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Orlov v New Zealand Law Society [2013] NZCA 230; [2013] 3 NZLR 562 (14 June 2013)

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_{IN THE COURT OF APPEAL OF NEW ZEALAND}

CA554/2012 [2013] NZCA 230

BETWEEN	EVGENY ORLOV Appellant
AND	NEW ZEALAND LAW SOCIETY First Respondent
AND	AUCKLAND LAWYERS STANDARDS COMMITTEE Second Respondent
AND	AUCKLAND LAWYERS STANDARDS COMMITTEE NO 1 Third Respondent
AND	NATIONAL STANDARDS COMMITTEE Fourth Respondent

Hearing:	23 and 24 April 2013
Court:	Stevens, Wild and French JJ
Counsel:	Appellant in person K L Clark QC Amicus Curiae (23 April 2013) P J Morgan QC (both days) and W C Pyke (23 April 2013) for Respondents
Judgment:	14 June 2013 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed and the decisions of the three Standards Committees are confirmed.
The cross appeal is allowed and the orders made by the High Court relating to charges 2, 3, 4, 5, 8, 9, 10, 11, 12 and 13 laid by Auckland Lawyers Standards Committee No 1 and the s 356 Committee are quashed.

The appellant is ordered to pay one set of costs to the respondents on a standard appeal on a band B basis. Costs for the preparation of the case on appeal are to be fixed by the Registrar, failing agreement. The Court certifies for two counsel for one day.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Table of Contents

Para No
Introduction [1]
The statutory framework [5]
The charges laid against Mr Orlov [26]

Charges laid by the Auckland Lawyers Standards Committee
No 1 and the s 356 Committee [28]

Charges laid by the National Standards Committee [38]
Some preliminary matters [44]

The cross appeal – is the power conferred on Standards
Committees by s 152(2)(a) subject to a threshold test? [47]

Mr Orlov’s appeal [56]

The Lellman complaint [60]

Background [60]

The complaints were insufficiently particularised and lacked
an evidential foundation; the Committee breached its
statutory duty to inquire [64]

The matters raised in the complaint are not capable in law of
being the subject of disciplinary proceedings [75]

The National Standards Committee lacked jurisdiction to deal
with the complaint because another Standards Committee
was seized of the matter [80]

The National Standards Committee had no jurisdiction to
convert the complaint into an own motion investigation [87]

Failure to give reasons [95]

The charges submitted to the Tribunal do not reflect the
allegations made by Ms Lellman [104]

Undue delay [105]

The Randerson complaint [111]

Background [111]

The making of a complaint against a judge cannot be the
subject of disciplinary action [120]

The National Standards Committee lacked jurisdiction to
deal with the complaint because of the circumstances
surrounding the conduct in question [123]

Breach of natural justice [126]

Sufficient particulars were never provided [128]

The complaint was afforded special treatment [133]

The Tait complaint [136]

Background [136]

Lack of sufficient notice [142]

Failure to consider the threshold in the 1982 Act [146]

Other issues [149]

The Bujak complaint [152]

Background [152]

Breach of natural justice [158]

Outcome [162]

The appeal [162]

The cross appeal [164]

Costs [172]

Introduction

[1] Mr Orlov is a barrister. He is facing disciplinary proceedings under the Lawyers and Conveyancers Act 2006 (the Act) as the result of various complaints made against him to the New Zealand Law Society. Having investigated the complaints, three Standards Committees decided not to deal with the matters themselves but to exercise their power under s 152(2)(a) of the Act and refer them to the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (the Tribunal). Mr Orlov strongly objected to the matters being transferred to the Tribunal and sought judicial review in the High Court of the referral decisions.
[2] The judicial review proceeding was heard by Heath J. He found that before exercising its power to refer a complaint to the Tribunal, a Standards Committee must be satisfied there is a real risk that the legal practitioner might be suspended or struck off if the complaint is upheld.^[1] Applying that test to each of the complaints against Mr Orlov, Heath J found that 10 of the complaints were not sufficiently serious to justify referral. The Judge therefore quashed the decision of the relevant Standards Committee relating to the 10 complaints but rejected all the other grounds of review argued by Mr Orlov. The effect of Heath J’s decision was that the 10 complaints were to be withdrawn from the Tribunal’s consideration and remitted to the relevant Standards Committee for determination, but the remaining complaints were to be determined by the Tribunal.
[3] Mr Orlov now appeals the Judge’s decision relating to the remaining complaints. One of the Standards Committees has cross appealed the Judge’s decision relating to the 10 complaints.
[4] The key issues raised by the appeal and cross appeal are:

(a) Is the power of a Standards Committee to refer cases to the Tribunal under s 152(2)(a) subject to a threshold test such as that postulated by Heath J?

(b) Was Mr Orlov provided with sufficient particulars of the complaints?

(c) Is a Standards Committee entitled to initiate an own motion investigation into an existing complaint?

(d) Was the Board of the New Zealand Law Society lawfully entitled to transfer complaints from local Standards Committees to the National Standards Committee?

(e) Did the complaints relating to alleged statements made by Mr Orlov in court and against judicial officers raise matters capable of being the subject of disciplinary proceedings?

(f) Is a Standards Committee required to give reasons for a decision to refer a matter to the Tribunal?

(g) Has there been undue delay in the processing of the complaints warranting judicial intervention?

The statutory framework

[5] Before considering the factual background of this case, it is necessary to explain the relevant legislative scheme and the functions of Standards Committees. The following exposition is derived in large measure from the decision of the Full Court of the High Court in Hart v Auckland Standards Committee 1 of New Zealand Law Society, which we have found very helpful.^[2]
[6] The Act came into force on 1 August 2008. Prior to that date, regulation of the legal profession was governed by the Law Practitioners Act 1982.
[7] Under the 1982 Act, complaints against a legal practitioner were received in the first instance by the District Law Society of which the practitioner in question was a member. If the Council of that Society had reasonable cause to suspect that the practitioner had been guilty of conduct of a specified kind, the Council could itself investigate the matter. The inquiry would be undertaken by either the Council or one or more of its Complaints Committees. If, at the conclusion of the investigation, the Council or Complaints Committee was of the opinion that the case was of sufficient gravity to warrant the laying of a charge, it was required to lay a charge before either a District Disciplinary Tribunal or the New Zealand Law Practitioners Disciplinary Tribunal.
[8] A District Disciplinary Tribunal could make a finding that the practitioner had been guilty of any of the types of conduct specified in the legislation. If, having made such a finding, the District Tribunal was of the view that the case was of sufficient gravity to warrant its referral to the New Zealand Law Practitioners Disciplinary Tribunal, it was required to refer the case to the national body accordingly. If the case did not meet that threshold, but the District Tribunal nevertheless considered that the laying of a charge was justified, the District Tribunal could impose various sanctions against the practitioner including orders for payment of compensation and reduction of fees.
[9] If the matter was referred to the New Zealand Disciplinary Tribunal and that tribunal found the practitioner was guilty of any of the specified conduct, it could make orders of a more serious nature, including striking the practitioner off, and suspending the practitioner from practice for up to three years.
[10] On 1 August 2008, the Law Practitioners Act was replaced by the Lawyers and Conveyancers Act. There are significant differences between the two statutes, including the fact that the Lawyers and Conveyancers Act has a greater focus on consumer protection. The first two purposes listed in s 3(1) of the 2006 Act are:

(a) to maintain public confidence in the provision of legal services and conveyancing services:

(b) to protect the consumers of legal services and conveyancing services:

One of the means by which the Act aims to achieve those purposes is by providing for “a more responsive regulatory regime in relation to lawyers and conveyancers”.^[3]

[11] Complaints and disciplinary matters are dealt with under Part 7 of the Act. Part 7 is designed to enable complaints to be addressed and disciplinary charges to be heard and determined expeditiously. To achieve these aims, the New Zealand Law Society (the Law Society) is empowered to make rules to give effect to the complaints and disciplinary framework.
[12] That framework requires the Law Society to establish one or more Lawyers’ Standards Committees and to make rules governing the operation of those Standards Committees. Such rules must include, amongst other things, the procedures to be followed in relation to complaints and the manner in which a Standards Committee is to exercise its functions and powers.
[13] Each Standards Committee consists of at least three persons, one of whom must be a lay person. The functions of Standards Committees are set out in s 130, which provides as follows:

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.

[14] A Standards Committee may receive complaints from any person via a Complaints Service which the Act requires the Law Society to establish. Having received the complaint, the Standards Committee must consider the complaint either by inquiring into it, giving a direction that the parties explore the possibility of resolution by negotiation, conciliation or mediation, or by deciding to take no action on the complaint. It must notify the complainant and the practitioner as soon as practicable which of these procedures it intends to utilise.
[15] If the Standards Committee decides to inquire into a complaint it must do so as soon as practicable and give notice to the practitioner against whom the complaint has been made. The notice is required to be in accordance with s 141, which we return to later.
[16] In the course of its inquiry, the Committee may require an investigator to look into the complaint and furnish it with a report. It may also conduct a hearing under s 152(1), which is to be on the papers unless directed otherwise. Section 153 regulates the procedure to be followed in respect of hearings on the papers, while s 151 governs the evidence that the Committee may consider.
[17] After inquiring into the complaint and conducting a hearing, the Standards Committee may make one or more of the following determinations:^[4]

(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—

(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.

