DONNELLY HC AK CIV-2010-404-5943

DONNELLY HC AK CIV-2010-404-5943 2 September 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2010-404-5943IN THE MATTER OF the Lawyers and Conveyancers Act 2006AND IN THE MATTER OF an application by Joan Mary DonnellyHearing: 4 May 2011Appearances: Applicant in PersonP N Collins for the New Zealand Law SocietyJudgment: 2 September 2011 at 4:30 PMRESERVED JUDGMENT OF PETERS JThis judgment was delivered by me on 2 September 2011 at 4:30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ........................................Solicitors/Counsel:Glaister Ennor, Solicitors, Auckland (email: paul.collins@glaisterennor.co.nz)Copy to:Ms J M Donnelly[1] Ms Donnelly seeks an order admitting her as a barrister and solicitor of theHigh Court of New Zealand ("barrister and solicitor"). Ms Donnelly has therequired academic qualifications for admission. However, the New Zealand LawSociety ("NZLS") declined to issue her with a "certificate of character" ("certificate"). Accordingly, it is necessary to determine whether I am satisfied, onsuch evidence as is before me, that Ms Donnelly is a fit and proper person to be admitted.[2] This is an unusual case in that there is no suggestion of any past indiscretion or offending, which might cast a doubt on whether Ms Donnelly is a fit and proper person to be admitted. The issue arises solely because NZLS did not consider that the evidence which Ms Donnelly submitted was sufficient to allow NZLS to issue a certificate in respect of her application.[3] In addition to determining whether Ms Donnelly is a fit and proper person to be admitted, there is a preliminary issue to address. That issue is whether NZLSmay be heard on Ms Donnelly's application, as its solicitors did not comply with a time period for service prescribed by the Lawyers and Conveyancers Act (Lawyers:Admission) Rules 2008 ("the Rules"). Ms Donnelly submitted that the effect of non- compliance is that NZLS cannot be heard on her application.Background[4] Ms Donnelly is resident in the Republic of Ireland. She has an LLB from Griffith College in Dublin and an LLM from Sheffield University.[5] Ms Donnelly came to New Zealand for the first time in 2010, for the sole purpose of attending the "onsite" sessions of the Professional Studies Course. As Iunderstand it from Ms Donnelly, she does not intend to practise law in New Zealand. She seeks admission in this jurisdiction because she considers it will assist her in Ireland. Ms Donnelly stated that many solicitors in Ireland seek admission outside their home jurisdiction.[6] I note that Ms Donnelly filed submissions in advance of the hearing. Thesesubmissions proceeded on a basis that was more akin to a judicial review of NZLS'srefusal to issue her with a certificate. Those submissions were put to one side as they were not relevant to the application for admission.Relevant statutory provisions[7] The issues require consideration of provisions of the Lawyers and Conveyancers Act 2006 ("the Act") and the Rules.[8] A candidate who seeks admission as a barrister and solicitor must apply to the High Court. The Court must make an order admitting the candidate if it is satisfied they are qualified for admission and if the candidate has taken the necessary oath.1[9] A candidate is qualified for admission if they are in one of the categories set out in s 49 of the Act. The category which is relevant in this case is s 49(2), which reads as follows:49 Qualifications...(2) The first category is persons who—(a) have all the qualifications for admission prescribed or required by the New Zealand Council of Legal Education; and(b) are fit and proper persons to be admitted as barristers and solicitors of the High Court; and(c) meet the criteria prescribed by rules made under section 54....[10] Ms Donnelly satisfies the requirements of s 49(2)(a) and no criteria has been prescribed for the purposes of s 49(2)(c). The issue which arises relates to s 49(2)(b).1 Lawyers and Conveyancers Act 2006, s 52.[11] The vast majority of candidates for admission adduce evidence that they meet the criteria in s 49(2)(b) by obtaining a certificate to that effect from NZLS. Such a certificate is sufficient evidence of fitness for admission, in the absence of proof to the contrary.2[12] In the first instance a candidate is required to apply to NZLS for a certificate. If NZLS declines to issue a certificate, as in this case, the candidate must serve their application and affidavit in support on NZLS, NZLS must file and serve a notice of opposition and affidavit, and the application must be determined at a hearing at which NZLS is represented.3[13] Ms Donnelly sought a certificate from NZLS. NZLS advised her of its requirements regarding referees and, in particular, its requirement that she provide a reference from a person of standing in New Zealand.[14] It was apparent at the outset of these communications that the need for referees, even from Ireland, would pose a difficulty for Ms Donnelly. Ultimately, however, Ms Donnelly submitted to NZLS references from three people resident in Ireland.