Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV 2010-404-2868
[2010] NZHC 2308
•21 December 2010
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-2868
BETWEEN EVGENY ORLOV Plaintiff
ANDNEW ZEALAND LAW SOCIETY (AUCKLAND BRANCH)
First Respondent
ANDAUCKLAND STANDARDS COMMITTEE
Second Respondent
ANDAUCKLAND LAWYERS STANDARD COMMITTEE NO. 1
Third Respondent
Hearing: 17 December 2010
Counsel: E Orlov, Plaintiff, in person
W C Pyke for First, Second and Third Defendants
K Muir for non-party, Mr D J GatesC T Patterson for non-parties (himself, Mr Dunstan and Mr Gittos) Judgment: 21 December 2010
JUDGMENT (NO. 3) OF HEATH J
This judgment was delivered by me on 21 December 2010 at 11.45am pursuant to Rule 11.5 of the
High Court Rules
Solicitors:
Registrar/Deputy Registrar
Marsden Woods Inskip & Smith, PO Box 146, Whangarei
Glaister Ennor, PO Box 63, Auckland
Morgan Coakle, PO Box 114, Shortland Street, Auckland
Counsel:
E Orlov, PO Box 8333, Auckland
P J Morgan QC, PO Box 19021, Hamilton
W C Pyke, PO Box 19271, HamiltonC T Patterson, PO Box 2886, Shortland Street, Auckland
ORLOV V NEW ZEALAND LAW SOCIETY (AUCKLAND BRANCH) AND ORS HC AK CIV 2010-404-
2868 21 December 2010
Introduction
[1] Mr Orlov, a practising barrister and solicitor, seeks judicial review of decisions made to charge him with disciplinary offences under the Lawyers’ and Conveyancers’ Act 2006 (the Act). In the same proceeding he brings a claim for damages, arising out of the same circumstances, under the New Zealand Bill of Rights Act 1990 (the Bill of Rights). For present purposes, there is no need to differentiate between the two claims.
[2] Mr Orlov contends that decisions made by the New Zealand Law Society (Auckland Branch) (the Society), the Auckland Lawyers’ Standards’ Committee and the Auckland Lawyers’ Standards’ Committee No 1 to investigate his professional conduct and to charge him with disciplinary offences were made in bad faith.
[3] On that basis, Mr Orlov submits that the charges should be quashed; with the consequence that the alleged disciplinary offences would not be determined by the New Zealand Lawyers’ and Conveyancer’s Disciplinary Tribunal (the Tribunal), to which body they have been referred.
[4] Some of the allegations against Mr Orlov are about two years old. Others are more recent. Although the Tribunal is seized of the charges, it does not appear to have taken an active stance. For example, it has not required the charges to be pursued.
[5] I am aware that a stay application has been made by Mr Orlov to the Tribunal but no hearing date has been allocated. It now appears inevitable this Court will need to determine the present proceeding before the Tribunal embarks upon a consideration of the charges.
Interlocutory applications
[6] On 17 December 2010, I heard argument on four applications, all of which had been made by Mr Orlov:
a) Application for discovery against non-parties b) Application for discovery against defendants
c) Application to join National Standards Committee and the Tribunal
d)Application to have preliminary question and substantive proceeding heard before a Full Court.
[7] Later that day, I gave a result judgment on two of the applications. I granted Mr Orlov’s application to join the National Standards Committee but dismissed his application to join the Tribunal. I also dismissed Mr Orlov’s application to have a preliminary question and the substantive proceeding heard before a Full Court. I said I would give reasons for those decisions in this judgment.
Joinder of National Standards Committee
[8] There was no opposition to Mr Orlov’s application to join the National Standards Committee. Its members have now deliberated on aspects of the case referred to them. The National Standards Committee has determined that further charges should be laid.
[9] Counsel has been instructed to draft charges. Some of the charges relate to alleged conduct by Mr Orlov which, I am told, arise out of judgments given in this Court in which Mr Orlov has appeared. That factor is relevant also to Mr Orlov’s application for the proceeding to be determined by a Full Court.
Joinder of Tribunal
[10] I declined Mr Orlov’s application to join the Tribunal. No decision has been made by the Tribunal which could be the subject of relief, whether by way of judicial review or on a claim under the Bill of Rights.
[11] If any decisions were made by this Court to which the Tribunal responded inappropriately, Mr Orlov would have the ability to seek review of those decisions in due course. I am not suggesting that the Tribunal would act in that way (I am sure it would not) but it is important to reserve Mr Orlov’s position, in that regard.
