Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal
[2016] NZCA 633
•21 December 2016 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA555/2014 [2016] NZCA 633 |
| BETWEEN | EVGENY ORLOV |
| AND | NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL |
| NATIONAL STANDARDS COMMITTEE NO 1 |
| Hearing: | 9 November 2016 |
Court: | French, Miller and Winkelmann JJ |
Counsel: | Appellant in person |
Judgment: | 21 December 2016 at 11.30 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant is ordered to pay the second respondent costs for a standard appeal on a band A basis together with usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Orlov was a legal practitioner. The New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal) found him guilty of five charges of professional misconduct[1] and ordered he be struck off the roll of barristers and solicitors.[2] The charges had been brought by the second respondent, the National Standards Committee No 1 of the New Zealand Law Society (the Standards Committee). All charges arose from statements Mr Orlov had made about Harrison J, which the Tribunal held were false or made without sufficient foundation.
[1]National Standards Committee v Orlov [2013] NZLCDT 45.
[2]National Standards Committee v Orlov [2013] NZLCDT 52.
Mr Orlov appealed the Tribunal’s conviction and penalty decisions to the High Court, exercising his statutory right of appeal under s 253(1) of the Lawyers and Conveyancers Act 2006 (the Act). He also issued judicial review proceedings in the High Court. Both proceedings were heard at the same time by a full court of the High Court, comprised of Ronald Young and Simon France JJ.[3]
[3]Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987 [HC decision].
The High Court dismissed Mr Orlov’s application for judicial review and dismissed his appeal against conviction. However, it allowed his appeal against penalty, finding striking off was a disproportionate response in the circumstances of the case.[4] The Court did not consider it necessary to substitute an alternative penalty because of the length of time Mr Orlov had been subject to the striking off sanction.[5]
[4]At [191] and [204].
[5]At [205].
Mr Orlov sought to appeal some aspects of the High Court decision under the statutory appeal provisions. An appeal to this Court under those provisions is limited to questions of law and leave must first be obtained.[6] Both the High Court and this Court have already considered and declined Mr Orlov’s application for leave.[7]
[6]Lawyers and Conveyancers Act 2006, s 254.
[7]Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2015] NZHC 3110; Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224 [CA leave decision].
In addition to seeking leave to appeal under the Act, Mr Orlov also filed an appeal against the High Court decision in relation to the judicial review proceeding. That appeal is of right,[8] and is the subject of this judgment.
[8]Under s 66 of the Judicature Act 1908.
Finally in this introduction, we record two procedural matters. The first is that the Tribunal did not take an active part in the appeal, but appropriately abides the decision of the Court.
The second is that at the commencement of the hearing before us Mr Orlov applied for one of the panel — Winkelmann J — to recuse herself. The grounds of the application were that in her previous capacity as the Chief High Court Judge Winkelmann J had corresponded with the New Zealand Law Society in 2010 about the complaints made against Mr Orlov regarding Harrison J. Having viewed the complete set of correspondence, we are satisfied the letters were purely administrative and could not on any reasonable view warrant recusal. We therefore declined the application.
Arguments outside the proper scope of this appeal
Mr Orlov’s approach to this appeal can fairly be described as disorganised. His written submissions were not cross-referenced to his notice of appeal. They also contained 127 pages of the submissions he had made in the High Court relating to the appeal under the Act as well as the judicial review proceeding. He advanced a multiplicity of arguments, several of which were outside the proper scope of the appeal.
Merits arguments
First, there were grounds of appeal that, correctly analysed, were arguments the Tribunal and the High Court were wrong on the evidence to find the statements Mr Orlov made about Harrison J were without sufficient foundation. That is plainly a merits argument and not a judicial review argument.
Arguments already rejected by this Court
Second, there were other grounds of appeal that were arguably judicial review points but that overlapped with arguments Mr Orlov raised in the statutory appeal process. We acknowledge that the existence of a statutory appeal process does not of itself preclude judicial review proceedings as a matter of jurisdiction. It is, however, well established that arguing a ground of review that is the same or similar to a point being taken in a coordinate general appeal may result in the Court refusing relief.[9]
[9]Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 436; Andrew Beck and others McGechan on Procedure (Thomson Reuters, online looseleaf ed) at [JA4.03(5)].
