Gold v New Zealand Law Society
[2025] NZHC 101
•10 February 2025
NOTE: PURSUANT TO S 182 OF THE FAMILY VIOLENCE ACT 2018 AND S 139 OF THE CARE OF CHILDREN ACT 2004, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE
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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2024-488-37
[2025] NZHC 101
BETWEEN “MR GOLD”
Applicant
AND
NEW ZEALAND LAW SOCIETY
Respondent
Hearing: 11 December 2024 Appearances:
Applicant in person
P N Collins for Respondent
Judgment:
10 February 2025
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 10 February 2025 at 2:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors/Counsel:
New Zealand Law Society, Wellington
P N Collins, Shortland Chambers, Auckland
Copy to: Applicant
GOLD v NEW ZEALAND LAW SOCIETY [2025] NZHC 101 [10 February 2025]
[1] This is an application by a person whom I will call “Mr Gold” (not his real name), who wishes to be admitted as a barrister and solicitor. He has completed the necessary academic and professional qualifications for admission, but the New Zealand Law Society (NZLS) refused to give him a certificate of character because it does not consider Mr Gold to be a fit and proper person to be admitted as a barrister and solicitor.
[2] Mr Gold has therefore applied directly to the High Court for a determination of that issue. Under s 52(2)(a) of the Lawyers and Conveyancers Act 2006 (the Act), the High Court must be “satisfied that the candidate is qualified for admission”, which requires the Court to assess whether the candidate is a “fit and proper person” taking into account any relevant matters, including those listed in s 55(1).
[3] The three grounds upon which NZLS refused a certificate of character and opposes the present application are:
(a)the findings of the Family Court concerning incidents of domestic violence, which reflect adversely on his character;
(b)aspects of his conduct in the application also indicating unfitness; and
(c)the insubstantial quality of his character references, failing to dispel the other concerns.
Legal principles
[4] The leading case about the statutory scheme for admission as a barrister and solicitor is New Zealand Law Society v Stanley.1
[5] The requirements for the admission and enrolment of barristers and solicitors in New Zealand are set out in pt 3 of the Act. Under s 48(1), every person admitted by the High Court under the Act must be admitted as a barrister and solicitor. Every
1 New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50.
person so admitted is generally entitled, while his or her qualification continues, to practice in or before any court or tribunal.2
[6] Section 49 sets out the required qualifications, depending on whether the applicant falls within one of three categories. The first category (the relevant one in this case) is persons who:
(a)have all the qualifications for admission prescribed or required by the New Zealand Council of Legal Education;
(b)are fit and proper persons to be admitted as barristers and solicitors of the High Court; and
(c)meet the criteria prescribed by rules made under s 54.
[7] Sections 50 and 51 of the Act specify what constitutes sufficient evidence of the facts required under s 49:
(a)documents signed by the relevant university and the chief executive of the New Zealand Council of Legal Education are sufficient to substantiate the requisite academic and training requirements;3
(b)a certificate signed on behalf of the NZLS certifying that a candidate is both a fit and proper person who meets the criteria prescribed by the rules made under s 54 is, in the absence of proof to the contrary, sufficient evidence of those facts.4
[8] Under s 52, a candidate seeking admission on the grounds that he or she qualifies under the first category of s 49, must apply to the High Court in accordance with the Act and any relevant rules. Section 52(2) provides that the High Court must make an order admitting the person as a barrister and solicitor if:
2 Lawyers and Conveyancers Act 2006, s 48(2).
3 Section 50.
4 Section 51.
(a)the High Court is satisfied that the candidate is qualified for admission under s 49(2) or (3); and
(b)the candidate has taken the following oath:
“I, AB, swear that I will truly and honestly conduct myself in the practice of a barrister and solicitor according to the best of my knowledge and ability.”
