ORLOV v THE NZ LAWYERS AND CONVEYANCERS DISCIPLINARY TRIBUNAL [2014] NZHC 1987

[21 August 2014]

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2013-404-5088

[2014] NZHC 1987

UNDER

the Judicature Amendment Act 1972 and

Declaratory Judgments Act 1908

IN THE MATTER

of an application for judicial review of

decisions of the Lawyers and

Conveyancers Disciplinary Tribunal

BETWEEN

EVGENY ORLOV

Applicant

AND

THE NEW ZEALAND LAWYERS AND

CONVEYANCERS DISCIPLINARY

TRIBUNAL

First Respondent

AND

THE NATIONAL STANDARDS

COMMITTEE NO 1

Second Respondent

AND

Hearing:

Court:

24 - 26 June 2014

Ronald Young and Simon France JJ

Counsel:

Appellant/Applicant in Person

W C Pyke for Respondents

R J Hollyman as Amicus Curiae

Judgment:

21 August 2014

JUDGMENT OF THE COURT

A The five operative charges are all amended to be charges alleging a

breach of s 7(1)(a)(i) of the Lawyers and Conveyancers Act 2006.

B Mr Orlov’s appeal against conviction on these charges is dismissed.

C Mr Orlov’s penalty appeal is allowed. The order striking him from the

roll of barristers and solicitors is quashed. No alternative sanction is

imposed.

___________________________________________________________________

Reasons of the Court

(Given by Simon France J)

Table of Contents Paragraph No.

I Introduction [1]

A Background [3]

B Further Context [21]

II Conviction Appeal and Judicial Review [22]

A Issue One : Amendment of Charges [22]

B Issue Two : Late Filing of Evidence [37]

C Issue Three : No Case to Answer [54]

D Issue Four : Absolute Privilege Attaching to

Charged Statements [70]

E Issue Five : The Admissibility of Judgments [78]

F Issue Six : Freedom of Expression [81]

G Issue Seven – The Appeals [94]

1 The correct charges – the meaning of

“unconnected with the provision of regulated

services” [96]

2 Is Mr Orlov responsible for the charged conduct? [116]

3 The charges considered [122]

a Letter to the Chief High Court Judge [131]

b Originating application filed in High Court [142]

c Application filed in Supreme Court [147]

d Complaint to Human Rights Review

Tribunal [160]

e Complaint to Judicial

Conduct Commissioner [167]

H Issue Eight : Composition of the Disciplinary Tribunal

and Bias [176]

I Conclusion [183]

III Sentence appeal [184]

A Procedural Issues [185]

B Reasons for Striking Off [187]

C Our Analysis [189]

IV Conclusion [206]

I Introduction

[1] Mr Orlov was a litigation lawyer based in Auckland. Five charges of

professional misconduct were laid against him by the National Standards Committee

of the New Zealand Law Society (“the Committee”).1 All charges stem from

statements he made about Harrison J, who was then a High Court Judge based in

Auckland. Following a five day hearing before the New Zealand Lawyers and

Conveyancers Disciplinary Tribunal (“the Disciplinary Tribunal”), Mr Orlov was

found guilty of misconduct.2 It was held that he had made statements that were false

or made without sufficient foundation, and that the nature of the statements meant he

was not a fit and proper person to be a lawyer. Following a separate penalty hearing,

Mr Orlov was struck off.3

[2] Mr Orlov has appealed both decisions, and has also filed judicial review

proceedings. All matters have been heard together.4 Mr Hollyman was appointed

amicus, and we record our appreciation of his assistance.

A Background

[3] By way of background, we observe there was clearly tension between

Mr Orlov and Harrison J. It is plain from the record that Harrison J had concerns

about Mr Orlov’s approach and competency. The manifestations of these concerns

(interspersed with Mr Orlov’s responses) were:

(a) On the first occasion of contact, Harrison J warned Mr Orlov that he

considered him to be in contempt of court. Matters were stood down

to allow Mr Orlov to obtain assistance from senior counsel who

shortly after appeared on Mr Orlov’s behalf. Matters were resolved.

1 Three of the charges had alternatives.

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

3 National Standards Committee v Orlov [2013] NZLCDT 52.

4 There were various applications made by Mr Orlov at the start of the hearing, including an

unsuccessful application for adjournment. These matters are addressed in a separate ruling being

issued concurrently with this judgment.

(b) On the second occasion, when declining an application by Mr Orlov

for adjournment, Harrison J directed that his adjournment judgment

be sent to the Professional Standards Director of the Auckland District

Law Society. Then in the substantive judgment Harrison J put

Mr Orlov on notice of a risk of a personal costs award.

(c) Following this hearing, Harrison J wrote to the Auckland District Law

Society requesting it to inquire into Mr Orlov’s competency and

qualifications.

(d) There was a two year hiatus prior to any further contact. However, on

this occasion Harrison J again directed that his substantive judgment,

striking out judicial review proceedings, be referred to the

Professional Standards Director of the Auckland District Law Society.

His Honour adjourned the costs issue for consideration as to whether

personal costs should be ordered against Mr Orlov and Mr Deliu

(a lawyer associated with Mr Orlov).

(e) It was at this point Mr Orlov wrote to the Chief High Court Judge

requesting that he direct that Harrison J not be allocated to any case

involving Mr Orlov or his firm. Justice Randerson declined.

Comments made by Mr Orlov in this letter and an accompanying

document were the subject of charges 1 and 2.

(f) Mr Orlov and Mr Deliu then filed an originating application in the

High Court seeking orders that the Registry not allocate any of their

cases to Harrison J. Mr Orlov filed an affidavit in support. This

application and the accompanying affidavit underlie charges 3 and 4.

(g) Justice Harrison then made an award of personal costs against the two

lawyers in relation to the case discussed at (d) above.

(h) Mr Orlov and Mr Deliu filed an application in the Supreme Court for

leave to appeal the costs award. The contents of this application are

the basis of charge 5.

(i) Mr Orlov around this time also made his complaint to the Judicial

Conduct Commissioner. The statements made in that complaint

underlie charges 7 and 8.

(j) Next, a case of Mr Orlov’s was called before Harrison J in a

Chambers list. Justice Harrison directed the resulting judgment to be

referred to the Professional Standards Director of both the Auckland

District Law Society and the New Zealand Law Society.

(k) Mr Orlov then made a complaint to the Human Rights Review

Tribunal complaining of discrimination. The nature of the comments

made there underlie charge 6.

[4] The complaints made by Mr Orlov largely follow a similar pattern. Mr Orlov

would identify in relation to each of the cases he had before Harrison J, the things he

thought were wrong with what the Judge did. We refer to these as the primary facts

(as alleged by Mr Orlov). There were two categories of primary fact5 – first,

descriptions of what is said to be improper conduct by Harrison J and second, the

circumstances of the actual case. Mr Orlov at times described these circumstances in

detail to illustrate what he regarded as bad decision-making by the Judge.

[5] The primary facts having been set out (improper conduct and bad decisions),

Mr Orlov then ventured opinions on why these things were occurring. Why did the

Judge query his competence, ask about his qualifications, get angry at him, and make

these poor decisions which caused harm to his clients? Mr Orlov’s answers vary

slightly but have a broad consistency. In his view the Judge was biased against him

because the Judge did not like Mr Orlov, and did not like foreign lawyers. It is also

said Harrison J discriminated against him because of his political beliefs, these

seeming to be that Māori were disadvantaged and human rights were important. Mr

5 They were not labelled this way by Mr Orlov.

Orlov went further again and suggested that these prejudices impacted on the

substantive decisions. He suggests, for example, that the bad decisions in one case

are explicable by the fact that Mr Orlov’s client was Russian as is Mr Orlov.

[6] The five charges laid by the Committee relate to five separate occasions on

which Mr Orlov wrote complaints about Harrison J. These are the events described

above in sub-paras (e), (f), (h), (i) and (k) of para [3].

[7] The charges focus on the manner in which the complaints were expressed.

Not content with identifying and objecting to conduct, Mr Orlov attributes both

extreme characteristics (for example, maliciousness, vindictiveness and spitefulness)

and ulterior motives to that conduct. Mr Orlov variously claims the Judge to be

motivated by spite, by a desire to punish Mr Orlov, by a desire to ruin his career, and

by dislike of Mr Orlov based either in prejudice against his political opinions (pro

human rights, and believing Māori to be oppressed) or his ethnicity (Mr Orlov is of

Russian origins, but came to New Zealand as a young boy). It is at times alleged

Harrison J was racist against Māori,6 is “a danger to the public” and that the

discriminatory attacks on Mr Orlov are likely to increase in severity.

[8] The five charges allege that Mr Orlov, by these comments and many others,

is guilty of misconduct.

[9] Alternative charges were laid in relation to each of three of the

communications. The Lawyers and Conveyancers Act 2006 (“the Act’), in its

definitions of misconduct, differentiates between conduct whilst providing regulated

services,7 and conduct otherwise.

8 For the former, the test is whether the conduct

would be regarded as disgraceful or dishonourable by lawyers of good standing.9

However, for activity done outside the work environment, the test is whether the

conduct means the person is not a fit and proper person to engage in practice.10

There

6 In oral submissions Mr Orlov denied alleging this, but it is the clear import of ground 4 of the

application for special leave. 7 Lawyers and Conveyancers Act 2006, s 7(1)(a).

8 Lawyers and Conveyancers Act 2006, s 7(1)(b)(ii).

9 Lawyers and Conveyancers Act 2006, s 7(1)(a)(i).

10 Lawyers and Conveyancers Act 2006, s 7(1)(b)(ii).

was some uncertainty as to the proper classification of Mr Orlov’s activity, hence the

alternative charges. We address this issue at [94]–[115] of the judgment.

[10] The full set of charges are listed as an appendix but we set out charge 1 to

illustrate how the matter proceeded. This relates to the initial complaint Mr Orlov

made to the Chief High Court Judge:

Charge Nr 1

The National Standards Committee charges Evgeny Orlov, lawyer of

Auckland, with misconduct that would justify a finding that he is not a fit

and proper person or is otherwise unsuited to engage in practice as a lawyer

in terms of s.7(1)(b)(ii) of the Lawyers and Conveyancers Act 2006, by

virtue of making allegations about the Honourable Justice Rhys Harrison

that were either false or were made without sufficient foundation, in his letter

dated 6 August 2008 sent to the Chief High Court Judge, the Honourable

Justice Randerson.

Particulars of the allegations made by Mr Orlov:

1.1 that Justice Harrison acted towards him and continued to act towards

him in a manner of actual and/or apparent bias;

1.2 that by Justice Harrison’s direction in paragraph 30 of His Honour’s

judgment dated 14 November 2005 in [G] v Chief Executive Officer of the

Department of Child Youth & Family Services & Another

(CIV2005-404-424, High Court Auckland (“the [G] Proceeding”) Justice

Harrison improperly referred Mr Orlov’s conduct in that case to the

Professional Standards Director of the Auckland District Law Society;

1.3 that a miscarriage of justice had occurred due to the attitude and

intemperance of Justice Harrison in the [G] Proceeding;

1.4 that Justice Harrison subjected him and his client to highly improper,

inflammatory and intemperate criticisms;

1.5 that Justice Harrison had singled him out and was attacking him

personally;

1.6 that Justice Harrison subjected him and unspecified colleagues to

improper persecution and discrimination;

1.7 that Justice Harrison was attempting to punish him and his

colleagues for their beliefs or ethnicity, or both;

1.8 that Justice Harrison intentionally and maliciously caused him

unspecified harm, and had conducted himself as a judicial officer in an

atmosphere of horrific denigration and insult, with uncontrolled and

unpredictable rage against him.

Further Particulars of the Charge:

1.9 by making the allegations as aforesaid Evgeny Orlov breached his

over-riding duty as an officer of the Court, in breach of Rule 2.1 of the

Lawyers & Conveyancers Act (Lawyers: Conduct and Client Care) Rules

2008 (“the Conduct and Client Care Rules”);

1.10 by making the allegations as aforesaid Evgeny Orlov acted in a way

that undermined processes of the Court and the dignity of the judiciary, in

breach of Rule 13.2 of the Conduct and Client Care Rules.

[11] It can be seen that the statements (particulars) that are said to be false or

without sufficient foundation focus in the main on the labels that Mr Orlov attaches

to Harrison J’s conduct, and on the inferences that Mr Orlov draws from those

primary alleged facts. The underlying primary facts are themselves generally not

mentioned in the charges. Notwithstanding this, Mr Orlov believed the key to the

case was these facts. His view was that unless these underlying claims could be

shown to be false, he could venture whatever opinions he wanted about them and

attach whatever labels he wanted to them as long as he believed that what he was

saying was correct.

[12] This focus on the primary underlying facts led Mr Orlov both to challenge the

sufficiency of the charges, and to claim he was entitled to more detail about which of

these primary facts was being said by the Committee to be wrong. This detail was

never forthcoming, no doubt because the Committee was focusing on the correctness

not of the primary facts but of the claims Mr Orlov made based on them.11

Consistent with this approach, the Committee did not file specific evidence designed

to prove the falsity of the primary facts. There was no recording or transcript

available for most of the hearings, and the Judge’s decisions could speak for

themselves as to their soundness or otherwise.

[13] Mr Orlov’s belief that the prosecution had to disprove his primary facts, and

his recognition that it was not planning on doing so, led him to vigorously pursue a

no case to answer submission. He wanted that application heard prior to the hearing

but the Disciplinary Tribunal declined. The Disciplinary Tribunal considered and

dismissed the no case to answer application after the prosecution had called all its

11

This challenge was rejected by the Court of Appeal but in relation to differently worded charges

than those which Mr Orlov would ultimately face. Orlov v New Zealand Law Society [2013]

NZCA 230, [2013] 3 NZLR 562 at [131]–[132].

evidence. The sufficiency of the particulars, and the Disciplinary Tribunal’s handling

of the no case to answer application, are two of the judicial review challenges.

