Little v New Zealand Law Society

[2021] NZHC 929

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1515

[2021] NZHC 929

IN THE MATTER

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

BETWEEN

T G LITTLE

Applicant

AND

NEW ZEALAND LAW SOCIETY

Respondent

Hearing:

12 November 2020

Appearances:

G F Little for the Applicant

P N Collins for the Respondent

Further submissions received:

19 November 2020

Judgment:

29 April 2021

JUDGMENT OF POWELL J

This judgment was delivered by me on 29 April 2021 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

LITTLE v NEW ZEALAND LAW SOCIETY [2021] NZHC 929 [29 April 2021]

[1]    The applicant, Tim Little, seeks various orders by way of judicial review proceedings against the respondent, the New Zealand Law Society (“NZLS”). The principal order sought is:

An order that the respondent [NZLS] forthwith on payment of the appropriate fee issue the applicant [Tim Little] with a practicing certificate as a barrister with approval to practice on his own account for the current practicing year.

[2]    The application has arisen because the NZLS did not promptly issue Mr Little the practising certificate he seeks after he applied for one in July 2020 pursuant to the provisions of the Trans-Tasman Mutual Recognition Act 1997 (“TTMRA”).1

[3]    Mr Little’s application for a practising certificate followed an earlier successful application under the TTMRA in 2012. At that time, Mr Little was practising as a barrister in New South Wales and there was no issue when he gave notice pursuant to s 19 of the TTMRA. He was therefore admitted as a barrister and solicitor of the High Court of New Zealand (“admission to the New Zealand Bar”) on 17 August 2012.

[4]    There is no dispute that Mr Little subsequently ceased practice as a barrister in New South Wales and travelled to England to pursue business opportunities. By the time he 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.

[5]    It is Mr Little’s position that the current lack of a practising certificate does not matter as he had completed the mutual recognition requirements set out in the TTMRA at the time of his admission in 2012, and is thus entitled to a practising certificate irrespective of whether he still holds one in New South Wales.

[6]    In contrast, the NZLS submits that the TTMRA regime imposes a two-stage process for Australian legal practitioners seeking to practice in New Zealand. As the NZLS has advised Mr Little, it considers that in order to practice in New Zealand pursuant to the TTMRA, a practitioner must first be admitted to the New Zealand bar for which the relevant local authority under the Act is the High Court. Once admitted,

1      It is noted that the NZLS has not declined to issue a practising certificate to Mr Little. Rather the NZLS had following correspondence indicated a preliminary view that Mr Little was not entitled to a practising certificate and sought Mr Little’s comment. These proceedings followed.

the practitioner is then entitled to apply for a practising certificate from the NZLS as the relevant local authority, in which case the absence of a practising certificate in New South Wales at the time the practising certificate is first applied for in New Zealand is fatal.

[7]    The sole issue to be determined in these proceedings  is  as  articulated  by  Mr Collins on behalf of NZLS:

Whether [Mr Little] is entitled to a practicing certificate as a barrister on his own account in New Zealand, in reliance on the TTMRA, when he does not have a current practicing certificate in an Australian jurisdiction.

The case for Mr Little

[8] In support of his argument that only a single registration process was required, Mr Little SC, on behalf of the applicant, Mr Little, noted that Mr Little had been admitted to the New Zealand bar after notice had been given pursuant to s 19 of the TTMRA at a time when Mr Little had a practising certificate in New South Wales. Mr Little therefore became registered for all purposes of the TTMRA, and as per r 11 of the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008 the NZLS was notified of Mr Little’s admission to the New Zealand bar. As a result, when Mr Little decided to apply to the NZLS for a practising certificate as a person then on the roll of barristers and solicitors, he was entitled to a practising certificate in terms of s 39(1) of the Lawyers and Conveyancers Act 2006. This section provides:

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.

[9] In Mr Little’s submission, as Mr Little’s name was on the roll the only possible statutory basis for declining to issue him with a practising certificate, s 39(4)(c) of the Lawyers and Conveyancers Act, does not apply. Section 39(4)(c) provides:

(4) Despite subsections (1) and (2), the society to which the application was made –

…

(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.

