|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 26 January 2018
For a Court ready (fee required) version please follow this link
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-2868 [2012] NZHC 2154
BETWEEN EVGENY ORLOV Plaintiff
AND NEW ZEALAND LAW SOCIETY First Defendant
AND AUCKLAND LAWYERS STANDARDS COMMITTEE (APPOINTED UNER SECTION 356 LAWYERS AND CONVEYANCERS ACT 2006)
Second Defendant
AND AUCKLAND LAWYERS STANDARDS COMMITTEE NO. 1
Third Defendant
AND NATIONAL STANDARDS COMMITTEE Fourth Defendant
Hearing: 28, 29 February 2012
1, 2, 5, 6, 7 March 2012
Counsel: E Orlov, in person, Plaintiff
P J Morgan QC and W C Pyke for Defendants
Judgment: 24 August 2012
JUDGMENT (NO. 8) OF HEATH J
This judgment was delivered by me on 24 August 2012 at 4.00pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Solicitors:
Glaister Ennor, PO Box 63, Auckland
Counsel:
P J Morgan QC, PO Box 19021, Hamilton
W C Pyke, PO Box 19271, Hamilton
E Orlov, PO Box 8333, Auckland
ORLOV V NEW ZEALAND LAW SOCIETY HC AK CIV 2010-404-2868 [24 August 2012]
Contents
1. The proceeding [1]
2. The charges [11]
3. The complaints and disciplinary processes
(a) Introduction [14]
(b) The 1982 Act
(i) General background [16]
(ii) Complaints and disciplinary procedure [21]
(c) The 2006 Act [39]
4. Judicial review of prosecutorial decisions [58]
5. References to the Tribunal: Is there a threshold test?
(a) The nature of the issue [63]
(b) Functions and powers [67] (c) Standard of proof [77] (d) Conclusions [78]
6. Grounds of review
(a) Mr Orlov’s submissions [83]
(b) Relevance of international instruments and
Bill of Rights [86]
(c) The subordinate “legislation” [95]
7. Approach to determination [103]
8. The s 356 committee [106]
9. The No 1 Committee [113]
10. The National Standards Committee
(a) Establishment of the National Committee [127]
(b) The “own motion” investigations [132]
(c) The “own motion” investigations: threshold issues [143]
11. Conclusions [158]
12. Result [160]
13. Addendum
[163]
1. The proceeding
[1] Mr Orlov is a Barrister and Solicitor of the High Court of New Zealand. Currently, he holds a practising certificate as a barrister. During 2009 and 2010, various complaints were made to the New Zealand Law Society (the Society) about Mr Orlov. They included complaints about his professional competence. Having considered the complaints, decisions were made by three Standards Committees1 to refer particular complaints or matters to the New Zealand Lawyers’ and
Conveyancers’ Disciplinary Tribunal (the
Tribunal).
1 Established under s 126 of the Lawyers and Conveyancers Act 2006.
[2] Mr Orlov seeks judicial review of decisions made by each of three
Standards Committees that determined that complaints with
which they were
dealing should be referred to the Tribunal. The decisions are captured in
charges that the Standards Committees
crafted, after their decisions.2
Mr Orlov’s case is that the relevant Standards
Committees:
(a) improperly used the disciplinary processes as part of a
concerted effort to prevent Mr Orlov from practising his profession;
(b) breached relevant principles of natural justice; (c) failed to follow its own procedures;
(d) made decisions vitiated through actual or apparent bias on the part of
their members; and
(e) acted in excess of the powers conferred on them by the Act and
subordinate instruments.
[3] Although raised in interlocutory applications, Mr Orlov did not
press a submission that the decisions of the Standards Committees
could be
impugned on bad faith grounds. He submitted that the case turned on whether
there had been breaches of the principles
of natural justice, a failure to
follow statutory procedures and actual or apparent bias.
[4] Mr Orlov also submitted that the Standards Committees had acted ultra vires in failing to apply a threshold test in determining whether the allegations contained in particular charges should be referred to the Tribunal for determination. He contended that, in determining to refer certain complaints to the Tribunal, the Standards Committees failed to take account of a threshold test: namely, whether there was enough evidence to justify the extreme step of referring a complaint to the
Tribunal, to consider whether misconduct had been
proved.
2 See paras [11] and [12] below.
[5] Mr Orlov submits that Standards Committees should only formulate
charges for the Tribunal’s consideration if there
were a real risk, if the
charges were proved, that the practitioner might be suspended from practice or
struck off the roll of
Barristers and Solicitors of the High Court.
[6] Mr Morgan QC, for the Society and the relevant Standards
Committees, submitted that none of the grounds for review advanced
by Mr Orlov
had been made out. Among others, he raised three legal points which go to the
heart of most of Mr Orlov’s complaints.
They are:
(a) In the absence of a finding of bad faith, there is no ability for
this Court, exercising its judicial review jurisdiction,
to call into question
the decisions of the relevant Standards Committees to lay charges before the
Tribunal.3 Parliament has decided to confer jurisdiction for such
matters on Standards Committees and the Tribunal and this Court should
not trespass into the realms delegated to them.
(b) There was no threshold standard to which the Committees had to be
satisfied before deciding not to exercise their own judicial
powers to determine
the complaints but to lay charges before the Tribunal.4
(c) The Court should exercise its discretion not to grant relief as Mr
Orlov has failed to exhaust remedies open to him under
the 2006 Act;
specifically, the ability to apply to the Legal Complaints Review Officer to
review a decision of a Standards Committee.5
[7] Mr Morgan summarised his response to Mr Orlov’s case
as:
(a) There has been compliance with all statutory
processes.
3 This submission was based on Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC) per
Randerson J and the authorities to which it refers.
4 See Part 5 below.
(b) There has been no misconduct
of a type that would justify the Court’s
intervention on judicial review.
(c) Any issues about the sufficiency of evidence to bring a charge, or
the merits generally, are matters for the Tribunal to
determine; not the Court
on judicial review.
(d) Mr Orlov has failed to exercise all statutory rights by omitting to
apply to the Legal Complaints Review Officer to review
the Standards
Committees’ decisions.
[8] Although the Amended Statement of Claim is extensive, Mr
Orlov’s submissions were even more wide-ranging.
Mr Morgan made it clear
that the parties whom he represented had approached the case squarely on
the basis of the allegations
set out in the Amended Statement of Claim. I
agree with Mr Morgan that I should restrict my consideration of the issues in
the same
way. Having said that, there were nuanced arguments on legal issues
that arose out of particular pleadings. Where necessary, I consider
and
determine such points.
[9] There were marked differences between Mr Orlov and Mr Morgan about
the extent to which it was permissible for me to review
matters of fact. I
agree with Mr Morgan that it is inappropriate for me to determine whether the
primary facts on which each charge
rests can be proved, as a matter of evidence.
Applying orthodox principles, those facts must be assumed to be capable of proof
before
the Tribunal. A different question arises as to whether the facts on
which the Standards Committees have relied to base their charges
cross any
relevant threshold for reference to the Tribunal.
[10] There are two areas of conflict between counsel about this Court’s approach to judicial review which require discrete treatment before I consider the decisions made by the Standards Committees. First, there is the question whether this Court should exercise jurisdiction to review a “prosecutorial” decision. That turns on whether the decision of the Standards Committee requiring a complaint to be
considered by the Tribunal is characterised as prosecutorial or judicial in
nature.6
The second is whether it was necessary for the Standards Committees to be
satisfied that a particular threshold had been met before
it could decide to
refer a complaint to the Tribunal.7
2. The charges
[11] Two sets of charges have been formulated and laid before the
Tribunal. One set, containing 13 charges, was prepared following
investigations
by the Auckland Lawyers Standards Committee (the s 356 Committee)8
and the Auckland Lawyers Standards Committee (No 1) (the No 1
Committee):
(a) In Charge 1, the s 356 Committee alleges that Mr Orlov misconducted
himself in his professional capacity when swearing an
affidavit in a proceeding
in the District Court at Whangarei, on 27 September 2007.
(b) In Charge 2, the No 1 Committee alleges that Mr Orlov misconducted
himself in his professional capacity by failing to comply
with a lawful
requirement, namely the provision of his file to the s 356 Committee in the
course of its investigations into the subject
matter of Charge 1. This is
alleged to have occurred on 31 March 2009, the date by which the file had been
required.
(c) In Charge 3, the No 1 Committee alleges that Mr Orlov misconducted himself in his professional capacity by failing to follow instructions to file a defence for a client in District Court proceedings in a timely fashion. This allegedly occurred between 22 May 2007 and 21
February 2008.
6 See Part 4 below.
7 See Part 5 below.
8 Section 356 is discussed at para [36] below.
(d) In Charge 4, the No 1 Committee alleges that Mr Orlov misconducted
himself when providing regulated services between 1 September
2008 and 31
January 2009, by acting as counsel on an appeal to the High Court against a
decision of the District Court, in proceedings
in which his conduct as counsel
was in issue.
(e) Charge 5 is an alternative to Charge 4. The No 1 Committee alleges
that Mr Orlov, was guilty of “unsatisfactory conduct”,
in the
circumstances described in Charge 4.
(f) In Charge 6, the No 1 Committee alleges that Mr Orlov misconducted
himself between 24 October 2008 and 31 January 2009 when
providing regulated
services. This arises out of the filing of an appeal to the Court of Appeal,
allegedly without instructions
from a client.
(g) Charge 7 is an alternative to charge 6 which alleges, in the same
circumstances, that Mr Orlov was guilty of unsatisfactory
conduct.
(h) In Charge 8, the No 1 Committee alleges that Mr Orlov was guilty of unsatisfactory conduct by providing regulated services, between 1
September 2008 and 31 January 2009, by continuing to act as counsel when it
ought to have been apparent to him that the High Court
might decline to hear
argument on the issues arising from an affidavit he had sworn about his conduct
in a District Court proceeding.
(i) In Charge 9, the No 1 Committee alleges that Mr Orlov was guilty of misconduct in providing regulated services, between 1 December
2008 and 1 March 2009, in breach of the intervention rule.
(j) In Charge 10, the No 1 Committee alleges that Mr Orlov was guilty of unsatisfactory conduct in providing regulated services in a case in which he acted incompetently as counsel. The date on which the conduct allegedly occurred is not set out in the charge. The precise allegation is that Mr Orlov’s “conduct when acting as counsel in the ...
proceedings fell short of the standard of competence and diligence that a
member of the public [was] entitled to expect of a reasonably
competent
lawyer”.
(k) In Charge 11, the No 1 Committee alleges that Mr Orlov was guilty of misconduct when providing regulated services, between 1 November
2008 and 19 November 2008, in proceedings in which he instructed his
barrister’s clerk to take an affidavit from a client in
habeas corpus
proceedings, when she was not authorised by law to take an
affidavit.
(l) Charge 12 is an alternative to charge 11 and alleges that, in the
same circumstances, Mr Orlov was guilty of unsatisfactory
conduct.
(m) In Charge 13, the No 1 Committee alleges unsatisfactory conduct
against Mr Orlov between 1 November 2008 and 19 November
2008 in conducting a
habeas corpus application when his “standard of competence and
diligence” fell below that which “a member of the public [was]
entitled to expect of a reasonably competent lawyer”.
Those charges are supported by evidence from Mr Heyns, contained in an
affidavit sworn on 15 June 2010. Some are also supported by
evidence from other
witnesses relevant to the particular charges. These charges were laid on 15 June
2010.
[12] The second set, containing 11 charges, were laid by the National
Standards
Committee (the National Committee):
(a) In Charge 1, the National Committee alleges that Mr Orlov was guilty of misconduct that would justify a finding that he was not a fit and proper person (or was otherwise unsuited) to engage in the practice of law as a result of “deliberately or recklessly making false and scandalous allegations about” Harrison J, in a letter dated 6 August
2008 to the then Chief High Court Judge, Randerson J.
(b) Charge 2 is an alternative to Charge 1. It alleges that the
misconduct arose from making such allegations in circumstances
“that would
reasonably be regarded by lawyers of good standing as disgraceful or
dishonourable”.
(c) In Charge 3, the National Committee alleged that Mr Orlov was
guilty of misconduct, on the grounds that it was “disgraceful
or
dishonourable” when he applied for an order that Harrison J be
permanently recused from all cases involving himself
and a colleague, Mr Deliu.
That application was based on allegations of bias (actual or apparent) and
disproportionate treatment.
(d) Charge 4 is an alternative to Charge 3. It is based on the
proposition that Mr Orlov “is not a fit and proper person
or is otherwise
unsuited” to be in practice as a lawyer.
(e) In Charge 5, the National Committee alleges that Mr Orlov was guilty of misconduct, on the “disgraceful or dishonourable” standard, by making “deliberately or recklessly” “false and scandalous allegations” about Harrison J. Those allegations were set out in a notice of application for special leave to appeal to the Supreme Court, dated 14
October 2008.
(f) Charge 6 alleges that Mr Orlov was guilty of misconduct (on
“fit and proper person” grounds) by making “deliberately
or
recklessly” “false and scandalous allegations” about Harrison
J in a claim filed in the Human Rights Tribunal,
on or about 13 March
2009.
(g) Charge 7 alleges that Mr Orlov was guilty of misconduct (on fit and proper person or unsuitable to act as a lawyer grounds) by making false and scandalous allegations about Harrison J, in a letter sent on
11 February 2009 to the Judicial Conduct Commissioner.
(h) Charge 8 is an alternative to Charge 7 and alleges misconduct
based
on “disgraceful or dishonourable” conduct grounds.
(i) Charge 9 alleges that Mr Orlov was guilty of misconduct in his professional capacity by making false allegations in submissions to a Family Court Judge in a case involving care and protection of a child.9
The conduct allegedly occurred between 12 November 2007 and 4
April 2008.
(j) Charge 10 also relates to the Family Court case and alleges that
Mr Orlov was guilty of conduct unbecoming a barrister
and solicitor
between the same dates by his conduct of the proceeding; including an
application to have counsel for the opposing
party to be held in contempt and
by eliciting irrelevant evidence in examination and cross-examination of
witnesses.
(k) Charge 11 is what I characterise as a charge of “serial
negligence or incompetence” and arises out of a number
of cases in which
Mr Orlov was involved between 1 January 2007 and 31 December 2009. It is
alleged that the conduct was of such
a degree and/or so frequent as to reflect
upon his fitness to practise, or to bring the profession into
disrepute.10
These charges are supported by affidavits from Ms Ollivier and Mr Heyns.
Charges
9, 10 and 11 are also supported by counsel for the opposing party in the
Family
Court case, Ms Lellman. The charges were laid on 13 May 2011.
[13] I deal later with the circumstances in which charges that had previously been before either the s 356 Committee came to be transferred to and dealt with by the
National Committee.11
9 I refer to this case as the “Family Court case” when later discussing it.
11 See para [128] below.
3. The complaints and disciplinary processes
(a) Introduction
[14] In its original form, this proceeding sought declarations and damages arising out of alleged breaches of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) and the judicial review application. In a judgment given on 7 December
2011, I severed the Bill of Rights claims from those involving judicial review, so that the time available for a hearing could be used to ensure that challenges to the charges brought could be heard in the time allocated.12 Mr Orlov appealed unsuccessfully
against that decision.13 There also remains a separate
proceeding in which Mr Orlov
has sought damages for misfeasance in public office. That too stands
adjourned until I determine the judicial review claims.14 The
Tribunal has adjourned the hearing of the charges, pending determination of the
judicial review application by this Court.15
[15] Until August 2008, the legal profession was regulated
by the Law
Practitioners Act 1982 (the 1982 Act). The profession was re-organised,
from 1
August 2008, by the Lawyers and Conveyancers Act 2006 (the 2006 Act). As some of the complaints about Mr Orlov’s conduct occurred at a time when the 1982 Act remained in force, it is necessary to compare the complaint and disciplinary provisions of each statute. That analysis will also require some discussion about provisions of subordinate instruments;16 namely the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008 (the Regulations); and Practice Note Concerning the Functions and Operations of Lawyers’ Standards Committees (the Practice Note). The Lawyers’ Complaints
Service Procedure Manual (the Procedure Manual) is also
relevant.
