LITTLE v NEW ZEALAND LAW SOCIETY | TE KĀHUI TURE O AOTEAROA [2022] NZCA 121

LITTLE v NEW ZEALAND LAW SOCIETY | TE KĀHUI TURE O AOTEAROA [2022] NZCA 121 [8 April2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA241/2021[2022] NZCA 121BETWEEN TIMOTHY GRAEME LITTLEAppellantAND NEW ZEALAND LAW SOCIETY |TE KĀHUI TURE O AOTEAROARespondentHearing: 27 October 2021Court: Kós P, Brown and Goddard JJCounsel: G F Little SC and T G Little for AppellantP N Collins and P J Woolhouse for RespondentJudgment: 8 April 2022 at 2.00 pmJUDGMENT OF THE COURTA The appeal is dismissed.B The appellant must pay costs to the respondent for a standard appeal ona band A basis with usual disbursements.____________________________________________________________________Table of contentsPara noIntroduction [1]Background [13]Mr Little's qualifications and practice in Australia [13]August 2012 application for admission in New Zealand [19]Application for New Zealand practising certificate in 2020 [23]Judicial review proceedings [27]High Court decision [28]Relevant statutory provisions [31]Lawyers and Conveyancers Act provisions [31]The TTMRA [41]TTMRA Admission Regulations [49]Submissions of Mr Little on appeal [52]Submissions of NZLS on appeal [58]Discussion [61]A two step process [61]The effect of the steps taken by Mr Little in August 2012 [73]The effect of the steps taken by Mr Little in 2020 [77]Result [80]REASONS OF THE COURT(Given by Goddard J)Introduction[1] In August 2012 the appellant, Mr Timothy Little, was practising as a barristerin New South Wales. He applied to the High Court of New Zealand for admission asa barrister and solicitor of the High Court of New Zealand under the Trans-TasmanMutual Recognition Act 1997 (TTMRA). He was admitted on 17 August 2012.[2] In 2012 Mr Little did not communicate directly with the New ZealandLaw Society (NZLS) to seek the issue of a practising certificate. None was issued tohim.[3] Some eight years later, in July 2020, Mr Little applied to the NZLS for apractising certificate as a barrister practising on his own account. However Mr Littlehad ceased to hold a practising certificate in New South Wales in February 2015.The NZLS did not issue the practising certificate Mr Little requested. The NZLSconsiders that because Mr Little does not currently hold a practising certificate inNew South Wales that authorises him to practise on his own account in thatjurisdiction, he is not entitled to a practising certificate that authorises him to practiseon his own account in New Zealand under the relevant provisions of the TTMRA andthe Lawyers and Conveyancers Act 2006 (LCA).[4] Mr Little considers that the NZLS approach is wrong in law. He met the mutualrecognition requirements set out in the TTMRA at the time of his admission in 2012.At that time, he was entitled to a New Zealand practising certificate. He says heremains entitled to one now, despite having ceased to practise in New South Wales.He adds that the Registrar of the High Court notified the NZLS of his application foradmission, and his admission, in August 2012. That was sufficient to crystallise hisright to a practising certificate at that time. No further action was required on his part.[5] Mr Little sought judicial review before the High Court of the NZLS failure toissue him a practising certificate. That application was unsuccessful.1 Mr Little nowappeals to this Court.[6] As we explain in more detail below, we consider that the position under theTTMRA and the LCA is quite clear. Registration in New Zealand as a barrister andsolicitor is, as the TTMRA expressly recognises, a two-step process: admission as abarrister and solicitor of the High Court, and the issue of a practising certificate by theNZLS.1 Little v New Zealand Law Society [2021] NZHC 929 [High Court judgment].[7] A person who has been admitted as a barrister and solicitor of the High Courtis entered on the roll of barristers and solicitors. They are then entitled to be issuedwith a practising certificate by the NZLS provided that they pay the relevant fees andlevies, and satisfy the "fit and proper person" test and certain other criteria.But additional requirements apply to an applicant who wishes to obtain a practisingcertificate that authorises them to practise on their own account. Domestic applicantsmust meet prescribed requirements in relation to recent legal experience inNew Zealand, and completion of courses on subjects such as professional conduct andclient care. An applicant who holds a practising certificate in an Australian jurisdictionis not required to meet those domestic requirements: they are entitled to acorresponding class of practising certificate in New Zealand under the TTMRA.Critically, however, they are entitled under the TTMRA to a practising certificate thatentitles them to practise on their own account in New Zealand if, and only if, they holda practising certificate that entitles them to practise on their own account in anAustralian jurisdiction at the time they apply to the NZLS for the issue of theirpractising certificate.