Little v New Zealand Law Society
[2022] NZCA 121
•8 April 2022 at 2.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA241/2021 [2022] NZCA 121 |
| BETWEEN | TIMOTHY GRAEME LITTLE |
| AND | NEW ZEALAND LAW SOCIETY | TE KĀHUI TURE O AOTEAROA |
| Hearing: | 27 October 2021 |
Court: | Kós P, Brown and Goddard JJ |
Counsel: | G F Little SC and T G Little for Appellant |
Judgment: | 8 April 2022 at 2.00 pm |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay costs to the respondent for a standard appeal on a band A basis with usual disbursements.
____________________________________________________________________
Table of contents
Para no
Introduction
Background
Mr Little’s qualifications and practice in Australia
August 2012 application for admission in New Zealand
Application for New Zealand practising certificate in 2020
Judicial review proceedings
High Court decision
Relevant statutory provisions
Lawyers and Conveyancers Act provisions
The TTMRA
TTMRA Admission Regulations
Submissions of Mr Little on appeal
Submissions of NZLS on appeal
Discussion
A two step process
The effect of the steps taken by Mr Little in August 2012
The effect of the steps taken by Mr Little in 2020
Result
REASONS OF THE COURT
(Given by Goddard J)
Introduction
In August 2012 the appellant, Mr Timothy Little, was practising as a barrister in New South Wales. He applied to the High Court of New Zealand for admission as a barrister and solicitor of the High Court of New Zealand under the Trans-Tasman Mutual Recognition Act 1997 (TTMRA). He was admitted on 17 August 2012.
In 2012 Mr Little did not communicate directly with the New Zealand Law Society (NZLS) to seek the issue of a practising certificate. None was issued to him.
Some eight years later, in July 2020, Mr Little applied to the NZLS for a practising certificate as a barrister practising on his own account. However Mr Little had ceased to hold a practising certificate in New South Wales in February 2015. The NZLS did not issue the practising certificate Mr Little requested. The NZLS considers that because Mr Little does not currently hold a practising certificate in New South Wales that authorises him to practise on his own account in that jurisdiction, he is not entitled to a practising certificate that authorises him to practise on his own account in New Zealand under the relevant provisions of the TTMRA and the Lawyers and Conveyancers Act 2006 (LCA).
Mr Little considers that the NZLS approach is wrong in law. He met the mutual recognition requirements set out in the TTMRA at the time of his admission in 2012. At that time, he was entitled to a New Zealand practising certificate. He says he remains entitled to one now, despite having ceased to practise in New South Wales. He adds that the Registrar of the High Court notified the NZLS of his application for admission, and his admission, in August 2012. That was sufficient to crystallise his right to a practising certificate at that time. No further action was required on his part.
Mr Little sought judicial review before the High Court of the NZLS failure to issue him a practising certificate. That application was unsuccessful.[1] Mr Little now appeals to this Court.
[1]Little v New Zealand Law Society [2021] NZHC 929 [High Court judgment].
As we explain in more detail below, we consider that the position under the TTMRA and the LCA is quite clear. Registration in New Zealand as a barrister and solicitor is, as the TTMRA expressly recognises, a two-step process: admission as a barrister and solicitor of the High Court, and the issue of a practising certificate by the NZLS.
A person who has been admitted as a barrister and solicitor of the High Court is entered on the roll of barristers and solicitors. They are then entitled to be issued with a practising certificate by the NZLS provided that they pay the relevant fees and levies, and satisfy the “fit and proper person” test and certain other criteria. But additional requirements apply to an applicant who wishes to obtain a practising certificate that authorises them to practise on their own account. Domestic applicants must meet prescribed requirements in relation to recent legal experience in New Zealand, and completion of courses on subjects such as professional conduct and client care. An applicant who holds a practising certificate in an Australian jurisdiction is not required to meet those domestic requirements: they are entitled to a corresponding class of practising certificate in New Zealand under the TTMRA. Critically, however, they are entitled under the TTMRA to a practising certificate that entitles them to practise on their own account in New Zealand if, and only if, they hold a practising certificate that entitles them to practise on their own account in an Australian jurisdiction at the time they apply to the NZLS for the issue of their practising certificate.
Mr Little could obtain a practising certificate under the LCA as an employed barrister in the same way that any newly admitted New Zealand lawyer could. But he seeks a practising certificate that would enable him to practise as a barrister in New Zealand on his own account.
Mr Little does not currently hold an Australian practising certificate that entitles him to practise on his own account in an Australian jurisdiction. So he is not currently entitled to apply under the TTMRA for a practising certificate that enables him to practise in New Zealand on his own account.
We do not consider that Mr Little made an application for a practising certificate in August 2012. In order to obtain a practising certificate in August 2012 Mr Little needed to make a separate application to the NZLS. He did not do so. He was not issued with a practising certificate in 2012, or in any subsequent year. He has not paid the annual fees for issue and renewal of a practising certificate in each year from 2012 onwards. He has not been required to comply with the obligations of lawyers who hold practising certificates, including obligations in relation to continuing professional development (CPD). Prior to July 2020 he did not communicate with the NZLS to suggest that it ought to have been issuing annual practising certificates to him, and that he ought to have been paying the associated fees and meeting the associated requirements. That inaction on his part accurately reflected the correct legal position: he did not hold a practising certificate throughout this period.
