Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZCA 605 (10 December 2014)

Last Updated: 18 December 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA555/2014 [2014] NZCA 605
BETWEEN	EVGENY ORLOV Applicant
AND	NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL First Respondent
	NATIONAL STANDARDS COMMITTEE NO 1 Second Respondent

Hearing:	24 November 2014
Court:	French, Miller and Cooper JJ
Counsel:	Applicant in person D L Harris for First Respondent (appearance excused) W C Pyke for Second Respondent
Judgment:	10 December 2014 at 10.30 am

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal under r 29A of the Court of Appeal (Civil) Rules 2005 is granted.
2. There will be no award as to costs.

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REASONS OF THE COURT

(Given by French J)

[1] Mr Orlov wishes to appeal a decision of Ronald Young and Simon France JJ in the High Court but was a day late in filing his appeal.^[1] He now seeks an extension of time under r 29A of the Court of Appeal (Civil) Rules 2005.
[2] The primary reason for the delay was that Mr Orlov made a numerical error in calculating the appeal period.
[3] The second respondent initially opposed the application for an extension of time. It did so on the ground that due to deficiencies in the notice of appeal it was impossible for it or indeed the Court to undertake any assessment of the merits of the appeal, as is required when extensions of time are sought.
[4] Following a conference call, Mr Orlov was directed to provide proper particularised grounds of appeal.^[2] These were duly filed and served on the last working day before the hearing of the application.
[5] At the hearing, Mr Pyke accepted in light of the particularised grounds that the appeal was arguable. He therefore did not actively oppose Mr Orlov’s application being granted. However, because Mr Pyke had not had an opportunity to take instructions, he was not in a position to consent.
[6] We are satisfied the application should be granted and we so order. The delay was minimal, there is a reasonable explanation for it, it has caused no prejudice to the respondents and the appeal is arguable.
[7] There will be no order for costs. A hearing should not have been necessary. However Mr Orlov was in default in the first place in failing to provide proper particulars of his grounds of appeal.
[8] Finally, for completeness, we record two other matters.
[9] The first is that at the commencement of the hearing, Mr Orlov asked for Cooper J to recuse himself on the grounds of apparent bias. The application was made on the grounds that Cooper J had made an adverse costs award against Mr Orlov in an unrelated High Court proceeding^[3] and that Cooper J had made an oral comment in the course of another hearing in the High Court to the effect that the Court would view an allegation of racism against a judge very seriously.
[10] Our view was that those matters, whether viewed individually or in combination, were not capable of satisfying the test for apparent bias. It is wellestablished that the fact an adverse decision has been made by a judge against a litigant in the past is not in itself grounds for recusal. As for the comment, we considered that was an entirely proper and accurate comment for Cooper J to have made.
[11] The application for recusal of Cooper J was accordingly declined.
[12] The second matter is a lingering concern raised by Mr Pyke. The High Court decision under appeal relates to findings of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal that Mr Orlov challenged in the High Court both by way of judicial review and using the appeal procedure in s 253 of the Lawyers and Conveyancers Act 2006. The appeal Mr Orlov has filed in this Court relates only to the judicial review proceeding.^[4]
[13] Mr Pyke is concerned that the High Court decision did not make any formal orders disposing of the judicial review proceeding. He is unsure what the implications of that might be for Mr Orlov’s appeal to this Court. One possible implication is that instead of being too late in filing his appeal in this Court, Mr Orlov may have been too early. Mr Pyke is seeking to rectify the perceived problem by applying to the High Court for a recall of its judgment to enable formal orders to be made, which can then be sealed.
[14] This issue would have arisen even if Mr Orlov had filed his appeal in time. In our view it is therefore not relevant to the current application and Mr Pyke ultimately acknowledged this. We therefore take the matter no further.

Solicitors:
Crown Law Office, Wellington for First Respondent
Meredith Connell, Auckland for Second Respondent

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^[1] Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987.

^[2] Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal CA555/2014, 20 November 2014 (Minute of French J).

^[3] ANZA Distributing New Zealand Ltd (in liq) v USG Interiors Pacific Ltd HC Auckland CIV-2007-404-3474, 18 September 2009.

^[4] Mr Orlov does not have an appeal as of right to this Court in relation to his proceeding under the Lawyers and Conveyancers Act 2006 but has applied to the High Court for leave to appeal under s 254 of that Act.