[8] Mr Little could obtain a practising certificate under the LCA as an employedbarrister in the same way that any newly admitted New Zealand lawyer could. But heseeks a practising certificate that would enable him to practise as a barrister inNew Zealand on his own account.[9] Mr Little does not currently hold an Australian practising certificate thatentitles him to practise on his own account in an Australian jurisdiction. So he is notcurrently entitled to apply under the TTMRA for a practising certificate that enableshim to practise in New Zealand on his own account.[10] We do not consider that Mr Little made an application for a practisingcertificate in August 2012. In order to obtain a practising certificate in August 2012Mr Little needed to make a separate application to the NZLS. He did not do so.He was not issued with a practising certificate in 2012, or in any subsequent year.He has not paid the annual fees for issue and renewal of a practising certificate in eachyear from 2012 onwards. He has not been required to comply with the obligations oflawyers who hold practising certificates, including obligations in relation tocontinuing professional development (CPD). Prior to July 2020 he did notcommunicate with the NZLS to suggest that it ought to have been issuing annualpractising certificates to him, and that he ought to have been paying the associated feesand meeting the associated requirements. That inaction on his part accurately reflectedthe correct legal position: he did not hold a practising certificate throughout thisperiod.[11] Nor did Mr Little's admission as a barrister and solicitor in August 2012crystallise an entitlement to receive a practising certificate that Mr Little is nowentitled to rely on. There is no basis in the TTMRA or the LCA for an enduringentitlement to be issued with a practising certificate based on an entitlement at someearlier date.[12] The appeal must therefore be dismissed.BackgroundMr Little's qualifications and practice in Australia[13] Mr Little was born in New Zealand. In 1979 his family moved to Sydney,where he completed his schooling.[14] Mr Little obtained a law degree in 1996. He was admitted as a solicitor of theSupreme Court of New South Wales on 4 June 1999. A practising certificate as asolicitor was issued to him by the New South Wales Law Society on 1 July 1999.[15] After working as a solicitor for some time, Mr Little completed the New SouthWales Bar Practice Course and passed the Bar Examination. A practising certificateas a "Reader barrister" was issued to him by the New South Wales Bar Association on22 August 2011. It appears that the restrictions that applied to him as a"Reader barrister" ceased to apply after 12 months; that is, on 22 August 2012.[16] On 1 July 2013 Mr Little was issued a barrister's practising certificate thatauthorised him to practise as a barrister on his own account in New South Wales.[17] Mr Little continued to hold a current practising certificate and practise as abarrister in New South Wales until 13 February 2015. He remains on the roll ofbarristers in New South Wales.[18] Mr Little left Sydney in 2015 to pursue business opportunities in London.He allowed his New South Wales practising certificate to lapse.August 2012 application for admission in New Zealand[19] In August 2012 Mr Little sought admission as a barrister and solicitor inNew Zealand. He gave the notice required by s 19 of the TTMRA to the Registrar ofthe High Court. The notice was in the form prescribed by the Trans-Tasman MutualRecognition Admission Regulations 2008 (Admission Regulations).2 In that notice heconfirmed that he was currently registered to practise as a barrister in New SouthWales, so was registered in an equivalent occupation in a participating jurisdiction forthe purposes of s 19 of the TTMRA. He sought admission in New Zealand under s 19of the TTMRA.[20] As required by the Admission Regulations, the s 19 notice was given to theRegistrar of the High Court in duplicate. The Registrar of the High Court sent theduplicate copy of the notice to the Executive Director of the Law Society.3 That noticewas stamped by the NZLS as received on 17 August 2012. The cover letter of a copyof that document discovered by the NZLS in these proceedings bears the notation"ENTERED".