidence of any correspondence immediately after the meeting on 20
July 2010.
[136] A further meeting of the National Committee was held on 11 August 2010 at which time the “own motion” investigation was set down for a hearing in Auckland on 16 September 2010. After that meeting, Ms Ollivier wrote to Mr Orlov (in relation to the own motion inquiries other than the one initiated by Randerson J) stating:
At the National Standards Committee (Committee) meeting of 11 August
2010, the Committee set down own motion investigation 3104 for a hearing in Auckland on 16 September 2010. I enclose the formal Notice of Hearing.
This own motion investigation is the one you were notified of by the Society’s letter of 29 June 2010 and encompasses the matters formerly contained in files 427, 572, 1701, 1973, 1815, 2189. A copy of our 29 June
2010 letter is attached to enable you to identify the matters that are the subject of the hearing.
The hearing will be on the papers and you or your counsel can make written submissions. Any submissions are due by 12:00 noon on Friday, 27
August 2010.
The Committee would be prepared to hear you or your counsel in person if this is your preference. If you wish to be heard in person please let me know as soon as possible.
A similar letter was sent to Mr Orlov in relation to the inquiry initiated by
Randerson J. That too was sent on 11 August 2010.
[137] Two notices of hearing were issued by Ms Ollivier on 11 August 2010. One related to the general own motion investigation and the other to the one initiated by Randerson J. The notices were in material respects, the same. The one relating to the general inquiry was expressed in these terms:
Own motion investigation 3104 is to be the subject of a hearing before the National Standards Committee on 16 September 2010. The hearing is to be conducted on the papers, which means the decision will be made on the basis of the evidence and correspondence before the National Standards Committee. You are entitled to make submissions in writing. Those submissions may be made by you or by your legal counsel. Any submissions should be delivered to the National Standards Committee either by post, fax or email, at PO Box 5041, Wellington 6145; Fax: (04) 4632984; Email: [email protected], not later than 12 noon on Friday, 27
August 2010 and should address any matters of fact or law you believe should be taken into account concerning:
(a) The nature of the alleged conduct itself;
(b) The possibility that the National Standards Committee may make a determination that the complaint or matter, or any issue involved in the complaint or matter, be considered by the Disciplinary Tribunal;
(c) The appropriate orders the National Standards Committee may make under s.156, in the event that there is a finding of unsatisfactory conduct; and
(d) The possibility of publication in the event of a finding of unsatisfactory conduct
[138] A hearing took place on 16 September 2010, from 2pm until 6pm. With the National Committee’s approval, Mr Orlov attended the meeting in person, with a support person, from 3pm until 5pm. Apparently, what passed between the Committee members and Mr Orlov was recorded on audiotape but neither party adduced that in evidence before me.
[139] The Committee concluded that conduct that had occurred before 1 August
2008 was of sufficient gravity to have justified disciplinary proceedings under the
1982 Act. In relation to post 1 August 2008 complaints, it decided to refer some to the Tribunal and to take no action in respect of others.
[140] The National Committee’s determination was dated 1 October 2010. While lengthy, it is necessary to set it out in full, in order to understand the terms in which the determinations were expressed:
Notice of Determination by National Standards Committee of Own Motion Investigation 3104 by National Standards Committee against Mr Evgeny Orlov
BACKGROUND:
On 14 June 2010 the National Standards Committee (NSC) commenced an own motion investigation into files concerning Mr Orlov that had been transferred to it by Auckland Standards Committee 1 following a resolution of the Board of the New Zealand Law Society. The files that formed part of this own motion were:
a. 1701 Complaint by Mr Bujak b. 427 Complaint by Ms Lellman
c. 572 Own motion investigation by Auckland Standards Committee 1 d. 1815 Complaint by Mr Tait
e. 1973 Own motion investigation by Auckland Standards Committee 1 f. 2189 Own motion investigation by Auckland Standards Committee 1
For ease of reference the different matters making up the own motion are identified below by the number 3104 followed by the previous file number. The previous files were closed pursuant to decisions of the NSC dated 23
August 2010.
HEARING (s152 of the Lawyers and Conveyancers Act 2006) (LCA):
The NSC held a hearing into the own motion investigation on 16 September
2010 at which Mr Orlov appeared in person with a support person, and made submissions supporting and in some respects amplifying his earlier written
materials given to the NSC. The hearing was recorded by both the NSC and
Mr Orlov.