[9] Section 55 addresses the fit and proper person requirement. It provides as follows:
(1) For the purpose of determining whether or not a person is a fit and proper person to be admitted as a barrister and solicitor of the High Court, the High Court or the New Zealand Law Society may take into account any matters it considers relevant and, in particular, may take into account any of the following matters:
(a)whether the person is of good character:
(b)whether the person has, at any time, been declared bankrupt or been a director of a company that has been put into receivership or liquidation:
(c)whether the person has been convicted of an offence in New Zealand or a foreign country; and, if so,—
(i)the nature of the offence; and
(ii)the time that has elapsed since the offence was committed; and
(iii)the person’s age when the offence was committed:
(d)whether the person has engaged in legal practice in New Zealand when not admitted under this Act or a corresponding law, or not holding an appropriate New Zealand practising certificate, as required by law:
(e)whether the person has practised law in a foreign country—
(i)when not permitted by or under the law of that country to do so; or
(ii)if permitted to do so, in contravention of a condition of the permission:
(f)whether the person is subject to—
(i)an unresolved complaint under a corresponding foreign law; or
(ii)a current investigation, charge, or order by a regulatory or disciplinary body for persons engaging in legal practice under a corresponding foreign law:
(g)whether the person—
(i)is a subject of current disciplinary action in another profession or occupation in New Zealand or a foreign country; or
(ii)has been the subject of disciplinary action of that kind that has involved a finding of guilty, however expressed:
(h)whether the person’s name has been removed from a foreign roll, and that person’s name has not been restored:
(i)whether the person’s right of practice as a lawyer has been cancelled or suspended in a foreign country:
(j)whether the person has contravened, in New Zealand or a foreign country, a law about trust money or a trust account:
(k)whether the person is subject to an order under this Act or a corresponding law disqualifying the person from being employed by, or a partner of, a lawyer or an incorporated law firm:
(l)whether, because of a mental or physical condition, the person is unable to perform the functions required for the practice of the law.
(2) The High Court or the New Zealand Law Society may determine that a person is a fit and proper person to be admitted as a barrister and solicitor even though the person—
(a)is within any of the categories mentioned in any of the paragraphs of subsection (1); or
(b)does not satisfy all of the criteria prescribed by rules made under section 54.
(3) Subsection (1) does not limit—
(a)the grounds on which it may be determined that a candidate is not a fit and proper person for admission as a barrister and solicitor; or
(b)the criteria that may be prescribed by rules made under section 54.
[10] Under the current Act, good character is a subset of the fit and proper person standard.5 A person can be of good character, but not fit and proper for unrelated reasons.6
5 New Zealand Law Society v Stanley, above n 1, at [13]; Lawyers and Conveyancers Act, s 55(1)(a).
6 Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192 at [35].
[11] The Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008 were made under s 54. Those rules provide for the procedures by which an application for admission is made, and the forms to be used for the originating application.
(a)Under r 6, if a candidate’s application does not include a certificate of character, the application must be served on the Law Society and the Law Society must file a notice of opposition setting out the grounds on which the application for admission is opposed.
(b)Rule 8(1) provides for every application for admission to be determined by a High Court Judge.
[12] In New Zealand Law Society v Stanley, the Supreme Court held that the content of the fit and proper person and good character requirements needs to be considered in light of the statutory scheme, for which the purposes set out in s 3(1) provide the starting point,7 namely:
(a)to maintain public confidence in the provision of legal services;
(b)to protect the consumers of legal services; and
(c)to recognise the status of the legal profession.
[13] The Act also prescribes the “fundamental obligations with which, in the public interest, all lawyers… must comply in providing regulated services”.8 These fundamental obligations are set out in s 4 and include the following:
(a)the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand;
(b)the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients; and
7 New Zealand Law Society v Stanley, above n 1, at [6].
8 Section 3(2)(d).
(c)the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.
[14] In New Zealand Law Society v Stanley, the majority judgment included the following summary of the fit and proper person standard, with which the minority agreed:9
(a)The purpose of the fit and proper person standard is to ensure that those admitted to the profession are persons who can be entrusted to meet the duties and obligations imposed on those who practise as lawyers.
(b)Reflecting the statutory scheme, the assessment focusses on the need to protect the public and to maintain public confidence in the profession.
(c)The evaluation of whether an applicant meets the standard is a forward looking exercise. The Court must assess at the time of the application the risk of future misconduct or of harm to the profession. The evaluation is accordingly a protective one. Punishment for past conduct has no place.
(d)The concept of a fit and proper person in s 55 involves consideration of whether the applicant is honest, trustworthy and a person of integrity.
(e)When assessing past convictions, the Court must consider whether that past conduct remains relevant. The inquiry is a fact-specific one and the Court must look at all of the evidence in the round and make a judgement as to the present ability of the applicant to meet his or her duties and obligations as a lawyer.
(f)The fit and proper person standard is necessarily a high one, although the Court should not lightly deprive someone who is otherwise qualified from the opportunity to practise law.
(g)Finally, the onus of showing that the standard is met is on the applicant. Applications are unlikely to turn on fine questions of onus.
Factual matters and NZLS position
[15] The respondent’s first ground of opposition is based on findings in a judgment of the Family Court dated 15 March 2023 about the applicant’s conduct within his marriage prior to a separation in April 2021.10 The Judge made findings of physical
9 New Zealand Law Society v Stanley, above n 1, at [54] and [105].
10 Green v Gold [2022] NZFC 2398.
and psychological abuse of his wife, occurring at a frequency and over an extended period that amounted to a pattern of behaviour. The result was a protection order made in Mrs Gold’s favour and a direction requiring the applicant to attend a non-violence programme. In compliance with those directions, the applicant completed Man Alive’s living without violence programme on 5 September 2023.