[21] On 17 August 2012 Asher J made an order admitting Mr Little as a barristerand solicitor of the High Court of New Zealand.[22] Mr Little did not communicate separately with the NZLS in relation to the issueof a practising certificate. He did not pay any fees to the NZLS for the issue of apractising certificate. He has not, since 2012, complied with the requirements that2 These regulations are made by the New Zealand Council of Legal Education under s 274(f)(ii) ofthe Lawyers and Conveyancers Act 2006.3 Admission Regulations, reg 2.apply to holders of practising certificates such as payment of fees and levies for theannual renewal of practising certificate, and CPD reporting.4Application for New Zealand practising certificate in 2020[23] In March 2020 Mr Little came back to New Zealand. On 22 July 2020 heapplied to the NZLS for the issue of a practising certificate as a barrister sole withapproval to practise on his own account, in reliance on ss 17 and 19 of the TTMRA.[24] The email from Mr Little accompanying his practising certificate applicationreads as follows:Please find attached my completed Practising Certificate Application.This application is pursuant to the written Notice under s.19 of theTrans-Tasman Mutual Recognition Act 1997 which was given to the ExecutiveDirector of the New Zealand Law Society in or around August 2012 and s.17of the TTMRA. I am seeking a practising certificate in an "equivalentoccupation" pursuant to Schedule 3 of the Trans-Tasman Mutual Recognition[Admission] Regulations 2008 to that which I was registered for in New SouthWales, Australia, at the time of giving notice to the local registration authorityin New Zealand, namely a barrister with approval to practice on my ownaccount/barrister sole.[25] The NZLS asked Mr Little to provide a CV, references, a statement of statusfrom the New South Wales Bar Association and a current New South Wales practisingcertificate. He supplied all of these except the current New South Wales practisingcertificate, which he could not provide because he did not hold one.[26] On 24 July 2020 the NZLS wrote to Mr Little advising him that he was requiredto provide an original or certified copy of a current Australian practising certificate inorder to obtain a practising certificate from the NZLS. On 21 August 2020 the NZLSwrote to Mr Little to advise him that the NZLS Practice Approval Committee was"currently of the view that there may be grounds for declining or refusing to issue youa practising certificate". The reason given was that Mr Little did not hold a currentAustralian practising certificate entitling him to practise on his own account.4 Under the Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education—ContinuingProfessional Development) Rules 2013.Judicial review proceedings[27] Mr Little filed judicial review proceedings against the NZLS claiming that theNZLS was required to issue him a practising certificate as a barrister with approval topractise on his own account under the TTMRA. The relief sought included:[A]n order that [NZLS] forthwith on payment of the appropriate fee issue[Mr Little] with a practising certificate as a barrister with approval to practiceon his own account for the current practising year.High Court decision[28] Powell J considered that the interpretation of the TTMRA and the LCAadvanced by Mr Little could not be sustained.5 In order to practise law in New Zealandtwo types of authorisation are required: admission to the bar and a practisingcertificate. Section 4 of the TTMRA makes it clear that the same two types ofauthorisation are required to take advantage of the mutual recognition provided for bythat Act.6 Separate notification is required for both steps of the registration processthrough the two separate local registration authorities: the Registrar of the High Courtin respect of applications for admission, and the NZLS in respect of applications forpractising certificates.7[29] Mr Little's notice under s 19 of the TTMRA addressed to the Registrar of theHigh Court at Auckland sought admission as a barrister and solicitor of the High Courtof New Zealand. The notice given by the Registrar of the High Court to the NZLSwas notice of the admission of Mr Little as a barrister and solicitor. NZLS was notrequired to treat that notification as an application for a practising certificate.8[30] When Mr Little applied to the NZLS for a practising certificate in July 2020he confirmed, correctly, that he had never had a New Zealand practising certificate asa barrister. And by that time he did not have a current New South Wales practisingcertificate. So he was not able to show that he was at that time "registered in anequivalent occupation in an Australian jurisdiction". Section 17(2) of the TTMRA did5 High Court judgment, above n 1, at [12].6 At [15].7 At [16].8 At [16]–[18].not apply to Mr Little, and he was not entitled to the practising certificate that hesought.9Relevant statutory provisionsLawyers and Conveyancers Act provisions[31] It is clear from the scheme of the LCA that there are two steps involved in theprocess of becoming entitled to practise as a lawyer in New Zealand:(a) admission as a barrister and solicitor of the High Court of New Zealand;and(b) obtaining a practising certificate from the NZLS.