LITTLE v NEW ZEALAND LAW SOCIETY [2021] NZHC 1928

LITTLE v NEW ZEALAND LAW SOCIETY [2021] NZHC 1928 [28 July 2021]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-404-1515[2021] NZHC 1928IN THE MATTERANDof the Trans-Tasman Mutual Recognition Act1997 and the Lawyers and Conveyancers Act2006 and an application for review under theJudicial Review Procedure Act 2016IN THE MATTER of a judgment Re Dabas [2019] NZHC 1940BETWEEN T G LITTLEApplicantAND NEW ZEALAND LAW SOCIETYRespondentOn the papersCounsel: T G Little, self-represented applicantP N Collins for RespondentJudgment: 28 July 2021JUDGMENT OF CULL J[1] Mr Little has applied to recall my judgment in another proceeding in which Igranted Mr Dabas' application under s 19 of the Trans-Tasman Mutual RecognitionAct 1997 (the TTMRA) to be admitted as a barrister and solicitor of the High Court ofNew Zealand.1[2] In 2020, Mr Little, a barrister who had worked in Australia but moved toNew Zealand (but with no connection to Mr Dabas), applied for judicial review of the1 Re Dabas [2019] NZHC 1940.New Zealand Law Society's (NZLS) decision refusing to grant him a New Zealandpractising certificate under the provisions of the TTMRA.[3] That application for judicial review was heard before Powell J, who issued hisdecision on 29 April 2021.2 Powell J dismissed Mr Little's application, determiningthat NZLS had not erred in its decision, as Mr Little had not met the requirementsunder the TTMRA and the Lawyers and Conveyancers Act 2006, and was not entitledto a practising certificate that he sought. In his decision, Powell J relied on theobservations made in my judgment concerning the interpretation of the requirementsunder the TTMRA for Australian lawyers applying for a New Zealand practisingcertificate.[4] Mr Little has appealed Powell J's decision (and applied to recall it). He nowalso seeks to recall my 2019 judgment under r 11.9 of the High Court Rules 2016, onthe basis that counsel failed to direct the Court's attention to a legislative provisionand/or authoritative decision of plain relevance.Factual and procedural background[5] As noted above, I granted Mr Dabas' application to be admitted as a barristerand solicitor of the High Court of New Zealand on 9 August 2019. In filing hisapplication, Mr Dabas had annexed a certified copy of the instrument evidencing hisexisting registration in Australia as a lawyer, in the form of a practising certificateissued by the Queensland Law Society under the Legal Profession Act 2007.3[6] Upon preliminary assessment of Mr Dabas' application, I was not satisfied thats 19(1) of the TTMRA had been met, because under that provision, Mr Dabas had toprovide certain evidence relating to the "equivalent occupation" (in this case, a lawyer)for which he sought registration. I sought clarification therefore, from Mr Dabas ofthe basis upon which he sought registration for an "equivalent occupation" under theAct, and the nature of the special conditions placed on his Queensland practising2 Little v New Zealand Law Society [2021] NZHC 929.3 This is the equivalent to the New Zealand legislation, the Lawyers and Conveyancers Act 2006.certificate. I also directed NZLS to advise the Court as to whether Mr Dabas'practising certificate met the requirements under s 19 of the Act.[7] Both Mr Dabas and NZLS filed memoranda advising the Court of the relevantprocess and principles relating to applications for registration under the TTMRA. Inessence, they advised that:(a) Registration in New Zealand is a two-step process under s 4 of theTTMRA. The first step is admission as a barrister and solicitor in theHigh Court of New Zealand (for which a Registrar of the High Courtacts as the local registration authority), and the second step is anapplication for a practising certificate to NZLS (the local registrationauthority for this step);(b) Section 14 of the TTMRA sets out the meaning of "equivalentoccupation",4 and for the purposes of s 14, registration authorities shallassess whether the New Zealand occupation applied for is anoccupation equivalent to the applicant's Australian occupation inaccordance with Sch 3 of the Legal Council of Education Trans-TasmanMutual Recognition Admission Regulations 2008;(c) Schedule 3 of those Regulations provide that an Australian applicantadmitted as a legal practitioner in Queensland and holding a currentpractising certificate as a solicitor has an equivalent occupation for thepurposes of admission and to qualify for a practising certificate as abarrister or a barrister and solicitor; and(d) In Queensland, Mr Dabas held a sub-category of practising certificatecalled a "restricted employee practising certificate". This meant that hewas subject to certain conditions, namely that under s 56 of the LegalProfession Act 2007, he was required to practice under supervision for4 Section 14(1) dictates that an occupation for which individuals may be registered in an Australianjurisdiction is taken to be an equivalent occupation to an occupation for which individuals may beregistered in New Zealand if the activities authorised to be carried out under each registration aresubstantially the same.the first two years of practice, and also, under s 353(2)(a) of the LegalProfession Act, he was not allowed to engage in legal practice otherthan as a government legal officer engaged in government work.5[8] Overall, I determined that from the comprehensive submissions and theexplanatory memorandum filed by Mr Dabas, the status of his Queensland LawSociety Practising Certificate met the requirement under s 19 of the Act, that he hadan equivalent occupation to enable registration to occur. Accordingly, I ordered thatMr Dabas was entitled to admission as a barrister and solicitor of the High Court ofNew Zealand, and following his admission, was entitled to apply for a practisingcertificate as an employed barrister or barrister and solicitor.