Gazley HC Wellington CIV-2011-485-1776

[2011] NZHC 1394

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1776

IN THE MATTER OF the Lawyers and Conveyancers Act 2006

AND IN THE MATTER OF Scott Fuller Gazley of Wellington a candidate for admission as a Barrister and Solicitor

Counsel:         M G Gazley for applicant

C L Pierse for NZ Law Society

Judgment:      26 October 2011 at 3:00 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 3pm on the 26th day of October 2011.

JUDGMENT OF MACKENZIE J

[1] The applicant, Mr Gazley, has filed an originating application for admission as a barrister and solicitor of this Court. The affidavit filed in support of the application, under r 5 of the Lawyers and Conveyancers Act (Lawyers: Admission) Rule 2008 (the Rules) does not have attached a certificate of character from the New Zealand Law Society. The application was accordingly served on the Law Society under r 6(3) of the Rules. The Society applied for leave to dispense with the appearance of counsel for the Society at the hearing of the application. I granted that application by a minute issued on 11 October 2011. In that minute I advised that I would deal with the application for admission on the papers and invited further submissions from counsel for Mr Gazley. These have now been received.

[2] Mr Gazley applies for admission on the basis that he is qualified for admission under s 49(2) of the Lawyers and Conveyancers Act 2006 (the Act). The qualification which is in issue, and on which a decision of the Court is required, is whether, under s 49(2)(b), Mr Gazley is a fit and proper person to be admitted as a

barrister and solicitor of the High Court.

RE GAZLEY HC WN CIV-2011-485-1776 26 October 2011

[3]      The issue arises in this way.  The normal method of satisfying the Court of the requirement in s 49(2)(b) is for the candidate to annex to the affidavit in support of the application a certificate of character from the Law Society, under r 5(4) of the Rules.  Such a certificate is, under s 51 of the Act, sufficient evidence of the fact that the candidate is a fit and proper person to be admitted as a barrister and solicitor of the High Court, in the absence of proof to the contrary.

[4]      Where there is no such certificate of character,  r 6 of the Rules applies. Under r 6(3), the candidate must serve a copy of the application on the Law Society. Under r 6(4), the candidate’s application must be determined at a hearing, and the Law Society must be represented at that hearing.

[5]      Mr Gazley applied to the Law Society for a certificate of good character.  He supplied  in  support  a  number  of  referee  reports,  in  accordance  with  the  Law Society’s requirements.  He also disclosed to the Wellington branch of the Society that he had been involved in a disciplinary matter when he was a student at Victoria University of Wellington in 2007.   The Society’s fitness for practice committee considered  his application on 17 August 2011  and raised a number of concerns, essentially relating to the disciplinary matter.  The Committee noted that none of the referees were aware of the disciplinary matter, and that Mr Gazley had declined to advise his referees of this matter although asked to do so by the officers of the Wellington branch of the Law Society.  The Committee took the view that it was not in a position to consider the application further until Mr Gazley made full disclosure of the disciplinary matter to each of the referees and provided his explanation as to what led to the alleged misconduct.

[6]      Mr Gazley has elected, as he is entitled to do, not to adopt that course, but to apply to the Court for a decision as to whether he is a fit and proper person to be admitted.

[7]      The disciplinary matter involved an  alleged breach  of s 4.2(g)(iii) of  the Student  Conduct  Statute  of  the  University.    That  prohibits  plagiarism,  which  is defined as the presentation of the work of another person or other persons as if it was one’s own, whether intended or not.  The essence of the charge was that Mr Gazley

and another student worked together on an assignment and submitted assignments which were similar in structure and substance.  The assignments were found not to be the product of two students who worked together then went off to write off separate answers, but were in effect one team answer.  The penalty imposed was the issuing  of  a  written  warning  and  a  reduction  of  marks  from  74 per cent  to

50 per cent, a mark which maintained the assignment as a passing piece of work.  In giving that mark, the deputy dean described the behaviour as serious and unable to be condoned, but not as a sinister intention to deceive.

[8]      The University was asked to provide to the Law Society confirmation of academic qualification for a number of candidates who had attended Victoria University.  Mr Gazley’s name was included in the list and the letter, signed by the deputy dean who had dealt with the misconduct matter, indicated that it had no knowledge of any adverse matters concerning any of the candidates that would have any bearing on their suitability for admission as a barrister and solicitor.

[9]      Counsel for Mr Gazley has referred to a number of previous decisions of this Court on the “fit and proper” criterion.[1]   In Re Owen, this Court held that the focus of the Court’s inquiry is necessarily forward looking and the function of the Court is not to punish the applicant for past conduct.  Due recognition should be given to the circumstances of youth where the conduct in question occurred when the candidate was  immature  and  the  entire  circumstances  and  wider  facts  concerning  the

[1] L v Canterbury District Law Society [1999] 1 NZLR 467 (HC); Pou v Waikato/Bay of Plenty District Law Society HC Rotorua CIV-2004-463-511, 10 May 2005;  Re Owen [2005] 2 NZLR 536 (HC); Re Potter HC Hamilton CIV-2006-419-564, 18 July 2006

application must be considered, not just the previous misconduct.  The onus is on the candidate to show that he or she is a fit and proper person.

[10]     In this case, the misconduct is of a minor nature, much less serious than the previous conduct in, for example, Re Owen and Re Potter both of which involved previous criminal offending by the applicant.  Re Pou involved a breach of university regulations, but there the conduct was more serious than in the present case as it involved a use of university funds for other than university purposes.  In all of those

cases, the finding was that the candidate was a fit and proper person.

[11]     It is to be noted that the Law Society does not oppose the application;  rather it leaves the matter to the Court for determination.

[12]     In the circumstances, I consider that Mr Gazley has satisfied the onus on him to establish that he is a fit and proper person to be admitted as a barrister and solicitor of the High Court.   Subject to his taking the required oath, an order for admission can be made.  Arrangements for a hearing for that purpose can be made through the registrar.

“A D MacKenzie J”

Solicitors:         Mark Gazley, Wellington for Applicant

New Zealand Law Society, Wellington