[32] Part 3 of the LCA provides for the admission and enrolment of barristers andsolicitors. Section 49(1) provides that a person is qualified for admission as a barristerand solicitor if they are in at least one of the categories in s 49. The first categorycomprises persons who have the qualifications for admission prescribed or requiredby the New Zealand Council of Legal Education.10 The second category comprisespersons who have been admitted as a barrister, solicitor, barrister and solicitor,advocate, or attorney by a senior court of any other country and have qualificationsprescribed or required by the Council of Legal Education for such persons.11 The thirdcategory, applicants under the TTMRA, is provided for in s 49(4) of the LCA:(4) The third category is persons who have been issued with a certificateby a Registrar stating that the candidate has given notice under section19 of the Trans-Tasman Mutual Recognition Act 1997 to the Registraracting as a local registration authority under that Act.[33] This was the category that Mr Little came within when he sought admission asa barrister and solicitor of the High Court of New Zealand in August 2012.9 At [19]–[20].10 Lawyers and Conveyancers Act, s 49(2).11 Section 49(3).[34] On admission a person's name is entered on the roll of barristers and solicitorskept by the Registrar of the High Court.12 The Registrar is required to notify the NZLSof the name of the person admitted and their date of admission.13[35] A person whose name is on the roll can apply to the NZLS for a practisingcertificate. However we note that many people who are admitted as barristers andsolicitors do not apply for practising certificates: this by no means followsautomatically. A holder of a practising certificate is required to pay fees and levies,and to comply with various requirements including requirements relating to CPD.Holders of practising certificates are subject to the disciplinary jurisdiction of theNZLS. The costs and responsibilities that accompany a practising certificate aresignificant: many people who are admitted as barristers and solicitors choose not toassume them.[36] The issue of practising certificates is provided for in Part 2 of the LCA, whichis concerned with restrictions on provision of legal services and conveyancingservices. Section 39 of the LCA provides:39 Issue of practising certificates(1) The New Zealand Law Society, on application made to it by anyperson whose name is on the roll, must issue to that person a practisingcertificate either as a barrister or as a barrister and solicitor.(4) Despite subsections (1) and (2), the society to which the applicationis made—(a) may decline to issue a practising certificate to a person untilthat person has paid to it any fees and levies then payable bythat person under this Act or under any rules made orresolutions passed under this Act; and(b) may refuse to issue a practising certificate to a person—(i) on the ground that the person does not meet thecriteria prescribed by practice rules made undersection 94(a); or12 Section 57.13 Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008, r 11.(ii) on the ground set out in section 41(1), namely, thatthe person is not a fit and proper person to hold apractising certificate; and(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 Act1997, in relation to an individual who seeks the issue of apractising certificate of the kind sought.[37] A practising certificate may authorise a lawyer to practise on their own accountas a barrister and solicitor or as a barrister, or may only permit them to practise as anemployed barrister and solicitor or employed barrister. The ability of a lawyer topractise on their own account is governed by s 30 of the LCA:30 Practice by lawyer on his or her own account(1) No lawyer may commence practice on his or her own account,whether in partnership or otherwise, unless—(a) he or she—(i) meets the requirements with regard to both practicallegal experience and suitability that are imposed byrules made under this Act; and(ii) meets any other criteria that are prescribed by rulesmade under this Act; or(b) he or she is granted by the High Court, on grounds set out inrules made under this Act, leave to practise on his or her ownaccount.