Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2015] NZCA 410 (4 September 2015)

Last Updated: 11 September 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA555/2014 [2015] NZCA 410
BETWEEN	EVGENY ORLOV Applicant
AND	NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL First Respondent NATIONAL STANDARDS COMMITTEE NO 1 Second Respondent

Counsel:	Applicant in person D Harris for First Respondent W C Pyke for Second Respondent
Judgment: (On the papers)	4 September 2014 at 12.30 pm

JUDGMENT OF WHITE J
(Review of Registrar’s Decision)

1. The existing amount of the security for costs is reduced from $11,760 to $5,880.
2. The application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.

100. The applicant is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.

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REASONS

[1] The applicant, Mr Orlov, has appealed against a decision of the Full Court of the High Court dismissing his application for judicial review in respect of the decision of the first respondent, the New Zealand Lawyers and Conveyancers Tribunal, finding him guilty of disgraceful conduct under s 7(1)(a)(i) of the Lawyers and Conveyancers Act 2006.^[1]
[2] On 23 December 2014 the Registrar fixed security for costs for the appeal at $11,760 payable by Mr Orlov within 20 working days of the filing of the notice of appeal (11 February 2015).
[3] On 11 February 2015 Mr Orlov filed an application to dispense with security for costs in the appeal on the grounds that he was impecunious, there was an arguable appeal which a solvent litigant would pursue, a miscarriage of justice would arise if he were denied the ability to have the appeal heard, and it was in the public interest that the appeal be heard.
[4] The Tribunal abided by the Registrar’s decision, but the application was opposed by the Standards Committee.
[5] Mistakenly treating the amount fixed as security for costs as $5,880, the Registrar on 31 March 2015 declined the application on the grounds that:

• (a) Mr Orlov had not provided sufficient details of his financial situation to determine whether he was impecunious.
• (b) The fact that Mr Orlov had been granted a waiver of fees was not conclusive evidence of impecuniosity for the purpose of dispensing with security for costs.
• (c) Impecuniosity alone did not warrant dispensation from the requirement to pay security for costs.
• (d) While Mr Orlov’s appeal was arguable and therefore not vexatious, it was not obvious that a solvent appellant would reasonably wish to prosecute the appeal.^[2]
• (e) The case was not of significant public interest.

[6] On 7 April 2015 Mr Orlov filed an application for a review of the Registrar’s decision.
[7] The Application is made on the following grounds:

• (a) The Registrar’s decision was incorrect.
• (b) The Registrar’s decision was in breach of natural justice in accordance with s 27 of the New Zealand Bill of Rights Act 1990 as it denied Mr Orlov a right to a hearing in a matter of public importance (issues of judicial independence and bias).
• (c) The appeal is neither frivolous nor vexations.^[3]
• (d) The appeal relates to the most fundamental right of any litigant, the right to a fair hearing.^[4]
• (e) The prosecution of Mr Orlov was political in nature and was instigated by judges who are now judges of the Court of Appeal and thus this is a case where justice must be done and be seen to be done.

[8] Mr Orlov did not refer to the fact that the Registrar had mistakenly treated the amount fixed as security for costs as $5,880.
[9] The application for review is opposed by the National Standards Committee, which filed a memorandum in opposition on 8 July 2015 submitting the appeal lacked merit. The Tribunal continues to abide the decision of this Court on security for costs.
[10] Mr Orlov filed a memorandum in response on 1 September 2015. He submits the principal issue is that the Registrar failed to consider public interest grounds of his appeal insofar as it relates to his being disciplined for making complaints about a High Court Judge.
[11] The starting point is that the amount for security for costs ought to have been fixed by the Registrar initially at $5,880 not $11,760 because, with the Tribunal abiding the decision of the Court, there is effectively only one respondent.^[5] I therefore make an order formally reducing the security for costs to $5,880.
[12] For the following reasons, I also dismiss the application for review of the Registrar’s decision:

• (a) Mr Orlov has not provided sufficient evidence to establish current impecuniosity as required by Reekie v Attorney-General.^[6]
• (b) A reasonable and solvent litigant would not wish to pursue the appeal. In particular, such a litigant would not be able to establish any public interest grounds for the appeal when the following factors are recognised:
  • (i) Mr Orlov was a qualified lawyer and not a lay litigant.
  • (ii) As a qualified lawyer he was well able to represent his own interests at the Tribunal hearing.
  • (iii) The merits of the issues Mr Orlov has raised relating to the amendment of the charges and the evidence have now been determined by this Court in the parallel proceedings relating to Mr Deliu.^[7]
  • (iv) While other aspects of the appeal may be arguable,^[8] that alone is not enough to meet the test in Reekie that a solvent litigant would reasonably wish to prosecute the appeal.^[10]
  • (v) Notwithstanding the High Court decision reversing the Tribunal’s order striking off Mr Orlov,^[11] it is understood that he no longer holds a current practising certificate in New Zealand.
• (c) As there is no issue of general or public importance raised by Mr Orlov’s appeal, no miscarriage of justice arises from requiring Mr Orlov to give security for costs.

[13] Accordingly:

(a) The application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.

(b) Mr Orlov is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.


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, [2015] 2 NZLR 606 [High Court decision].

^[2] Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.

^[3] Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZCA 605 at [6].

^[4] Orlov v National Standards Committee No 1 [2014] NZHC 257, (2014) 22 PRNZ 37 at [23].

^[5] Court of Appeal (Civil) Rules 2005, r 35(4) and (5).

^[6] Reekie v Attorney-General, above n 2, at [35].

^[7] Deliu v The National Standards Committee of the New Zealand Law Society [2015] NZCA 399.

^[8]9 Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal, above n 3, at [6].

^[10] Reekie v Attorney-General, above n 2, at [35].

^[11] High Court decision, above n 1, at [204]–[205].