Little v New Zealand Law Society

[2021] NZHC 1928

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-404-1515

[2021] NZHC 1928

IN THE MATTER AND

of the Trans-Tasman Mutual Recognition Act 1997 and the Lawyers and Conveyancers Act 2006 and an application for review under the Judicial Review Procedure Act 2016

IN THE MATTER

of a judgment Re Dabas [2019] NZHC 1940

BETWEEN

T G LITTLE

Applicant

AND

NEW ZEALAND LAW SOCIETY

Respondent

On the papers
Counsel:	T G Little, self-represented applicant P N Collins for Respondent
Judgment:	28 July 2021

JUDGMENT OF CULL J

[1]                 Mr Little has applied to recall my judgment in another proceeding in which I granted Mr Dabas’ application under s 19 of the Trans-Tasman Mutual Recognition Act 1997 (the TTMRA) to be admitted as a barrister and solicitor of the High Court of New Zealand.1

[2]                 In 2020, Mr Little, a barrister who had worked in Australia but moved to New Zealand (but with no connection to Mr Dabas), applied for judicial review of the

1      Re Dabas [2019] NZHC 1940.

LITTLE v NEW ZEALAND LAW SOCIETY [2021] NZHC 1928 [28 July 2021]

New Zealand Law Society’s (NZLS) decision refusing to grant him a New Zealand practising certificate under the provisions of the TTMRA.

[3] That application for judicial review was heard before Powell J, who issued his decision on 29 April 2021.2 Powell J dismissed Mr Little’s application, determining that NZLS had not erred in its decision, as Mr Little had not met the requirements under the TTMRA and the Lawyers and Conveyancers Act 2006, and was not entitled to a practising certificate that he sought. In his decision, Powell J relied on the observations made in my judgment concerning the interpretation of the requirements under the TTMRA for Australian lawyers applying for a New Zealand practising certificate.

[4]                 Mr Little has appealed Powell J’s decision (and applied to recall it). He now also seeks to recall my 2019 judgment under r 11.9 of the High Court Rules 2016, on the basis that counsel failed to direct the Court’s attention to a legislative provision and/or authoritative decision of plain relevance.

Factual and procedural background

[5]                 As noted above, I granted Mr Dabas’ application to be admitted as a barrister and solicitor of the High Court of New Zealand on 9 August 2019. In filing his application, Mr Dabas had annexed a certified copy of the instrument evidencing his existing registration in Australia as a lawyer, in the form of a practising certificate issued by the Queensland Law Society under the Legal Profession Act 2007.3

[6]                 Upon preliminary assessment of Mr Dabas’ application, I was not satisfied that s 19(1) of the TTMRA had been met, because under that provision, Mr Dabas had to provide certain evidence relating to the “equivalent occupation” (in this case, a lawyer) for which he sought registration. I sought clarification therefore, from Mr Dabas of the basis upon which he sought registration for an “equivalent occupation” under the Act, and the nature of the special conditions placed on his Queensland practising

2      Little v New Zealand Law Society [2021] NZHC 929.

3 This is the equivalent to the New Zealand legislation, the Lawyers and Conveyancers Act 2006.

certificate.    I also directed NZLS to advise the Court as to whether Mr Dabas’ practising certificate met the requirements under s 19 of the Act.

[7]                 Both Mr Dabas and NZLS filed memoranda advising the Court of the relevant process and principles relating to applications for registration under the TTMRA. In essence, they advised that:

(a)Registration in New Zealand is a two-step process under s 4 of the TTMRA. The first step is admission as a barrister and solicitor in the High Court of New Zealand (for which a Registrar of the High Court acts as the local registration authority), and the second step is an application for a practising certificate to NZLS (the local registration authority for this step);

(b)Section 14 of the TTMRA sets out the meaning of “equivalent occupation”,4 and for the purposes of s 14, registration authorities shall assess whether the New Zealand occupation applied for is an occupation equivalent to the applicant’s Australian occupation in accordance with Sch 3 of the Legal Council of Education Trans-Tasman Mutual Recognition Admission Regulations 2008;

(c)Schedule 3 of those Regulations provide that an Australian applicant admitted as a legal practitioner in Queensland and holding a current practising certificate as a solicitor has an equivalent occupation for the purposes of admission and to qualify for a practising certificate as a barrister or a barrister and solicitor; and

(d)In Queensland, Mr Dabas held a sub-category of practising certificate called a “restricted employee practising certificate”. This meant that he was subject to certain conditions, namely that under s 56 of the Legal Profession Act 2007, he was required to practice under supervision for

4      Section 14(1) dictates that an occupation for which individuals may be registered in an Australian jurisdiction is taken to be an equivalent occupation to an occupation for which individuals may be registered in New Zealand if the activities authorised to be carried out under each registration are substantially the same.

the first two years of practice, and also, under s 353(2)(a) of the Legal Profession Act, he was not allowed to engage in legal practice other than as a government legal officer engaged in government work.5

[8]                 Overall, I determined that from the comprehensive submissions and the explanatory memorandum filed by Mr Dabas, the status of his Queensland Law Society Practising Certificate met the requirement under s 19 of the Act, that he had an equivalent occupation to enable registration to occur. Accordingly, I ordered that Mr Dabas was entitled to admission as a barrister and solicitor of the High Court of New Zealand, and following his admission, was entitled to apply for a practising certificate as an employed barrister or barrister and solicitor.