[14] Mr Orlov’s third challenge concerned the decision by the Disciplinary

Tribunal to allow the Committee to amend the charges only a month before the

hearing. Initially, the allegation made in the charges was that the statements set out

in the particulars were “false and scandalous” and that Mr Orlov at the time of

making them knew they were false, or was at least reckless as to their truth. The

changes made shortly before the hearing were significant. The label of scandalous

was removed, and the claim that the statements were false was protected by the

addition of an alternative, namely that they were “made without sufficient

foundation”. Finally, the allegation that Mr Orlov knew the statements were false or

was reckless about that was also abandoned. Mr Orlov submits on the judicial review

that he was prejudiced by these late amendments and should have been given more

time to adjust.

[15] These then are the three main claims of unfairness made on the judicial

review – the lack of particulars, the handling of the no case to answer submission

and the late amendments. There are, however, other matters raised. In particular,

prejudice is said to have arisen from the decision of the Disciplinary Tribunal to

allow the prosecution to, at a late stage, introduce further evidence. This evidence

consisted of two bundles of documents, and two affidavits from lawyers who were

present at two of the hearings and who would proffer a different view of Harrison J’s

conduct from that being advanced by Mr Orlov.

[16] In relation to the appeal against the finding that the charges were proved, Mr

Orlov disputes that the statements he made, whether soundly based or not, can

satisfy the charges. This proposition is advanced, at a broad level, on the basis that

the statements were protected as free speech, and at a more specific level, on the

basis that the statements he made, if not made in bad faith, cannot satisfy the level of

charge being brought against him. In addition to these broad challenges, Mr Orlov

also makes specific challenges. He says, for example, that it has not been proved he

is sufficiently connected to some of the documents to be charged in relation to them.

Challenge is also made as to whether the capacity in which Mr Orlov was acting was

personal (Mr Orlov’s claim) or as a practitioner. There are also other claims of

inadmissibility, a claim of immunity or privilege, and an allegation of bias.

[17] Finally, Mr Orlov appeals against the sentencing decision to strike him off the

roll of barristers and solicitors.

[18] There is a great deal of overlap between the judicial review application, and

the appeal. Accordingly, we address the issues in what appears to us the most logical

order, regardless of whether their origin is the review or the appeal.

[19] We note for the record that of the three day hearing before us, Mr Orlov was

allocated two days to present his case. At his insistence, the bulk of this time was

taken up with the judicial review challenges. Mr Orlov was determined to analyse

the underlying cases in which the tension between Harrison J and he emerged. The

primary purpose seemed to be a desire to establish Mr Orlov was right and his

Honour was wrong on the merits.

[20] We expressed concern at various points with his focus and suggested

Mr Orlov address more substantive issues and indeed his appeals. In our view

Mr Orlov had ample opportunity within the two days to present his case. The

manner in which that time was used was Mr Orlov’s informed choice.

B Further context

[21] With some hesitation we reproduce the Tribunal’s summary of the court cases

in which Harrison J and Mr Orlov were involved. Whilst it lengthens this judgment,

we have come to the view Mr Orlov’s complaints are so interconnected it is

impossible to consider them without detailing the underlying cases. Mr Orlov

complains about this summary, feeling it is incomplete and does not give his point of

view, but we are satisfied it adequately reviews the background:

Summary of proceedings

C v R12

Mr Orlov’s first contact with Justice Harrison appears not to have been in his

capacity as counsel but in connection with an application for Habeas Corpus

made on behalf of Mr C, at the High Court at Auckland on 22 August 2005.

An order was sought to secure compliance by Ms R with Orders of the

Family Court relating to the shared custody of a child. The application for

Habeas Corpus sought to have the child delivered to the High Court at

Auckland. Orders had previously been made by consent for shared custody.

Ms R was refusing to comply. Mr Orlov had appeared before Judge Smith in

the Family Court at Tauranga on 28 July 2005 resulting in a judgment dated

29 July 2005 in which the Judge directed Child Youth & Family to uplift the

child from Ms R and return him to Mr C’s care, on directions that Mr C lived

with such persons as directed, as a protective measure for the child, but

maintaining that Ms R could have shared custody. Justice Harrison on

29 August 2005 granted orders by way of Habeas Corpus to the effect that

the child be delivered by Child Youth & Family Services.

Mr Orlov had previously applied (ex parte) to the High Court for interim

relief, which had been refused by Ellen France J. When Mr Orlov appeared

in Justice Harrison’s Court on the Habeas Corpus matter it was in result of

being served with that application – in response he filed a memorandum

informing the Court that he was not acting for Ms R in the Habeas Corpus

matter. Mr Orlov says that Harrison J became furious and that he threatened

to imprison him for contempt unless he advised Ms R to appear in Court.

Mr Orlov contacted Dr Rodney Harrison QC who appeared in Court at short

notice. Mr Orlov undertook to inform his client of the Habeas Corpus writ.

When the case was before Harrison J no finding had been made against the

father – but allegations of abuse had emerged. A finding was made by

Judge Sommerville in December 2005 that the father had abused two other

children, although the police had declined to charge him. The Judge could

not decide if he had abused the child in question. Mr C appealed but it was

dismissed; there was a cross-appeal brought, in which Mr Orlov acted, and

which ranged widely and was trenchantly critical of the Family Court and

the Child Youth & Family Services. Later, there was the sequel before

Judge Sommerville in the declaration proceedings.

The statement of Rodney Harrison QC says that Harrison J either indicated

(or Dr Harrison QC formed the impression) that Harrison J had “had a

re-think” and did not pursue the issue of contempt further (p2 statement).

The Committee also refers to the reply affidavit of Simon Jefferson QC who

recalls Harrison J responding “firmly” to Mr Orlov and did not recall any

“unjudicial or excessive” actions of Harrison J.

12

In these cases statutory prohibitions apply to the identity of alleged victims, and some parties.

Accordingly, they are referred to by initial only.

G v Chief Executive Officer of the Department of Child Youth & Family

Services

It appears that the next occasion on which Mr Orlov appeared before

Justice Harrison was in the proceeding [G] v Chief Executive Officer of the

Department of Child Youth & Family Services and Barnardos New Zealand.

This proceeding involved an appeal against orders made by the Family

Court. In the Family Court Ms [G] had been represented by another lawyer.

The hearing of the appeal was allocated for 14 November but on 28 October

Mr Orlov filed a memorandum saying that he was not “on the record”. But

in an affidavit sworn in support of his application for adjournment Ms [G]

advised that she had raised funds and that Mr Orlov was in receipt of

instructions. Another adjournment was sought on 9 November 2005 which

was dismissed by Justice Cooper, in the absence of a formal signed

document and affidavit in support. Mr Orlov appeared at a hearing on

14 November before Justice Harrison and renewed his application for

adjournment. Numerous grounds were offered by Mr Orlov for the

adjournment, which are set out in paragraphs 11 to 24 of the judgment

leading to dismissal of the application for adjournment.

During the course of argument before Harrison J the Judge formed the

opinion that the appeal was misconceived and that this was as a result of

Mr Orlov’s lack of competence. The appeal was against the exercise of a

statutory discretion. The disposition of the lower court proceeding and the

appeal turned on the first and paramount consideration of the child’s welfare

and interest.

The Judge was critical of Mr Orlov’s lack of legal analysis and misconceived

arguments, in particular the arguments relating to the lack of investigation

into a medical condition of Mr Orlov’s client, which he rejected, along with

other arguments, particularly rights based arguments that had no foundation.

The appeal was dismissed (1/187). The Judge put Mr Orlov on notice that

he may be exposed to costs. This judgment was upheld on appeal.

Mr Orlov and his client Ms [G] (at 1/199 to 1/208) recorded their

dissatisfaction with the treatment of Mr Orlov by the Judge describing that

treatment variously as discourteous, inhumane, obnoxious, arrogant, and

rude. Mr Orlov felt aggrieved by the Judge pointing out his lack of

knowledge of the applicable legal principles which Mr Orlov interpreted

along with interruptions made during submissions to be undermining of him

in the eyes of his client and aggressive. Connected proceedings were heard

by other High Court Judges. The Court of Appeal judgment in [G] upheld

Harrison J’s reasoning.

The Committee referred to the evidence of Ms Jennifer Irving, counsel for

child in this matter, as to her recollection of the hearing before Harrison J.

She does not recall discourtesy to Ms [G] on the part of Harrison J, nor any

screaming by the Judge. She does recall Harrison J enquiring into

Mr Orlov’s qualification following discussion “including the issues or

Mr Orlov’s evidence, unfamiliarity with the papers, process or statute”.

L v Chief Executive of the Ministry of Social Development

The next proceeding in which Mr Orlov was involved relating to

Justice Harrison was on behalf of his clients Mr and Mrs [L]. This

proceeding was an application for judicial review of the Family Court

decision relating to interim custody which resulted in the application for

review being struck out. The decision to strike out the application review

was in some part reversed by the Court of Appeal. Harrison J also ordered

costs against Mr Orlov and Mr Deliu and an appeal against that Costs Order

succeeded when brought by Mr Deliu, but Mr Orlov settled the question of

costs. Despite the successful appeal the proceeding was discontinued by the

[L]s. What is important to note is that the Court of Appeal recorded that the

appellants in that case had been “granted an indulgence” (by Harrison J).

The Court confirmed that the statement of claim “contained much that was

legally wrong”. The application for judicial review was reinstated on terms,

with the Court of Appeal holding that neither the High Court nor the

respondent should have to deal with “those parts of the existing statement of

claim which are legal mumbo-jumbo and which bear no relation to the true

complaint the [L]s’ made”. Earlier in the judgment the Court of Appeal had

agreed with most of what Justice Harrison had held holding that Harrison J’s

description of the statement of claim as “a jungle of conceptional confusion”

was a description that was “entirely justified”. The original six lines of

attack had been reduced to four by virtue of a strike out judgment of

Winkelmann J on 4 March 2008, leaving four “supposed causes of action,

none of which was coherently pleaded”.

In the course of the [L] proceeding, after Justice Harrison’s judgment dated

24 July 2008 dismissing the application for judicial review, Mr Orlov and

Mr Deliu applied for Justice Harrison to recuse himself from delivering any

further judgments in the case. This coincided with a separate originating

application brought by both of them for general recusal. Justice Harrison

refused the recusal motion in the [L] case in His Honour’s costs judgment

dated 13 October 2008.

The originating application brought by Mr Orlov and Mr Deliu was

discontinued and Mr Orlov and Mr Deliu apologised to the Judge by letter

dated 4 December 2008. But it was not all over.

Mr Orlov and Mr Deliu appealed against the costs judgment. Records

indicate that Mr Orlov abandoned his appeal after the parties reached a

settlement. The costs order against Mr Deliu was overturned by the Court of

Appeal. The Court of Appeal did however endorse Harrison J’s concerns

about the conduct of the case.

The record does not provide support for Mr Orlov’s submission that

Harrison J deliberately made an “illegal” costs order.

Hung

Mr Orlov next appeared before Justice Harrison in Hung v Tse High Court

Auckland CIV 208-404-8568. Mr Orlov has referred to this as the ‘Parts

Imports’ case because it related to an attempt to bring a derivative action by

a director and shareholders in Parts Imports Ltd, a Company that had been

placed in liquidation. Such actions may only be brought with the leave of

the Court, and where the Company is in liquidation the liquidator must be

served with the leave application.

The problems Harrison J saw with Mr Orlov’s proceeding are outlined in the

exchange between the Judge and Mr Orlov that took place on

9 February 2009 for which a transcript is available. This is the only

transcript which has been provided to the Tribunal in respect of the four

interactions between Mr Orlov and Harrison J.

In short, Mr Orlov had not joined the trustees of the trust shareholder by

name (which was then required); had not joined the Company (in

liquidation) or it seems served it; failed to address the grounds for leave;

failed to recognise the existence of another claim based on the same or

similar causes of action, and failed to seek directions under s 284 of the

Companies Act (required as Parts Imports Ltd was in liquidation, so either

the liquidator or the court had to approve the contemplated action). There

were other procedural problems. Harrison J struck out the proceeding and

initiated an inquiry as to who was instructing Mr Orlov or had authorised

filing of the claim (as the memorandum failed to show a filing solicitor but

instead showed Mr Orlov, then a barrister, as filing the claim, which he was

not entitled to do – see old Rule 41); the Judge referred the judgment to the

Law Society.

Mr Orlov had criticised Harrison J’s questioning of him as to whether he had

an instructing solicitor for these proceedings. The Committee submitted that

it is clear from the record that Harrison J had a basis for enquiring into this

issue.

II Conviction Appeal and Judicial Review

A Issue One: Amendment of Charges

[22] The hearing was scheduled for 15 July 2013, but then changed to

2 September 2013. On 18 July 2013 the Committee applied to amend the charges.

Mr Orlov filed a notice of opposition on 29 July 2013. Without, as we understand it,

proffering Mr Orlov an opportunity to file submissions or be heard on the topic, the

Disciplinary Tribunal issued a decision on the papers on 6 August 2013. The

amendments were allowed, the Disciplinary Tribunal being of the view that:

… with about four weeks until the start of the hearing, there is nothing in the

amendments which would prejudice Mr Orlov.

[23] Mr Orlov challenges this decision, both as to the process that was followed

and what he claims to be the prejudice resulting.

[24] Concerning the process, we consider it was flawed. The application to amend

was made two years and two months after the charges were initially laid, and less

than two months before the hearing was to start. There had been several High Court

decisions, and a Court of Appeal decision, all based on the existing charges. Further,

there had been a direction five months earlier that the Committee file any amended

charges by 26 February 2013. At that time Mr Pyke had advised the Disciplinary

Tribunal that there would be no application to amend the charges.

[25] Moreover, by the time of the amendment application, the Disciplinary

Tribunal knew that Mr Orlov’s counsel of choice had been debarred from acting, and

that he was now representing himself. These matters together merited a serious

inquiry into the proposed changes and their possible effect. We also consider that

prosecution counsel’s memorandum accompanying the application was inadequate.

Whilst it described the proposed changes it did not identify the reason for them or

the possible implications. The Disciplinary Tribunal, even putting to one side

Mr Orlov’s opposition, was not in a position to assess the application on the papers.