Nor did Mr Little’s admission as a barrister and solicitor in August 2012 crystallise an entitlement to receive a practising certificate that Mr Little is now entitled to rely on. There is no basis in the TTMRA or the LCA for an enduring entitlement to be issued with a practising certificate based on an entitlement at some earlier date.
The appeal must therefore be dismissed.
Background
Mr Little’s qualifications and practice in Australia
Mr Little was born in New Zealand. In 1979 his family moved to Sydney, where he completed his schooling.
Mr Little obtained a law degree in 1996. He was admitted as a solicitor of the Supreme Court of New South Wales on 4 June 1999. A practising certificate as a solicitor was issued to him by the New South Wales Law Society on 1 July 1999.
After working as a solicitor for some time, Mr Little completed the New South Wales Bar Practice Course and passed the Bar Examination. A practising certificate as a “Reader barrister” was issued to him by the New South Wales Bar Association on 22 August 2011. It appears that the restrictions that applied to him as a “Reader barrister” ceased to apply after 12 months; that is, on 22 August 2012.
On 1 July 2013 Mr Little was issued a barrister’s practising certificate that authorised him to practise as a barrister on his own account in New South Wales.
Mr Little continued to hold a current practising certificate and practise as a barrister in New South Wales until 13 February 2015. He remains on the roll of barristers in New South Wales.
Mr Little left Sydney in 2015 to pursue business opportunities in London. He allowed his New South Wales practising certificate to lapse.
August 2012 application for admission in New Zealand
In August 2012 Mr Little sought admission as a barrister and solicitor in New Zealand. He gave the notice required by s 19 of the TTMRA to the Registrar of the High Court. The notice was in the form prescribed by the Trans-Tasman Mutual Recognition Admission Regulations 2008 (Admission Regulations).[2] In that notice he confirmed that he was currently registered to practise as a barrister in New South Wales, so was registered in an equivalent occupation in a participating jurisdiction for the purposes of s 19 of the TTMRA. He sought admission in New Zealand under s 19 of the TTMRA.
[2]These regulations are made by the New Zealand Council of Legal Education under s 274(f)(ii) of the Lawyers and Conveyancers Act 2006.
As required by the Admission Regulations, the s 19 notice was given to the Registrar of the High Court in duplicate. The Registrar of the High Court sent the duplicate copy of the notice to the Executive Director of the Law Society.[3] That notice was stamped by the NZLS as received on 17 August 2012. The cover letter of a copy of that document discovered by the NZLS in these proceedings bears the notation “ENTERED”.
[3]Admission Regulations, reg 2.
On 17 August 2012 Asher J made an order admitting Mr Little as a barrister and solicitor of the High Court of New Zealand.
Mr Little did not communicate separately with the NZLS in relation to the issue of a practising certificate. He did not pay any fees to the NZLS for the issue of a practising certificate. He has not, since 2012, complied with the requirements that apply to holders of practising certificates such as payment of fees and levies for the annual renewal of practising certificate, and CPD reporting.[4]
Application for New Zealand practising certificate in 2020
[4]Under the Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education—Continuing Professional Development) Rules 2013.
In March 2020 Mr Little came back to New Zealand. On 22 July 2020 he applied to the NZLS for the issue of a practising certificate as a barrister sole with approval to practise on his own account, in reliance on ss 17 and 19 of the TTMRA.
The email from Mr Little accompanying his practising certificate application reads as follows:
Please find attached my completed Practising Certificate Application. This application is pursuant to the written Notice under s.19 of the
Trans-Tasman Mutual Recognition Act 1997 which was given to the Executive Director of the New Zealand Law Society in or around August 2012 and s.17 of the TTMRA. I am seeking a practising certificate in an “equivalent occupation” pursuant to Schedule 3 of the Trans-Tasman Mutual Recognition [Admission] Regulations 2008 to that which I was registered for in New South Wales, Australia, at the time of giving notice to the local registration authority in New Zealand, namely a barrister with approval to practice on my own account/barrister sole.The NZLS asked Mr Little to provide a CV, references, a statement of status from the New South Wales Bar Association and a current New South Wales practising certificate. He supplied all of these except the current New South Wales practising certificate, which he could not provide because he did not hold one.
On 24 July 2020 the NZLS wrote to Mr Little advising him that he was required to provide an original or certified copy of a current Australian practising certificate in order to obtain a practising certificate from the NZLS. On 21 August 2020 the NZLS wrote to Mr Little to advise him that the NZLS Practice Approval Committee was “currently of the view that there may be grounds for declining or refusing to issue you a practising certificate”. The reason given was that Mr Little did not hold a current Australian practising certificate entitling him to practise on his own account.
Judicial review proceedings
Mr Little filed judicial review proceedings against the NZLS claiming that the NZLS was required to issue him a practising certificate as a barrister with approval to practise on his own account under the TTMRA. The relief sought included:
[A]n order that [NZLS] forthwith on payment of the appropriate fee issue [Mr Little] with a practising certificate as a barrister with approval to practice on his own account for the current practising year.