[10]   Mr Little’s position is that 39(4)(c) cannot be relevant because he met the requirements of s 17 of the TTMRA in 2012 when registration was effected in 2012 at the time he was admitted to the New Zealand bar. Therefore, pursuant to s 17(2) of the TTMRA Mr Little:

(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;

…

[11]   In Mr Little’s submission the effect of ss 17(2)(a) and (b) shows clearly that it was never intended for an applicant to maintain a practising certificate in their Australian jurisdiction once registration had been effected, and does not accept the position is in any way affected by the decision of Cull J in Re Carter Dabas.2

Discussion

[12]   With respect to Mr Little and having carefully considered the submissions filed in support of the application, including those filed post-hearing, the interpretation sought to be advanced cannot be sustained. Instead, I conclude Mr Little’s interpretation of the TTMRA regime is neither consistent with the statutory framework, nor indeed the way in which Mr Little has actually proceeded in this case.

[13]   First, Cull J’s categorisation of the registration process for Australian lawyers seeking to practice in  New Zealand must  be correct.  As her Honour observed in  Re Carter Dabas:3

Registration in New Zealand under the Act is a two-step process. Both steps are required to complete registration in order to “carry on the occupation” of

2      Re Carter Dabas [2019] NZHC 1940 at [9].

3      At [9]-[11].

a barrister, or barrister and solicitor, because registration is defined in s 4 of the Act as follows:

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.

The first step is admission as a barrister and solicitor in the High Court of New Zealand, for which a Registrar or Deputy Registrar of the High Court is the local registration authority.4 As we have a fused profession in New Zealand, it is not possible to be admitted only a barrister or only as a solicitor. An applicant is admitted as both but will hold a practising certificate either as a barrister, or as a barrister and solicitor, depending on how they choose to practice.

The second step is the application for a practising certificate to the New Zealand Law Society, the local registration authority for this step.5 It is necessary to hold a current practising certificate as either a barrister, or as a barrister and solicitor, to be a practitioner or lawyer in New Zealand.6

(Emphasis and footnotes included in original)

[14]   No other conclusion is possible given the clear wording of s 4(2) in particular, which is substantively replicated in the equivalent Australian legislation.7

4      Trans-Tasman Mutual Recognition Act 1997, s 2: local registration authority.

5      Section 2: local registration authority.

6 The definitions of a “barrister” and a “barrister and solicitor” under s 6 of the Lawyers and Conveyancers Act 2006 mean a person enrolled as a barrister and solicitor of the High Crown under or by virtue of the Lawyers and Conveyancers Act 2006 and practising as a barrister or as a solicitor. “Practitioner” means a lawyer (or conveyancing practitioner); and a “lawyer” means a person holding a current practising certificate as a barrister or as a barrister and solicitor.

7      Material provided by the Bar Association of New South Wales and the decisions of Randle v Otago District Law Society (HC Dunedin CP41/99, 16 November 1999) and Prothonotary v Comeskey [2018] NSWCA 18 all indicate a two stage approach is also followed in New South Wales where Mr Little formerly practiced. In Randle,  as  a barrister and  solicitor  of the  High  Court  of  New Zealand, Mr Randle was entitled to be admitted to the bar in New South Wales but was not eligible for a practising certificate and as a result was clearly ineligible for a practising certificate in New Zealand based on the TTMRA. Likewise, in Prothonotary, the order for admission was set aside after it had been previously granted following investigations undertaken at the time   Mr Comeskey applied for a practising certificate.

[15]   There can be no dispute that to practice law in New Zealand two types of authorisation are required: admission to the bar and a practising certificate.8 As Cull J noted, s 4(1) and (2) of the TTMRA makes clear the same two types of authorisation are required to take advantage of the mutual recognition allowed by the Act.

[16]   Given this position it is clear that 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.9 This is in fact what Mr Little did. The s 19 notice given by Mr Little, dated 31 July 2012 and addressed to the Registrar of the High Court at Auckland, simply provided:

… 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 registered in accordance with section 17 of the Trans-Tasman Mutual Recognition Act 1997.

