Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2016] NZCA 224 (25 May 2016)

Last Updated: 3 June 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA29/2016 [2016] NZCA 224
BETWEEN	EVGENY ORLOV Applicant
AND	NEW ZEALAND LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL First Respondent THE NATIONAL STANDARDS COMMITTEE NO 1 Second Respondent

Hearing:	16 May 2016
Court:	Miller, Winkelmann and Kós JJ
Counsel:	G Bogiatto for Applicant W C Pyke for Second Respondent
Judgment:	25 May 2016 at 12.30 pm

JUDGMENT OF THE COURT

A The application for leave to appeal is declined.

2. The applicant is to pay costs to the second respondent for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós J)

[1] In response to statements the applicant made about Harrison J, the Standards Committee placed charges before the Disciplinary Tribunal. The Disciplinary Tribunal found the charges proved and struck him off the roll of barristers and solicitors. The applicant appealed the Tribunal’s decision and sought judicial review of the Tribunal’s decision in the High Court. The first appeal and judicial review were heard together. Ronald Young and Simon France JJ amended and upheld the substance of those charges, but revoked the penalty imposed.^[1] No alternative penalty was imposed bearing in mind the time the applicant had been struck off.
[2] The applicant has filed an appeal against the judicial review aspect of the High Court decision as of right (CA555/2014).^[2]
[3] He also wishes to bring a second appeal against the appeal aspect of the High Court decision, for which leave is required.^[3]
[4] Simon France J declined an application for leave in the High Court.^[4] The applicant now applies for leave in this Court.
[5] The second respondent, the National Standards Committee (No 1), opposes the grant of leave. The first respondent, the Tribunal, abides the decision of the Court in the entire proceeding.
[6] We note that the applicant’s written submissions were prepared by him personally. He is overseas. We are grateful to Mr Bogiatto for entering appearance for the applicant and making helpful and coherent oral submissions to us.

Relevant leave provision

[7] Section 254 of the Lawyers and Conveyancers Act 2006 provides:

254 Appeal to Court of Appeal on question of law

(1) Any party to an appeal under section 253(1) who is dissatisfied with any determination of the High Court in the proceedings as being erroneous in point of law may, with the leave of that court, or, if the High Court refuses leave, with the leave of the Court of Appeal, appeal to the Court of Appeal against the determination; and section 66 of the Judicature Act 1908 applies to any such appeal.

(2) In determining whether to grant leave to appeal under this section, the Court of Appeal must have regard to whether the question of law involved in the appeal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for its decision.

(3) The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.

(4) The decision of the Court of Appeal on any appeal under this section is final.

Grounds advanced

[8] The applicant raises 11 proposed grounds of appeal which he says are issues of public importance.

Ground 1: admissibility of judgments

[9] This ground is the High Court erred in considering that Harrison J’s judgments can be used as evidence against the applicant in disciplinary proceedings.
[10] The applicant submits the use of these judgments was a breach of legitimate expectation, a breach of s 50 of the Evidence Act 2006, and perverse and contrary to natural justice.
[11] This Court has already considered this issue.^[5] It found that judgments are admissible under s 239(1) of the Lawyers and Conveyancers Act when used to assist the Tribunal to deal with the matters before it. That is how the judgments were used in this case. No issue warranting a second appeal arises.

Ground 2: jurisdiction of Tribunal to prosecute a lawyer for claims made to the Human Rights Review Tribunal and the Judicial Conduct Commissioner

[12] This ground is that the High Court erred in holding that there was jurisdiction to prosecute a lawyer for a claim to the Human Rights Review Tribunal (HRRT) or a complaint to the Judicial Conduct Commissioner (JCC) made in good faith.
[13] The applicant submits he should not be punished for making complaints on the basis of a sincerely held opinion.
[14] This is not a question of jurisdiction. Lawyers’ professional obligations are not suspended when exercising rights to complain in connection with the provision of regulated services.^[6] It is rather a question of whether there is any absolute privilege attaching to statements made to the HRRT or JCC. That is how the applicant advanced it in the High Court. The High Court held there was no such privilege.^[7] Its reasoning is compelling, and the contrary view would create an inexplicable disciplinary Alsatia. This ground is simply not tenable.

