Stanley v New Zealand Law Society

[2019] NZCA 354

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA338/2018
 [2019] NZCA 354

BETWEEN	JOHN LLEWELLYN STANLEY Appellant
AND	NEW ZEALAND LAW SOCIETY Respondent

Court:	Kós P, Gilbert and Wild JJ
Counsel:	J C Gwilliam for Appellant P N Collins for Respondent
Judgment: (On the papers)	6 August 2019 at 4.00 pm

JUDGMENT OF THE COURT

AThe respondent’s application for a stay of judgment is dismissed.

BThe respondent must pay the appellant’s costs as for a standard application with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

1. The New Zealand Law Society (the Society) seeks a stay of this Court’s judgment delivered on 17 April 2019.[1]  The Society has applied to the Supreme Court for leave to appeal that judgment.  Its leave application has been set down for hearing on 25 September 2019.

   [1]Stanley v The New Zealand Law Society [2019] NZCA 119; [2019] NZAR 1001.

2. Mr Stanley is 65.  Having recently gained the necessary academic and professional qualifications, Mr Stanley applied to the Society for a certificate of character, without which he could not be admitted in the usual way.  The Society refused to give him that certificate.  It considered he was not a fit and proper person because he has a criminal record of driving offences.  There are seven offences spanning the period 1978 to 2014.  They include four convictions for driving with excess blood alcohol.

3. Having been refused a certificate of good character by the Society, Mr Stanley applied to the High Court for an order for his admission.  He had to satisfy the High Court that he is a fit and proper person to be admitted.  Clark J was not satisfied and refused his application.[2]

   [2]Stanley v New Zealand Law Society [2018] NZHC 1154.

4. Mr Stanley appealed successfully to this Court.  This Court approached the appeal as a general one requiring it to make its own assessment of the merits.  The Court reviewed the various authorities where courts had considered the admission of candidates who had one or more criminal convictions.  The earliest of those authorities is Re Lundon..[3]  The subsequent cases include Re M, Re Owen, Re Burgess, Ali v New Zealand Law Society and Brown v New Zealand Law Society.[4] 

   [3]Re Lundon [1926] NZLR 656 (CA).

   [4]Re M [2005] 2 NZLR 544 (HC); Re Owen [2005] 2 NZLR 536 (HC); Re Burgess [2011] NZAR 453 (HC); Ali v New Zealand Law Society [2014] NZHC 1111; and Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192.

5. This Court agreed with Clark J that Mr Stanley’s drink driving convictions are sufficiently recent and numerous, and Mr Stanley’s age such, as to raise a prima facie doubt as to whether he has reformed himself.  As Andrews J put it in Re Burgess, a doubt that his “frailty or defect is now spent”.[5]  However, the Court considered that Mr Stanley’s offending was not of the type that goes directly to fitness to practise as a lawyer.  His case could thus be distinguished from those of Mr Owen and Mr Burgess, both of whom had relatively recent convictions for dishonesty. 

   [5]Re Burgess, above n 4, at [41].

6. On the evidence, the Court also considered that Mr Stanley is a man of good character.  He has pursued a career as an insurance broker and continues to contribute to his community, in particular its Christian ministry.  He is also a marriage celebrant.  Viewing Mr Stanley’s case “in the round” the Court found that Mr Stanley is a fit and proper person to be admitted as a barrister and solicitor of the High Court.  Accordingly it allowed the appeal and quashed Clark J’s decision.

7. The Society’s application is pursuant to r 30(2)(a) of the Supreme Court Rules 2004.  The relevant principles are agreed:  they are as set out by this Court in Keung v GBR Investments Ltd.[6]  Essentially, the Court’s task is to balance factors favouring Mr Stanley being able to take the required oath or affirmation and be enrolled, against those favouring barring that happening, at least until the outcome of the Society’s application for leave to appeal is known.

   [6]Keung v GBR Investments Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].

8. The factors favouring permitting Mr Stanley’s admission are these:

   (a)He has this Court’s judgment in his favour.  The three Judges unanimously considered he is a fit and proper person to be admitted.

   (b)He seeks and needs to be admitted as soon as possible so that he can take up a position he has been offered starting on 5 August 2019.  Presently, his only income is from national superannuation.  Thus, Mr Stanley’s ability to earn a living as a lawyer is in issue.

   (c)Not granting a stay would not render the Society’s appeal nugatory. If the Society’s appeal succeeds it can take steps to have Mr Stanley removed from the roll. That can be done either by consent under s 60 of the Lawyers and Conveyancers Act 2006, or by order of this Court under ss 266 and 267(1) of that Act.

9. The factors favouring a stay are:

   (a)The Society’s leave application is for hearing in some seven weeks’ time.  A decision can be expected shortly after the hearing.  So the stay sought at this stage is of short duration.  However, if leave is granted, the Society will seek a further stay pending the Supreme Court’s judgment; and

   (b)If the Society is given leave to appeal, and is ultimately successful, it will obviously want Mr Stanley’s name removed from the roll.  If he does not consent (and he has not indicated that he would), then application to strike his name off will be required.  As the Society submits, even removal by consent is a “relatively burdensome and potentially stigmatising” process, compared with not admitting Mr Stanley in the first place pending a result from the Supreme Court.

10. We have deliberately chosen not to place in the balance three of the opposing submissions.  The first is Mr Gwilliam’s submission for Mr Stanley that the Society’s application is “misconstrued” (we think Mr Gwilliam means misconceived), because there is no jurisdiction to stay this Court’s judgment, and thus to prevent Mr Stanley applying to the High Court for admission.  That is not correct.

11. The second is the Society’s submission that the position Mr Stanley has been offered may put him in breach of r 15.2.3 of the Conduct and Client Care Rules.  We lack the detail necessary to make a proper decision about that.  But the Society’s submissions in support of its stay application have certainly spelt out to Mr Stanley in some detail what he can and cannot do in terms of his proposed employment if he is admitted. 

12. The third is the merits of the leave application.  Mr Gwilliam contended it lacked merit, in particular because this proceeding lacked public interest.  Where lie the merits is not so obvious that we can take them into account.  In this case the merits of the leave application are for the Supreme Court.

13. For three reasons, we consider the balance of convenience falls decisively against granting a stay.  First, Mr Stanley’s ability to earn a living as an admitted lawyer is the most powerful factor.  Second, and also cogent, is the fact that refusing a stay will not render the Society’s appeal nugatory.  Third, Mr Stanley would be admitted knowing full well that he may face an application to have his name removed from the roll if the Society’s appeal ultimately succeeds.  So he opposes a stay knowing of the potential implications of his being admitted at this stage.  Further, he could avoid any public stigma by consenting to his name being removed, should the Society ultimately succeed on appeal.

Result

1. The Society’s application for a stay of judgment is dismissed.

2. The Society must pay Mr Stanley’s costs as for a standard application with usual disbursements.

Solicitors:
Main Street Legal, Upper Hutt for Appellant