Mr Orlov complained in his notice of appeal that the High Court wrongfully merged the judicial review with the appeal. However, because of the way he presented his case, the High Court was faced with a large volume of unstructured evidence and argument that did not properly distinguish between the different proceedings. In order to marshal the issues in an orderly and coherent way, the Court identified Mr Orlov’s essential complaints and endeavoured to address them in the context of the appeal or the application for review, as was appropriate. The right of appeal was of course by way of rehearing, which, as the Standards Committee points out, enabled the High Court to give its opinion on the merits while at the same time addressing process issues.
There is now the added factor that some of the arguments Mr Orlov advanced at the hearing before us have already been assessed by this Court as so lacking in merit that leave should not be granted to argue them.[10] No new material was put before us that would persuade us to depart from that assessment and it is not necessary for us to consider them any further.
[10]CA leave decision, above n 7.
The issues that fall into this latter category are:
(a)Admissibility of judgments as evidence in disciplinary proceedings.
(b)Whether the Standards Committee/Tribunal had jurisdiction to prosecute a lawyer for making complaints to the Judicial Conduct Commissioner and Human Rights Review Tribunal.
(c)Whether complaints against judges are protected by absolute privilege.
(d)The propriety and meaning of the “sufficient foundation” test.
(e)Whether the High Court had power to amend the charges.[11]
[11]Some of the charges the Tribunal held proved were on the basis of personal, rather than professional, misconduct. The High Court considered the misconduct was connected with the provision of legal services and amended the charges accordingly: HC decision, above n 3, at [112]–[114].
Having identified those grounds that are outside the proper scope of the appeal and that we have therefore excluded from consideration, we now turn to those grounds of appeal that are properly before us. These can be conveniently grouped in four categories.
Breaches of natural justice by the Tribunal
Mr Orlov contended in the High Court and in this Court that, due to “numerous breaches of natural justice” by the Tribunal, both before the hearing and during it, he was in essence prevented from mounting an effective defence, resulting in an unfair hearing. In support of that central contention, Mr Orlov relied on the following matters.
Late amendment of the charges
The Tribunal hearing was scheduled for 2 September 2013. On 18 July 2013 the Standards Committee applied to amend the charges from “deliberately or recklessly making false and scandalous allegations [against Harrison J]” to “making allegations about [Harrison J] that were either false or were made without sufficient foundation”. Mr Orlov filed a notice of opposition to the application to amend.
On 6 August 2013 the Tribunal granted the amendment on the papers.[12] The High Court held the amended charges were correct and appropriate but the process adopted by the Tribunal was flawed, amounting to a breach of natural justice.[13] The amendments were made at a late stage and they were significant. They meant the Standards Committee no longer had to prove the statements were false and made recklessly. Mr Orlov should have been given an opportunity to be heard. However, the High Court went on to hold that notwithstanding the breach of natural justice Mr Orlov had not suffered any prejudice.[14] Accordingly, the Court was not prepared to grant any relief.
[12]Auckland and National Standards Committees v Orlov [2013] NZLCDT 32.
[13]HC decision, above n 3, at [26].
[14]At [35].
On appeal, Mr Orlov submitted that, having found a breach of natural justice, the High Court was obliged to grant him a remedy. We reject that submission, which is contrary to established law. In judicial review relief is always at the discretion of the Court and prejudice is a highly relevant factor to be taken into account in exercising that discretion.[15]
[15]Glynn v Keele University [1971] 2 All ER 89 (Ch) at 96; Murdoch v New Zealand Milk Board [1982] 2 NZLR 108 (HC) at 122.
Mr Orlov further argued that, even if the Court did have a discretion, it was wrong to find he had not suffered any prejudice. Mr Orlov said he had been prejudiced because he had prepared for trial on the basis of the original charges and had he known of the amendment earlier he would have approached his defence in an entirely different way. In particular, he would have called additional evidence relating to the foundation for his statements about Harrison J. As it was, being self‑represented, there was insufficient time to prepare and call that evidence, evidence he told us would have comprehensively shown he had sufficient foundation for making the statements he did.
We do not accept that submission. In our view, there was adequate time to obtain the evidence. And even if we are wrong about that, it would always have been open to Mr Orlov to apply for an adjournment. He did not. Significantly, Mr Orlov has not filed in this Court or the High Court any witness statements or affidavits from these potential witnesses detailing the evidence they would have been able to give. We note too that an affidavit from one of these potential witnesses — Mr Deliu — was actually already before the Tribunal and that Mr Deliu was present at the Tribunal hearing. Further, in so far as the proposed evidence would apparently have included expert testimony critiquing the reasonableness of Harrison J’s decisions, it would be plainly inadmissible as not substantially helpful. Court decisions speak for themselves.
