STANLEY v NEW ZEALAND LAW SOCIETY [2019] NZCA 354

STANLEY v NEW ZEALAND LAW SOCIETY [2019] NZCA 354 [6 August 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA338/2018[2019] NZCA 354BETWEEN JOHN LLEWELLYN STANLEYAppellantAND NEW ZEALAND LAW SOCIETYRespondentCourt: Kós P, Gilbert and Wild JJCounsel: J C Gwilliam for AppellantP N Collins for RespondentJudgment:(On the papers)6 August 2019 at 4.00 pmJUDGMENT OF THE COURTA The respondent's application for a stay of judgment is dismissed.B The respondent must pay the appellant's costs as for a standard applicationwith usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)[1] The New Zealand Law Society (the Society) seeks a stay of this Court'sjudgment delivered on 17 April 2019.1 The Society has applied to the Supreme Courtfor leave to appeal that judgment. Its leave application has been set down for hearingon 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 andprofessional qualifications, Mr Stanley applied to the Society for a certificate ofcharacter, without which he could not be admitted in the usual way. The Societyrefused to give him that certificate. It considered he was not a fit and proper personbecause he has a criminal record of driving offences. There are seven offencesspanning the period 1978 to 2014. They include four convictions for driving withexcess blood alcohol.[3] Having been refused a certificate of good character by the Society, Mr Stanleyapplied to the High Court for an order for his admission. He had to satisfy the HighCourt that he is a fit and proper person to be admitted. Clark J was not satisfied andrefused his application.2[4] Mr Stanley appealed successfully to this Court. This Court approachedthe 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 admissionof candidates who had one or more criminal convictions. The earliest of thoseauthorities 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[5] This Court agreed with Clark J that Mr Stanley's drink driving convictions aresufficiently recent and numerous, and Mr Stanley's age such, as to raise a prima faciedoubt 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 thatMr Stanley's offending was not of the type that goes directly to fitness to practise asa lawyer. His case could thus be distinguished from those of Mr Owen andMr Burgess, both of whom had relatively recent convictions for dishonesty.[6] On the evidence, the Court also considered that Mr Stanley is a man of goodcharacter. He has pursued a career as an insurance broker and continues to contribute2 Stanley v New Zealand Law Society [2018] NZHC 1154.3 Re Lundon [1926] NZLR 656 (CA).4 Re M [2005] 2 NZLR 544 (HC); Re Owen [2005] 2 NZLR 536 (HC); Re Burgess [2011] NZAR453 (HC); Ali v New Zealand Law Society [2014] NZHC 1111; and Brown v New Zealand LawSociety [2018] NZHC 1263, [2018] NZAR 1192.5 Re Burgess, above n 4, at [41].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 andproper 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 Rules2004. The relevant principles are agreed: they are as set out by this Court in Keung vGBR Investments Ltd.6 Essentially, the Court's task is to balance factors favouringMr Stanley being able to take the required oath or affirmation and be enrolled, againstthose favouring barring that happening, at least until the outcome of the Society'sapplication for leave to appeal is known.[8] The factors favouring permitting Mr Stanley's admission are these:(a) He has this Court's judgment in his favour. The three Judgesunanimously 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 cantake 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 Stanleyremoved from the roll. That can be done either by consent under s 60of the Lawyers and Conveyancers Act 2006, or by order of this Courtunder 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 staysought at this stage is of short duration. However, if leave is granted,6 Keung v GBR Investments Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].the Society will seek a further stay pending the Supreme Court'sjudgment; and(b) If the Society is given leave to appeal, and is ultimately successful, itwill obviously want Mr Stanley's name removed from the roll. If hedoes not consent (and he has not indicated that he would), thenapplication to strike his name off will be required. As the Societysubmits, even removal by consent is a "relatively burdensome andpotentially stigmatising" process, compared with not admittingMr 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 opposingsubmissions. The first is Mr Gwilliam's submission for Mr Stanley that the Society'sapplication is "misconstrued" (we think Mr Gwilliam means misconceived), becausethere is no jurisdiction to stay this Court's judgment, and thus to prevent Mr Stanleyapplying to the High Court for admission. That is not correct.[11] The second is the Society's submission that the position Mr Stanley has beenoffered 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'ssubmissions in support of its stay application have certainly spelt out to Mr Stanley insome detail what he can and cannot do in terms of his proposed employment if he isadmitted.[12] The third is the merits of the leave application. Mr Gwilliam contended itlacked merit, in particular because this proceeding lacked public interest. Where liethe merits is not so obvious that we can take them into account. In this case the meritsof the leave application are for the Supreme Court.[13] For three reasons, we consider the balance of convenience falls decisivelyagainst granting a stay. First, Mr Stanley's ability to earn a living as an admittedlawyer is the most powerful factor. Second, and also cogent, is the fact that refusinga stay will not render the Society's appeal nugatory. Third, Mr Stanley would beadmitted knowing full well that he may face an application to have his name removedfrom the roll if the Society's appeal ultimately succeeds. So he opposes a stay knowingof the potential implications of his being admitted at this stage. Further, he could avoidany public stigma by consenting to his name being removed, should the Societyultimately succeed on appeal.Result[14] The Society's application for a stay of judgment is dismissed.[15] The Society must pay Mr Stanley's costs as for a standard application withusual disbursements.Solicitors:Main Street Legal, Upper Hutt for Appellant