Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV 2010-404-005778

[2011] NZHC 1527

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-005778

BETWEEN  EVGENY ORLOV Plaintiff

ANDNEW ZEALAND LAW SOCIETY (AUCKLAND BRANCH) Defendant

Hearing:         17 August 2011

13 September 2011

Appearances: Mr E Orlov in person, the Plaintiff

P J Morgan QC for the Defendant

Judgment:      15 September 2011

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

15.09.11 at 4:30 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors/Counsel:

E Orlov, Equity Chambers, Auckland –  [email protected]

P Morgan, Barrister, Hamilton –  [email protected]

EVGENY ORLOV V NEW ZEALAND LAW SOCIETY (AUCKLAND BRANCH) HC AK CIV 2010-404-

005778 15 September 2011

[1]      This  judgment  concerns  Mr  Orlov‟s  application  for  further  and  better

discovery from the New Zealand Law Society (NZLS).

Background

[2]      Mr Orlov has sued the NZLS in connection with events which occurred on 14

October 2008 when Mr Orlov entered the Auckland District Law Society‟s Auckland premises.  Apparently on that date the Auckland District Law Society (ADLS) was intending to consider complaints concerning Mr Orlov.  In the event Mr Orlov was escorted from the ADLS premises by Police, upon the request, he assumes of the ADLS vice president.

[3]      Mr Orlov‟s proceeding against the NZLS identifies his concerns with the events on 14 October 2008, and also in relation to matters which arose before and after that date.  Mr Orlov believes the ADLS had been subjecting him to “a raft of improper investigations and own motion decisions”.   When he entered the ADLS premises on 14 October 2008 he said he was insulted.  After that incident Mr Orlov sent letters of complaint to the ADLS President, Ms Malcolm.  He says instead of his complaint being investigated the NZLS determined to conduct an investigation concerning him.

[4]      His issues include:

(a)      That there was publication in the Sunday Star Times about him being charged with disciplinary matters, which publication caused him a “loss of reputation and practice”.

(b)He has serious health complaints which have been exacerbated by the events.

(c)      He had suffered general damages “of hurt and humiliation caused by the anxiety and prospect of losing his livelihood, his profession and hence his homely life”.

[5]      Mr Orlov wishes his case to be heard before a jury.   That is a matter for further application in due course.

[6]      He  seeks  general  damages,  special  damages  (for  loss  of  practice  and reputation),  aggravated  damages  (for  anxiety  and  suffering  and  exaggeration  of health conditions), and exemplary damages (in respect of behaviour “by Officers of the Court which was knowingly and deliberately unlawful and designed to abuse the processes entrusted to them”).

[7]      The statement of claim complains about the manner of the conduct of the NZLS‟s professional standards director in connection with the investigation of complaints about Mr Orlov.  He said the NZLS did not investigate the matter of Mr Orlov‟s complaint about the behaviour of its vice president on the occasion of 14

October 2008 when he was evicted from the ADLS premises.

[8]      Mr Orlov  complains that when  the matters were referred  to the NZLS‟s solicitors there was no instruction given at that same time for his own complaints concerning the NZLS to be investigated.

[9]      Mr Orlov‟s pleaded claim also identifies his concerns with the investigation by the NZLS‟s solicitors that ensued.  Mr Orlov complains that the solicitors refused to investigate his complaints; that they “deliberately and recklessly” failed to obtain statements of all ADLS staff present or of the Police Officers who attended; that witness statements were never obtained from „all parties‟; that subsequently obtained statements  were  “mostly...  undated,  poorly  drafted,  contradictory,  unsworn  and highly improper and offensive...”.

[10]     Mr Orlov claims that certain named persons had met “in secret” and had conspired to withhold from him certain information obtained by one of those named persons.

[11]     Mr Orlov claims that the decision of the Complaints Committee 1 of the NZLS to file charges against him before the Disciplinary Tribunal was a breach of statutory duty and/or was a decision made in that faith.