Grounds 3 and 6: sufficient foundation test

[15] These grounds may be considered together. They relate to whether there was a sufficient foundation for the applicant’s complaints about Harrison J. Did the High Court err in applying the sufficient foundation test or in the content of that test? Did the High Court act perversely or irrationally in holding there was no evidence providing a sufficient foundation for making a complaint?
[16] The applicant submits the sufficient foundation test is improper because it punishes a lawyer for holding an opinion.
[17] This at base is a question of fact, not of law. The test of “sufficient foundation” is settled law.^[8] Its application is a fact-intense issue not amounting to a question of law and not warranting a second appeal.

Ground 4: amendment of charges

[18] The ground is whether the High Court erred in amending some of the charges to charges of misconduct occurring at a time when Mr Orlov was providing regulated services in terms of s 7(1)(a)(i) of the Lawyers and Conveyancers Act.
[19] The applicant submits he was not providing regulated services when he made the relevant statements and the amendment of the charges was made without warning or opportunity to respond.
[20] There is no doubt that the High Court had power to amend the charges.^[9] The questions of whether it was appropriate to do so or whether the amendment engendered any prejudice to the applicant are matters of fact and were dealt with by the High Court.^[10] They are not questions of law and do not raise a question of public importance warranting a second appeal.

Ground 5: charges on account of another lawyer’s conduct

[21] The ground is whether the High Court erred in permitting the applicant to be charged for matters which he had not drafted nor filed where another lawyer was acting. It concerns documents which were allegedly filed by Mr Deliu acting on behalf of the applicant.
[22] This is a question of fact regarding authorship of or responsibility for documents. The High Court held there was “no credible argument” the applicant did not have responsibility for the documents.^[11] This ground is not a question of law, let alone one warranting a second appeal.

Ground 7: bias by Tribunal against the applicant

[23] The ground is the High Court erred in finding the Tribunal was not biased against the applicant.
[24] The High Court’s finding on this matter is an assessment of fact.^[12] The applicant does not raise in submissions any issue with the legal approach of the High Court to assessing the question of bias. The test for bias is settled.^[13] Its application on the facts is not a question of law, let alone one warranting a second appeal.

Ground 8: treatment of lawyers in other decisions

[25] The ground is the High Court erred in failing to address a submission that the prosecutor deliberately withheld from the Tribunal a series of authorities in which lawyers were not prosecuted for similar conduct. This was an effort to discriminate against the applicant.
[26] The applicant refers to disciplinary decisions concerning Messrs Molloy QC, Bradbury, Muir and Moodie. It is said the prosecutor did not put these before the Tribunal.
[27] Even if these authorities ought to have been put before the Tribunal, on which we express no view, any error has been cured by the High Court decision. It refers to those cases in its assessment of appropriate penalty.^[14] The High Court said those cases did not come close to the level of sustained misconduct involved here. There is nothing in this ground of appeal.

Grounds 9 and 11: denial of natural justice before the High Court/abuse of power

[28] Ground 9 is the High Court failed to address the submissions or facts in such a manner as to demonstrate a denial of access to justice and an unfair trial. Ground 11 is the High Court and Tribunal made findings that were an abuse of power and contrary to the International Covenant on Civil and Political Rights.
[29] The applicant’s submissions filed in this Court do not particularise how the High Court hearing was unfair or its findings were an abuse of power. Mr Bogiatto’s oral submissions did not enlarge this ground further.
[30] We are not therefore persuaded there is anything in these grounds, let alone enough to justify a second appeal.