[17] Although Mr Little went on to certify his practising certificate as a Barrister of the State of New South Wales had not been cancelled or suspended this did not have anything to do with the issue of a practising certificate. The effect of the notice given by Mr Little in 2012 is made clear by r 7 of the Lawyers and Conveyancers Act (Lawyers: Admission) Regulations 2008 (“Lawyers Admission Regulations”) which provides:

(1)In this rule and rule 8(3), TTMRA candidate means a person who applies for admission on the grounds that he or she is qualified for admission under section 49(4) of the Act.

(2)If a TTMRA candidate gives notice under section 19 of the Trans- Tasman Mutual Recognition Act 1997 to a Registrar who is acting as local registration authority in relation to admission as a barrister and solicitor, the Registrar must issue the person with a certificate that states that notice has been given under that section.

(3)Every TTMRA candidate must apply to the High Court for admission using form LA 4.

(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—

8      “Joining    the     legal    profession”     (15     July    2020)     New    Zealand     Law     Society

< Re Carter Dabas [2019] NZHC 1940 at [9]-[11].

9      TTMRA, s 2 (definition of “local registration authority”).

(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.

(Emphasis added)

[18]   Thus, pursuant to r 11 of the Lawyers Admission Regulations, the NZLS was simply notified of the admission and nothing in the legislation in any way prescribed that the NZLS was required to treat the notification of an admission as an application for a practising certificate. Nor, contrary to the submission made on behalf of Mr Little, was this in fact suggested by Cull J in Carter Dabas, rather her Honour simply noted that once Mr Carter Dabas was admitted he was entitled to apply for a practising certificate from the NZLS.10

[19]   In any event, it is clear that at  the  time  Mr  Little  was  admitted  to  the New Zealand bar in 2012 he did not understand he had also acquired a practising certificate. On the contrary, when Mr Little applied to the NZLS for a practising certificate on 23 July 2020 he confirmed he had never had a New Zealand practising certificate as a barrister, nor had he been issued with a barrister certificate previously. As Mr Little also confirmed that by that time he did not have a current New South Wales practising certificate, it followed that “as an individual seeking registration” pursuant to s 17(1) of the TTMRA he was not able to show that he was at that time “registered in an equivalent occupation in an Australian jurisdiction”. As there had been no registration in relation to a practising certificate prior to his application, it followed that s 17(2) could not apply to Mr Little, as those provisos are applicable only once a practising certificate has been granted pursuant to the TTMRA.

[20] As a result, at the time Mr Little applied for a New Zealand practising certificate he did not meet “the requirements that apply, under s 17 of the [TTMRA]” in relation to s 39(4)(c) of the Lawyers and Conveyancers Act 2006 and was therefore not entitled to the practising certificate that he sought. There was therefore no error in the approach taken by the NZLS with regard to Mr Little’s application for a

10     Re Carter Dabas [2019] NZHC 1940 at [30]

practising certificate in terms of the issues it raised and wished Mr Little to consider. As a result Mr Little’s application must be dismissed.

[21]For completeness, I make the following observations:

(a)Had Mr Little applied for a practising certificate at the time of his admission to the New Zealand bar in 2012, or indeed at any time prior to the expiry of his New South Wales practising certificate, he would have been entitled pursuant to the TTMRA to a practising certificate as a barrister. Thereafter he would have been entitled to continue to renew his New Zealand practising certificate even after his New South Wales practising certificate lapsed.

(b)By not practising in New South Wales since 2015 Mr Little is not only ineligible to obtain a practising certificate in New Zealand pursuant to the TTMRA but, as Mr Little himself acknowledged, he is no longer entitled to a practising certificate in New South Wales either. Before he would be entitled to practice in New South Wales as a barrister he would be required to comply with the New South Wales Bar Association “Returning to the Bar Protocol” including, unless an exemption was granted, resitting the bar exam and practising under supervision for a period.

Decision

[22]The application for review is dismissed.

[23]   The NZLS is entitled to costs on the application. If these cannot be agreed within one month, the NZLS has leave to file a memorandum detailing the costs sought. Mr Little will then have two weeks to respond, following which I will determine the issue on the papers.

Powell J