Re Carter Dabas

[2019] NZHC 1940

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2019-485-325

[2019] NZHC 1940

IN THE MATTER

of the Trans-Tasman Mutual Recognition Act 1997 and the Lawyers and Conveyancers Act 2006

AND

IN THE MATTER

of an application by ADRIAN JAMES CARTER DABAS

of Robina, Queensland, Solicitor, a candidate for Admission as a Barrister and Solicitor of the High Court of New Zealand

Hearing:	on the papers
Counsel:	Candidate is self-represented
Judgment:	9 August 2019

JUDGMENT OF CULL J

[1]    Mr Carter Dabas was admitted to the Supreme Court of Queensland on 16 October 2017 as a lawyer. He now seeks to be registered under s 19 of the Trans- Tasman Mutual Recognition Act 1997 (the Act) to be admitted as a barrister and solicitor of the High Court of New Zealand.1

[2]    In filing his application, Mr Carter Dabas annexed to his explanatory memorandum the certified copy of the instrument evidencing his existing registration

1 Lawyers and Conveyancers Act 2006, s 49(4).

CARTER DABAS [2019] NZHC 1940 [9 August 2019]

in Australia as a lawyer. The annexure was a practising certificate issued by the Queensland Law Society under the Legal Profession Act 2007.

[3]The practising certificate states:

Pursuant to the provisions of the Legal Profession Act 2007 (the Act) I hereby certify that Adrian James Carter Dabas … is only authorised to engage in supervised legal practice as a Solicitor of the Supreme Court of Queensland from the sixteenth day of May 2019 to the thirtieth day of June 2019.

[4]    On a preliminary assessment, I was not satisfied that s 19(1) of the Act had been met, as this Court requires evidence of the “equivalent occupation” for which Mr Carter Dabas seeks registration.

[5]    I sought clarification from Mr Carter Dabas of the basis upon which he sought registration for an “equivalent occupation” under the Act, and the special conditions placed on his practising certificate. With his full response, I directed that the New Zealand Law Society advise the Court whether the status of the Queensland Law Society practising certificate meets the requirement under s 19 of the Act, that Mr Carter Dabas has an equivalent occupation to enable registration to occur.

[6]    The Law Society filed submissions for the limited purpose of assisting the Court in relation to the process and principles applied to applications for registration under the Act. The Law Society was not a party to the proceedings, nor joined as an intervener for the purposes of filing submissions to assist.

[7]    The New Zealand Law Society submissions2 helpfully addressed the following matters:

(a)The registration process in New Zealand under the Act, including the relevant law;

(b)What is an “equivalent occupation” for the purposes of registration;

2      Prepared by S L Inder.

(c)Categories of practising certificates and conditions in relation to practising certificates; and

(d)Whether the applicant has an “equivalent occupation” to enable registration in New Zealand.

[8]    Because the submissions are pertinent to future applications for registration under the Act and are of considerable assistance and relevance to the assessment of this application, I am setting out the New Zealand Law Society’s submissions in full.

The registration process in New Zealand under the Act

[9]    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 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 [Emphasis added]

[10]   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.3 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.

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

[11]   The second step is the application for a practising certificate to the New Zealand Law Society, the local registration authority for this step.4 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.5

“Equivalent Occupation” for the purposes of registration

[12]The meaning of “equivalent occupation” is set out in s 14 of the Act –

14       Equivalent occupation

(1)For the purposes of this Act, and subject to subsection (2), 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.

(2)Subsection (1) is subject to –

(a)the fact that equivalence of occupations between New Zealand and an Australian jurisdiction may be achieved by the imposition of conditions on deemed registration or registration; and

(b)any declaration made and in force under section 30 or section 31.

[13] Under regulation 4(2) of the New Zealand Council of Legal Education Trans- Tasman Mutual Recognition Admission Regulations 2008, which are made pursuant to s 274(f)(ii) of the Lawyers and Conveyancers Act 2006 (the LCA) for the purposes of s 14(1) of the Act, registration authorities shall assess whether the New Zealand occupation applied for is an occupation equivalent to the applicant’s Australian occupation in accordance with the criteria set out in Schedule 3 of those regulations.