[15] By letter dated 22 June 2010, NZLS advised Ms Donnelly that it declined to issue a certificate because she had not provided a reference from a person in New Zealand who was able to certify to her good character.[16] That meant that Ms Donnelly was required to serve her application and affidavit on NZLS, and she did so on or about 12 October 2010. I note this was substantially outside the time period prescribed by the relevant rule.4[17] The preliminary issue to which I have referred arises from rule 6(4)(a). Rule 6(4) reads as follows:2 Ibid, s 51.3 Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008, rr 5(4)(c), 6(1), 6(4).4 Ibid, r 6(3).6 If certificate of completion or certificate of character not included in application...(4) If the Law Society receives a copy of an application under subclause (3),—(a) the Law Society must, within 21 days of that receipt, serve on the candidate a notice of opposition that sets out the grounds on which the application for admission is opposed, along with any affidavits in support of the notice; and(b) the candidate's application must be determined at a hearing, and the Law Society must be represented at that hearing.[18] The 21 day period referred to in rule 6(4)(a) expired on 2 November 2010.[19] On 2 November 2010, at 5:40 pm, the solicitors acting for NZLS emailed Ms Donnelly their notice of opposition and advised that a supporting affidavit would be filed and served shortly.[20] By email of 3 November 2010, Ms Donnelly advised that she considered NZLS was precluded from opposing her application for admission, because of a failure to comply with the 21 day time period in rule 6(4)(a). The following day, the solicitors emailed her a draft of the NZLS affidavit. A copy of the sworn affidavit, together with attachments, was emailed to Ms Donnelly on 8 November 2010. Hard copies were also posted to Ms Donnelly.First issue – time limit[21] Ms Donnelly's submission was that, as NZLS did not comply with rule6(4)(a), it could not be heard in opposition to her application to be admitted. Ms Donnelly accepted that she was late in serving her application and affidavit. She submitted, however, that NZLS had waived her default, whereas she declined to do the same in favour of NZLS. The essence of Ms Donnelly's submission was that the Court cannot enlarge a time period which is prescribed by a statute for the doing ofan act. Ms Donnelly relied on Attorney-General v Howard5 as authority for this proposition. Accordingly, Ms Donnelly submitted that the Court cannot enlarge the time imposed by rule 6(4)(a).[22] In Howard, an issue arose as to whether an appeal from a decision of the Human Rights Review Tribunal had been brought and served in time, a matter which depended on the construction of the relevant statutory provision. The Court decided, in the circumstances of that case, the failure to comply was fatal to the appeal.[23] Counsel for NZLS submitted that any failure to comply with the time limit in this case was an irregularity, capable of cure. Counsel referred me to Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue.6 That case affirmed that a distinction may be drawn between statutory provisions which are imperative or mandatory in nature and those which are directory. The question, Richardson J observed, is what the legislature intended the consequences of non-compliance to be; the answer turning on "an analysis of the language, scheme andpurpose of the statute".7[24] Alternatively, counsel for NZLS submitted that the non-compliance could be, and had been, cured by waiver.[25] I consider several matters indicate that Parliament intended the time limit in rule 6(4)(a) to be directory rather than mandatory.[26] First, it is evident that rules 6(4)(a) and 6(4)(b) are separate. Rule 6(4)(b) is not contingent on compliance with rule 6(4)(a). The plain language of paragraph (b) requires the Court to determine the application at a hearing at which NZLS is represented. The Court's statutory obligation to determine the question of fitness at a hearing at which NZLS is represented cannot be ignored because of a failure to serve in time.85 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.6Hawkes Bay Hide Processors of Hastings v Commissioner of Inland Revenue.[1990] 3 NZLR 313.7 Ibid at 316.8 Lawyers and Conveyancers Act 2006, ss 49, 52.[27] I add that the times are prescribed for service, not filing. With respect to Ms Donnelly, her submissions proceeded on the basis that the time periods applied both to filing and service, as was the case in Howard. Ms Donnelly was incorrect in this respect.[28] Secondly, by way of contrast, rule 7 expressly imposes a specific prohibition upon the Court considering an application for admission in certain circumstances. The silence of rule 6 as to the consequence of non-compliance, in light of the express prohibition in rule 7, implies that the legislature did not intend a failure to observe rule 6(4)(a) to be fatal to NZLS appearing at the hearing.