[12]     Mr Orlov also claims that certain named officers of the NZLS exercising disciplinary functions, did in concert with other members of the NZLS and various members of the Complains Committee 1 of the NZLS conspire to injure Mr Orlov‟s practice and reputation by unlawful means.  Also he says the manner in which the NZLS exercised its functions and powers “of a public nature” constituted a breach of the New Zealand Bill of Rights Act 1990.

NZLS’s affidavit of documents

[13]     In accordance with directions made by the Court the NZLS filed its affidavit of documents on 20 May 2011.  In the manner required by the High Court Rules the affidavit identified in Part 1 of a schedule the list of documents for which neither privilege nor confidentiality was claimed; and in Part 2 those documents for which professional privilege, litigation privilege, public interest immunity or confidentiality were claimed; and in Part 3 documents known to exist in relation to the matter, but which were not in the possession or control of the NZLS.

[14]     That  part  of  the  schedule  (Part  2)  dealing  with  privilege/confidentiality claims identifies documents by description, from whom and to whom it was sent, its date, and the purpose for which privilege is claimed.   In some instances privilege/confidentiality has been claimed in respect of part of the NZLS‟s/ADLS‟s agendas.   Confidentiality is also claimed in respect of ring binder files.   In one instance  litigation  privilege  was  asserted  in  respect  of  an  entire  ring  binder. Elsewhere professional or litigation privilege, public interest immunity or confidentiality is claimed in respect of emails or letters the purpose of which is identified, as is the period over which that correspondence was conducted.

Mr Orlov’s applications for further and better discovery

[15]     Mr Orlov‟s first application for further and better discovery was the subject of discussion at a case management conference before Abbott AJ on 15 June 2011. In his minute following that conference the learned Judge expressed the view that the Court and the NZLS would be assisted if Mr Orlov filed an amended application “setting out precisely the respects in which he says that the defendant‟s existing list

is not in accordance with the High Court Rules, and spelling out exactly what issues

he takes with respect to privilege”. The Learned Judge added:

It is difficult to see what other issues there may be (for example, in respect of relevance) but that is a matter that Mr Orlov can consider and frame more particularly in his amended application.  In respect of the issue over privilege the amended application should be more specific as to what is in issue for example, I understood that Mr Orlov seeks clarification as to the nature of privilege claimed, the documents subject to the various grounds of privilege, and the grounds on which the privilege is asserted.  In summary, Mr Orlov needs to identify the specific orders sought and the grounds for seeking them.  His present application is too general to be helpful.

[16]     In an amended application Mr Orlov sought discovery of the following:

A.     That  the  [NZLS]  provide  further  and  better  discovery  of  the documents listed in the schedule to his application.

B.      That the [NZLS] swears a list of discoverable documents in proper form i.e. that each document is identified by date and time of production and the nature of the documents.

C.      That  in  relation  to  documents  indicated  in  Part  2  i.e.  privilege documents that the [NZLS] identify each document by date and time and content and provide details in each case why the privilege is claimed and on what legal basis that the documents be produced to the Court and a hearing be held in relation to each document and/or an order that the documents for which privilege is asserted by disclosed since the issue of prima facie malice such as pleaded the doctrine of privilege does not apply.

D.      That the individual members of the committee‟s  files referred to in Part 3 be released to [him] as they are discoverable and they are in the possession and/or control of the Complaints Committee and there is no legal basis to withhold them.

[17]     In the schedule to his amended application Mr Orlov identifies the documents for which further and better discovery is sought, namely:

1.All  correspondence,  emails  from  Lapa  Laubshcer  and  committee members initiating the complaint;

2.      All discussions, minutes and the other documents relating to the Law

Society Counsel and the alleged decision to investigate;

3.All deliberations and considerations relating to my complaint letters to Margaret Malcolm and all file notes, emails and correspondence between Margaret Malcolm and others relating to the incident;

4.All letters, emails and records of phone class with the New Zealand police;

5.All emails, correspondence and documents (especially draft witness statements) made by “witnesses” to the alleged events and records of all meetings between witnesses and their Counsel;