High Court decision
Powell J considered that the interpretation of the TTMRA and the LCA advanced by Mr Little could not be sustained.[5] In order to practise law in New Zealand two types of authorisation are required: admission to the bar and a practising certificate. Section 4 of the TTMRA makes it clear that the same two types of authorisation are required to take advantage of the mutual recognition provided for by that Act.[6] Separate notification is required for both steps of the registration process through the two separate local registration authorities: the Registrar of the High Court in respect of applications for admission, and the NZLS in respect of applications for practising certificates.[7]
[5]High Court judgment, above n 1, at [12].
[6]At [15].
[7]At [16].
Mr Little’s notice under s 19 of the TTMRA addressed to the Registrar of the High Court at Auckland sought admission as a barrister and solicitor of the High Court of New Zealand. The notice given by the Registrar of the High Court to the NZLS was notice of the admission of Mr Little as a barrister and solicitor. NZLS was not required to treat that notification as an application for a practising certificate.[8]
[8]At [16]–[18].
When Mr Little applied to the NZLS for a practising certificate in July 2020 he confirmed, correctly, that he had never had a New Zealand practising certificate as a barrister. And by that time he did not have a current New South Wales practising certificate. So he was not able to show that he was at that time “registered in an equivalent occupation in an Australian jurisdiction”. Section 17(2) of the TTMRA did not apply to Mr Little, and he was not entitled to the practising certificate that he sought.[9]
Relevant statutory provisions
Lawyers and Conveyancers Act provisions
[9]At [19]–[20].
It is clear from the scheme of the LCA that there are two steps involved in the process of becoming entitled to practise as a lawyer in New Zealand:
(a)admission as a barrister and solicitor of the High Court of New Zealand; and
(b)obtaining a practising certificate from the NZLS.
Part 3 of the LCA provides for the admission and enrolment of barristers and solicitors. Section 49(1) provides that a person is qualified for admission as a barrister and solicitor if they are in at least one of the categories in s 49. The first category comprises persons who have the qualifications for admission prescribed or required by the New Zealand Council of Legal Education.[10] The second category comprises persons who have been admitted as a barrister, solicitor, barrister and solicitor, advocate, or attorney by a senior court of any other country and have qualifications prescribed or required by the Council of Legal Education for such persons.[11] The third category, applicants under the TTMRA, is provided for in s 49(4) of the LCA:
(4)The third category is persons who have been issued with a certificate by a Registrar stating that the candidate has given notice under section 19 of the Trans-Tasman Mutual Recognition Act 1997 to the Registrar acting as a local registration authority under that Act.
[10]Lawyers and Conveyancers Act, s 49(2).
[11]Section 49(3).
This was the category that Mr Little came within when he sought admission as a barrister and solicitor of the High Court of New Zealand in August 2012.
On admission a person’s name is entered on the roll of barristers and solicitors kept by the Registrar of the High Court.[12] The Registrar is required to notify the NZLS of the name of the person admitted and their date of admission.[13]
[12]Section 57.
[13]Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008, r 11.
A person whose name is on the roll can apply to the NZLS for a practising certificate. However we note that many people who are admitted as barristers and solicitors do not apply for practising certificates: this by no means follows automatically. A holder of a practising certificate is required to pay fees and levies, and to comply with various requirements including requirements relating to CPD. Holders of practising certificates are subject to the disciplinary jurisdiction of the NZLS. The costs and responsibilities that accompany a practising certificate are significant: many people who are admitted as barristers and solicitors choose not to assume them.
The issue of practising certificates is provided for in Part 2 of the LCA, which is concerned with restrictions on provision of legal services and conveyancing services. Section 39 of the LCA provides:
39 Issue of practising certificates
(1)The New Zealand Law Society, on application made to it by any person whose name is on the roll, must issue to that person a practising certificate either as a barrister or as a barrister and solicitor.
…
(4)Despite subsections (1) and (2), the society to which the application is made—
(a)may decline to issue a practising certificate to a person until that person has paid to it any fees and levies then payable by that person under this Act or under any rules made or resolutions passed under this Act; and
(b)may refuse to issue a practising certificate to a person—
(i)on the ground that the person does not meet the criteria prescribed by practice rules made under section 94(a); or
(ii)on the ground set out in section 41(1), namely, that the person is not a fit and proper person to hold a practising certificate; and
(c)may refuse to issue a practising certificate to a person who, under section 19 of the Trans-Tasman Mutual Recognition Act 1997, seeks the issue of the practising certificate, if that person does not meet the requirements that apply, under section 17 of the Trans-Tasman Mutual Recognition Act 1997, in relation to an individual who seeks the issue of a practising certificate of the kind sought.
A practising certificate may authorise a lawyer to practise on their own account as a barrister and solicitor or as a barrister, or may only permit them to practise as an employed barrister and solicitor or employed barrister. The ability of a lawyer to practise on their own account is governed by s 30 of the LCA:
30 Practice by lawyer on his or her own account
(1)No lawyer may commence practice on his or her own account, whether in partnership or otherwise, unless—
(a)he or she—
(i)meets the requirements with regard to both practical legal experience and suitability that are imposed by rules made under this Act; and
(ii)meets any other criteria that are prescribed by rules made under this Act; or
(b)he or she is granted by the High Court, on grounds set out in rules made under this Act, leave to practise on his or her own account.