[14]   Schedule 3 states that an Australian applicant admitted as a legal practitioner in Queensland and holding a current local practising certificate as a solicitor has an equivalent occupation for the purposes of –

4      Section 2: local registration authority.

5 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.

11.1admission; and

11.2a practising certificate as a barrister; or

11.3a practising certificate as a barrister and solicitor.

Categories of practising certificates and conditions

Queensland context

[15]   As Mr Carter Dabas has noted in his explanatory memorandum dated 15 June 2019, the different categories and sub-categories of practising certificates issued by the Queensland Law Society are set out in rules 6 and 7 of the Queensland Law Society Administration Rules 2005 (the Administrative Rules).

6Categories of practising certificates

Subject to rule 7, the Society may issue the following categories of solicitors’ practising certificates –

(a)principal practising certificates;

(b)employee practising certificates; or

(c)volunteer practising certificates.

7Sub-categories of practising certificates

(1)A principal practising certificate may be either –

(a)restricted;

(b)unrestricted; or

(c)limited.

(2)An employee practising certificate may be either –

(a)restricted; or

(b)unrestricted.

(3)A volunteer practising certificate may be either –

(a)restricted; or

(b)unrestricted.

[16]   The relevant category in Mr Carter Dabas’ case is a restricted employee practising certificate:

12       Eligibility for restricted employee practising certificate

(1)A legal practitioner who is not eligible to hold either a principal practising certificate or an unrestricted employee practising certificate

but who is qualified to engage in legal practice in this jurisdiction may

hold a restricted employee practising certificate.

(2) A New Zealand practitioner who is only entitled to engage in

supervised legal practice in New Zealand who, subsequent to admission, applies for a practising certificate under the Trans-Tasman Mutual Recognition Act 1997 (Cth) as applied by the Trans-Tasman Mutual Recognition (Queensland) Act 2003, is eligible to be issued

with a restricted employee practising certificate. [Emphasis added]

[17]   The entitlements of the holder of each category of practising certificate are set out in Division 3 of the Administration Rules, rules 13-15B.

15Entitlement of holder of restricted employee practising certificate

A practitioner who holds a restricted employee practising certificate may engage in legal practice, subject to any conditions imposed on his or her practising certificate, but may not supervise the office of the law practice by which he or she is employed.

Conditions

[18] Under the Act, “conditions” in relation to an occupation is defined as conditions, limitations, or restrictions. The applicant’s “restriction” relates to practising under supervision. This is a statutory condition under s 56(1) of the Legal Profession Act 2007 (Qld):

56       Statutory condition regarding practice as solicitor

(1)It is a statutory condition of a local practising certificate for a solicitor that the certificate holder must engage in supervised legal practice

only, until the certificate holder has completed –

(a)if the certificate holder completed supervised legal training to qualify for admission to the legal profession in this or another jurisdiction – a period or periods equivalent to 18 months supervised legal practice, worked out under a regulation, after the day the holder’s first practising certificate was granted; or

(b)if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction – a period or periods equivalent to 2 years

supervised legal practice, worked out under a regulation, after the day the holder’s first practising certificate was granted.

(2)Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice as a solicitor after a period or periods mentioned in that subsection.

(3)The law society may exempt a person or class of persons from the requirement for supervised legal practice under subsection (1) or may reduce a period mentioned in that subsection for a person or class of persons, if satisfied the person or persons do not need to be supervised or need to be supervised only for a shorter period, having regard to –

(a)the length and nature of any legal practice previously engaged in by the person or persons; and

(b)the length and nature of any legal practice engaged in by the supervisors, of any, who previously supervised the legal practice engaged in by the person or persons.

(4)An exemption under subsection (3) may be given unconditionally or subject to conditions the law society considers appropriate.

(5)In this section –

supervised legal training means practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise. [Emphasis added]

[19] This condition is a standard condition applied as a matter of course by the statute to newly admitted practitioners and to anyone who has not previously held a Queensland practising certificate, for the first two years of practice (or 18 months if the solicitor qualifies under s 56(1)(a) of the Legal Profession Act 2007 (Qld)), unless they are exempt from that condition under s 56(3). An exemption may be granted where the applicant is an experienced practitioner from interstate or overseas.

