Little v New Zealand Law Society Te K�hui Ture o Aotearoa
[2023] NZHC 1880
•20 July 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-001515
[2023] NZHC 1880
UNDER the Trans-Tasman Mutual Recognition Act 1997, the Lawyers and Conveyancers Act 2006 and the Crown Proceedings Act 1950 IN THE MATTER
of a failure to comply with a mandatory public law duty causing damage to the plaintiff
BETWEEN
TIMOTHY GRAEME LITTLE
Plaintiff
AND
NEW ZEALAND LAW SOCIETY | TE KĀHUI TURE O AOTEAROA
First Defendant
THE ATTORNEY-GENERAL
Second Defendant
Hearing: 17 July 2023 Appearances:
G F Little SC for Plaintiff/Respondent P Collins for Defendant/Applicant
Judgment:
20 July 2023
JUDGMENT OF VENNING J
This judgment was delivered by me on 20 July 2023 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Nicholls Law Limited, Auckland
New Zealand Law Society, Wellington Crown Law, Wellington
Counsel:G F Little SC, Auckland P Collins, Auckland
LITTLE v NEW ZEALAND LAW SOCIETY | TE KĀHUI TURE O AOTEAROA [2023] NZHC 1880 [20 July 2023]
Introduction
[1] Timothy Graeme Little was admitted as a barrister and solicitor of the High Court of New Zealand under the Trans-Tasman Mutual Recognition Act 1997 (TTMRA) on 17 August 2012.
[2] In July 2020, Mr Little applied to the New Zealand Law Society (NZLS) for a practising certificate as a barrister practising on his own account. By that time Mr Little no longer held a practising certificate authorising him to practise on his own account in an Australian jurisdiction. The NZLS considered there were grounds to decline or refuse his application. The NZLS relied on the relevant provisions of the TTMRA and the Lawyers and Conveyancers Act 2006 (LCA).
[3] Mr Little sought to judicially review the decision of the NZLS. He sought an order requiring the NZLS to issue him with a practising certificate as a barrister with approval to practise on his own account and damages of $15,000 for loss of income and costs of chambers’ rental and the like.
[4] Powell J dismissed the application for judicial review.1 The Court of Appeal dismissed Mr Little’s appeal.2 The Supreme Court subsequently dismissed Mr Little’s application for leave to appeal,3 and a later application to recall.4
[5]One might have thought that would be an end of these particular proceedings.
[6] But no. On 11 April 2023, Mr Little filed an amended statement of claim (ASOC) in these proceedings, again seeking an order requiring the NZLS to issue him with a practising certificate as a barrister with approval to practise on his own account, and special damages for loss of earnings, and cost of chambers (now amounting to
$191,600). He also seeks judgment for the costs awards made against him.
[7]Mr Little also joined the Attorney-General as second defendant to the ASOC.
1 Little v New Zealand Law Society [2021] NZHC 929.
2 Little v New Zealand Law Society [2022] NZCA 121.
3 Little v New Zealand Law Society [2022] NZSC 78.
4 Little v New Zealand Law Society [2022] NZSC 103.
[8] Mr Little SC advised that the Attorney-General has not yet been served with the proceeding.
[9] The NZLS has applied to strike out the claim against it or, in the alternative, for security for costs.
[10] For the reasons that follow the Court is satisfied the ASOC is an abuse of process and must be struck out with costs to the NZLS.
Background
[11] Mr Little obtained a law degree in Australia in 1996. The New South Wales Law Society issued him a practising certificate as a solicitor on 1 July 1999.
[12] Mr Little then 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. The restrictions that applied as a “reader barrister” ceased to apply after 12 months (22 August 2012).
[13] 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. He confirmed he was currently registered to practise as a barrister in New South Wales so was registered as in an equivalent occupation in a participating jurisdiction for the purposes of s 19 of the TTMRA.
[14] As required by the Trans-Tasman Mutual Recognition Admission Regulations 2008 (Admission Regulations) the s 19 notice was given to the Registrar of the High Court in duplicate. The Registrar sent the duplicate of the notice to the Executive Director of the NZLS. The NZLS received it on 17 August 2012. On 17 August 2012 Asher J made an order admitting Mr Little as a barrister and solicitor of the High Court of New Zealand.
[15] Mr Little remained in Australia and continued to hold a current practising certificate to practise as a barrister and solicitor until 13 February 2015. In 2015 he left Sydney to pursue business opportunities in the United Kingdom. He allowed his
New South Wales practising certificate to lapse, but remains on the roll of barristers in New South Wales.