[26] Mr Orlov should have been given an opportunity to make submissions. His

Notice of Opposition contained a series of points, but does not at all indicate that he

considered them sufficient to allow the Disciplinary Tribunal to proceed without

more. The Disciplinary Tribunal is obligated to accord natural justice and in this

respect failed to do so.

[27] There is no doubt these were significant changes – much more so than

counsel’s memorandum suggested or the Disciplinary Tribunal appreciated given

how it dealt with and reasoned the matter. The original charges accused Mr Orlov

of:

… deliberately or recklessly making false and scandalous allegations against

Harrison J.

[28] The new charges would accuse Mr Orlov of:

… making statements against Harrison J that were false or made without

sufficient foundation.

[29] Two obvious differences can be seen. The Committee has no longer given

itself the task of proving falsity; now proof of an insufficient basis for making the

claims will suffice. Second, it is no longer alleged that Mr Orlov knew the

statements were false, or was reckless as to that fact.

[30] We are satisfied that the nature of the new charges was correct and

appropriate. The new wording reflects the decision of the Full Court in Gazley v

Wellington District Law Society.13

There, having reviewed overseas authority, the

Court observed that the privilege and immunity a lawyer enjoys:14

… bring with them a professional responsibility not to make allegations

“without a sufficient basis” or “without reasonable grounds”. This

responsibility applies irrespective of the persons against whom allegations

are made.

[31] That passage built on the well-known statement by Lord Reid:15

Every counsel has a duty to his client fearlessly to raise every issue, advance

every argument, and ask every question, however distasteful, which he

thinks will help his client’s case. But, as an officer of the court concerned in

the administration of justice, he has an overriding duty to the court, to the

standards of his profession, and to the public, which may and often does lead

to a conflict with his client’s wishes or with what the client thinks are his

personal interests. Counsel must not mislead the court, he must not lend

himself to casting aspersions on the other party or witnesses for which there

is no sufficient basis in the information.

[32] There was much sense in the change being made by the Committee.

Notwithstanding the extreme nature of Mr Orlov’s allegations, falsity is difficult to

objectively prove when the Judge, properly, is not available as a witness. The

allegations are generally about matters that are not readily susceptible to proof,

especially absent a denial from the person impugned. It is not enough to resort to

reasoning such as a Judge would not have such motives, or on its face the judgment

does not disclose that it was motivated by underlying prejudice. By contrast, a

13

Gazley v Wellington District Law Society [1976] 1 NZLR 452 (HC). 14

At 454. 15

Rondel v Worsley [1969] 1 AC 191 (HC).

charge which puts in issue the basis that the practitioner had for making the

statements, appropriately places the focus on the practitioner’s conduct.

[33] However, the appropriateness of the amendment does not alter the fact that it

was a significant change being made at a late stage. The task for the Committee

certainly became more straightforward but that is no reason in itself to hold it to its

original formulation. The key issue, as it inevitably is in these situations, is whether

Mr Orlov was prejudiced by the timing of the change and the denial of an

adjournment.

[34] Mr Orlov’s main claim to prejudice is that the change meant he now had to

prove his primary facts. He wanted an adjournment so he could gather together such

evidence as might be available to show what happened on the hearing days in issue.

This submission squarely puts in issue Mr Orlov’s analysis of the case. We consider

his focus on the primary facts was incorrect and failed to recognise that the real issue

was the legitimacy of the claims he was making based on those primary facts. Put

simply, even assuming that things happened as Mr Orlov claims, what is the basis for

saying that they stem from prejudice, racism and a malicious desire to harm Mr

Orlov rather than from the fact that the Judge considered Mr Orlov was not

displaying the basic knowledge and skills a client is entitled to expect from their

lawyer?

[35] We are satisfied Mr Orlov was not prejudiced by the change. The particulars

which identify the objectionable statements had not changed. Mr Orlov’s decision to

ignore providing a justification for the pleaded statements and to focus on the

primary facts was his choice. Further, in reality he has said all that can be said in

support of the reasonableness of making these allegations. In each of the documents,

and to the extent he chose to do so in his affidavit filed in the Disciplinary Tribunal,

Mr Orlov has set out the basis for his claims. Whether that material provided a

sufficient basis was a matter for analysis and submission. It did not require further

evidence. Accordingly, despite a process breach in the handling of the amendment

application, we do not consider prejudice has resulted.

[36] For completeness we record Mr Orlov’s submission that the Disciplinary

Tribunal had no power to allow any amendment prior to the hearing. This

submission seems to be based on the fact that reg 24 of the Lawyers and

Conveyancers Act (Disciplinary Tribunal) Regulations 2008 states that the

Disciplinary Tribunal may amend charges at the hearing, if it considers it

appropriate. This broadly worded power cannot be read, as Mr Orlov suggests, as

only allowing amendments at the hearing. The Disciplinary Tribunal is entitled to

set its own procedure. We are sure the provision is designed solely to emphasise that

the Disciplinary Tribunal can amend as late as at the hearing if circumstances

require.

B Issue Two: Late Filing of Evidence

[37] Mr Orlov complains of prejudice resulting from three separate issues

concerning admissibility of evidence.

[38] The first relates to the Committee tendering two substantial volumes of

documents shortly before the hearing. Permission to file the documents had been

sought from the Disciplinary Tribunal at the same time as the application was made

to amend the charges. The documents in issue all come from the court files of each

of the four cases in which Mr Orlov and Harrison J were involved. The documents

are collated by case, and indexed by provenance, but there is no commentary or any

other indication of the use to which they would be put. Mr Orlov submits the

documents were inadmissible and that he was prejudiced by their late provision and

the manner in which they were provided.

[39] Dealing first with admissibility, reg 25(1) of the Lawyers and Conveyancers

Act (Disciplinary Tribunal) Regulations 2008 provides that evidence will only be

admitted by affidavit unless leave is otherwise given. Such leave was sought and

obtained, so the Committee was permitted to file them in the manner it did. The only

other admissibility challenge could be relevance. However, at the time of admission,

it was inevitable that case information from the files of these four cases would be

seen as relevant. We are satisfied the documents were properly admitted. Again, the

real issue is whether the timing of the evidence has occasioned prejudice.

[40] In assessing prejudice we bear in mind that Mr Orlov was representing

himself and was plainly in a stressful situation. It cannot have been easy to be

confronted relatively late in the piece with two further large bundles of documents,

and without any real sense of what was going to be done with them. As it happens

not much was, but we can accept it must have been a little overwhelming.

[41] We are satisfied, however, that no prejudice has been occasioned. The first

point to note is that none of these documents were new to Mr Orlov. The documents

were all from files in which he had been counsel and consisted of minutes, rulings,

and memoranda. Mr Orlov objected to us that the files were incomplete but could not

point to any significant omissions. We accept Mr Pyke’s advice that only the

administrative or obviously irrelevant were not included.

[42] Whilst we have some sympathy for Mr Orlov’s situation in not being aware

of the use to which the documents might be put, it is the reality of litigation. There is

no obligation to detail in advance the intended use of documents properly before the

Disciplinary Tribunal. No doubt many may have been used had Mr Orlov subjected

himself to cross-examination, which he declined to do.

[43] In fairness to the Committee, we note that it was not through a lack of effort

that the documents were only available at this stage. The Committee was unable to

obtain Mr Orlov’s consent to access the files so was obliged to make formal

applications in contested hearings for access. The entire process became somewhat

drawn out. The detail is now irrelevant but we are satisfied the documents were

produced as soon as they became available to counsel and were given to Mr Orlov at

the same time. We also note that the process mandated by the Court was that, having

accessed the file, the Committee return to Court to obtain permission to use the

particular documents they had identified. This happened in June 2013 and that is the

fairer point in time for assessing prejudice. Mr Orlov must have become aware at

that time of what documents the Committee was seeking to use, and as we

understand it, he had or could have had copies of them.

[44] The second group of documents about which challenge is made was a

collection of documents taken from an Auckland District Law Society complaints

file. As we understand it, it is the file that was started upon receipt of Harrison J’s

formal request that the Society inquire into Mr Orlov. The documents were

introduced through the Committee’s primary witness as part of re-examination.

[45] Mr Orlov objects because competency was not in issue in this hearing.16

He

submits that the file was therefore irrelevant and in any event prejudicial because

what was put in was only part of the file. The admissibility challenges cannot

succeed. As Mr Pyke points out, Mr Orlov had himself included many of the

documents in an appendix to the affidavit he filed in the Disciplinary Tribunal.

Second, Mr Orlov cross-examined the Committee’s witness about the Auckland

District Law Society investigation. On ordinary principles, the Committee was

entitled to introduce the material on re-examination.

[46] Concerning prejudice, we understand Mr Orlov’s main complaint to be that

an opinion by Mr Illingworth QC, in which Mr Illingworth is said to have advised

the Committee there was no case for Mr Orlov to answer on incompetence, was not

included. We have not seen Mr Illingworth’s opinion but accept Mr Orlov’s point

that potential unfairness results from an incomplete file being provided. However,

we again are not satisfied that any prejudice has resulted. The hearing was not about

competence, and Mr Illingworth’s opinion, whilst it might have given a more

complete picture of the file, would not therefore have been of particular assistance.

[47] Generally our view is that this whole issue was rather unnecessary. The

relevance of Mr Orlov’s competence is not apparent, and with hindsight the

Committee would have been better to let it pass rather than seek to place more

material before the Disciplinary Tribunal, most of it irrelevant to the actual issues to

be determined.

16

There are charges querying Mr Orlov’s competence, but they were severed off and have not yet

been heard.

[48] The third evidential matter is the late filing by the Committee of evidence

from two lawyers who were in Court on one or other of the occasions on which

Mr Orlov appeared before Harrison J. The first witness was Mr Simon Jefferson QC

who was present for aspects of the first case. Mr Jefferson recalls tension, and that

Mr Orlov was insistent in making submissions, and that Harrison J was responding

firmly. He says Harrison J could possibly be seen as being “robust” but did nothing

that:

… resulted in my forming the impression that he had in any way exceeded

the bounds of judicial propriety. That is something, I have no doubt, I would

recall.

[49] The second witness was Ms Jennifer Irving, a practitioner of 35 years’

experience. Ms Irving was present as counsel for the child during the second of the

cases in which Mr Orlov appeared before Harrison J. Ms Irving said she had no

recollection of Harrison J either screaming or telling Mr Orlov to shut up. She has

never seen or heard that happen and believes she would recall it if it did. Ms Irving

recalls Harrison J querying Mr Orlov as to his qualifications, and generally

remonstrating about errors in his presentation – for example, describing a Judge

without any honorific. Ms Irving recalls that her surprise on the day was more at

Mr Orlov’s presentation than anything done by the Judge.

[50] These affidavits were filed on the Friday preceding the hearing. The

Committee’s view is that they are reply affidavits, filed in response to an affidavit

filed by Mr Orlov four days earlier.

[51] There is merit in both sides on this. Mr Orlov had long made allegations

about Harrison J’s conduct in these hearings. The people otherwise present in court

were long known, and the Committee had chosen not to put in evidence from them

as part of their positive case. There was little that was new in Mr Orlov’s affidavit.

In our view the Disciplinary Tribunal could have declined to receive this evidence.

On the other hand, Mr Orlov ultimately did file evidence, and at a late stage. If he

chose to file then, and if the Disciplinary Tribunal chose to accept the evidence, as it

did, then the Committee was entitled to seek to file evidence in reply.

[52] Turning to prejudice, the new witnesses were available for

cross-examination. Mr Orlov declined, seemingly on the basis that he had had

inadequate time to prepare. It is difficult to see how this could be so. Mr Orlov had

made repeated claims about the hearings, and it would not be difficult for a litigator,

as Mr Orlov is, to marshal together his various propositions and put them to the

witnesses. Mr Orlov also complains he would have called other witnesses, but it was

always open to him to do this whether or not the Committee filed evidence. Further,

there are still no statements as to what these potential witnesses might have said, and

we do not consider weight can be given to this aspect.

[53] Accordingly, none of the three issues Mr Orlov raised relating to the

admissibility of evidence have occasioned prejudice.

C Issue Three: No Case to Answer

[54] A key grievance of Mr Orlov is the Disciplinary Tribunal’s handling of his no

case to answer application. The issue is entirely moot at this point. Mr Orlov’s

application was eventually heard, albeit later than he wished but heard nevertheless.

Further, at the heart of a no case to answer submission is a claim of lack of evidence.

This is no different from the challenge made on the appeal – namely that he should

not have been convicted on the evidence as it was. Finally, it was in any event a

flawed application. It was based on the proposition that the Committee had failed to

disprove any of Mr Orlov’s primary facts, and for reasons already given we do not

consider the Committee was obliged to do that.

[55] We also observe that Mr Orlov has already challenged in this Court the

Disciplinary Tribunal’s refusal to hear his application prior to the hearing.

Justice Katz held, contrary to the Committee’s position, that the Disciplinary

Tribunal could have heard the application early but that it did not have to.17

Further,

Her Honour disagreed with the parties’ analysis of why the Disciplinary Tribunal had

refused to do so. It had been common ground between the parties that the

Disciplinary Tribunal considered it had no power. We agree with Katz J that the

proper reading is that the Disciplinary Tribunal considered it inappropriate to hear

17

Orlov v National Standards Committee 1 [2013] NZHC 1955 at [37].

the application, not that it was saying it had no power to hear the application. There

is no basis for us to revisit this earlier decision.

[56] The matter being moot, we limit ourselves to a few observations. In Hall v

Wellington Standards Committee (No. 1), relying on New South Wales authority, it

was concluded that, in appropriate cases a practitioner may submit at the end of the

prosecution case that there is no case to answer.18

In Hall v Wellington Standards

Committee (No. 2),19

Woodhouse J accepted that proposition, but considered the

practitioner could have been required to elect whether to give evidence before the

application was considered.

[57] In our view, whilst we accept that there is scope for some form of no case to

answer jurisdiction, it should be recognised as being very limited. This is not a

criminal trial, and there is a long standing principle that practitioners are expected to

co-operate.