DETERMINATION:
In regard to own motion file 3104 the NSC determined:
1.That the claimed conduct of Mr Orlov in allegedly receiving payment from the Legal Services Agency while receiving payments from his client (3104 formerly 1701 – Bujak) required no further action, pursuant to s138(2) of the LCA, as, having regard to all the circumstances of the case, any further action was unnecessary or inappropriate there being no evidence that Mr Orlov received additional payments from his client.
The NSC considered the 31 March 2009 transcript of the proceedings Slawomir Bujak v The Solicitor-General SC 64/2008
15 May 2009 and determined that Mr Orlov’s conduct in this case
should be included as part of its determination noted at paragraph 3 below.
2.The conduct of Mr Orlov, in the matter of own motion 3105 (formerly 427 – Lellman), as particularised by Ms Lellman in her letter of complaint dated 18 November 2008, during the [Family Court case] was of sufficient gravity to warrant a disciplinary charge and that pursuant to section 152(2)(a) of the LCA the matter should be considered by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.
The conduct which occurred prior to 1 August 2008 was considered by the NSC to be of sufficient gravity that proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982 (LPA). Mr Orlov’s conduct was, in the view of the NSC, capable of meeting, and (if proven) as being sufficient to meet, the threshold test for a charge of conduct unbecoming a barrister or solicitor (LPA) and/or unsatisfactory conduct (LCA).
3.That Mr Orlov’s conduct as demonstrated in the cases listed below illustrated a pattern of incompetence in Mr Orlov’s professional capacity of such a degree or so frequent as to reflect on his fitness to practise or as to bring his profession into disrepute and that pursuant
to s152(2)(a) of the LCA the matter should be considered by the
New Zealand Lawyers and Conveyancers Disciplinary Tribunal.
The matters which occurred prior to 1 August 2008 were considered by the NSC to be of sufficient gravity that proceedings of a disciplinary nature could have been commenced under the LPA.
Any cases which have already been dealt with by the Lawyers Complaints Service or are already the subject of disciplinary charges have been excluded.
3104(formerly 1701 Bujak)
Slawomir Bujak v The Solicitor-General SC 64/2008 15 May 2009.
3104(formerly 427 Lellman)
[the Family Court case]
43104(formerly 572 SC1-Harrison J)
RL and Anor v CEO Ministry of Social Development and Ors HC AK CIV 2007-404-7031 24 July 2008, 13 October 2008.
3104(formerly 1973 SC1-Cooper J)
ANZA Distributing (NZ) Limited (In Liquidation) v USG Interiors
Pacific Limited HC AK CIV 2007-404-003474 3 November 2010.
ANZA Distributing (NZ) Limited (In Liquidation) v USG Interiors
Pacific Limited HC AK CIV 2007-404-003474 18 September 2010.
ANZA Distributing (NZ) Limited (In Liquidation) v USG Interiors
Pacific Limited HC AK CIV 2007-404-003474 20 November 2009.
3104(formerly 1815 Tait)
Banks v The Attorney General HC WN CIV 2006-485-002017 19
August 2009.
E Orlov v Ministry of Justice & Attorney General HRRT 09/09 21
July 2009.
RIG v Chief Executive Officer Ministry of Social Development and
Anor HC AK CIV 2008-404-004975 27 July 2009.
The Order of St John Northern Regional Trust v Gemini 10 Limited and Ors HC AK CIV 2002-404-1559 2 July 2009.
The Order of St John Northern Regional Trust v Gemini 10 Limited and Ors HC AK CIV 2002-404-1559 25 August 2009.
Hendrick Jan Eggnink and Ors v Ponniah Family Trust HC AK CIV
2005-404-001191 24 November 2005.
3140(formerly 2189 SC1-Potter J and Christiansen AJ)
Wesley Johjn Liddle and Astrid Anna Liddle and Ors v Bank of New
Zealand and Anor hC AK CIV 2009-404-6189 29 October 2009.
Bank of New Zealand v Wesley John Liddle and Astrid Anna Liddle
HC AK CIV 2009-404-006254 30 November 2005.