12 Orlov v New Zealand Law Society (No 5) HC Auckland CIV 2010-404-2868, 7 December 2011.
13 Orlov v New Zealand Law Society [2012] NZCA 12.
14 I will preside over the remaining aspects of the proceedings, should they go to trial.
15 Auckland Standards Committees v Orlov [2011] NZLCDT 12.
16 See para [45] below.
(b) The 1982 Act
(i) General background
[16] Under the 1982 Act, the legal profession was divided into districts
managed by District Law Societies. Together those societies
made up the New
Zealand Law Society, which had the following general
functions:17
(a) To promote the interests of the legal profession and the interests of the
public in relation to legal matters;
(b) To promote and encourage proper conduct among the members of the legal
profession;
(c) To suppress illegal, dishonourable, or improper practices by members of
the legal profession;
(d) To preserve and maintain the integrity and status of the legal
profession;
(e) To promote opportunities for the acquisition and diffusion of legal
knowledge and skills relating to the practice of law
(f) To assist in and promote the reform of the law;
(g) To provide means for the amicable settlement of professional
differences between members of the legal profession.
[17] Section 5 conferred on the Society all such powers, rights and authorities as were reasonably necessary for, or conducive to, the exercise of any of its functions. This included the Society’s power to institute prosecutions against practitioners or
other persons for the breach of any statute, rules or
regulations relating to the
17 Law Practitioners Act 1982, s 4.
practice of the law.18 Section 17 empowered the Society to make
rules providing for the regulation and good governance of the Society and its
members.19
[18] While the Society generally made rules under which lawyers
practised, their enforcement was the primary responsibility of
District Law
Societies. Nevertheless, those functions overlapped and the complaints and
disciplinary processes took place at both
a district and national level.
Judicial bodies were established to hear disciplinary charges; a District
Disciplinary Tribunal
(District Tribunal) for each district and the New Zealand
Law Practitioners Disciplinary Tribunal (NZ Tribunal).
[19] Part 7 of the 1982 Act governed the complaints and disciplinary
procedure. In summary, it provided for:20
(a) the making of complaints by members of the public,21 (b) the initiation of an investigation by a District Council,22 (c) the establishment of District Complaints Committees,23
(d) the carrying out of an inquiry into complaints and the laying
of charges against a practitioner,24
(e) the establishment of District Tribunals and the NZ Tribunal to hear
charges,25
(f) the appointment of lay members to each of the
Tribunals,26
18 Law Practitioners Act 1982, s 5(d).
19 For example, the Rules of Professional Conduct for Barristers and Solicitors (1998).
21 Ibid, s 98.
22 Ibid, s 99.
23 Ibid, 100.
24 Ibid, s 101.
25 Ibid, ss 103 and 108.
26 Ibid.
(g) the function and powers of both Tribunals,27
(h) the interim suspension of a practitioner by the NZ Tribunal, pending the
hearing of charges,28
(i) the provision of a right of appeal to the NZ Tribunal from a decision of
a District Tribunal,29
(j) the conduct of hearings in public,30
(k) the making of orders striking the practitioner off the roll, suspending
the practitioner or relating to the employment of the
practitioner,31
(l) a right of appeal to the High Court against an order or decision of
the
NZ Tribunal.32
[20] The High Court's historical (summary) jurisdiction over law
practitioners was retained.33 Sections 92 and 93 of the 1982 Act
provided that an application could be made to the High Court for the name of a
practitioner to
be struck off the roll for reasonable cause, in accordance with
s 93.34
(ii) Complaints and disciplinary procedure
[21] Under the 1982 Act, a complaint by a member of the public was received by the District Law Society of which the practitioner in question was a member at the relevant time.35 If the District Council had reasonable cause to suspect that a
practitioner had been guilty of conduct of a kind specified in s
106(3)(a) to (c), or
27 Ibid, and s 112.
28 Ibid, s 115.
29 Ibid, s 107.
30 Ibid, s 111.
31 Ibid, ss113 and 114.
32 Ibid, s 118.
33 Ibid, ss 92, 93 and 94.
34 For example, Auckland District Law Society v Neutze [2006] NZHC 1671; [2006] 2 NZLR 551 (HC).
35 Law Practitioners Act 1982, s 98.
had been convicted of an offence punishable by imprisonment it could
instigate an own motion investigation into the matter.36
[22] The subsequent inquiry (whether on a complaint or of the District
Council’s own motion) could be undertaken by the
District Council, or by
one or more Complaints Committees appointed under s 100.37 Either
way, the person against whom the complaint was made had to be informed of the
particulars of the complaint against him or her,
and invited to provide a
written explanation in answer to the complaint.38
[23] If, at the conclusion of its investigation, the District Council or
Committee was of the opinion the case was of sufficient
gravity to warrant the
making of a charge, it was required to bring a charge against the practitioner,
before either the District
Tribunal or the NZ Tribunal.39 Section
101(5) required the District Council or Committee to notify the complainant and
the person complained against of its conclusions
and of any action taken or to
be taken by it as a result of the inquiry.
[24] Each District Tribunal consisted of five to eight practitioners and two lay members.40 Except as provided by the 1982 Act, each could determine its own procedure.41 However, neither a District nor NZ Tribunal could exercise any of the disciplinary functions conferred on it by Part 7 without giving the practitioner a reasonable opportunity to be heard in his or her own defence, either in person or by
counsel.42
[25] The powers of the District Tribunal were set out in s 106. Having inquired into any charge against a practitioner, the District Tribunal could make a finding that
the practitioner had been guilty of misconduct in his professional
capacity,43 conduct
36 Ibid, s 99.
37 Ibid, s 101(1).
38 Ibid, s 101(3)(a).
39 Ibid, s 101(2).
40 No member of a District Law Society who had taken part in the investigation of a complaint
against any person under s 101 was eligible to sit as a member of the District Tribunal on the hearing or determination of any charge against that person arising out of the same complaint.
41 Law Practitioners Act 1982, s 103(7).
42 Ibid, s 124.
43 Ibid, s 106(3)(a).
unbecoming a barrister or a solicitor,44 qualifying negligence or
incompetence in his professional capacity45 or had been convicted of
a relevant offence punishable by imprisonment.46
[26] Concepts such as “misconduct in his or her
professional capacity” and “conduct unbecoming a barrister
or
solicitor” were not defined in the 1982 Act, although several provisions
deemed a practitioner, in particular circumstances,
to be guilty of misconduct
in a professional capacity.47 The terms were judicially defined,
from time to time, but, for present purposes, it is unnecessary to go into the
relevant cases.
[27] If, following the making of such a finding, the District Tribunal
was of the opinion that the case was of sufficient gravity
to warrant its
referral to the NZ Tribunal, it was required to refer the case
accordingly.48 If that threshold was not met, it could make any of
the orders under s 106(4) that it considered appropriate, such as:
(a) imposing a penalty payable to the District Law
Society;49
(b) censuring the practitioner;50
(c) placing conditions on the practitioners
work;51
44 Ibid, s 106(3)(b).
45 Ibid, s 106(3)(c).
46 Ibid, s 106(3)(d).
48 Ibid, s 106(2).
49 Ibid, s 106(4)(a).
50 Ibid, s 106(4)(b).
(s 106(4)(c)); order the practitioner to reduce fees for any work done by him that is the subject of proceedings before the Tribunal (s 106(4)(f); order the practitioner to make his practice available for inspection (s 106(4)(g)); order the practitioner to make reports on his practice (s 106(4)(h)); order the practitioner to take advice in relation to the management of his practice from such persons as are specified in the order.
(d) requiring him or her to complete work for (or pay compensation
to)52
any specified person;53 and
(e) requiring him or her to pay to the District Law Society such sums
as the Tribunal thinks fit in respect of costs and expenses
of inquiry into the
matter.54
[28] If no referral to the NZ Tribunal was made, and the District
Tribunal did not consider the practitioner to be guilty of any
of the conduct
described in s 106(3), but was of the opinion, having regard to the
circumstances of the case, that the making of
the charge was justified, it had
power to make one or more of the orders set out in s 106(4)(e) – (i),
namely those directed
at matters such as payment of compensation, fees,
reporting and practice management.
[29] The NZ Tribunal comprised five to 12 practitioners and three lay
persons.55
Unless the 1982 Act provided otherwise the NZ Tribunal determined its own procedure,56 and was empowered to make rules in respect of the making, hearing and determination of applications, inquiries, appeals and other proceedings before it or before any District Tribunal.57 Except in the particular circumstances described in s
111, every hearing of the NZ Tribunal was required to be held in
public.
[30] The functions of the NZ Tribunal were set out in s 110:
110 Functions of New Zealand Disciplinary Tribunal
(1) The principal function of the New Zealand Law Practitioners
Disciplinary Tribunal shall be to hear and determine—
(a) Any charge against a practitioner that is referred to it by a
District Disciplinary Tribunal:
52 Law Practitioners Act 1982, s 106(4)(e).
53 Ibid, s 106(4)(d).
54 Ibid, s 106(4)(j).
55 Ibid, s 108(2). As with the District Tribunal, a practitioner who was a member of the District
Tribunal, District Council or a Complaints Committee considering a complaint was not eligible to sit as a member of the NZ Tribunal on the hearing or determination of any proceedings before it in respect of a practitioner who practises in the district in which the District Tribunal, District Council or Committee of which he is a member had jurisdiction (section 109(3)).
56 Ibid, s 108.
57 Ibid, s 130.
(b) Any charge against a practitioner or an employee of a practitioner
that is made to it by a District Council or a complaints
committee:
(c) Any appeal against a decision of a District Disciplinary
Tribunal.
(2) The Tribunal shall have such other functions as are conferred on it by
this Act.
[31] The NZ Tribunal’s powers were set out in s 112:
(1) Subject to this Part of this Act, if the New Zealand Disciplinary
Tribunal—
(a) Is of the opinion that the practitioner has been guilty of
misconduct in his professional capacity; or
(b) Is of the opinion that the practitioner has been guilty of conduct
unbecoming a barrister or a solicitor; or
(c) Is of the opinion that the practitioner has been guilty of
negligence or incompetence in his professional capacity, and
that the
negligence or incompetence has been of such a degree or so frequent as to
reflect on his fitness to practise as
a barrister or solicitor or as to tend to
bring the profession into disrepute; or
(d) Is satisfied that the practitioner has been convicted of an
offence punishable by imprisonment, and is of the opinion that
the conviction
reflects on his fitness to practise as a barrister or solicitor, or tends to
bring the profession into disrepute,—
it may if it thinks fit make an order under this section.
[32] The orders available to the NZ Tribunal upon making a finding that a practitioner was guilty of conduct of the type describes in s 112(1)(a) to (d) were of a more severe nature than those available to the District Tribunal.58 They included
striking the practitioner’s name off the roll,59
suspending the practitioner from
practice for a period of up to three years, restricting the
practitioner’s ability to
practice on his own account, fining or censuring the practitioner, and
making any
58 Ibid, s 112(2).
order that could be made by a
District Tribunal under paragraphs (e) to (i) of s
106(4).60
(c) Transitional provisions
[33] The 2006 Act came into force on 1 August 2008. Sections
350–361 of the
2006 Act set out a number of transitional provisions, in respect of
complaints and disciplinary proceedings. These transitional provisions
are
relevant to the alleged conduct of Mr Orlov before 1 August 2008, on which some
charges have been based.61
[34] Relevantly, ss 350 and 351 provide:
350 Prohibition on complaints and investigations under Law
Practitioners Act 1982
After the commencement of this section,—
(a) no complaint may be made under section 98(1) of the Law
Practitioners Act 1982; and
(b) no complaint (other than a complaint received before the
commencement of this section) may be referred, under section
98(2) of the
Law Practitioners Act 1982, to a District Law Society; and
(c) no investigation into any matter may be commenced under section 99
of the Law Practitioners Act 1982.
351 Complaints about conduct before commencement of
section
(1) If a lawyer or former lawyer or employee or former employee of a
lawyer is alleged to have been guilty, before the commencement
of this section,
of conduct in respect of which proceedings of a disciplinary nature could have
been commenced under the Law Practitioners
Act 1982, a complaint about that
conduct may be made, after the commencement of this section, to the complaints
service established
under section 121(1) by the New Zealand Law
Society.
60 An order that could be made under any one or more of the provisions of s 106(4)(e) to (i) of the
1982 Act by the District Tribunal could also be made by the NZ Tribunal if no finding of improper conduct under s 112(1) were made, but in the circumstances of the case the Tribunal were nonetheless of the opinion that the making of the charge was justified.
61 See para [11] above, Charges 1 and 3 and para [12], Charges 9, 10 and 11.
(2) Despite subsection (1), no person is entitled to make under this
Act—
(a) a complaint that has been disposed of under the Law
Practitioners Act 1982; or
(b) a complaint in respect of—
(i) conduct that occurred more than 6 years before the commencement of this
section; or
(ii) regulated services that were delivered more than 6 years before the
commencement of this section; or
(iii) a bill of costs that was rendered more than 6 years before the
commencement of this section.
...
Section 351(3) specifies when a complaint is treated as having been disposed
of under the 1982 Act. Section 353 provides that, subject
to ss 354 to 361,
disciplinary proceedings already underway at the commencement of the 2006 Act
are to be continued and completed
as if the 1982 Act had not been
repealed.
[35] Section 352 provides that if a complaint were made under the 2006
Act about conduct that occurred before its commencement,
any penalty imposed in
respect of that conduct must be a penalty that could have been imposed in
respect of that conduct under the
1982 Act, unless the practitioner in question
gives consent for a penalty to be imposed that could only have been imposed in
respect
of conduct occurring after the commencement of the Act.
[36] Section 356 provides that if any proceedings to which s 353 of the
2006 Act applies have not been determined by the close
of the period of six
months from the date of commencement of the Act, the Society must appoint a
Lawyers’ Standards Committee62 to carry out the duties and
exercise the powers that a Complaints Committee (appointed pursuant to section
100 of the 1982 Act)
would have had.
[37] Section 357 provides for a similar process to be undertaken in
appointing a
Lawyers Standards Committee (not being a s 356 Committee) to exercise
the role of
62 Not being a Lawyers’ Standards Committee that has under s 357 of the Act the powers of a
District Disciplinary Tribunal in relation to those proceedings.
the District Tribunal. Section 106(4) of the 1982 Act, which sets out the
types of orders the District Tribunal could make following
a finding of improper
conduct, continues to have effect for the purposes of s 357.
[38] Finally, if proceedings to which s 353 of the Act applied were not
determined by the close of the period of six months from
the date of
commencement of the Act, then, from the close of that period, the Tribunal had,
despite the repeals effected by the Act,
the duties and powers that the NZ
Tribunal (established under the 1982 Act) would have had in relation to those
proceedings, if the
1982 Act had not been repealed.63
(c) The 2006 Act
[39] The 2006 Act is focussed on consumer protection and the need for
public confidence in the provision of legal services. It
sets out three express
purposes: 64
(a) to maintain public confidence in the provision of legal services and
conveyancing services,
(b) to protect the consumers of legal and conveyancing services,
(c) to recognise the status of the legal profession and to establish the new
profession of conveyancing practitioner.
[40] Those purposes are more directly focussed on the protection of clients and confidence of the public in the legal system than was the 1982 Act.65 To achieve those purposes the 2006 Act (among other things) endeavours to provide a regulatory
regime that is more responsive to consumer
concerns.66
63 Lawyers and Conveyancers Act 2006, s 358(1).
64 Ibid, s 3(1).
65 See para [16] above.
66 Lawyers and Conveyancers Act 2006, s 3(2)(b).
[41] Part 7 of the 2006 Act, establishes procedures for complaints and
discipline. It must be read subject to what are termed
“fundamental
obligations of lawyers”, set out in s 4 of the 2006 Act:
4 Fundamental obligations of lawyers
Every lawyer who provides regulated services must, in the course of his or
her practice, comply with the following fundamental obligations:
(a) the obligation to uphold the rule of law and to facilitate the
administration of justice in New Zealand:
(b) the obligation to be independent in providing regulated services
to his or her clients:
(c) the obligation to act in accordance with all fiduciary duties
and duties of care owed by lawyers to their clients:
(d) the obligation to protect, subject to his or her overriding duties
as an officer of the High Court and to his or
her duties under any
enactment, the interests of his or her clients.
