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

[2010] NZHC 2083

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:         22 November 2010

Counsel:         E Orlov, in person, Plaintiff

P J Morgan QC for First, Second and Third Defendants
C T Patterson, in person, and for Mr Dunstan and Mr Gittos
M Muir for Mr D J Gates

Judgment:      22 November 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Marsden Woods Inskip & Smith, PO Box 146, Whangarei
Glaister Ennor, PO Box 63, Auckland
Counsel:
E Orlov, PO Box 8333, Auckland

P J Morgan QC, PO Box 19021, Hamilton

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

2868  22 November 2010

[1]      Mr Orlov is a practising barrister and solicitor who seeks judicial review of decisions made by the New Zealand Law Society (Auckland Branch) (the Society) and two committees established by it the Auckland Lawyers’ Standards’ Committee and the Auckland Lawyers’ Standards’ Committee No 1.

[2]      The application is directed to decisions by which disciplinary charges have been brought against Mr Orlov and referred for determination to the New Zealand Lawyers’ and Conveyancers’ Disciplinary Tribunal (the Tribunal).

[3]      The decisions under challenge can be summarised as follows:

a)       A decision of 24 November 2008 made by the Society, of its own motion, to investigate Mr Orlov’s conduct at a meeting on 14 October

2008 and its decision of 25 September 2009 to refer it to the Tribunal.

b)A  determination  to  charge  Mr  Orlov  in  respect  of  the  Patterson complaint, arising out of Mr Orlov’s conduct of litigation in Dunstan v Bonito Boats Ltd.   Charges have been framed and laid before the Tribunal.

c)       There are three decisions in respect of a reference, of its own motion, in respect of alleged failure to produce files to the Society.  They are:

(i) A decision of 10 March 2009 made by the Auckland Lawyers’ Standards’ Committee to require Mr Orlov to produce a file under s 101(3)(d) and (e) of the Law Practitioners Act 1984.

(ii)A decision of its own motion made by the Auckland Lawyers’ Standards’ Committee No 1, made on 15 May 2009, to investigate Mr Orlov’s conduct in failing to comply with that requirement.

(iii)The decision of 25 September 2009 whereby the Auckland Lawyers’ Standards’ Committee No 1 resolved to refer the matter to the Tribunal, under s 142(2)(a) of the Act.

d)A decision of the Auckland Lawyers’ Standards’ Committee No 1, made on 19 February 2010, to refer an issue relating to an affidavit sworn by a witness.   Charges have been framed and laid with the Tribunal.  The decision was made on the Committee’s own motion.

e)       The  Auckland  Lawyers’  Standards’  Committee  No  1  referred  a complaint made by Mr Dunstan to the Tribunal under s 152(2)(a) of the Act.  Charges have been framed and laid before the Tribunal.

f)        A   determination   made   by   the   Auckland   Lawyers’   Standards’ Committee No 1, of its own motion, in respect to Leila Orazbekova. Charges have been framed and laid before the Tribunal.

g)       Decisions made on 1 April 2010 by the Board of the New Zealand Law  Society  to  refer  all  complaints  involving  Mr  Orlov  to  the National Standards’ Committee.

h)A general pleading that the Society declined to provide documents or meet with Mr Orlov.

[4]      Since the proceeding was last before me on 31 August 2010, an Amended Statement of Claim has been filed, together with a Statement of Defence to that document which has been filed on behalf of the Society.   At this stage the two Standards’ Committees have been excused from the obligation to file and serve Statements of Defence.

[5]      Mr Orlov, in his Amended Statement of Claim, has purported to add two additional defendants, without an order for joinder.  They are the National Standards’ Committee, established by the New Zealand Law Society, and the Tribunal itself. Joinder of the Tribunal may be problematic because no relief could be sought against

that body on the basis  of the allegations currently made in the Statement of Claim. The position of the National Standards’ Committee may be different.