[16] The second ground of opposition is a concern that the applicant suffers from a defect in character reflected in disproportionate and misguided aggression against persons he perceives to have wrongly challenged him, coupled with a tendency to blame others. Disproportionate and inappropriately aggressive behaviour, including misguided or retaliatory attribution of fault to others and use of legal processes to retaliate to perceived adversity, is a characteristic unsuited to the practice of law. Behaviour of that type potentially engages numerous conduct and client care rules.11
[17]Conduct by the applicant said to reflect these tendencies include the following:
(a)Mr Gold still maintains that he has been falsely accused of domestic violence and does not accept that it occurred in fact, although he acknowledged in this hearing that he must accept the Family Court findings.
(b)Mr Gold complained about the lawyer for the child appointed by the Family Court. He appealed the dismissal of that complaint to the Legal Complaints Review Officer. The appeal is still to be determined.
(c)Mr Gold complained about the lawyer acting for his wife in the Family Court proceeding.
(d)Mr Gold complained about his own lawyer in the Family Court proceeding.
11 Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 2.3, 2.7, 2.10, 10, 10.1, 10.2, 12, 13, 13.2 and 13.2.1.
(e)In June 2023, Mr Gold made professional conduct complaints about all members of the Practice Approval Committee and the secretary of that Committee (who is a lawyer).
(f)Mr Gold made a complaint about NZLS to the Human Rights Commission, on the grounds of gender discrimination. He is no longer pursuing that complaint.
(g)Mr Gold continues in this proceeding to blame NZLS for causing him hardship and duress, including alleging that NZLS is bringing the profession into disrepute by moving the goal posts and not following “what was stated and agreed”.
(h)Mr Gold appealed the Family Court decision to the High Court and made a complaint to the Judicial Conduct Commissioner against the High Court Judge who dismissed the appeal.
[18] The third ground of opposition raises the insubstantial quality of the character references. The respondent accepts that this ground would not, on its own, warrant the refusal of the applicant’s admission. The respondent’s submission is simply that the character references offered by the applicant do not dispel the justified concerns about his fitness for admission on the other grounds.12
Applicant’s position
[19]The applicant relied on the following grounds in his originating application:
a. The decision of the New Zealand Law Society was unfair.
b. The Conduct of the New Zealand Law Society treated the Applicant differently to other applicants.
c. The New Zealand Law Society as a delegated authority as part of character test is not given authority by Parliament to breach any legislation or rules without the express consent of Parliament.
12 A similar approach was taken in Re Donnelly HC Auckland CIV-2010-404-5943, 2 September 2011 at [60]–[61].
d. The New Zealand Law Society did not weigh all factors and did not put weight on relevant factors.
e. The New Zealand Law Society treated the Applicant appallingly and misled the Applicant causing delay and economic duress.
f. The New Zealand Law Society has a conflict of interest.
g. The New Zealand Law Society has not applied the test for character fairly against other applicants that were allowed.
h. There are practising lawyers with protection orders and criminal offences, who remain lawyers and have their practising certificates renewed.
[20] The factual analysis in the applicant’s written submissions is arranged under seven headings. Under those headings, I set out below my own summary of his key arguments:
(a)The purpose of the fit and proper person standard is to ensure that those admitted to the profession are persons who can be entrusted to meet the duties and obligations imposed on those who practise as lawyers.
(i)The applicant submits that he is a fit and proper person who can demonstrate he is aware of the relevant rules, duties and fundamental obligations imposed on practitioners.
(ii)Other cases (in particular Stanley and Lincoln)13 are more serious in nature and concerned criminal convictions.
(iii)The applicant has complied with all binding Family Court orders. His various complaints against lawyers and other participants in that process were for the proper purposes of pursuing justice, with those rights protected in legislation including the New Zealand Bill of Rights Act 1990.
13 Stanley v New Zealand Law Society [2019] NZCA 119; and Lincoln v New Zealand Law Society
[2019] NZCA 442.
(iv)The applicant has sought advice from senior members of the profession and the NZLS in areas outside his experience/knowledge and is entitled to follow such advice.
(v)During the three years following admission, the applicant will continue a period of learning and development and is ready to receive constructive criticism and guidance from his supervisor(s).
(b)The assessment of the need to protect the public and maintain public confidence.