The tortuous and prolonged history of the disciplinary proceedings detailed in various court decisions and the transcript of the Tribunal hearing shows Mr Orlov never sought to engage in the substance of the charges but preferred to take procedural points. His professed desire to call further evidence, which he is still unable to provide, has a somewhat hollow ring.
Late filing of evidence by the Standards Committee
The Standards Committee tendered two substantial volumes of documents and two affidavits by two lawyers shortly before the hearing. Mr Orlov submits he was prejudiced by the late filing, which amounted to a breach of natural justice.
This submission was rejected in the High Court and we consider rightly so. The two volumes consisted of files from cases in which Mr Orlov as counsel had clashed with Harrison J. There was a large volume of documents but none of them was new to Mr Orlov. Further, contrary to a submission made by Mr Orlov, there was no obligation on the Standards Committee to detail in advance how they intended to use the documents in the hearing.
We note too that the main reason for the late production was that Mr Orlov had refused to allow access to the files, requiring the Standards Committee to make formal applications. The High Court was satisfied the documents were produced as soon as they became available to counsel.[16]
[16]HC decision, above n 3, at [43].
As for the late filing of the two affidavits, these were by way of reply affidavits to an affidavit filed late by Mr Orlov himself four days earlier. The new witnesses were available for cross-examination.
Late filing of incomplete Law Society file
During re-examination of its key witness, the Standards Committee adduced evidence of documents from an Auckland District Law Society complaints file concerning Mr Orlov. The file had been compiled following a complaint made by Harrison J to the Auckland District Law Society about Mr Orlov’s competence in a case. The Auckland District Law Society Complaints Committee had referred the matter to the Tribunal but later withdrew the charges and the prosecution never proceeded.
Mr Orlov complains that the tendering of the file amounted to an ambush, he not having received any advance notice it would be put in evidence. This complaint is not tenable. Mr Orlov had himself exhibited documents from the file in his own affidavit and had cross-examined a prosecution witness about the file. In that cross‑examination he put to the witness there were documents on the file that showed the reason the matter was withdrawn was because of lack of evidence. Mr Orlov declined to show the witness what documents he was referring to. The file had been discovered in separate proceedings involving Mr Orlov and the Law Society and Auckland Standards Committees.[17] In all those circumstances, the Standards Committee was clearly entitled to refer to the file in re-examination.
[17]Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 7 December 2011.
A further complaint made by Mr Orlov is that the file that was put in evidence had been “doctored” in that an opinion from a QC that was favourable to him was not included. We were not given a copy of the opinion in question but according to Mr Orlov the opinion “effectively stated that there was insufficient evidence to prosecute me for the incompetence that Justice Harrison had accused me of”.
The High Court held that potential unfairness could result from an incomplete file being provided.[18] However, it did not consider Mr Orlov had been prejudiced because in its view the opinion was irrelevant. It concerned Mr Orlov’s competence and competence was not in issue. What was in issue was the alleged intemperance and impropriety of Mr Orlov’s statements about Harrison J. The High Court also observed that in hindsight the Standards Committee would have been better to have let the issue pass rather than seek to place more material before the Tribunal, most of it irrelevant to the actual issue to be determined.[19]
[18]HC decision, above n 3, at [46].
[19]At [47].
On appeal Mr Orlov says the Court erred in holding the opinion was irrelevant. Mr Orlov argued the opinion was “seminal” as it would have supported his sufficient foundation defence.
There was no suggestion, however, that Mr Orlov was unaware of the existence and content of the opinion and did not have the opportunity to put it to the witness. The transcript shows that to the contrary, he expressly declined to put any apparently helpful material from the file. Instead, he preferred to rely on the fact the prosecution never proceeded. Having adopted that stance, this complaint also has a rather hollow ring to it.
Moreover, we do not accept without more that the fact a QC advised a complaints committee there was insufficient evidence to prosecute for incompetence would amount to sufficient foundation for the intemperate comments made by Mr Orlov against Harrison J. We therefore agree with the High Court that in all the circumstances, Mr Orlov was not prejudiced.