6.      All emails between Complaints Committee 1 and the New Zealand

Law Society (including Mary Ollivier);

7.The letter of instruction to Meredith Connell, file notes of meetings with  them  leading  to  and  including  their  engagement  and  all (withheld) emails and correspondence between Meredith Connell and the Law Society (Complaints Committee 1) including records of all telephone discussions;

8.      The entire file of the Meredith Connell investigator;

9.The entire file of the NZLS/Complaints Committee relating to this matter;

10.     Meredith Connell‟s bills and reports to the Complaints Committee 1

and NZLS;

11.     The entire lists of the persons or persons who drafted the complaint, the notice of the hearing and other documents relating to the decision to charge;

12.The internal deliberations, notes, emails prior to, during and after the decision to charge the Plaintiff including the unexpurgated original signed minutes of the meeting to decide to charge and recording of the people who were present.

13.All correspondence (including legal advice) relating to the decision to withdraw the charges;

14.A detailed list of documents withheld on grounds of alleged privileged with a full description of each document withheld;

15.All  emails,  letters  and  other  documents  produced  by  Phil Ahearn relating to this incident and relating to his “investigation” into my associated with Denis Gates.

[18]     Mr Orlov swore an affidavit providing reasons for his belief that the actions of ADLS members were done in bad faith/with malice.

Mr Orlov’s submissions in support of his application

[19]     Mr Orlov has summarised the background events as follows:

Counsel for the plaintiff had emailed Lapa Laubshcer (the then Professional Standards Director) on a number of occasions to advise him that the plaintiff and his then counsel would be attending an Auckland District Law Society

committee enquiry into his alleged rudeness to a barrister Mr Patterson who had previously filed unsuccessful Law Society complaints.

The reason for attendance was that the Auckland District Law Society had been subjecting the plaintiff to a raft of improper investigations and own motion decisions to send him to the Tribunal and he wanted to be heard,.

When the plaintiff attended, he was insulted by [the vice President], Frank Godinet in extremely serious terms when [he was] called “a poor excuse for a man” and “a joke”.

The plaintiff was in the process of complaining to Margaret Malcolm when the Police were called (presumably by Mr Godinet) and the plaintiff was told to leave under threat of Police arrest.

The plaintiff then sent letters of complaint to Margaret Malcolm.

The plaintiff was advised that the Council of the New Zealand Law Society would consider his complaint.

Instead of considering his complaint, a decision was made to “investigate”

the plaintiff, presumably by the Council.

Meredith Connell was specifically briefed and engaged not to look into the

plaintiff‟s complaint but only to investigate the plaintiff‟s behaviour.

Sometime later a series of false, misleading and in some cases fraudulent statements were procured accusing the plaintiff of threatening behaviour.

The plaintiff‟s complaints were never dealt with or investigated, nor was the

complaint that he was illegally removed by threat of Police.

[20]     Dealing with his claim for better and further discovery Mr Orlov submits there are “a vast number of documents that must ipso facto exist” and that have not been discovered.

[21]     Mr Orlov submits that the documents which have not been disclosed are “highly relevant to the allegation that the Complaints Committee knew that there was no basis for charging or investigating and was acting with malice”.

[22]     Mr Orlov says the investigation file of Meredith Connell “including their correspondence with various committee members, their records of discussions with the Police and the manner in which they produced the statements of the alleged witnesses etc. has simply never been disclosed nor even mentioned in the affidavit of discovery”.   The investigators were, he said, “the agents, hired or engaged by the Complaints Committee and therefore it is impossible to argue that the said file is not

in the possession or control of the defendants”.   He adds that Meredith Connell‟s accounts  and  all  their  reports  would  be  in  the  possession  and  control  of  the defendants yet they are not listed in the affidavit.

[23]     Mr Orlov considers “the correspondence with the Police” is highly relevant and since they were called there must be notes or records or file notes by the various committee members and reports relating to the callout.   He complains that these records/notes  have  not  been  provided  nor  listed.    He  says  those  are  “directly pertinent as to why the Police were called to a committee hearing and why the plaintiff was „unlawfully‟ thrown out of the building”.