(i)An important aspect of proper behaviour for law practitioners is a willingness to protect vulnerable people and say something about misconduct. The applicant has behaved appropriately when raising issues of misconduct — proper complaints do not amount to bullying.
(ii)The applicant has not complained about every lawyer he has dealt with, given instructions to, or gone up against.
(iii)The applicant has used proper procedures for pursuing those concerns and has not breached any privacy or confidentiality obligations by making those issues public.
(iv)It is foreseeable that the conduct of NZLS would have caused distrust and trauma.
(v)The applicant has completed the living without violence programme as well as counselling and now has tools to mitigate the risks inherent in working in a stressful legal profession and to seek help should he need it.
(vi)The applicant has shown his good character and an ability to put his own views aside when volunteering at YouthLaw Aotearoa as a legal assistant.
(c)The evaluation of whether an applicant meets the standard is a forward looking exercise, with no place for punishment for past conduct.
(i)Unlike other cases in which the Court has found an applicant unfit to practice, this applicant has no criminal convictions and has never been arrested.
(ii)His treatment is inconsistent with other cases in which applicants have been given certificates of fitness despite convictions for serious criminal offences. To be held to the same standard as other cases, the allegations against the applicant must be proven beyond all reasonable doubt (the criminal standard).
(iii)The alleged wrongdoing took place prior to 24 April 2021 and is no longer relevant for the forward looking test.
(d)Is the applicant honest, trustworthy and a person of integrity?
(i)The applicant has been honest at all times, in contrast with some other cases.
(ii)The applicant can be trusted with children and has been shown to have good character by looking after his dying father.
(iii)The applicant is not a serial litigant, because complaints have only been made after receiving advice.
(iv)The applicant has respected and complied with court orders and followed proper processes, rather than going public with his grievances.
(v)The findings in the Family Court were not proper findings of fact because there was no evidence, so it was simply one person’s word preferred over another.
(e)Past conviction assessment is fact-specific and all the evidence must be considered in the round to assess the applicant’s present ability to meet his or her duty and obligations as a lawyer.
(i)[this substantively repeated many of the points listed above].
(f)The standard is a high one, but the Court should not deprive someone otherwise qualified from the opportunity to practice law.
(i)The applicant has satisfied the qualification requirements and endured significant cost in doing so.
(ii)There are factors in mitigation explaining the applicant’s conduct, including an inability to leave the house during COVID-19 restrictions.
(iii)The applicant is qualifying older than classmates and has fewer professional working years available. Delay has already deprived him of the chance to practice law and earn an income, thereby causing economic hardship.
(g)The onus standard on the applicant is met. Applications are unlikely to turn on fine questions of onus.
(i)The applicant can meet the standard because he has completed all that was required of him and he followed legal advice.
(ii)Like Stanley, the applicant has reformed by participating in the living without violence programme, attending counselling, and implementing other strategies to manage stress.
Analysis
[21] I have considered the evidence filed in support of the application and taken into account Mr Gold’s evidence given under cross-examination at the hearing. Assessing those matters, I am not satisfied that Mr Gold is a fit and proper person to be admitted as a barrister and solicitor of the High Court.
[22] I accept that the respondent has substantiated its second ground of opposition that the applicant suffers from a defect in character reflected in disproportionate and misguided aggravation against persons he perceives to have wrongly challenged him, coupled with the tendency to blame others. These defects in character, including a misguided tendency to make personalised attacks and retaliate by inappropriate use of legal processes, in my assessment makes Mr Gold unsuited to the practice of law. Those tendencies might also explain the patterns of behaviour that led to the findings in the Family Court about physical and psychological abuse justifying a protection order and requiring the applicant to attend a non-violence programme. The evidence in support of the application (including the referee evidence) was insufficient to overcome these concerns.
[23] I accept there are other cases that involved more serious criminal convictions (particularly those involving dishonesty) that were central to a finding of unfitness. Those facts can be distinguished from the non-criminal findings made by the Family Court. However, criminality is not the sole determinant of whether someone is a fit and proper person to practice law. That assessment will depend on the facts of each individual case. In this case, the character defects go well beyond the findings of the Family Court. In any event, I entirely reject the applicant’s submission that the question of fitness must be assessed against a criminal standard of proof.