[20]   As referred to in Mr Carter Dabas’ explanatory memorandum, the condition that the applicant “must not engage in legal practice except as a government legal officer engaged in government work and as a volunteer of a community legal service” relates to the nature of his employment. This is also a statutory condition required for any government legal officer who chooses to hold a practising certificate.

Special conditions

[21]Under s 19(2)(g) and (h) of the Act, an applicant is required to:

(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;

[22]   “Special conditions” is not a defined term in the Act. However, the wording of s 19(2)(g) provides context as to the nature of “special conditions”. These are conditions which may be imposed by a regulatory authority as a result of criminal, civil, or disciplinary proceedings.

[23]   They are also particular to an individual’s circumstances, rather than a class of people, such as “government legal officers”. Examples of “special conditions” may include restrictions on practice, such as a prohibition against operating a trust account, or a condition to undergo medical treatment and provide medical reports.

Equivalent occupation in New Zealand

[24]   There are two types of practising certificates issued in New Zealand, either as a barrister, or as a barrister and solicitor; and two categories of those two types of practising certificates, either in practice on own account, (which is equivalent to an unrestricted principal practising certificate in Australia) or as an employee (which is equivalent to a restricted practising certificate with a condition regarding supervision). This is a reciprocal arrangement to that in Queensland as set out in rule 12(2) of the Administration Rules –

12       Eligibility for restricted employee practising certificate

(2) A New Zealand practitioner who is only entitled to engage in supervised legal practice in New Zealand who, subsequent to admission, applies for a practising certificate under the Trans-Tasman Mutual Recognition Act 1997 as applied by the Trans-Tasman Mutual Recognition (Queensland) Act 2003, is eligible to be issued with a restricted employee practising certificate.

[25]   Although statutory conditions are not specifically stated on the physical practising certificate itself, equivalent restrictions apply under the provisions of the LCA and the associated rules and regulations.6

[26] Under s 30 of the LCA, no lawyer may commence practice on own account unless approved to do so by the Law Society or the High Court. In order to be approved to practise on own account, an applicant must meet the requirements set out in regulation 12 (or regulation 13 if applying to the High Court for leave to practice on own account) of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations 2008 (the Practice Rules).

[27]   Under regulation 12(3) of the Practice Rules, the lawyer must have had at least the required amount of recent legal experience in New Zealand, which is equivalent to three years’ legal experience in the last five years. The definition of legal experience is set out in regulation 3 of the Practice Rules and for the most part relates to legal experience as an employee and/or under the supervision of a lawyer.7

[28]   The entitlement to equivalent registration in relation to an “unrestricted practising certificate” is also recognised in regulation 15 of the Practice Rules:

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 practice as a member of the legal profession, in 1 or more Australian jurisdiction, 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.

6      This is evident from s 41(2)(d) of the LCA that states that contravention of a condition of a practising certificate is a relevant consideration for the purpose of determining whether a person is a fit and proper person to hold a practising certificate.

7      The definition of legal experience includes (f) work as a member of the legal academic staff (whether or not as an employee) of a university; and (g) work as a member of Parliament (within the meaning of s 27 of the Electoral Act 1993). However, applicants for approval to practice on own account are also required to satisfy the Law Society (or the High Court) that they are suitable to practise on own having regard to all relevant considerations, including at regulation 12(5)(a) the nature and extent of their experience practising in law, whether in or outside New Zealand.

Whether Mr Carter Dabas has an “equivalent occupation”

[29]   From the comprehensive submissions detailed by the New Zealand Law Society, I am satisfied that the status of the Queensland Law Society practising certificate for Mr Carter Dabas meets the requirement under s 19 of the Act, that Mr Carter Dabas has an equivalent occupation to enable registration to occur.

[30]   Accordingly, Mr Carter Dabas is entitled to admission as a barrister and solicitor of the High Court of New Zealand and, following his admission, is entitled to apply for a practising certificate as an employed barrister, or as an employed barrister and solicitor.

Result

[31]   Mr Carter Dabas’ application under s 19 of the Trans-Tasman Mutual Recognition Act 1997 to be admitted as a barrister and solicitor of the High Court of New Zealand is granted.

Cull J