Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV 2010-404-2868

[2011] NZHC 1387

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-2868

BETWEEN  EVGENY ORLOV Applicant

ANDNEW ZEALAND LAW SOCIETY (AUCKLAND BRANCH)

First Respondent

ANDAUCKLAND STANDARDS COMMITTEE

Second Respondent

ANDAUCKLAND LAWYERS STANDARD COMMITTEE NO. 1

Third Respondent

ANDNATIONAL STANDARDS COMMITTEE Fourth Respondent

Hearing:         30 August 2011

Counsel:         E Orlov, Applicant, in person

P J Morgan QC for Respondents

Judgment:      30 August 2011

(ORAL) JUDGMENT (NO. 4) OF HEATH J

Solicitors:

Equity Law, PO Box 8333, Auckland Glaister Ennor, PO Box 63, Auckland Counsel:

P J Morgan QC, PO Box 19021, Hamilton

ORLOV V NEW ZEALAND LAW SOCIETY (AUCKLAND BRANCH) HC AK CIV 2010-404-2868 30

August 2011

[1]      This proceeding involves an application for judicial review and claims under the New Zealand Bill of Rights Act 1990 (the Act).   It arises out of decisions to charge Mr Orlov with disciplinary offences under the Lawyers and Conveyancers’ Act 2006.

[2]      Some  of  the  disciplinary  charges  are  currently  before  the  New  Zealand Lawyers’ and Conveyancers’ Tribunal (the Tribunal).  A hearing was held before the Tribunal on 15 April 2011 in which an interim stay was sought pending the outcome of this proceeding.  In a decision given on the same day, the Tribunal adjourned the application[1] on the following terms:

[1] Auckland Standards Committees v Orlov [2011] NZLCDT 12.

[8]      We propose to decline the stay application but grant an adjournment to 13 September on terms as follows:-

(i)        That  both  parties  expeditiously  advance  the  High  Court review proceedings.

(ii)      In the event that any unnecessary delay occurs in these proceedings the Society has leave to apply to the Tribunal for further orders or directions to progress the matter to hearing.

(iii)      Mr  Orlov  is  to  provide  the  Tribunal  with  any  judicial minutes or directions in the High Court proceedings and its judgment in due course.

(iv)      The Law Society is to file any further charges by 13 May next.

[3]      With regard to the first of the terms on which the adjournment was sought, I observe that  due to  systemic problems  within  the High  Court  (into  which it  is unnecessary to go) the parties were unable to secure a further conference before me until today.   Accordingly, the Tribunal should not infer any intent on the part of either Mr Orlov or the respondents to delay this proceeding.  That is relevant to the second of the terms imposed by the Tribunal.

[4]      Discussion today has centred on the means by which this proceeding can be readied for hearing as soon as practicable.  I set the proceeding down for a hearing,

for which eight days are allocated, commencing on Monday 27 February 2012.  The setting down date will be 16 September 2011.

[5]      To  enable  the  proceeding  to  be  ready for  trial  at  that  time,  I make  the following directions:

(a)       Mr Orlov shall file and serve, on or before 4 October 2011:

(i)An Amended Statement of Claim, incorporating allegations in respect of charges brought against him by the National Standards Committee

(ii)An   application   for   further   and   better   discovery.      That application shall incorporate issues of production, in respect of documents for which (to date) the Society and the Committees have claimed privilege

(iii)     Affidavits in support of the discovery application

(iv)     Affidavits  dealing  with  the  issues  raised  in  relation  to  Mr

Orlov’s claims against the National Standards Committee.

(b)      The four respondents shall file and serve, on or before 15 November

2011:

(i)       A Statement of Defence to the Amended Statement of Claim

(ii)      A notice of opposition to the discovery application

(iii)     Any affidavits in opposition to the discovery application

(iv)Any affidavits in relation to the National Standards Committee claims, together with affidavits responding to other points in the Amended Statement of Claim to which no prior evidence had  been  directed  in  the  Tribunal.    Those  affidavits  shall

address  issues  raised  in  the Amended  Statement  of  Claim which are not addressed in the affidavits filed in the Tribunal, which will be contained in the record of the Tribunal.

[6]      I direct that a copy of the record of the Tribunal be transmitted to this Court, on or before 15 November 2011.

[7]      An Issues Conference is fixed for one day, commencing at 10am on  30

November 2011.  In respect of that conference, I direct that Mr Orlov shall file and serve a memorandum, on or before 14 November 2011,

(a)      setting out the issues which he considers that the Court will need to address on 30 November

(b)The extent to which he may require witnesses to be present for cross- examination on affidavits filed either in the Tribunal or in response to other allegations made in the Amended Statement of Claim not expressly covered in the Tribunal affidavits.

[8]      The respondents shall file and serve, on or before 21 November 2011, a memorandum dealing with the issues it considers arise and identifying the affidavits from the Tribunal proceedings on which it places reliance for the purpose of the present proceeding.

[9]      At the Issues Conference on 30 November 2011, I shall hear argument on any opposed discovery application and also on Mr Orlov’s application for a direction that he be entitled to seek costs in the event he were successful in the proceeding even though he is acting on his own behalf.

[10]     I  am  satisfied  from  the  discussion  with  counsel  today,  that  a  judicial settlement conference is inappropriate in respect of the current proceeding.   The application for such a conference to be convened is dismissed.

[11]     Mr Orlov has also raised the possibility of a non-party discovery application against clients in respect of whom Mr Gates (as their solicitor) has already provided

non-party discovery.  Mr Orlov seeks to ascertain whether documents that Mr Gates says he does not have are in the possession of the clients.

[12]     If an application were made on notice to the clients, I will deal with it on 30

November 2011. Any application must be filed and served, on or before 11 October, together with a copy of this judgment drawing the attention of the clients to para [11] of this judgment.  Any notice of opposition and affidavit in opposition, shall be filed and served on or before 15 November 2011.

[13]     All questions of costs are reserved.

P R Heath J