The Tribunal’s handling of the no case to answer application
After the Standards Committee had called its evidence, Mr Orlov made a no case to answer application. The Tribunal dismissed that application.
Mr Orlov contends that in considering the application the Tribunal wrongly took into account evidence he had filed. In his submission, the application should have been assessed solely by reference to the prosecution case. He says further that he advanced this argument in the High Court and the High Court never addressed it.
However, as the High Court pointed out, the issue was entirely moot and for that reason it therefore deliberately limited itself to a few observations.[20] Those observations consisted of the fact that a disciplinary hearing under the Act is not a criminal trial and that practitioners are expected to fully participate and engage with the substance of the charge.[21] It considered a no case to answer application should be reserved for cases akin to a strike out.[22] The Court also said it did not accept Mr Orlov had imposed restrictions on the use of the evidence he had filed. In any event even if he had purported to impose any restrictions the Court was minded to the view it would not have been binding on the Tribunal.[23]
[20]HC decision, above n 3, at [54].
[21]At [57]; see Re C (A Solicitor) [1963] NZLR 259 (SC) at 259.
[22]At [64].
[23]At [66]–[67].
We endorse all those observations.
Finally, we record Mr Orlov’s submission that the High Court:
… failed to analyse the fact that the cumulative unfairness of the multiple procedural breaches of natural justice was itself inherently prejudicial and a breach of s 27 of the New Zealand Bill of Rights Act 1990 …
However, for the reasons outlined we are not persuaded there were “multiple breaches” and accordingly this submission must also fail.
Erroneous findings regarding discrimination and bias
Mr Orlov says the High Court wrongly rejected his claims of discrimination and bias.
Mr Orlov contends other practitioners have made statements about judges that are far more derogatory than the ones he was disciplined for making. He says despite this the Law Society has never prosecuted them. He says further that he should have been permitted to call evidence about these other cases at the disciplinary hearing even though he calculated this would have resulted in the hearing lasting six months.
The submission is self-evidently untenable. It would have been entirely proper for Mr Orlov to raise disparity of treatment issues at the penalty hearing by reference to the Tribunal’s published decisions. But his contention goes well beyond that into the realm of prosecutorial discretion and thus outside the proper scope of the Tribunal’s inquiry. It was an inquiry into Mr Orlov’s conduct.
A further ground of review raised by Mr Orlov was that the Tribunal was biased. As noted in the High Court, this contention was sourced in a combination of the composition of the Tribunal, the adverse decisions it made and the comments addressed to Mr Orlov during the course of the hearing.[24]
[24]HC decision, above n 3, at [176]–[179].
The transcript of the hearing reveals there were some robust exchanges between Mr Orlov and members of the Tribunal. However, we agree with the High Court that the passages do not disclose bias or open hostility to Mr Orlov.[25] Rather they disclose a measure of frustration and at times understandable exasperation with the inappropriate way Mr Orlov was conducting the hearing.
[25]At [182].
Mr Orlov is critical of the High Court for not separately addressing each exchange on which he relied but that is an untenable criticism. It was, in our view, entirely appropriate for the High Court to read the transcript and address the instances relied upon by Mr Orlov globally.
As regards the composition of the Tribunal, Mr Orlov says it was hand‑picked. In particular, he complains about the late appointment to the panel of a Mr Maling, whom he described in an affidavit as a “senior apparatchik” of the Law Society. Mr Maling is a senior practitioner who has held positions on the Canterbury District Law Society. We agree with the High Court that it is inevitable and indeed appropriate that senior practitioners should be involved in the disciplinary process.[26] In itself that cannot possibly constitute apparent bias.
[26]At [178].
Similarly the fact the Tribunal was found to have erred in its penalty decision and breached the rules of natural justice cannot of itself be evidence of bias. The record does not support Mr Orlov’s extravagant claims of a “systemic denial of natural justice” and there is nothing to suggest that in making those decisions that have later been found to have been flawed the Tribunal did not genuinely believe they were correct or could not have genuinely believed they were correct.
In his notice of appeal Mr Orlov contends the High Court failed to apply the proper test of bias but provides no particulars. As noted in this Court’s leave decision, the test for bias is settled.[27] We are unable to identify any error in the High Court’s approach to bias.
No evidence to support the charges
[27]CA leave decision, above n 7, at [24]; see Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.