[18] It was common ground in this case that although s 152 says the Standards Committee “may” do one or more of three things, there are no other options open to the Standards Committee. Accordingly, the “may” should for all practical purposes be read as “must”.
[19] If, as happened in this case, the Standards Committee determines that the complaint ought to be considered by the Tribunal, s 154 requires the Standards Committee to frame an appropriate charge and lay the charge before the Tribunal.
[20] Unlike a Standards Committee, the Tribunal must hold its hearings in public and parties are entitled to be heard in person or through counsel. Also unlike a Standards Committee, the Tribunal may make a finding of misconduct as well as a finding of unsatisfactory conduct. The Standards Committees’ jurisdiction does not extend to making findings of misconduct. The Tribunal also has a wider range of sanctions available to it in the event of a finding of misconduct or unsatisfactory conduct, including the powers of suspension and strike off.
[21] The membership of the Tribunal is larger than the Standards Committees’, with a more stringent process of appointment. The Tribunal consists of a chairperson and deputy chairperson as well as between seven and 15 lawyers and between seven and 15 lay persons. The chairperson and deputy chairperson must each be a person who is not a current practitioner, but who has had not less than seven years’ experience in practice as a lawyer. The chairperson, deputy chairperson and the lay members are appointed by the Governor-General on the recommendation of the Minister of Justice. The members who are lawyers are appointed by the Council of the Law Society.
[22] Under s 253, there is a right of appeal to the High Court against any order or decision made by the Tribunal. The appeal is by way of rehearing. There is a further right of appeal on a question of law to the Court of Appeal against any decision made under s 253 by the High Court.
[23] Finally, in this exposition of the legislative framework it should be noted that under Part 7, the decision of a Standards Committee may be reviewed at the request of either party (among others) by an independent entity called the Legal Complaints Review Officer (the LCRO). Such reviews are to be conducted with as little formality and technicality and as much expedition as is consistent with the requirements of the Act, proper consideration of the review and the rules of natural justice.
[24] On review, the LCRO is empowered to direct the relevant Standards Committee to reconsider the complaint or decision. Alternatively, the LCRO may confirm, modify or reverse the Standards Committee’s decision and may exercise any power that the Standards Committee should have exercised. This includes the power to lay a charge before the Tribunal.
[25] In this case, Mr Orlov did not seek review from the LCRO before issuing his judicial review proceedings. Heath J rejected an argument that such a failure should disentitle him from relief. It appears that until recently there was some uncertainty whether the LCRO had jurisdiction to review a decision of a Standards Committee under s 152(2)(a). The existence of a right of review is now settled.

The charges laid against Mr Orlov

[26] As mentioned above, when a Standards Committee determines to refer a complaint to the Tribunal, it must frame a charge and submit it to the Tribunal.
[27] There are two sets of charges that have been submitted in relation to Mr Orlov. For ease of reference, we have set out a table relating to each set of charges in Appendix 1 of this judgment.

Charges laid by the Auckland Lawyers Standards Committee No 1 and the s 356 Committee

[28] The first set of charges comprises a total of 13 charges laid on 15 June 2010 by the Auckland Lawyers Standards Committee No 1 (the No 1 Committee) and another Standards Committee known as “the s 356 Committee”. The latter Committee deals with complaints that were still being processed under the 1982 Act at the time when the 2006 Act came into force. Section 356 is one of the transitional provisions in the Act.
[29] Of the 13 charges laid on 15 June 2010, only one was laid by the s 356 Committee. It is a charge that arises out of a complaint made in May 2008 and concerns the contents of an affidavit sworn by Mr Orlov. It is alleged that the contents of the affidavit were false and that by his false affidavit Mr Orlov attacked the reputation of the complainant (fellow practitioner Mr Patterson) without good cause.
[30] The complaint was made on 19 May 2008 and was originally processed under the old Act but not concluded. The s 356 Committee first met to consider the complaint on 10 March 2009. The Committee met again on 7 April 2009 and subsequently on 5 May 2009 made the decision to refer the matter to the Tribunal.
[31] In seeking judicial review of that decision, Mr Orlov contended that the decision had been made in breach of natural justice because he was denied an opportunity to be present at the meetings and be heard; members of the Committee had a conflict of interest and were biased; and the Committee had predetermined the matter, failed to consider all the material placed before them, and failed to give reasons for their decision. Mr Orlov further contended that the complaint was vexatious and even if true could not constitute misconduct or unsatisfactory conduct of sufficient gravity to justify referral to the Tribunal.
[32] Heath J rejected all of those arguments.
[33] The 12 charges laid by the No 1 Committee relate to a number of matters. They came before the Committee on various dates and in various ways which we address later. They include allegations that Mr Orlov failed to hand over his file to the s 356 Committee in the course of its investigation into the Patterson complaint, failed to follow instructions and file a statement of defence in a timely fashion, appeared as counsel in a proceeding in which his own conduct was in issue, filed an appeal on behalf of a client without instructions from the client, breached the intervention rule, instructed his clerk to take an affidavit from a client when the clerk was not authorised by law to take an affidavit and acted incompetently as counsel in two named proceedings.
[34] The No 1 Committee’s decision to transfer the matters to the Tribunal was made on 19 February 2010.
[35] Mr Orlov sought judicial review of this decision on the grounds that the decision had been made in breach of the rules of natural justice, was unreasonable, ultra vires and the product of discrimination, bias and bad faith, as well as a failure to take relevant matters into account.
[36] Heath J held that of the various charges laid by the No 1 Committee only those relating to the allegation that Mr Orlov filed an appeal without instructions were sufficiently serious to justify referral. In his view, taken individually none of the other charges could reasonably be expected to result in the Tribunal imposing a penalty that could not have been imposed by the Standards Committee. They fell into a different category and should not have been referred. The decision to refer those matters to the Tribunal was accordingly quashed, making it unnecessary for the Judge to consider the other grounds for review pleaded by Mr Orlov.
[37] As regards the allegation of filing an appeal without instructions, the Judge said he was 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 was no indication of bias or bad faith and the decision was one that was open to the Committee having regard to the seriousness of the complaint.

Charges laid by the National Standards Committee

[38] The second set of charges comprises 11 charges laid by the National Standards Committee.
[39] Eight of the 11 charges relate to a complaint made to the New Zealand Law Society by the then Chief High Court Judge, Randerson J, in November 2008 (the Randerson complaint). On 23 April 2010 the National Standards Committee decided to commence an own motion investigation into that complaint, which concerned the making of allegedly scandalous and false allegations against a judicial officer, Harrison J.
[40] Of the remaining charges, two arise out of a complaint made by another practitioner about Mr Orlov’s conduct of a Family Court case (the Lellman complaint). The third was what Heath J accurately characterised as a charge of serial negligence or incompetence. It arises out of a number of cases in which Mr Orlov was involved as counsel between 1 January 2007 and 31 December 2009.
[41] The Lellman complaint and the serial negligence complaints were originally being dealt with by either the s 356 Committee or the No 1 Committee. However, on 1 April 2010 the Board of the Law Society resolved that all existing complaints and own motion investigations relating to Mr Orlov were to be transferred to the National Standards Committee for investigation and completion. The resolution did not cover complaints and own motion investigations which the other Standards Committees had already determined, such as the complaint about the allegedly false affidavit.
[42] Mr Orlov challenged the legality of the resolution and the subsequent transfer of the files on the grounds of breach of natural justice, unreasonableness, bias, ultra vires and a failure to take into account relevant considerations. He also relied on similar grounds in challenging the determination ultimately made by the National Standards Committee to refer all matters to the Tribunal.
[43] Heath J found that all of the charges brought by the National Standards Committee were sufficiently serious to be referred to the Tribunal for determination, that there was no evidence of bias and that the Committee had complied with the rules of natural justice.

Some preliminary matters

[44] In his written submissions, Mr Orlov claimed that this Court was limiting his access to justice because of its refusal to allocate more than two days to hear the appeal and cross appeal, and its refusal to grant him an adjournment on account of ill health.^[5] Mr Orlov further contended that because one of the complaints made against him was made on this Court’s letterhead, he cannot get a fair and impartial hearing in this Court. In his submission, the appeal should have been referred directly to the Supreme Court.
[45] We are satisfied that none of those matters have any substance. It is correct that we have been presented with a large volume of material. However, the actual issues raised by the appeal and cross appeal did not warrant more than two days hearing and this was borne out at the hearing itself. Mr Orlov’s application for an adjournment for health reasons was declined because in the assessment of the Judge hearing that application the health problems were not such as to prevent him from being able to adequately prepare for the appeal.^[6] It was also pointed out that it was not too late for Mr Orlov to instruct someone to represent him or assist with preparation.
[46] As for the concerns regarding use of the Court’s letterhead, that relates to the Randerson complaint. Randerson J made his complaint in December 2009 to the President of the Law Society. As mentioned, the complaint concerned Mr Orlov’s conduct towards a then High Court Judge, Harrison J. In February 2010, the President wrote to Randerson J seeking confirmation that he would have no objection to his complaint being referred to a Standards Committee, the inquiry necessitated by the fact that Randerson J had marked his letter private and confidential. In a one paragraph response, Randerson J advised he would have no difficulty with that course of action. Randerson J wrote the response on this Court’s letterhead simply because by February 2010 he had been appointed to the Court of Appeal. Contrary to submissions made by Mr Orlov, the use of the letterhead does not mean this Court had somehow become the complainant or sanctioned the complaint.^[7] Nor can use of the letterhead and the subsequent appointment of Harrison J to this Court possibly constitute grounds for recusal of all other permanent members of the Court. That the complaint was made by Randerson J in his capacity as the Chief High Court Judge is further evidenced by the fact that in April 2010, the new Chief High Court Judge wrote to the President of the Law Society inquiring as to when she might receive a reply to Randerson J’s 2009 letter.^[8]

The cross appeal – is the power conferred on Standards Committees by s 152(2)(a) subject to a threshold test?

[47] We turn first to consider the cross appeal because it concerns the first issue identified at [4(a)] above.
[48] The cross appeal raises an issue which has been the subject of conflicting High Court authority as between this case and the decision of Hart taking a contrary view to that adopted by Heath J in this case. The issue turns on the correct interpretation of s 152 and accordingly for ease of reference we set the provision out again:

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—

(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.

(3) Nothing in this section limits the power of a Standards Committee to make, at any time, a decision under section 138 with regard to a complaint.

(4) Subject to the right of review conferred by section 193 and to section 156(4), every determination made under subsection (1) and every order made under section 156 or section 157 is final.