[42] Part 7 is designed to enable complaints to be addressed and for
disciplinary charges to be heard and determined expeditiously.67
To achieve those goals, the Society is authorised to make necessary rules
to give effect to the framework.68 The inherent jurisdiction of
this Court to discipline lawyers, in their capacity as officers of the High
Court, is not affected.69
[43] The Society is required to establish one or more Lawyers’ Standards’ Committees.70 Each Standards Committee consists of at least three persons, one of whom must be a lay member.71 The functions of Standards Committees are set out
in s 130:
67 Ibid, s 120(3).
68 Ibid, s 120(4).
NZLR 551 (HC). Neutze was decided while the 1982 Act was in force and reliance was also placed on s 94 of that Act.
70 Ibid, s 126.
71 Ibid, s 129(1) and (2).
130 Functions of Standards Committees
The functions of each Standards Committee are (subject to any limitations imposed on the committee by or under this Act or the rules that govern the operation of the committee)—
(a) to inquire into and investigate complaints made under section 132: (b) to promote, in appropriate cases, the resolution of complaints by
negotiation, conciliation, or mediation:
(c) to investigate of its own motion any act, omission,
allegation, practice, or other matter that appears to indicate that there
may
have been misconduct or unsatisfactory conduct on the part of a practitioner
or any other person who belongs to any of the classes of persons described
in section 121:
(d) to intervene, in the circumstances prescribed by this Act,
in the affairs of practitioners or former practitioners
or incorporated
firms:
(e) to make final determinations in relation to
complaints:
(f) to lay, and prosecute, charges before the Disciplinary
Tribunal.
(emphasis added)
[44] For the purposes of s 130(c), the terms “misconduct” and
“unsatisfactory conduct” are defined; ss 6,
7(1) and 12 are
relevant:
(a) Section 6
misconduct has,—
(a) in relation to a lawyer (whether in practice on his or her own
account or not), the meaning given to it by section 7;
unsatisfactory conduct has,—
(a) in relation to a lawyer (whether in practice on his or her own
account or not), the meaning given to it by section 12;
...
(b) Section 7
7 Misconduct defined in relation to lawyer and incorporated law
firm
(1) In this Act, misconduct, in relation to a lawyer or an incorporated law firm,—
(a) means conduct of the lawyer or incorporated law firm that
occurs at a time when he or she or it is providing regulated services and
is
conduct—
(i) that would reasonably be regarded by lawyers of good standing
as disgraceful or dishonourable; or
(ii) that consists of a wilful or reckless contravention of any
provision of this Act or of any regulations or practice rules
made under this
Act that apply to the lawyer or incorporated law firm or of any other Act
relating to the provision of regulated
services; or
(iii) that consists of a wilful or reckless failure on the part of the
lawyer, or, in the case of an incorporated law firm, on
the part of a lawyer who
is actively involved in the provision by the incorporated law firm of
regulated services, to comply
with a condition or restriction to which
a practising certificate held by the lawyer, or the lawyer so actively involved,
is
subject; or
(iv) that consists of the charging of grossly excessive costs for
legal work carried out by the lawyer or incorporated law
firm; and
(b) includes—
(i) conduct of the lawyer or incorporated law firm that is misconduct
under subsection (2) or subsection (3); and
(ii) conduct of the lawyer or incorporated law firm which is
unconnected with the provision of regulated services by
the lawyer or
incorporated law firm but which would justify a finding that the lawyer or
incorporated law firm is not a fit and proper
person or is otherwise unsuited to
engage in practice as a lawyer or an incorporated law firm.
...
(c) Section 12
12 Unsatisfactory conduct defined in relation to lawyers and
incorporated law firms
In this Act, unsatisfactory conduct, in relation to a lawyer or an
incorporated law firm, means—
(a) conduct of the lawyer or incorporated law firm that occurs at a time when he or she or it is providing regulated services and is conduct that falls short of the standard of competence
and diligence that a member of the public is entitled to expect
of a reasonably competent lawyer; or
(b) conduct of the lawyer or incorporated law firm that occurs at a
time when he or she or it is providing regulated services
and is conduct that
would be regarded by lawyers of good standing as being unacceptable,
including—
(i) conduct unbecoming a lawyer or an incorporated law firm;
or
(ii) unprofessional conduct; or
(c) conduct consisting of a contravention of this Act, or of any
regulations or practice rules made under this Act that apply to the lawyer
or incorporated law firm, or of any other Act relating to the provision of
regulated services (not being a contravention that amounts
to misconduct under
section 7); or
(d) conduct consisting of a failure on the part of the lawyer, or, in
the case of an incorporated law firm, on the part of
a lawyer who is actively
involved in the provision by the incorporated law firm of regulated services, to
comply with a condition
or restriction to which a practising certificate held by
the lawyer, or the lawyer so actively involved, is subject (not being
a
failure that amounts to misconduct under section 7).
(emphasis added)
[45] The Society is required to make rules to govern the operation of a
Standards Committee. Such rules are to provide for the
procedures to be
followed in relation to complaints and to specify the manner in which a
Standards Committee is to exercise functions
and powers.72 Those
rules are found in the Regulations. In addition, the Society has promulgated
two other documents under the 2006 Act: the Practice
Note and the Procedures
Manual.73 The latter is intended to ensure consistency and
quality of the complaints service and to facilitate the working and operation of
Part 7 of the Act.
[46] As is clear from s 130, Standards Committees have a number of
discrete functions.74 They involve:
72 Ibid, s 131(a) and (b).
73 1 August 2008.
74 Section 130 of the 2006 Act is set out at para [43] above.
(a) Receiving complaints from the Complaints Service established under
the Act.75
(b) Deciding whether to take action on a complaint.76
(c) Determining whether to undertake an inquiry.77
(d) Considering the possibility of alternative dispute resolution,
involving negotiation, conciliation and mediation.78
(e) Inquiring into the complaint, including obtaining and evaluating
information.79
(f) Hearing a complaint.80
(g) Determining what action to take on a complaint; including whether
to make orders following any determination of unsatisfactory
conduct81
or to refer a complaint to the Tribunal.82
[47] Section 132 makes it clear that “any person” may complain to an “appropriate complaints service” about the way in which a practitioner has undertaken responsibilities he or she may have assumed.83 Section 136(a) expands the category of persons who might make complaints by declaring that a member of
the Council of the Society, or any person acting on its behalf, may do
so.
75 Ibid, s 135(1).
76 Ibid, ss 138–139.
77 Ibid, ss 140–154.
78 Ibid, s 143.
79 Ibid, s 141.
81 Ibid, s 152(2)(a).
82 Ibid, s 152(2)(a).
[48] The initial complaint is made to a
Complaints Service.84 A complaint about a practitioner must be in
writing and be referred to a Standards Committee for consideration.85
The Standards Committee must consider the complaint, by inquiring
into it86 or giving a direction that the parties explore the
possibility of resolution “by negotiation, conciliation, or
mediation”87 or decide to take no action on the
complaint.88
[49] In exercising the power to investigate, a Standards Committee may appoint a person to undertake an inquiry and to report to it.89 For the purpose of inquiring into a complaint, a Standards Committee may require an investigator to inquire into the complaint and any matters related to it and to furnish a report to the Standards Committee.90 Consideration of a report from an investigator must take place in private.91 Nevertheless, generally, the report must be disclosed to the practitioner
against whom the complaint is made.92
[50] In exercising its jurisdiction to deal with the complaint, s 151
provides:
151 Evidence
(1) A Standards Committee may receive in evidence any
statement, document, information, or matter that may in its opinion
assist it to
deal effectively with the matters before it, whether or not the
statement, document, information, or matter
would be admissible in a court of
law.
(2) A Standards Committee may take evidence on oath, and for that
purpose, any member or officer of the Standards Committee
may administer an
oath.
(3) A Standards Committee may permit a person appearing as a witness
before it to give evidence by tendering a written statement
and, if the
Standards Committee thinks fit, verifying that statement by
oath.
84 Lawyers and Conveyancers Act 2006, s, s 135(1).
86 Ibid, 
s 137(1)(a). 
87 Ibid, ss 137(1)(b) and 143.
88 Ibid, ss 137(1)(c) and 138.
89 Ibid, ss 144–146. Such a power may also be exercised by the Society: s 144(1).
90 Ibid, s 146(1). The investigator’s jurisdiction is identified in ss 146(2) and 147(2).
91 Ibid, s 148(1).
(4) Subject to subsections (1) to (3), the Evidence Act 2006 applies
to a Standards Committee in the same manner as if it were
a court within the
meaning of that Act.
(5) This section is subject to sections 142(1) and 143(5).
[51] A Standards Committee must advise the complainant and the person
against whom the complaint has been made of the process
to be adopted on receipt
of the complaint.93 Written notice of a decision to take no action,
or no further action, must be given forthwith to the complainant and the
person
to whom the complaint relates.94 The notice must state
the decision and the reasons for it, as well as describe the right of review
conferred by s 193 of the Act.95
[52] Section 138 of the Act explains what a Standards Committee must do
if it were to decide to take no action or no further action:
138 Decision to take no action on complaint
(1) A Standards Committee may, in its discretion, decide to take no
action or, as the case may require, no further action,
on any complaint if, in
the opinion of the Standards Committee,—
(a) the length of time that has elapsed between the date when the
subject matter of the complaint arose and the date when the
complaint was made
is such that an investigation of the complaint is no longer practicable or
desirable; or
(b) the subject matter of the complaint is trivial; or
(c) the complaint is frivolous or vexatious or is not made in good
faith; or
(d) the person alleged to be aggrieved does not desire that action be
taken or, as the case may be, continued; or
(e) the complainant does not have sufficient personal interest in the
subject matter of the complaint; or
(f) there is in all the circumstances an adequate remedy or right of
appeal, other than the right to petition the House of
Representatives or to make
a complaint to an Ombudsman, that it would be reasonable for the person
aggrieved to exercise.
93 Ibid, s 137(2).
94 Ibid, s 139(1)(a) and (b).
95 Ibid, s 139(2)(a). Section 193 establishes a right to seek review of a Standards Committee’s
decision from the Legal Complaints Review Officer.
(2) Despite anything in subsection (1), a Standards Committee may, in
its discretion, decide not to take any further action
on a complaint if, in the
course of the investigation of the complaint, it appears to the Standards
Committee that, having regard
to all the circumstances of the case, any further
action is unnecessary or inappropriate.
[53] If a Standards Committee decides to inquire into a complaint, it must do
so as soon as practicable.96 Section 141 of the Act
provides:
141 Notice to person to whom complaint or inquiry relates
The Standards Committee—
(a) must send particulars of the complaint or matter to the person to
whom the complaint or inquiry relates, and invite that
person to make a written
explanation in relation to the complaint or matter:
(b) may require the person complained against to appear before it to
make an explanation in relation to the complaint or matter:
(c) may, by written notice served on the person complained against,
request that specified information be supplied to the Standards
Committee in
writing.
[54] Section 152 sets out the powers of a Standards Committee to determine a
complaint. Section 152(1) and (2) provide:
152 Power of Standards Committee to determine complaint or
matter
(1) A Standards Committee may,—
(a) after both inquiring into a complaint and conducting a
hearing with regard to that complaint; or
(b) after both inquiring into a matter under section 130(c) and
conducting a hearing with regard to that matter,—
make 1 or more of the determinations described in subsection (2).
(2) The determinations that the Standards Committee may make are as
follows:
(a) a determination that the complaint or matter, or any issue
involved in the complaint or matter, be considered by the Disciplinary
Tribunal:
(b) a determination that there has been unsatisfactory conduct on the
part of—
96 Ibid, s 140.
(i) a practitioner or former practitioner; or
(ii) an incorporated firm or former incorporated firm; or
(iii) an employee or former employee of a practitioner or incorporated
firm:
(c) a determination that the Standards Committee take no further
action with regard to the complaint or matter or any issue
involved in the
complaint or matter.
...
Any hearing conducted under s 152(1) is to be a hearing on the papers, unless
the Standards Committee otherwise directs.97 That means that
compliance with the rules of natural justice can be satisfied through an
“on the papers” hearing held
in a manner that is designed to
meet the 2006 Act’s emphasis on an “expeditious”
determination of a
complaint.98
[55] Section 153(2) makes it clear that the procedures set out in s
153(3)–(8) apply only to hearings on the papers. This
includes receiving
written, but not oral, submissions from the complainant and the person in
respect of whom the complaint was made.99 In other cases, the
Standards Committees must tailor its processes to meet the needs of a particular
case.
[56] If, under s 152(2)(a), a Standards Committee were to make a
determination that the complaint or other matter ought to be
considered by the
Tribunal, s 154 applies:
154 Reference of complaint or matter to Disciplinary
Tribunal
(1) If a Standards Committee makes a determination that the complaint
or matter be determined by the Disciplinary Tribunal,
the Standards Committee
must—
(a) frame an appropriate charge and lay it before the
Disciplinary Tribunal by submitting it in writing to
the chairperson of the
Disciplinary Tribunal; and
97 Ibid, s 153(1).
98 See para [42] above.
99 Lawyers and Conveyancers Act 2006, s 153(3).
(b) give written notice of that determination and a copy of the charge
to the person to whom the charge relates; and
(c) if the determination relates to a complaint, give both written
notice of that determination and a copy of the charge to
the
complainant.
(2) If the person who is the subject of the complaint or matter is a
provider under the Legal Services Act 2011, the Standards
Committee must provide
a written notice of the determination to the Secretary for Justice.
[57] Unlike the Standards Committees, the Tribunal must hold its hearings
in public.100 Also, the range of orders it may make to respond to
proved misconduct or unsatisfactory conduct are greater; for example, it may
order
that a practitioner be suspended101 or that he or she be struck
off the roll of barristers and solicitors.102
4. Judicial review of prosecutorial decisions
[58] Mr Morgan submitted that the Committee’s decisions to refer complaints to the Tribunal was a specie of prosecutorial discretion. He relied on Polynesian Spa Ltd v Osborne103 as authority for the proposition that judicial review was unavailable in respect of such decisions. For his part, Mr Orlov accepted that if Mr Morgan’s submission were correct, his application for judicial review must fail. Mr Orlov’s position is that a determination to refer a complaint to the Tribunal is reviewable.
Alternatively, he submits that a decision of that type is, at least,
reviewable in respect of the application of any threshold test.
[59] In Polynesian Spa, Randerson J, after a fulsome review of
relevant authority, explained why the Courts have “shown a marked
reluctance to interfere
with the exercise of a discretion to
prosecute”.104 His Honour said:105
...
100 Ibid, s 238.
101 Ibid, s 242(1)(e).
102 Ibid, s 242(1)(c).
103 Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC).
104 Ibid, at para [61].
105 Ibid, at para [62].
(a) It is important that the proper constitutional boundaries be observed.
The discretion to prosecute on behalf of the state is a function of
Executive government rather than the Courts whose function is to ensure the proper and fair conduct of trials: Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA) at para [31]. See also Police v Hall [1976] 2
NZLR 678 (CA) at p 683 and R v Sang [1979] UKHL 3; [1980] AC 402, at p 454.
(b) Criminal proceedings should not generally be subject to collateral
challenge. Entertaining challenges of this kind outside
the trial and appeal
process is likely seriously to disrupt the criminal justice system: R v
Director of Public Prosecutions, ex parte Kebilene [1999] UKHL 43; [1999] 4 All ER 801
at p 834 per Lord Steyn.
(c) As noted in Fox in the same passage, decisions to
initiate and continue prosecutions generally involve a high content of judgment
and discretion
in the decisions reached.
(d) Where a prosecution ensues, the Courts possess an inherent power
to stay or dismiss a prosecution for abuse of process.
Fox reviewed the
principles upon which a Court may act to protect against such an abuse.
(e) The conclusion on behalf of a prosecuting authority that an
offence has been committed is merely an expression of opinion
which is capable
of being challenged in Court: R v Sloan [1989] NZHC 406; [1990] 1 NZLR 474 at p
478.
