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

[2014] NZHC 1988

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.