[16] At no time prior to 2020 did Mr Little communicate separately with the NZLS or seek the issue of a practising certificate. He did not pay any fees to the NZLS for the issue of a practising certificate. Nor had he, since 2012, complied with the requirements that apply to holders of practising certificates, such as payments of fees and levies for the annal renewal of the practising certificate or continued professional development (CPD) reporting.
[17] On 22 July 2020, having returned to New Zealand in March of that year, Mr Little applied to the NZLS for the issue of a practising certificate as a barrister sole, relying on ss 17 and 19 of the TTMRA.
[18]In his email of that date Mr Little said:
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.
[19] The NZLS sought further information from Mr Little but ultimately wrote to him on 21 August 2020 confirming 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.
[20] Mr Little did not accept that decision and sought judicial review. He commenced judicial review proceedings in this Court against the NZLS.
Procedural background
[21] In the statement of claim dated 8 September 2020, Mr Little challenged the NZLS’s decision to decline to issue him a practising certificate enabling him to practise on his own account. He sought the following relief:
a)an order that the respondent forthwith on payment of the appropriate fee issue the applicant with a practising certificate as a barrister with approval to practice on his own account for the current practising year; and
b)an order the respondent to pay the applicant's costs; and
c)a declaration that the applicant's entitlement to practise runs from the date he sought the issue of a practising certificate; and
d)damages of $15,000 incurred by the inability to practise including the inability to join the criminal Legal Aid panel due to the lack of practising certificate in addition to the fixed costs of chambers rental and the like.
[22] At a case management conference during the course of the proceedings Walker J noted:
The parties filed memoranda in advance of the case management conference agreeing that the damages claim should be deferred until the judicial review issues are adjudicated. Subsequent directions can be made at that point of time.
[23] In a judgment delivered on 29 April 2021, Powell J concluded that at the time Mr Little applied for a New Zealand practising certificate in 2020 he did not meet the requirements that apply under s 17 of the TTMRA in relation to s 39(4)(c) of the LCA and was therefore not entitled to the practising certificate that he sought.5 Powell J dismissed the application for review and ordered costs in favour of the NZLS. Subsequently, in a judgment delivered on 22 June 2021, Powell J dismissed Mr Little’s application for recall.6
[24] Mr Little then took an appeal to the Court of Appeal. In a judgment delivered on 8 April 2022 the Court of Appeal held that in July 2020 Mr Little was not entitled to be issued with a practising certificate entitling him to practise on his own account
5 Little v New Zealand Law Society, above n 1, at [20].
6 Little v New Zealand Law Society [2021] NZHC 1480.
under TTMRA.7 The Court of Appeal dismissed the appeal and directed Mr Little to pay a further round of costs to the NZLS.
[25] Mr Little sought leave to appeal to the Supreme Court. The Supreme Court dismissed the application for leave to appeal on 23 June 2022 and ordered Mr Little to pay a further sum of costs of $2,500.8
[26] Mr Little then applied to the Supreme Court to recall its decision, relying on the Australian authority of Victorian Building Authority v Andriotis,9 and an alleged breach of s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA). In the judgment delivered on 26 August 2022 the Supreme Court dismissed Mr Little’s application for recall.10
[27] On 11 April 2023, Mr Little filed the ASOC against NZLS and the Attorney- General. Mr Little repeats the substantive allegations against the NZLS from the first statement of claim and, in particular, repeats the pleading that it is in breach of its obligations under the TTMRA to issue a certificate to him enabling him to practise as a barrister sole on his own account.
[28] In regards to the Attorney-General Mr Little pleads that the Attorney-General or the Minister responsible was responsible for ensuring the NZLS discharged its statutory responsibilities and is vicariously liable for the failure of the NZLS to act correctly when acting as a TTMRA local registration authority.
[29]In relation to relief Mr Little seeks:
a)an order that the first defendant forthwith on payment of the appropriate fee issue the plaintiff with a practising certificate as a barrister with approval to practice on his own account for the current practising year; and
as against both defendants:
