LITTLE v NEW ZEALAND LAW SOCIETY [2021] NZHC 929

LITTLE v NEW ZEALAND LAW SOCIETY [2021] NZHC 929 [29 April 2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-1515[2021] NZHC 929IN THE MATTER of the Trans-Tasman Mutual Recognition Act1997, the Lawyers and Conveyancers Act2006 and an application for review under theJudicial Review Procedure Act 2016BETWEEN T G LITTLEApplicantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 12 November 2020Appearances: G F Little for the ApplicantP N Collins for the RespondentFurther submissionsreceived:19 November 2020Judgment: 29 April 2021JUDGMENT OF POWELL JThis judgment was delivered by me on 29 April 2021 at 3.30 pm pursuant toR 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The applicant, Tim Little, seeks various orders by way of judicial reviewproceedings against the respondent, the New Zealand Law Society ("NZLS"). Theprincipal order sought is:An order that the respondent [NZLS] forthwith on payment of the appropriatefee issue the applicant [Tim Little] with a practicing certificate as a barristerwith approval to practice on his own account for the current practicing year.[2] The application has arisen because the NZLS did not promptly issue Mr Littlethe practising certificate he seeks after he applied for one in July 2020 pursuant to theprovisions of the Trans-Tasman Mutual Recognition Act 1997 ("TTMRA").1[3] Mr Little's application for a practising certificate followed an earlier successfulapplication under the TTMRA in 2012. At that time, Mr Little was practising as abarrister in New South Wales and there was no issue when he gave notice pursuant tos 19 of the TTMRA. He was therefore admitted as a barrister and solicitor of the HighCourt of New Zealand ("admission to the New Zealand Bar") on 17 August 2012.[4] There is no dispute that Mr Little subsequently ceased practice as a barrister inNew South Wales and travelled to England to pursue business opportunities. By thetime he applied for a New Zealand practising certificate on 22 July 2020, he had notheld a practising certificate in New South Wales since 13 February 2015.[5] It is Mr Little's position that the current lack of a practising certificate does notmatter as he had completed the mutual recognition requirements set out in the TTMRAat the time of his admission in 2012, and is thus entitled to a practising certificateirrespective of whether he still holds one in New South Wales.[6] In contrast, the NZLS submits that the TTMRA regime imposes a two-stageprocess for Australian legal practitioners seeking to practice in New Zealand. As theNZLS has advised Mr Little, it considers that in order to practice in New Zealandpursuant to the TTMRA, a practitioner must first be admitted to the New Zealand barfor which the relevant local authority under the Act is the High Court. Once admitted,1 It is noted that the NZLS has not declined to issue a practising certificate to Mr Little. Rather theNZLS had following correspondence indicated a preliminary view that Mr Little was not entitledto a practising certificate and sought Mr Little's comment. These proceedings followed.the practitioner is then entitled to apply for a practising certificate from the NZLS asthe relevant local authority, in which case the absence of a practising certificate inNew South Wales at the time the practising certificate is first applied for in NewZealand is fatal.[7] The sole issue to be determined in these proceedings is as articulated byMr Collins on behalf of NZLS:Whether [Mr Little] is entitled to a practicing certificate as a barrister on hisown account in New Zealand, in reliance on the TTMRA, when he does nothave a current practicing certificate in an Australian jurisdiction.The case for Mr Little[8] In support of his argument that only a single registration process was required,Mr Little SC, on behalf of the applicant, Mr Little, noted that Mr Little had beenadmitted to the New Zealand bar after notice had been given pursuant to s 19 of theTTMRA at a time when Mr Little had a practising certificate in New South Wales.Mr Little therefore became registered for all purposes of the TTMRA, and as per r 11of the Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008 the NZLSwas notified of Mr Little's admission to the New Zealand bar. As a result, whenMr Little decided to apply to the NZLS for a practising certificate as a person then onthe roll of barristers and solicitors, he was entitled to a practising certificate in termsof s 39(1) of the Lawyers and Conveyancers Act 2006. This section provides:The New Zealand Law Society, on application made to it by any person whosename is on the roll, must issue to that person a practising certificate either asa barrister or as a barrister and solicitor.[9] In Mr Little's submission, as Mr Little's name was on the roll the only possiblestatutory basis for declining to issue him with a practising certificate, s 39(4)(c) of theLawyers and Conveyancers Act, does not apply. Section 39(4)(c) provides:(4) Despite subsections (1) and (2), the society to which the applicationwas made –(c) may refuse to issue a practising certificate to a person who,under section 19 of the Trans-Tasman Mutual RecognitionAct 1997, seeks the issue of the practising certificate, if thatperson does not meet the requirements that apply, undersection 17 of the Trans-Tasman Mutual Recognition Act 1997,in relation to an individual who seeks the issue of a practisingcertificate of the kind sought.