Full Court applications
[12] I declined to allow Mr Orlov’s application to have a preliminary question and the substantive proceeding heard before a Full Court.
[13] The preliminary question was, in fact, discussed in my earlier judgment of 22
November 2010.[1] The need for a preliminary question to be determined has, in fact, been rendered moot because Mr Morgan QC, who appeared for the Society at the November hearing, accepted that the line of authority summarised and applied by Randerson J, in Polynesian Spas Ltd v Osborne,[2] could not exclude judicial review being sought in a case where bad faith or collateral purpose was alleged against a person in the position of a prosecutor.
[1] Orlov v New Zealand Law Society HC Auckland CIV 2010-404-2868, 22 November 2010 at paras
[10] and [11].
[2] Polynesian Spas Ltd v Osborne [2005] NZAR 408 (HC).
[14] The fact that further charges are to be laid as a result of the National Standards Committee’s decision, on the basis of decisions given by Judges of this Court, mean that, from an administrative point of view, there might be difficulties in convening a Full Court to determine a substantive hearing which could last up to one week. The length of the hearing may be determined by reference to the need for cross-examination; something that seems inevitable when bad faith is involved.[3]
Allegations of bad faith can only be tested by cross examination.
[3] See Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650 (CA) at 656-658.
[15] As I have dealt with most of the interlocutory hearings to date, I indicated to the parties that I would discuss the question of assignment with the List Judge. Lang J has confirmed that I am assigned to manage this proceeding and to preside
over its trial. On that basis, the application to have a Full Court determine the substantive proceeding was also dismissed.
Non-party discovery applications
(a) Introduction
[16] Mr Orlov made applications for non-party discovery against Mr Gates (a solicitor whom Mr Orlov describes as having been his “principal” during the course of a case out of which a complaint has arisen) and Messrs Patterson, Dunstan and Gittos, who were involved in other proceedings that have given rise to a complaint.
(b) Mr Gates
[17] Mr Muir, for Mr Gates, accepted that Mr Orlov ought to be entitled to receive discovery of the file held by Mr Gates. Mr Orlov can be regarded as having a common interest in Mr Gates’ file, as it relates to a proceeding in which Mr Gates and Mr Orlov were both involved and is the subject of the charges before the Tribunal. Mr Muir indicated that an order was required to protect Mr Gates. That is why the application had not previously been resolved by consent.
[18] Nevertheless, Mr Muir sought the usual order as to costs on a non-party application.[4] Mr Orlov contested the costs application, though making it clear he would pay for all appropriate photocopying costs.
[4] High Court Rules, r 8.27.
[19] There is a discretion for a Judge to order an applicant for a non-party discovery order to pay the expenses of the person from whom discovery is sought, including solicitor and client costs. In this case, however, the information held by Mr Gates is equivalent to information held by the same firm by two different lawyers in respect of the same proceeding. At this stage, I am not minded to order payment of expenses in favour of Mr Gates.
[20] I make an order that Mr Gates provide all documents in his possession or control relating to the subject matter of the application available to Mr Orlov on or before 24 December 2010. Mr Orlov shall indicate which documents he requires copies of and shall pay the reasonable photocopying expenses involved. All other questions, including the need for any verified list to be filed and whether expenses ought to be paid under r 8.27 of the High Court Rules, are expressly reserved; as are all questions of costs on this application.
(c) Messrs Patterson, Dunstan and Gittos
[21] The second non-party discovery application relates to a proceeding arising out of a dispute that is conveniently described in Dobson J’s judgment in Axon Projects Ltd v Dunstan.[5]
[5] Axon Projects Ltd v Dunstan HC Whangarei CIV 2008-488-380, 24 October 2008.
[22] In contrast to the non-party discovery application involving Mr Gates, what Mr Orlov seeks here is information from the other side of the transaction. As I explained to Mr Orlov in the course of the hearing, information held by those from whom he seeks non-party discovery is not likely to be relevant to whether the Society and its Standards’ Committees had sufficient information on which to base a decision to prosecute; or, whether that decision was made in good or bad faith.
[23] Once evidence for the Society is filed, Mr Orlov will be able to make submissions on what, if any, further information the Society could have obtained and whether what it had was sufficient to make the decisions he seeks to impugn.
[24] In those circumstances, I see no need for non-party discovery at this stage and dismiss the application, without prejudice to a further application being made later if circumstances change.
[25] Mr Patterson, a practising lawyer and one of the persons from whom non- party discovery was sought, asks for costs on dismissal of the application.