[9] Turning then to Mr Little. Mr Little had in fact been previously admitted inNew Zealand, following a successful application under the TTMRA to do so in 2012,when he was practising as a barrister in New South Wales and gave notice under s 19of the TTMRA. Mr Little was admitted to the New Zealand bar on 17 August 2012.[10] He subsequently ceased practice as a barrister in New South Wales andtravelled to England to pursue business opportunities. Powell J observed, that by thetime he had applied for a New Zealand practising certificate on 22 July 2020, he hadnot held a practising certificate in New South Wales since 13 February 2015.6[11] Mr Little's application to NZLS for the practising certificate was denied, onthe basis that the absence of a current New South Wales practising certificate was fatalto his application for a practising certificate in New Zealand. As noted above,Mr Little sought judicial review of this decision, which was heard before Powell J inNovember 2020.[12] Powell J ultimately agreed with the NZLS position. He affirmed theregistration position as described in Re Dabas, that registration in New Zealand was a"two-step" process, and that there could be "no dispute that to practice law inNew Zealand two types of authorisation are required: admission to the bar, and a5 The nature of Mr Dabas' employment at the time, as a government legal officer, was the reasonwhy s 353 applied.6 Little v New Zealand Law Society, above n 2, at [4].practising certificate".7 Because of this process, separate notification to different localregistration authorities was required for both steps: first, to the Registrar of theHigh Court for admission applications, and second, to NZLS for practising certificateapplications.[13] Powell J noted that Mr Little has engaged in this process, by filing a notice tothe Registrar under s 19 of the TTMRA on 31 July 2012. The giving of this noticewas relevant under r 7 of the Lawyers and Conveyancers Act (Lawyers: Admission)Rules 2008 (the admission rules), which states:8(4) A Judge may not consider an application for admission by aTTMRA candidate unless the application is accompanied bydocumentation from the Registrar that—(a) confirms that the TTMRA candidate has been issued with acertificate stating that he or she has given notice undersection 19 of the Trans-Tasman Mutual Recognition Act1997; and(b) confirms whether the candidate is or is not entitled to beregistered under that Act.[14] Powell J concluded that at the time of applying, Mr Little did not meet therequirements under s 17 of the TTMRA in relation to s 39(4)(c) of the Lawyers andConveyancers Act 2006,9 and was therefore not entitled to the practising certificatethat he sought.Mr Little's position[15] Mr Little acknowledged that he was neither a party nor a witness to my 2019decision, but argued that his recall application was an alternative to his appeal. Herelied on Shed4 Trading Company Ltd v Sanson,10 as authority for the proposition thata third party affected by a decision could apply by way of r 1.6 of the High Court7 At [15].8 Lawyers and Conveyancers' Act (Lawyers: Admission) Rules 208, r 7 (4).9 The provision dictates that NZLS may refuse to issue a practising certificate to a person who,under section 19 of the Trans-Tasman Mutual Recognition Act 1997, seeks the issue of thepractising certificate, if that person does not meet the requirements that apply, under section 17 ofthe Trans-Tasman Mutual Recognition Act 1997, in relation to an individual who seeks the issueof a practising certificate of the kind sought10 Shed4 Trading Company Ltd v Sanson [2020] NZHC 2836.Rules,11 and, taking note of the objective of the rules in r 1.2,12 a Judge could determineit as if it were an application under r 11.9.[16] Mr Little's overall position as to why my judgment ought to be recalled underr 11.9 was that NZLS failed to bring the "crucially important" r 7(4) of the admissionregulations13 to my attention and advise that the jurisdiction to consider whether s19(1) had been met in relation to whether Mr Dabas had an "equivalent occupation"was in fact in the hands of the Registrar as the local registration authority for thepurposes of admissions (as discussed above, the first step in the two step process).[17] Thus, he says, after carrying out the assessment of equivalency, the Registrarwas obliged to provide documentation confirming two things. The first is whetherMr Dabas had been issued with a certificate that he had given notice under s 19 of theTTMRA, and second, whether he was entitled to be registered. Mr Little submittedthat in failing to provide the documentation mandated by r 7(4) before me, theRegistrar acted without jurisdiction.[18] Furthermore, Mr Little also argued that NZLS failed to direct the Court to a"crucial aspect" of the registration, namely its approach to lapsed/lapsing Australianpractising certificates. NZLS had required Mr Dabas to renew his practising certificate(which expired 30 June 2019) before submitting his s 19 notice. According toMr Little, this failure "deprived the Court of the opportunity to consider the lawfulnessof this approach, which is neither required nor permitted by the Act".