Appropriate charges will be framed and served as soon as practicable.
ENTITLEMENT TO REVIEW BY LEGAL COMPLAINTS REVIEW OFFICER (LCRO):
All parties to whom this notice is addressed are entitled to apply to the
LCRO for a review of this decision. On review, the LCRO may:
(i) Direct the Standards Committee to reconsider the whole or any part of the complaint; or
(ii) Confirm, modify or reverse the decision of the Standards
Committee; and
(iii) Exercise any of the powers that could have been exercised by the
Standards Committee in relation to this complaint.
Any application for a review of this decision by the LCRO must be made within 30 working days after the date of this decision. An application for review must be on the prescribed form and accompanied by the prescribed fee of $30.67.
The LCRO may be contacted by:
...
[141] A similar determination was made in respect of the inquiry initiated by
Randerson J. That determination was also dated 1 October 2010 and read:
Notice of Determination by National Standards Committee of Own Motion Investigation 2604 by National Standards Committee against Mr Evgeny Orlov
BACKGROUND
On 18 December 2009 the New Zealand Law Society (Society) received a letter from Justice Randerson in his then capacity as the Chief High Court Judge of New Zealand.
Justice Randerson expressed concern that Mr Orlov had alleged that Justice Harrison was biased against him, such allegations having been made in a number of fora such as: the High Court, the Court of Appeal, the Supreme Court, the Human Rights Tribunal, and the Office of the Judicial Conduct Commissioner.
Justice Randerson was concerned that such conduct appeared to illustrate that Mr Orlov had engaged in a pattern of persistent, wide-ranging and disgraceful allegations against Justice Harrison, without foundation.
Justice Randerson attached to his letter the judgments and decisions he referred to. He also briefly commented on them.
OWN MOTION:
On 23 April 2010 the National Standards Committee (Committee) resolved to inquire into the matters described by Randerson J, pursuant to s 130(c) of the Act.
HEARING (s 152 of the Lawyers and Conveyancers Act 2006):
The Committee held a hearing into the own motion investigation on 11
September 2010 at which Mr Orlov appeared in person with a support person, and made submissions supporting and in some respects amplifying
his earlier written materials given to the Committee. The hearing was
recorded by both the Committee and Mr Orlov.
TRANSITIONAL MATTER:
Some aspects of the own motion investigation concerned behaviour that occurred prior to the implementation of the Lawyers and Conveyancers Act
2006 (LCA) and these aspects are subject to the transitional provisions of the
LCA.
DETERMINATION:
The matters which occurred prior to 1 August 2008 were considered by the NSC to be of sufficient gravity that proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982 (LPA).
The Committee determined that the intemperate and persistent manner in which Mr Orlov had made complaints against Harrison J was capable of meeting, and (if proven) sufficient to meet, a threshold test of misconduct, as defined by s 7(1)(b)(ii) of the LCA, and pursuant to s 152(2)(a) of the LCA determined that the matter be considered by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.
Appropriate charges will be framed and served as soon as practicable.
ENTITLEMENT TO REVIEW BY LEGAL COMPLAINTS REVIEW OFFICER (LCRO):
All parties to whom this notice is addressed are entitled to apply to the
LCRO for a review of this decision. On review, the LCRO may:
(i) Direct the Standards Committee to reconsider the whole or any part of the complaint; or
(ii) Confirm, modify or reverse the decision of the Standards
Committee; and
(iii) Exercise any of the powers that could have been exercised by the
Standards Committee in relation to this complaint.
Any application for a review of this decision by the LCRO must be made within 30 working days after the date of this decision. An application for review must be on the prescribed form and accompanied by the prescribed fee of $30.67.
[142] I am satisfied that Mr Orlov was given proper notice of the allegations set out in the various determinations and had an opportunity to be heard both in writing and in person on them. In such circumstances, the National Committee complied with the principles of natural justice in conducting its judicial role.
(c) The “own motion” investigations: threshold issues
[143] I emphasise again that it is not my function to determine whether Mr Orlov has any defence to the charges that have been laid by the National Committee. Parliament has specifically left that task with the Tribunal established under the 2006
Act. That means that the remaining question for me is whether, if the allegations were proved, they meet the threshold requirement for reference to the Tribunal.