[58] In Re C (A Solicitor), a full Court of Hutchison, Haslam and Leicester JJ

observed that it:20

… did not accept Mr Arndt’s submission that a case before the Disciplinary

Tribunal is to be dealt with on the same basis as a criminal trial. When a

practitioner is charged before the Disciplinary Committee with professional

misconduct and a prima facie case is made against him, the practitioner is

not justified in simply saying the charge is not proved beyond reasonable

doubt but must be prepared to answer the charge against him.

[59] The full Court noted that its conclusions mirrored those of the English Court

of Appeal in Re A Solicitor where Scott LJ noted:21

Whether the proceedings can properly be described as quasi-criminal or not,

in our opinion there is nothing in the statutes or rules which binds the

disciplinary committee to the rules of criminal law.

18

Hall v Wellington Standards Committee (No. 1) [2012] NZHC 1723, [2012] NZAR 790. 19

Hall v Wellington Standards Committee (No. 2) [2013] NZHC 798. 20

Re C (A Solicitor) [1963] NZLR 259 (SC) at 259. 21

Re A Solicitor [1945] 1 KB 368 (CA) at 374 (CA).

[60] To like effect are the observations of the New South Wales Court of Appeal in

1966 where it was observed:22

From the earliest times, and as far back as the recollection of the individual

judges of this Court goes, disciplinary proceedings in this jurisdiction in this

State have always been conducted upon affidavit evidence and not

otherwise. They are not conducted as if the Law Society … was a

prosecutor in a criminal cause or as if we were engaged upon a trial of civil

issues at nisi prius. The jurisdiction is a special one, and it is not open to the

respondent when called upon to show cause, as an officer of the Court, to lie

by and engage in a battle of tactics, as was the case here, and to endeavour to

meet the charges by mere argument.

[61] In the judgment earlier referred to, Katz J made these observations with

which we agree:23

[29] Parliament has provided that the Tribunal is free to set its own

procedure. Obviously it must do so in a way that is consistent with the

discharge of its statutory functions and does not cut across any express

statutory or regulatory provisions. Subject to those constraints, the Tribunal

has been given a high degree of procedural flexibility in the exercise of its

important statutory functions.

[30] As one Australian commentator has noted, this flexible procedure for

a disciplinary tribunal means it is sui generis. It is neither strictly adversarial

nor inquisitorial in nature, reflecting that disciplinary proceedings are aimed

at protection of the public as well as discipline of the practitioner. As the

New South Wales Court of Appeal observed in Malfanti v The Legal

Profession Disciplinary Tribunal & Anor:24

It is impossible in my view to lay down a rigid rule. The Tribunal

is bound to mould its procedures to enable it efficiently and

effectively to carry out its functions in an expeditious manner ….

[62] The procedures of the Disciplinary Tribunal that have been established under

the current legislation are consistent with the long standing approach we have

identified. Regulation 7 of the Lawyers and Conveyancers (Disciplinary Tribunal)

Regulations 2008 requires a defendant practitioner within 10 days to file a response,

and to identify what is disputed and what is not. Concerning the hearing itself, the

Disciplinary Tribunal’s Practice Note observes:25

22

Re Veron [1966] 1 NSWR 511 (NSWCA) at 515. 23

Orlov v National Standards Committee, above n 16. 24

Malfanti v Legal Profession Disciplinary Tribunal [1993] NSWCA 171 at 5. 25

New Zealand Lawyers and Conveyancers Disciplinary Tribunal Practice Note at [7.1].

The purpose of the hearing is to clarify and test the evidence that will have

been provided prior to the hearing by the parties and their witnesses. The

focus of the process will be an inquiry on the part of the Tribunal.

[63] This view of the hearing accords with the authorities we have cited, and the

current statutory scheme. Section 3 of the Act provides that the Act’s purpose is to

protect consumers and maintain public confidence. This is achieved in part by

providing for “a more responsive regulatory regime”.26

As part of that regime, a

Standards Committee is empowered to appoint an investigator who can in turn

require a practitioner to furnish information in any form.27

This emphasises the need

for co-operation and the distinction of these disciplinary proceedings from a criminal

matter.

[64] Against this background we consider the “no case to answer” jurisdiction

should be seen as limited to matters akin to a strike out. It is for weeding out the

obviously deficient (which should be rare) or those where some technical

impediment can be argued. Otherwise it is proper that the practitioner fully

participate thereby enabling the Disciplinary Tribunal to rule on the substance, and to

give better effect to the Act’s purposes. The type of prolonged lead up to the hearing

that has occurred here is inappropriate.28

[65] Obviously a practitioner cannot be made to co-operate, but consequences

properly flow if the practitioner does not. Here, Mr Orlov belatedly filed evidence.

He claimed that he had flagged that it was not available for consideration until he

chose to open his case (which ultimately he did not do). Accordingly he submits

regard could not be had to his evidence.

[66] Factually we are not satisfied that this is accurate. The document Mr Orlov

pointed to as having the effect of reserving the availability of his evidence is actually

silent on the point and Mr Orlov was left to contend it was his position by inference.

We do not accept the inference is available, and accordingly the evidence was

available to the Disciplinary Tribunal.

26

Section 3(2)(b). 27

Section 144. 28

Orlov v New Zealand Law Society [2013] NZCA 230; [2013] 3 NZLR 562 at [167] –[171].

[67] Further, without finally determining the matter, we are not persuaded it is

open to a practitioner to make such a reservation. The obligation is on the

practitioner to assist. He or she cannot be made to do so, but if they wish to file

evidence it is in our view thereafter available for consideration. We also consider Mr

Orlov was in breach of his obligations in not making himself available for

questioning having chosen to file evidence.

[68] Finally in relation to this topic, we note that Mr Orlov submitted he had been

made to file his evidence. However, it is clear that all the Chairperson did was set a

final date by which evidence had to be filed if Mr Orlov intended to do so. This is

not to be equated with compelling sometime to file.

[69] As already stated, Mr Orlov’s no case to answer challenge fails – and is, in

any event, moot.

D Issue Four: Absolute Privilege Attaching to Charged Statements

[70] Mr Orlov contends that the statements contained in the two court filings, and

the statements contained in the complaint to the Judicial Conduct Commissioner,

attract absolute privilege and cannot be the subject of charges. He relies on Teletax

Consultants v Williams, a decision of the Court of Appeal.29

That case involved a

claim of defamation arising from comments made in a complaint lodged with the

relevant Law Society. The Court held that the comments attracted absolute privilege

and accordingly the proceedings were struck out. In the course of its decision, the

Court confirmed that the immunity extended beyond statements made in courts of

justice to those made before or to all bodies and tribunals performing the same

functions. The privilege also went beyond actual testimony, and covered the earlier

stages of the proceedings such as the filing of documents and the briefing of

witnesses.30

29

Teletax Consultants v Williams [1989] 1 NZLR 698 (CA). 30

Teletax Consultants, above n 20, at 701, applying Lincoln v Daniels [1962] 1 QB 237 (CA).

[71] This case does not assist Mr Orlov. There is no doubt that the immunity

protects against claims in defamation, but limits have otherwise been recognised. For

example, in Lai v Chamberlains the Supreme Court held that the immunity does not

extend to actions in negligence.31

The Supreme Court also noted many other

situations connected to proceedings where the immunity had not extended such as

claims based on missed time limits and failing to join a party at any early stage.32

[72] Mr Orlov points to no authority to suggest the immunity extends to afford

protection to a lawyer facing professional misconduct charges for statements made in

proceedings. Such a situation would be inconsistent with the Lawyers and

Conveyancers Act (Lawyers’ Conduct and Client Care) Rules 2008. Some parts of

those Rules are directed solely to the obligations on lawyers involved in proceedings.

It would be nonsense if one could not lay charges for breaches of these rules. There

are also numerous authorities which by inference stand for the opposite proposition

to that being contended for. In Gazley v Wellington District Law Society, the

prosecution of Mr Gazley was in relation to proceedings he had filed alleging

various forms of misconduct by judges of the Court of Appeal.33

There was no

suggestion immunity existed. We accordingly reject this submission as it relates to

the documents filed in Court.

[73] The other document concerning which privilege is claimed is the complaint

made to the Judicial Conduct Commissioner. We briefly cover the history

underlying this claim of privilege. In the Disciplinary Tribunal, Mr Orlov,

describing himself as a “politically persecuted person”, asked the Disciplinary

Tribunal to make discovery orders concerning:

(a) all correspondence between the Judicial Conduct Commissioner and

the New Zealand Law Society; and

(b) correspondence on this matter between Randerson J and the Judicial

Conduct Commissioner.

31

Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7. 32

At [68]. 33

Gazley v Wellington District Law Society, above n 12.

He also requested that a witness summons be issued in relation to the Judicial

Conduct Commissioner.

[74] The Judicial Conduct Commissioner objected, submitting in the alternative

that the Disciplinary Tribunal lacked the power to make such orders, and that s 19 of

the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 imposed

obligations of confidentiality on him. He claimed that requiring him to be a witness

would be contrary to those duties.

[75] The Disciplinary Tribunal agreed. It considered that issuing a summons

would undermine the Judicial Conduct Commissioner and Judicial Conduct Panel

Act 2004. It also agreed that it had no power to otherwise order third party

discovery, and accordingly Mr Orlov’s applications failed. It seems to be this

decision that underlies Mr Orlov’s submission concerning his complaint. The

proposition Mr Orlov makes is that if the Judicial Conduct Commissioner’s files are

protected by confidentiality, then his letter of complaint to the Judicial Conduct

Commissioner should similarly be protected by confidentiality.

[76] This does not, however, follow. We are unsure how it was that the complaint

came into the Chief High Court Judge’s possession. However, he referred it to the

New Zealand Law Society and it was lawfully in the New Zealand Law Society’s

possession. The Society is entitled to act in regards to it. There is nothing in the

Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004 that cloaks the

documents themselves with privilege. Rather, obligations are imposed on the Judicial

Conduct Commissioner to keep matters confidential. In the present case the Judicial

Conduct Commissioner did not object to use of the document in the proceedings, and

did not seek any confidentiality orders. Accordingly there was no impediment to its

use before the Disciplinary Tribunal.

[77] The challenge based on privilege fails.

E Issue Five: The Admissibility of Judgments

[78] Mr Orlov contended that the various judgments of Harrison J were

inadmissible before the Disciplinary Tribunal. This was in reality a claim that the

judgments could not be used as proof of any fact in issue in the present proceedings.

This is the effect of s 50(1) of the Evidence Act 2006 which provides:

50 Civil judgment as evidence in civil or criminal proceedings

(1) Evidence of a judgment or a finding of fact in a civil proceeding is

not admissible in a criminal proceeding or another civil proceeding

to prove the existence of a fact that was in issue in the proceeding in

which the judgment was given.

…

Mr Orlov understandably relied on Dorbu v Lawyers and Conveyancers Disciplinary

Tribunal which held that this section applied to proceedings before the Tribunal.34

[79] However, the Court in Dorbu did not make reference to s 239(1) of the

Lawyers and Conveyancers Act 2006 which provides:

239 Evidence

(1) Subject to section 236, the Disciplinary Tribunal may receive as

evidence any statement, document, information, or matter that may,

in its opinion, assist it to deal effectively with the matters before it,

whether or not that statement, document, information, or matter

would be admissible in a court of law.

(2) The Disciplinary Tribunal may take evidence on oath, and, for that

purpose, any member of the Disciplinary Tribunal may administer an

oath.

(3) The Disciplinary Tribunal may permit a person appearing as a

witness before it to give evidence by tendering a written statement

and verifying that statement by oath.

(4) Subject to subsections (1) to (3), the Evidence Act 2006 applies to

the Disciplinary Tribunal in the same manner as if the Disciplinary

Tribunal were a Court within the meaning of that Act.

(5) A hearing before the Disciplinary Tribunal is a judicial proceeding

within the meaning of section 108 of the Crimes Act 1961 (which

relates to perjury).

34

Dorbu v Lawyers and Conveyancers Disciplinary Tribunal HC Auckland CIV 2009-404-7381,

11 May 2011 per Brewer J.

[80] We consider subs (1) governs s 50 of the Evidence Act 2006.35

The

judgments may be accepted by the Disciplinary Tribunal as evidence. It then simply

becomes a question of weight to be given to the conclusions contained therein. This

assessment will inevitably be case specific and turn very much on the particular

proposition for which the judgment is being relied on. We therefore reject this

challenge to the extent it is an admissibility challenge. Whether the Disciplinary

Tribunal has accorded the wrong weight to any conclusions contained in any

judgments is a matter able to be addressed when the appeal is considered, although

we do not find it necessary to do so in this case.

F Issue Six: Freedom of Expression

[81] Mr Orlov places significant weight on the importance accorded to freedom of

expression. As important a topic as it is, we do not consider there is any real dispute

about the applicable principles.

[82] Generally we accept that freedom of expression is a relevant consideration

both as to whether the charge is proven, and on sentencing. In relation to proof,

these charges are laid at the top end of the misconduct scale and carry obvious

jeopardy to the charged practitioner’s capacity to earn a living. Given that, where the

alleged misconduct consists only of speech, we have no difficulty with the idea that a

significant level of robustness is required. That proposition can be worded many

ways but in our view little is to be gained by articulating different formulations. The

more useful task is to apply the proposition to the facts.

[83] As for how that is actually to be given effect to in this case, we note that the

charges require the Tribunal to be satisfied that lawyers of good standing would find

the conduct dishonourable and disgraceful. We consider that lawyers of good

standing would recognise the importance of freedom of expression, and not be

unduly concerned or condemnatory of extravagant language, and misguided

opinions, at least as long as there was no bad faith.

35

Section 5(1) of the Evidence Act 2006 says: If there is an inconsistency between the provisions

of this Act, and any other enactment, the provisions of that other enactment prevail, unless this

Act provides otherwise.

[84] Another example is that one of the conduct rules said to have been breached

by Mr Orlov is the duty on practitioners not to undermine “the dignity of the

judiciary”. We accept that the value to be accorded free speech means one cannot be

unduly precious when faced with robust or extravagant comment. If it is said that

language is having the effect of undermining the dignity of the judiciary, regard

needs to be had to where it was said and what was said, all against a background of

not lightly restricting the right to make comment, even if ill-informed and

extravagant.

