TIMOTHY GRAEME LITTLE v NEW ZEALAND LAW SOCIETY [2022] NZSC 78

TIMOTHY GRAEME LITTLE v NEW ZEALAND LAW SOCIETY [2022] NZSC 78 [23 June 2022]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 40/2022[2022] NZSC 78BETWEEN TIMOTHY GRAEME LITTLEApplicantAND NEW ZEALAND LAW SOCIETYRespondentCourt: O'Regan, Ellen France and Williams JJCounsel: G F Little and A R Nicholls for ApplicantP N Collins for RespondentJudgment: 23 June 2022JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay the respondent costs of $2,500.____________________________________________________________________REASONSBackground[1] The applicant practised law in New South Wales as a solicitor (from 1999) andas a barrister (from 2011 until his departure to the United Kingdom in 2015). In 2012,he applied under the Trans-Tasman Mutual Recognition Act 1997 (TTMRA) to beadmitted to the roll of barristers and solicitors of the High Court of New Zealand. Hewas duly admitted in August of that year, but did not, at the same time, seek or obtaina practising certificate to practise on his own account from The New Zealand LawSociety | Te Kāhui Ture o Aotearoa (NZLS).[2] In 2020, he moved to New Zealand and applied to NZLS for a practisingcertificate to practise on his own account as a barrister. By that stage, hisNew South Wales practising certificate had lapsed. NZLS refused the applicationbecause Mr Little no longer held a current practising certificate in an Australian stateas required by the TTMRA.[3] Mr Little sought judicial review of that decision.1 He argued essentially that,properly understood, the combined effect of the Lawyers and Conveyancers Act 2006(LCA) and the TTMRA was that once he had been admitted in New Zealand, he wasentitled without further action on his part to a New Zealand practising certificate. Thisis for two reasons: first, in 2012 he confirmed by notice of application to the Registrarof the High Court in the form prescribed by s 19 of the TTMRA, that he held a relevantAustralian practising certificate; and second, because reg 2(4) of the Trans-TasmanMutual Recognition Admission Regulations 2008 directed the Registrar of the HighCourt to send a duplicate of that notice to NZLS.2 In fact, NZLS was sent formalnotice of Mr Little's entry onto the roll and eligibility for a practising certificate in2012. Indeed, NZLS acknowledged his name was entered in the NZLS database andallocated a unique identification number. On this basis Mr Little argued he wasentitled to a practising certificate then and there is no reason to refuse him one now.[4] The Courts below did not accept that analysis. They held that the LCA andTTMRA requires all applicants to complete two steps in order to practise law inNew Zealand: to be admitted to the roll of barristers and solicitors of the High Courtof New Zealand; and (separately) to obtain from NZLS, on payment of the necessaryfee, a practising certificate. In terms of the right to practice, the reciprocal benefits ofthe TTMRA only accrue to those who hold a current Australian practising certificateat the time the second step is taken. Mr Little did not complete the second step in2012, though he could have if he wished to. By the time he did, he no longer held arelevant Australian practising certificate, so did not qualify for the benefits of theTTMRA. The Court of Appeal noted that, although the Registrar of the High Courtforwarded Mr Little's s 19 notice to the NZLS as required by reg 2(4), this was not an1 Little v New Zealand Law Society [2021] NZHC 929 (Powell J).2 Little v New Zealand Law Society [2022] NZCA 121 (Kós P, Brown and Goddard JJ)[CA judgment]. Mr Little did not raise reg 2(4) in his arguments until the appeal to the Court ofAppeal.application to NZLS in form, and did not come from Mr Little. Further it did notcontain all relevant information, or the required fees and levies. The Court noted thatit is not uncommon for qualified lawyers (including those normally resident inAustralia) to seek admission only in New Zealand and to obtain a practising certificatelater if and when they begin legal practice in this country — this to avoid incurringunnecessary annual fees and levies.Submissions[5] Mr Little now seeks leave to reprise his argument in this Court. The thrust ofhis argument is encapsulated in these propositions:(a) registration in New Zealand is not a two-step process;(b) the duplicate s19 notice sent by the Registrar of the High Court toNZLS served as notice to that authority for the purposes of registrationunder the TTRMA and is a purely administrative function; and(c) the steps taken in August 2012 (including that of the Registrar of theHigh Court in sending a duplicate notice to NZLS) meant that theapplicant was registered in the occupation from that date. As such, hewas entitled to obtain a practising certificate as a barrister on his ownaccount any time after notice was served in 2012 (within the 10-yearperiod prescribed by both LCA and TTMRA).[6] The applicant submits that the these matters raise questions of general or publicimportance and commercial significance,3 because the case is "in an area where thereis already public discussion of the administration of the TTMRA by registrationauthorities".[7] NZLS opposes on the basis that the decisions below are plainly correct andnone of the requirements of s 74 of the Senior Courts Act 2016 are satisfied.3 Senior Courts Act 2016, s 74(2)(a).[8] By memorandum of 27 May 2022 Mr Little sought to reply to matters raisedin NZLS' submissions. The first matter related to Mr Little's reliance (contrary, hesays, to the submissions of NZLS) on the Registrar's provision to NZLS of theduplicate notice. This seems to be a misreading of those submissions at 2.4(a). Thesecond matter relates to his (extant) application for an employed barrister practisingcertificate — a matter addressed by the Court of Appeal at the end of its judgment.4 Itis unnecessary to comment on this matter. It is not relevant to the application.Analysis[9] We accept that the interpretation of the TTMRA may in some circumstancesgive rise to questions of general or public importance, but we are not satisfied that thisis such a case.5 The Courts below interpreted and applied the words of the legislationin an orthodox way. The TTMRA proceeds on the basis a person in Mr Little's positionwould be entitled to be registered in New Zealand as a lawyer after giving notice toNZLS. The meaning of registration in s 4 of the TTMRA contemplates that more thanone form of authorisation may be required and, if so, s 4(2) provides that "registration"includes each form of authorisation. The TTMRA also contemplates an applicationbeing made in respect of each of the two forms of authorisation. These two forms ofauthorisation must go to the relevant local registration authority, provided for in s 2.6The merits of the arguments advanced by the applicant are not such that we see a realrisk that a substantial miscarriage may occur if the appeal is not heard.7[10] The application for leave to appeal is dismissed.[11] The applicant must pay the respondent costs of $2,500.Solicitors:Nicholls Law Ltd, Auckland for ApplicantNew Zealand Law Society, Wellington for Respondent4 CA judgment, above n 2, at [78].5 Senior Courts Act, s 74(2)(a).6 See Trans-Tasman Mutual Recognition Act 1997, ss 2(1)(i) and (ii), 15 and 19; and Lawyers andConveyancers Act 2006, s 39.7 Senior Courts Act, s 74(2)(b).