b)an order the defendants pay the plaintiff’s costs of these proceedings; and
7 Little v New Zealand Law Society, above n 2, at [78].
8 Little v New Zealand Law Society, above n 3.
9 Victorian Building Authority v Andriotis [2019] HCA 22.
10 Little v New Zealand Society, above n 4.
c)special damages:
i.for the fixed costs of chambers rental and the like incurred while the plaintiff was prevented from practising in the reserved areas of work; and
ii.for loss of earnings for 20 months while the first and second defendants acted in breach of their statutory duties, functions and powers, $191,600.00; and
iii.$ 23,268.23 with interest accruing at $2.90 per day being costs awarded against the plaintiff in the High Court judicial review, the appeal in the Court of Appeal, the application for leave to appeal to the Supreme Court and the application to recall the decision of the Supreme Court declining to grant leave; and
iv.$7,187.92 being $7,060.00 paid as security for costs to the Court of Appeal Registry and the interest on that amount paid to the first defendant on or about 16 March 2023; and
v.High Court filing fee of $1,350, hearing fee $640, Court of Appeal filing fee of $1,100 and fixture fee of $2,700; Supreme Court application for leave to appeal, $1,100, appeal books production costs and courier costs, $3,028.58.
f) interest.11
[30] On 16 May 2023 the NZLS applied to strike out Mr Little’s ASOC as an abuse of process.
Strike out
[31] The NZLS’s application to strike out the plaintiff’s ASOC is made on the grounds it discloses no reasonably arguable cause of action and is an abuse of process of the Court. The application is brought under r 15.1 and in reliance on the principles in Attorney-General v Prince & Gardner,12 and the previous decisions of this Court, the Court of Appeal and the Supreme Court in this proceeding.
[32]The criteria for striking out was summarised by the Court of Appeal in
Attorney-General v Prince & Gardner as:
A striking out application proceeds on the assumption that the facts pleaded in the statement of claim are true. That is so even although they are not or may not be admitted. It is well settled that before the court may strike out
11 There is no d) or e).
12 Attorney-General v Prince & Gardner (CA) [1998] 1 NZLR 262.
proceedings the causes of action must be so clearly untenable that they cannot possibly succeed (Lucas and Sons (Nelson Mail) Limited v O'Brien [1978] 2 NZLR 289, 294-5; Takaro Properties v Rowling [1978] 2 NZLR 314, 316-7); the jurisdiction is one to be exercised sparingly, and only in a clear case where the court is satisfied it has the requisite material (Gartside v Sheffield, Young & Ellis [1983] NZLR 37, 45; Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641); but the fact that applications to strike out raise difficult questions of law, and require extensive argument does not exclude jurisdiction (Gartside v Sheffield, Young & Ellis).
[33]The above approach was endorsed by the Supreme Court in Couch v Attorney-
General.13
[34] The same criteria apply to an application to strike out a judicial review proceeding.14
[35] An abuse of process may take several different forms including an attempt to relitigate matters already determined: Hunter v Chief Constable of the West Midlands Police; and Collier v Butterworths of New Zealand Ltd.15
Security for costs
[36] The NZLS also sought, in the alternative, security for costs under r 5.45. Mr Collins submitted security could be ordered under the residual discretion even though the criteria in r 5.45(1) may not strictly apply.
The claim against the Attorney-General
[37] As noted, the claim against the Attorney-General was raised for the first time in the ASOC. There has been no application under r 4.56 to add the Attorney-General as a party to the claim. In the event such an application was to be pursued the Court would decline to add the Attorney-General for the same reasons that apply to the claim against the NZLS. The current pleading against the Attorney-General fails to disclose an arguable cause of action.
13 Couch v Attorney-General, Couch v Attorney-General [2008] NZSC 45, at [33].
14 Southern Ocean Trawlers Ltd v Director-General of Agriculture & Fisheries [1993] 2 NZLR 53 (CA).
15 Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541; and Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC) at 586.
The merits of Mr Little’s argument
[38] By his ASOC Mr Little essentially seeks to reargue propositions which have been rejected by this Court, the Court of Appeal and the Supreme Court. He seeks to argue once again that the entitlement to a practising certificate arises on giving the s 19 notice and does not require a separate application. That is confirmed both by his pleading in the ASOC and by Mr Little SC’s submissions on his behalf.
[39] The pleading in the ASOC on substantive matters mirrors the pleading in the original statement of claim. After setting the background, the pleading at paras 3.5, 3.6, and 3.7 of the ASOC effectively repeat the pleading at paras 9, 10 and 11 of the original statement of claim. Paragraph 3.8 repeats the pleading at para 12 of the statement of claim with the addition of the reference to s 5 of the TTMRA. Paragraph
3.9 mirrors the previous pleading at para 13 and expands it by reference to reg 7 of the Admission Rules. Paragraph 3.11 mirrors para 15. Paragraph 3.13 repeats para 17. Paragraph 3.17 is contained in para 19 and paras 3.18, 3.19 and 3.20 are the same as paras 20–22. Paragraph 3.21 is the same as 23, and 3.23 mirrors para 26. The allegations of breach repeated at 3.25 through to 3.29 repeat paras 28 through to 32.