[144] The relevant charges can be divided into three categories:
(a) Allegations that Mr Orlov made scandalous and false allegations against judicial officers that amount to misconduct on the grounds either that “lawyers of good standing [would regard them] as disgraceful196 or dishonourable”197 or demonstrate that Mr Orlov “is not a fit and proper person or is otherwise unsuited” to be in practice as a lawyer. Charges 1, 2, 3, 4, 5, 6, 7 and 8 fall into this category.198
(b)An allegation that Mr Orlov was guilty of misconduct in his professional capacity by making false allegations in submissions in the Family Court case and in seeking opposing counsel in that case to
be held in contempt. This category relates to charges 9 and 10.
196 Lawyers and Conveyancers Act 2006, s 7(1)(a)(i).
197 Ibid, s 7(1)(b)(ii).
198 See para [12] above.
(c) Allegations of “serial negligence or incompetence” arising out of a
number of cases in which Mr Orlov was involved between 1 January
2007 and 31 December 2009. The National Committee asserts that this conduct was of such a degree and/or so frequent as to reflect upon Mr Orlov’s fitness to practice or to bring the profession into disrepute. The charge of serial negligence or incompetence is set out in charge
11.
[145] The allegations that are referable to alleged scandalous and false allegations against a judicial officer relates to proceedings in which Mr Orlov appeared as counsel before Harrison J, in the High Court. Some of the charges arose out of particular complaints; another arose out of correspondence received by the President of the Society from the then Chief High Court Judge, Randerson J.
[146] The charges of false and scandalous conduct are based on alleged breaches of Mr Orlov’s overriding duty as an officer of the High Court and rr 2.1 and 13.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Client Care Rules):
2.1 The overriding duty of a lawyer is as an officer of the court.
...
13.2A lawyer must not act in a way that undermines the processes of the court or the dignity of the judiciary.
13.2.1 A lawyer must treat others involved in court processes with respect.
...
[147] A lawyer owes obligations, as an officer of the High Court, that transcend duties owed to clients. For example, when bringing a without notice application, the duty of counsel is to certify to the Court, not to the opposing party.199 Among the
particular obligations owed to the Court are ones that require the practitioner:
199 Todd v Hillary HC Auckland CIV-2005-412-294, 15 June 2007 at [116], citing Digital
Equipment Corporation v Darkcrest Ltd [1984] 1 Ch 512 at 524 per Falconer J.
(a) To act with the utmost honesty to the Court and not mislead or deceive the Court.200
(b)Not to act in a manner that undermines the administration of justice.201 The obligation on counsel of “fearless conduct” is “subject to the overriding obligation to the Court and avoidance of contempt”.202
(c) To bring relevant points of law to the attention of the Court, even if the point is against the interests of his or her client.203
(d) To refrain from attacking a person’s reputation without good cause.204
[148] A helpful summary of relevant principles can be found in R v Huang.205 The
Court of Appeal said:
[47] As Mr Grieve submitted, counsel have an overriding duty to the Court, stated in the following terms by Lord Reid in Rondel v Worsley [1969] 1 AC 191 at 227 (HL):
Every counsel has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the court concerned in the administration of justice, he has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the court ...
[48] Further, r 8.01 of the Rules of Professional Conduct for Barristers and Solicitors (6ed 2000), (now superseded but in force at the relevant time):
200 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 [the Client Care Rules], r 13.1. See also R v Huang [2009] NZCA 527 at paras [47] – [51], and generally, Gazley v Wellington District Law Society [1976] 1 NZLR 452 (SC), applying Rondel v Worsley [1969] 1 AC 191 (HL).
201 For example, Solicitor-General v Miss Alice [2007] 2 NZLR 783 (HC) at para [29].
202 Ibid, at para [40], with reference to r 8.01 of the Rules of Professional Conduct for Barristers and
Solicitors, then in force. See also para [151] below.
203 The Client Care Rules, r 13.11. This rule refers to Practice Note [1968] NZLR 608, suggesting that this duty applies even after a hearing has concluded.
204 The Client Care Rules, r 13.8. See also Gazley v Wellington District Law Society [1976] 1 NZLR
452 (SC) at 454, affirmed in New Zealand Social Credit Political League Inc v O’Brien [1984] 1
NZLR 84 (CA) at 96.
