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Orlov v National Standards Committee No. 1 [2014] NZHC 257 (24 February 2014)

Last Updated: 25 July 2014


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY



CIV 2013-404-4757 [2014] NZHC 257

BETWEEN
EVGENY ORLOV
Plaintiff
AND
NATIONAL STANDARDS COMMITTEE No.1
Defendant


Hearing:
18 February 2014
Appearances:
F C Deliu for plaintiff
W Pyke for defendant
Judgment:
24 February 2014




JUDGMENT OF FOGARTY J

In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.30 pm on Monday 24 February 2014



Solicitors:

F C Deliu Auckland

W Pyke, Auckland

























ORLOV v NATIONAL STANDARDS COMMITTEE No.1 [2014] NZHC 257 [24 February 2014]

Introduction

[1] Mr Orlov appeals against a decision of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal that he be struck from the roll of barristers and solicitors. That decision followed determination of the Tribunal after hearing eight charges against Mr Orlov of misconduct such that would justify a finding he is not a fit and proper person, or is otherwise unsuitable to engage in practice as a lawyer. They all had as their subject matter the behaviour of Mr Orlov to a High Court Judge. One member of the Tribunal dissented.

[2] This appeal will be by way of rehearing the charges on the record. The Supreme Court decision in Austin, Nicholls & Co Inc v Stichting Lodestar1 applies. It follows that in the absence of special rulings, the Court will rehear the case on the record, come to its view on the merits, before deciding whether or not to allow the appeal.

[3] Mr Orlov has retained his close associate Mr Deliu as counsel. Mr Deliu faces very similar charges in respect of the same Judge, which are pending before another panel of the Tribunal.

[4] The appeal is set down for hearing on 1-2 April 2014. The National Standards Committee has applied for an order that Mr Deliu be debarred from appearing as Mr Orlov’s counsel, and that costs be fixed on a category 2B basis, payable immediately.

[5] In support that he should be debarred, the application sets out five grounds:

1. Mr Deliu cannot act for Evgeny Orlov in this proceeding with the required degree of independence expected of an officer of the Court;

2. He cannot comply with his duties to the Court, in particular he gave evidence of a contentious nature in the proceedings, the subject of the appeal and his conduct was an issue in those proceedings;

3. He faces almost identical charges before the Disciplinary Tribunal arising from the same subject matter, and cannot therefore act with the requisite degree of independence expected of him by the Court;


1 Austin, Nicholls & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

4. In the Tribunal he gave evidence and attempted to make submissions in which he expressed views to the Tribunal that conveyed, or appeared to convey his personal opinion on the merits, and this also disqualifies him from appearing as counsel in this proceeding;

5. He was debarred from acting before the Council.

[6] As to costs:

6. The challenge to his status was signalled both in the Tribunal and in earlier conferences in this proceeding;

7. He was debarred from acting before the Tribunal;

8. The situation is so clear that Mr Deliu cannot act as Mr Orlov’s

counsel in the proceeding, that an order for costs is appropriate.

[7] In oral argument, grounds one and three coalesced around the concept of the need for objectivity, and grounds two and four coalesced around the rule almost, that once a person files an affidavit which is contentious at the hearing, that person cannot appear as counsel.

[8] The grounds on which Mr Deliu opposes the making of the orders are as follows:

A The application has no supporting evidence upon which to make any, much less serious, accusations;

B The respondent is unwell, overseas for an extended period of time for medical treatment and is thus disabled from representing himself;

C The respondent has knowingly, intelligently and of his own free will and volition instructed current counsel acting;

D The respondent has a basic and fundamental right to elect counsel of his choice;

E The respondent is unable to appoint other counsel to act for him because of financial and/or lack of experience and/or time constraints;

F The respondent was wrongly denied the counsel of his choice in the Disciplinary Tribunal and this is an issue which he has raised in the High Court;

G The respondent never called a defence in the Tribunal and his current counsel’s affidavit was not read or if it was read was not given any weight and/or was not material and/or did not deal with contentious matters;

H The respondent’s current counsel is a holder of a valid practising certificate, has never been found guilty of a single disciplinary charge, must be presumed innocent until proven guilty and has a right of audience throughout the courts of the land pursuant to the United Nations Basic Principles on the role of Lawyers which at 19 states:

“[no] court or administrative authority before whom the right to counsel is recognised shall refuse to recognise the right of a lawyer to appear before it for his or her client unless that lawyer has been disqualified in accordance with national law and practice and in conformity with these principles”

Such that there is no basis upon which to debar him;

I The applicant has engaged in a pattern of racist discrimination and political persecution of the respondent and his counsel of which the current application is a continuation;