(f) If factual errors are made in an investigation by a
prosecuting authority or if there is further or other material
which a defendant
considers ought to have been weighed by the prosecuting authority, there is an
opportunity to explore and test
such issues at trial and to bring such further
evidence as the defendant sees fit.
...
[68] In summary, where a decision to prosecute has been taken, there
is jurisdiction to entertain a challenge on judicial review. But it
will only be
in rare cases that any such challenge will be successful for the substantial
policy and constitutional reasons reviewed
in para [62] above. Ordinarily,
matters which may have afforded grounds for judicial review in other
contexts are properly addressed by the
Court exercising jurisdiction at trial.
Those powers include jurisdiction to stay or dismiss for abuse of process or to
allow time
for any defects in disclosure to be remedied. Importantly, issues of
law, fact or opinion may be fully ventilated at trial with full
opportunity to
test the prosecution case and to adduce such evidence as the defendant sees
fit.
(emphasis added)
[60] Mr Orlov contends that Polynesian Spa does not govern this case because a Standards Committees’ determination to refer a complaint to the Tribunal is not akin to a decision involving prosecutorial discretion. He submits that the decision to refer
the complaint to the Tribunal (made under s 152(2)(a))106 is one
reached after an inquiry into a complaint and a hearing, whether on the papers
or otherwise.107
[61] In my view, at the time the Standards Committees determined to refer
complaints to the Tribunal they were acting judicially,
not as prosecutors,
because:
(a) A determination made under s 152(2)(a) of the 2006 Act, is
one reached after considering relevant evidence, written
submissions and
hearing108 from the parties. That is, quintessentially, a judicial
function.
(b) Only after that determination is made does the Standards Committee
metamorphose into a prosecutor. Under s 154(1)(a), it
is then required to
“frame an appropriate charge and lay it before” the
Tribunal.109
[62] In those circumstances, a decision to refer a complaint to the
Tribunal is reviewable in the same way and on the same grounds
as any other
decision made by any court or tribunal that is susceptible to this Court’s
supervisory jurisdiction. In the context
of the need to observe the
“principles” or “rules” of natural justice, the general
provisions of s 27(1)
of the New Zealand Bill of Rights Act 1990 and the
specific terms of s 142(1) of the 2006 Act are relevant:
27 Right to justice
(1) Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.
...
142 Procedure of Standards
Committee
106 See para [54] above.
107 Lawyers and Conveyancers Act 2006, s 152(1).
109 Section 154 is set out at para [56] above.
(1) A Standards Committee must exercise and perform its
duties, powers, and functions in a way that is consistent with
the rules of
natural justice.
....
5. References to the Tribunal: Is there a threshold
test?
(a) The nature of the issue
[63] The next question is whether a Standards Committee is required to
apply any test in determining whether to refer a complaint,
relating to conduct
that occurred before 1 August 2008, to the Tribunal for determination. Accepting
that the test used in the 1982
Act has been omitted from the equivalent
provision in the 2006 Act, Mr Orlov submits that a threshold test must be
implied, to avoid
the possibility that relatively trivial matters might be
referred to the Tribunal at the whim of a Standards Committee.
[64] Mr Morgan contended that it would be inappropriate for the Court to
put a gloss on s 152(2)(a)110 to reintroduce a test that
Parliament had deliberately discarded. In addressing the statutory scheme, he
submitted:
(a) Section 152(2)(a) conferred a general discretion on a Standards
Committee to determine that a “complaint or matter,
or any issue involved
in the complaint or matter, be considered by” the Tribunal.
(b) Unlike the situation that pertains if a Standards Committee makes a determination of “unsatisfactory conduct”,111 or decides that no (or no further) action be taken in respect of a complaint,112 there is no requirement for a Standards Committee to give reasons for its
decision when referring a complaint to the
Tribunal.
110 Set out at para [54] above.
111 Lawyers and Conveyancers Act 2006, ss 152(2)(b) and 158(2)(a).
112 Ibid, ss 139(1) and (2)(a), 152(2)(c) and 158(1) and (2)(a).
(c) Section 154 limits the Committee’s obligations, when referring
a complaint to the Tribunal, to framing an appropriate charge, laying it
before
the Tribunal113 and giving the requisite written notices.
[65] In my view, the following factors are relevant to determination of
whether a threshold test exists:
(a) The functions and powers of the Tribunal, as opposed to those of
Standards Committees.
(b) The existence of an adversarial standard of proof (as opposed to a
power to inquire) to be met before a finding of misconduct
can be made. In
Z v Dental Complaints Assessment Committee,114 it was held
that the standard is one of balance of probabilities, flexibly applied. A
majority of the Supreme Court (Elias CJ dissenting)115 held that this
did not change the degree of probability required to establish a charge but,
rather, recognised that judicial officers
require stronger evidence of more
serious allegations before they can be satisfied that an issue in dispute has
been proved.116
[66] Before discussing the weighting to be given to each of those factors, I deal briefly with a submission made in Mr Orlov, by which he suggested that three recent decisions of the Legal Complaints Review Officer had confirmed the need for some threshold test.117 Having considered those decisions, while they suggest that a “higher threshold” might now be required to demonstrate misconduct, none of them address whether any threshold standard must be applied by a Standards Committee
in determining to refer a complaint to the
Tribunal.118
113 Ibid, s 154(1)(a).
114 Z v Dental Complaints Assessment Committee [2008] NZSC 55; [2009] 1 NZLR 1.
115 Ibid, at para [4]. The Chief Justice would have adopted the higher criminal standard of proof.
See also paras [49], [50] and [55].
116 Ibid, at [102], [105] and [116] (Blanchard, Tipping and McGrath JJ) and [145] (Anderson J).
118 For example, see CM v XH [2011] NZLCRO 31, at paras [15] and [16].
(b) Functions and powers
[67] As previously indicated, Standards Committees have a number of discrete functions.119 For present purposes, the relevant functions are the need to inquire into a complaint (through obtaining and evaluating information),120 hearing a complaint121 and determining what action to take on it.122 In carrying out those functions, a Standards Committee must act “in a way that is consistent with the rules of natural justice”.123 If a Standards Committee were to decide that a practitioner was guilty of “unsatisfactory conduct”124 it may make orders to respond to the relevant conduct. The orders available to the Standards Committees are extensive,
but do not include either the power to strike a practitioner from the roll of
barristers and solicitors or to suspend him or her from
practice.125
[68] Members of Standards Committees are appointed by the
Society.126 Those members of the Tribunal who are lawyers are
appointed by the Society.127 The chairperson and deputy
chairperson of the Tribunal are appointed by the Governor- General on the
recommendation of the Minister
of Justice.128 Lay members are
appointed by the Governor-General, on the recommendation of the Minister, after
consultation with the chairperson
and the Council of the Society.129
The need for appointments to be made at that level indicates the
importance of the Tribunal’s jurisdiction, in the context of
the serious
charges it is expected to hear and determine.
[69] In order to compare the functions and powers of Standards Committees
with those of the Tribunal, the role of the Legal Complaints
Review Officer
(Review
119 See para [46] above.
120 Lawyers and Conveyancers Act 2006, s 141.
121 Ibid, s 153.
122 Ibid, s 152.
123 Ibid, s 142(1).
124 Ibid, s 152(2)(b).
125 Ibid, s 156(1).
126 Ibid, s 126(1).
127 Ibid, s 233(2).
128 Ibid, s 230.
129 Ibid, s 233.
Officer) must be brought to account. His or her functions are set out in s
192 of the
2006 Act:
192 Functions of Legal Complaints Review Officer
The functions of the Legal Complaints Review Officer are—
(a) to exercise the powers of review conferred on the Legal
Complaints Review Officer by this Act:
(b) to promote, in appropriate cases, the resolution, by
negotiation, conciliation, or mediation, of—
(i) complaints; or
(ii) such issues relating to complaints as the Legal
Complaints Review Officer specifies:
(c) to provide advice to the New Zealand Law Society and the New
Zealand Society of Conveyancers and the Minister on any
issue that the
Legal Complaints Review Officer identifies in the course of carrying out
reviews (being an issue that
relates to the manner in which complaints
are received and dealt with under this Act or any rules made under this
Act).
[70] For the purposes of the present proceeding, a Review Officer may entertain an application from a practitioner against whom a complaint was made to review any decision of a Standards Committee, in relation to the complaint.130 On receiving an
application for review, the Review Officer has a duty to conduct the
review.131 A
review is conducted in private.132 Section 200 of the 2006 Act
provides:
200 Avoidance of unnecessary formality
The Legal Complaints Review Officer must conduct any review with as little
formality and technicality, and as much expedition, as
is permitted
by—
(a) the requirements of this Act; and
(b) a proper consideration of the review; and
(c) the rules of natural justice.
130 Ibid, ss 193 and 194. An application for review must be made in accordance with s 198.
131 Ibid, s 199.
132 Ibid, s 206(1).
[71] The statutory emphasis on the need for the Review Officer to conduct any review “with as little formality and technicality, and as much expedition” as is consistent with (among other things) the rules of natural justice, emphasises a Parliamentary intention for complaints to be dealt with promptly, with the necessary tailoring of the application of the rules of natural justice to enable that to be done
properly.133
[72] A Review Officer may direct reconsideration of complaints or
decisions made by Standards Committees arising out of a complaint.
Section 209
of the 2006 Act provides:
209 Power to direct reconsideration of complaints, matters,
or decisions
(1) The Legal Complaints Review Officer may—
(a) direct a Standards Committee to reconsider and determine, either
generally or in respect of any specified matters, the
whole or any part of the
complaint, matter, or decision to which any application for review
relates:
(b) give to a Standards Committee, in any case where the Legal
Complaints Review Officer gives a direction under
paragraph
(a),—
(i) his or her reasons for the direction; and
(ii) such other directions as he or she thinks just as to the
reconsideration or otherwise of the whole or any part of the complaint,
matter,
or decision that is referred back for reconsideration:
(c) request, in giving a direction under paragraph (a), that the
Standards Committee supply a follow-up report to him or her
when it has complied
with the direction.
(2) A Standards Committee, in reconsidering any complaint, matter, or
decision referred back to it under subsection (1)(a),
must have regard to the
direction given by the Legal Complaints Review Officer and to his or her reasons
for giving the direction.
[73] The Review Officer may confirm, modify or reverse any
decision of a
Standards Committee and exercise any powers that could have been
exercised by
133 Compare to the position with regard to Standards Committees, discussed at para [54] above.
that Committee. Those powers include the ability to lay a charge
before the Tribunal, in the event that the Review Officer
considers that should
be done.134 In that sense, the Review Officer can exercise the
same type of prosecutorial functions as a Standards Committee. A charge laid by
either is heard by the Tribunal.135
[74] Unlike a Standards Committee or the Review Officer, the Tribunal
sits in public and parties are entitled to be heard in person,
or through
counsel.136 The Tribunal “must, in performing and exercising
its functions and powers, observe the rules of natural justice”.137
Section 241 identifies charges that may be brought before the
Tribunal:
241 Charges that may be brought before Disciplinary Tribunal
If the Disciplinary Tribunal, after hearing any charge against a person who
is a practitioner or former practitioner or an employee
or former employee of a
practitioner or incorporated firm, is satisfied that it has been proved on the
balance of probabilities that
the person—
(a) has been guilty of misconduct; or
(b) has been guilty of unsatisfactory conduct that is not so gross,
wilful, or reckless as to amount to misconduct; or
(c) has been guilty of negligence or incompetence in his or her
professional capacity, and that the negligence or incompetence
has been of such
a degree or so frequent as to reflect on his or her fitness to practise or as to
bring his or her profession into
disrepute; or
(d) has been convicted of an offence punishable by imprisonment
and the conviction reflects on his or her fitness
to practise, or tends
to bring his or her profession into disrepute,—
it may, if it thinks fit, make any 1 or more of the orders authorised by section
242.
[75] Section 242 sets out the orders that can be made if a charge were
proved. In the context of this case, s 242(1)
provides:
134 Ibid, ss 211 and 212.
135 Ibid, s 227.
136 Ibid, ss 237 and 238.
137 Ibid, s 236.
242 Orders that may be made where charge proved
(1) In any case to which section 241 applies, the Disciplinary Tribunal may
make—
(a) any order that a Standards Committee has power to make under
section 156 on the final determination of a complaint:
(b) an order declaring that, in the opinion of the Disciplinary
Tribunal, any of the circumstances specified in section 163
exist in respect of
the practitioner or former practitioner and directing a Standards Committee
to exercise any power under
section 164 or section 169:
(c) if the person is a lawyer, an order that his or her name be struck
off the roll:
...
(e) if the person is a lawyer, an order that the practitioner be
suspended from practice as a barrister or as a solicitor,
or as both, for such
period, not exceeding 36 months, as the Disciplinary Tribunal thinks
fit:
...
(g) an order prohibiting the practitioner from practising on his or
her own account, whether in partnership or otherwise, until
authorised by the
Disciplinary Tribunal to do so:
...
(2) Paragraphs (c) and (d) of subsection (1) are subject to section
244.
[76] As s 242(2) indicates, there are restrictions on the circumstances
in which a practitioner may be struck off the roll or
suspended from practice.
Section 244 provides:
244 Making of order for striking off roll, cancellation of registration,
or suspension from practice
(1) The Disciplinary Tribunal may not make an order, under section
242(1)(c), striking the name of a practitioner off the roll or an order, under section 242(1)(d), cancelling the registration of a practitioner unless in its
opinion the practitioner is, by reason of his or her conduct, not a fit and
proper person to be a practitioner.
(2) Except by consent, the Disciplinary Tribunal may not make—
(a) an order, under section 242(1)(c), striking the name of a
practitioner off the roll; or
...
(c) an order, under section 242(1)(e), suspending a practitioner from
practice,—
unless at least 5 members of the Disciplinary Tribunal are present and vote
in favour of the order and those members are either the
only members present and
voting at the sitting of the Disciplinary Tribunal or the division of the
Disciplinary Tribunal or are a
majority of the members present and voting at the
sitting of the Disciplinary Tribunal or the division of the Disciplinary
Tribunal.
(3) Where the Disciplinary Tribunal makes an order, under section
242(1)(c), striking the name of a practitioner off the roll or an order, ...
, cancelling the registration of a practitioner, the
order is, until the expiry
of the time allowed for appeal under section 253 or, if an appeal is commenced,
until the determination
of the appeal, to take effect only as an order that the
practitioner be suspended from practice ... , as the case may
require.
(c) Standard of proof
[77] While the 2006 Act creates a process by which a Standards Committee must consider and determine a complaint, there is no express provision as to the standard to which a Committee needs to be satisfied before it decides what determination to make under s 152(2). That is in contrast to the position that pertains when a charge of misconduct is before a Tribunal.138 This does not, of itself, affect an assessment of whether a threshold requirement is present. Rather, it aims to meet the need for compelling evidence if a charge of misconduct were brought against a professional person, with all of the implications that may have on the person’s ability to make a
living.
(d) Conclusions
[78] While a Standards Committee performs investigative, judicial and prosecutorial functions, the Tribunal’s role is strictly judicial in nature. The type of orders available to the Tribunal suggest that it should deal only with those cases in which there is a real risk that orders going beyond those within a Standards Committee’s jurisdiction may be made. That is consistent with the limitation on
circumstances in which an order striking a practitioner’s name
from the roll may be
138 Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 (SC).
made: namely, the need for the Tribunal to form an “opinion [that] the
practitioner is, by reason of his or her conduct, not
a fit and proper person to
be a practitioner”.139
[79] The Tribunal’s judicial role, the requirement that charges
before the Tribunal be heard in public, its obligation to
observe the rules of
natural justice, its exclusive jurisdiction both to find misconduct and to
strike a practitioner’s name
from the roll (or to suspend him or her from
practice), all suggest that a significant threshold must be crossed before a
Standards
Committee can refer charges to it.
[80] The test under the 1982 Act was whether “the case [was] of
sufficient gravity to warrant its referral” to the
NZ Tribunal. It is
difficult to see why a similar test should not apply. In my view, a test that
considers whether there is a real
risk that the practitioner might be suspended
or struck off is consistent with the statutory language.