Mr Orlov submitted there was no evidence the statements he made about Harrison J were false other than the judgments of Harrison J, which he contends were wrongly admitted in evidence. However, this Court has already held judgments are admissible in Tribunal proceedings to assist the Tribunal to deal with matters before it.[28] As noted, in its leave decision this Court held Mr Orlov’s argument on this point was without merit.[29]
[28]Deliu v National Standards Committee of the New Zealand Law Society [2015] NZCA 399 at [34].
[29]CA leave decision, above n 7, at [11].
In any event, we note that having carefully analysed the particulars relied upon to support each charge, the High Court held that some of the statements made by Mr Orlov about Harrison J were not of sufficient seriousness to support the charge. To that extent it disagreed with the Tribunal. The High Court identified the statements it considered were sufficiently serious, namely those that alleged improper motive on the part of Harrison J or that used extreme language. The Court then considered whether there was a sufficient basis for Mr Orlov’s allegations and concluded that on the available material there was none.[30] That conclusion is, in our view, unassailable.
The High Court failed to address all of the arguments raised
[30]HC decision, above n 3, at [183].
In addition to his complaint the High Court should have separately addressed the individual instances of bias, Mr Orlov contends the High Court failed to address other submissions he made.
In support of that contention, Mr Orlov said the Court, for example, simply repeated the Tribunal’s summary of the individual cases, which were at the centre of the tensions between himself and Harrison J, and failed to address the errors he had identified in those summaries. However, the Court expressly acknowledged Mr Orlov had complaints about the summaries and considered them one-sided but was satisfied the summaries adequately reviewed the background.[31] We agree. We also agree with the High Court that Mr Orlov’s determination to show he was right in the cases and Harrison J wrong rather misses the point.[32] We further note that none of the alleged errors identified by Mr Orlov could fall within the category of an objectively verifiable mistake of fact justifying judicial review.
[31]HC decision, above n 3, at [21].
[32]At [19]–[20] and [34].
Another related argument is that the High Court “ignored” Mr Orlov’s detailed submissions as to the evidential and legal foundation for the complaints as included in the record. The submissions in question, however, comprise Mr Orlov’s highly subjective critique of Harrison J’s judgments. We are satisfied there is nothing in Mr Orlov’s critique that undermines the High Court finding that his more extreme allegations against Harrison J were without foundation. Similarly we do not accept Mr Orlov’s bland assertion in his notice of appeal that “it was impossible in law” to find the statements he made about Harrison J did not have sufficient foundation.
Mr Orlov also contends the High Court never addressed his submission that the Tribunal had failed to read an affidavit he had filed. We agree that issue is not mentioned in the High Court decision. However, the point was a spurious one. The Tribunal expressly referred to the affidavit but considered it was without foundation.[33] The fact it said the affidavit was without foundation is not a proper basis for contending the Tribunal had “obviously” not read it. However, that was the basis of the submission Mr Orlov made to the High Court.
[33]National Standards Committee v Orlov, above n 1, at [102].
Mr Orlov further contends (at least in his notice of appeal) that the High Court failed to address the pleading in his statement of claim that the Tribunal’s decision was ultra vires and that the Tribunal had taken irrelevant factors into account and ignored relevant factors. However, these pleadings were in substance the same grounds pleaded elsewhere under different labels and were addressed.
Mr Orlov is correct when he says the High Court did not formally consider his claim for a declaration that the prosecution of a lawyer in his circumstances breached the New Zealand Bill of Rights Act 1990 and New Zealand’s obligations under the International Covenant of Civil and Political Rights. However, while there is no express refusal of declaratory relief, it is plain from the findings that relief was not and could not be granted.
We are satisfied the High Court did fairly hear and determine all of Mr Orlov’s grounds of review. It was not required to address every single point raised within those grounds. It did, however, address the key complaints and provide a substantive response to the essence of those complaints. The fact it did not do so by reference to Mr Orlov’s pleadings reflects the quality of those pleadings. It is not a sustainable ground of appeal.
Outcome
None of the grounds of appeal has merit. The appeal is accordingly dismissed.
There is no reason why costs should not follow the event and accordingly we order the appellant to pay the second respondent costs for a standard appeal on a band A basis together with usual disbursements.
Solicitors:
Crown Law Office, Wellington for First Respondent
Meredith Connell, Auckland for Second Respondent
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