[29] Thirdly, this view is reinforced by cross-referencing such an interpretation against the purpose of the provision. The object of rule 6(4)(a) is to notify the applicant, well in advance of the hearing, of the grounds upon which NZLS opposes their admission and the evidence on which it relies. It may be the 21 day period which rule 6(4)(a) prescribes is intended to reflect the possibility that the application might be determined as quickly as one month after it was filed. One month is the minimum period to be allowed between the filing of an application and the hearing itself.9 The two days referred to in rule 6(3) plus the 21 days in rule 6(4)(a) would meet a one month period.[30] Any prejudice which might be caused by non-compliance with rule 6(4)(a) will usually be met by an adjournment of the hearing. In the present case, although service was late, it was effected seven months before the hearing. There could be no suggestion of any prejudice to Ms Donnelly.[31] For the foregoing reasons, I am satisfied that non-compliance with the time period for service in rule 6(4)(a) does not preclude NZLS appearing at the hearing todetermine the applicant's fitness and propriety. I also consider that it does not preclude me from considering the grounds of opposition advanced by NZLS and the affidavit evidence produced in support.9 Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008, r 5(3).[32] Given the view I have reached, it is not necessary for me to consider whether, by her actions, Ms Donnelly waived non-compliance by NZLS.[33] I add that counsel for NZLS expressed some concern that, having received the benefit of an indulgence from NZLS regarding her own non-compliance with the Rules, Ms Donnelly was not willing to extend the same indulgence to NZLS. It is not necessary for me to express a view on this. For Ms Donnelly's own benefit,however, she should be aware that some would take the view that her stance on this point was inappropriate and possibly even unconscionable.Second issue – fit and proper person[34] Section 55(1) of the Act provides as follows:55 Fit and proper person(1) For the purpose of determining whether or not a person is a fit and proper person to be admitted as a barrister and solicitor of the High Court, the High Court or the New Zealand Law Society may take into account any matters it considers relevant and, in particular, may take into account any of the following matters:(a) whether the person is of good character:(b) whether the person has, at any time, been declared bankrupt or been a director of a company that has been put into receivership or liquidation:...[35] I have not reproduced all of s 55(l). The remaining subsections include matters such as prior convictions for an offence, whether the applicant may be, or have been, subject to a form of disciplinary complaint whether as a lawyer or in another profession, and so on. None of those matters apply in this case.[36] Prior to the Act coming into force, admission was governed by the Law Practitioners Act 1982 ("1982 Act"). The 1982 Act required the Court to be satisfied that the candidate to be admitted was "of good character and a fit and proper person to be admitted".[37] As can be seen from s 55(1)(a) of the Act, an assessment of the person'scharacter is now part of an assessment of the candidate's fitness and propriety. InSingh v Auckland District Law Society,10 a case decided under the 1982 Act, the Court said that the essential elements of good character were unquestionable integrity, probity and trustworthiness. To satisfy the fitness and propriety requirement, the Court said the candidate was required to prove that they would properly discharge their duties to the Court and to their clients, and that they were suitable for accreditation to the public in that respect.11[38] It was common ground between the parties that an applicant for admission bears the onus of proving that they are a fit and proper person to be admitted.[39] Ms Donnelly submitted that the evidence she had put before the Court was sufficient to discharge the onus. That evidence comprised Ms Donnelly's ownaffidavit and viva voce evidence, and the three references which she had submitted to NZLS.[40] Counsel for NZLS submitted that, if NZLS declined to issue a certificate on the ground of inadequate verification of character rather than a concern as to past conduct, the Court was required to be satisfied as to three matters. The first is that admission of the applicant would be consistent with the purposes of the Act and, in particular, the maintenance of public confidence in the provision of legal services.Secondly, that the applicant's personal qualities are such that they can confidently beexpected to discharge their obligations as a lawyer. Thirdly, that the applicant will discharge their duties to the Court and to their clients and may be held out to the public accordingly.Discussion[41] It is clear that the Court must be satisfied as to the applicant's fitness andcharacter at the time it makes the determination. An applicant is qualified for admission if they are a fit and proper person to be admitted. The Court is required to10 Singh v Auckland District Law Society [2002] 3 NZLR 392.11 Ibid, at [28] and [29].determine that the applicant is a fit and proper person and in making that determination the Court may take into account whether the applicant is of good character.12[42] Secondly, in making the determination it is necessary to bear in mind the purposes of the Act, and the privileges and obligations which accompany admission as a barrister and solicitor. One of the purposes of the Act is to maintain public confidence in the provision of legal services.13 In addition, the Act imposes fundamental obligations on lawyers, as follows: 144 Fundamental obligations of lawyersEvery lawyer who provides regulated services must, in the course of his or her practice, comply with the following fundamental obligations:(a) the obligation to uphold the rule of law and to facilitate the administration of justice in New Zealand:(b) the obligation to be independent in providing regulated services to his or her clients:(c) the obligation to act in accordance with all fiduciary duties and duties of care owed by lawyers to their clients:(d) the obligation to protect, subject to his or her overriding duties as an officer of the High Court and to his or her duties under any enactment, the interests of his or her clients.[43] Thirdly, counsel for NZLS referred me to several authorities as illustrative of the type of enquiry and the degree of confidence required when determining whether a candidate is a fit and proper person to be admitted. Three examples are as follows:[44] Re Lundon:15The principles upon which we have to determine this application have been settled by the decision of the Court of Appeal on Mr Lundon's application for readmission in the year 1922. It was held that the application must be treated as if the applicant had not previously been admitted at all; and the12 Lawyers and Conveyancers Act 2006, ss 49(2)(b), 55.13 Ibid, s 3(1).14 Ibid, s 4.15 Re Lundon [1926] NZLR 656(CA) at 657.Court adopted the following statement of the law in the judgment of the Supreme Court of New South Wales in Ex parte Meagher16, viz.:"As stated in those judgments, what we are called upon to do is to decide whether upon the evidence we would be justified upon valid and substantial grounds in holding out to the public that the applicant is a fit and proper person to stand in the ranks of an honourable profession to whose members ignorant people are frequently obliged to resort for assistance in the conduct of their affairs, and in whom they are in the habit of reposing unbounded confidence. ...[45] Singh:17[26] In my opinion the effect of the relevant provisions of the Act and the Rules is as follows:[a] An applicant for admission is absolutely obliged to produce evidence to satisfy a Judge of the High Court that, first, he or she is of good character (r 6(1)(a)) and, second, that he or she is a fit and proper person (r 6(1)(b)). Mr Collins observed a tendency in some of the authorities to merge these two concepts. Frequently their elements overlap. But I accept his submission that they are discrete and conjunctive requirements for admission;...[46] Re Owen:18[8] Overall the authorities emphasise that the Court must be satisfied objectively that the candidate is of a good character and a fit and proper person to be admitted. That judgment of the Court is made in the interests of the community in having confidence in the legal profession as a whole. Enrolment of a person as a barrister and solicitor is not only the grant of status by this Court but to a degree represents its assurance to the profession and the community at large that the person who has been admitted is a fit and proper person to assume the responsibilities that go with a status of barrister and solicitor.[47] These statements were made in the context of deciding applications where,unlike the present case, there was an event in the applicant's past which raised adoubt as to whether the applicant was of good character or a fit and proper person for admission. That does not, however, affect the statements of principle.16 Ex Parte Meagher 19 NSW S+R 433, 437.17 Singh, above n 10, at [26].18 Re Owen [2005] 2 NZLR 536 at 8.[48] In this case, Ms Donnelly starts from a "neutral" position, for want of a betterword. There is no indiscretion or prior offending which requires explanation. The fact that NZLS has declined to issue a certificate is a matter to take into account. I also have regard to the fact that NZLS sees fit to require references meeting particular criteria before it will issue a certificate. Ultimately, however, the Court has to decide whether it is satisfied the person is fit and proper.[49] I turn now to the three references which Ms Donnelly produced, all completed on the form which NZLS supplies for the purpose.[50] The first has been given by Mr R Lovegrove, a partner in a firm of solicitorsin Dublin. Mr Lovegrove states that he has been Ms Donnelly's next door neighbourfor 25 years, and that he considers she is a fit and proper person to be admitted as a barrister and solicitor of the High Court because:[Ms Donnelly] is a person of good character, and high academic qualifications. She achieved her qualifications while remaining at home to attend to her [mother].