(2) A lawyer who is a director or shareholder of an incorporated law firmis deemed to be practising on his or her own account.(3) A lawyer may apply to the High Court for leave to practise on his orher own account.(4) The High Court, in deciding whether to grant an application for leave,must have regard to the matters that are specified in rules made underthis Act in relation to such an application.(5) The High Court may grant leave subject to such conditions (if any) asit thinks proper.(6) A lawyer commits an offence who, in contravention of this section,commences practice on his or her own account.[38] The requirements and criteria that a lawyer must meet in order to commencepractice on their own account for the purposes of s 30(1)(a) of the LCA are prescribedin reg 12 of the Lawyers and Conveyancers Act (Lawyers: Practice Rules) Regulations2008 (LCA Practice Rules Regulations). One of those requirements is that the lawyermust have had a specified minimum amount of recent legal experience inNew Zealand. Regulation 12A creates an exception to that requirement, where theNZLS is satisfied that special circumstances apply.[39] Regulation 13 sets out the grounds on which the High Court may grant leaveto an applicant to practise on their own account:13 High Court's leave to practise on own account(1) For the purposes of section 30(1)(b) of the Act, subclauses (3) to (6)set out the grounds on which the High Court may grant a lawyer whoapplies for it on or after 1 October 2012 leave to practise on his or herown account.(2) Those grounds apply, without limitation, to a lawyer who before1 October 2012 commenced practice on his or her own account as abarrister sole, and who on or after 1 October 2012 applies to theHigh Court for leave to practise on his or her own account as abarrister and solicitor.(3) The lawyer must either—(a) have had at least the required minimum amount of recent legalexperience in New Zealand; or(b) have satisfied the Law Society that he or she is a suitableperson to practise on his or her own account as a barrister andsolicitor or as a barrister sole (as the case may be), havingregard to all relevant considerations, including, withoutlimitation, those in regulation 12(5)(a) to (d).(4) During the 2 years immediately before the date of commencingpractice on his or her own account, the lawyer must have completed,and passed all mandatory assessments in, a course that, when thelawyer began it, was approved by the Law Society as providingadequate instruction and assessment on the required subjects (whichmay be or include all or any of business management, professionalconduct and client care, and trust account management and lawyers'or, as the case may require, incorporated firms', obligations in relationto trust accounts).(5) The lawyer must have satisfied the High Court that he or she is asuitable person to practise on his or her own account as a barrister andsolicitor or as a barrister sole (as the case may be), having regard toall relevant considerations, including, without limitation,—(a) the nature and extent of his or her experience practising inlaw, whether in or outside New Zealand; and(b) if he or she intends to practise as a barrister and solicitor, how(whether in sole practice, as a partner in a firm, or otherwise)he or she intends to practise on his or her own account; and(c) if he or she intends to practise as a barrister, how (whetherwith or without other barristers, employees, or both, orotherwise) he or she intends to practise on his or her ownaccount; and(d) the areas of law in which he or she intends to practise.(6) The lawyer must have paid any levy imposed by the Council of theLaw Society under section 74(1) of the Act and payable by the lawyerunder section 74(2) of the Act in respect of his or her intended practiceon his or her own account.(7) If a lawyer applies to the High Court for leave to practise on his or herown account (whether as a barrister and solicitor, or as a barristersole),—(a) a copy of the application must be served on the Law Society;and(b) the Law Society is entitled to be heard on the application.[40] Regulation 15 sets out a modified set of criteria for Australian legalprofessionals:15 Special rules for legal profession in Australia(1) Despite regulation 12, a person is to be treated as satisfying therequirements and other criteria set out in that regulation if he or shesatisfies the Council of the Law Society that he or she is entitled topractise as a member of the legal profession, in 1 or more Australianjurisdictions, in a manner that is equivalent to, or materially the sameas, practising on one's own account in New Zealand as a barrister andsolicitor, or as a barrister sole, as the case may be.