[81] The existence of a threshold test has the advantage of focussing the
collective minds of members of a Standards Committee
on the likely outcomes of a
consideration of a charge (or charges) by the Tribunal and creates a
disincentive (in far less likely
circumstances) for anyone who might
bear animosity or ill-will towards a particular practitioner (with whom he or
she also
may be in competition) from referring unwarranted charges to the
Tribunal.
[82] I have not overlooked the fact that the 2006 Act does not require reasons to be given for deciding to refer a complaint to the Tribunal. Equally, however, it does not prohibit that course. Where reasons are not given, it is open to a Court, on judicial review, to consider the nature of the conduct, the form of any charge drafted and the bases for it, to determine whether the Standards Committee has exceeded its jurisdiction. So far as reasons are concerned, it is my view that it is sufficient for the Committee considering the charge to find that the conduct was “sufficiently serious
to warrant reference to the Tribunal”, on the basis of the test I
have adopted.
139 Lawyers and Conveyancers Act 2006, s 244(1), set out at para [76] above.
6. Grounds of review
(a) Mr Orlov’s submissions
[83] Mr Orlov urged a “rights based approach” to his application. He emphasised the independence of the Bar as fundamental to the rule of law and the judicial system, and the concomitant right of a lawyer to be free from improper attack, either from another member of the legal profession or the judiciary.140 Mr Orlov submitted that it was implicit in ss 14 and 19 of the Bill of Rights that “any attack on a lawyer’s independence by the Bench is a breach of his freedom of speech”. He referred also
to “rights” conferred by international instruments, such as the
International Covenant
on Civil and Political Rights.
[84] Mr Orlov submitted that there were limitations on the ability of Standards Committees to consider alleged misconduct or unsatisfactory conduct, on the part of a practitioner. He submitted that Standards Committees had no jurisdiction in respect of complaints that arose out of conduct not closely connected to the “regulated services” the lawyer performed.141 While accepting that there was some
ability to deal with alleged misconduct outside of legal practice,142
he submitted that
such conduct must be sufficient to “justify a finding that the lawyer
... is not a fit and
proper person, or is otherwise unsuited to engage in practice as a lawyer
....”.
[85] In relation to the particular complaints, Mr Orlov contended that the decisions to refer complaints to the Tribunal are vitiated on a number of grounds. In some cases, allegations of actual or apparent bias are made; in others, there are suggestions that the Standards Committees breached relevant principles of natural justice, including the requirement to ensure that Mr Orlov was given sufficient
particulars of the alleged complaint and heard on them. Mr Orlov also
challenges
made about him by members of the judiciary.
141 Lawyers and Conveyancers Act 2006, s 4; set out at para [41] above.
142 Ibid, s 7(b)(ii), set out at para [44](b) above.
the way in which the Committees dealt with some of the complaints in light of
the procedure set out in subordinate instruments,143 and submits
that certain decisions were made ultra vires. In others, he contends the
decisions were unreasonable.
(b) Relevance of international instruments and Bill of
Rights
[86] In my view, only limited assistance can be gained from references to
international instruments and the Bill of Rights.144 My focus must
be on the purpose of the disciplinary process created by Parliament, the words
of the 2006 Act and its objectives.
Other legislation and international
instruments will only inform my consideration of the application if directly
relevant to the
interpretation of a relevant provision in the 2006
Act.
[87] The 2006 Act is designed to maintain public confidence in the
provision of legal services and to protect consumers of such
services.145
The disciplinary regime was carefully crafted to promote those objectives.
The procedures established by Part 7 of the 2006 Act inform
the standards
expected from practising lawyers and the way in which the terms
“misconduct” and “unsatisfactory
conduct” should be
interpreted, for disciplinary purposes.146 The name
“Standards Committee” itself reflects an intention that the conduct
of members of the profession be judged against
standards applicable to
all.
[88] The 2006 Act is designed to provide an efficient147 and fair process,148 having regard to the interests of both complainant and practitioner. The ability of a Standards Committee to initiate “own motion” inquiries stresses the public interest in ensuring that practising lawyers maintain appropriate standards, even in a case where there is no specific complainant. The focus on both efficiency and fairness dictates
an approach that requires a differing intensity to be given to
particular complaints,
143 See para [15] above.
144 See para [83] above.
145 Lawyers and Conveyancers Act 2006, s 3(1).
146 Lawyers and Conveyancers Act 2006, ss 4, 6 and 7. See also paras [39]–[44] above.
147 See para [42] above.
148 See para [62] above.
depending on the seriousness of the allegation. A similar approach,
based on proportionality, is justified in this Court,
on review.
[89] Section 4 of the 2006 Act sets out the “fundamental
obligations of lawyers”. They encompass the need to uphold
the rule of
law, facilitation of the administration of justice, the independence of the Bar,
acting in accordance with duties owed
to clients and compliance with overarching
duties to the Court, of which the lawyer is an
officer.149
[90] Section 27 of the Bill of Rights reinforces the need for observance of the principles of natural justice by a body that is acting judicially. However, that does no more than to emphasise a Standards Committee’s specific duty to act in that way.150
In my view, the provisions of ss 14 (freedom of expression) and 19 (freedom against discrimination), to which Mr Orlov expressly referred, must be read in light of duties cast upon lawyers that are either articulated in the 2006 Act or implicitly recognised. An example of the latter is the need for a lawyer to behave in a manner that meets the obligations of an officer of the High Court. While complaints may be made against judicial officers, it is clear that disrespectful or scandalous allegations against a Judge (who personifies the Court, in that regard) exercising judicial authority is an affront to the Court, and poses a risk to the public confidence in the judicial
system.151 For those reasons, such excessive conduct does not
qualify for protection
under the right to freedom of expression. To hold otherwise would be to
inhibit both the Court’s own summary jurisdiction over
lawyers appearing
before it152 and its contempt
jurisdiction.153
[91] In my view, neither the 1982 nor 2006 Acts contradict any principles that might otherwise be applicable under instruments and statutes of the type to which Mr Orlov refers. Had they done so, I would, in any event, have held that the
disciplinary processes and procedures adopted by the 2006 Act
“could be
149 Section 4 is set out at para [41] above. See also paras [146]–[149] below.
150 Lawyers and Conveyancers Act 2006, s 142(1), set out at para [62] above.
151 See para [146] below.
152 See para [42] above.
153 For example, see Solicitor-General v Miss Alice [2007] NZHC 48; [2007] 2 NZLR 783 (HC).
demonstrably justified in a free and democratic society”.154 For completeness, I add that this Court could not, in any event, have declined to apply any provision of the
2006 Act “by reason only that the provision is inconsistent with any
provision of [the] Bill of Rights”.155 Even if relevant
provisions of the 2006 Act had conflicted with rights affirmed by the Bill of
Rights, the statute must still be applied.156
[92] In my view, the questions arising in this case may be summarised as
follows:
(a) In respect of individual decisions, did the relevant
Standards Committee apply the law correctly in deciding
to refer certain
complaints or matters to the Tribunal?
(b) Did the relevant Standards Committee, in considering a complaint or
own motion inquiry, fail to give Mr Orlov a fair hearing,
as contemplated by the
need to comply with the principles of natural justice?
(c) Did any of the Standards Committees, in respect of
particular complaints, fail to follow due process in any material
respect that
would vitiate its decision?
[93] I am conscious also that Parliament has set up a scheme, primarily
for the protection of consumers of legal services, that
puts particular
decision-making into the hands of the Standards Committees. Even where there is
contradictory evidence available,
it is not for this Court, on judicial review,
to substitute its own view for that of the Standards Committee, unless it has
erred
in one or more of the respects I have identified.
[94] I say at the outset that I am not persuaded that any actual or apparent bias on the part of individual members of Standards Committees has been made out, so that
aspect of the principles of natural justice is not required to be
addressed specifically.
154 New Zealand Bill of Rights Act 1990, s 5.
155 Ibid, s 4.
156 Ibid, ss 4 and 5.
Nor does the evidence go far enough, even if it had been specifically pleaded
as such, for a claim of bad faith to be advanced. The
submissions that were
made both on bias and bad faith tended to focus on officials who provided
information to members of the Standards
Committees. Complaints that the
Committees did not follow the principles of natural justice can only be
referable to the decision-making
of the members concerned. There is no basis
for a finding of bad faith against individual members of any of the relevant
Committees.
(c) The subordinate “legislation”
[95] In the course of his submissions, Mr Orlov referred to the
Regulations, the Practice Note and the Procedure Manual.157 I
outline relevant aspects of those instruments.
[96] Part 4 of the Regulations sets out procedures to be adopted in
respect of complaints. Regulations 26 and 27 provide:
26 Procedures in relation to complaints
(1) The procedures of each Standards Committee must accord with the
provisions of the Act and these regulations and in particular
the requirement to
act in accordance with the rules of natural justice.
(2) The quorum of each Standards Committee is a majority of members,
at least 1 of whom must be a lay member.
(3) A decision supported by a majority of the votes cast at a meeting of a
Standards Committee is the decision of the Committee.
(4) The person chairing a meeting of a Standards Committee
has a casting vote as well as a deliberative vote.
(5) Each Standards Committee must cause full and accurate minutes to
be kept of the proceedings of each meeting, which minutes
must record all
decisions reached and orders made by the Committee at the meeting.
(6) Each Standards Committee must otherwise adopt, as
far as practicable, procedures that comply with any practice
notes or
requirements laid down by the Law Society from time to
time.
157 See para [15] above.
27 Performance of functions and exercise of powers by Standards
Committees
Each Standards Committee, in performing the functions or exercising the
powers conferred on it by the Act, must comply with any practice
notes or
requirements from time to time made by the Law Society.
[97] Regulation 28 authorises the Society to “make, vary or revoke” Practice Notes or “requirements” concerning procedures to be followed by Standards Committees and the manner in which such Committees are to perform their functions and exercise their powers. The legislative intention is that such Practice Notes or requirements be designed to “promote uniformity of approach amongst
Standards Committees”.158 They represent guidance and
are not prescriptive in
nature. Failure to comply with a particular provision will not render a
decision unlawful. It is still necessary to determine whether
the legal
obligations have been met. These documents may also be fairly regarded as
statements of “best practice”.
[98] The Practice Note was designed “to promote a
uniformity of approach amongst Standards Committees”.159
Clauses 2.10 and 2.11 explain the way in which it was intended that the
Complaints Service deal with complaints; in particular, with
reference to the
use of local and national committees:
2.10 The Complaints Service must refer complaints to a Local Standard
Committee except where one or more of the following factors
apply, in which case
the complaint should be referred to a National Standards Committee:
(a) The complaint is likely to involve the investigation in two or
more localities in New Zealand;
(b) It is appropriate to do so in order to avoid a conflict of
interest which would or might exist if the complaint was referred
to a Local
Standards Committee;
(c) The complaint is of such complexity or is on such a scale that its
resolution is likely to be facilitated by referring
it to the National Standards
Committee;
159 Practice Note, cl 1.1.
(d) The subject-matter of the complaint is of significant public
interest or is of importance to the legal profession nationally;
and/or
(e) It is desirable to do so in the public interest or in the
interests of the parties.
Apart from the circumstances in which complaints or matters are referred to
it, the functions, powers and procedures of National Standards
Committees are
the same as those of Local Standards Committees. The National Standards
Committee may also investigate matters
of its own-motion where the matter is not
already under investigation by a Local Standards Committee.
2.11 Finally in this chapter, once a Standards Committee is notified
of a complaint and the investigative or analytical process have started, the
complaint cannot
be referred to another Standards Committee. The same applies to
own motion investigations. The only exception is where the Board
may need to
direct the referral of a complaint or matter, currently in the hands of a Local
Standards Committee, to the National
Standards Committee. This is likely to be
very rare since it is the responsibility of the Complaints Service to identify
matters
warranting referral to a National Standards Committee, wherever
possible, before they are referred to a Local Standards Committee.
In those
rare circumstances, the National Standards Committee would be required to
begin the investigation afresh.
(emphasis added)
[99] The Practice Note also summarises steps to be taken after a complaint has been received and a Standards Committee has decided to inquire into it. Clauses
7.12 and 7.13 state:
7.12 Because there are a number of possible directions that might be
followed in undertaking an inquiry, and powers that
might be invoked,
it will be helpful to summarise the steps to be taken after a complaint has been
received and a decision has
been made to inquire into it, assuming the Standards
Committee is satisfied that the particulars of the complaint have been
notified to the lawyer in writing with a request for a response:
(a) In addition to the lawyer’s initial response,
further explanations or responses may be sought from
the complainant or the
lawyer, or both, in writing;
(b) The Standards Committee may direct the parties to explore the
possibility of resolving the differences between them by
means of alternative
dispute resolution procedures;
(c) If necessary, the Standards Committee may request the lawyer to appear before it to answer the complaint in person and may also require the lawyer to provide specified information;
(d) The Standards Committee should consider whether any special
investigative powers are required, either because the
lawyer is resisting a
request or because information is required from a bank or other source of
information. In such cases an
investigator should be appointed in writing
and instructed as to the subject-matter and timing requirements for his or her
investigation;
(e) It will also be necessary to consider whether the investigation would be assisted by formally receiving evidence from the complainant or the lawyer, or any other person, either by affidavit or in person. If evidence is to be heard in person, a meeting should be convened for that purpose;
(f) Once all the evidence and information is gathered from the
available sources a report should be prepared for the Standards
Committee by the
person or sub-committee delegated with responsibility to undertake the
investigation;
(g) The Standards Committee should then meet to consider
whether the investigation is complete and, if it is, whether
any further
action is warranted at all or, alternatively, whether it should proceed to
a hearing; and
(h) The parties should be notified of that decision and, if there is
to be a hearing, they must be given a reasonable opportunity
to provide
submissions in writing.
7.13 It should be noted that the written submissions requested for the
purpose of the hearing are in addition to the complaint
itself and the initial
response from the lawyer. Standards Committees must exercise judgment
about the scope of the submissions
requested for the hearing and whether they
should be concerned only with issues of culpability or should also address
issues of penalty,
costs and publication. The emphasis on speedy and
efficient complaints procedures means that the prospect of multiple hearings in
relation to individual
complaints will be burdensome. However, Standards
Committees must be alert to the possibility of staged submissions where the
interests
of justice require it.
(emphasis added)
[100] In relation to the interaction between a Standards Committee
and the
Tribunal, the Practice Note states:
14.4 The Disciplinary Tribunal is constituted in ss226–252 of the Act.
The first point of contact between a Standards Committee and the
Disciplinary Tribunal is where a Standards Committee has completed the hearing and has decided to refer the matter on, by way
of one or more disciplinary charges. In those circumstances, the
Standards Committee must “...frame an appropriate charge and lay it before the Disciplinary Tribunal by submitting it in writing to the
chairperson to the Disciplinary Tribunal. Standards Committees
should take legal advice at this point, concerning the form and substance of the
charge or charges. A charge must assert misconduct or one of the other
grounds under which charges may be brought before the Disciplinary Tribunal
under
s241.
14.5 Those grounds include circumstances of repeat negligence or
incompetence, as discussed earlier, and the situation where a lawyer has
been convicted of an offence punishable by imprisonment where that conviction
reflects on the person’s fitness to practise or tends to bring the legal
profession into disrepute.
...
14.7 Having referred a matter to the Disciplinary Tribunal by
laying charges, the prosecuting Standards Committee will
continue to have
responsibility for the progress of the prosecution through to its conclusion.
Legal counsel can be expected to
report to the Standards Committee at
appropriate intervals throughout that process.
(emphasis added)
[101] The Procedures Manual was issued on 1 August 2008, the date on which
the
2006 Act came into force. It was intended “for use by employees of
the NZLS Complaints Service throughout New Zealand”,
with the
“purpose [of ensuring] both the consistency and quality of the complaints
service and to assist in the working and
operation of Part 7” of the 2006
Act.160
[102] Mr Orlov referred to some provisions of the Procedures Manual which,
he contended, advanced his claims. I set out what I
perceive to be the main
provisions on which he relied:
3.3 Own motion investigations
Any information received other than by way of a written complaint may form
the basis for an own motion investigation by the Standards
Committee. Such
matters will arise from a number of sources such as 0800 calls that do not
result in a written complaint, reports
in the newspaper or on television,
confidential lawyer reports under Rules 2.8, 2.9 or 2.11 [Rules of Conduct and
Client Care for
Lawyers] or from NZLS Inspectorate reports.
