ORLOV V NEW ZEALAND LAW SOCIETY HC AK CIV 2010-404-2868

ORLOV V NEW ZEALAND LAW SOCIETY HC AK CIV 2010-404-2868

A determination by a Standards Committee under s152(2)(a) to refer a complaint to the Disciplinary Tribunal is a judicial act and is reviewable; Standards Committees must apply a threshold test before referring matters—whether there is a real risk, if allegations were proved, that the Tribunal could impose suspension or striking off—and must observe natural justice; referrals failing that test may be quashed and remitted for reconsideration.

Citation
openlaw-e79b920f_eafd_4dd9_877b_396ab809a855.pdf
Parties
Plaintiff: Evgeny Orlov; First Defendant: New Zealand Law Society; Second Defendant: Auckland Lawyers Standards Committee (appointed under s 356 Lawyers and Conveyancers Act 2006); Third Defendant: Auckland Lawyers Standards Committee No. 1; Fourth Defendant: National Standards Committee
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 August 2012
Procedural Posture
Judicial Review of Disciplinary Referral Decisions / Judgment Resolving Which Standards Committee Referrals May Proceed to Disciplinary Tribunal; Partial Quashing and Remittal of Referrals
Outcome
Application for judicial review granted in part and dismissed in part: certain Committee referrals quashed and remitted; other referrals upheld
Legal Topics
Disciplinary Proceedings, Standards Committees, Lawyers and Conveyancers Act 2006, Natural Justice, Bias, Threshold for Referral to Tribunal, Legal Complaints Review Officer
Administrative Law Professional Discipline Judicial Review Legal Ethics Disciplinary Proceedings Standards Committees Lawyers and Conveyancers Act 2006 Natural Justice +3 more

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Parties

Evgeny Orlov

Plaintiff

New Zealand Law Society

First Defendant

Auckland Lawyers Standards Committee (appointed under s 356 Lawyers and Conveyancers Act 2006)

Second Defendant

Auckland Lawyers Standards Committee No. 1

Third Defendant

National Standards Committee

Fourth Defendant

Procedural Posture

Judicial Review of Disciplinary Referral Decisions / Judgment Resolving Which Standards Committee Referrals May Proceed to Disciplinary Tribunal; Partial Quashing and Remittal of Referrals

Legal Issues

  1. 1 Whether a Standards Committee's decision to refer complaints to the Disciplinary Tribunal is prosecutorial or judicial
  2. 2 Whether a threshold test is required before referral to the Disciplinary Tribunal
  3. 3 Whether Standards Committees complied with natural justice in referring complaints

Ratio Decidendi

A determination by a Standards Committee under s152(2)(a) to refer a complaint to the Disciplinary Tribunal is a judicial act and is reviewable; Standards Committees must apply a threshold test before referring matters—whether there is a real risk, if allegations were proved, that the Tribunal could impose suspension or striking off—and must observe natural justice; referrals failing that test may be quashed and remitted for reconsideration.

Court Disposition

Application for judicial review granted in part and dismissed in part: certain Committee referrals quashed and remitted; other referrals upheld

Orders

  • Quash the decisions of the relevant Standards Committees to refer the following charges to the Disciplinary Tribunal: No 1 Committee Charges 2, 3, 4, 5, 8, 9, 10, 11, 12 and 13 (as identified in judgment) and remit those complaints to the relevant Standards Committee for reconsideration under s152 of the Lawyers and...
  • Uphold the decisions to refer the remaining charges (s 356 Committee Charge 1; No 1 Committee Charges 1, 6 and 7; and all charges laid by the National Standards Committee) to the Disciplinary Tribunal