(2) Despite regulation 13(1) to (3), the High Court may grant a personleave to practise on his or her own account as a barrister and solicitor,or as a barrister sole, if the person satisfies the court that he or she isentitled to practise as a member of the legal profession, in 1 or moreAustralian jurisdictions, in a manner that is equivalent to, ormaterially the same as, practising on one's own account inNew Zealand as a barrister and solicitor, or as a barrister sole, as thecase may be.(3) However, subclauses (4) to (6) of regulation 13 apply when anapplication is made to the High Court for leave to be granted inaccordance with subclause (2) of this regulation.The TTMRA[41] Section 5(1) of the TTMRA provides that every law of New Zealand must beread subject to the TTMRA, unless that law or the TTMRA otherwise expresslyprovides. So in the event of any inconsistency, it prevails over the LCA.[42] The TTMRA gives effect to the Trans-Tasman mutual recognition principles inrelation to goods and occupations. The Trans-Tasman mutual recognition principle inrelation to occupations is set out in s 15 of the TTMRA:15 Trans-Tasman mutual recognition principle in relation tooccupations(1) The Trans-Tasman mutual recognition principle in relation tooccupations is that, subject to this Act, an individual who is registeredin an Australian jurisdiction for an occupation is entitled, after givingnotice to the local registration authority for the equivalentoccupation,—(a) to be registered in New Zealand for the equivalent occupation;and(b) pending such registration, to carry on the equivalentoccupation in New Zealand.(2) The entitlement described in subsection (1) arises by virtue of this Act,and no law of New Zealand requiring an individual seeking to carryon that occupation to have any particular qualification before doing soapplies to any individual who is registered in an Australianjurisdiction for an occupation and who gives notice to the localregistration authority for the equivalent occupation in accordance withsection 19.[43] A person who is registered in an Australian jurisdiction for the occupation ofpractice as a barrister is entitled to be registered in New Zealand for the equivalentoccupation after giving notice to the local registration authority for the equivalentoccupation. The meaning of "registration" for the purposes of the TTMRA is set outin s 4 of that Act: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 1 formof authorisation, as described in subsection (1), to carry on anoccupation, registration includes each form of authorisation that anyrelevant local registration authority grants.[44] As explained above, in order to be entitled to practise as a barrister inNew Zealand an individual is required to have more than one form of authorisation:admission as a barrister and solicitor of the High Court, and a practising certificate.So s 4(2) of the TTMRA applies.[45] The TTMRA contemplates that in relation to each of these two forms ofauthorisation, an application must be made to the relevant local registration authority.The term "local registration authority" is defined in s 2(1) of the TTMRA in relationto barristers and solicitors as meaning:(i) in relation to admission as a barrister and solicitor, a Registrar orDeputy Registrar of the High Court; and(ii) in relation to the issue of a practising certificate, the New Zealand LawSociety.[46] The requirement for notice to the local registration authority that is referred toin s 15 of the TTMRA is provided for in more detail in s 19 of the TTMRA:19 Notification to local registration authority(1) An individual who is registered in an Australian jurisdiction for anoccupation may give a written notice to the local registration authorityfor the equivalent occupation seeking registration for the equivalentoccupation on the ground referred to in section 17(1), in accordancewith the Trans-Tasman mutual recognition principle in relation tooccupations.