[26] While I understand that he and those against whom the application was made feel aggrieved over what has occurred, I am not prepared to award costs, at this stage. Apart from anything else, I will need evidence of the costs actually incurred by each of the non-parties before determining whether an order is appropriate.
[27] Costs are reserved. I will determine costs on the papers if a specific application is made that advises the amounts involved. That information is needed to ensure that no order is made in respect of Mr Patterson personally, a non-party, who has appeared both for himself (in person) and for the other two non-parties.
Application for discovery against defendants
[28] The application for discovery against the Society and the Standards Committees (including the National Standards Committee) is made to obtain documents on which those bodies relied to make the decisions in issue in the proceeding and to obtain relevant documents recording those decisions contemporaneously.
[29] The case for Mr Orlov, despite the lengthy Statement of Claim, is relatively straight-forward. Without intending to do any injustice to the allegations by capturing them in a pithy summary, Mr Orlov alleges that there has been a persistent pattern of conduct on the part of the Society and its Standards’ Committees, as a result of which decisions have been made, in bad faith, to charge Mr Orlov with disciplinary offences, when the Society and the committees knew that there was no evidence to support the allegations. It is in that sense that the human beings who made the relevant decisions are alleged to have acted in bad faith.
[30] During the course of the hearing it became clear that the scope of discovery needs to be defined more precisely. In particular, Mr Pyke, for the defendants, was concerned that, with the joinder of the National Standards Committee and the possibility of additional pleadings in relation to that body, the scope of discovery could be widened. He suggested that it was preferable for the issue of discovery to be deferred until after a further pleading had been filed by Mr Orlov, now that the National Standards Committee had been joined.
[31] While I agree with that approach, there is one area that will plainly need to be addressed in any event. It concerns claims for privilege by the Society in respect of documents which allegedly relate to the deliberation process undertaken by the Society and the relevant Standards’ Committees at various times. They are referred to fully in an affidavit sworn by Ms Ollivier, on behalf of the defendants.
[32] Without making an order, I would urge the defendants to prepare a verified list of privileged documents conforming with the discovery rules which will identify each and set out fully the basis on which privilege is said to attach. That list could then be served on Mr Orlov. If he were not to accept the assertion of privilege to particular documents, I would suggest that the parties submit a consent memorandum asking me to review those documents to determine questions of privilege, on the basis of an exchange of submissions, the timing of which could be addressed in the consent memorandum. In the meantime, I propose to adjourn the discovery application for further consideration, after the next version of the Statement of Claim has been filed and served.
Vacation of earlier procedural directions
[33] On 22 November 2010, I directed that the defendants file and serve evidence in opposition to that filed by Mr Orlov on or before 31 January 2011. I vacated that order in my judgment of 17 December 2010. That order was vacated because of the need to have an amended Statement of Claim, incorporating allegations against the National Standards Committee, before the Court before evidence from the defendants is filed.
Result
[34] In addition to the orders made on 17 December 2010:[6]
[6] Orlov v New Zealand Law Society HC Auckland CIV 2010-404-2868, 17 December 2010 at paras
[3], [4] and [5].
a) The application for non-party discovery against Mr Gates is granted, on the basis set out in para [20] above.
b)The application for non-party discovery against Mr Patterson, Mr Dunstan and Mr Gittos is dismissed, on the basis set out at paras [24]- [27] above.
c) The application for discovery against the defendants is adjourned, on the basis that it would be premature to determine it now. That application will be called for mention at a case management conference to be held in the New Year.
d)Mr Orlov shall file and serve a further Amended Statement of Claim on or before 31 January 2011, adding a claim against the National Standards Committee. Further evidence shall be filed and served by Mr Orlov, solely in respect of the National Standards’ Committee claim, by the same date.
[35] The Registrar is directed to set the proceeding down for a case management conference before me, in Court for chambers, on the first available date after 21
February 2011. The conference shall be held at 9am and one hour allocated. The Registrar shall also give notice of that conference to the non-parties against whom discovery wsas sought, in case they wish to advance any claims for costs at that time.
[36] If further defended interlocutory applications are likely, I will make directions as to the hearing of those at that time. In respect of the conference:
a) Mr Orlov shall file and serve a memorandum in relation to issues to be addressed at that conference, on or before 11 February 2011.
b)Counsel for the defendants shall file and serve a memorandum for the conference, on or before 18 February 2011.
[37] All questions of costs as between the parties are reserved.
P R Heath J
Delivered at 11.45am on 21 December 2010
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