[24]     Mr Orlov complains there is no record nor files or correspondence listed or discovered relating to his complaint against Mr Godinet and the committee‟s behaviour towards him.  He said a file must have been opened but this has not been disclosed.

[25]   He says there are no discovered documents relating to Mr Laubshcer‟s correspondence and meetings “with the various alleged witnesses against me and how the said witness statements were produced”.

[26]     Mr Orlov submits the NZLS is unable to claim privilege in the circumstances in  which  those  undisclosed  documents  were  generated  and  certainty  not  so  in relation to the records of the Council which he insists must exist.

[27]     Mr Orlov refers to the Court of Appeal decision in M v L [1] wherein the Court stated:

[1] 1999 [1] NZLR 747 at 750.

Discovery enables a party to know what documentary material another party has.  That material may either assist the party seeking discovery, or harm the case of the other party.  By obtaining disclosure in advance of trial, parties are able to reduce or eliminate surprise disclosures at trial.  This enables the case to be more fairly determined, and often assists settlement negotiations. Strengths and weaknesses are out in the open well in advance of trial.  The first question which arises when a party is served with a notice of discovery under Rule 293 is for that party to identify and assemble all relevant documents.   Almost invariably legal assistance will be necessary for that purpose.

The concept of relevance in the discovery area is an expansive one...

...

If a document is not relevant in these terms, it should not be included in a list of documents required under R 294.

[28]     Mr Orlov refers to Rule 8.21 wherein is set out the requirements for listing discovery documents and in particular the circumstances wherein privilege or confidentiality is claimed as the reason for withholding disclosure.

[29]     Mr Orlov submits that the decisions which are the subject of his proceeding are contained on ADLS file numbers 424 and 425 about which only a brief mention has been given in the list already filed on behalf of the NZLS.

[30]     Mr  Orlov  complains  that  the  list  refers  to  files  that  were  not,  when  he examined them, in chronological order or numbered consecutively.  He says it is not clear what has been disclosed and what has been withheld.  He says it is clear from McGechan that each document must be able to be identified individually.  Otherwise in the case of groups of documents those documents need to be sufficiently described so as to be identifiable for an application for production.

[31]     Mr Orlov submits that it is not clear from the defendant‟s list on what basis public interest immunity or confidentiality is claimed.   He says when privilege is claimed there must be clear particularity of the document and  why privilege is claimed especially if that privilege is not related to litigation privilege but instead related to general privilege.

[32]     Mr Orlov‟s proceeding contends that the NZLS acted in bad faith by referring him to the Tribunal for investigation when there was “absolutely no evidential or legal foundation” to do so.  He adds that the NZLS deliberately used that proceeding to  avoid  investigating  his  claims  that  he  had  been  unlawfully  treated  by  the committee and had been assaulted and defamed.

[33]     He submits that in this context of things “the concept of privilege does not apply”.  He asserts that “one of the evidential issues is that the NZLS would have received legal advice and would have known earlier on that there was simply no

legal basis to send the plaintiff to the Tribunal”.   He asserts that privilege can be waived or does not apply in such cases and that any communication whether or not with lawyers, for the purposes of maintaining an action in bad faith or for an action for fraud or dishonest  or unlawful purpose automatically waives the concept of privilege.  Mr Orlov sums the position thus:

... If there is a conspiracy or an intention to sabotage the lawful purposes of the law i.e. an intention to act in bad faith or deceit, the protections of the law honoured by concept of privilege no longer has validity in terms of the public policy argument.

[34]     Mr Orlov submits that where bad faith and malice is alleged there is a strong prima facie basis for the submission that it would be difficult to see how public interest immunity applies except if to conceal the very fact that a fraud had been committed.  He adds that no document would be privileged if it came into existence for the purpose of carrying out a fraud or if it contained evidence that a fraud had been committed.  However, and as he notes, it is not enough simply to allege that there has been fraud. There must also be some evidence of it.