[49] It was common ground that a decision by a Standards Committee to refer a matter to the Tribunal under s 152(2)(a) is amenable to judicial review. In so far as Heath J’s judgment suggests that the respondents argued otherwise at the High Court hearing,^[9] Mr Morgan QC told us that his submission had been misunderstood. The position of the respondents is that although the decision is judicially reviewable, it is akin to a prosecutorial discretion and in accordance with cases such as Polynesian Spa Ltd v Osborne and Fox v Attorney-General, the court should only intervene in exceptional cases.^[10]
[50] It is unnecessary for us in this case to embark on any definitive exposition of the scope of judicial review of a decision made under s 152(2)(a), other than to observe that the prosecutorial analogy is not entirely apt. Unlike a prosecutor, the Standards Committee can only reach its determination after first conducting an inquiry and holding a hearing (albeit usually on the papers). Further, while the Standards Committee has the power to regulate its own procedure, the Act also expressly requires that in exercising and performing its duties, powers and functions, a Standards Committee must do so in a way that is consistent with the rules of natural justice.^[11] On the other hand, there is a strong legislative imperative that complaints are to be dealt with promptly and accordingly it is appropriate, as noted by Heath J, that the rules of natural justice be tailored to meet that objective. A further important consideration is the existence of the statutory right of review to the LCRO, whose decision is in turn amenable to judicial review. Also highly relevant is the fact that a decision under s 152(2)(a) does not determine the outcome of the complaint. It only determines which body should be seized of it. The decision is procedural in nature and occurs at a very preliminary stage of what is a comprehensive statutory process involving several checks and balances in what the legislature saw as a more responsive regulatory regime. Suffice it to say we accept the court must be circumspect and that there is very limited scope for review. Examples of where judicial review might be available would be cases where there has been non-compliance with the statutory prerequisites to the making of the decision, such as failing to conduct a hearing as required by s 152(1) or where there has been bad faith.
[51] In imposing a threshold test or restriction on the type of case that a Standards Committee could refer to the Tribunal, Heath J was influenced by the differences between the powers and functions of Standards Committees and the Tribunal. He discerned a clear legislative intention that the Tribunal was expected to hear and determine serious charges and should only deal with cases where there is a real risk that orders exceeding those within the Standards Committee’s jurisdiction may be made. Having concluded that a threshold test ought to apply, Heath J held that the test ought to be similar to that contained in the 1982 Act. He articulated the test as being whether there is a real risk the practitioner might be suspended or struck off. In the view of Heath J, such a test would have the advantage of focusing the minds of the Standards Committee on the likely outcomes of consideration of a charge and would act as a disincentive to anyone on a Standards Committee who might be motivated by animosity or ill will towards a particular practitioner.
[52] This latter point was emphasised by Mr Orlov. Although Mr Orlov did not endorse Heath J’s particular formulation of the threshold test, he submitted that a high threshold encompassing requirements relating to the seriousness of the charge and the sufficiency of the evidence was essential to protect a practitioner from arbitrary action. Mr Orlov likened the referral decision to a committal process in a criminal proceeding or to a recommendation to appoint a judicial conduct panel under the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.^[12] Mr Orlov stressed that having to appear in front of the Tribunal was a serious matter for a practitioner. It had major implications and took a heavy toll on the practitioner both personally and professionally.
[53] Unlike Heath J, we have had the benefit of submissions from an amicus, Ms Clark QC. Further, as Mr Morgan candidly acknowledged, the respondents’ arguments on this issue were more developed in this Court than they had been in the High Court. Those arguments have persuaded us that the imposition of a threshold test is an unwarranted gloss on s 152(2)(a) and that the view of the High Court in Hart is to be preferred.
[54] We have come to that conclusion for the following reasons:

(a) The absence of any threshold test in the section itself.^[13]

(b) The contrast between the wording in s 152 and other sections in the Act, such as ss 138 and 244(1) where the legislature has imposed express fetters on the exercise of powers and stipulated the grounds on which decisions must be based. This suggests that the absence of any similar provision in s 152 is deliberate.

(c) The contrast between s 152 and the equivalent provision under the 1982 Act, which did contain an express “sufficient gravity” test.^[14] As Mr Morgan put it, Heath J’s imposition of a threshold represents the reintroduction of a test which Parliament must be taken to have deliberately discarded.

(d) That Parliament can be taken to have deliberately discarded the test is supported by consideration of the policy reasons for the imposition of a threshold and the differences between the 1982 regime and the regime under the Lawyers and Conveyancers Act. Under the new regime, referral to the Tribunal can only take place after an inquiry and a hearing, whereas that was not the case under the 1982 regime. Further, there is now oversight of the referral decision by the independent LCRO. The protection to the practitioner once afforded by the threshold test is thus now met by other means. The oversight of the LCRO should also assist in protecting the resources of the Tribunal and prevent it from being overwhelmed by petty or trivial cases.^[15]

(e) The fact that s 152(2) empowers the Standards Committee to refer not only a complaint or matter to the Tribunal but also “any issue involved in the complaint or matter” is inconsistent with a threshold test based on the Tribunal’s power to strike out or suspend. This in our view is a very telling point which was not drawn to the attention of Heath J.

(f) As noted in Hart, the fact the Standards Committee is not required to give reasons for the referral decision is inconsistent with the suggestion that jurisdiction for referral depends upon the Standards Committee being satisfied that a particular threshold test has been met.^[16]

(g) The fact the Tribunal has all the powers of the Standards Committees also demonstrates it is unlikely that Parliament intended only the cases that might warrant strike off or suspension should come before it.

(h) Having regard to the legislative purposes of consumer protection and the maintenance of public confidence in the provision of legal services, it is in our view important that the Tribunal be able to determine some complaints even though the likely sanction will not involve striking off or suspension. The complaints may for example involve complex issues of law or fact or be likely to result in a significant precedent. The imposition of a threshold test has the potential to undermine the role of the Tribunal to maintain national standards. We agree with Mr Morgan that it is important that the Tribunal “gets the big picture”.

(i) A threshold test would also have the unfortunate practical consequence of fragmenting the disciplinary process in cases involving multiple complaints of varying degrees of seriousness against the same practitioner. That is not a consequence in our view that Parliament should be taken to have intended.

[55] It follows that in our view Heath J was wrong to quash the decision to refer 10 of the complaints on the grounds that they were not sufficiently serious. The cross appeal is accordingly allowed.

Mr Orlov’s appeal

[56] We turn now to consider the other grounds for judicial review raised by Mr Orlov and rejected by Heath J.
[57] Mr Orlov invited us to examine four of the complaints, those in respect of which he considered he had the strongest arguments. He accepted that if he could not succeed in respect of those four complaints, then he could not succeed in respect of any of the others. Having reviewed all the material, we consider that was an appropriate approach for Mr Orlov to take. The four complaints are the Lellman complaint, the Randerson complaint, the Tait complaint and the Bujak complaint. All four of these complaints were complaints in respect of which the National Standards Committee decided to conduct an own motion investigation.
[58] As will become apparent, the grounds for review advanced by Mr Orlov are wide-ranging. Some of the same grounds are relied upon in respect of all four complaints. Some grounds, however, are complaint specific and accordingly we propose to address the issues on a complaint by complaint basis. In doing so we will address such of the remaining six issues identified at [4(b)–(g)] above as have been raised by the appellant in relation to the four complaints.
[59] Finally, for completeness, we record Mr Orlov’s confirmation that bad faith is not an issue in this appeal.

The Lellman complaint

Background

[60] On 18 November 2008, Ms Lellman a practitioner wrote a letter to the Law Society complaining about Mr Orlov’s conduct as counsel in a Family Court proceeding. Ms Lellman had been involved in the case acting for another party. The Society forwarded her letter to Mr Orlov and pursuant to s 141 invited him to make a written explanation by 15 December 2008. Mr Orlov responded with some criticisms of the complaint and requested further particulars. He later advised the Society that unless he was provided with further particulars he was unable to reply. The Society obtained a copy of the recording of the Family Court proceeding in question and made this available to Mr Orlov, but otherwise considered that Mr Orlov had already been provided with sufficient particulars by virtue of the contents of the letter of complaint and appendices. On 20 November 2009, the No 1 Committee resolved to set the matter down for a hearing on the papers and invited Mr Orlov to make submissions. An exchange of correspondence ensued in the course of which Mr Orlov reiterated his concerns about the lack of particulars. An assertion of lack of particulars was a central theme of his correspondence regarding this complaint and indeed all the other complaints.
[61] The hearing was never held by the No 1 Committee because the Lellman complaint was one of the complaints which, on 1 April 2010, the Board of the New Zealand Law Society resolved were to be transferred to the National Standards Committee for investigation and completion.
[62] When the National Standards Committee met on 14 June 2010, it resolved pursuant to s 130(c) of the Act to commence an own motion investigation into some of the complaints, including the Lellman complaint. Mr Orlov was invited to make any further written submissions. On 16 September 2010 the National Standards Committee convened a face to face hearing to consider the Lellman complaint and several others. Mr Orlov attended with a support person and made submissions. After the hearing, the Committee determined:

That the conduct of Mr Orlov in the matter of own motion 3104/ (formerly 427 – Lellman), that occurred prior to 1 August 2008, was of a level in which proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982.

The conduct of Mr Orlov as particularised by Ms Lellman in her letter of complaint dated 18 November 2008 during the proceedings Ministry of Social Development v LPC the Child the Application is About FC TAU 2007-070-417 was of sufficient gravity to warrant a disciplinary charge and that pursuant to section 152(2)(a) of the Lawyers and Conveyancers Act 2006 the matter should be considered by the New Zealand Lawyers and Conveyancers Disciplinary Tribunal. Mr Orlov’s conduct was considered by the Committee to reach the threshold for a finding of conduct unbecoming a barrister or solicitor

That the conduct of Mr Orlov in terms of the following cases illustrates 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. Pursuant to s152(2)(a) of the Lawyers and Conveyancers Act 2006 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 Committee to be of sufficient gravity that proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982.

Any cases which may have already been dealt with or are already the subject of disciplinary charges but were included in the complaints made to the Lawyers Complaints Service have been or should be excluded.

[63] Mr Orlov sought to impugn this decision on several grounds which we now address.