When such a matter arises a summary of the issues will be prepared and put
before the Standards Committee with a recommendation that
an own motion
investigation be initiated under s 130(c). A resolution will be
required.
160 Procedures Manual cl 1.1.
Once an appropriate resolution has been passed the complaint should be
processed in the usual manner with full particulars of the
matters of concern
being provided to the lawyer with a request for submissions.
...
3.6 Inquiring into a complaint
An inquiry into a complaint will have to be more thorough and detailed than may have sometimes been the case when handling complaints under the [1982 Act]. This is because of the powers now available to a Standards Committee which must be exercised carefully taking into account all relevant material and also the requirement to provide more comprehensive decisions.
If the Standards Committee has decided to inquire into a complaint the
following steps should be taken.
1. Write to complainant advising that the complaint is being inquired
into setting out the procedure that the Standards Committee
is to adopt and the
likely timeframe. At this stage if the complainant has not already received a
copy of the longer brochure a
copy should be included with your letter.
2. If the complaint appears to be incomplete request any missing
information without delay.
3. Send particulars of the complaint to the lawyer and invite a
written response (s 141).
This step may have already been covered pursuant to Regulation 9 (See 3.1
above). It will usually be sufficient to copy the complaint
form or letter to
the lawyer with a covering letter. A High Court decision has, however, said
that this may be insufficient if the
letter is a lengthy one. In such a case
the [Complaints and Standards Officer] will be required to identify separately
the particulars
of the complaint intended to be considered in a manner that will
enable the practitioner to give an explanation in response to the
identified
complaints.
4. If the complaint concerns an employee, a copy of the letter to the
employee must also be sent to the principal or director
of the firm unless there
are special circumstances that make it inappropriate to do so.
5. A response should be requested from the lawyer within fourteen
days with the possibility of an extension being granted
on request if there are
reasonable grounds. The lawyer must be told that any response will be copied
to the complainant.
6. Requests for extension will be a matter for the discretion of the [Complaints and Standards Officer] bearing in mind the statutory obligation to progress the investigation as soon as practicable. It should only be in exceptional circumstances that lengthy extensions are granted.
7. The Standards Committee can request that specified information be
supplied to it in writing (s 141(c)).
8. If there is no reply by the due date a follow up letter should be
sent immediately requesting a response within
seven days. A
[Complaints and Standards Officer] may want to use a bring up system to provide
an alert when no response
has been received if handling a large number of
complaint files.
There is no requirement for the lawyer to provide a written explanation and
it may be that if nothing is received either the complaint
proceeds on the
available information or the lawyer is required to appear before the Standards
Committee to provide an explanation
(s 141(b)). If the lawyer fails to appear
there is no direct statutory consequence but the Standards Committee may regard
it as
unsatisfactory conduct or possibly misconduct with certain
consequences.
3.6.1 Further investigations
At any stage of the investigation the [Complaints and Standards Officer] or
the Standards Committee will need to consider whether
any special investigative
powers should be exercised and whether an investigator should be appointed (see
3.8 and 3.9 below).
Consider also whether any additional evidence is required from the
complainant or the lawyer either by affidavit or in person. If
evidence is to
be heard in person a meeting will need to be convened for this purpose and
appropriate records be kept of the meeting.
...
4.5.1 Minutes
A Standards Committee must cause full and accurate minutes to be kept of
the proceedings of each meeting which minutes must record
all decisions reached
and orders made at the meeting (Reg 26(5)). This will be carried out by the
[Complaints and Standards Officer].
The minutes and agendas should be retained in files for easy accessibility
and/or an extract placed on each individual file
or scanned into the
complaints database.
It is possible that copies of the Minutes may have to be provided to
either the complainant or lawyer so care should be taken to ensure
that
discussions and minutes recorded are objective and professional in tone and
content.
...
5.2 Complaints and disciplinary history
The complaints and disciplinary history of a lawyer should be provided to the Standards Committee once it has formed a view that the complaint or own motion inquiry was justified. This is to assist in deciding on penalty.
When the complaint is similar to earlier complaints (or
earlier unsatisfactory conduct findings) the Standards Committee
may consider it
warrants a harsher penalty or referral to the Disciplinary Tribunal.
You will be able to access this information from the system your district
currently uses up until 1 August 2008. After that date
you will need to
compile the report from a combination of your district records and from the new
national complaints and disciplinary
database until such time as the records are
accessible from the one place.
.... (my emphasis)
7. Approach to determination
[103] There seems to be no way in which the issues raised can be addressed,
other than on a complaint by complaint basis to determine
whether particular
allegations can be sustained. This is because the 2006 Act focuses on
individual complaints, whether initiated
by a Standards Committee’s own
motion or by a third party.
[104] Section 152(1) speaks of the Standards Committee having “both [inquired] into a complaint and [conducted] a hearing with regard to that complaint” and s 152(2)(a) refers to a determination that is referable to the specific complaint. That approach is consistent with the notion that the practitioner is given notice of the particular complaint and provided with the opportunity to comment on it before, following a hearing on the papers, the Standards Committee determines what to do
under s 152(2).161 It is also consistent with the
Committee’s powers to impose
penalties if it finds “unsatisfactory conduct”
proved.
[105] Section 156(1) refers back to a determination under s 152(2)(b) in relation to the relevant complaint and the orders specified within s 156(1) each concern a relevant complaint and refer to the relevant complainant. There is nothing in the
2006 Act to prevent (and the Practice Note contemplates)162 a
complaint based on
“repeat negligence or incompetence” being pursued as a single complaint of the Committee’s own motion. But, unless that is done, any analysis of decisions reached by a Standards Committee must focus on what was done in relation to a particular
complaint. For that reason, any issue arising out of the threshold
requirement to
161 Section 152 is set out at para [54] above.
162 Practice Note, cl 14.5, set out at para [100] above.
refer to the Tribunal must be determined by reference to the particular
complaint in issue.
8. The s 356 committee
[106] Only one charge has been brought as a result of a decision made by
the s 356
Committee.163 It alleges that Mr Orlov was guilty of “misconduct in his professional capacity” when he swore an affidavit in the District Court at Whangarei on 27
September 2007. That is a date that precedes the time at which the 2006 Act
came into force, meaning that the express threshold in
the 1982 Act
applies.164
[107] The nub of the charge is that he deposed as to circumstances in which
a claim was filed in the wrong District Court by falsely
blaming another
practitioner, Mr Patterson. The charge concludes by stating:
1.3 By his false affidavit, Evgeny Orlov without good cause alleged
improper conduct by and attacked the reputation of Christopher
Patterson, in
breach of rules 8.03 and/or 8.04 of the Rules of Professional Conduct for
Barristers and Solicitors (adopted by the
NZ Law Society with effect from 1
March 1990 to 31 July 2008 – hereafter “the Rules of Professional
Conduct”).
1.4 By his false affidavit, Evgeny Orlov breached his over-riding duty
to the Court, in breach of rule 8.01 of the
Rules of Professional
Conduct.
[108] While a number of grounds are advanced to attack the decision to refer this conduct to the Tribunal, there is one to which I specifically refer. Mr Orlov alleges that the decision was primarily the result of ongoing bias towards Mr Orlov held by members of the s 356 Committee who had previously been members of the Complaints Committee 2 involved in the Godinet incident.165 In particular, Mr Laubscher’s and Mr Heyn’s positions and history of dealings with Mr Orlov placed them in a conflict of interest. Mr Orlov asserts that Mr Laubscher, who was at
the same time fulfilling the role of Secretary of the Committee and
Professional
163 See Charge 1, set out at para [11](a) above.
164 See para [27] and [38] above.
165 The background involving the “Godinet” incident is summarised at para [109] below.
Standards Director was acting with actual and apparent bias and should not
have taken part in the hearing.
[109] The “Godinet incident” occurred on 14 October 2008. At
that stage the Auckland District Law Society’s
Complaints Committee No 2
was meeting to consider a complaint by Mr Patterson against Mr Orlov. Mr Orlov
had expressed an intention
to attend the meeting and appear before the
Committee. After waiting outside for some time, Mr Orlov entered the room of
his own
accord. An exchange took place, involving Mr Orlov, Mr Godinet (who was
a member of the Committee and then Vice President of the
Auckland District Law
Society) and several other Committee members. Mr Orlov was asked to leave. He
did so, eventually, under escort
from members of the Police. While no charges
were brought against Mr Orlov as a result of this incident, it is clear that
what
happened has fuelled Mr Orlov’s concerns about the way in which
he has subsequently been treated by various Standards
Committees.
[110] In my view, the allegations of bias fail for reasons given earlier.166 The real question is whether the evidence before the s 356 Committee was sufficient to support a charge of sufficient seriousness to justify reference to the Tribunal. Notwithstanding Mr Orlov’s submissions, I am satisfied that it was. If the Tribunal were to believe Mr Patterson’s account of events (and that is a question for it), swearing a false affidavit to deflect blame onto another person could amount to misconduct in a professional capacity. Any suggestion that the interests of justice may be suborned by such conduct is serious. The swearing of an affidavit designed to mislead the Court is likely to be regarded as disgraceful or dishonourable by
lawyers of good standing.167
[111] I make it clear that I do not make any finding about the merits of the complaint. Mr Orlov has offered defences that may or may be accepted by the Tribunal. The point is that Parliament has decided that the Tribunal (not this Court)
is the appropriate body to determine such
complaints.
166 See para [94] above.
167 Lawyers and Conveyancers Act 2006, s 7(1)(a); set out at para [44] above.
[112] While I have not accepted Mr Orlov’s complaints about process
in relation to this charge, I would have refused relief
in any event because the
substance of the allegation in issue is of sufficient gravity to justify
consideration by the Tribunal.
On those grounds, I would have exercised my
discretion not to grant relief.
9. The No 1 Committee
[113] The No 1 Committee has laid 12 charges before the Tribunal.168
Taking account of alternative charges, the incidents on which the 12
charges have been brought reduce to nine. They relate to discrete
incidents and
do not purport to allege either misconduct or unsatisfactory conduct on a
“serial” basis.
[114] Some of the charges are laid in the alternative, providing an option for the Tribunal to find that what was done was either misconduct or unsatisfactory conduct. The opportunities given to Mr Orlov to respond to the complaints were directed at each particular complaint, rather than to their combined effect. That being so, the question whether they were of sufficient seriousness to justify referral to the Tribunal
must be determined on a complaint by complaint basis.169 Some
of the conduct in
respect of which charges were brought by the No 1 Committee arose out of
“own motion” investigations.
[115] Mr Orlov raises concerns about the “own motion” process.
In particular, he contends that such investigations
were initiated contrary to
established procedures. Under those procedures counter-complaints were not to be
opened until the initial
complaint was determined.
[116] Further, Mr Orlov contends that some “own motion” decisions to investigate were contrary to the purposes of the 2006 Act, in that the complainant had no interest in the alleged breaches. There are also challenges to the merits of some of the
decisions to refer conduct to the Tribunal, largely on grounds of
unreasonableness.170
168 See Charges 2–13, set out at para [11](b)–(m) above.
169 Lawyers and Conveyancers Act 2006, s 152(2)(a), set out at para [54] above.
[117] I do not need to address
all of Mr Orlov’s concerns. Primarily, the challenges to the decisions of
the No 1 Committee
turn on whether the particular complaints were sufficiently
serious to meet the threshold for referral to the Tribunal. In my view,
most
of the charges brought at the instigation of the No 1 Committee were not, on the
threshold test that I have articulated.171
[118] In reaching that view, I have had regard to the penalties that could have been imposed respectively by the No 1 Committee and the Tribunal. It would have been open to the No 1 Committee, on finding that the complaint revealed “unsatisfactory conduct” on the part of the practitioner, to exercise powers conferred by s 156(1) of the 2006 Act. In the circumstances of this case, it could have made orders (a) censuring or reprimanding Mr Orlov,172 (b) requiring Mr Orlov to apologise to the
complainant,173 (c) requiring payment of compensation, if
satisfied that any person
had suffered loss by reason of any of Mr Orlov’s acts or
omissions,174 (d) requiring Mr Orlov to refund any fees, if the
complaint related to work done for a client,175 (e) requiring him to
pay a fine not exceeding $15,000,176 or (f) requiring him to pay
costs and expenses.177 Any order made under s 156(1) could be made
on such terms and conditions as the Committee thought
fit.178
[119] In contrast, the Tribunal, if making a finding of either unsatisfactory conduct or misconduct, could have made other orders, such as: (a) striking him off the roll of barristers and solicitors,179 (b) suspending him from practice for a period not
exceeding three years180 or (c) prohibiting him from practising
on his own account
until authorised by the Tribunal to do so.181
Section 244 of the 2006 Act creates
on the analysis under taken by the late Professor Taggart, the basis for many of his claims are reflected in the learned article. I have found the article instructive.
171 See paras [79] and [80] above.
172 Lawyers and Conveyancers Act 2006, s 156(1)(b).
173 Ibid, s 156(1)(c).
174 Ibid, s 156(1)(d).
175 Ibid, s 156(1)(e), (f) and (g).
176 Ibid, s 156(1)(i).
177 Ibid, s 156(1)(o).
178 Ibid, s 156(3).
179 Ibid, s 242(1)(c).
180 Ibid, s 242(1)(e).
181 Ibid, s 242(1)(g). Relevant portions of s 242 are set out at para [75] above.
further thresholds before an order striking a practitioner from the roll or
suspending him from practice can be made.182
[120] In my view, eight of the charges brought by the No 1 Committee that
could not, as a matter of law, be characterised as misconduct
justifying
prohibition, suspension or striking off do not meet the threshold test. The
alternative charges based on unsatisfactory
conduct should not go to the
Tribunal either, because such conduct is capable of being determined adequately
at the Standards Committee
level.
[121] In my view, of the 12 charges laid by the No 1 Committee, the
following are not of sufficient seriousness to justify consideration
by the
Tribunal:
(a) Charge 2: an allegation of misconduct based on failure to provide a
file to the s 356 Committee.183
(b) Charge 3: an allegation of misconduct based on failure to
follow instructions to file a defence in a timely
fashion.184
(c) Charge 4: an allegation of misconduct based on continuing to act as
counsel in proceedings in which his conduct as
counsel was in
issue.185
(d) Charge 5: an allegation of unsatisfactory conduct, brought as an
alternative charge, based on the facts alleged to support
Charge
4.186
(e) Charge 8: an allegation of unsatisfactory conduct based on continuing to act as counsel when it ought to have been apparent to him that the
High Court might decline to hear argument from him on issues
arising
182 Ibid, ss 242(2) and 244(1), (2)(a) and (c) and (3). Section 244 is set out at para [76] above.
183 See para [11](b) above.
184 See para [11](c) above.
185 See para [11](d) above.
186 See para [11](e) above.
out of an affidavit he had sworn about his conduct in a District Court
proceeding.187
(f) Charge 9: an allegation of misconduct based on an alleged breach of
the intervention rule.188
(g) Charge 10: an allegation of unsatisfactory conduct based on alleged
incompetence as counsel.189
(h) Charge 11: an allegation of misconduct based on his instruction to
a barrister’s clerk to take an affidavit in habeas corpus
proceedings, when she was not authorised by law to do
so.190
(i) Charge 12: an allegation of unsatisfactory conduct, brought as
an alternative charge, based on the facts alleged to
support Charge
11.
(j) Charge 13: an allegation of unsatisfactory conduct based
on his conduct of a habeas corpus application.191
[122] Taken individually, none of those charges could reasonably be
expected to result in the Tribunal imposing a penalty that could
not have been
imposed by the Standards Committee.
[123] Charges 6 and 7 fall into a different category.192 If proved, Mr Orlov instituted proceedings in the Court of Appeal without instructions from a client, thereby putting his client at risk of an order for costs. In my view, if proved, such conduct could be sufficiently serious to justify consideration of (at least) prohibition
or suspension.