[9]                 Turning then to Mr Little. Mr Little had in fact been previously admitted in New Zealand, following a successful application under the TTMRA to do so in 2012, when he was practising as a barrister in New South Wales and gave notice under s 19 of the TTMRA. Mr Little was admitted to the New Zealand bar on 17 August 2012.

[10]              He subsequently ceased practice as a barrister in New South Wales and travelled to England to pursue business opportunities. Powell J observed, that by the time he had applied for a New Zealand practising certificate on 22 July 2020, he had not held a practising certificate in New South Wales since 13 February 2015.6

[11]              Mr Little’s application to NZLS for the practising certificate was denied, on the basis that the absence of a current New South Wales practising certificate was fatal to his application for a practising certificate  in  New  Zealand.  As  noted  above,  Mr Little sought judicial review of this decision, which was heard before Powell J in November 2020.

[12]              Powell J ultimately agreed with the NZLS position. He affirmed the registration position as described in Re Dabas, that registration in New Zealand was a “two-step” process, and that there could be “no dispute  that  to  practice  law  in New Zealand two types of authorisation are required: admission to the bar, and a

5      The nature of Mr Dabas’ employment at the time, as a government legal officer, was the reason why s 353 applied.

6      Little v New Zealand Law Society, above n 2, at [4].

practising certificate”.7 Because of this process, separate notification to different local registration authorities was required for both steps: first, to the  Registrar of the  High Court for admission applications, and second, to NZLS for practising certificate applications.

[13] Powell J noted that Mr Little has engaged in this process, by filing a notice to the Registrar under s 19 of the TTMRA on 31 July 2012. The giving of this notice was relevant under r 7 of the Lawyers and Conveyancers Act (Lawyers: Admission)

Rules 2008 (the admission rules), which states:8

(4)      A Judge may not consider an application for admission by a TTMRA candidate unless the application is accompanied by documentation from the Registrar that—

(a)confirms that the TTMRA candidate has been issued with a certificate stating that he or she has given notice under section 19 of the Trans-Tasman Mutual Recognition Act 1997; and

(b)confirms whether the candidate is or is not entitled to be registered under that Act.

[14] Powell J concluded that at the time of applying, Mr Little did not meet the requirements under s 17 of the TTMRA in relation to s 39(4)(c) of the Lawyers and Conveyancers Act 2006,9 and was therefore not entitled to the practising certificate that he sought.

Mr Little’s position

[15]              Mr Little acknowledged that he was neither a party nor a witness to my 2019 decision, but argued that his recall application was an alternative to his appeal. He relied on Shed4 Trading Company Ltd v Sanson,10 as authority for the proposition that a third party affected by a decision could apply by way of r 1.6 of the High Court

7 At [15].

8      Lawyers and Conveyancers’ Act (Lawyers: Admission) Rules 208, r 7 (4).

9      The provision dictates that NZLS 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

10 Shed4 Trading Company Ltd v Sanson [2020] NZHC 2836.

Rules,11 and, taking note of the objective of the rules in r 1.2,12 a Judge could determine it as if it were an application under r 11.9.

[16]              Mr Little’s overall position as to why my judgment ought to be recalled under r 11.9 was that NZLS failed to bring the “crucially important” r 7(4) of the admission regulations13 to my attention and advise that the jurisdiction to consider whether s 19(1) had been met in relation to whether Mr Dabas had an “equivalent occupation” was in fact in the hands of the Registrar as the local registration authority for the purposes of admissions (as discussed above, the first step in the two step process).

[17]              Thus, he says, after carrying out the assessment of equivalency, the Registrar was obliged to provide documentation confirming two things. The first is whether Mr Dabas had been issued with a certificate that he had given notice under s 19 of the TTMRA, and second, whether he was entitled to be registered. Mr Little submitted that in failing to provide the documentation mandated by r 7(4) before me, the Registrar acted without jurisdiction.