The complaints were insufficiently particularised and lacked an evidential foundation; the Committee breached its statutory duty to inquire

[64] Section 141(a) of the Act requires the Standards Committee to send particulars of the complaint to the practitioner. The Law Society’s Practice Note Concerning the Functions and Operations of Lawyers Standards Committees (the Practice Note) also states that Standards Committees should be satisfied the lawyer is able to respond to the substance of the complaint in an informed manner.^[17]
[65] Mr Orlov contends that despite numerous requests, he never received proper particulars of the Lellman complaint and that the notice of hearing did not identify the issues. Mr Orlov characterised this as a breach of natural justice and submitted that in the absence of proper particulars, the opportunities afforded him to provide an explanation and appear at the hearing were not meaningful.
[66] We do not accept that contention. The Lellman letter runs to six pages with four appendices. It is comprehensive. The various allegations are detailed and grouped under the headings of the relevant rules of professional conduct which it alleged had been breached. The appendices contain further details in the form of a day by day diary account of Mr Orlov’s alleged conduct, including whether the alleged conduct took place in court, chambers or the lawyers’ tea room.
[67] In our view, it would be difficult to conceive of a more thoroughly particularised complaint and it is untenable for Mr Orlov to suggest otherwise.
[68] As for the notice of hearing, it informed Mr Orlov that the own motion investigation would be the subject of a hearing before the National Standards Committee on a specified date and explained the process. The notice identified which investigation was being heard by reference to a file number, which in the case of the Lellman matter was file number 427. Mr Orlov was familiar with that file number, having been advised of it in earlier correspondence. In our view, the notice was not required to specify the issues. Mr Orlov was well aware of the subject matter of the proposed hearing and the details of the allegations being made against him. He had been given sufficient information to enable him to respond in a meaningful way at the hearing if he so chose.
[69] Mr Orlov also contended that the National Standards Committee could not act on the complaint in the absence of evidence. For example, one of the allegations made by Ms Lellman was that Mr Orlov’s threatening and agitated behaviour resulted in court security staff being present during the hearing to “encourage” him to check his behaviour towards other counsel. Mr Orlov submitted that the National Standards Committee should have required Ms Lellman to adduce evidence from court security and that without such verification it could not transfer the matter to the Tribunal. He characterised this as a breach of the National Standards Committee’s mandatory obligation to inquire under s 152.
[70] We disagree. The National Standards Committee was entitled to act on Ms Lellman’s complaint without requiring corroborative evidence. The Committee had of course sought information or evidence from Mr Orlov himself, but he had chosen not to respond in any detail to the substance of the complaint.
[71] In any event, the sufficiency of the evidence and the strength of the complaint is a matter for the Tribunal.
[72] Another related objection raised by Mr Orlov concerned the obligation of the National Standards Committee to commence the investigation afresh. Mr Orlov suggested that this meant the National Standards Committee could not rely on previous material and should have sought documents, particulars or further evidence as well as answer his many letters. We agree that the National Standards Committee was required to both inquire into the matter and conduct a hearing. Inquiring into the matter did not, however, preclude it from relying on the material that had been obtained previously. Further, the evidence shows that the National Standards Committee did invite both Ms Lellman and Mr Orlov to provide any further information. It was not in our view required to go any further in order to discharge its obligation to inquire into the matter. As regards its obligation to hold a hearing, the National Standards Committee would have been entitled under the Act to deal with the matter on the papers. However, it went further and gave Mr Orlov the benefit of a face to face hearing.
[73] For completeness we should record that another objection raised by Mr Orlov was that the Standards Committee simply provided him with a recording of the Family Court hearing without having it transcribed and the key passages identified. Mr Orlov pointed out that the Law Society’s own Professional Standards Director in an internal email considered this was unfair because of the sheer volume of material. The recording was of an eight week hearing.
[74] It emerged during the course of submissions before us that Mr Orlov in fact has his own copy of the transcript. What he insists the Law Society should have done is identify the relevant passages on which the complaint is based. In our view that is a matter for the Tribunal and is not a sufficient ground for judicial review.

The matters raised in the complaint are not capable in law of being the subject of disciplinary proceedings

[75] Mr Orlov contends that the allegations against him are an attack on counsel for statements made in court and therefore breach ss 19 and 14 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) as well as international instruments such as the International Covenant on Civil and Political Rights.^[18] Section 14 states that everyone has the right to freedom of expression, including the freedom to impart opinions of any kind. Section 19 concerns the right to freedom from discrimination under the Human Rights Act 1993. In Mr Orlov’s submission, counsel cannot be subject to disciplinary proceedings under the Act for making statements in a courtroom, particularly when making statements on human rights issues, which is what he asserts he was doing in the Family Court case. His client was challenging the power of the State.
[76] In the High Court, Heath J took the view that only limited assistance could be gained from references to international instruments and the Bill of Rights. The Judge said that his focus had to be on the disciplinary processes created by Parliament, the words of the 2006 Act and the Act’s objectives. Mr Orlov contended that this was an error of law on the part of Heath J. He also criticised the Judge for ruling on the Bill of Rights matters having regard to the fact that the Judge had split the Bill of Rights aspect from the judicial review. This last argument is a reference to the fact that the statement of claim filed in the High Court combined an application for judicial review with causes of action alleging breach of the rights guaranteed to Mr Orlov by the Bill of Rights and a claim for misfeasance in public office. In an earlier decision upheld on appeal in this Court, Heath J had made an order severing the judicial review cause of action from the other causes of action.^[19]
[77] It is fundamental to the integrity of our legal system that counsel should be able to advance their client’s cause in court fearlessly. However, that is not an absolute right in the sense that counsel do not have carte blanche to behave in any way they please and to make scandalous allegations against others which are without any foundation. Counsel must conduct themselves in court so as to meet their obligations as officers of the court and their ethical obligations under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. We agree with Heath J that the provisions of the Bill of Rights must be read in light of the duties on counsel that are either articulated in the Act or implicitly recognised. Excessively aggressive or scandalous conduct that breaches those obligations will not qualify for protection under the right to freedom of expression.
[78] We are satisfied that the conduct of counsel in court may therefore be the subject of disciplinary proceedings. It is for the Tribunal to determine whether the allegations made by Ms Lellman are well founded and if so whether Mr Orlov crossed the line.
[79] It follows we do not accept that Heath J’s comments about the limited relevance of the Bill of Rights provisions and international covenants amounted to an error of law or failure to take into account a relevant factor. Nor do we consider that they constituted a “ruling” on the severed causes of action. Those claims remain extant.

The National Standards Committee lacked jurisdiction to deal with the complaint because another Standards Committee was already seized of the matter

[80] This ground of review relates to the legality of the Board’s resolution to remove the complaint from the No 1 Committee and transfer it to the National Standards Committee. Mr Orlov submits that Heath J failed to deal with his submission that the transfer from one Standards Committee to another was ultra vires or at least an abuse of process.
[81] Section 137 provides that a Standards Committee on receiving a complaint may inquire into it, give a direction under s 143 (which relates to negotiation, conciliation and mediation) or decide to take no action on the complaint. Mr Orlov relies on this section in support of his argument that there is no jurisdiction to transfer a complaint to another Committee. In his submission, s 137 means the Committee must do one of those three things and no other.
[82] However, it was not the No 1 Committee itself that made the decision to transfer the complaint. It was the Board of the Law Society.
[83] The Board purported to pass its resolution in reliance on cls 2.10 and 2.11 of the Practice Note, the Practice Note itself being authorised by reg 28 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008.
[84] Clause 2.10 of the Practice Note specifies the circumstances in which the complaints service should refer a complaint to a National Standards Committee rather than a local Standards Committee.
[85] Clause 2.11 states that once a Standards Committee is notified of a complaint and the investigative or analytical processes have started, the complaint cannot be referred to another Standards Committee. Significantly for present purposes, the clause goes on to state that the only exception is where the Board may need to direct the referral of a complaint currently in the hands of a local Standards Committee to the National Standards Committee. It continues:

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.

[86] The Board’s resolution in this case records that the decision was made in order to “ensure maximum efficiency, speed and economy” in the handling of all complaints against Mr Orlov. Given the large number of complaints against Mr Orlov and the fact that he was alleging bias and misconduct on the part of members of the local Standards Committees, the Board’s decision was in our view amply justified. The decision only concerned unresolved complaints (that is, complaints that had not yet been concluded). There are no grounds on which it could be said to be unlawful or an abuse of process.

The National Standards Committee had no jurisdiction to convert the complaint into an own motion investigation

[87] As mentioned, s 130 sets out the functions of Standards Committees. They include:

(a) to inquire into and investigate complaints made under s 132:

...

(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 ...
[88] In deciding to conduct an own motion investigation into the Lellman complaint and five other complaints, the National Standards Committee recorded that it was doing so because those complaints appeared to show unsatisfactory conduct on the part of Mr Orlov and there was a perceived need to “rationalise all matters”.
[89] Mr Orlov submits that the matter having been initiated as a complaint under s 132, it was not open to the National Standards Committee to commence an own motion investigation into the same matter. He submits that this “contradicts the clear statutory language of the Act”. However, there is no such restriction in the Act and by virtue of s 142(3), Standards Committees have the power to regulate their own procedures in such manner as they think fit. Importantly, Mr Orlov has not been prejudiced in any way by the decision to treat the matter as an own motion investigation. Own motion investigations are subject to the same procedural safeguards as investigations into complaints. For example, the requirement to observe the rules of natural justice still applies, as does the requirement to send particulars. Mr Orlov submitted the transfer meant he lost the benefit of the s 137 process. As mentioned above, s 137 provides that a Standards Committee on receiving a complaint may inquire into it, give a direction that the parties explore the possibility of resolving the complaint by mediation or decide to take no action. It is correct that s 137 does not apply to an own motion investigation. However, an inquiry was still held, mediation was never an appropriate or realistic possibility and a Standards Committee conducting an own motion inquiry still has the power to take no further action under s 512(2)(c).
[90] Mr Orlov also contended that because of the matter being turned into an own motion investigation, the process was truncated and he lost the benefit of the safeguard that a complainant is “required to respond to any explanation (request) from the practitioner”. He described this as his “right”. There is, however, no such requirement in the Act. The provision in the Practice Note on which Mr Orlov relies says only that “any explanation received from the lawyer should be copied to the complainant with a request that the complainant respond with any comments within 14 days”.^[20] There is no reason why an own motion investigation would necessarily preclude this from happening in appropriate cases. The point is that in this case, Mr Orlov never provided any explanation in the sense contemplated by the Practice Note. If the Standards Committee considered that sufficient particulars had already been provided, it was under no obligation to forward his request for same to Ms Lellman.
[91] We are satisfied the National Standards Committee did have jurisdiction to embark on an own motion investigation and we are also satisfied that it did “inquire” into the matter within the meaning of the Act.
[92] Another aspect of the procedure challenged by Mr Orlov was the resolution made at a meeting of the National Standards Committee on 1 August 2010 to take no further action on the Lellman complaint under s 138(2). Section 138(2) authorises a Standards Committee to decide in its discretion not to take any further action on a complaint if in the course of its investigation it appears to the Committee that having regard to all the circumstances of the case any further action is unnecessary or inappropriate. Mr Orlov says such a decision must be a final decision and therefore questions how the National Standards Committee could make that decision and yet still have jurisdiction to carry on with the investigation and later hold a hearing. He submitted this was ultra vires and raises issues of double jeopardy.
[93] However, the resolution states that the reason further action is unnecessary is because of the own motion investigation instigated on 14 June 2010 and still being undertaken by the Committee.^[21] Once the matters were being treated as own motion investigations, they were allocated new file numbers and the complaint file closed. In our view, the process adopted was mandated by s 137 (on receipt of complaint, Standards Committees to do one of three things) and it was authorised by s 138(2). It did not prejudice Mr Orlov in any way. There can be no issue of prejudice when the inquiry into the complaint has not resulted in any adverse outcome for him.
[94] Mr Orlov suggested the reason the National Standards Committee adopted the process of closing the complaint file and opening a new one was because they well understood there was no jurisdiction to transfer the complaint from the No 1 Committee to them in the first place. However, that cannot be right because the National Standards Committee adopted exactly the same process when deciding to undertake an own motion investigation into the Randerson complaint. The Randerson complaint had been referred to the National Standards Committee from the very beginning.