[40] The order sought against the NZLS in the ASOC regarding the issue of the practising certificate is in identical terms to the claim in the original statement of claim. As to Mr Little’s claim to damages, for that to be arguable, Mr Little would have to first establish that the NZLS’s decision not to issue him with a practising certificate with approval to practise on his own account was incorrect. That issue has been conclusively determined against Mr Little.
[41] The argument that in 2020 Mr Little was, by reason of the TTMRA, entitled to a practising certificate which would enable him to practise on his own account was considered and rejected by the Court of Appeal in the following reasoning (with which I respectfully concur and adopt):16
16 Little v New Zealand Law Society, above n 2.
A two step process
[61] 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.
[62] 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.
[63] 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.
[64] The LCA prescribes different requirements and different processes that apply at each of those steps for domestic applicants.
[65] 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.
[66] 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.
[67] 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.
[68] 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.
[69] 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”. 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.
[70] 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.
[71] 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.
[72] 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
[73] 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.
[74] 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.
[75] 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.
[76] 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
[77] 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.
[78] 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.
[79]The appeal must therefore be dismissed.
[42] Mr Little’s attempt to amend his claim and to maintain a claim against the NZLS (and for that matter the Attorney-General) on the basis that in 2020 the NZLS
failed to issue him a practising certificate enabling him to practise as a barrister sole is an attempt to relitigate matters already decided against him and as such, it is a blatant abuse of process.
[43] The rationale for striking out such a proceeding was confirmed by the Court of Appeal in Reid v New Zealand Trotting Conference.17 The Court summarised the principle:
Misuse of the judicial process tends to produce unfairness and to undermine confidence in the administration of justice. In a number of cases in recent years this Court has had occasion to consider the inherent jurisdiction of the High Court, and on appeal this Court, to take such steps as are considered necessary in a particular case to protect the processes of the Court from abuse. In exercising that jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. The public interest in the due administration of justice necessarily extends to ensuring that the Courts’ processes are fairly used and that they do not lend themselves to oppression and injustice. The justification for the extreme step of staying a prosecution or striking out a statement of claim is that the Court is obliged to do so in order to prevent the abuse of its processes.
[44] To similar effects are the comments of Lord Diplock in Hunter v Chief Constable of the West Midlands Police:18
My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.
[45] In the present case, apart from the inherent jurisdiction of the Court, r 15.1(d) of the High Court Rules 2016, in particular, provides express jurisdiction for the strike out as an abuse of process.
[46] While the damages sought in the ASOC are in a different sum to the amount claimed in the original claim and also now relate to costs awarded to the NZLS, the entitlement to any damages can only follow from the breach of any duty the NZLS owed to Mr Little and are thus derivative of that principal issue. It is implicit in the minute of Walker J that the issue of damages would only arise in the future in the event
17 Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at [9].
18 Hunter v Chief Constable of the West Midlands Police, above n 15, at 536.
Mr Little succeeded with his claim for judicial review. As Mr Little fails on his underlying claim of such a breach by NZLS, there can be no basis for his damages claim. In Hunter v Chief Executive of the West Midland Police,19 the proceedings involved a civil claim for damages by prisoners when, in the earlier criminal prosecution, their allegation they had been beaten while in custody had been determined against them. As Lord Diplock said:20
The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.
[47] In his written submissions, Mr Little SC sought to raise new arguments (as well as repeating previous unsuccessful ones). He submitted that there was no statutory provision for a limited practising certificate entitling a practitioner to practise on own account.21 However, while s 39 of the CCA provides for a practising certificate either as a barrister or as a barrister and solicitor, s 30 confirms the restrictions that apply to a lawyer practising on their own account. As the Court of Appeal observed in its decision:22
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: …
[48] Next, Mr Little SC sought to argue that the Court of Appeal had “apparently not had regard pursuant to the statutory composition in s 45 of the TTMRA to the (seven) Judge decision of the High Court of Australia in Victorian Building Authority v Andriotis” and was incorrect to refer to Re Carter Dabas23 with apparent approval.