205 R v Huang [2009] NZCA 527 at [47]–[50].
In the interests of the administration of justice, the overriding duty of a practitioner acting in litigation is to the court or the tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.
[49] Counsel take an oath on admission, where they swear truly and honestly to conduct themselves in the practice of a barrister and solicitor according to the best of their knowledge and ability. It is a fundamental duty of counsel in terms of this oath not to mislead a Court.
[50] As Mr Grieve submitted, the duty to the law and the Court are fundamental ethical obligations, the existence of which courts are entitled to assume counsel is aware. Counsel is always on notice as an officer of the Court that these obligations must be met and, by extension, counsel must be taken as being aware that any breach of these duties could be the subject of comment by the Court.
[149] The Court’s inherent jurisdiction to supervise the conduct of its practitioners extends to intervention when it appears that the conduct of counsel outside the Court may have a bearing on the conduct of a case.206 The obligations owed by counsel to the Court can form the basis for an order that costs be paid personally by a practitioner who has breached an obligation.207
[150] The charges involving the Family Court case emanated from a complaint made by opposing counsel, Ms Lellman. No less than 10 particulars are given alleging misconduct on the part of Mr Orlov while acting in this proceeding. Among other things, the particulars assert that Mr Orlov breached rr 8.01 and 8.04 of the Rules of Professional Conduct for Barristers and Solicitors. Those allegations are based on the proposition that Mr Orlov, acting as counsel, attacked another’s reputation without good cause.
[151] The charge of serial negligence or incompetence is based on some 10 different cases. The allegations include: calling evidence and conducting cross- examination on irrelevant issues; raising meritless points about the failure of opposing counsel to give proper discovery; making unfounded allegations against
opposing counsel in relation to particular claims (one allegation made by Mr Orlov,
206 Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 (HC).
207 For example, Harley v McDonald [1999] 3 NZLR 545 (CA). Although the decision was reversed on appeal, this particular principle was upheld: Harley v McDonald [2002] 1 NZLR 1 (PC) at para [45].
in the course of one case, that the plaintiff had “waged a concerted campaign of interlocutory warfare that simply was not able be resisted by the defendants due to impecuniosity”); advising the Court that he could no longer appear “for financial reasons” without first seeking leave to withdraw and making allegations in a discursive and incoherent statement of claim, “without any proper evidential or legal foundation”.
[152] I am satisfied that, if the primary facts on which the particulars are based were proved, the allegations of making “scandalous and false” allegations against Harrison J could amount to misconduct that would justify either striking off or suspension. While there is no doubt that Mr Orlov had the right to make a complaint to the Judicial Conduct Commissioner (as he did on 11 February 2009)208 about Harrison J, the issue concerns the (allegedly) intemperate and scandalous way in which the complaint was expressed.
[153] Scandalous or false allegations against a Judge (in his or her capacity as such) strike at the very heart of the judicial system and the rule of law. The Tribunal would be entitled to find that Mr Orlov had expressed views in intemperate tones which infringed the basic obligation of lawyers to respect judicial institutions. While Mr Orlov might well regard his conduct as enhancing the rule of law, it is a question for the Tribunal to decide whether he overstepped the mark to such an extent that a finding of misconduct is required.
[154] The allegations arising out of the Family Court proceedings are more problematic. Some of the particulars, if proved, could amount to misconduct that would pass the threshold for reference to the Tribunal. Unfortunately, a number of the allegations would require the Tribunal to embark upon a detailed consideration of the conduct of a particular case, even though specific allegations involving the making of false or reckless statements constitute an attack on a person’s reputation without good cause might be sufficient of themselves to pass the threshold. There is
a real risk that it may be oppressive to require Mr Orlov to meet all of the particulars
208 See para [12](g) above in temperate terms.
in that charge, in their current form, although that may be an issue for the Tribunal to consider on an appropriate application.
[155] I am satisfied that, viewed as a whole, charges 9 and 10 pass the threshold for reference to the Tribunal. However, the National Committee may wish to reconsider (in light of my comments) the extent of the particulars; specifically, those relating to the way in which the case was presented, as opposed to alleged improper allegations made by Mr Orlov in the process of it.