[85] That said, there is equally no doubt that the protection afforded by freedom of

expression is not absolute. In Orlov v New Zealand Law Society, the Court of

Appeal held:36

[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.

[86] This position, by which we are of course bound, reflects that adopted

overseas. A recent decision is Doré v Barreau du Québec.37

Mr Doré, a barrister

unhappy with his treatment in court by a Judge, wrote subsequently to the Judge in

terms that were in equal measure colourful and abusive. Disciplinary proceedings

were instituted.

[87] The relevant conduct rule which was said to be breached required that:

… the conduct of an advocate must bear the stamp of objectivity,

moderation, and dignity.

36

Orlov v New Zealand Law Society [2013] NZCA 230, [2013] 3 NZLR 562. 37

Doré v Barreau du Québec 2012 SCC 12, [2012] 1 SLR 395.

[88] The Supreme Court of Canada considered that the importance of professional

discipline to prevent incivility in the legal profession was beyond question. It

described the misconduct in this case as consisting of:38

… potent displays of disrespect for the participants in the justice system,

beyond mere rudeness or discourtesy.

(As we observed earlier, the proposition can be worded in a myriad of ways without

there being any significant difference in the meaning.)

[89] We cite two passages from the Supreme Court’s decision in Doré as

representing, we consider, sufficient articulation of the task. After that it is simply a

matter of assessing the particular case.

[90] First:

[65] Proper respect for these expressive rights may involve disciplinary

bodies tolerating a degree of discordant criticism. As the Ontario Court of

Appeal observed in a different context in R v Kopyto, the fact that a lawyer is

criticizing a judge, a tenured and independent participant in the justice

system, may raise, not lower, the threshold for limiting a lawyer’s expressive

rights under the Charter. This does not by any means argue for an unlimited

right on the part of lawyers to breach the legitimate public expectation that

they will behave with civility.

[66] We are, in other words, balancing the fundamental importance of

open, and even forceful, criticism of our public institutions with the need to

ensure civility in the profession. Disciplinary bodies must therefore

demonstrate that they have given due regard to the importance of the

expressive rights at issue, both in light of an individual lawyer’s right to

expression and the public’s interest in open discussion. As with all

disciplinary decisions, this balancing is a fact-dependent and discretionary

exercise.

[91] And then:

[68] Lawyers potentially face criticism and pressures on a daily basis.

They are expected by the public, on whose behalf they serve, to endure them

with civility and dignity. This is not always easy where the lawyer feels he

or she has been unfairly provoked, as in this case. But it is precisely when a

lawyer’s equilibrium is unduly tested that he or she is particularly called

upon to behave with transcendent civility. On the other hand, lawyers

should not be expected to behave like verbal eunuchs. They not only have a

right to speak their minds freely, they arguably have a duty to do so. But

they are constrained by their profession to do so with dignified restraint.

38

At [61].

[69] A reprimand for a lawyer does not automatically flow from

criticizing a judge or the judicial system. As discussed, such criticism, even

when it is expressed robustly, can be constructive. However in the context

of disciplinary hearings, such criticism will be measured against the public’s

reasonable expectations of a lawyer’s professionalism. As the Disciplinary

Council found, Mr. Doré’s letter was outside those expectations. His

displeasure with Justice Boilard was justifiable, but the extent of the

response was not.

[92] Before leaving this aspect of the discussion, we observe that before us

Mr Orlov’s submissions on freedom of expression came by way of an appendix

which consisted of submissions Mr Deliu had apparently prepared for his own

defence in relation to similar charges. The submissions cite copiously from

primarily North American authorities, but also decisions of the European Court of

Human Rights. We consider it can be taken from these cases that there is no absolute

right of freedom of expression, that it is legitimate for states to draw a balance

between freedom of expression and the need to protect the authority of the judiciary

and the processes of the Court, that a significant degree of robustness is required,

and that any punishment should be proportionate bearing in mind the competing

interests and the importance of freedom of expression. If this is the intended import

of the submissions we agree. If more is claimed, we consider it is not consistent

with domestic authority by which we are bound.

[93] Finally, in relation to freedom of expression, we record Mr Orlov’s

submission that the Disciplinary Tribunal did not have regard to it. To the extent this

suggests the topic was overlooked, it plainly was not. There was considerable

discussion about it. To the extent that it is a submission that insufficient weight was

given to the principle, that is something we will address when considering the

appeals.

G Issue Seven: The Appeals

[94] We turn now to the appeals. This is a general appeal and in accordance with

settled principle we are required to form our own view based on the evidence.39

We

recognise the specialist nature of the Disciplinary Tribunal, particularly when it

39

Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at

[16]-[17].

comes to assessing how a matter would be perceived by lawyers of good standing. A

Court is also of course not devoid of some specialist knowledge in that area.

[95] The primary task is to consider whether each of the charges has been

correctly held to be proved, particularly bearing in mind the freedom of expression

principles discussed. Before doing that, however, there are two specific issues raised

by Mr Orlov that need to be addressed.

1 The correct charges – the meaning of “unconnected with the provision of

regulated services”

[96] As noted, three charges were laid in the alternative, there being some

uncertainty over which misconduct provision Mr Orlov’s conduct fell within. The

issue turns on the wording used in s 7 of the Act to distinguish between professional

and personal misconduct. Mr Orlov generally contended that his conduct was in his

personal capacity so the charging would fall under s 7(1)(b)(ii) (personal

misconduct). He then argues that the nature of his conduct is not of a type

traditionally seen as engaging the concerns underlying this provision. Accordingly,

there should be no charges as it is personal conduct but not sufficiently morally

culpable to merit Law Society charges.

[97] Section 7(1)(a) covers professional misconduct (not the statutory term) and

describes it as:

… conduct of the lawyer or incorporated law firm that occurs at a time when

he or she or it is providing regulated services …

[98] Such conduct will be misconduct if the conduct was such that lawyers of

good standing would regard it as “disgraceful or dishonourable”.40

[99] Section 7(1)(b)(ii) covers the alternative, namely:41

… conduct of the lawyer or incorporated law firm which is unconnected with

the provision of regulated services by the lawyer or incorporated law firm.

40

Section 7(1)(a)(i). 41

Emphasis added.

[100] This conduct will be misconduct if it, by its nature, would support a

conclusion that the practitioner is no longer a fit and proper person or is otherwise

unsuited to engage in the practice of law.42

[101] Regulated services are defined as the provision of legal work,43

a concept that

is also defined in reasonably predictable terms.44

The structure of the charges in this

case was to treat the documents filed by Mr Orlov as part of court proceedings as

coming within professional misconduct, but to see the complaint letters as being

“unconnected” to the provision of legal services and therefore falling within

s 7(1)(b)(ii). The Disciplinary Tribunal agreed with this analysis.

[102] We first accept the conclusion drawn by the Disciplinary Tribunal that the

two paragraphs together must cover all conduct. There cannot be a gap.

[103] In terms of defining the scope of each alternative, the Disciplinary Tribunal

was reluctant to draw firm lines, citing from a decision of the High Court of

Australia:45

The dividing line between personal misconduct and professional misconduct

is often unclear. Professional misconduct does not simply mean misconduct

by a professional person. At the same time, even though conduct is not

engaged in directly in the course of professional practice, it may be so

connected to such practice as to amount to professional misconduct.

Furthermore, even where it does not involve professional misconduct, a

person’s behaviour may demonstrate qualities of a kind that require a

conclusion that a person is not a fit and proper person to practice. …

[104] Professional misconduct has always been the subject of disciplinary action.

Concerning personal misconduct, s 35 of the LP Act 1955 provided that a

practitioner could be struck off on the grounds:

(c) That in the opinion of the Disciplinary Committee he has otherwise

been guilty of grave impropriety or infamous conduct and by reason

thereof is not a fit and proper person to practise as a barrister and

solicitor.

42

Section 7(1)(b)(ii). 43

Section 6. 44

Section 6. 45

A Solicitor v The Council of the Law Society of New South Wales [2004] HCA 1, (2004) 204

ALR 8 at [20] (footnotes omitted).

Then in 1962 that provision was amended to refer to “conduct unbecoming a

barrister and solicitor”.46

[105] The two types of misconduct were carried over to the Law Practitioners

Act 1982. Section 112 referred to situations where the Disciplinary Tribunal:

(a) is of the opinion that the practitioner had been guilty of misconduct

in his professional capacity; or

(b) is of the opinion that the practitioner has been guilty of conduct

unbecoming a barrister or a solicitor.

[106] We consider the Act’s definitions continue to maintain the distinction

between professional and personal misconduct. The latter involves moral obloquy. It

is conduct unconnected to being a lawyer which nevertheless by its nature, despite

being unrelated to the practitioner’s job, is so inconsistent with the standards

required of membership of the profession that it requires a conclusion that the

practitioner is no longer a fit and proper person to practice law.

[107] The test of “fit and proper” person remains the touchstone for whether a

lawyer is to be struck off.47

It is the assessment that is to be undertaken following a

finding of professional misconduct under s 7(1)(a)(i). In other words it is recognised

that misconduct in the performance of professional duties may lead to a conclusion

of unfitness, but not necessarily. By contrast, with personal misconduct, the fit and

proper person inquiry is an element of the actual offence. This in effect recognises

that personal conduct unrelated to work must be of a nature which in itself justifies a

conclusion that the practitioner is not a fit and proper person. We think this structure

supports giving a broad scope to professional misconduct with a consequent limiting

of personal misconduct to situations clearly outside the work environment.

[108] In a Disciplinary Tribunal decision determined under the previous Act, the

Disciplinary Tribunal quoted from the previous edition of the Laws of New Zealand

chapter on Law Practitioners.48

We consider the examples cited therein generally

46

Law Practitioners Act 1955, s 35(1)(b). 47

Lawyers and Conveyancers Act 2006, s 244(1). 48

Waikato Bay of Plenty District Law Society v Baledrokadroka [2002] NZAR 197 (LPDT) at [12]

citing Laws of New Zealand Law Practitioners at [202]. We do not agree with the inclusion in

this list of “fraudulent conversion of small amounts of clients’ monies”. In our view that would

be connected with the provision of regulated services.

illustrate the traditional scope of the personal misconduct option and the current

scope of s 7(1)(b)(ii):

The following instances have been held to constitute conduct unbecoming a

barrister or solicitor and as such jurisdiction existed for the Tribunal to

enquire into the disciplinary charges: misconduct of a sexual nature with a

babysitter; insulting behaviour where there have been previous convictions

for indecent assault; association with the business of bookmaking;

importuning for immoral purposes; corruption in public office; issue of

valueless cheques; obscene and threatening language in a public place and

fraudulent conversion of small amounts of clients’ monies; consorting with

criminals; and allowing the house rented by a tenant to be used as a brothel.

[109] Against that background we have little doubt that all of Mr Orlov’s activity

should be seen as being connected to the provision of legal services and should have

been charged and assessed under s 7(1)(a)(i). One need only look at the purpose of

the documents. The first, for example, was a request by a practitioner to the Chief

High Court Judge to direct that a Judge of the High Court not be allocated to cases

involving that particular practitioner. The second was a misguided originating

application filed in the High Court and seeking the same thing. The third is an

application for leave to appeal filed on behalf of clients in the Supreme Court and the

fourth is a complaint to the Judicial Conduct Commissioner, complaining about how

a Judge is treating a practitioner in the course of the practitioner appearing in court

on behalf of clients.

[110] The final document, the complaint to the Human Rights Review Tribunal, we

accept is the least clear. By its nature it is a personal claim, being an allegation of

discrimination against the practitioner, and a breach of rights that can only be

personal to the lawyer (as opposed to involving a claim for a client). But again,

given that the person alleged to have discriminated is a Judge, the person

complaining is a practitioner, and the context is litigation in which both were

involved, we do not consider it is a claim “unconnected to the provision” of legal

services. Rather, it directly stems from litigation and puts what happened in

litigation squarely in issue.

[111] The contrary view of the Committee and the Disciplinary Tribunal results

from a focus on the definitions of regulated services, legal services, legal work and

reserved areas of work in s 6 of the Act. To explain, regulated services are, in this

context, legal services. Legal services means the carrying out of legal work. Legal

work includes “the reserved areas of work” and the reserved areas of work involve

the giving of advice and appearing as an advocate. We accept that in making his

complaints Mr Orlov was not directly doing this so was not providing regulated

services.

[112] However, it is necessary to return to the proposition that the two definitions

in ss 7(1)(a)(i) and 7(1)(b)(i) cover the entire field. Mr Orlov’s conduct will come

under s 7(1)(b)(i) only if it is not the provision of regulated services (which it is not)

and if it is unconnected with the provision of legal services. It is this aspect of the

definitions that we consider is crucial. Whilst not regulated services, the conduct is

very much connected with the provision of such services and therefore comes within

the s 7(1)(a)(i) limb of professional misconduct.

[113] Our conclusions differ both from how the charges were laid and from how

the Disciplinary Tribunal assessed them. It is necessary therefore to consider what

options are available to us. On appeal the High Court may “confirm, reverse, or

modify” the order or decision of the Tribunal.49

The same wording appeared in the

Law Practitioners Act 1982. In Wellington District Law Society v Cummins, it was

held that the term “modify” was broad enough to allow the Court to vary the

charges.50

We see no reason to differ, particularly since the drafter of the current Act

has used the same language in the present legislation, and is to be taken as being

aware of that interpretation. Accordingly, we propose to amend the charges to reflect

our interpretation of the Act.

[114] We are satisfied no prejudice to Mr Orlov is thereby created. First, the

particulars for each charge remain unchanged. Second, the change to bring all

charges under s 7(1)(a)(i) has the advantage for his sentence appeal that “fit and

proper person” is no longer a proven element of the offence. This was a feature

Mr Orlov had complained of in relation to the existing charges. Although it means

that on some charges we will now not have the benefit of the Disciplinary Tribunal’s

49

Lawyers and Conveyancers Act 2006, s 253(4). 50

Wellington District Law Society v Cummins [1998] 3 NZLR 363 (HC).

assessment of the s 7(1)(a)(i) test, we do know its conclusions on the conduct when

measured against the s 7(1)(b)(ii) standard.