Failure to give reasons

[95] Mr Orlov submits that in breach of the rules of natural justice, the National Standards Committee failed to give reasons for its decision to refer the matter to the Tribunal. In support of that submission, Mr Orlov referred us to the decision of Lewis v Wilson and Horton Ltd.^[22]
[96] The National Standards Committee did in fact give written, albeit brief, reasons for its decision to exercise its powers under s 152(2)(a). Its determination states:

That the conduct of Mr Orlov in the matter of own motion 3104/ (formerly 427 – Lellman), that occurred prior to 1 August 2008, was of a level in which proceedings of a disciplinary nature could have been commenced under the Law Practitioners Act 1982.

[97] Mr Orlov says that is not sufficient and that a detailed reasoned judgment was required.
[98] We disagree. In our view, it is clear from s 158 that a Standards Committee is not required to give reasons for a decision made under s 152(2)(a) to refer a matter to the Tribunal. Section 158 relevantly states:

(1) If a Standards Committee makes a determination of the kind described in section 152(2)(b) or (c), that Standards Committee must forthwith give written notice of that determination to each of the persons who may, under section 193, apply to the Legal Complaints Review Officer for a review of the determination.

(2) The notice must—

(a) state the determination and the reasons for it; and

(b) specify any orders made under section 156 or section 157 and be accompanied by copies of any such orders; and

(d) state the period within which an application for a review of the determination or of any such order or both may be lodged (which period is prescribed by section 198(b)).

[99] If Parliament had intended that reasons were also required in a notice of determination made under s 152(2)(a), then it would have said so. In our view, the omission of any reference to s 152(2)(a) in s 158 is deliberate. It reflects the underlying policy that complaints are to be dealt with expeditiously and that decisions made under s 152(2)(a), unlike ones made under s 152(2)(b) and (c), are not adjudications on the merits of complaints. They are a step in an ongoing process, the next phase of which involves the framing of an appropriate charge and is governed by s 154.
[100] A further point against the provision of reasons is that if the Committee were to comment on the merits it could be seen as prejudicing the Tribunal’s task and usurping its function. Accordingly, the principles articulated in Lewis v Wilson and Horton do not apply.
[101] It appears that the LCRO has suggested in at least one decision, CN v Auckland Standards Committee 1, that Standards Committees should give reasons why matters are being referred to the Tribunal.^[23] The decision, however, makes no reference to s 158 and in our view is wrong on that point.
[102] Another issue raised by Mr Orlov was that the Committee members should have filed affidavits for the purposes of the judicial review hearing to explain the reasons for their decisions and the evidence they took into account, as well as produce a transcript of the hearing. In Mr Orlov’s submission, the absence of such evidence meant that his account of the hearing was uncontradicted, rendering it impossible for Heath J to have been able to find that the hearing was fair and in accordance with the rules of natural justice. However, as noted by Mr Morgan, Heath J had before him the minutes of the Committees and the notices of determination as well as the relevant correspondence. We agree that in circumstances where there were proper records, affidavits from the decision-makers were both unnecessary and undesirable. In this context it is also important to again note that the decision at issue in this case was not an adjudication on the merits but a procedural decision to refer the matter to another body.
[103] A related argument advanced by Mr Orlov was that Heath J failed to take into account the respondent’s “complete lack of discovery”. However, a review of the Judge’s various decisions and minutes show that discovery was considered by Heath J both before and during the hearing.^[24] We therefore reject this argument.

The charges submitted to the Tribunal do not reflect the allegations made by Ms Lellman

[104] Mr Orlov submits that Heath J failed to consider his claim that the charges were completely different from the allegations in the complaint. However, the claim was never pleaded. As Mr Morgan points out, this case is not about review of the charges. That is a matter for the Tribunal.

Undue delay

[105] Mr Orlov contends that there has been undue delay in the bringing of the complaint and undue delay in the processing of it and all the other complaints by the Law Society. He points out that ss 137 and 140 of the Act specifically require Standards Committees to process complaints as soon as practicable. Mr Orlov did not plead delay as a separate ground of review but as a particular of breach of natural justice.
[106] The Family Court hearing at issue concluded in April 2008 and the Family Court Judge issued her decision in early May 2008. Ms Lellman made her complaint to the Law Society in November 2008, some seven or so months later. That is a relatively long time before making a complaint. However, the Family Court decision was appealed and presumably it would also have taken some time for Ms Lellman to prepare her complaint, which as we have found was comprehensive and fully documented.
[107] As regards the delay in processing the complaints, we accept that has been considerable. The Lellman complaint, for example, was made in November 2008 and almost five years later it has still not been resolved. Such a situation is totally unsatisfactory and contrary to the statutory policy that complaints are to be dealt with expeditiously. Delay can obviously prejudice fair hearing rights and cause staleness. Delay can amount to an abuse of process.
[108] However, in our assessment Mr Orlov himself bears a large part of the responsibility for the delay. As he acknowledged, he was under an ethical duty to co-operate with the investigative phase of the process. However, instead of engaging in the process and answering the substance of the complaint, he chose to prevaricate and take unmeritorious procedural points. That is true of his approach to all the complaints.
[109] It is not necessary for us to determine whether delay might in some rare and exceptional circumstances be capable of being a ground of judicial review of a Standards Committee decision under s 152(2)(a). Suffice it to say that delay is generally an issue best dealt with at the Tribunal. The facts of this case are not sufficiently compelling to warrant judicial intervention.
[110] We are satisfied that none of the grounds of challenge regarding the way in which the Lellman complaint has been dealt with thus far has been made out. Neither has the appellant established that Heath J erred in refusing judicial review.

The Randerson complaint

Background

[111] By letter dated 18 December 2009, Randerson J as the then Chief High Court Judge, wrote to the President of the New Zealand Law Society. The letter commenced by saying that its purpose was to raise for the President’s consideration with the relevant body whether disciplinary action should be taken by the Law Society against Mr Orlov and another Auckland practitioner. The letter went on to say that the two practitioners had been engaging in a series of complaints about a High Court judge, Harrison J, in a number of forums. There had been complaints to the Chief High Court Judge himself, proceedings brought in the High Court, the Court of Appeal and the Supreme Court, and proceedings in the Human Rights Review Tribunal. Details of the complaints were given. As regards Mr Orlov, they involved the following conduct:

Writing to the Chief High Court Judge in August 2008 requesting Harrison J not be allocated to cases in which Mr Orlov was counsel on the grounds of the Judge’s bias.

Issuing a proceeding in the High Court seeking an order that the Registry permanently not allocate Harrison J any cases filed by him.

Applications attempting to have personal costs orders set aside.

Issuing proceedings in the Human Rights Tribunal in March 2009 alleging Harrison J had discriminated against him on various grounds. The proceedings were struck out.

Making a complaint in February 2009 to the Judicial Conduct Commissioner alleging hostility, bias and improper conduct.

Instructing counsel to make a complaint to the Judicial Conduct Commissioner repeating allegations of discrimination and alleging Harrison J wrongly erased material on the court record.

Making a complaint to the Judicial Conduct Commissioner on 9 April 2009 on behalf of a client who complained about the way she and Mr Orlov were treated by Harrison J. This complaint was dismissed after an investigation which included obtaining the views of other counsel.

[112] The letter concluded by stating that in the view of Randerson J, the conduct of the two practitioners revealed an ongoing pattern of persistent, wide ranging and disgraceful allegations and complaints against Harrison J. Of the complaints which had been finalised, none had been found to have a proper foundation.
[113] A large number of documents accompanied the letter. They included copies of the relevant proceedings, the submissions made in the various proceedings by the two practitioners and copies of their complaints to the Judicial Conduct Commissioner.
[114] On 23 April 2010, the National Standards Committee resolved to inquire into the matters raised by Randerson J’s letter as an own motion investigation. The Committee notified Mr Orlov of that decision, forwarded him a copy of Randerson J’s letter and the enclosures and invited him to make a written submission in response.
[115] There then ensued an exchange of correspondence between Mr Orlov and the Law Society. As with the Lellman complaint, the primary focus of Mr Orlov’s correspondence was procedural. He required further particulars and further documentation, challenged the right of the National Standards Committee to commence an own motion investigation and also challenged Randerson J’s use of the Court of Appeal letterhead. He further suggested the complaint was an attempt to interfere in the workings of the Judicial Conduct Commissioner and questioned how the making of a complaint could be the subject of disciplinary action.
[116] On 11 August 2010 the National Standards Committee advised Mr Orlov that a hearing would be held on the matter on 16 September 2010 and that he was entitled to make written submissions. Significantly, the notice of hearing identified that one possible outcome of the hearing might be a decision to refer the matter to the Tribunal.
[117] As already mentioned in connection with the Lellman complaint, at the hearing on 16 September 2010 Mr Orlov was given an opportunity to be heard and make oral submissions in addition to written submissions.
[118] After the hearing, the National Standards Committee made the following 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.