(2)A lawyer who is a director or shareholder of an incorporated law firm is deemed to be practising on his or her own account.
(3)A lawyer may apply to the High Court for leave to practise on his or her own account.
(4)The High Court, in deciding whether to grant an application for leave, must have regard to the matters that are specified in rules made under this Act in relation to such an application.
(5)The High Court may grant leave subject to such conditions (if any) as it thinks proper.
(6)A lawyer commits an offence who, in contravention of this section, commences practice on his or her own account.
The requirements and criteria that a lawyer must meet in order to commence practice on their own account for the purposes of s 30(1)(a) of the LCA are prescribed in reg 12 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008 (LCA Practice Rules Regulations). One of those requirements is that the lawyer must have had a specified minimum amount of recent legal experience in New Zealand. Regulation 12A creates an exception to that requirement, where the NZLS is satisfied that special circumstances apply.
Regulation 13 sets out the grounds on which the High Court may grant leave to an applicant to practise on their own account:
13 High Court’s leave to practise on own account
(1)For the purposes of section 30(1)(b) of the Act, subclauses (3) to (6) set out the grounds on which the High Court may grant a lawyer who applies for it on or after 1 October 2012 leave to practise on his or her own account.
(2)Those grounds apply, without limitation, to a lawyer who before 1 October 2012 commenced practice on his or her own account as a barrister sole, and who on or after 1 October 2012 applies to the High Court for leave to practise on his or her own account as a barrister and solicitor.
(3)The lawyer must either—
(a)have had at least the required minimum amount of recent legal experience in New Zealand; or
(b)have satisfied the Law Society that he or she is a suitable person to practise on his or her own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all relevant considerations, including, without limitation, those in regulation 12(5)(a) to (d).
(4)During the 2 years immediately before the date of commencing practice on his or her own account, the lawyer must have completed, and passed all mandatory assessments in, a course that, when the lawyer began it, was approved by the Law Society as providing adequate instruction and assessment on the required subjects (which may be or include all or any of business management, professional conduct and client care, and trust account management and lawyers’ or, as the case may require, incorporated firms’, obligations in relation to trust accounts).
(5)The lawyer must have satisfied the High Court that he or she is a suitable person to practise on his or her own account as a barrister and solicitor or as a barrister sole (as the case may be), having regard to all relevant considerations, including, without limitation,—
(a)the nature and extent of his or her experience practising in law, whether in or outside New Zealand; and
(b)if he or she intends to practise as a barrister and solicitor, how (whether in sole practice, as a partner in a firm, or otherwise) he or she intends to practise on his or her own account; and
(c)if he or she intends to practise as a barrister, how (whether with or without other barristers, employees, or both, or otherwise) he or she intends to practise on his or her own account; and
(d)the areas of law in which he or she intends to practise.
(6)The lawyer must have paid any levy imposed by the Council of the Law Society under section 74(1) of the Act and payable by the lawyer under section 74(2) of the Act in respect of his or her intended practice on his or her own account.
(7)If a lawyer applies to the High Court for leave to practise on his or her own account (whether as a barrister and solicitor, or as a barrister sole),—
(a)a copy of the application must be served on the Law Society; and
(b)the Law Society is entitled to be heard on the application.
Regulation 15 sets out a modified set of criteria for Australian legal professionals:
15 Special rules for legal profession in Australia
(1)Despite regulation 12, a person is to be treated as satisfying the requirements and other criteria set out in that regulation if he or she satisfies the Council of the Law Society that he or she is entitled to practise as a member of the legal profession, in 1 or more Australian jurisdictions, in a manner that is equivalent to, or materially the same as, practising on one’s own account in New Zealand as a barrister and solicitor, or as a barrister sole, as the case may be.
(2)Despite regulation 13(1) to (3), the High Court may grant a person leave to practise on his or her own account as a barrister and solicitor, or as a barrister sole, if the person satisfies the court that he or she is entitled to practise as a member of the legal profession, in 1 or more Australian jurisdictions, in a manner that is equivalent to, or materially the same as, practising on one’s own account in New Zealand as a barrister and solicitor, or as a barrister sole, as the case may be.
(3)However, subclauses (4) to (6) of regulation 13 apply when an application is made to the High Court for leave to be granted in accordance with subclause (2) of this regulation.
The TTMRA
Section 5(1) of the TTMRA provides that every law of New Zealand must be read subject to the TTMRA, unless that law or the TTMRA otherwise expressly provides. So in the event of any inconsistency, it prevails over the LCA.
The TTMRA gives effect to the Trans-Tasman mutual recognition principles in relation to goods and occupations. The Trans-Tasman mutual recognition principle in relation to occupations is set out in s 15 of the TTMRA:
15Trans-Tasman mutual recognition principle in relation to occupations
(1)The Trans-Tasman mutual recognition principle in relation to occupations is that, subject to this Act, an individual who is registered in an Australian jurisdiction for an occupation is entitled, after giving notice to the local registration authority for the equivalent occupation,—
(a)to be registered in New Zealand for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in New Zealand.