J The respondent is overseas and unable to provide meaningful evidence in support of his opposition and the Court is apparently contemplating setting down a hearing for the debarring application shortly in circumstances where it has been put on notice that current counsel is probably not available as being overseas or having other pre-arranged court commitments such that it is not in the interests of justice to deny the respondent his choice of counsel without the natural justice right to provide evidence in opposition and/or to have the counsel of his choice (or indeed any counsel) argue the debarring application; and/or

K Counsel for the respondent (who is accused of incompetence by the application) has had to prepare this notice of opposition literally less than a few hours from his flight leaving the country in a procedure forma fashion in circumstances where there is no pressing urgency to dispose of the debarring application when the respondent cannot have a fair and proper appeal heard on 1 April 2014.

[9] Notwithstanding K, Mr Deliu did appear and fully argued the case. In the oral argument, his submissions coalesced around ground G and around the importance of giving weight to Mr Orlov’s right to elect counsel of his choice, grounds C, D, E, F and I.

[10] Reframing those two sets of arguments, Mr Deliu emphasised that the inherent jurisdiction of the Court to remove counsel is only to be exercised in extraordinary circumstances. He agrees it is almost a rule that if a person gives contentious evidence in a case, that person cannot be counsel. He argues however, that in this particular case the affidavit he filed, and an earlier affidavit of his filed by Mr Orlov, were not capable of being relied on by the Tribunal as Mr Orlov argued

there is no case to answer, and inasmuch as the first affidavit was referred to in [20]

of the decision, the Tribunal was clear that they were giving it no weight.

[11] Paragraph 20 of the Tribunal’s decision reads: 2

[20] Some further comment is required on the evidence for Mr Orlov. Dr F Deliu provided an affidavit in support of Mr Orlov, somewhat unusually, this was filed by him directly rather than by Mr Orlov. He was not made available for cross-examination. His affidavit is largely a hearsay account of what he has been told by Mr Orlov of the latter’s interactions with Harrison J. it would seem that he was not present on these occasions. The remainder of the affidavit is irrelevant in that it does not relate to the charges before us, but refers to Dr Deliu’s own experiences in other situations. We place little if any weight on this affidavit.

[12] Mr Deliu argued forcibly in respect of Mr Orlov’s right to choose counsel. This was particularly because of his intended radical argument numbered (I) in the grounds of opposition, that this prosecution was an act of discrimination.

[13] As a backup, Mr Orlov argues he could appear in company of other counsel with argument divided so that in no case did he rely on the evidence in his affidavits appearing in the court record.

The law

[14] There was no difference between counsel as to the law, which is settled. The Court’s inherent jurisdiction extends to restraining a barrister from acting where the interests of justice so require.3 In Clear Communications Ltd v Telecom Corporation of New Zealand Ltd Fisher J collected a number of principles, four of which clearly apply here. ,4

(e) A litigant should not be deprived of his or her choice of counsel without good reason. Black v Taylor, supra, at p 409. In particular, the Courts should guard against allowing removal applications to be used as a tactical weapon to disadvantage the opposing party: Black v Taylor, supra, at 420; Schlaks v Gordon & Ors (Unreported, High Court Auckland, M 636/98, 15

May 1998, Giles J). The danger is illustrated by the apparent prevalence of such applications in the United States: Koller v Richardson-Merrell Inc

(1984) 737 F.dd 1038 at 1055-1056 (DC Circuit) (reversed on jurisdictional

grounds at 105 S Ct 290).

2 National Standards Committee v Orlov [2013], NZLCDT 45.

3 Blake v Taylor [1993] 3 NZLR 403.

4 Clear Communications Ltd v Telecom Corporation of New Zealand Ltd 14 PRNZ 477 (HC).

(f) An application for removal requires that a balance be struck between the injustice of depriving a party of his or her lawyer of choice and the injustice of allowing that lawyer to continue in prejudicial circumstances (Manville Canada Inc v Ladner Downes (1992) 88 DLR (4th) 208 at 222-

223; Russell McVeagh McKenzie Bartleet & Co v Tower Corporation [1998]

3 NZLR 641 at 647). In a small country the tension between those considerations may be acute, particularly in a specialised field such as

competition law (Russell McVeagh at p 676).

...

(i) Similarly, the prima facie avenue for policing legal professional conduct is the disciplinary processes of the Law Society. Only if that avenue, in combination with conventional interlocutory remedies, could not safeguard the future integrity of the instant proceedings should the Court itself intervene by removing a lawyer.

