LINCOLN v NEW ZEALAND LAW SOCIETY [2018] NZHC 2641

LINCOLN v NEW ZEALAND LAW SOCIETY [2018] NZHC 2641 [10 October 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-000462[2018] NZHC 2641BETWEEN RICHARD LINCOLNApplicantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 9 October 2018 (by way of telephone conference)Appearances: Applicant R Lincoln Appeared in PersonP N Collins for RespondentJudgment: 10 October 2018REASONS FOR DECISION OF GENDALL J[1] Yesterday, 9 October 2018, the applicant, pursuant to an application underr 5.21 High Court Rules, sought a more explicit pleading or further particulars ofcertain matters noted in the respondent's notice of opposition to his application foradmission as a barrister and solicitor of the High Court of New Zealand.[2] Having heard submissions from both the applicant personally and fromMr Collins for the respondent, and having considered all the material which wasplaced before the Court by the parties, I determined that the application seeking a moreexplicit pleading and/or further and better particulars was not appropriate here and itwas dismissed. In doing so I indicated that my reasons for that decision would follow.I now give those reasons.[3] The applicant has applied to be admitted as a barrister and solicitor of the HighCourt pursuant to s 52(1) of the Lawyers and Conveyancers Act 2006 (the Act) andgenerally pursuant to the Lawyers and Conveyancers Act (Lawyers: Admission) Rules2008 (the Rules). The application has been brought in the absence of a certificate ofcharacter from the New Zealand Law Society, as provided for in r 5 of the Rules.[4] Rule 6(4) of the Rules therefore applies here. Under this rule the respondentmust:serve on the candidate a notice of opposition that sets out the grounds onwhich the application for admissions is opposed, along with any affidavits insupport of the notice[5] This is because the application to the Court here does not include the certificateof character from the respondent required and provided for in the Act and the Rules.[6] In addition, r 6.4(b) goes on to provide that, in this situation:(b) The candidate's application must be determined at a hearing, and theLaw Society must be represented at that hearing.(emphasis added.)[7] Pursuant to these provisions, on 23 July 2018 the respondent filed its notice ofopposition to this application on the following stated grounds:(a) It is required to do so by r 6(4) of [the Rules] in circumstances wherethe applicant elected to make this application before the respondenthad completed its determination of his application for a certificate ofcharacter under r 5(1); and(b) Appearing in the affidavit of Sarah Laurie Inder sworn on behalf ofthe respondent.[8] That supporting affidavit from Ms Inder, sworn 19 July 2018, was also filed inthis Court on 23 July 2018.[9] In the 19 July 2018 affidavit Ms Inder deposed:21. PAC (the Law Society's Practice Approval Committee) consideredthat the following matters were relevant to the opposition by the NewZealand Law Society to the originating application for admission:(a) The applicant's Facebook postings and his dealings with thepolice officer and his wife which were inappropriate for aperson of a mature age seeking to be admitted to the legalprofession;(b) The impression that he did not appreciate that his conduct wasinappropriate, or show any remorse or insight, despite beingprompted by the interviewers to do so;(c) His harassment of the police officer's wife which showed asignificant lack of judgment, and the impression that hisexplanations to the interviewers were unconvincing andimplausible;(d) The way in which the applicant had promoted himself asproviding legal services was thought to be misleading,suggesting to the public that he was a practising member ofbarristers' chambers, possibly breaching s 22 of the Act;(e) His character references were minimal in content and did notoutweigh the legitimate concerns about his character,prompted by the material disclosed in Mr Mackenzie's letter.[10] This reference to the PAC related to a telephone conference meeting of thisCommittee convened to consider in part the applicant's position. Ms Inder attendedthat meeting, having prepared a summary paper for it and then recorded the Minutesof the meeting. Her comments at para 21 of her affidavit, noted above, outline matterswhich had been recorded from the minutes.[11] In his present application for a more explicit pleading and/or further and betterparticulars, the applicant directs his enquiry particularly to those matters noted aboverecorded in Ms Inders' affidavit.[12] The substantive hearing of the application by the applicant for admission hereis set down for hearing on 7 November 2018. As I understand the position, Ms Inderis required for and available for cross-examination at this hearing.[13] In addition, a not inconsiderable amount of material relating to the respondent'sconsiderations in this matter has been provided both to the applicant and the Court.[14] The present further particulars application is brought pursuant to r 5.21 of theHigh Court Rules which relevantly provides:5.21 Notice requiring further particulars or more explicit pleading(1) A party may, by notice, require any other party –(a) to give any further particulars that may be necessaryto give fair notice of –(i) the cause of action or ground of defence; or(ii) the particulars required by these Rules; or(b) to file and serve a more explicit statement of claim orof defence or counterclaim.(2) A notice must indicate as clearly as possible the points onwhich the pleading is considered defective.(3) If the party on whom a notice is served neglects or refuses tocomply with the notice within five working days after itsservice, the Court may, if it considers that the pleadingobjected to is defective or does not give particulars properlyrequired by the notice, order a more explicit pleading to befiled and served.(4) Even if no notice has been given under this Rule, the Courtmay on its own initiative order a more explicit pleading to befiled and served.[15] Essentially, here, the applicant is not requiring a more explicit notice ofopposition to be filed by the respondent but, rather, he seeks further particulars of thosematters in Ms Inders' affidavit I note above.[16] On this issue of further particulars, McGechan on Procedure at para HR5.21.01states:HR5.21.01 Purpose of ParticularsParticulars are of pleadings but they are not themselves pleadings, and anopposing party does not plead to particulars (just as a defendant does not pleadto the prayer for relief). Particulars serve a different function from pleading;their role is to illuminate, but that is allParticulars help to ensure that the pleading states a clear issue and informs theopposite party of the case to be met or defence to be argued. A party's pleadingis not simply the minimum which the opposing party needs so as to be able topleadIt is intended to:"[S]upply an outline of the case advanced, sufficient to enable areasonable degree of pre-trial briefing and preparation. Discovery andinterrogatories are only an adjunct, not a substitute for pleading."[17] The affidavit of Ms Inder here, as I see it, however, is essentially one aboutprocess and it includes the production of a range of accompanying documents asexhibits. At para 21 of her affidavit, Ms Inder as the Secretary to the PAC is simplypassing on its comments concerning matters which were thought to be relevant to therespondent's opposition to the application by the applicant. It follows the relevantextract from the transcript of the Minutes of the PAC meeting which was annexed toMs Inders' affidavit, along with a summary paper she had prepared for the PACmeeting.[18] As I see it, all that adequately informs the applicant of the grounds ofopposition which the respondent is required to present pursuant to r 6.4 of the Rules.[19] Furthermore, the applicant here is in a position where he can place before theCourt any evidence he may choose relating to his character or his fitness for admissionto persuade the Court as to his suitability for admission under the Act.[20] I am satisfied that the grounds put forward by the respondent in its notice ofopposition and as clarified in Ms Inders' affidavit are clear and no further particularsare properly required.[21] It was on this basis that this application by the applicant was dismissed.[22] That said, the substantive hearing date for this matter scheduled for7 November 2018 is confirmed together with the earlier timetabling directions madein this proceeding....................................................Gendall JSolicitors:Paul Collins, Barrister, ChristchurchCopy to Applicant