[19] After referring to the aforementioned case of Shed4, and the elements of whena judgment should be recalled set out in the leading case of Horowhenua County vNash (No 2), Mr Little stressed that the failure of NZLS to correctly inform the Courtthat there was no jurisdiction for it to embark on the enquiry as to equivalency ofoccupation, given how basic and fundamental the error was and the potential it had to11 Rule 1.6 states that if any case arises for which no form of procedure is prescribed by any Act orrules or regulations or by the rules, the court must dispose of the case as nearly as may bepracticable in accordance with the provisions of the rules affecting any similar case, and if thereare no such rules, it must be disposed of in the manner that the court thinks is best calculated topromote the objective of the rules as set out in r 1.2.12 The objective of the High Court Rules, as articulated in r 1.2, is to secure the just, speedy, andinexpensive determination of any proceeding or interlocutory application.13 See [13] above.negatively impact those who relied on the decision, indicated that the decision itselfshould be treated as a nullity.[20] Finally, Mr Little referred to the inherent powers of this Court to correct errorsin exceptional circumstances in the interests of justice. As this judgment did notappear to have been perfected, the Court could recall its judgment and revisit it inorder to arrive at a different decision.The Law Society's position[21] NZLS observed correctly that it was not a party to the Re Dabas proceeding,although it did obviously provide written submissions to assist the Court. It thereforeconsiders that it has no standing to participate in Mr Little's application for recall.[22] Nevertheless, the NZLS position on this current recall application is the sameas in the recall of Powell J's judgment. In particular, the NZLS position was thatMr Little's application for recall of Powell J's decision essentially amounted to anattempt to re-litigate matters already considered, as he was challenging substantivefindings of fact and law. As noted by the Court of Appeal in Erwood v Maxted, thiswould "not be entertained".14Discussion[23] There is narrow scope for a judgment to be recalled under r 11.9 of theHigh Court Rules, confined to three situations:15(a) If, since the judgment there has been an amendment to a statute orregulation, or a new judicial decision of higher authority;(b) Where counsel have failed to direct the Court's attention to a legislativeprovision or precedent which is clearly relevant; or14 Erwood v Maxted [2010] NZCA 93 at [23].15 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; Saxmere Co Ltd v Wool BoardDisestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 and Uhrle v R [2020] NZSC62, [2020] 1 NZLR 286 at [22] and [29].(c) When for some 'very special reason' justice requires a recall.[24] Mr Little's application for recall is evidently premised on the second groundavailable. He claims that NZLS did not draw my attention to r 7(4) of the admissionrules. However, the Registrar did in fact provide me with documentation confirmingthat Mr Dabas had been issued with a certificate stating that he had given notice unders 19 of the TTMRA. As he had provided a certified copy of his practising certificate,the Registrar also confirmed that he was entitled to be registered under that Act. Thisdocumentation was sent to me by the Registrar in my capacity as Duty Judge, by wayof memorandum on 10 June 2019.[25] Thus, there was no failure to bring r 7(4) to my attention. The Registrarfollowed the appropriate steps under that particular rule, and I then consideredMr Dabas' application for admission. It was at that point, as set out above, that Isought clarification from Mr Dabas and NZLS of the basis upon which he soughtregistration for an "equivalent occupation", which eventually led to my 2019judgment. This is fatal to Mr Little's application for recall because it is premised onthe basis that r 7(4) was not considered.[26] For completeness, I consider there was no issue concerning lapsed/lapsingpractising certificates in Re Dabas as submitted by Mr Little. Mr Dabas had renewedhis Queensland practising certificate, as required by NZLS, before he submitted hiss 19 notice. Any consideration of NZLS' approach to lapsed/lapsing certificates wouldhave been irrelevant.[27] I also doubt that it would be appropriate for this Court to recall a judgmentnearly two years after its release at the request of a third party that has no directconnection to that judgment and where there is a right of appeal from the decisionwhich directly involves them. The facts in Shed4, to which Mr Little refers asprecedent for the ability for third parties to recall judgments, significantly differs fromMr Little's fact situation. In contrast to Mr Little who has no direct connection to theRe Dabas proceedings, the third party in Shed4 was involved in the originalproceedings sought to be recalled, as a witness providing affidavit evidence.16 Further,the third party had no appeal rights, unlike Mr Little.[28] The application is therefore dismissed. Rule 7(4) was in fact adhered to andthe substance of Mr Little's complaint is under appeal.Result[29] Application for recall is dismissed.Cull JSolicitors:Shortland Chambers, Auckland for the Respondent16 Shed4 Trading Company Ltd v Sanson, above n 10.