[18]              Furthermore, Mr Little also argued that NZLS failed to direct the Court to a “crucial aspect” of the registration, namely its approach to lapsed/lapsing Australian practising certificates. NZLS had required Mr Dabas to renew his practising certificate (which expired 30 June 2019) before submitting his s 19 notice.   According to     Mr Little, this failure “deprived the Court of the opportunity to consider the lawfulness of this approach, which is neither required nor permitted by the Act”.

[19]              After referring to the aforementioned case of Shed4, and the elements of when a judgment should be recalled set out in the leading case of Horowhenua County v Nash (No 2), Mr Little stressed that the failure of NZLS to correctly inform the Court that there was no jurisdiction for it to embark on the enquiry as to equivalency of occupation, given how basic and fundamental the error was and the potential it had to

11 Rule 1.6 states that if any case arises for which no form of procedure is prescribed by any Act or rules or regulations or by the rules, the court must dispose of the case as nearly as may be practicable in accordance with the provisions of the rules affecting any similar case, and if there are no such rules, it must be disposed of in the manner that the court thinks is best calculated to promote the objective of the rules as set out in r 1.2.

12 The objective of the High Court Rules, as articulated in r 1.2, is to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.

13 See [13] above.

negatively impact those who relied on the decision, indicated that the decision itself should be treated as a nullity.

[20]              Finally, Mr Little referred to the inherent powers of this Court to correct errors in exceptional circumstances in the interests of justice. As this judgment did not appear to have been perfected, the Court could recall its judgment and revisit it in order to arrive at a different decision.

The Law Society’s position

[21]              NZLS observed correctly that it was not a party to the Re Dabas proceeding, although it did obviously provide written submissions to assist the Court. It therefore considers that it has no standing to participate in Mr Little’s application for recall.

[22]              Nevertheless, the NZLS position on this current recall application is the same as in the recall of Powell J’s  judgment.  In particular, the NZLS position was that  Mr Little’s application for recall of Powell J’s decision essentially amounted to an attempt to re-litigate matters already considered, as he was challenging substantive findings of fact and law. As noted by the Court of Appeal in Erwood v Maxted, this would “not be entertained”.14

Discussion

[23]              There is narrow scope for a judgment to be recalled under r 11.9  of the    High Court Rules, confined to three situations:15

(a)If, since the judgment there has been an amendment to a statute or regulation, or a new judicial decision of higher authority;

(b)Where counsel have failed to direct the Court’s attention to a legislative provision or precedent which is clearly relevant; or

14 Erwood v Maxted [2010] NZCA 93 at [23].

15 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 and Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [22] and [29].

(c)When for some ‘very special reason’ justice requires a recall.

[24]              Mr Little’s application for recall is evidently premised on the second ground available. He claims that NZLS did not draw my attention to r 7(4) of the admission rules. However, the Registrar did in fact provide me with documentation confirming that Mr Dabas had been issued with a certificate stating that he had given notice under s 19 of the TTMRA. As he had provided a certified copy of his practising certificate, the Registrar also confirmed that he was entitled to be registered under that Act. This documentation was sent to me by the Registrar in my capacity as Duty Judge, by way of memorandum on 10 June 2019.

[25]              Thus, there was no failure to bring r 7(4) to my attention. The Registrar followed the appropriate steps under that  particular  rule,  and  I  then  considered Mr Dabas’ application for admission. It was at that point, as set out above, that I sought clarification from Mr Dabas and NZLS of the basis upon which he sought registration for an “equivalent occupation”, which eventually led to my 2019 judgment. This is fatal to Mr Little’s application for recall because it is premised on the basis that r 7(4) was not considered.

[26]              For completeness, I consider there was no issue concerning lapsed/lapsing practising certificates in Re Dabas as submitted by Mr Little. Mr Dabas had renewed his Queensland practising certificate, as required by NZLS, before he submitted his  s 19 notice. Any consideration of NZLS’ approach to lapsed/lapsing certificates would have been irrelevant.

[27]              I also doubt that it would be appropriate for this Court to recall a judgment nearly two years after its release at the request of a third party that has no direct connection to that judgment and where there is a right of appeal from the decision which directly involves them. The facts in Shed4, to which Mr Little refers as precedent for the ability for third parties to recall judgments, significantly differs from Mr Little’s fact situation. In contrast to Mr Little who has no direct connection to the Re Dabas proceedings, the third party in Shed4 was involved in the original

proceedings sought to be recalled, as a witness providing affidavit evidence.16 Further, the third party had no appeal rights, unlike Mr Little.

[28]              The application is therefore dismissed. Rule 7(4) was in fact adhered to and the substance of Mr Little’s complaint is under appeal.

Result

[29]Application for recall is dismissed.

Cull J

Solicitors:
Shortland Chambers, Auckland for the Respondent

16     Shed4 Trading Company Ltd v Sanson, above n 10.