(2)The entitlement described in subsection (1) arises by virtue of this Act, and no law of New Zealand requiring an individual seeking to carry on that occupation to have any particular qualification before doing so applies to any individual who is registered in an Australian jurisdiction for an occupation and who gives notice to the local registration authority for the equivalent occupation in accordance with section 19.
A person who is registered in an Australian jurisdiction for the occupation of practice as a barrister is entitled to be registered in New Zealand for the equivalent occupation after giving notice to the local registration authority for the equivalent occupation. The meaning of “registration” for the purposes of the TTMRA is set out in s 4 of that Act:
4 Meaning of registration
(1)In this Act, registration means the admission, approval, certification (including, without limitation, the issue of practising certificates), licensing, registration, or any other form of authorisation, of an individual required by or under law for carrying on an occupation.
(2)If an individual is required by or under law to have more than 1 form of authorisation, as described in subsection (1), to carry on an occupation, registration includes each form of authorisation that any relevant local registration authority grants.
…
As explained above, in order to be entitled to practise as a barrister in New Zealand an individual is required to have more than one form of authorisation: admission as a barrister and solicitor of the High Court, and a practising certificate. So s 4(2) of the TTMRA applies.
The TTMRA contemplates that in relation to each of these two forms of authorisation, an application must be made to the relevant local registration authority. The term “local registration authority” is defined in s 2(1) of the TTMRA in relation to barristers and solicitors as meaning:
(i) in relation to admission as a barrister and solicitor, a Registrar or Deputy Registrar of the High Court; and
(ii)in relation to the issue of a practising certificate, the New Zealand Law Society.
The requirement for notice to the local registration authority that is referred to in s 15 of the TTMRA is provided for in more detail in s 19 of the TTMRA:
19 Notification to local registration authority
(1)An individual who is registered in an Australian jurisdiction for an occupation may give a written notice to the local registration authority for the equivalent occupation seeking registration for the equivalent occupation on the ground referred to in section 17(1), in accordance with the Trans-Tasman mutual recognition principle in relation to occupations.
(2)A notice referred to in subsection (1) must—
(a)state the occupation for which registration is sought; and
(b)state that the applicant is registered for that occupation or an equivalent occupation in an Australian jurisdiction; and
(c)state that registration is being sought in accordance with the Trans-Tasman mutual recognition principle in relation to occupations; and
(d)specify all the participating jurisdictions in which the applicant has registration for equivalent occupations and specify the occupations; and
(e)state that the applicant is not, in relation to any occupation referred to in paragraph (b) or paragraph (d),—
(i)the subject of any preliminary investigations or action that might lead to disciplinary proceedings in any participating jurisdiction; or
(ii)the subject of any disciplinary proceedings in any participating jurisdiction; and
(f)state that the applicant’s registration for any occupation referred to in paragraph (b) or paragraph (d) is neither cancelled nor suspended in any participating jurisdiction as a result of disciplinary action; and
(g)state that the applicant is not otherwise personally prohibited from carrying on any occupation referred to in paragraph (b) or paragraph (d) in any participating jurisdiction, and is not subject to any special conditions in carrying on any such occupation, as a result of criminal, civil, or disciplinary proceedings in any participating jurisdiction; and
(h)specify any special conditions to which the applicant is subject in carrying on any occupation referred to in paragraph (b) or paragraph (d) in any participating jurisdiction; and
(i)give consent to the making of inquiries of, and the exchange of information with, the authorities of any participating jurisdiction regarding the applicant’s activities in the relevant occupation or occupations or otherwise regarding matters relevant to the notice; and
(j)be accompanied by any fee payable under section 39 or section 40.
(3)The applicant must, in relation to a notice referred to in subsection (1),—
(a)annex to it either—
(i)a document that is either the original or a facsimile copy of the instrument evidencing the applicant’s existing registration; or
(ii)if no such instrument exists, sufficient information to identify the applicant and the applicant’s existing registration; and
(b)if a document accompanies a notice under paragraph (a)(i), certify in the notice that the document is either the original or a facsimile copy of the instrument evidencing the applicant’s existing registration; and
(c)verify the statements and other information in the notice by statutory declaration.
(4)The local registration authority may, at its discretion, permit a notice referred to in subsection (1) to be amended after it is given.
Section 20 of the TTMRA requires that within the period of one month after a notice is given under s 19 the local registration authority must either grant registration under s 17(1), or postpone the grant of registration in the circumstances prescribed in s 21 of the TTMRA, or refuse registration on the grounds prescribed in s 22.
Section 17 of the TTMRA confirms that a person is entitled to registration under the TTMRA whether or not such registration is expressly provided for in the New Zealand law governing registration in a particular occupation. And it protects the continuing registration of a person who has become registered under the TTMRA, even if that person subsequently ceases to be registered in the Australian jurisdiction:
17 Entitlement to registration and continued registration
(1)For all the purposes of the law of New Zealand, every law of New Zealand dealing with registration is deemed to include as a ground of entitlement to registration and renewal of registration, subject to the provisions of this Act, the ground that an individual seeking registration or renewal of registration is registered in an equivalent occupation in an Australian jurisdiction.