[115] For the record, therefore, we conclude:

(a) concerning charges 1 and 2, the correct charge was the alternative,

charge 2;

(b) concerning charges 3 and 4, the correct charge was charge 3, which is

the charge the Disciplinary Tribunal assessed;

(c) concerning charge 5, this was correctly charged under s 7(1)(a)(i) of

the Act;

(d) concerning charge 6, this was incorrectly charged under s 7(1)(b)(ii)

and we vary the charge to one laid under s 7(1)(a)(i);

(e) concerning charges 7 and 8, the alternative charge, charge 8, was the

correct charge.

2 Is Mr Orlov responsible for the charged conduct?

[116] In relation to the two documents filed in Court (charges 3 and 5), Mr Orlov

claims he cannot be charged because they were not his documents.

[117] Looking first at the originating application for recusal filed in the High Court,

the document names Mr Orlov and Mr Deliu as first and second applicant

respectively. The document is said to be filed by Mr Deliu. Mr Orlov did, however,

file an affidavit in support.

[118] Mr Orlov submits he cannot be responsible for a filing by a lawyer on his

behalf. We do not accept the point. He is the first named applicant and has signed

an affidavit in support. He does not claim to be unaware of the contents and cannot

avoid responsibility in this manner.

[119] The second document is the leave application filed in the Supreme Court. At

the end of the document it is recorded that it:

… is filed by Frank Deliu and Evgeny Orlov on behalf of the above-named

appellants.

[120] Again, in our view, there is no credible argument that Mr Orlov cannot be

held to account for its contents. It is an appeal ostensibly filed on behalf of the

clients but appealing the costs orders made against Messrs Orlov and Deliu, an

allegation being that the Judge acted with an ulterior motive to harm Messrs Orlov

and Deliu personally.

[121] We are satisfied both documents are properly the subject of charges. It

matters not that someone else may have played a role. The issue is whether

Mr Orlov’s connection to it is sufficient to support him being held responsible for it.

3 The charges considered

[122] We turn now to a consideration of each of the five charges, and begin with

some general comments about some of the particulars that are the subject of charges.

[123] Taking examples from the first charge, we do not generally consider that

making allegations against a judge of bias, making an improper complaint to the

Law Society, and making improper, inflammatory and intemperate criticisms, even if

such allegations are made without a sufficient foundation, can constitute misconduct

at the level alleged.51

51

At least for a first offence. If a practitioner continued to do so having been sanctioned, then the

situation may be different.

[124] It must be recalled there is no allegation of bad faith. That was not the case

when the charges were first filed. At that initial stage it was claimed that the

circumstances in which the allegations were made meant they were scandalous, and

that Mr Orlov knew at the time they were false, or at least realised they could well be

false. However, those aggravating features were removed by the amendment to the

charges.52

[125] When one looks at what is left, we consider something more than the

extravagant phrasing of complaints is required to found charges at this level. Further,

it is questionable that some of the charged statements merit charges at any level.

Allegations of bias are not uncommon, and are a legitimate ground of appeal or

review. If a claim of bias, without accompanying claims of known falsity and bad

faith is to be the subject of charges, we agree with Mr Orlov that much greater

particularity is required to show in what way it is alleged to be misconduct.

Likewise with an allegation that a decision or conduct was “improper”. This is a

term used often when challenges are made to decisions. It can have many different

meanings and contexts. Something more is required to make it worthy of charges,

and whatever that extra feature is should be clearly set out.

[126] Another of the particulars in charge 2 cites claims by Mr Orlov that the

Judge’s comments were intemperate and inflammatory. These again are labels that in

isolation are not particularly of concern. They are descriptive of conduct and do not

import improper motives. We do not consider that, without more, charges were

appropriate for those comments. We do not intend to discuss in detail this aspect of

all the charges, but we express similar doubts about the charged statements that

involve claims that Harrison J treated Mr Orlov disproportionately, a general claim

that the Judge was discriminating against him, that the Judge was breaching Mr

Orlov’s human rights, that the Judge improperly and unlawfully threatened him with

contempt, that the Judge’s language, tone and demeanour were abusive and insulting,

and that the Judge had over a period acted in a way that was discriminatory, unfair

and improper, such as to bring the administration of justice into disrepute.

52

The charges considered in the various interlocutory proceedings, including the Court of Appeal,

were the original charges.

[127] We do not say that these things could never be the subject of proceedings at

some level and we recognise context is important. Here however the complaints

were mostly made within the structures of available complaints procedures and were

made to the appropriate person. It is important to balance the right to complain with

the need for lawyers to act appropriately, but as discussed a significant degree of

robustness is needed. We stress again as we did at the outset that the Committee

dropped its allegations that Mr Orlov was acting in bad faith or knew these things to

be untrue. That was, we consider, a significant concession and colours the validity of

laying disciplinary charges in relation to this type of statement.

[128] Mr Hollyman provided assistance on whether an allegation of conscious fault

is required for this level of charge. In Complaints Committee No.1 of the Auckland

District Law Society v C, this Court held that intentional wrongdoing was not a

necessary ingredient of a professional misconduct charge.53

It observed:54

The authorities referred to above (and referred to in the Tribunal decision)

demonstrate that a range of conduct may amount to professional misconduct,

from actual dishonesty through to serious negligence of a type that evidences

an indifference to and an abuse of the privileges which accompany

registration as a legal practitioner.

[129] In the present context there is no issue that Mr Orlov deliberately made these

comments in full awareness of what he was saying. If the charges have indeed been

proven, as the Disciplinary Tribunal holds, then he will have done so without a

sufficient foundation. We are satisfied that, in relation to the more serious

unfounded allegations that have been made, such conduct would constitute sufficient

fault for a finding of misconduct.

[130] We now address the individual charges. For each charge, in light of our

preceding comments, we will focus on the statements that we consider, by their

nature, clearly engage the misconduct process.

53

Complaints Committee No.1 of the Auckland District Law Society v C [2008] 3 NZLR 105 (HC). 54

At [33].

a Letter to the Chief High Court Judge

[131] The three particulars we identify are that:

(a) Harrison J subjected Mr Orlov and Mr Deliu and unspecified

colleagues to improper persecution and discrimination;

(b) Harrison J was attempting to punish Mr Orlov and his colleagues for

their beliefs or ethnicity or both; and

(c) Harrison J intentionally and maliciously caused Mr Orlov unspecified

harm, and had conducted himself as a judicial officer in an

atmosphere of horrific denigration and insult, with uncontrolled and

unpredictable rage against Mr Orlov.

[132] These allegations are a mixture of motive attribution, and allegations of

extreme conduct (horrific denigration and insult; uncontrolled and unpredictable

rage). The available sources of justification (for example, sufficient foundation) are

the letter itself, the “submission” accompanying the letter, and the affidavit filed by

Mr Orlov in the Disciplinary Tribunal. We have read these carefully and can find in

them no foundation at all for these allegations.

[133] Indeed, other than making this allegation, there is no attempt by Mr Orlov to

explain the foundation for his allegations. Looking first at the motives attributed to

Harrison J, whilst the reasons why Mr Orlov alleges bias can be clearly seen, there is

no attempt by him to explain the basis on which he says the alleged bias is sourced in

a dislike by the Judge of Mr Orlov’s ethnicity and beliefs, amounts to improper

persecution, and led to a desire to improperly and maliciously cause Mr Orlov harm.

[134] As for the conduct descriptions, the objective material does not support the

extreme language of “horrific denigration and insult”, nor of “uncontrolled and

unpredictable rage”. In terms of the availability of a formal record of any of these

proceedings, one was recorded and a transcript created. The transcript does not

support Mr Orlov’s allegations.55

In relation to two of the other cases, there are

affidavits for one from a Queen’s Counsel, and for the other from an experienced

barrister. Again this evidence provides no support for the type of claim being made

by Mr Orlov. Nor did Mr Orlov provide contrary evidence from any other

practitioners or court staff who were present on these occasions.

[135] There is a further aspect to this evidence from other lawyers on which we

wish to comment. In his affidavit Mr Orlov refers to the letter Harrison J wrote to the

Auckland District Law Society. In that letter, the Judge, as an example of Mr Orlov’s

lack of familiarity with protocol, referred to him calling Judge Mahoney “Mahoney”

without any honorific. Mr Orlov denies this, saying he may have mispronounced the

name but he never just called him “Mahoney”. Mr Orlov goes further and says that

not only is Harrison J wrong, he was lying about it.

[136] However, in her affidavit concerning this issue, Ms Irving states:

7. I certainly recall Justice Harrison remonstrating with Mr Orlov for a

lack of respect in failing to attach the appellation of “Judge” to

Judge Mahoney’s name. As I recall Mr Orlov on a number of

occasions referred to the Judge as “Mahoney”, without any

appellation at all. I understand Mr Orlov may have alleged

Justice Harrison criticised his pronunciation of Judge Mahoney’s

name. I have no recollection of that.

[137] Ms Irving’s evidence is unchallenged, and coincides with the Judge’s

description of events. We accept it. We highlight this aspect because it illustrates

one of the traits that has led Mr Orlov to the situation in which he finds himself.

There is no restraint in his writing. He does not seem to recognise that his memory

of events, often forged in stressful times, may be wrong. Further, he seems

determined to put the worst connotation on others’ perceived errors, usually without

any basis and equally without any need to do so.

[138] The statements of concern that we have identified under this charge reflect

this trait. Mr Orlov obviously believes Harrison J has it in for him. To a certain

extent, but not in an improper way, Harrison J did. But only in that he clearly had

55

The same conclusion was reached by the Judicial Conduct Commissioner in relation to this

transcript.

concerns over Mr Orlov’s competence and the way he conducts himself on behalf of

clients. His Honour acted on those concerns, as he was entitled to, by referring

judgments to the Law Society and by writing directly to the Society. Mr Orlov

responded, as he was entitled to do. The Judge’s actions were significant events for a

lawyer. They put in question his standing in the profession, and potentially put at

risk his capacity to follow his chosen career path.

[139] A measure of spleen in responding to the Judge’s actions, though not to be

condoned, could be understood, and rather easily handled. But again Mr Orlov

seems driven to go further, and to make these unsubstantiated and unnecessary

claims that the Judge is acting out of a desire to punish Mr Orlov, or because

Mr Orlov was born overseas, or because the Judge does not like his political

opinions.

[140] Mr Orlov has rightly been held to account for these statements.

Disappointingly, when confronted with the opportunity to justify them, Mr Orlov

has taken procedural points at every step, filed an affidavit in which he does not

attempt to support his claims and then refused to expose himself to

cross-examination. One can only draw the inference that, as the objective material

suggests, there is no sufficient foundation.

[141] We consider there can be no doubt that lawyers of good standing would

regard the making of these statements without any foundation for doing so, as both

disgraceful and dishonourable. The claims of persecution, and the attribution

without any basis of highly improper motives, are statements within the area

identified by the Court of Appeal as being outside the protection of freedom of

expression. We agree that this charge was proven.

b Originating application filed in the High Court

[142] This charge relates to an originating application for an order that:

… the Registry at the High Court permanently not allocate any cases, files,

litigation filed by the applicants, or with them on the record and/or any

solicitor firm they are employed by, to the Honourable Justice

Rhys Harrison.

[143] The statements upon which we focus are claims that:

(a) Harrison J had filed untenable and insufficiently particularised

complaints with a Law Society, which were frivolous, malicious,

vexatious, vindictive, oppressive and/or punitive in nature;

(b) that Harrison J had violated arbitrarily or capriciously the human

rights of the applicants (Mr Deliu and Mr Orlov) and “the severity of

the breaches is likely to increase”; and

(c) that Harrison J was discriminating against Mr Orlov.

[144] This latter statement, standing alone, would not we consider support this level

of charge. It depends, however, on what lies beneath it, and here we cite from the

affidavit filed by Mr Orlov in support:

22. In his demeanour, attitude, speech and manner towards me

Harrison J showed what I felt to be anger and contempt towards me

which I feel had clouded his bias towards me as a new counsel

coming from an overseas jurisdiction and having a foreign sounding

name. He was rude towards me whereas he was deferential to other

counsel and he would not listen to me at all. I felt threatened and

intimidated and indeed it is my strong belief that Harrison J because

of his dislike and discrimination towards me made decisions against

my Russian client. He simply would not listen to me and refused to

let me speak.

[145] This passage is another example of Mr Orlov mixing matters about which he

is entitled to complain with commentary that is both without foundation and

unbecoming a member of the profession. The penultimate sentence is an accusation

that the Judge found against Mr Orlov’s Russian client because of the Judge’s dislike

and discrimination against Mr Orlov.56

One struggles to think of a more serious

allegation than that dislike of counsel (and inferentially discrimination because of

nationality) led a Judge to decide a case differently from how he otherwise would

have.

56

We have refrained from engaging with the underlying cases but feel obliged to observe that the

Judge’s decision to grant the Chief Executive’s application for a writ of habeas corpus was an

available orthodox response to a situation where a parent, in clear breach of Family Court orders,

was refusing to return a child following an access visit.

[146] For the same reasons given earlier, we agree with the Disciplinary Tribunal

that these statements were made without foundation. Even if Mr Orlov was right

about the case (which he is not), and even if Harrison J’s orders were incorrect

(which they were not), the context provides no foundation at all for the statements

and allegations made by Mr Orlov. Again, he has provided none, and not agreed to

be tested under oath about it. The statements clearly fall outside the protection of

freedom of expression, are disgraceful allegations for a practitioner to make without

foundation, and the charges were rightly considered to be proved.

c Application filed in Supreme Court

[147] This relates to the leave application filed in the Supreme Court. The

statements on which we focus are claims:

(a) of discrimination by Harrison J based on foreign nationality, reputed

political beliefs, and status as human rights advocates;

(b) that Harrison J acted without jurisdiction ultra vires, mala fides,

maliciously, vexatiously, vindictively, spitefully, oppressively, unduly

punitively and/or with an ulterior motive to harm Mr Orlov

personally; and

(c) that Harrison J “was a danger to the public”.