[119] Several of the grounds of review advanced by Mr Orlov in connection with this determination are based on arguments which we have already found untenable in connection with the Lellman matter. It is therefore not necessary for us to address them again. In this category are arguments that having received a complaint, a Standards Committee cannot deal with the matter as an own motion investigation; that a Standards Committee must give reasons for a decision to refer a case to the Tribunal under s 152(2)(a); and inordinate delay. Other grounds are specific to the Randerson complaint and we now turn to these.

The making of a complaint against a judge cannot be the subject of disciplinary action

[120] Mr Orlov submitted that lawyers have the same rights as members of the public to make complaints about judges and that it would be a serious infringement of basic human rights and international law for the making of a complaint to be the subject of disciplinary proceedings.
[121] This submission overlooks the point that it is not the making of the complaint which is the concern but the allegedly intemperate and persistent manner in which the complaints have been made.
[122] As noted by Heath J, while complaints may be made against judicial officers it is clear that disrespectful or scandalous allegations against a judge exercising judicial authority is an affront to the court and poses a risk to public confidence in the judicial system. 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 disciplinary jurisdiction over lawyers appearing before it and its contempt jurisdiction. We agree.

The National Standards Committee lacked jurisdiction to deal with the complaint because of the circumstances surrounding the conduct in question

[123] Another argument raised by Mr Orlov was that at the time he made his complaints against Harrison J he was not providing legal services and therefore by virtue of s 7(1)(a) was outside the scope of the Act and its disciplinary processes. This submission overlooks s 7(1)(b) which expressly stipulates that misconduct includes conduct of a lawyer which is unconnected with the provision of legal services by the lawyer, but which would justify a finding that the lawyer is not a fit or proper person or is otherwise unsuited to engage in practice as a lawyer. Deliberately or recklessly making false and scandalous allegations against a judge is capable of coming within that definition.
[124] An alternative jurisdiction argument raised by Mr Orlov was that in making its determination the National Standards Committee was acting under the wrong statute and applied the wrong test. Mr Orlov contended that because the matters that are the subject of the complaint occurred prior to 2008, they should have been dealt with under the 1982 Act. According to Mr Orlov, under the 1982 Act there was no jurisdiction to discipline a lawyer for making intemperate statements when not acting for a client. Mr Orlov described this point as a “complete bar” to the charges because it meant the decision to refer them to the Tribunal was ultra vires.
[125] That argument is flawed for two reasons. First, under the 1982 Act there was jurisdiction to discipline a practitioner for deliberately or recklessly making false or scandalous allegations against a judicial officer whether the practitioner was acting for a client or not at the time. That is clear from the wording of s 112(1) of the 1982 Act. Secondly, the wording of the determination shows the National Standards Committee was alive to the distinction as it dealt separately with matters that occurred prior to 1 August 2008.^[25]

Breach of natural justice

[126] Mr Orlov also submitted that it was a breach of his rights and natural justice for the complaint to have been made and investigated by the Standards Committee before the Judicial Conduct Commissioner had concluded his inquiries. However, the evidence was that the National Standards Committee was unable to ascertain from the Commissioner whether matters had been concluded and so made its decision based on the manner in which the complaints to him had been made rather than the outcomes. In any event, the Commissioner’s inquiries had in fact been concluded by the time the National Standards Committee held its hearing in September 2010. The Commissioner did not uphold any of the complaints against Harrison J.
[127] Yet another argument advanced by Mr Orlov was that the matters raised by Randerson J were trivial and should have resulted in deciding to take no further action. However, that is a merits argument and not one for judicial review. Mr Orlov can make those points to the Tribunal.

Sufficient particulars were never provided

[128] Mr Orlov contends that Randerson J’s letter and the enclosures were insufficiently particularised. He submits that before he could be expected to answer the complaint, the Standards Committee was required to identify specifically the offending passages in the various correspondence, proceedings and complaints, and explain why they were considered disciplinary material. Mr Orlov sought to bring in aid the High Court Rules relating to particulars in pleadings.
[129] In our view, the Standards Committee was not required to undertake an analysis of that sort. It was sufficient for the Committee to provide Mr Orlov with a copy of Randerson J’s letter and the enclosures. The letter identified that the concern was the number of complaints and the making of unfounded allegations of a serious nature. Further, Mr Orlov was given all the material on which those concerns were based. It is in our view disingenuous for Mr Orlov to contend that he has not been informed of the substance of the allegation.
[130] The propriety or otherwise of what Mr Orlov said in the various documents about Harrison J is for the Tribunal to determine.
[131] A further related argument raised by Mr Orlov was that the determination of the National Standards Committee refers to “intemperate” accusations against Harrison J, rather than false accusations as claimed in the original complaint letter. Mr Orlov argues that the National Standards Committee used the word intemperate to avoid having to give particulars of which allegations were false. He says this is a further breach of natural justice because he was unaware he was being investigated for intemperate complaints.
[132] This argument is also untenable. Randerson J may not have used the word “intemperate” in his letter of complaint but he did use the word “disgraceful”. In a letter dated 22 July 2010, the National Standards Committee advised Mr Orlov that the own motion investigation centred on the allegation in Randerson J’s letter that Mr Orlov had engaged in “an ongoing pattern of persistent, wide ranging and disgraceful allegations and complaints against Justice Harrison”. Intemperate allegations and complaints are clearly subsumed within that wording. We note too that the actual charges subsequently laid include claims that the allegations against Harrison J were deliberately or recklessly false and scandalous. Moreover, under the heading “particulars of the false and scandalous allegations” the charges list the specific assertions about Harrison J which Mr Orlov is alleged to have made and which are considered false and scandalous. We are satisfied that sufficient particulars were supplied to Mr Orlov to discharge the Standards Committee’s statutory obligations and that the decision to refer the matter to the Tribunal cannot be impugned on the grounds of insufficient particulars or the lack of a hearing.

The complaint was afforded special treatment

[133] Mr Orlov contended that the complaint was afforded special treatment based on the facts that the President of the Law Society dealt with it rather than the complaints service, the delay in making the complaint was never addressed and the matter was referred to the National Standards Committee rather than the local Standards Committee. Mr Orlov argued that in breach of ss 19 and 14 of the Bill of Rights, he has been discriminated against and singled out for special treatment because of the status of the original complainant.
[134] We do not accept those contentions, which in any event are not grounds for judicial review of a decision made under s 152(2)(a). The reason the complaint was dealt with in the first instance by the President was simply because Randerson J wrote to the President. Some of the matters in the complaint relate to events over a year before the complaint was sent but that is not unreasonable when the essence of the complaint is a pattern of ongoing conduct. Finally, there is no reason why different complaints about the same practitioner cannot be sent to the same Standards Committee. As submitted by Mr Morgan, the National Standards Committee was a better option in light of Mr Orlov’s complaints about the members of the other Standards Committees.
[135] We are satisfied that none of Mr Orlov’s challenges in respect of the Randerson complaint can be upheld. They provide no basis for judicial review of the actions of the Law Society or the National Standards Committee.

The Tait complaint

Background

[136] In early 2009 Mr Orlov made an application to practise on his own account. In accordance with usual procedures, the Law Society advertised the application and sought responses to it from practitioners. Mr Tait, who is a barrister, wrote opposing the application on the grounds that Mr Orlov was incompetent. Mr Tait advised that Mr Orlov had been frequently criticised by various New Zealand courts for his performances and for what appeared to be a lack of preparation and failure to follow court procedures. In support of this allegation, Mr Tait enclosed a bundle of seven cases in which Mr Orlov had been involved. Mr Tait subsequently requested that his letter be treated as a formal complaint.
[137] The complaint was referred to the Auckland Standards Committee. Mr Orlov initially refused to respond. He then sought further particulars. In March 2010 the Law Society sent Mr Orlov a summary of adverse judicial comments about his competence extrapolated from 14 decisions. The summary includes five of the seven cases relied upon by Mr Tait.
[138] In April 2010, the Tait complaint was one of those transferred to the National Standards Committee following the Board resolution. On 29 June 2010, the National Standards Committee advised that it had resolved pursuant to s 130(c) of the Act to commence an own motion investigation into the matter. It advised Mr Orlov that it considered the file appeared to indicate there may have been misconduct or unsatisfactory conduct on his part and that the Committee would commence its own investigation anew. The Committee further advised Mr Orlov that it would be asking Mr Tait if he had any further comments to make and that Mr Orlov was entitled to make any further written submissions or could if he preferred simply rely on previous submissions already filed.
[139] The Tait complaint was one of those considered at the 16 September hearing where Mr Orlov appeared and was given an opportunity to be heard.
[140] Following the hearing, the National Standards Committee made a determination that Mr Orlov’s conduct in the cases cited by Mr Tait and in seven other cases “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 s 152(2)(a) the matter should be referred to the Tribunal. The words quoted are based on s 241(c) of the Act.
[141] The charge that has been laid is also framed in those terms. It provides particulars of incompetence under the heading of each case, the particulars being derived from the comments made by the judges in the particular case.

Lack of sufficient notice

[142] Mr Orlov contends that in breach of the rules of natural justice, he was not warned of the possibility that all the individual complaints might be viewed collectively and result in a single charge of serial negligence under s 241(c). Nor was he told what issues were to be heard, what matters were being investigated or what evidence was being relied upon. Mr Orlov goes so far as to say that no investigation was ever carried out by the National Standards Committee.
[143] We do not accept those submissions.
[144] Mr Orlov was provided with a copy of the Tait complaint. He therefore knew that Mr Tait’s complaint concerned his alleged lack of competence. He also knew that in making such an allegation, Mr Tait relied upon seven judgments in which adverse comments had been made by the presiding judge about Mr Orlov’s conduct of the case. Mr Orlov had even been provided with selected extracts from five of the judgments. He had a copy of all the judgments and attended a disciplinary hearing. In those circumstances, Heath J was correct in our view to find that Mr Orlov had been given proper notice of the allegations and had an opportunity to be heard.
[145] It appears to be correct that Mr Orlov was never specifically warned of the possibility that he was at risk of being charged with serial negligence. However, he was given an opportunity to comment on the degree of competency he had demonstrated in each individual case and it is difficult to conceive of any additional submissions he could have made in a meaningful way about the cases viewed collectively.