(2)An individual to whom registration has been granted on the ground referred to in subsection (1)—
(a)is entitled to renewal of registration in accordance with the law dealing with registration of that kind; and
(b)is not disentitled to registration or renewal of registration solely because the individual ceases to be registered in an equivalent occupation in an Australian jurisdiction; and
(c)keeps or loses his or her entitlement to registration or renewal of registration in accordance with any law dealing with registration of that kind, to the extent that any such law—
(i)applies equally to all individuals carrying on or seeking to carry on the occupation under the law of New Zealand; and
(ii)does not require an individual carrying on or seeking to carry on that occupation under the law of New Zealand to have any particular qualification before doing so.
TTMRA Admission Regulations
As already mentioned, the form in which a s 19 notification must be given to the High Court is set out in the Admission Regulations issued by the New Zealand Council of Legal Education. Regulation 2 provides:
2. Notice
(1) Every applicant shall give to the Registrar written notice in accordance with section 19 of the TTMRA.
(2) The notice shall be in duplicate.
(3) The notice must be in the form set out in Schedule 1 of these regulations.
(4) The Registrar shall forthwith send the duplicate copy of the notice to the Executive Director of the Law Society.
Regulation 3 of the Admission Regulations requires the applicant to provide an affidavit in support in the form set out in sch 2. The affidavit must verify the statements in the notice and attach, among other things, “the instrument evidencing [the applicant’s] existing registration in Australia” or sufficient information to establish that existing registration.
Schedule 1 of the Admission Regulations requires the s 19 notice to read as follows:
TAKE NOTICE that I [full name] of [full address], [occupation] hereby give notice that I seek registration for the occupation of barrister and solicitor of the High Court of New Zealand on the ground that I am entitled to be so registered in accordance with section 17 of the Trans-Tasman Mutual Recognition Act 1997. I certify that:
(1) I am currently registered to practise as a [ Barrister and Solicitor or as appropriate] of the States[s] of [name of participating jurisdiction(s)], Australia, and am therefore registered in an equivalent occupation in [a] participating jurisdiction[s] for the purposes of section 19 of the Trans- Tasman Mutual Recognition Act 1997.
(2) I seek admission in New Zealand under section 19 of the Trans-Tasman Mutual Recognition Act 1997 in accordance with the Trans-Tasman mutual recognition principle in relation to occupations.
(3) The State[s] of [name or participating jurisdiction(s)] is[are] the [only] participating jurisdiction[s] in which I have registration as a [Barrister and Solicitor or as appropriate].
(4) I am not, as a [Barrister and Solicitor or as appropriate] of the State[s] of [name of participating jurisdiction(s)], the subject of any preliminary investigations or action that might lead to disciplinary proceedings in any participating jurisdiction or the subject of any disciplinary proceedings in any participating jurisdiction.
(5) My practising certificate as a [Barrister and Solicitor or as appropriate] of the State[s] of [name of participating jurisdiction(s)] has not been cancelled or suspended in any participating jurisdiction as a result of disciplinary action.
(6) I am not otherwise personally prohibited from carrying on my practice as a [Barrister and Solicitor or as appropriate] of the State[s] of [name of participating jurisdiction(s)] and I am not subject to any special conditions in carrying on my occupation as a result of criminal, civil, or disciplinary proceedings in any participating jurisdiction.
(7) I am not subject to any special conditions in carrying on my occupation as a [Barrister and Solicitor or as appropriate] of the State[s] of [name of participating jurisdiction(s)].
(8) I hereby consent to the making of enquiries and the exchange of information with the authorities of any participating jurisdiction regarding my activities as a [Barrister and Solicitor or as appropriate] of the State[s] of [name of participating jurisdiction(s)] or otherwise regarding matters relevant to this notice.
Submissions of Mr Little on appeal
Mr Little’s argument before this Court focused on the legal effect of the step taken by the Registrar of the High Court at Auckland in accordance with reg 2(4) of the Admission Regulations in August 2012 in sending his duplicate s 19 notice to the NZLS. Mr Little emphasised that it was a duplicate notice, not merely a copy. Mr Little was entitled to a practising certificate at that time. The service of the notice on the NZLS, Mr Little submitted, crystalised his then-existing right to be issued with a practising certificate. It was up to the NZLS to do something about that notice under s 20 of the TTMRA. In the absence of any proper reason to postpone the grant of registration, or refuse registration, the NZLS was obliged to grant registration. It was then the responsibility of the NZLS to issue any necessary invoice for fees payable in connection with the issue of the practising certificate.
Mr Little also emphasised that the form of s 19 notice to the Registrar prescribed by the Admission Regulations deals not only with the applicant’s admission in Australia, but also requires the applicant to confirm that his practising certificate had not been cancelled or suspended in any participating jurisdiction, and that they are not subject to any special conditions in carrying on their occupation. He submitted that this single s 19 notice is designed to operate as notice to both the Registrar of the Court and the NZLS. That, he said, is why it requires the applicant to make statements relevant to their entitlement to practise, rather than to admission as such. The transmission to the NZLS of the duplicate s 19 notice therefore satisfies the requirement that a s 19 notice be given by the applicant to the NZLS.