[24] The appellant takes the position that the various examples listed in para [17] above were all proper steps to take to pursue genuine concerns about misconduct and they cannot demonstrate any defect of character because he was acting on legal advice. However, under cross-examination he conceded that he had not instructed senior counsel to act for him in respect of the complaints. Rather, the “advice” he referred to was alleged to come from a senior counsel whom he consulted informally as a friend,
and it is unclear what quality of information was provided for that purpose. Mr Gold gave inconsistent answers in addressing questions probing that. At one stage he asserted that other people had made complaints and put his name on it. I am simply not prepared to accept his assertion (without objective evidence) that any senior counsel would do so without confirming instructions, let alone accepting a formal engagement. Furthermore, given the number and nature of the complaints listed in para [17] above that have been dismissed, it is not credible to conclude that these were all fairly pursued but determined unjustly. The fact that Mr Gold sought to step back from confirming that he exercised his own independent judgement in deciding to pursue those complaints only increased my concern that he has a tendency to blame others, which is unsuited to the practice of law.
[25] This flaw is reflected in the grounds of his originating application, which still focus on attacking NZLS rather than the substantive merits of what must be established in an application now made directly to the High Court.
[26] I accept that new lawyers will develop in their learning and experience in the years following admission, particularly while they are supervised. However, the threshold of fitness must be satisfied at the time of admission. It is insufficient to allege that an applicant will become a fit and proper person over time, if appropriately supervised.
[27] Naturally, I agree that a willingness to protect vulnerable people and pursue proper complaints would not undermine a person’s “fit and proper” assessment. Indeed, those characteristics are important for anyone admitted to practice law in New Zealand. However, I simply do not accept that the complaints listed in para [17] above are of that nature. Mr Gold has made other complaints against yet further people that he says have been upheld at least in part. Complaints of that type do not undermine Mr Gold’s application and therefore I have not listed them.
[28] The test is forward looking. If these characteristics were entirely historic in nature, then they would no longer be relevant to the present application. However, I am satisfied on the evidence that Mr Gold’s character defects continue to manifest, for
example in his conduct in this proceeding and in his ongoing pursuit of personalised complaints in the Family Court process.
[29] I acknowledge that the applicant has credit-worthy characteristics as well. He refers to his honesty, the fact that he has been trustworthy with his referee’s children, has looked after his dying father, has respected and complied with court orders and proper processes, and has not gone public with his grievances. He has also volunteered at YouthLaw Aotearoa as a legal assistant, apparently without any adverse issues arising. Accepting all of these matters to his credit, this does not overcome the concerns that I have referred to above. A person can have an honest but misguided tendency to blame others and overzealously use legal processes to pursue perceived grievances and seek retribution. A person who believes they are acting with integrity in that way may still be found short of the fit and proper person standard. In particular, such behaviour would engage the following rules under the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008:
Proper purpose
2.3A lawyer must use legal processes only for proper purposes. A lawyer must not use, or knowingly assist in using, the law or legal processes for the purpose of causing unnecessary embarrassment, distress, or inconvenience to another person’s reputation, interests, or occupation.
Threats
2.7 A lawyer must not threaten, expressly or by implication, to make any accusation against a person or to disclose something about any person for any improper purpose.
2.10 A lawyer must not use, or threaten to use, the complaints or disciplinary process for an improper purpose.
Professional Standards
10A lawyer must promote and maintain professional standards.
Respect and courtesy
10.1A lawyer must, when acting in a professional capacity, treat all persons with respect and courtesy.
Reputation of profession
10.2A lawyer must not engage in conduct that tends to bring the profession into disrepute.
Proper professional practice
11A lawyer practising on their own account must ensure that—
(a) their law practice is administered in a manner that ensures that each of the following duties is adhered to:
(i)the overriding duty to the court:
(ii)the duties to persons engaged or employed by the law practice, including all persons who perform legal and non-legal services (whether paid or otherwise) at or for the law practice, whether under a contract of employment, under a contract for services, as a volunteer, or otherwise:
(iii)the duties to existing, prospective, and former clients; and
(b) the reputation of the legal profession is preserved.
Third parties
12A lawyer must, when acting in a professional capacity, conduct dealings with others, including self-represented persons, with integrity, respect, and courtesy.
Lawyers as officers of court
13The overriding duty of a lawyer acting in litigation is to the court concerned. Subject to this, the lawyer has a duty to act in the best interests of his or her client without regard for the personal interests of the lawyer.
Protection of court processes
13.2A lawyer must not act in a way that undermines the processes of the court or the dignity of the judiciary.
13.2.1A lawyer must treat others involved in court processes with respect.
[30] I acknowledge that the Court must not deprive someone otherwise qualified from the opportunity to practice law without strong reasons for doing so. My assessment is that this does not turn on fine questions of onus in this case. Mr Gold falls short of the high standard that is required by a clear margin.
Result
[31]Accordingly, I decline the application.
[32] If the issue of costs cannot be agreed, memoranda may be filed by NZLS within 10 working days of the delivery of this judgment, and by the applicant within 10 working days thereafter. I will then determine costs on the papers.
O’Gorman J
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