Failure to consider the threshold in the 1982 Act

[146] Mr Orlov submitted there was prejudice to him because some of the cases relied on by Mr Tait and others complaining about his competence pre-dated 1 August 2008. Under the 1982 Act, negligent or incompetent conduct could only justify the commencement of proceedings of a disciplinary nature if it had been of such a degree or so frequent as to reflect on the practitioner’s fitness to practise. Mr Orlov contended there was no analysis or finding in each case as to what was negligent and no analysis as to whether such negligence was sufficient to reach the 1982 threshold. By taking a collective view, the National Standards Committee avoided that analysis to his prejudice. In Mr Orlov’s submission, had the pre 1 August 2008 cases been subjected to individual analysis in terms of the 1982 Act as required, the National Standards Committee would have had no choice but to decline jurisdiction.
[147] However, the determination of the National Standards Committee shows that the National Standards Committee was alive to the issue. The determination expressly states that the matters which occurred prior to 1 August 2008 were considered by the National Standards Committee to be of sufficient gravity that proceedings of a disciplinary nature could have been commenced under the 1982 Act. Whether the National Standards Committee was correct in that assessment is a merits argument for the Tribunal, not an issue for Heath J on judicial review.
[148] Before leaving this topic, we note that in its determination the National Standards Committee has stated a wrong date for one of the judgments relied upon by Mr Tait. The determination gives a date of 2 July 2009 for the judgment in Order of St John Northern Regional Trust v Gemini 10 Ltd.^[26] In fact the correct date is 2 July 2007. That would make the case one requiring assessment under the 1982 Act. It is not possible for us to tell from the evidence whether the date in the determination is simply a typographical error (the summary given to Mr Orlov in March 2010 and the charge have the correct date) or whether the National Standards Committee was labouring under a mistake and applied the wrong statute to that particular judgment. However, even if there was an error, it is not one that would warrant discretionary judicial intervention. The judgment is only one of 18 cases and the comments made by the Judge in it are capable of being viewed as serious. The Judge described interrogatories filed on behalf of Mr Orlov’s client as improper and suffering from “serious deficiencies” such that it was “a reasonable inference that [they] were not drawn up by counsel or by any legally qualified person”.^[27] We are satisfied that if the National Standards Committee has made an error, it has not made any difference to the outcome and is a matter which can be taken up by the Tribunal.

Other issues

[149] Another argument raised by Mr Orlov was that because the hearing only lasted two hours, there would have been insufficient time for Committee members to have read and digested the 14 or so judgments before making their decision. However, the Committee members would doubtless have read the decisions before the hearing and there was evidence before Heath J that this is in fact what happened.^[28]
[150] Other issues raised by Mr Orlov about the Tait complaint – for example that the cases selected are not representative of his level of competency, that the criticisms in the judgments are trivial, that he was not in fact incompetent, the sufficiency of the evidence – are plainly merits based and for the Tribunal. We accept that for the purposes of exercising its function under s 152(2)(a), the National Standards Committee was entitled to rely on the various judgments and was not required to hear or receive any further evidence.
[151] None of the grounds of challenge in respect of the Tait complaint is made out. Relief by way of judicial review was properly declined by Heath J.

The Bujak complaint

Background

[152] Mr Bujak was a client of Mr Orlov. In September 2009 and October 2009, Mr Bujak made a number of allegations to the Law Society against Mr Orlov. The allegations related primarily to issues about legal aid and payment of fees.
[153] The complaint was one of those transferred from the Auckland Standards Committee to the National Standards Committee following the Board resolution in April 2010. The National Standards Committee then decided to treat it as an own motion investigation.
[154] Following the hearing on 16 September 2010, the National Standards Committee sought further information from the Legal Services Agency. The response from the Legal Services Agency included a statement that adverse judicial comments made in the Supreme Court about Mr Orlov had been considered but not judged to require further follow up. Mr Bujak had raised issues with the Legal Services Agency about the quality of submissions made on his behalf by Mr Orlov in the Supreme Court. The Legal Services Agency appears to have accepted Mr Orlov’s argument that the exchanges between Mr Orlov and the Supreme Court judges reflected normal court/counsel interaction in appeal hearings.
[155] On 1 October 2010, the National Standards Committee decided that the complaint about legal aid and fees should not be taken any further because there was insufficient evidence. However, it also decided that the Supreme Court judgment in the Bujak litigation should form part of the serial incompetence charge in that the 31 March 2009 transcript of the Supreme Court hearing together with the other matters described in the serial incompetence charge illustrated a degree 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. It further determined that pursuant to s 152(2)(a), the matter should be considered by the Tribunal.
[156] The evidence suggests that the reason the National Standards Committee took a different view from the Legal Services Agency on competency was because the latter was considering the Supreme Court transcript in isolation.
[157] The Bujak case now forms one of the particulars of the charge formulated in terms of s 241(c). It is alleged that in the Supreme Court hearing, Mr Orlov:

was unresponsive to questions from Judges of the Court;

made submissions that challenged expert evidence without any legal or evidential foundation;

made a submission that Mr Bujak was a man with independent assets when there was no evidential basis for him to do so;

provided a report of a decision that was not the official report and then attempted to blame his assistant for it; and

made repetitive submissions on points despite the Court having indicated it needed no further assistance on those points.

Breach of natural justice

[158] Mr Orlov contended that by obtaining further information after the hearing, namely the letter from the Legal Services Agency, the National Standards Committee fundamentally breached the rules of natural justice. He pointed out that competence was not part of the original Bujak complaint and argued that contrary to s 141 he had never been notified that competency was part of the investigation. Mr Orlov further argued that competency in the Bujak case did not form part of the 16 September 2010 hearing which meant it had never been “heard” as required by the Act, the 16 September 2010 hearing being the only hearing. Mr Orlov also contended that the National Standards Committee never read, let alone considered, the transcript of the Supreme Court hearing and consequently never turned their minds to what was in fact the alleged negligence.
[159] However, the minutes of the hearing on 16 September 2010 suggest that competency in the Bujak case was the subject of submissions made by Mr Orlov. The minutes record that “further information is to be sought from the Legal Services Agency in relation to Mr Orlov’s representation to the Committee that he had been cleared of both receiving a top-up payment and of alleged incompetency”.^[29] Further, according to the evidence of the Law Society’s General Manager (Regulatory) given before Heath J, the transcript of the Supreme Court hearing was raised during the course of the 16September 2010 hearing. Mr Orlov disputed this but clearly it was open to Heath J to accept the evidence of the General Manager.
[160] In our view, the rules of natural justice did not require the National Standards Committee to give Mr Orlov an opportunity to be heard on the Legal Services Agency letter. The letter was favourable to Mr Orlov. It was open to the National Standards Committee to take a different view of the Supreme Court transcript than had the Legal Services Agency.^[30] The Tribunal of course may take a different view again.
[161] Although Heath J did not specifically address issues arising from the letter, we are satisfied there was a sufficient evidential basis for him to find that there had been an inquiry, a hearing, a determination and compliance with the rules of natural justice in the case of the Bujak matter as well as all the others. It follows that relief by way of review on this complaint was rightly rejected by Heath J.

Outcome

The appeal

[162] Mr Orlov has sought to take every conceivable point, none of which in our view has any merit. There is no sound basis for judicial review. The decision of Heath J is upheld in all respects. The appeal is dismissed.
[163] It follows that the decisions of the three Standards Committees are confirmed.

The cross appeal

[164] The cross appeal is allowed and the orders made by Heath J relating to charges 2, 3, 4, 5, 8, 9, 10, 11, 12 and 13 laid by Auckland Lawyers Standards Committee No 1 and the s 356 Committee are quashed.
[165] These and all other charges should now be heard by the Tribunal without delay. On this point we add the following observations. We direct them particularly to Mr Orlov.
[166] As a legal practitioner, Mr Orlov is subject to his profession’s disciplinary regime. It exists primarily for the benefit of the consumers of legal services. That is, people who include Mr Orlov’s own clients. But it exists also for the benefit of all legal practitioners, not least Mr Orlov himself.
[167] We mentioned at the outset of this judgment, and we reiterate, that one of the central objectives of the Act is to provide for “a more responsive regulatory regime in relation to lawyers and conveyancers”.^[31]
[168] By raising the numerous procedural objections this judgment considers and rejects, Mr Orlov has thwarted and delayed the disciplinary process. He now complains of these largely self-inflicted delays.
[169] The oldest of the complaints dates back to 19 May 2008. It is imperative that the charges against Mr Orlov now be heard by the Tribunal on their merits, and without still further delays.
[170] Judicial review exists to ensure a fair process – to ensure “fair play in action”.^[32] If Mr Orlov considers he has not had a fair process then judicial review remains open to him after the Tribunal has given its decision. Alternatively, Mr Orlov will have the appeal rights referred to at [22] above.
[171] The many checks and balances in the disciplinary system, and the Tribunal’s ability to suppress Mr Orlov’s name if appropriate,^[33] take care of Mr Orlov’s concern that having to appear before the Tribunal is in itself damaging to his professional reputation and practice.

Costs

[172] The successful respondents are entitled to one set of costs. Mr Morgan pointed out that the respondents assumed the burden of producing the Case on Appeal and accordingly he sought costs for all respondents on a band 3B basis. In our view this was not a complex appeal, but on the other hand there was an unusually large volume of material. We consider that the just approach is to make a single award of costs for a standard appeal on a band B basis. We certify for two counsel for one day^[34] and direct the Registrar to fix the costs of preparing the record, failing agreement between the parties. The respondents may apply to the Registrar for those costs to be fixed if agreement on the amount cannot be reached with Mr Orlov within 20 working days of the date of this judgment.
[173] Finally, we record our appreciation of the constructive role played by the amicus Ms Clark QC at the hearing and her very helpful submissions on the cross appeal.