[148] We comment further on the first of these statements. As far as we can

ascertain the claim of discrimination based on foreign nationality is a claim that

Harrison J is prejudiced against non-New Zealand lawyers. It seems to be an

allegation more often made by Mr Deliu, but one adopted by Mr Orlov. For

example, Mr Deliu filed an affidavit in the Disciplinary Tribunal in support of Mr

Orlov, and he makes these claims in that evidence. There seem to be three matters

relied on as supporting the allegation:

(a) It is said, but we have not seen, that Mr Deliu has looked at the cases

in which Harrison J has referred, when sentencing an accused, to the

foreign nationality of the accused before him. This is meaningless

unless a proper analysis is provided as to why the “singling” out of an

accused’s nationality occurred. There are countless reasons why it

can be a necessary and legitimate comment.

(b) It is said that many, but not all, of the situations where Harrison J has

referred judgments to the Law Society involve foreign lawyers. Again

the source information is not provided to us. As an observation it

provides no foundation at all for the statements made.

(c) It is claimed by Mr Orlov that Harrison J asked him, in front of his

client, where he got his qualifications from. Again this does not

provide any basis for the claim. It is a question that might be asked of

anyone whose qualifications are in issue. We do not know what

occurred on the particular occasion, but agree generally it is unwise of

a Judge to make that inquiry in open court, especially if clients are

present. But even if that happened, we do not consider it can support

any link to these allegations.

[149] In relation to the claim of discrimination based on political beliefs, this

appears to be sourced in an exchange that happened in the second of the four cases.

The case involved a custody dispute. The High Court matter was judicial review

proceedings challenging the actions of the Chief Executive of Child, Youth and

Family and the Family Court. Mr Orlov filed the proceedings, Mr Deliu filed the

written submissions, and an Auckland barrister, Mr Charl Hirshfeld, appeared in

court. In the course of holding the proceedings to be an abuse of process, Harrison J

observed that the proceedings appeared to be part of a wider agenda, not necessarily

attributable to the actual parties.

[150] The background to the case was that the Māori parents were at risk of losing

custody of their children because of their conduct towards each other in front of the

children. There was a history of drinking and violence which various specialists said

was directly manifesting itself in the children’s conduct. After various interventions,

agreement was reached for interim custody arrangements other than with the parents.

Although the parents had seemingly agreed with this, as was their right they had

second thoughts and instructed Messrs Orlov and Deliu to assist.

[151] In relation to the agenda comment, Harrison J cited a passage from

Mr Deliu’s submissions where Mr Deliu observes that his clients belong to an

indigenous socio-economically disadvantaged subclass who have been historically

abused by the New Zealand nation and the New Zealand authorities need to be

particularly sensitive about the relocation of their children.

[152] Mr Deliu continued on to offer further commentary on the plight of

indigenous parents. In the context of the proceedings, the commentary seems

gratuitous, but Mr Deliu no doubt saw it as helpful background context. Neutral

observers would, we suspect, read it as being somewhat condescending but these

things are in the eye of the beholder.

[153] Justice Harrison responded by observing that:57

[54] This submission speaks for itself in its fundamental

misunderstanding of New Zealand society, its norms, its values and its legal

system. Even a passing familiarity with the Act and the steps taken by the

social workers involved in this case would confirm the statutory concern

with promoting Māori needs, values and beliefs where they arise: see, for

example, ss 4, 5, 9, 13 (particularly s 13(f), 21 and 22). All citizens are

equal before our law and the indigenous ethnicity of parents has never

justified giving the interests of Māori children less protection than other

racial groups. The rights of children, and the state’s responsibility towards

them, are universal.

[154] His Honour then referred to an unrelated Family Court case in which

Mr Deliu had suggested counsel for the child should, in that case in relation to the

Māori children, be Māori. Judge Hikaka had forthrightly rejected that, and

Harrison J cited an extract from his Honour’s ruling. The ultimate outcome was that

the judicial review proceedings were struck out.

[155] It was in this case that Harrison J awarded personal costs against

Messrs Orlov (who filed the proceedings) and Deliu (who filed the submissions). It

is important for fairness’ sake to observe that on appeal the substantive decision of

57

RL v Chief Executive of the Ministry of Social Development HC Auckland CIV-2007-404-7031,

24 July 2008.

Harrison J was reversed in part.58

Whilst the Court agreed with Harrison J that the

pleadings were “a jungle of conceptual confusion”, it considered that one aspect of

the review proceedings should have been allowed to continue. The balance of the

strike out was upheld. It followed, and was confirmed in a subsequent decision, that

the personal costs award must be overturned given the outcome on the substantive

appeal.

[156] As far as we are aware, it is solely the exchange over the correctness of

Mr Deliu’s submissions about the plight of Māori people that underlies the

proposition that Mr Orlov is being persecuted for his political opinions. No such

inference is available based on that. It is the expression of a difference of opinion on

the merits of Mr Deliu’s submission, but nothing more. Further, the comments relate

solely to Mr Deliu’s submissions. It is unclear why Mr Orlov links himself to it. His

culpability, as Harrison J found it, was not in the submissions, but in the filing of the

confused judicial review pleadings. Finally, we again note that in his affidavit

Mr Orlov has not sought to explain the basis for his comments, nor suggest why the

links he draws are tenable.

[157] Looking at the statements overall, we consider that allegations of ethnic

discrimination, of discrimination based on foreign nationality, of acting out of spite

and a desire to harm counsel personally, all made without any suggested foundation,

would rightly be regarded by lawyers of good standing as dishonourable and

disgraceful, and as falling outside the protection of freedom of expression.

[158] The gratuitous claim of Harrison J being “a danger to the public” is more

questionable. It is a disgraceful comment, and one suggestive of a lack of judgment

and self discipline in litigation that is troubling in one who enjoys the privileges

being a barrister brings. It is, however, arguable that it is the type of extravagant

claim that freedom of expression protects, at least in part. It does not involve

attribution of motive, and we consider it could be the subject of censure but not this

level of charge.

[159] We agree this charge was proved.

58

L v Chief Executive of the Ministry of Social Development [2009] NZCA 596.

d Complaint to Human Rights Review Tribunal

[160] This charge relates to the complaint to the Human Rights Review Tribunal.

We have already amended it to being a charge under s 7(1)(a)(i). The statements

made in the complaint upon which we particularly focus are:

(a) that on the habeas corpus case Harrison J acted as he did because he

perceived that Mr Orlov’s client was Russian, and that Mr Orlov was

a Russian lawyer;

(b) that Harrison J intended his judgment to have the effect of destroying

the reputation of the plaintiff with the full knowledge that as a Judge

he could not be liable in law for defamatory statements made in

relation to the plaintiff;

(c) that the language used in Harrison J’s judgment was of such an

“extravagant, vicious and defamatory nature” as to be unprecedented

in a judgment and demonstrates even from the language alone an

attitude of discrimination towards Mr Orlov and/or his client; and

(d) that Harrison J had “maliciously denigrated” Mr Orlov in front of his

judicial colleagues creating an atmosphere whereby it was difficult for

the plaintiff to appear.

[161] The difficulty with most of these statements is self-evident given the

preceding discussion. The excessive nature of the statements show that by the time

of writing this complaint, Mr Orlov had lost any sense of judgment or perspective.

[162] The comments in (c) about the tone of a judgment are simply wrong. It is

difficult to be sure which of two judgments Mr Orlov was referring to, but neither

remotely merits the labels Mr Orlov attaches.

[163] The comment suggesting Harrison J has denigrated Mr Orlov to fellow

judges stems, it seems, from an exchange with Cooper J where His Honour noted (it

is said) that he took it seriously that Mr Orlov was accusing Harrison J of being a

racist. Mr Orlov reasons that it is not true that he was claiming Harrison J to be

racist against Māori, the idea that he was so claiming could only have been sourced

in Harrison J and therefore Harrison J was denigrating him to other judges.

Mr Orlov also submits that the only correspondence at that point was to Harrison J

personally.

[164] The exchange with Cooper J is not dated so we cannot comment on whether

the timing supports this reasoning process of Mr Orlov. However, the underlying

premise that Mr Orlov was not alleging Harrison J was racist against Māori is in our

view incorrect. Ground 4 of the Supreme Court leave application reads:

the High Court Judge erred in law by denying a fair and impartial decision

maker as it did not hold against the argument that it was racist against Māori.

[165] It is not easy to follow but we read this as being an appeal on the grounds that

the High Court (Harrison J) wrongly rejected a submission that he stand down

because he was racist against Māori.

[166] We do not comment further on these statements, many of which are repetitive

of earlier statements. The same lack of justification is present, and the charge was

rightly considered to be proved.

e Complaint to Judicial Conduct Commissioner

[167] The statements from the particulars which we highlight are:

(a) that Harrison J had maliciously made complaints, and had done so

with reckless indifference to the truth;

(b) that Harrison J took steps which maliciously and in bad faith were

attempts to cause Mr Orlov harm;

(c) that Harrison J openly abused his position of power in order to hurt

and slander Mr Orlov; and

(d) that Harrison J was a danger to the legal profession and the public and

that it was not in the public interest that he be allowed to continue his

discriminatory and unlawful behaviour.

[168] Again, little comment or analysis is required. By this time Mr Orlov seems,

quite frankly, to have been out of control in terms of his capacity to make an

acceptable complaint. There is a hysterical tone to the statements which points to an

increasing frustration and sense of grievance (legitimate or otherwise) that has got

the better of Mr Orlov. For reasons given earlier, no justification or sufficient basis

exists, or is identified by Mr Orlov. The alleged conduct of Harrison J on which he

relies cannot support the link Mr Orlov then draws to the motivations he contends

for. We consider allegations that a Judge was using his judicial office to hurt and

slander a practitioner to be at the upper end of seriousness when made without any

shred of foundation.

[169] Both this complaint, and that made to the Human Rights Review Tribunal

were dismissed by the respective decision makers. The Judicial Conduct

Commissioner declined jurisdiction in relation to most complaints. However, the

Judicial Conduct Commissioner did consider aspects of the complaint in relation to

the one proceeding for which there is a transcript of the hearing.

[170] Of this hearing Mr Orlov had complained to the Judicial Conduct

Commissioner that Harrison J was aggressive and hostile. He described it as a one

hour inquisition into his competence, and that it demonstrated Harrison J was

discriminating against him and acting maliciously. In response the Judicial Conduct

Commissioner observed:

10. I have reviewed the transcript of this particular proceeding, not for

the purpose of forming an opinion on any findings or decisions (for

that lies beyond my jurisdiction), but rather to assess whether your

complaint as to his conduct has any validity.

11. It is clear that Justice Harrison was critical of several aspects of your

submissions in the particular case. I appreciate that you personally

regarded Justice Harrison to be treating you, unfairly and in a hostile

manner. However, I am not satisfied that His Honour’s comments

satisfy the test set out in paragraph 7 above. In my opinion, and

considering the words used objectively, there is no evidence that

Justice Harrison was discriminating against you or treating you in a

hostile manner. Further, His Honour is entitled to ask questions of

counsel if he thinks it appropriate.

12. I appreciate that you also take issue with Justice Harrison’s

particular tone or manner. However, I do not regard this to be a

sufficiently serious issue to warrant my intervention.

[171] We refer to this as further support for our assessment that Mr Orlov was

unable to be objective in his assessments. He very much felt he was targeted and so

perceived things through that lens.

[172] We finally refer to the decision of the Human Rights Review Tribunal

dismissing that complaint. Mr Orlov explains his lack of success as being because

the Human Rights Review Tribunal considered it lacked jurisdiction. That is so for

most of the complaint, but again there were two aspects where the Human Rights

Review Tribunal considered it might have jurisdiction. Concerning these two

aspects the Human Rights Review Tribunal struck the claims out, ruling that they did

not disclose:

… anything like a tenable claim of unlawful discrimination.

[173] Earlier, when determining that it lacked jurisdiction on the other complaints,

the Human Rights Review Tribunal had observed:

… we do not discuss an obvious underlying question as to whether the

judicial conduct complained of was by reason of any prohibited ground of

discrimination, or was simply a response by the Judge to his concerns about

the plaintiff’s competence.

[174] This captures the essence of it. Our conclusion is that neither the available

material, nor any process of analysis and reasoning proffered by Mr Orlov, allows

one to go beyond the obvious in order to reach the position of improper motives that

Mr Orlov reaches.

[175] We are again satisfied that, giving due weight to freedom of expression and

Mr Orlov’s apparent belief in the correctness of his views, the statements go well

beyond what is acceptable from a lawyer, and amount to misconduct as charged.

Disgraceful is an accurate label. We agree this charge is proved.

H Issue Eight: Composition of the Disciplinary Tribuna and Bias

[176] There are many matters raised by Mr Orlov in the two proceedings. We have

not covered all of them but are satisfied that we have addressed the key complaints,

and that this judgment provides a substantive response to the essence of Mr Orlov’s

challenges. We do, however, need finally to refer to complaints made about the

Disciplinary Tribunal itself.

[177] Mr Orlov complains about the appointment of a Disciplinary Tribunal

member, Mr Maling. In an affidavit filed in support of the judicial review

proceedings, Mr Orlov queries why Mr Maling, described as “a senior apparatchik”

of the Law Society, was added belatedly to the panel. He suggests the panel was

being handpicked.

[178] There is otherwise no evidence on this matter. If the claim is an appearance

of bias because Mr Maling has apparently held positions on the Canterbury District

Law Society, we do not accept that is sufficient. It is inevitable and appropriate that

senior practitioners will be used in the disciplinary process. Many will no doubt

have held various offices during their time as practitioners.

[179] Mr Orlov also make a general complaint of bias. This seems to be sourced in

a combination of the decisions the Disciplinary Tribunal made, and comments that

were addressed to him during the hearing. Mr Orlov provided us with a list of

transcript references in support.

