Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal no.2

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-5088 [2014] NZHC 1988

UNDER
the Judicature Amendment Act 1972 and

Declaratory Judgments Act 1908

IN THE MATTER

of an application for judicial review of decisions of the Lawyers and Conveyancers Disciplinary Tribunal

BETWEEN

EVGENY ORLOV Applicant

AND

THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL

First Respondent

AND

THE NATIONAL STANDARDS COMMITTEE NO 1

Second Respondent

Hearing:
Court:

24 - 26 June 2014

Ronald Young and Simon France JJ

Counsel:

Appellant/Applicant in Person
W C Pyke for Respondents

Judgment:

21 August 2014

JUDGMENT (NO 2) OF THE COURT (Preliminary matters)

Reasons of the Court

(Given by Simon France J)

ORLOV v THE NZ LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2014] NZHC 1988 [21 August 2014]

[1] At the commencement of the hearing Mr Orlov made a number of applications. Some required immediate answers (adjournment) and some could be deferred (waiver of hearing fees).

Adjournment

[2] Mr Orlov sought an adjournment based on his ill-health, and because he wanted to pursue obtaining legal representation and legal aid. Concerning ill-health, we think it unnecessary to provide details. Our assessment, not vigorously opposed by Mr Orlov, was that the issues could be addressed by management of the hearing. Mr Orlov was advised that if at any time he wished to take a break, or request amended sitting hours, that would be accommodated.

[3] Concerning legal representation, Mr Orlov had wished to be represented by Mr Deliu. In a decision issued 24 February 2014, Fogarty J debarred Mr Deliu from acting.1 That decision was confirmed recently on appeal.2 We consider the important date to be that of the decision of Fogarty J. From that time Mr Orlov was on notice that counsel other than Mr Deliu would be required unless he succeeded on appeal.

[4] Mr Orlov provided us with evidence of recent efforts to secure counsel to act on a legal aid basis. One counsel indicated willingness, but did not further reply. So as matters stood, there had only been relatively belated unsuccessful efforts to obtain counsel. Legal aid would still need to be sought.

[5] The protracted nature of these charges had already been the subject of comment by the Court of Appeal in an earlier decision issued in June 2013.3 At that point the Court observed it was imperative that matters proceed without further delay. Against that background we considered the matters raised by Mr Orlov did not justify a further delay, and indicated the hearing would proceed. It was apparent
to us that the necessary material had all been filed, as had written submissions.

1      Orlov v National Standards Committee No. 1 [2014] NZHC 257.
2      Orlov v National Standards Committee No. 1 [2014] NZCA 242. The decision was issued on
13 June 2014.
3      Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562 at [169].

Leave to appeal out of time

[6] The next application was for leave to appeal out of time against the costs order made by the Tribunal on 20 December 2013. Mr Pyke did not oppose an extension of time being given. Pursuant to r 20.4(3) of the High Court Rules we give special leave for Mr Orlov to appeal. If not already filed, the period is extended to 10 working days after the issuing of this judgment.

Waiver of fees

[7] Finally, Mr Orlov applies for a waiver of the hearing fees applicable to his appeal. He had sought a waiver from the Registrar who declined it, noting there was no evidence of inability to pay. Mr Orlov says orally he can provide that, but the key basis on which waiver should be given is the public interest that exists in the proceedings.

[8] Regulation 18 of the High Court Fees Regulations 2013 empowers a

Registrar to waive fees if satisfied:

(a) either, that the person is unable to pay the fee, that assessment being governed by the criteria set out in reg 19; or

(b)based on the criteria set out in reg 20, the case is one which concerns a matter of genuine public interest, and it is unlikely the proceeding will continue unless the fee is waived.

Reviews of the Registrar’s decision are provided for in s 100B of the Judicature

Act 1908.

[9] Mr Orlov is unable to satisfy either limb. He has not provided evidence of impecuniosity, and whether or not it is a matter of genuine public interest,4 the hearing will plainly proceed if waiver is not given. The review of the Registrar’s
decision is accordingly declined.

Ronald Young J Simon France J

Solicitors:
Meredith Connell, Crown Solicitors, Auckland

4 As to which see the criteria in reg 20 of the High Court Fees Regulations 2013.

Evgeny Orlov sought judicial review of decisions made by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal and the National Standards Committee No 1. The primary concern was whether the tribunal had correctly applied the law in its disciplinary proceedings against Orlov. The case was heard over three days, and the applicants were represented by W C Pyke, while Orlov appeared in person. Simon France J delivered the judgment on 21 August 2014.

The central legal issue was whether the tribunal's decisions were justified and whether there were any procedural errors that warranted judicial intervention. Specifically, Orlov contested the tribunal's imposition of costs and its handling of his application for legal representation. The court also had to determine whether Orlov's application for leave to appeal out of time against the costs order and the waiver of hearing fees were tenable.

The court found that Orlov's request for an adjournment due to his ill-health and the pursuit of legal representation was not sufficiently compelling to warrant a delay, especially given the prolonged nature of the disciplinary proceedings. The court emphasised that Orlov had ample notice that he would need to secure alternative legal representation following the debarment of his preferred counsel, Mr Deliu. The court noted that Orlov had made relatively late efforts to obtain new counsel and had yet to secure legal aid. The court also granted Orlov special leave to appeal the costs order out of time, but denied his application for a waiver of hearing fees, finding that the public interest did not sufficiently outweigh the practicalities of proceeding without the waiver.

The court declined to grant an adjournment or waive the hearing fees, and granted special leave for an out-of-time appeal against the costs order. The decision reflects a careful balancing of the procedural fairness requirements against the need to efficiently resolve protracted disciplinary matters.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

UNDER	the Judicature Amendment Act 1972 and Declaratory Judgments Act 1908
IN THE MATTER	of an application for judicial review of decisions of the Lawyers and Conveyancers Disciplinary Tribunal
BETWEEN	EVGENY ORLOV Applicant
AND	THE NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL First Respondent
AND	THE NATIONAL STANDARDS COMMITTEE NO 1 Second Respondent