(j) Although the jurisdiction is not to be emasculated by setting the threshold so high that it could never be attained, there must be something truly extraordinary before removal could be contemplated. It could be justified only in cases of “truly egregious misconduct likely to infect future proceedings”: Koller v Richardson-Merrel Inc, supra, at 1056.

[15] I should note that these principles do not cover the principle, which is almost a rule, that where a person is a witness, or files an affidavit which is contentious, that person cannot appear as counsel.

Analysis

[16] The High Court will benefit from the assistance of counsel for Mr Orlov. The case has an importance beyond the appellant, Mr Orlov, including at the very least Mr Deliu.

[17] There is substantial merit in Mr Deliu’s proposition that the Tribunal’s verdict would have been the same whether or not his affidavits had been filed. There is a possibility that on appeal, the High Court might agree to conduct the appeal on the record, but ignoring the Deliu affidavits. There is also the possibility that the Court might agree that Mr Deliu appear as counsel provided he does not in any way discuss those affidavits, or rely on them.

[18] For these reasons I think that reliance on the rule that a witness cannot be counsel, is not enough to dispose of this application. Rather, I think it is the fact that Mr Deliu is subject to a very similar set of charges arising out of overlapping sets of

circumstances in respect of the same High Court Judge, which is the principle factor that needs to be balanced against depriving a party of his or her lawyer of choice.

[19] Mr Pyke, for the applicant committee, emphasised the importance in the court process of the objectivity of counsel. That goal is at the heart of the reason for the rule that a witness cannot be an advocate. It is worth reflecting on some of the deeper reasons behind that goal. Society has justice systems to institutionalise and civilise punishments and other consequences for unlawful antisocial behaviour. Ultimately, safe and orderly societies depend on access to justice which is delivered dispassionately. Our long common law history repeatedly shows that judges find confidence in their judgment because of the assistance of capable, informed, and dispassionate counsel. There is a strongly held judicial belief, that the quality of justice depends on the quality of counsel, and of their work.

[20] It is immediately apparent that if Mr Deliu appears as counsel, he will be arguing his own case as well as arguing that of Mr Orlov.

[21] So far the analysis thus places the critical issue as being consideration for the right of Mr Orlov, facing the loss of his status and income, to have the lawyer of his choice. This is my greatest concern. It is plain from the history of this matter by Mr Deliu’s submissions, that both he and Mr Orlov feel isolated and discriminated against in New Zealand. He says they are not “Kiwis”. I think it is fair to sum Mr Deliu’s argument up as saying that Mr Orlov does not want his case presented by counsel who would not be prepared to argue his grounds of appeal.

[22] I invited Mr Deliu to consider alternative arrangements, such as Mr Orlov retaining a Queen’s Counsel who could take such assistance as he or she requires from Mr Deliu. Naturally enough, Mr Deliu was not in a position to say whether or not Mr Orlov would agree to that. I also discussed with Mr Deliu the merit of the Court appointing amicus curiae, should the outcome be that Mr Orlov will argue the case for himself, or, the Court reject this application and allow Mr Deliu to argue the case for Mr Orlov.

[23] I have reflected upon the argument that Messrs Orlov and Deliu are outsiders in our society and are being discriminated against. The common law has a long history of producing counsel well able to represent minorities, new immigrants, and other persons quite different from themselves. I am sure that there are such counsel readily available in Auckland, to represent Mr Orlov, and who would recognise the public importance of the bar ensuring that all persons are properly represented, particularly in cases where their livelihood is at stake.

[24] I also give weight to the fact that no precedent could be produced by Mr Deliu which would justify what would be quite an extraordinary state of affairs if he, in these circumstances, were to appear as counsel for Mr Orlov.

[25] The result is that the application to debar Mr Deliu as counsel is granted. However, the Court also will appoint an amicus curiae with the qualification that Mr Orlov might elect to instruct that person as his counsel. If he does not, that person will remain the amicus curiae. I invite the President of the New Zealand Bar Association to nominate counsel for this task. A copy of this judgment is to be sent to the New Zealand Bar Association immediately, as the fixture is set for 1 and

2 April.

[26] The applicant is entitled to costs on a 2B basis in the usual way. I decline to make an order that it be paid immediately. The decision of the Tribunal not to allow Mr Deliu to be counsel was based solely on the filing into the record of his affidavit. As this judgment shows, in the particular circumstances of the case, the issue of Mr Deliu appearing as counsel was not resolved by simple application of the rule that a person cannot be both a witness and counsel. If the parties cannot agree on the amount of costs, I will receive submissions limited to five pages from each party exchanged in draft before filing. The quantum of costs is reserved.









Fogarty J


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