19 Hunter v Chief Constable of the West Midlands Police, above n 15.
20 At 541.
21 Mason v NZLS [2015] NZLCDT 11.
22 Little v New Zealand Law Society, above n 2, at [37].
23 Re Carter Dabas [2019] NZHC 1940.
[49] However, the Supreme Court dealt summarily with the Mr Little SC’s point re the Victorian Building Authority case,24 in its decision on the application for recall:25
Mr Little raises two new matters which he says are of ‘plain relevance’: the first, an Australian authority; the second, a New Zealand legislative provision. These relate to the second of the recall pathways. The Australian authority is Victorian Building Authority v Andriotis, decided by the Australian High Court. Mr Little says ss 5 and 45 of the Trans-Tasman Mutual Recognition Act 1997 require this Court to consider and apply that case. The New Zealand legislative provision Mr Little cites is s 27 of the New Zealand Bill of Rights Act 1990. Mr Little says the lower Courts denied his right to justice as guaranteed by that provision
[50] Further, the Court of Appeal’s reasoning as to the two step process confirmed the outcome and conclusion of Cull J in Re Carter Dabas.
[51] Despite the outcome of the Court of Appeal decision, Mr Little SC next suggested that Mr Little had in fact succeeded in the Court of Appeal. He referred to
[75] and [78] of the Court of Appeal’s decision. However with respect to that submission, while at [75] the Court noted Mr Little could have applied for a practising certificate in August 2012 it went on to note:26
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.
[52] Notably, the Court then went on to expressly reject the submission that Mr Little’s right to a practising certificate “crystallised” in August 2012.
[53] Next, while in [78] the Court noted that Mr Little, like any other person enrolled as a barrister and solicitor of the High Court of New Zealand, was entitled to be issued with a practising certificate as an employed barrister, and could also apply to the High Court under s 30(3) of the LCA for leave to practise on his own account, that was not the basis of Mr Little’s application for judicial review. The decision Mr Little sought to review was the Law Society’s decision that it was not prepared to issue him a practising certificate which would enable him to practise as a barrister on his own account. As noted, the order he sought by way of relief in the first statement of claim (and repeats in the ASOC) is:
24 Victorian Building Authority v Andriotis, above n 9.
25 Little v New Zealand Law Society, above n 4, at [6].
26 Little v New Zealand Law Society, above n 2, at [75].
a) an order that the [NZLS] forthwith on payment of the appropriate fee issue the applicant with a practising certificate as a barrister with approval to practice on his own account for the current practising year; …
[54] The judgments of this Court, the Court of Appeal and Supreme Court confirmed that the NZLS was not in error in declining to issue Mr Little with such a practising certificate and that he was not entitled to the order.
[55]Next, Mr Little SC referred to s 5 of the TTMRA which provides:
5 Application
(1)Every law of New Zealand must, unless it or this Act otherwise expressly provides, be read subject to this Act.
(2)The Trans-Tasman mutual recognition principle in relation to goods, the Trans-Tasman mutual recognition principle in relation to occupations, and the provisions of this Act may be taken into consideration in proceedings of any kind and for any purpose.
[56] Mr Little submitted that the previous decisions failed to give effect to the paramountcy of the TTMRA. However, the Court of Appeal expressly acknowledged that principle at [41] of its judgment. Further, while it is correct as a principle, it does not address the fundamental issue in this case which was the correct interpretation of the provisions of the TTMRA which was considered and conclusively ruled on by the Court of Appeal.
Finality
[57] Finality in litigation is an important concept. As Lord Simon of Glaisdale said in The Ampthill Peerage:27
But the fundamental principle that it is in society's interest that there should be some end to litigation is seen most characteristically in the recognition by our law — by every system of law — of the finality of a judgment. If the judgment has been obtained by fraud or collusion it is considered as a nullity and the law provides machinery whereby its nullity can be so established. If the judgment has been obtained in consequence of some procedural irregularity, it may sometimes be set aside. But such exceptional cases apart, the judgment must be allowed to conclude the matter.
27 The Ampthill Peerage [1977] AC 547 at 576.
[58] The above proposition was cited by Elias CJ with approval in R v Smith.28 It is an important concept, and is directly applicable to this case.
Summary
[59] For the above reasons, the pleading in the ASOC against the NZLS is a clear abuse of process. Further, the purported claim against the Attorney-General cannot succeed as it is based on the Attorney-General being vicariously liable for the actions of the NZLS.
[60] In the circumstances it is unnecessary to consider the application for security for costs.
Result
[61]The ASOC is struck out in its entirety as an abuse of process.
Costs
[62] Mr Collins confirmed the NZLS sought costs to scale. Mr Little is to pay the NZLS costs on a 2B basis with disbursements as fixed by the Registrar.
Venning J
28 R v Smith [2003] 3 NZLR 617.
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