[156] Similar comments apply equally to charge 11, the allegation of serial negligence or incompetence. Of themselves, particular allegations may not cross the threshold. However, the Tribunal could conclude, if the primary facts were established, that the cumulative effect of particular conduct was sufficient to justify a finding of misconduct that could lead either to striking off or suspension.
[157] While, it is inappropriate for me to review the evidence in detail, I am bound to say that many of the allegations involve conduct which, of itself, would not justify the Tribunal’s involvement and may properly be said to be allegations that could be made against many practitioners in the course of their careers. For example: there will be few practitioners who have never missed a deadline for filing documents; there will be few practitioners who would not have intituled a document incorrectly and, regrettably, the provision of prolix pleadings and evidence is not unusual.
11. Conclusions
[158] For those reasons, I hold that:
(a) Charges 1, 6 and 7 of the charges laid by the s 356 Committee and the No 1 Committee are sufficiently serious to be referred to the Tribunal. Charges 2, 3, 4, 5, 8, 9, 10, 11, 12 and 13 are not.
(b)All charges brought by the National Committee are sufficiently serious to be referred to the Tribunal for determination.
(c) In respect of those charges that I find are sufficiently serious to be determined by the Tribunal, I am satisfied that the relevant Committee complied adequately with the rules of natural justice.
[159] Mr Morgan submitted, for the Standards Committees, that I ought not to grant relief on the grounds that Mr Orlov failed to seek review from the Review Officer.209
On balance, I do not consider that Mr Orlov’s failure to refer the issues to the Review Officer before taking judicial review proceedings disentitles him from relief in respect of those charges that I have held as insufficiently serious to be considered by the Tribunal.
12. Result
[160] The application for judicial review is granted, to the extent that I quash the decisions to refer the eight charges that I have found to be of insufficient seriousness to justify reference to the Tribunal.210 Necessarily, that means those charges must be withdrawn from the Tribunal’s consideration. Each of those complaints are remitted to the relevant Committee to reconsider its decision under s 152 of the 2006 Act, in accordance with the rules of natural justice. Otherwise, the application for judicial
review is dismissed.
[161] The proceeding is adjourned to enable the Bill of Rights issues to be considered further. The Registrar is directed to convene a case management conference before me at 9am on the first available date after 12 October 2012 to make appropriate procedural directions. At that time, I will also hear from counsel on whether costs should be determined in respect of the judicial review part of this proceeding now, or upon final determination of the Bill of Rights proceeding.
[162] Memoranda for the conference shall be filed and served:
(a) By Mr Orlov, on or before 28 September 2012
209 Lawyers and Practitioners Act 2006, s 209, set out at para [71] above.
210 Those charges are listed in para [121] above.
(b) By Mr Morgan, on or before 5 October 2012.
13. Addendum
[163] When finalising this judgment for delivery this afternoon, the Registrar referred to me a memorandum and affidavit from Mr Orlov, both dated 22 August
2012. Mr Orlov seeks an urgent conference, leave to adduce further evidence and leave to file an injunction or stay application “concerning the hearing of any suspended application”, pending my judgment in this case. I have read both the application and the affidavit.
[164] The memorandum stems from a separate application made by the National Standards Committee and the No 1 Committee to inspect and copy documents on Court files that are relevant to the charges. Mr Orlov is named as a party to that application, the return date for which appears to have been yesterday. I have not inquired as to the outcome of any hearing.
[165] I am not satisfied that any issue of bad faith arises out of the filing of the application; nor out of the affidavit filed by Ms Ollivier in support. It is an application on which Mr Orlov is entitled to be heard separately. It is axiomatic that evidence on which a decision is made to lay a charge may need to be supplemented by other evidence when the case is heard before the Tribunal.
[166] This judgment has been based solely on evidence available to the Standards Committees when they made their decisions. Therefore, there is no reason to defer delivery of this judgment on the basis of what has happened recently. I refuse leave to adduce further evidence.
[167] Mr Orlov has asked for associated proceedings under CIV 2010-404-2628 and CIV 2010-404-5778 to be progressed promptly. The Registrar shall set them down for a conference to be held contemporaneously with the one directed in this
proceeding, on the basis of the same timetabling orders.211
P R Heath J
Delivered at 4.00pm on 24 August 2012
211 See para [161] and [162] above.
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