[51] Mr Lovegrove also states that he has:... no hesitation in saying that I believe [Ms Donnelly] to be a most suitable candidate.[52] In evidence, Ms Donnelly said that Mr Lovegrove was an acquaintance and next door neighbour, that she had never worked for him or, for instance, had a meal with him.[53] The second reference is from Ms M Kelledy, a retired secondary school teacher. Ms Kelledy states that she has known Ms Donnelly for 35 years, as her teacher at secondary school. In giving evidence, Ms Donnelly said that she and this referee live on the same street and would chat to one another if they met but that would be the extent of their relationship. Ms Kelledy states that she considers Ms Donnelly to be a fit and proper person for admission because of her intellectual and personal qualities. Ms Kelledy describes Ms Donnelly as "highly intelligent". Ms Kelledy also states that Ms Donnelly would be "a very devoted member of anystaff". This latter comment raises a question as to whether Ms Kelledy believed shemay have been giving a reference in respect of an employment opportunity.[54] The third reference is from Mr N O'Connor, a solicitor who employedMs Donnelly as a legal secretary between 2000 and 2003. Mr O'Connor said in hisreference that he considers Ms Donnelly a fit and proper person for admission because she is:... a conscientious, diligent, reliable and hard working person of good character who has a demonstrable deep interest in the law in all its many facets, all of which qualities make her a fit and proper person for admission.[55] In evidence, Ms Donnelly stated that she had had no substantial contact withMr O'Connor since leaving his employment but had exchanged pleasantries withhim from time to time.[56] In so far as concerns Mr Lovegrove's reference, counsel for NZLS submittedthat the quality of the relationship was superficial and that, as a neighbour, Mr Lovegrove would not be able to comment on whether Ms Donnelly would be a fit and proper person to be admitted.[57] In so far as concerns the reference from Ms Kelledy, counsel again submitted that the current relationship was superficial only and that the referee's comments were based on past, but not present knowledge of Ms Donnelly's character.[58] In relation to Mr O'Connor's reference, counsel submitted that whileMr O'Connor would be well placed to comment, there was a lack of currency to his reference.[59] Counsel for NZLS submitted that there were deficiencies in each of the three references provided and that the lack of a local referee was significant. Counsel submitted that these matters meant the evidence was insufficient to make adetermination in Ms Donnelly's favour.[60] Counsel also submitted that the necessary evidence must be given by a referee who is sufficiently close to the candidate to speak to their character, having observed them in a range of circumstances. Counsel for NZLS also submitted that the reference must be based on current, not historic, knowledge and that the relationship between referee and candidate should be such that there can be no question as to their objectivity. Counsel submitted that the referees who had spoken on behalf of Ms Donnelly fell short of these requirements.[61] I accept that all of the matters to which counsel for NZLS has referred go to the weight which can be placed on any particular reference. I do not consider, however, that I should seek to lay down minimum criteria. It is a matter of making the determination on the evidence which is available and assessing whether it gives the degree of assurance which is required.[62] Ms Donnelly submitted that these references were the best she could provide. In her own words she is introverted and leads a life which borders on the reclusive. She advised me she had a narrow circle of friends. Ms Donnelly also submitted thata person's intrinsic nature does not change over the years. There is some substance to this latter submission but it does not remedy the deficiencies in the evidence in this case.[63] I do not consider that I can place any significant weight on Mr Lovegrove'sreference because he has a limited ability to comment on Ms Donnelly's character. Ms Kelledy's reference inevitably draws on historic knowledge of Ms Donnelly's character. It does not speak to the present state of affairs. Mr O'Connor's referenceis much closer to the required mark. Again, however, it draws on historic rather than current knowledge.[64] I regret that Ms Donnelly has not satisfied me on the evidence that she is a fit and proper person to be admitted as a barrister and solicitor of the High Court of New Zealand. I realise that this decision will be bitterly disappointing to her. I am sympathetic to the position in which Ms Donnelly finds herself but regret that the evidence which she has produced to date does not give the level of assurance which is required.Result[65] I decline the application for admission.[66] I make no order for costs...................................................................PETERS J