[180] We address this briefly. It is inevitable that a five day hearing involving

Mr Orlov representing himself will have moments of tension, frustration, and

exasperation. We make no apology for describing Mr Orlov’s courtroom style, when

acting for himself, as overly aggressive, and falling short of minimum standards of

decorum and civility expected of practitioners. He has a natural predisposition to

arguing, and a style which involves the constant posing of questions to the bench.

[181] In its sentencing decision the Disciplinary Tribunal noted that Mr Orlov was,

during the hearing “vexatious, insolvent and provocative”. He at times compared the

Disciplinary Tribunal variously with the Spanish Inquisition, a Stalinist show trial,

and accused it of creating an atmosphere that existed in Nazi Germany. Before us,

Mr Orlov, having comment on aspects of the Disciplinary Tribunal hearing, asked

the Court if it could see the kangaroos jumping around.

[182] We refer to these matters only because Mr Orlov has advanced these claims

of bias. The passages in the transcript to which he refers do not, we consider,

disclose bias but do show that members of the Disciplinary Tribunal at times were

frustrated and probably annoyed by Mr Orlov’s conduct. Our conclusion is very

much the same as that reached by the Judicial Conduct Commissioner on the matter

in which there was a transcript of the hearing before Harrison J. Exchanges

happened, and whether they should have or not, put into the perspective of a five day

hearing they do not merit consideration on appeal nor disclose bias.

I Conclusion

[183] For the reasons given we consider that the Disciplinary Tribunal was right to

find the case against Mr Orlov made out in relation to each of the five documents. In

moving on we consider the penalty appeal. We summarise the key conclusions:

(a) Some of the particulars alleged were not of sufficient seriousness to

support the charge. Bearing in mind the potential consequences and

the need for robustness, we do not generally consider allegations

against a judge of bias, impropriety, or error merit this type of charge.

(b) From each document we have identified particulars that either allege

improper motive, or are so extreme in their language so as to support

the charges unless there was a sufficient basis for the allegation.

(c) Mr Orlov failed to provide such justification, and none exists in the

available material.

(d) The prosecution withdrew its allegation that Mr Orlov knew the

statements were false, or at least knew they could be. Our sense of

the material is that Mr Orlov so lost perspective that he was incapable

of controlling the manner of his complaints, or recognising the almost

absurd reasoning that underlay the links he was drawing.

III Sentence appeal

[184] Mr Orlov was struck off the roll of barristers and solicitors. He appeals

against the severity of the punishment. He also raises two procedural points which

we address first.

A Procedural Issues

[185] The decision to find Mr Orlov guilty of the charges was not unanimous. The

lay member of the panel considered the charges had not been proved. When it came

to sentencing, the same panel was convened. A decision to strike a practitioner off

the roll must be unanimous,59

which it was, but Mr Orlov queries how the lay

member could agree with the sanction having differed on the charges. There is

nothing in the point. The lay member properly approached penalty on the basis of

the situation found to exist by the majority. That is appropriate.

[186] The second process issue is that Mr Orlov sought to have Mr Deliu represent

him. This was declined and he sought an adjournment to instruct other counsel.

This was declined. We consider it was open to the Disciplinary Tribunal to proceed.

Mr Orlov must have known that Mr Deliu was unacceptable. He had been barred

from acting on the substantive hearing and there was no reasonable basis to consider

anything different would apply at sentencing.

B Reasons for Striking Off

[187] Turning now to the Disciplinary Tribunal’s reasons for striking Mr Orlov off,

the Disciplinary Tribunal assessed the misconduct as being very serious in its nature.

The Disciplinary Tribunal next looked at Mr Orlov’s conduct since the charges were

laid. It is an understatement to say the Disciplinary Tribunal was plainly dismayed at

how Mr Orlov had acted. Finally, the Disciplinary Tribunal had regard to the

decisions in like cases. Overall it assessed Mr Orlov as being guilty of serious

59

Lawyers and Conveyancers Act 2006, s 244(2).

misconduct, and considered there was no realistic expectation he would change, or

try to.

[188] In relation to Mr Orlov’s conduct subsequent to the charges being laid, the

Disciplinary Tribunal focused on how Mr Orlov had engaged with the process. It

noted his reluctance to modify his approach despite being told several times by this

Court and by the Court of Appeal that it was inappropriate. The Disciplinary

Tribunal recorded that Mr Orlov had continued to repeat the charged remarks in his

evidence, and orally. As earlier noted, the Disciplinary Tribunal also considered that

Mr Orlov was persistently rude and insulting to the Disciplinary Tribunal.

C Our Analysis

[189] We agree that Mr Orlov’s subsequent conduct, when combined with the five

misconduct charges, made striking off a real consideration. Like the Disciplinary

Tribunal, we note:

(a) he expanded the number of people and institutions to which he has

shown a level of discourtesy inappropriate for anyone, let alone a

member of the profession;

(b) he repeated the statements that are the subject of charges;

(c) he issued a press release prior to the Disciplinary Tribunal hearing

which repeated unacceptable comments, and described the

forthcoming Disciplinary Tribunal hearing as a “show trial”; and

(d) his conduct generally indicated that there is every possibility of

repetition, and little sign that he would accept counsel, or modify his

approach.

[190] It is well settled that a lawyer’s conduct in relation to the disciplinary process

is relevant to the question of sanction, and can aggravate the original offending.60

Here, not only did Mr Orlov act in the ways outlined, he took every step possible to

delay or avoid a proper inquiry, and then refused to be cross-examined having filed

evidence. This conduct was rightly assessed as impacting on his fitness to be a

lawyer.

[191] On an appeal of this nature it is appropriate for this Court to reach its own

view, albeit giving due regard to the specialist Tribunal’s assessment.61

Having done

that, and notwithstanding his subsequent conduct, we consider that the sanction of

striking off Mr Orlov for a first offence of professional misconduct which did not

involve dishonesty or incompetence was disproportionate.

[192] Mr Orlov’s offending involves only speech directed against a member of the

judiciary. We do not downplay the need to protect the dignity of the judiciary and

generally the integrity of the administration of justice. Public confidence should not

be improperly eroded by unfounded and ill-informed attacks from within.

Practitioners who conduct themselves that way can rightly expect to be held to

account. But where we differ is the level of sanction.

[193] First, we recognise that calling Mr Orlov a first offender is generous. There

are five charges, and he has persisted with making these comments even after

charges are laid. When charges were laid, rather than immediately resorting, as he

did, to a claim of being persecuted by his professional colleagues, Mr Orlov should

have recognised that his conduct was causing concern and engaged with the process

to explain himself. It is a puzzle why he so strongly asserts he is right yet so

vigorously pursued every way of avoiding the opportunity to show there was a basis

for his allegations, something he has still not done.

60

Hart v Auckland Standards Committee 1 of New Zealand Law Society [2013] NZHC 83, [2013]

3 NZLR 103 at [237]. 61

Waikato/Bay of Plenty District Law Society v Harris [2006] 3 NZLR 755 (CA) at [111]–[113];

Parlane v New Zealand Law Society HC Auckland CIV 2010-419-001209, 20 December 2010

per Cooper J.

[194] However, these are his first convictions for this type of offence and now he

can be under no illusions that there are rules with which he must comply if he wishes

to remain part of the profession. Mr Orlov claims a strong desire to assist those

whose rights he feels are being trampled. He must understand that cannot be done

from the sidelines. Even if he is unable to appreciate or agree with the very sound

well established principles that underlie these rules, he must accept the need to

comply with them if he wishes to remain a practitioner.

[195] Second, we place weight on the circumstances in which the statements were

made. Mr Orlov sought to use the proper channels – the Chief High Court Judge, the

Judicial Conduct Commissioner and the Human Rights Review Tribunal. These

were not public bodies, and were the appropriate recipients of the type of complaint.

The filing of Court proceedings was less circumspect, but still relatively easy to

manage. Publicity would generally only occur if the litigation had passed the initial

hurdles, and if it did, publicity would at that point be appropriate. In that sense he

still avoided going public with these claims.

[196] The press release is in a different category and has caused us grave

misgivings. It was insulting to the Disciplinary Tribunal ahead of its hearing. It was

unwise and highly inappropriate. We note, however, that before us Mr Orlov

accepted it was an unwise thing to do, which is a step forward.

[197] Third, we note that the risks involved in giving Mr Orlov another chance are

not as concerning as with other types of misconduct. This misconduct does not

involve dishonesty, nor incompetence in acting for a client. It may expose another

decision-maker to the type of unprincipled and disgraceful abuse that has been

directed at Harrison J, but whilst regrettable, that would be of lesser concern than if

members of the public were involved.

[198] Fourth, the charges of which Mr Orlov has been convicted do not involve

allegations of bad faith. The Committee dropped that aspect of its case, and we

consider regard must be had to that when determining the appropriate penalty.

[199] Fifth, our review of the authorities, both domestic and international, suggests

this is too severe a sanction for this type of professional misconduct. We discussed

earlier the Canadian case of Doré where that practitioner’s abuse of the Judge was

severe, albeit for a less sustained period than here.62

Mr Doré was suspended for 21

days, an outcome upheld by the Supreme Court. In another Canadian case, Histed v

Law Society of Manitoba, the practitioner had called the Judge a bigot, and suggested

his colleagues were too right wing to sit on a case.63

He was fined, albeit for conduct

plainly much less serious than that of Mr Orlov.

[200] We were referred to a number of decisions of the European Court of Human

Rights.64

We do not consider it necessary to discuss them in detail, but we accept

they support a lesser level of penalty.

[201] Looking at domestic decisions, the Disciplinary Tribunal considered its

outcome to be consistent with the cases of practitioners Hart and Parlane.65

We see

each case as having different features. The comparable aspect of Mr Hart’s case was

the way he also declined to properly engage with the allegations. But his actual

offending was quite different and directly affected clients. He also had previous

convictions.

[202] Mr Parlane also obstructed the workings of the Committee. He acted in a

belligerent and unprofessional manner, and displayed many of the features that have

been mentioned in this case. But again his underlying misconduct involved

treatment of clients, offending seen by the Disciplinary Tribunal to be more serious

than his subsequent abuse of Law Society officers.

[203] In contrast to these cases we were referred to many examples of speech as

misconduct where the outcomes have been much lower in terms of penalty. The

cases to which we were referred were Mr Hong, Dr Moodie, Dr Molloy QC and

62

Doré v Barreau du Québec, above n 35. 63

Histed v Law Society of Manitoba [2007] MBCA 150. 64

Nikula v Finland (2004) 38 EHRR 45 (ECHR); Amihalachioaie v Moldova (2005) 40 EHRR 35

(ECHR); Steur v Netherlands (2004) 39 EHRR 35 (ECHR); Kudeshkeina v Russia (2011) 52

EHRR 305 (ECHR). 65

Hart v Auckland Standards Committee 1 of New Zealand Law Society, above n 58; Parlane v

New Zealand Law Society, above n 59.

Messrs Bradbury and Muir.66

In some no action has been taken and the most severe

sanction in these cases is a small fine. Our assessment at a broad level is that none

came close to the sustained misconduct involved here. We do not wish to engage in

some sort of exercise comparing the types of comment. We are also not to be taken

as saying the response in those cases was adequate. However, we acknowledge that

we consider Mr Orlov has fairly raised them in support of a claim that his penalty is

disproportionate.

[204] The factors we have identified lead us to conclude that striking off was a

disportionate response. We differ from the Disciplinary Tribunal because we place

more weight on the nature of the misconduct (speech) and we consider the nature of

the reoffending risk is not such as to deter us from giving Mr Orlov a second chance.

We also generally consider that striking off is too severe a response to a first offence

of misconduct involving speech. We have made it clear what we consider the likely

outcome will be should he not modify his conduct.

[205] We do not need to consider what an appropriate sanction would be. Mr Orlov

has been struck off for eight months and no further penalty is required.

IV Conclusion

[206] Mr Orlov’s challenge to the decision to strike him off the roll of barristers and

solicitors centred primarily on the right to freedom of expression. He considered his

various allegations were well-founded, but if they were not, then he submitted that

they should be protected speech as long as they were genuinely held opinions. He

also contended that objectively much of what he said was not of a sufficient

seriousness to merit being struck off.

[207] We partially agree. We are of the view that some of the allegations, such as

bias, are not properly the subject of charges at this level. However, other allegations

which were extreme in their nature or which alleged improper motives on the part of

the Judge, have potential to significantly undermine public confidence in the

66

Re Hong [2013] NZLCDT 9; Moodie (2013) National Standards Committee 6804;

Dr Tony Molloy QC (2012) National Standards Committee 6446; Bradbury and Muir (2013)

National Standards Committee 6743.

administration of justice. This is particularly so when the allegations come from

within, such as from a lawyer. It is a reasonable requirement that members of the

profession have a proper foundation before making such claims.

[208] We have concluded that Mr Orlov has not shown, and indeed for many

allegations has not really attempted to show, that there is a proper foundation for

these claims. Indeed in our view there is no foundation at all, proper or otherwise.

Accordingly, in relation to these claims, we agree with the Disciplinary Tribunal that

they represent disgraceful conduct within the meaning of the Act.

[209] In relation to penalty, we have concluded that striking off is a

disproportionate response in the circumstances of the case. We place weight on the

fact that the practitioner’s offending conduct consists only of speech, and is directed

against a member of the judiciary. It does not involve mistreatment of clients or their

money. We also place weight on this being a first “offence” for conduct of this type.

Mr Orlov can now be under no illusions as to the standards rightly expected of all

members of the profession, and that he will need to modify how he goes about airing

his grievances.

[210] Since Mr Orlov has been subject to the sanction of striking off for some

period, it is not necessary for us to consider an alternative penalty. Accordingly,

although the convictions as amended by the judgment are confirmed, the order

striking Mr Orlov off the roll of barristers and solicitors is quashed.

[211] Each party has had a measure of success. We suggest that costs lie where

they fall, but memoranda may be filed if agreement cannot be reached. Any such

memoranda must reach the Court within three weeks of the release of this judgment.

__________________________ __________________________

Ronald Young J Simon France J Solicitors: Meredith Connell, Crown Solicitors, Auckland

APPENDIX