[10] Mr Little's position is that 39(4)(c) cannot be relevant because he met therequirements of s 17 of the TTMRA in 2012 when registration was effected in 2012 atthe time he was admitted to the New Zealand bar. Therefore, pursuant to s 17(2) ofthe TTMRA Mr Little:(a) is entitled to renewal of registration in accordance with the lawdealing with registration of that kind; and(b) is not disentitled to registration or renewal of registration solelybecause the individual ceases to be registered in an equivalentoccupation in an Australian jurisdiction;[11] In Mr Little's submission the effect of ss 17(2)(a) and (b) shows clearly that itwas never intended for an applicant to maintain a practising certificate in theirAustralian jurisdiction once registration had been effected, and does not accept theposition is in any way affected by the decision of Cull J in Re Carter Dabas.2Discussion[12] With respect to Mr Little and having carefully considered the submissions filedin support of the application, including those filed post-hearing, the interpretationsought to be advanced cannot be sustained. Instead, I conclude Mr Little'sinterpretation of the TTMRA regime is neither consistent with the statutoryframework, nor indeed the way in which Mr Little has actually proceeded in this case.[13] First, Cull J's categorisation of the registration process for Australian lawyersseeking to practice in New Zealand must be correct. As her Honour observed inRe Carter Dabas:3Registration in New Zealand under the Act is a two-step process. Both stepsare required to complete registration in order to "carry on the occupation" of2 Re Carter Dabas [2019] NZHC 1940 at [9].3 At [9]-[11].a barrister, or barrister and solicitor, because registration is defined in s 4 ofthe Act as follows:4 Meaning of "registration"(1) In this Act, registration means the admission, approval, certification(including, without limitation, the issue of practising certificates),licensing, registration, or any other form of authorisation, of anindividual required by or under law for carrying on an occupation.(2) If an individual is required by or under law to have more than 1form of authorisation, as described in subsection (1), to carry onan occupation, registration includes each form of authorisationthat any relevant local registration authority grants.The first step is admission as a barrister and solicitor in the High Court of NewZealand, for which a Registrar or Deputy Registrar of the High Court is thelocal registration authority.4 As we have a fused profession in New Zealand,it is not possible to be admitted only a barrister or only as a solicitor. Anapplicant is admitted as both but will hold a practising certificate either as abarrister, or as a barrister and solicitor, depending on how they choose topractice.The second step is the application for a practising certificate to the NewZealand Law Society, the local registration authority for this step.5 It isnecessary to hold a current practising certificate as either a barrister, or as abarrister and solicitor, to be a practitioner or lawyer in New Zealand.6(Emphasis and footnotes included in original)[14] No other conclusion is possible given the clear wording of s 4(2) in particular,which is substantively replicated in the equivalent Australian legislation.74 Trans-Tasman Mutual Recognition Act 1997, s 2: local registration authority.5 Section 2: local registration authority.6 The definitions of a "barrister" and a "barrister and solicitor" under s 6 of the Lawyers andConveyancers Act 2006 mean a person enrolled as a barrister and solicitor of the High Crownunder or by virtue of the Lawyers and Conveyancers Act 2006 and practising as a barrister or as asolicitor. "Practitioner" means a lawyer (or conveyancing practitioner); and a "lawyer" means aperson holding a current practising certificate as a barrister or as a barrister and solicitor.7 Material provided by the Bar Association of New South Wales and the decisions of Randle v OtagoDistrict Law Society (HC Dunedin CP41/99, 16 November 1999) and Prothonotary v Comeskey[2018] NSWCA 18 all indicate a two stage approach is also followed in New South Wales whereMr Little formerly practiced. In Randle, as a barrister and solicitor of the High Court ofNew Zealand, Mr Randle was entitled to be admitted to the bar in New South Wales but was noteligible for a practising certificate and as a result was clearly ineligible for a practising certificatein New Zealand based on the TTMRA. Likewise, in Prothonotary, the order for admission wasset aside after it had been previously granted following investigations undertaken at the timeMr Comeskey applied for a practising certificate.[15] There can be no dispute that to practice law in New Zealand two types ofauthorisation are required: admission to the bar and a practising certificate.8 As Cull Jnoted, s 4(1) and (2) of the TTMRA makes clear the same two types of authorisationare required to take advantage of the mutual recognition allowed by the Act.[16] Given this position it is clear that separate notification is required for both stepsof the registration process through the two separate local registration authorities: TheRegistrar of the High Court in respect of applications for admission, and the NZLS inrespect of applications for practising certificates.9 This is in fact what Mr Little did.The s 19 notice given by Mr Little, dated 31 July 2012 and addressed to the Registrarof the High Court at Auckland, simply provided: I seek registration for the occupation of barrister and solicitor of the HighCourt of New Zealand on the ground that I am entitled to be registered inaccordance with section 17 of the Trans-Tasman Mutual Recognition Act1997.