Solicitors:
Glaister Ennor, Auckland for the Respondents

APPENDIX 1: TABLE OF CHARGES

First set: charges laid by the s 356 Committee and the Auckland Lawyers Standards Committee No 1 (the No 1 Committee)

Charge Number	Conduct Alleged	Date of Alleged Conduct	Governing Legislation	Original Committee	Decision to Refer to Tribunal	Charge Laid
1	Allegation of misconduct based on the swearing of a false affidavit which attacked the reputation of a fellow practitioner.	27 September 2007	1982 Act	The s 356 Committee	5 May 2009	15 June 2010
2	Allegation of misconduct based on failure to provide a file to the s 356 Committee in the course of its investigations into the subject matter of charge 1.	31 March 2009 (the date by which the file was required)	2006 Act	No 1 Committee	19 February 2010	15 June 2010
3	Allegation of misconduct based on failure to follow instructions and file a defence in a timely fashion.	22 May 2007 to 21 February 2008	1982 Act	No 1 Committee	19 February 2010	15 June 2010
4	Allegation of misconduct based on continuing to act as counsel in proceedings in which Mr Orlov’s own conduct as counsel was in issue.	1 September 2008 to 31 January 2009	2006 Act	No 1 Committee	19 February 2010	15 June 2010
5	Alternative to charge 4. Allegation of unsatisfactory conduct based on the facts alleged to support charge 4.	1 September 2008 to 31 January 2009	2006 Act	No 1 Committee	19 February 2010	15 June 2010
6	Allegation of misconduct based on the filing of an appeal to the Court of Appeal without instructions from a client.	24 October 2008 to 31 January 2009	2006 Act	No 1 Committee	19 February 2010	15 June 2010
7	Alternative to charge 6. Allegation of unsatisfactory conduct based on the facts alleged to support charge 6.	24 October 2008 to 31 January 2009	2006 Act	No 1 Committee	19 February 2010	15 June 2010
8	Allegation of unsatisfactory conduct based on continuing to act as counsel when it ought to have been apparent that the High Court might decline to hear argument from Mr Orlov on issues arising out of an affidavit he had sworn about his conduct in a District Court proceeding.	1 September 2008 to 31 January 2009	2006 Act	No 1 Committee	19 February 2010	15 June 2010
9	Allegation of misconduct based on an alleged breach of the intervention rule.	1 December 2008 to 1 March 2009	2006 Act	No 1 Committee	19 February 2010	15 June 2010
10	Allegation of unsatisfactory conduct based on alleged incompetence when acting as counsel in a particular proceeding.	Not specified in the charge		No 1 Committee	19 February 2010	15 June 2010
11	Allegation of misconduct based on instruction to barrister’s clerk to take an affidavit in habeas corpus proceedings when she was not authorised in law to do so.	1 November 2008 to 19 November 2008	2006 Act	No 1 Committee	19 February 2010	15 June 2010
12	Alternative to charge 11. Allegation of unsatisfactory conduct based on the facts alleged to support charge 11.	1 November 2008 to 19 November 2008	2006 Act	No 1 Committee	19 February 2010	15 June 2010
13	Allegation of unsatisfactory conduct based on alleged lack of competence and diligence in conducting a habeas corpus application.	1 November 2008 to 19 November 2008	2006 Act	No 1 Committee	19 February 2010	15 June 2010

Note: the shaded charges are the subject of the cross appeal.

Second set: charges laid by the National Standards Committee (NSC)

Charge Number	Conduct Alleged	Date of Alleged Conduct	Governing Legislation	Transfer to NSC	Own Motion Investigation Commenced by NSC	Decision to Refer to Tribunal	Charge Laid
1	Allegation of misconduct that would justify a finding that Mr Orlov was not a fit and proper person to engage in the practice of law based on the deliberate or reckless making of false and scandalous allegations about Harrison J in a letter to the Chief High Court Judge.	6 August 2008	2006 Act	1 April 2010	23 April 2010	16 September 2010	13 May 2011
2	Alternative to charge 1. Allegation of misconduct based on the making of the allegations described in charge 1 in circumstances that would reasonably be regarded by lawyers of good standing as disgraceful or dishonourable.	6 August 2008	2006 Act	1 April 2010	23 April 2010	16 September 2010	13 May 2011
3	Allegation of misconduct that was disgraceful or dishonourable based on application by Mr Orlov for an order that Harrison J be permanently recused from all cases involving Mr Orlov and a colleague.	5 September 2008	2006 Act	1 April 2010	23 April 2010	16 September 2010	13 May 2011
4	Alternative to charge 3. Allegation that Mr Orlov is not a fit and proper person to be in practice as a lawyer.	5 September 2008	2006 Act	1 April 2010	23 April 2010	16 September 2010	13 May 2011
5	Allegation of misconduct that was disgraceful or dishonourable based on the deliberate or reckless making of false and scandalous allegations about Harrison J in a notice of application for special leave to appeal to the Supreme Court.	14 October 2008	2006 Act	1 April 2010	23 April 2010	16 September 2010	13 May 2011
6	Allegation of misconduct that would justify a finding that Mr Orlov was not a fit and proper person to engage in the practice of law based on the deliberate or reckless making of false and scandalous allegations about Harrison J in a claim filed in the Human Rights Tribunal.	13 March 2009	2006 Act	1 April 2010	23 April 2010	16 September 2010	13 May 2011
7	Allegation of misconduct that would justify a finding that Mr Orlov was not a fit and proper person to engage in the practice of law based on the making of false and scandalous allegations about Harrison J in a letter to the Judicial Conduct Commissioner.	11 February 2009	2006 Act	1 April 2010	23 April 2010	16 September 2010	13 May 2011
8	Alternative to charge 7. Allegation of misconduct that was disgraceful or dishonourable based on the facts alleged in support of charge 7.	11 February 2009	2006 Act	1 April 2010	23 April 2010	16 September 2010	13 May 2011
9	Allegation of misconduct based on the making of false allegations in submissions to a Family Court Judge in a case involving the care and protection of a child.	12 November 2007 to 4 April 2008	1982 Act	1 April 2010	14 June 2010	16 September 2010	13 May 2011
10	Allegation of conduct unbecoming a barrister and solicitor based on conduct of a Family Court proceeding.	12 November 2007 to 4 April 2008	1982 Act	1 April 2010	14 June 2010	16 September 2010	13 May 2011
11	Allegation of serial negligence or incompetence arising out a number of cases in which Mr Orlov was involved.	1 January 2007 to 31 December 2009	1982 Act and 2006 Act	1 April 2010	14 June 2010	16 September 2010	13 May 2011

^[1] Orlov v New Zealand Law Society [2012] NZHC 2154, [2013] 1 NZLR 390 at [80].

^[2] Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83 at [73][91].

^[3] Section 3(2)(b).

^[4] Section 152(2).

^[5] Orlov v New Zealand Law Society CA554/12, 18 March 2013; Orlov v New Zealand Law Society CA554/12, 15 April 2013.

^[6] Orlov v New Zealand Law Society CA554/12, 18 March 2013 at [9], minute of Ellen France J.

^[7] See Orlov v New Zealand Law Society CA554/12, 15 April 2013 at [13].

^[8] Mr Orlov took issue with this letter as well, submitting it was an attempt by the Chief High Court Judge to interfere with the disciplinary process. He also alleged that the fact the letter was not copied to him was a breach of natural justice. Both contentions are patently wrong.

^[9] At [58].

^[10] Polynesian Spa Ltd v Osborne [2005] NZAR 408 (HC); Fox v Attorney-General [2002] NZCA 158; [2002] 3 NZLR 62 (CA).

^[11] Section 142(1).

^[12] See Wilson v Attorney-General [2010] NZHC 1678; [2011] 1 NZLR 399 (HC).

^[13] The wording in the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 relied upon by Mr Orlov is significantly different. It contains an express threshold test and requires the Commissioner to give reasons.

^[14] Section 101(2) of the 1982 Act provided that a complaint would be referred to either the District Disciplinary Tribunal or the New Zealand Disciplinary Tribunal “[i]f in the opinion of the District Council or committee the case [was] of sufficient gravity to warrant the making of a charge”.

^[15] There is also the protection of the Law Society’s practice note which says at 6.3: “a decision to refer a matter to the Disciplinary Tribunal is most likely to occur when a standards committee has found professional misconduct or in the more serious categories of unsatisfactory conduct”.

^[16] Mr Orlov contended that a Standards Committee is required to give reasons but as discussed at [98] of this judgment we do not accept that contention.

^[17] New Zealand Law Society Practice Note Concerning the Functions and Operations of Lawyers Standards Committees, cl 3.4. The power to make a practice note is conferred by reg 28 of the Lawyers and Conveyancers Act (Lawyers: Complaints Service and Standards Committees) Regulations 2008.

^[18] International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).

^[19] Orlov v New Zealand Law Society (Auckland Branch) (No 5) HC Auckland CIV-2010-404-2868, 7 December 2011, upheld in Orlov v New Zealand Law Society [2012] NZCA 12.

^[20] Clause 3.6.2 (emphasis added).

^[21] The resolution also included the Bujak and Tait complaints.

^[22] Lewis v Wilson and Horton Ltd [2000] NZCA 175; [2000] 3 NZLR 546 (CA).

^[23] CN v Auckland Standards Committee 1 LCRO 106/2010 at [27].

^[24] See Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 22 November 2010 at [9]; Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 21 December 2010 at [28]–[32]; Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 11 November 2011 at [15]; Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 7 December 2011 at [29]–[40]; Orlov v New Zealand Law Society (Auckland Branch) HC Auckland CIV-2010-404-2868, 10 February 2012 at [6]–[7]; and Orlov v New Zealand Law Society (Auckland Branch) [2012] NZHC 173 at [6]–[7].

^[25] The minutes of the Committee meeting on 16 September 2010 do not draw the distinction. However, there is no reason to draw the inference that the subsequent determination does not reflect the actual decision made.

^[26] Order of St John Northern Regional Trust v Gemini 10 Ltd HC Auckland CIV-2002-404-1559, 2 July 2007.

^[27] At [26].

^[28] See Moxon v Riverside Casino Ltd [2000] NZCA 401; [2001] 2 NZLR 78 (CA).

^[29] Emphasis added.

^[30] Mr Orlov attempted to suggest that because internal emails show some Committee members were in favour of not including the Bujak matter in the serial negligence charge, the Chairman of the Committee had made a unilateral decision. However, the emails in question pre-date the actual determination.

^[31] Section 3(2)(b).

^[32] The phrase coined by Cooke J in Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.

^[33] Mr Orlov has not sought name suppression for the present proceeding.

^[34] Mr Pyke did not attend on the second day of the hearing.

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