[35]    Mr Orlov submits that “if there is evidence (as there must be) that the Complaints Committee and its members had received legal advice that it was inappropriate to send the matter to the Tribunal and they did so, this would be further evidence of malice and it would not be in the public interest to withhold this for scrutiny by the Court”.

[36]     Mr Orlov‟s final concern related to the files he said were held by individual members  of  “the  Committee”.    He  said  the NZLS‟s  List  fails  to  identify what documents are held by individual committee members, save for the reference in Part 3 to “files, correspondence and documents held by individual members of the Committees that generated the files referred to in Parts 1 and 2]”.

[37] Mr Orlov‟s position is that committee members are “servants or agents” of their committee and the NZLS. Therefore NZLS is in a position to provide discovery of those files. He said those files are in the possession and control of NZLS, they the committee members having performed their functions under the Lawyers and Conveyancers Act 2006 (the LCA) as agents for the NZLS.

Hearing matters

[38]     This matter was originally scheduled a half day hearing before me on 17

August 2011.  At the conclusion of that half day the Court had heard only from Mr Orlov as applicant.  Therefore it was necessary to schedule another fixture to hear Mr  Morgan  on  behalf  of  NZLS.    Hence  the  half  day  fixture  arranged  on  13

September 2011.  For the purpose of that hearing I issued a minute dated 17 August

2011 wherein I noted:

[3]       The Court has had time only to hear Mr Orlov‟s submissions.  Of the matters referred to by him, the following may be of interest for consideration of the Court in due course:

(a)       Is there any basis from which to assume a pleading of malice/bad faith affects the obligations of a party claiming privilege/confidentiality over documents held?

(b)       Whether in the particular circumstances of this case there has been sufficient particularisation of the documents described in Part 2 of the defendant‟s schedule?

(c)       Whether  there  should  be  some  description  of  the  reason  for withholding   documents   on   the   grounds   of   “public   interest immunity”?

(d)       Whether the appointment of an investigator pursuant to s 144 of the LCA means that person appointed becomes an agent of the NZLS.  If so, does that person‟s files/records become the property of or is in the control of the NZLS?

[39]     Of primary concern were issues raised in paragraphs [3] (b) and (c) of my minute.  In advance of the hearing on 13 September 2011 Mr Morgan filed a brief submission to which was annexed a proposed new part 2 of the NZLS affidavit of documents.  It was part 2 that detailed documents which were the subject of claims of privilege or confidentiality.  As earlier noted Mr Orlov was concerned about, in particular, claims of privilege based upon grounds of public interest immunity.

[40]     Towards the latter part of the hearing on 13 September 2011 Mr Morgan apprehended there would insufficient time to conclude the hearing.   Mr Morgan suggested the Court adjourn briefly to permit discussion between him and Mr Orlov. When  the  hearing  resumed  Mr  Morgan  produced  a  handwritten  copy  of  an agreement with Mr Orlov, the purpose of which was to propose an arrangement to

deal with the first three of the four matters raised by Mr Orlov‟s amended application

for further and better discovery.

[41]     Mr  Morgan  requested  that  I  include  the  provisions  of  that  handwritten agreement as part of this judgment to record the parties‟ agreement.  At that time Mr Orlov indicated to me that I should do so.   Accordingly I record the parties‟ agreement as follows:

(1)As to the documents listed in part [2] of the Affidavit of Documents of 18 May 2011 (excluding litigation privileged documents) counsel for the Defendant will seek instructions to resolve the issue over the production and inspection of the list of documents by copying same, having them inspected by the Plaintiff in the company of counsel, for the Plaintiff to identify those documents the Plaintiff wishes to obtain a copy of, subject to the Plaintiff providing an undertaking as to confidentiality.  For those documents for which the Plaintiff requests a copy, the Defendant will elect to comply with that request or decline such  request  so  the  Court  may  then  determine  the  Plaintiff ‟s application that the grounds for withholding be determined by the Court.

(2)Counsel for the defendant will make further enquiry of the Defendant as to contemporaneous/source documents for the meetings that generated the minutes listed in the Affidavit of Documents of 18 May

2011.  Such enquiry to include any written policy as to the production of minutes by Complaints Committee and Standards Committees.