In August 2012 the Registrar of the High Court had decided that the requirements of s 17 had been complied with. The Registrar’s certificate to that effect was provided to the Judge, who admitted Mr Little as a barrister and solicitor of the High Court. The only remaining step — issue of a practising certificate by the NZLS — should have followed. No separate application to the NZLS was required for a practising certificate, after these steps had been taken.
Mr Little noted that the NZLS did in fact open a file, allocate him a “[p]erson ID 029002” and include him in its Register.
Mr Little went on to submit that he was an individual to whom registration had been granted on the ground referred to in s 17(1) of the TTMRA — that is, he was registered in an equivalent occupation in an Australian jurisdiction. Section 17(2)(b) then applied, with the result that he was not disentitled to registration or renewal of registration solely because he ceased to be registered in an equivalent occupation in an Australian jurisdiction.
In response to questions about whether this approach would circumvent the requirements that apply to New Zealand lawyers under the LCA in relation to maintaining their currency in the practice of law, Mr Little SC submitted that the only currency requirements are found in s 31(3) of the LCA, which precludes a lawyer who has not practised for more than 10 years on their own account from resuming practice on their own account until they have received adequate instruction to the satisfaction of the Council of the NZLS in the duties of a barrister and solicitor or of a barrister, as the case may require. Mr Little had not been out of practice for more than 10 years, so this requirement did not apply to him.
Submissions of NZLS on appeal
Mr Collins, counsel for the NZLS, supported the decision below for the reasons given by the Judge.
In response to questions from the Court, Mr Collins accepted that Mr Little was entitled to be issued a practising certificate as a barrister, subject to meeting the criteria set out in s 39(4) of the LCA. But, Mr Collins said, he is not entitled to a practising certificate that entitles him to practise on his own account because he does not meet the requirements of s 30 of the LCA and he does not meet the requirements that apply under s 17 of the TTMRA in relation to an individual who seeks the issue of a practising certificate of that kind. Section 39(4)(c) expressly provides that despite s 39(1), the NZLS may refuse to issue a practising certificate to a person who does not meet the requirements that apply under s 17 of the TTMRA in relation to an individual who seeks the issue of a practising certificate of the kind sought.
In response to questions, Mr Collins accepted that it would be open to Mr Little to apply to the High Court under s 30(3) of the LCA for leave to practise on his or her own account. But he would need to satisfy the criteria for such leave set out in the LCA Practice Rules Regulations.
Discussion
A two step process
It is in our view very clear that there are two steps in the process by which a person becomes entitled to practise as a barrister on their own account in New Zealand, both under the LCA and under the TTMRA.[14]
[14]See also Re Carter Dabas [2019] NZHC 1940 at [9].
First, the individual must be admitted as a barrister and solicitor of the High Court. This step requires an application to the High Court for admission. If that application is successful, the individual’s name is entered on the roll of barrister and solicitors.
Second, once the person’s name is on the roll, they must apply for and obtain a practising certificate issued by the NZLS that authorises them to practise as a barrister on their own account. This step involves a separate application to the NZLS which addresses the distinct criteria that a person must meet in order to be permitted to practise on their own account under s 30 of the LCA and under the LCA Practice Rules Regulations.
The LCA prescribes different requirements and different processes that apply at each of those steps for domestic applicants.
The TTMRA enables a person who is registered in an equivalent occupation in an Australian jurisdiction to complete each of these steps without needing to comply with the same requirements that apply to domestic applicants. But it does not dispense with these two distinct steps. To the contrary, the need for two separate authorisations to be obtained from two separate local registration authorities in connection with practice as a lawyer is expressly contemplated by the definition of the term “registration” in s 4 of the TTMRA, and by the definition of the term “local registration authority” in s 2 of that Act. Sections 17 and 19 of the TTMRA apply separately to each step.
So for example a person who is admitted as a solicitor in an Australian jurisdiction, but who does not hold a practising certificate in that jurisdiction, could apply for admission in New Zealand under the TTMRA. But they could not rely on the TTMRA to obtain a practising certificate from the NZLS.
And even where an applicant for admission as a barrister and solicitor of the High Court of New Zealand under the TTMRA does hold a practising certificate in Australia, they will not always want to incur the costs and assume the obligations associated with holding a practising certificate in New Zealand. A person who seeks admission under the TTMRA can choose not to seek a practising certificate at that time, in the same way that many local applicants for admission choose not to do so immediately upon admission.
The requirement in the Admission Regulations that the Registrar of the High Court send a duplicate of the s 19 notice given to the Court to the NZLS does not operate as a substitute for the individual applicant giving a notice under s 19 to the NZLS seeking the issue of a practising certificate, for four reasons.
First, the s 19 notice prescribed by the Admission Regulations is not framed as a notice seeking the issue of a practising certificate. It expressly seeks “registration for the occupation of barrister and solicitor of the High Court of New Zealand”.[15] It does not require the applicant to specify whether they seek a practising certificate as a barrister and solicitor, or as a barrister. It does not address the question of entitlement to practise on one’s own account. We do not accept the submission that the form prescribed by the Admission Regulations must be intended to operate as an application for a practising certificate: it omits critical information that would be required for that purpose. Nor is Mr Little right to say that an applicant’s practising certificate must be attached to the notice or to the accompanying affidavit. The applicant must attach information relating to the applicant’s existing registration in Australia: but the registration that is relevant in that context is admission as a barrister and/or solicitor.