[6]      Any application  to  join  either the National  Standards’  Committee or  the Tribunal shall be filed and served on or before 26 November 2010, with affidavits in support.   Any notice of opposition and affidavits in opposition shall be filed and served on or before 9 December 2010.  Any application shall be heard at 10am on 17

December 2010, along with other applications to which I refer later.

[7]      In addition to the question of joinder, there are discovery questions to be settled both as between the parties to the present litigation and non-parties.

[8]      Non-party  discovery  has  been  sought  from  Mr  Gates,  Mr  Patterson,  Mr Dunstan and Mr and Mrs Johnston, all of whom Mr Orlov alleges were parties to a particular complaint or complaints against him which have given rise to one or more charges before the Tribunal.  Mr Orlov seeks information from them, both to support his judicial review application and to oppose the charges brought against him in the Tribunal.

[9]      The issue of discovery in relation to the Society is properly focussed in documents that have been exchanged.  Having said that, it would be helpful if the Society and the Standards’ Committees could file and serve a list of the documents they are not prepared to produce and the reasons for the stance they take.  Otherwise, that question is ready for hearing.   It too will be heard at 10am on 17 December

2010.

[10]     On  31  August  2010,  questions  were  raised  about  the  possibility  of determining a question of law before the trial of the judicial review application.  It related to the question whether, in a case where bad faith or collateral purpose was alleged (as in this case) the Court had any discretion to embark upon a judicial review proceedings directed to matters of prosecutorial discretion.

[11]     It is no longer necessary to embark on that question because Mr Morgan QC, for the Society, now accepts that the line of authority summarised and applied by

Randerson J in Polynesian Spas Ltd v Osborne[1] does not exclude judicial review in cases  where  bad  faith  or  collateral  purpose  is  in  issue.    That  position  is  also supported by the Court of Appeal’s decision in Kumar v Immigration Department.[2]

[1] Polynesian Spas Ltd v Osborne [2005] NZAR 408 (HC).

[2] 2 Kumar v Immigration Department [1978] 2 NZLR 553 (CA) at 558.

[12]     When I came into Court this morning, I was of the mistaken view that an application to stay charges brought in the Tribunal would be heard on or before 30

November 2010, in that forum.  It appears, however, that 30 November 2010 is the date by which an application for stay must be made.  That means, as Mr Morgan has indicated, with additional papers to be filed and exchanged, it is unlikely that an application of that type could be heard before the Tribunal until March or April

2011.   In those circumstances, it will be necessary to progress the judicial review hearing promptly, in order to resolve all issues as expeditiously as possible.

[13]     In addition to the joinder application, the discovery issues involving both the parties and non-parties will need to be determined on 17 December 2010.

[14]     The following timetabling directions are made in respect of the non-party discovery applications:

a)       A focused affidavit in support of the non-party discovery applications shall be filed and served by Mr Orlov by 5pm on 24 November 2010.

b)Any notice of opposition and affidavits in opposition shall be filed and served by 5pm on 26 November 2010.  In making that direction, I observe that notices of opposition have already been served by each non-party and it is only affidavits in opposition that need to be completed by that date.

c)        Any affidavits in reply from Mr Orlov shall be filed and served by

5pm on 3 December 2010.

[15]     I shall hear submissions on whether a Full Court should hear and determine the substantive judicial review application, on 17 December 2010.

[16]     So far as the substantive proceeding is concerned, the Society and the two Standards’ Committees shall file and serve evidence in opposition to that filed by Mr Orlov on or before 31 January 2011.  I will allocate a further conference date in the New Year, after I have dealt with the outstanding interlocutory applications on

17 December 2010.

[17]     The  earliest  time  at  which  a  hearing  over  five  days  might  be  allocated (whether for one or two Judges) is in the period between April and June 2011.  It is unlikely that hearing time can be made available during that time if a panel of three Judges was directed.

[18]     All questions of costs in relation to issues raised today are reserved.

P R Heath J