(3)Counsel for the Defendant will seek its instructions as to the obtaining from Messrs Meredith Connell its file for the investigation by Joshua Shaw referred to in the pleadings.  For avoidance of doubt this item would, subject to the agreement of the Defendant and Meredith Connell, allow inspection of that file by the Plaintiff.

(4)The Plaintiff shall  provide to  counsel  for  the  Defendant  a list  of documents he maintains exist, are not listed in the Affidavit of Documents of 18 May 2011 and are relevant to the proceeding.  The Plaintiff shall on request give such further particulars, reasonable, practical, to assist in identifying any such document and whether it exists.     Counsel  for  the  Defendant  will  then  request  from  the Defendant   a   written   response   to   the   Plaintiff‟s   request   as particularised from Mrs Mary Olivier.

[42]     In this outcome it is not necessary for me to presently deal with any other matter in issue between the parties except for that part of Mr Orlov‟s application which requests the files of individual members of NZLS‟s committee to be released to him.

Whether the files of individual members of NZLS’s committees are discoverable

[43]     Part 2 of NZLS‟s Affidavit of Documents identifies ADLS files in connection with various complaints of and from Mr Orlov between March 2006 to and including January 2010.  ADLS and NZLS asserted a right to withhold those from inspection by reasons of professional privilege, litigation privilege, public interest immunity or confidentiality.

[44]     Part 3 of NZLS‟s Affidavit of Documents purports to identify documents which are known to the NZLS as relating to matters in question in the proceeding which are in the control of another.   Specifically there is mentioned therein files, correspondence and documents held by individual members of the committees that generated the files referred in part 2 of the Affidavit.

[45]   For present purposes this Court needs to decide whether those files, correspondence and documents held by individual members of committees are discoverable by the NZLS.

[46]     Mr Orlov‟s position is that those documents are the property of the Standards

Committee and are therefore in the control of the NZLS.   Mr Morgan submits

control of those documents remains with individual committee members and not with the NZLS.

[47]     Both sides refer to the authority of Abbott AJ in Dale v Jeffrey [2].

[2] HC Auckland CIV 2007-404-2015, 22 October 2008.

[48]     In that case the learned Judge noted that the definition in the High Court

Rules of “control” meant:

(a)     Possession of the document; or

(b)     A right to possess the document; or

(c)     A right, otherwise under [the] Rules, to inspect or copy the document. [49]     Therefore collectively the elements of control denote the ability or power to

enforce a legal right to obtain documents from another without the need for consent of anyone else.

[50]     For  Mr  Orlov  the  proposition  is  straightforward.    The  files  of  NZLS committee members are the files of its officers (because they are its agents) which are produced, Mr Orlov submits, for the purposes of NZLS‟s investigation of him.

[51]     Mr Orlov puts it at this level:

(a)      That the purpose of the committee members is the pursuit of truth having been asked by the NZLS to undertake that enquiry; therefore although the file is theirs, information is accumulated on it and the committee members cannot hide behind claims that the NZLS has a limited scope of control over the accumulation of file contents. Otherwise, if committee members could hide behind a claim of a limited scope of  control  by NZLS  then  all  discovery applications

would be too expensive to pursue because questions of control over

the file (between governing body and individual committee members)

could be raised to frustrate the discovery process.

[52]     Mr Orlov submits that the NZLS must have a legally enforceable right to obtain from committee members their respective files maintained for their purposes as committee members.  He says at that time those files were held, the committee members were performing a public function as part of a body that was exercising “public powers created by statute”.