[17] Although Mr Little went on to certify his practising certificate as a Barrister ofthe State of New South Wales had not been cancelled or suspended this did not haveanything to do with the issue of a practising certificate. The effect of the notice givenby Mr Little in 2012 is made clear by r 7 of the Lawyers and Conveyancers Act(Lawyers: Admission) Regulations 2008 ("Lawyers Admission Regulations") whichprovides:(1) In this rule and rule 8(3), TTMRA candidate means a person whoapplies for admission on the grounds that he or she is qualified foradmission under section 49(4) of the Act.(2) If a TTMRA candidate gives notice under section 19 of the Trans-Tasman Mutual Recognition Act 1997 to a Registrar who is acting aslocal registration authority in relation to admission as a barrister andsolicitor, the Registrar must issue the person with a certificate thatstates that notice has been given under that section.(3) Every TTMRA candidate must apply to the High Court for admissionusing form LA 4.(4) A Judge may not consider an application for admission by aTTMRA candidate unless the application is accompanied bydocumentation from the Registrar that—8 "Joining the legal profession" (15 July 2020) New Zealand Law Society<www.lawsociety.org.nz>; Re Carter Dabas [2019] NZHC 1940 at [9]-[11].9 TTMRA, s 2 (definition of "local registration authority").(a) confirms that the TTMRA candidate has been issued with acertificate stating that he or she has given notice under section19 of the Trans-Tasman Mutual Recognition Act 1997; and(b) confirms whether the candidate is or is not entitled to beregistered under that Act.(Emphasis added)[18] Thus, pursuant to r 11 of the Lawyers Admission Regulations, the NZLS wassimply notified of the admission and nothing in the legislation in any way prescribedthat the NZLS was required to treat the notification of an admission as an applicationfor a practising certificate. Nor, contrary to the submission made on behalf of MrLittle, was this in fact suggested by Cull J in Carter Dabas, rather her Honour simplynoted that once Mr Carter Dabas was admitted he was entitled to apply for a practisingcertificate from the NZLS.10[19] In any event, it is clear that at the time Mr Little was admitted to theNew Zealand bar in 2012 he did not understand he had also acquired a practisingcertificate. On the contrary, when Mr Little applied to the NZLS for a practisingcertificate on 23 July 2020 he confirmed he had never had a New Zealand practisingcertificate as a barrister, nor had he been issued with a barrister certificate previously.As Mr Little also confirmed that by that time he did not have a current New SouthWales practising certificate, it followed that "as an individual seeking registration"pursuant to s 17(1) of the TTMRA he was not able to show that he was at that time"registered in an equivalent occupation in an Australian jurisdiction". As there hadbeen no registration in relation to a practising certificate prior to his application, itfollowed that s 17(2) could not apply to Mr Little, as those provisos are applicableonly once a practising certificate has been granted pursuant to the TTMRA.[20] As a result, at the time Mr Little applied for a New Zealand practisingcertificate he did not meet "the requirements that apply, under s 17 of the [TTMRA]"in relation to s 39(4)(c) of the Lawyers and Conveyancers Act 2006 and was thereforenot entitled to the practising certificate that he sought. There was therefore no errorin the approach taken by the NZLS with regard to Mr Little's application for a10 Re Carter Dabas [2019] NZHC 1940 at [30]practising certificate in terms of the issues it raised and wished Mr Little to consider.As a result Mr Little's application must be dismissed.[21] For completeness, I make the following observations:(a) Had Mr Little applied for a practising certificate at the time of hisadmission to the New Zealand bar in 2012, or indeed at any time priorto the expiry of his New South Wales practising certificate, he wouldhave been entitled pursuant to the TTMRA to a practising certificate asa barrister. Thereafter he would have been entitled to continue to renewhis New Zealand practising certificate even after his New South Walespractising certificate lapsed.(b) By not practising in New South Wales since 2015 Mr Little is not onlyineligible to obtain a practising certificate in New Zealand pursuant tothe TTMRA but, as Mr Little himself acknowledged, he is no longerentitled to a practising certificate in New South Wales either. Beforehe would be entitled to practice in New South Wales as a barrister hewould be required to comply with the New South Wales BarAssociation "Returning to the Bar Protocol" including, unless anexemption was granted, resitting the bar exam and practising undersupervision for a period.Decision[22] The application for review is dismissed.[23] The NZLS is entitled to costs on the application. If these cannot be agreedwithin one month, the NZLS has leave to file a memorandum detailing the costssought. Mr Little will then have two weeks to respond, following which I willdetermine the issue on the papers._______________________________Powell J