187 See para [11](h) above.
188 See para [11](i) above.
189 See para [11](j) above.
190 See para [11](k) and (l) above.
191 See para [11](m) above.
192 See para [11](f) and (g) above.
[124] The charges that I have held are insufficient to go to the Tribunal
all involve questions of judgment about the way in which
certain proceedings
were conducted by Mr Orlov. They tend to reflect alleged carelessness or
negligence, rather than recklessness
or deliberate conduct. In the former
case, it seems to me that the Standards Committee is the appropriate body to
determine whether
there is unsatisfactory conduct and to impose an appropriate
response.
[125] In relation to the allegation of filing an appeal without instructions, I am satisfied that Mr Orlov was sufficiently informed of the particulars of the complaint against him, and had adequate opportunity to respond to the allegation before the No
1 Committee made its decision. There is no indication of bias or bad faith
on the part of the No 1 Committee in making that decision.
It is one that was
open to it having regard to the seriousness of the complaint.
[126] Although there was no oral hearing, the presumptive position is that
a hearing on the papers is adequate.193 There was no breach of the
principles of natural justice, so far as this decision was
concerned.
10. The National Standards Committee
(a) Establishment of the National Committee
[127] The eleven charges laid by the National Committee have been
set out earlier.194 They arose out of the National
Committee’s receipt of all complaints made to the Complaints Service about
Mr Orlov that had
not previously been the subject of a decision by either the
Section 356 or the No 1 Committee.
[128] These complaints were transferred to the National Committee for investigation and completion as a result of a resolution passed by the Board of the Society, on 1 April 2010. Following discussion of the issue at a teleconference, the
Board resolved:
193 Lawyers and Conveyancers Act 2006, s 153(1). See also para [54] above.
194 See para [12] above.
The Board considered this matter in committee. RESOLVED: that
- in order to ensure maximum efficiency, speed and economy in the
handling of all complaints submitted to the Lawyers
Complaints Service by or
against the lawyers Evgeny Orlov and [name deleted] and any current own motion
investigations relating
to either of those lawyers, it is resolved that all
existing complaints or own motion files relating to either be transferred to
the
National Standards Committee for investigation and completion;
- this resolution relates to all matters currently with any
Auckland Standards Committee, other than those where a final
decision or
determination has already been made by the relevant committee. It also relates
to any complaints currently with the
Complaints Service but not allocated to a
Standards Committee. Any matters that might arise after the date of this
resolution relating
to complaints by or against Mr Orlov or [name deleted] must
also be referred to the National Standards Committee.
This resolution was made in accordance with paragraphs 2.10 and 2.11 of the
Practice Note concerning the functions and operations of Lawyers Standards
Committees.
[129] Mr Nigel Hampton QC was appointed as Convenor and Chair of the
National Committee, “specifically to deal with matters
referred to
it by the Complaints Service concerning” Mr Orlov and another (or
other) practitioner(s). After considering
documentation forwarded to him, Mr
Hampton wrote, on 21 May 2010, to the Society’s General Manager
(Regulatory), Ms Ollivier,
suggesting “a clear way forward with these
vexed matters”.
[130] Mr Hampton proposed a provisional agenda for a meeting of the
National Committee and attached a fee note. Initially, an indication
that one
of the Committee to hear and determine the complaints was being paid for
services that were, apparently, being rendered
to the Society caused me some
concern. However, it was explained satisfactorily. The Society pays a fee to
the person acting as
Convenor of a National Committee because of the additional
work shouldered by that person. The work undertaken by Mr Hampton was
carried
out in his capacity as Convenor of the National Committee.
[131] In my view, receipt of a fee by Mr Hampton for work undertaken to decide how best the National Committee should approach its tasks did not compromise his
role as a member of a judicial body. Mr Hampton did not assume any
inappropriate role as an advisor to the Society, in conflict with
his judicial
role as Convenor of the National Committee’s functions.
(b) The “own motion” investigations
[132] At a meeting held on 14 June 2010, the National Committee decided to
commence an “own motion” investigation
in relation to
complaints previously before the s 356 and No 1 Committees that had not
previously been determined. Subsequently,
both Mr Orlov and the
complainants were to be advised of the National Committee’s
resolution and invited to make
further submissions or to rely on submissions
previously tendered.
[133] Those complaints that were to form part of the “own
motion” inquiries were those made by Ms Lellman, Harrison
J, Mr Bujak, Mr
Tait, Cooper J and Buddle Findlay. Another “complaint” that had
been referred to the Society’s
President by the then Chief High Court
Judge (Randerson J) was also treated as part of the “own motion”
inquiry.195 The National Committee had previously resolved to
investigate that matter of its own motion, on 23 April 2010.
[134] On 29 June 2010, Ms Ollivier had written to Mr Orlov
stating:
...
2. The Committee passed the following resolution:
That pursuant to section 130(c) of the Lawyers and Conveyancers Act 2006 it
would commence an own motion investigation encompassing the following
files:
File 427: Complaint by Ms Lellman.
File 572: previous own motion by SC 1 (Harrison J). File 1701: Complaint by Mr Bujak.
File 1973: previous own motion by SC 1 (Cooper J).
File 1815: Complaint by Mr Tait.
File 2189: previous own motion by SC 1 (Buddle Findlay).
The Committee was of the view that there are matters, in each of the above
files, that appear to indicate that there may have been
misconduct or
unsatisfactory conduct on your part. The own motion resolution encompasses all
the above 6 files and the Committee
will commence its own investigation
anew.
3. Each of the complainants will be notified of the own motion resolution and will be asked if they wish to add any further comments additional to the materials each of them has already put forward.
4. Pursuant to s.141 of the Act, the Committee invites you to make
written submissions on this own motion investigation and
on each of the 6
individual files now encompassed within the own motion investigation. However
you can, if you prefer, rely on your
previous submissions made on each of those
6 files.
...
6. Could you please file any new submissions by 14 July 2010.
7. I understand that these complaints have been concerning you for
some time and you will be anxious that there is no further
delay. The Committee
hopes to be in a position to conclude the above matters as soon as is
practically possible.
[135] The Committee met again on 20 July 2010. A lay member of the
Committee, Mr Robb, indicated a potential conflict of interest.
The National
Committee determined that “all final decisions reached by the [National]
Committee at its meeting of 14 June
2010 should be rescinded and looked at
afresh”. However, decisions “that were not determinative in any
way such as
those reached pursuant to ss 130 and 137” of the 2006 Act
“will stand”. The Committee resolved:
(a) To hold a hearing into its own motion investigation against Mr
Orlov.
(b) Hold a hearing into the complaint initiated by Randerson J, which had
been treated as an own motion complaint.
There is no evidence of any correspondence immediately after the meeting on
20
July 2010.
[136] A further meeting of the National Committee was held on 11 August
2010 at which time the “own motion” investigation
was set down for
a hearing in Auckland on 16 September 2010. After that meeting, Ms Ollivier
wrote to Mr Orlov (in relation to
the own motion inquiries other than the one
initiated by Randerson J) stating:
At the National Standards Committee (Committee) meeting of 11 August
2010, the Committee set down own motion investigation 3104 for a hearing in
Auckland on 16 September 2010. I enclose the formal Notice
of Hearing.
This own motion investigation is the one you were notified of by the Society’s letter of 29 June 2010 and encompasses the matters formerly contained in files 427, 572, 1701, 1973, 1815, 2189. A copy of our 29 June
2010 letter is attached to enable you to identify the matters that are the
subject of the hearing.
The hearing will be on the papers and you or your counsel can make written submissions. Any submissions are due by 12:00 noon on Friday, 27
August 2010.
The Committee would be prepared to hear you or your counsel in person if this
is your preference. If you wish to be heard in person
please let me know as
soon as possible.
A similar letter was sent to Mr Orlov in relation to the inquiry
initiated by
Randerson J. That too was sent on 11 August 2010.
[137] Two notices of hearing were issued by Ms Ollivier on 11 August 2010.
One related to the general own motion investigation
and the other to the one
initiated by Randerson J. The notices were in material respects, the same. The
one relating to the general
inquiry was expressed in these terms:
Own motion investigation 3104 is to be the subject of a hearing before the National Standards Committee on 16 September 2010. The hearing is to be conducted on the papers, which means the decision will be made on the basis of the evidence and correspondence before the National Standards Committee. You are entitled to make submissions in writing. Those submissions may be made by you or by your legal counsel. Any submissions should be delivered to the National Standards Committee either by post, fax or email, at PO Box 5041, Wellington 6145; Fax: (04) 4632984; Email: mary.ollivier@lawsociety.org.nz, not later than 12 noon on Friday, 27
August 2010 and should address any matters of fact or law you believe should
be taken into account concerning:
(a) The nature of the alleged conduct itself;
(b) The possibility that the National Standards Committee may make a
determination that the complaint or matter, or any issue
involved in the
complaint or matter, be considered by the Disciplinary Tribunal;
(c) The appropriate orders the National Standards Committee may make
under s.156, in the event that there is a finding of unsatisfactory
conduct;
and
(d) The possibility of publication in the event of a
finding of unsatisfactory conduct
[138] A hearing took place on 16 September 2010, from 2pm until 6pm. With
the National Committee’s approval, Mr Orlov attended
the meeting in
person, with a support person, from 3pm until 5pm. Apparently, what passed
between the Committee members and Mr
Orlov was recorded on audiotape but neither
party adduced that in evidence before me.
[139] The Committee concluded that conduct that had occurred before 1
August
2008 was of sufficient gravity to have justified disciplinary proceedings
under the
1982 Act. In relation to post 1 August 2008 complaints, it decided to refer
some to the Tribunal and to take no action in respect
of others.
[140] The National Committee’s determination was dated 1 October
2010. While lengthy, it is necessary to set it out in full,
in order to
understand the terms in which the determinations were expressed:
Notice of Determination by National Standards Committee of Own Motion
Investigation 3104 by National Standards Committee against Mr
Evgeny
Orlov
BACKGROUND:
On 14 June 2010 the National Standards Committee (NSC) commenced an own
motion investigation into files concerning Mr Orlov that had
been transferred to
it by Auckland Standards Committee 1 following a resolution of the Board of the
New Zealand Law Society. The
files that formed part of this own motion
were:
a. 1701 Complaint by Mr Bujak b. 427 Complaint by Ms Lellman
c. 572 Own motion investigation by Auckland Standards Committee 1 d. 1815 Complaint by Mr Tait
e. 1973 Own motion investigation by Auckland Standards Committee 1 f. 2189 Own motion investigation by Auckland Standards Committee 1
For ease of reference the different matters making up the own motion are identified below by the number 3104 followed by the previous file number. The previous files were closed pursuant to decisions of the NSC dated 23
August 2010.
HEARING (s152 of the Lawyers and Conveyancers Act 2006) (LCA):
The NSC held a hearing into the own motion investigation on 16 September
2010 at which Mr Orlov appeared in person with a support person, and made submissions supporting and in some respects amplifying his earlier written
materials given to the NSC. The hearing was recorded by both the NSC and
Mr Orlov.
DETERMINATION:
In regard to own motion file 3104 the NSC determined:
1. That the claimed conduct of Mr Orlov in allegedly
receiving payment from the Legal Services Agency while receiving
payments from
his client (3104 formerly 1701 – Bujak) required no further action,
pursuant to s138(2) of the LCA, as, having regard to all the circumstances of
the case, any further action was unnecessary or inappropriate there being
no
evidence that Mr Orlov received additional payments from his client.
The NSC considered the 31 March 2009 transcript of the proceedings Slawomir Bujak v The Solicitor-General SC 64/2008
15 May 2009 and determined that Mr Orlov’s conduct in this case
should be included as part of its determination noted at paragraph 3
below.
2. The conduct of Mr Orlov, in the matter of own motion 3105 (formerly 427 – Lellman), as particularised by Ms Lellman in her letter of complaint dated 18 November 2008, during the [Family Court case] was of sufficient gravity to warrant a disciplinary charge and that pursuant to section 152(2)(a) of the LCA the matter should be considered by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal.
The conduct which occurred prior to 1 August 2008 was considered by the NSC
to be of sufficient gravity that proceedings of a disciplinary
nature could have
been commenced under the Law Practitioners Act 1982 (LPA). Mr Orlov’s
conduct was, in the view of the NSC,
capable of meeting, and (if proven) as
being sufficient to meet, the threshold test for a charge of conduct unbecoming
a barrister
or solicitor (LPA) and/or unsatisfactory conduct (LCA).
3. That Mr Orlov’s conduct as demonstrated in the cases listed below illustrated a pattern of incompetence in Mr Orlov’s professional capacity of such a degree or so frequent as to reflect on his fitness to practise or as to bring his profession into disrepute and that pursuant
to s152(2)(a) of the LCA the matter should be considered by the
New Zealand Lawyers and Conveyancers Disciplinary Tribunal.
The matters which occurred prior to 1 August 2008 were considered by the NSC
to be of sufficient gravity that proceedings of a disciplinary
nature could have
been commenced under the LPA.
Any cases which have already been dealt with by the Lawyers Complaints
Service or are already the subject of disciplinary charges
have been
excluded.
3104(formerly 1701 Bujak)
Slawomir Bujak v The Solicitor-General SC 64/2008 15 May 2009.
3104(formerly 427 Lellman)
[the Family Court case]
43104(formerly 572 SC1-Harrison J)
RL and Anor v CEO Ministry of Social Development and Ors HC AK CIV
2007-404-7031 24 July 2008, 13 October 2008.
3104(formerly 1973 SC1-Cooper J)
ANZA Distributing (NZ) Limited (In Liquidation) v USG Interiors
Pacific Limited HC AK CIV 2007-404-003474 3 November 2010.
ANZA Distributing (NZ) Limited (In Liquidation) v USG Interiors
Pacific Limited HC AK CIV 2007-404-003474 18 September 2010.
ANZA Distributing (NZ) Limited (In Liquidation) v USG Interiors
Pacific Limited HC AK CIV 2007-404-003474 20 November 2009.
3104(formerly 1815 Tait)
Banks v The Attorney General HC WN CIV 2006-485-002017 19
August 2009.
E Orlov v Ministry of Justice & Attorney General HRRT 09/09 21
July 2009.
RIG v Chief Executive Officer Ministry of Social Development and
Anor HC AK CIV 2008-404-004975 27 July 2009.
The Order of St John Northern Regional Trust v Gemini 10 Limited and Ors
HC AK CIV 2002-404-1559 2 July 2009.
The Order of St John Northern Regional Trust v Gemini 10 Limited and Ors
HC AK CIV 2002-404-1559 25 August 2009.
Hendrick Jan Eggnink and Ors v Ponniah Family Trust HC AK CIV
2005-404-001191 24 November 2005.
3140(formerly 2189 SC1-Potter J and Christiansen AJ)
Wesley Johjn Liddle and Astrid Anna Liddle and Ors v Bank of New
Zealand and Anor hC AK CIV 2009-404-6189 29 October 2009.
Bank of New Zealand v Wesley John Liddle and Astrid Anna Liddle
HC AK CIV 2009-404-006254 30 November 2005.
Appropriate charges will be framed and served as soon as practicable.
ENTITLEMENT TO REVIEW BY LEGAL COMPLAINTS REVIEW OFFICER
(LCRO):
All parties to whom this notice is addressed are entitled to apply to the
LCRO for a review of this decision. On review, the LCRO may:
(i) Direct the Standards Committee to reconsider the whole or any part of the
complaint; or
(ii) Confirm, modify or reverse the decision of the Standards
Committee; and
(iii) Exercise any of the powers that could have been exercised by the
Standards Committee in relation to this complaint.
Any application for a review of this decision by the LCRO must be made within
30 working days after the date of this decision. An
application for review must
be on the prescribed form and accompanied by the prescribed fee of
$30.67.
The LCRO may be contacted by:
...