[53]     Of particular  concern to  Mr Orlov  is  his  claim  that  some  of the ADLS Complaints  Committee  members  connected  to  the  events  of  14  October  2008 became, (with the transition from the Law Practitioners Act 1982  (LPA) to the Lawyers and Conveyancers Act 2006 (LCA) members of NZLS‟s Standards Committee.     Therefore  Mr  Orlov  surmises  that  those  Complaints  Committee members who provided witness statements concerning the events of 14 October

2008 were a part of that process by which (indeed were members of) the same Standards  Committee  which  made  a  recommendation  for  the  laying  of  charges against Mr Orlov before the Disciplinary Tribunal.  Mr Orlov believes that the files of the persons concerned who were members of first the Complaints Committee and later of the Standards Committee contain files that are vital to his claim against NZLS.   He is firm in his belief NZLS has control over the files not only of its Standards Committee members but also of the predecessor Complaints Committee members.

Considerations

[54]     I disagree with Mr Orlov‟s assessment.  I do not consider there is the element of control over individual Committee Members‟ files being vested in the NZLS or indeed before then in the ADLS.

[55]     The proceeding involves a claim of malicious prosecution by the NZLS, of breach of statutory duty by that body and by that body‟s decision to carry out an investigation and then to refer the matter to the Disciplinary Tribunal before then deciding not to prefer a charge against Mr Orlov.

[56]     In the form presented by this current application what Mr Orlov seeks is not the files of members of the NZLS‟s Standards Committee but rather the files of members of the ADLS Complaints Committee that was to meet on 14 October 2008. What Mr Orlov seeks are the files of committee members of a body of the ADLS which has now been abolished.  Mr Orlov‟s position assumes that former members of the ADLS Complaints Committee may have become members of NZLS.  But, Mr Orlov‟s proceeding  concerns  decisions  made  by  NZLS‟s  Standards  Committee whose processes are governed by the LCA.  Yet the files he seeks were generated by bodies and processes generated by the LPA.

[57]     It is not I think a matter of assuming there be a seamless transition from one process to the other.  Rather it highlights a need to focus claims of discoverability upon individual members of the committees concerned.   The files of Complaints Committee members are not subject to control by the provisions of the LCA.  Even if they were, I am satisfied there is not a sufficient element of control for the NZLS to require discovery of them.

[58]     Mr Orlov‟s proposition is that because the Complaints Committee members were witnesses against him, their files would be discoverable for that reason.  But there is no general proposition in civil or criminal law that requires the personal file of a witness to be obtained or disclosed by that party calling him to give evidence. In a criminal case it is only the file of the Police that is obliged to be shown, not the file that their witness may have kept.

[59]     In this case the files of ADLS and NZLS have been discovered.  It cannot be the case that the committee members of those bodies are obliged by the direction of those bodies to provide the files they personally have kept.  In short they are not so under the control of those bodies, their files can be demanded of them.

Conclusions

[60]     Mr Orlov‟s concerns identify a severe element of mistrust over professional standards processes which he objects to, and that he has no confidence in.  It appears there is a long history of professional complaints to the ADLS and latterly the NZLS

concerning him.  His discovery application concerns are about his suspicion of the processes he has been subject to.   He believes relevant information has by manipulation or misrepresentation been concealed from him.  Allegations of malice and bad faith are at the forefront of his current proceeding against the NZLS.  They explain his determination to reveal misadventure by persons determined to prosecute him unjustly.

[61]     But, there is no evidence to support claims of malice or bad faith, merely suspicion that there is such.  By this application for further and better discovery, Mr Orlov is endeavouring to show there is substance to his claims.  That is not sufficient for present purposes.

[62]     This judgment records an agreement of a kind to deal with the bulk of matters in issue raised by Mr Orlov‟s application.   In that respect for which no agreement was reached, I am firmly of the view Mr Orlov‟s application must fail.

[63]     Mr  Orlov  is  not  without  recourse  for  he  is  able  to  apply for  non  party discovery  against  the  committee  members  in  question.    Alternatively  he  may consider applying to join those persons as parties to his proceeding.

Result

[64]     The application requiring the NZLS to provide for discovery the files of the

Standards Committee members is dismissed.

[65]     Costs are reserved but if the Court is invited to fix those it will likely do so on the basis that about one quarter only of the hearing time was required to determine a matter the parties could not agree upon.  In those circumstances something less than

scale 2B would likely be considered appropriate.

Associate Judge Christiansen