[15]Admission Regulations, above n 3, sch 1.
Second, the transmission of the duplicate s 19 notice by the Registrar of the High Court to the NZLS serves to inform the NZLS that the person has sought admission as a barrister and solicitor of the High Court of New Zealand. It is not expressed to be an application for a practising certificate. It does not come from the individual applicant. It is not accompanied by the fees and levies that are payable for the issue of a practising certificate. The requirement to file a duplicate notice in the Admission Regulations, and the provision for that duplicate to be sent to the NZLS by the Registrar, do not operate as a substitute for the requirement in s 17 of the TTMRA that an applicant for a practising certificate must send an application for that form of registration to the relevant local registration authority: in this case, the NZLS.
Third, it would be inconsistent with the statutory regime governing the legal profession in New Zealand for every applicant for admission in reliance on the TTMRA to be automatically treated as also applying for a practising certificate, with the costs and obligations that entails. Applicants for admission who rely on the TTMRA have a choice about whether to go on to seek a practising certificate, and about when to do so. It would be curious in the extreme if applicants for admission who rely on the TTMRA were deprived of that choice, unlike other applicants for admission as a barrister and solicitor.
Fourth, some applicants for admission in reliance on the TTMRA will not in fact hold a practising certificate in Australia, and will not be entitled to seek one in New Zealand in reliance on the TTMRA. It would make no sense to treat such applicants as making an application that they are not entitled to make, and are not intending to make.
The effect of the steps taken by Mr Little in August 2012
In August 2012 Mr Little completed the first of these two steps. He did so in reliance on the TTMRA, and on the specific provisions in the LCA concerning applicants who rely on the TTMRA. He was entitled to be admitted as a barrister and solicitor of the High Court of New Zealand. He was so admitted.
However if Mr Little wished to obtain a practising certificate of any kind at that time, he needed to apply to the NZLS for that practising certificate. As explained above, an application for a practising certificate is a separate step that requires a separate notice to be given to the NZLS under s 19 of the TTMRA. He was free to decide not to apply for a practising certificate, and incur the associated costs and obligations. That appears to be the choice he made. He did not communicate with the NZLS to ask for a practising certificate to be issued, or take any follow-up action when none was issued. He did not pay any fees in 2012, or in subsequent years. He did not comply with other regulatory requirements such as submission of CPD returns.
Mr Little could have applied for a practising certificate in August 2012. He says that he had satisfied all the requirements that applied to him as a Reader barrister by 21 August 2012. It appears to follow from this that if Mr Little had sought a practising certificate entitling him to practise on this own account immediately after being admitted as a barrister and solicitor of the High Court of New Zealand on 17 August 2012, he would not have been entitled to such a practising certificate. But if he had applied shortly afterwards, he would have been so entitled. Be that as it may, he made no such application. The NZLS was not required to take any action under s 20 of the TTMRA at that time.
Nor can we accept the submission that Mr Little’s right to a practising certificate “crystalised” in August 2012, with the result that he could make an application at any subsequent time on the basis of the entitlement that he then had. It is clear from the scheme of the TTMRA that a registration authority must apply the criteria in the TTMRA at the time the application is made to it. There is nothing in the scheme of the TTMRA or the LCA that suggests that entitlements to registration can crystalise at some earlier date, which could be many years before an application is made for a practising certificate to the relevant local registration authority.
The effect of the steps taken by Mr Little in 2020
At the time Mr Little applied for a practising certificate in July 2020 he was not registered in an equivalent occupation in New South Wales. He was not entitled to practise as a barrister on his own account in that jurisdiction. The Trans-Tasman mutual recognition principle did not apply to entitle him to registration with that kind of practising certificate. Consistent with the TTMRA, s 39(4)(c) of the LCA expressly authorised the NZLS to refuse to issue a practising certificate entitling Mr Little to practise on his own account in New Zealand in circumstances where he did not meet the requirements that apply under s 17 of the TTMRA in relation to a person seeking the issue of a practising certificate of that kind.
It follows that in July 2020 Mr Little was not entitled to be issued with a practising certificate entitling him to practise on his own account under the TTMRA. Rather, Mr Little was in the same position as any other person who had been admitted as a barrister and solicitor of the High Court of New Zealand, and whose name had been entered on the roll, but who had not previously held a practising certificate in this country. He was entitled to be issued with a practising certificate as an employed barrister, under s 39(1) of the LCA. He could also apply to the High Court under s 30(3) of the LCA for leave to practise on his or her own account. That application would be determined having regard to the grounds prescribed in the LCA Practice Rules Regulations.
The appeal must therefore be dismissed.
Result
The appeal is dismissed.
Mr Little must pay costs to the NZLS for a standard appeal on a band A basis, with usual disbursements.
Solicitors:
Nicholls Law Ltd, Auckland for Appellant
New Zealand Law Society | Te Kāhui Ture o Aotearoa, Wellington for Respondent
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