[141] A similar determination was made in respect of the inquiry initiated by
Randerson J. That determination was also dated 1 October 2010 and read:
Notice of Determination by National Standards Committee of Own Motion
Investigation 2604 by National Standards Committee against Mr
Evgeny
Orlov
BACKGROUND
On 18 December 2009 the New Zealand Law Society (Society) received a letter
from Justice Randerson in his then capacity as the Chief
High Court Judge of New
Zealand.
Justice Randerson expressed concern that Mr Orlov had alleged that Justice
Harrison was biased against him, such allegations having
been made in a number
of fora such as: the High Court, the Court of Appeal, the Supreme Court, the
Human Rights Tribunal, and the
Office of the Judicial Conduct
Commissioner.
Justice Randerson was concerned that such conduct appeared to illustrate that Mr Orlov had engaged in a pattern of persistent, wide-ranging and disgraceful allegations against Justice Harrison, without foundation.
Justice Randerson attached to his letter the judgments and decisions he
referred to. He also briefly commented on them.
OWN MOTION:
On 23 April 2010 the National Standards Committee (Committee) resolved to
inquire into the matters described by Randerson J, pursuant
to s 130(c) of the
Act.
HEARING (s 152 of the Lawyers and Conveyancers Act 2006):
The Committee held a hearing into the own motion investigation on 11
September 2010 at which Mr Orlov appeared in person with a support person, and made submissions supporting and in some respects amplifying
his earlier written materials given to the Committee. The hearing was
recorded by both the Committee and Mr Orlov.
TRANSITIONAL MATTER:
Some aspects of the own motion investigation concerned behaviour that occurred prior to the implementation of the Lawyers and Conveyancers Act
2006 (LCA) and these aspects are subject to the transitional provisions of the
LCA.
DETERMINATION:
The matters which occurred prior to 1 August 2008 were considered by the NSC
to be of sufficient gravity that proceedings of a disciplinary
nature could have
been commenced under the Law Practitioners Act 1982 (LPA).
The Committee determined that the intemperate and persistent manner in which
Mr Orlov had made complaints against Harrison J was capable
of meeting, and (if
proven) sufficient to meet, a threshold test of misconduct, as defined by s
7(1)(b)(ii) of the LCA, and pursuant
to s 152(2)(a) of the LCA determined that
the matter be considered by the New Zealand Lawyers and Conveyancers
Disciplinary Tribunal.
Appropriate charges will be framed and served as soon as practicable.
ENTITLEMENT TO REVIEW BY LEGAL COMPLAINTS REVIEW OFFICER
(LCRO):
All parties to whom this notice is addressed are entitled to apply to the
LCRO for a review of this decision. On review, the LCRO may:
(i) Direct the Standards Committee to reconsider the whole or any part of the
complaint; or
(ii) Confirm, modify or reverse the decision of the Standards
Committee; and
(iii) Exercise any of the powers that could have been exercised by the
Standards Committee in relation to this complaint.
Any application for a review of this decision by the LCRO must be made within
30 working days after the date of this decision. An
application for review must
be on the prescribed form and accompanied by the prescribed fee of
$30.67.
[142] I am satisfied that Mr Orlov was given proper notice of the
allegations set out in the various determinations and had an opportunity
to be
heard both in writing and in person on them. In such circumstances, the
National Committee complied with the principles of
natural justice in conducting
its judicial role.
(c) The “own motion” investigations: threshold
issues
[143] I emphasise again that it is not my function to determine whether Mr Orlov has any defence to the charges that have been laid by the National Committee. Parliament has specifically left that task with the Tribunal established under the 2006
Act. That means that the remaining question for me is whether, if the
allegations were proved, they meet the threshold requirement
for reference to
the Tribunal.
[144] The relevant charges can be divided into three
categories:
(a) Allegations that Mr Orlov made scandalous and false
allegations against judicial officers that amount to misconduct
on the grounds
either that “lawyers of good standing [would regard them] as
disgraceful196 or dishonourable”197 or demonstrate
that Mr Orlov “is not a fit and proper person or is otherwise
unsuited” to be in practice as a lawyer.
Charges 1, 2, 3, 4, 5, 6, 7 and
8 fall into this category.198
(b) An allegation that Mr Orlov was guilty of misconduct in his professional capacity by making false allegations in submissions in the Family Court case and in seeking opposing counsel in that case to
be held in contempt. This category relates to charges 9 and
10.
196 Lawyers and Conveyancers Act 2006, s 7(1)(a)(i).
197 Ibid, s 7(1)(b)(ii).
198 See para [12] above.
(c) Allegations of “serial negligence or incompetence” arising
out of a
number of cases in which Mr Orlov was involved between 1 January
2007 and 31 December 2009. The National Committee asserts that this conduct was of such a degree and/or so frequent as to reflect upon Mr Orlov’s fitness to practice or to bring the profession into disrepute. The charge of serial negligence or incompetence is set out in charge
11.
[145] The allegations that are referable to alleged scandalous and false
allegations against a judicial officer relates to proceedings
in which Mr Orlov
appeared as counsel before Harrison J, in the High Court. Some of the charges
arose out of particular complaints;
another arose out of correspondence received
by the President of the Society from the then Chief High Court Judge, Randerson
J.
[146] The charges of false and scandalous conduct are based on alleged
breaches of Mr Orlov’s overriding duty as an officer
of the High Court and
rr 2.1 and 13.2 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client
Care) Rules 2008 (the Client Care Rules):
2.1 The overriding duty of a lawyer is as an officer of the court.
...
13.2 A lawyer must not act in a way that undermines the processes of the
court or the dignity of the judiciary.
13.2.1 A lawyer must treat others involved in court processes with
respect.
...
[147] A lawyer owes obligations, as an officer of the High Court, that transcend duties owed to clients. For example, when bringing a without notice application, the duty of counsel is to certify to the Court, not to the opposing party.199 Among the
particular obligations owed to the Court are ones that require the
practitioner:
199 Todd v Hillary HC Auckland CIV-2005-412-294, 15 June 2007 at [116], citing Digital
Equipment Corporation v Darkcrest Ltd [1984] 1 Ch 512 at 524 per Falconer J.
(a) To act with the utmost honesty to the Court and not
mislead or deceive the Court.200
(b) Not to act in a manner that undermines the administration
of justice.201 The obligation on counsel of “fearless
conduct” is “subject to the overriding obligation to the Court and
avoidance
of contempt”.202
(c) To bring relevant points of law to the attention of the Court, even
if the point is against the interests of his or her
client.203
(d) To refrain from attacking a person’s reputation without good
cause.204
[148] A helpful summary of relevant principles can be found in R v
Huang.205 The
Court of Appeal said:
[47] As Mr Grieve submitted, counsel have an overriding duty to the
Court, stated in the following terms by Lord Reid in Rondel v Worsley
[1969] 1 AC 191 at 227 (HL):
Every counsel has a duty to his client fearlessly to raise every issue,
advance every argument, and ask every question,
however
distasteful, which he thinks will help his client’s case. But, as an
officer of the court concerned in the administration
of justice, he has an
overriding duty to the court, to the standards of his profession, and to the
public, which may and often does
lead to a conflict with his client’s
wishes or with what the client thinks are his personal interests. Counsel must
not mislead
the court ...
[48] Further, r 8.01 of the Rules of Professional Conduct for Barristers
and Solicitors (6ed 2000), (now superseded but in force
at the relevant
time):
201 For example, Solicitor-General v Miss Alice [2007] NZHC 48; [2007] 2 NZLR 783 (HC) at para [29].
202 Ibid, at para [40], with reference to r 8.01 of the Rules of Professional Conduct for Barristers and
Solicitors, then in force. See also para [151] below.
204 The Client Care Rules, r 13.8. See also Gazley v Wellington District Law Society [1976] 1 NZLR
452 (SC) at 454, affirmed in New Zealand Social Credit Political League Inc v O’Brien [1984] 1
NZLR 84 (CA) at 96.
205 R v Huang [2009] NZCA 527 at [47]–[50].
In the interests of the administration of justice, the overriding duty of a
practitioner acting in litigation is to the court or the
tribunal concerned.
Subject to this, the practitioner has a duty to act in the best interests of the
client.
[49] Counsel take an oath on admission, where they swear truly and
honestly to conduct themselves in the practice of a barrister
and solicitor
according to the best of their knowledge and ability. It is a fundamental duty
of counsel in terms of this oath not
to mislead a Court.
[50] As Mr Grieve submitted, the duty to the law and the Court are
fundamental ethical obligations, the existence of which courts
are entitled to
assume counsel is aware. Counsel is always on notice as an officer of the Court
that these obligations must be met
and, by extension, counsel must be taken as
being aware that any breach of these duties could be the subject of comment by
the Court.
[149] The Court’s inherent jurisdiction to supervise the conduct of
its practitioners extends to intervention when it appears
that the conduct of
counsel outside the Court may have a bearing on the conduct of a case.206
The obligations owed by counsel to the Court can form the basis for an
order that costs be paid personally by a practitioner who has
breached an
obligation.207
[150] The charges involving the Family Court case emanated from a complaint
made by opposing counsel, Ms Lellman. No less than
10 particulars are given
alleging misconduct on the part of Mr Orlov while acting in this proceeding.
Among other things, the particulars
assert that Mr Orlov breached rr 8.01 and
8.04 of the Rules of Professional Conduct for Barristers and Solicitors. Those
allegations
are based on the proposition that Mr Orlov, acting as counsel,
attacked another’s reputation without good cause.
[151] The charge of serial negligence or incompetence is based on some 10 different cases. The allegations include: calling evidence and conducting cross- examination on irrelevant issues; raising meritless points about the failure of opposing counsel to give proper discovery; making unfounded allegations against
opposing counsel in relation to particular claims (one allegation made
by Mr Orlov,
206 Kooky Garments Ltd v Charlton [1994] 1 NZLR 587 (HC).
in the course of one
case, that the plaintiff had “waged a concerted campaign of interlocutory
warfare that simply was not able
be resisted by the defendants due to
impecuniosity”); advising the Court that he could no longer appear
“for financial
reasons” without first seeking leave to withdraw and
making allegations in a discursive and incoherent statement of claim,
“without any proper evidential or legal foundation”.
[152] I am satisfied that, if the primary facts on which the particulars
are based were proved, the allegations of making “scandalous
and
false” allegations against Harrison J could amount to misconduct that
would justify either striking off or suspension.
While there is no doubt that
Mr Orlov had the right to make a complaint to the Judicial Conduct Commissioner
(as he did on 11 February
2009)208 about Harrison J, the issue
concerns the (allegedly) intemperate and scandalous way in which the complaint
was expressed.
[153] Scandalous or false allegations against a Judge (in his or her
capacity as such) strike at the very heart of the judicial
system and the rule
of law. The Tribunal would be entitled to find that Mr Orlov had expressed views
in intemperate tones which infringed
the basic obligation of lawyers to
respect judicial institutions. While Mr Orlov might well regard his conduct
as enhancing
the rule of law, it is a question for the Tribunal to decide
whether he overstepped the mark to such an extent that a finding of
misconduct
is required.
[154] The allegations arising out of the Family Court proceedings are more problematic. Some of the particulars, if proved, could amount to misconduct that would pass the threshold for reference to the Tribunal. Unfortunately, a number of the allegations would require the Tribunal to embark upon a detailed consideration of the conduct of a particular case, even though specific allegations involving the making of false or reckless statements constitute an attack on a person’s reputation without good cause might be sufficient of themselves to pass the threshold. There is
a real risk that it may be oppressive to require Mr Orlov to meet all of
the particulars
208 See para [12](g) above in temperate terms.
in that charge, in their current form, although that may be an issue for the
Tribunal to consider on an appropriate application.
[155] I am satisfied that, viewed as a whole, charges 9 and 10 pass the
threshold for reference to the Tribunal. However, the National
Committee may
wish to reconsider (in light of my comments) the extent of the particulars;
specifically, those relating to the way
in which the case was presented, as
opposed to alleged improper allegations made by Mr Orlov in the process of
it.
[156] Similar comments apply equally to charge 11, the allegation
of serial negligence or incompetence. Of themselves,
particular allegations
may not cross the threshold. However, the Tribunal could conclude, if the
primary facts were established,
that the cumulative effect of particular conduct
was sufficient to justify a finding of misconduct that could lead either to
striking
off or suspension.
[157] While, it is inappropriate for me to review the evidence in detail, I
am bound to say that many of the allegations involve
conduct which, of itself,
would not justify the Tribunal’s involvement and may properly be said to
be allegations that could
be made against many practitioners in the course of
their careers. For example: there will be few practitioners who have never
missed
a deadline for filing documents; there will be few practitioners who
would not have intituled a document incorrectly and, regrettably,
the provision
of prolix pleadings and evidence is not unusual.
11. Conclusions
[158] For those reasons, I hold that:
(a) Charges 1, 6 and 7 of the charges laid by the s 356 Committee and
the No 1 Committee are sufficiently serious to be referred
to the Tribunal.
Charges 2, 3, 4, 5, 8, 9, 10, 11, 12 and 13 are not.
(b) All charges brought by the National Committee are sufficiently serious to be referred to the Tribunal for determination.
(c) In respect of those charges that I find are sufficiently serious to
be determined by the Tribunal, I am satisfied that the
relevant Committee
complied adequately with the rules of natural justice.
[159] Mr Morgan submitted, for the Standards Committees, that I ought not to grant relief on the grounds that Mr Orlov failed to seek review from the Review Officer.209
On balance, I do not consider that Mr Orlov’s failure to refer the
issues to the Review Officer before taking judicial review
proceedings
disentitles him from relief in respect of those charges that I have held as
insufficiently serious to be considered by
the Tribunal.
12. Result
[160] The application for judicial review is granted, to the extent that I quash the decisions to refer the eight charges that I have found to be of insufficient seriousness to justify reference to the Tribunal.210 Necessarily, that means those charges must be withdrawn from the Tribunal’s consideration. Each of those complaints are remitted to the relevant Committee to reconsider its decision under s 152 of the 2006 Act, in accordance with the rules of natural justice. Otherwise, the application for judicial
review is dismissed.
[161] The proceeding is adjourned to enable the Bill of Rights
issues to be considered further. The Registrar is directed
to convene a case
management conference before me at 9am on the first available date after 12
October 2012 to make appropriate procedural
directions. At that time, I will
also hear from counsel on whether costs should be determined in respect of the
judicial review
part of this proceeding now, or upon final determination of the
Bill of Rights proceeding.
[162] Memoranda for the conference shall be filed and served:
(a) By Mr Orlov, on or before 28 September
2012
209 Lawyers and Practitioners Act 2006, s 209, set out at para [71] above.
210 Those charges are listed in para [121] above.
(b) By Mr Morgan, on or before 5 October 2012.
13. Addendum
[163] When finalising this judgment for delivery this afternoon, the Registrar referred to me a memorandum and affidavit from Mr Orlov, both dated 22 August
2012. Mr Orlov seeks an urgent conference, leave to adduce further evidence
and leave to file an injunction or stay application “concerning
the
hearing of any suspended application”, pending my judgment in this case.
I have read both the application and the affidavit.
[164] The memorandum stems from a separate application made by the National
Standards Committee and the No 1 Committee to inspect
and copy documents on
Court files that are relevant to the charges. Mr Orlov is named as a party to
that application, the return
date for which appears to have been yesterday. I
have not inquired as to the outcome of any hearing.
[165] I am not satisfied that any issue of bad faith arises out of the
filing of the application; nor out of the affidavit filed
by Ms Ollivier in
support. It is an application on which Mr Orlov is entitled to be heard
separately. It is axiomatic that evidence
on which a decision is made to lay a
charge may need to be supplemented by other evidence when the case is heard
before the Tribunal.
[166] This judgment has been based solely on evidence available to the
Standards Committees when they made their decisions. Therefore,
there is no
reason to defer delivery of this judgment on the basis of what has happened
recently. I refuse leave to adduce further
evidence.
[167] Mr Orlov has asked for associated proceedings under CIV 2010-404-2628 and CIV 2010-404-5778 to be progressed promptly. The Registrar shall set them down for a conference to be held contemporaneously with the one directed in this
proceeding, on the basis of the same timetabling
orders.211
P R Heath J
Delivered at 4.00pm on 24 August
2012
211 See para [161] and [162] above.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2012/2154.html