Ground 10: the High Court Judges were biased

[31] The ground is the High Court Judges were close colleagues of Harrison J and had earlier sat on a case with him, so were biased and should have recused themselves.
[32] The applicant does not particularise any reason why Ronald Young and Simon France JJ were biased other than potential friendship and having at times sat with Harrison J. Association or friendship between Judges is not in itself a matter of concern.^[15] Nor is the fact that a Judge has sat with another Judge. Both are aspects of the institutional framework, and a fair-minded observer would not be alarmed by either. As the Supreme Court said in Chatha v R, refusing leave to appeal:^[16]

It is not, however, a seriously arguable proposition that a High Court Judge sitting in the Court of Appeal would fail to approach his or her task independently and would unconsciously be biased against reversing the result of a trial presided over by another High Court Judge because they would encounter one another in the High Court common room. The hypothetical observer, whose perception is used to test questions of apparent bias, would be aware of the terms of the judicial oath and of the fact that High Court Judges are frequently called upon to evaluate the work of their peers when sitting on appeal and on other occasions.

[33] There is no arguable basis on which leave should be granted on this ground.

Interrelationship between judicial review and appeal proceedings

[34] Mr Bogiatto submits at a general level that because the applicant has a right of appeal against the judicial review aspect of the High Court decision, that means there is other reason for the purposes of s 254(2) why leave should be granted. He relies on Duffy J’s decision in Zhang v The Immigration and Protection Tribunal.^[17] Mr Zhang filed an appeal and judicial review proceeding in the High Court against the Immigration and Protection Tribunal decision. He was successful. The Minister of Immigration filed an appeal as of right against the judicial review aspect of the decision, and sought leave to bring a second appeal against the appeal aspect. Duffy J said the Minister’s appeal did not give rise to questions of general or public interest.^[18] But she granted leave because “it would be a nonsense if the appeal in the judicial review proceeding were to succeed, but the determination of [the High Court] on appeal ... remained extant simply because the appeal was not before the Court of Appeal.”^[19] Leave was necessary to avoid a “procedural tangle”.^[20]
[35] By contrast, the Lawyers and Conveyancers Act allows for a right of rehearing on a first appeal, including consideration of process and procedural complaints.^[21] But it contemplates a single appeal, unless a significant question of law arises.
[36] We do not think there is sufficient “other reason” in terms of s 254(2) to grant leave to bring a second appeal. First, much of the substance of the proposed second appeal concerns procedural complaints with the High Court and Tribunal processes. These matters can adequately be dealt with in the as of right judicial review appeal and remitted back to the High Court if necessary. Secondly no “procedural tangle” arises in this instance in respecting Parliament’s intended constraint on appeals (as summarised in the preceding paragraph). Thirdly, and crucially, to the extent that the proposed grounds of appeal concern matters of substance in the High Court’s assessment, none are sufficient to warrant an appeal.

Result

[37] The application for leave to appeal is declined.
[38] The applicant is to pay costs to the second respondent for a standard application on a band A basis together with usual disbursements.

Solicitors:
New Zealand Law Society, Wellington for Second Respondent

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

^[2] There is a right of appeal under s 66 of the Judicature Act 1908. Mr Orlov filed his notice of appeal a day late, but an extension of time was granted in Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZCA 605.

^[3] Lawyers and Conveyancers Act 2006, s 254.

^[4] Orlov v The New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2015] NZHC 3110.

^[5] Deliu v The National Standards Committee of the New Zealand Law Society [2015] NZCA 399 at [34].

^[6] Lawyers and Conveyancers Act 2006, ss 4 and 7(1)(b)(ii).

^[7] High Court decision, above n 1, at [71]–[72].

^[8] The test is established in Gazley v Wellington District Law Society [1976] 1 NZLR 452 (SC) at 453–454; Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 200–201; X v Y [2000] 2 NZLR 748 (HC) at [58].

^[9] Lawyers and Conveyancers Act, s 253(4); High Court decision, above n 1, at [113].

^[10] High Court decision, above n 1, at [96]–[115].

^[11] At [120].

^[12] At [176]–[182].

^[13] Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35.

^[14] High Court decision, above n 1, at [203].

^[15] Saxmere Co Ltd v Wool Board Disestablishment Co Ltd, above n 13, at [20]; R v Chatha [2008] NZCA 427.

^[16] Chatha v R [2009] NZSC 21 at [4].

^[17] Zhang v The Immigration and Protection Tribunal [2013] NZHC 1573.

^[18] At [7].

^[19] At [9].

^[20] At [13].

^[21] Lawyers and Conveyancers Act, s 253.