(2) A notice referred to in subsection (1) must—(a) state the occupation for which registration is sought; and(b) state that the applicant is registered for that occupation or anequivalent occupation in an Australian jurisdiction; and(c) state that registration is being sought in accordance with theTrans-Tasman mutual recognition principle in relation tooccupations; and(d) specify all the participating jurisdictions in which theapplicant has registration for equivalent occupations andspecify the occupations; and(e) state that the applicant is not, in relation to any occupationreferred to in paragraph (b) or paragraph (d),—(i) the subject of any preliminary investigations or actionthat might lead to disciplinary proceedings in anyparticipating jurisdiction; or(ii) the subject of any disciplinary proceedings in anyparticipating jurisdiction; and(f) state that the applicant's registration for any occupationreferred to in paragraph (b) or paragraph (d) is neithercancelled nor suspended in any participating jurisdiction as aresult of disciplinary action; and(g) state that the applicant is not otherwise personally prohibitedfrom carrying on any occupation referred to in paragraph (b)or paragraph (d) in any participating jurisdiction, and is notsubject to any special conditions in carrying on any suchoccupation, as a result of criminal, civil, or disciplinaryproceedings in any participating jurisdiction; and(h) specify any special conditions to which the applicant issubject in carrying on any occupation referred to in paragraph(b) or paragraph (d) in any participating jurisdiction; and(i) give consent to the making of inquiries of, and the exchangeof information with, the authorities of any participatingjurisdiction regarding the applicant's activities in the relevantoccupation or occupations or otherwise regarding mattersrelevant to the notice; and(j) be accompanied by any fee payable under section 39 orsection 40.(3) The applicant must, in relation to a notice referred to in subsection(1),—(a) annex to it either—(i) a document that is either the original or a facsimilecopy of the instrument evidencing the applicant'sexisting registration; or(ii) if no such instrument exists, sufficient information toidentify the applicant and the applicant's existingregistration; and(b) if a document accompanies a notice under paragraph (a)(i),certify in the notice that the document is either the original ora facsimile copy of the instrument evidencing the applicant'sexisting registration; and(c) verify the statements and other information in the notice bystatutory declaration.(4) The local registration authority may, at its discretion, permit a noticereferred to in subsection (1) to be amended after it is given.[47] Section 20 of the TTMRA requires that within the period of one month after anotice is given under s 19 the local registration authority must either grant registrationunder s 17(1), or postpone the grant of registration in the circumstances prescribed ins 21 of the TTMRA, or refuse registration on the grounds prescribed in s 22.[48] Section 17 of the TTMRA confirms that a person is entitled to registrationunder the TTMRA whether or not such registration is expressly provided for in theNew Zealand law governing registration in a particular occupation. And it protectsthe continuing registration of a person who has become registered under the TTMRA,even if that person subsequently ceases to be registered in the Australian jurisdiction:17 Entitlement to registration and continued registration(1) For all the purposes of the law of New Zealand, every law ofNew Zealand dealing with registration is deemed to include as aground of entitlement to registration and renewal of registration,subject to the provisions of this Act, the ground that an individualseeking registration or renewal of registration is registered in anequivalent occupation in an Australian jurisdiction.(2) An individual to whom registration has been granted on the groundreferred to in subsection (1)—(a) is entitled to renewal of registration in accordance with thelaw dealing with registration of that kind; and(b) is not disentitled to registration or renewal of registrationsolely because the individual ceases to be registered in anequivalent occupation in an Australian jurisdiction; and(c) keeps or loses his or her entitlement to registration or renewalof registration in accordance with any law dealing withregistration of that kind, to the extent that any such law—(i) applies equally to all individuals carrying on orseeking to carry on the occupation under the law ofNew Zealand; and(ii) does not require an individual carrying on or seekingto carry on that occupation under the law ofNew Zealand to have any particular qualificationbefore doing so.TTMRA Admission Regulations[49] As already mentioned, the form in which a s 19 notification must be given tothe High Court is set out in the Admission Regulations issued by the New ZealandCouncil of Legal Education. Regulation 2 provides:2. Notice(1) Every applicant shall give to the Registrar written notice inaccordance with section 19 of the TTMRA.(2) The notice shall be in duplicate.(3) The notice must be in the form set out in Schedule 1 of theseregulations.(4) The Registrar shall forthwith send the duplicate copy of thenotice to the Executive Director of the Law Society.[50] Regulation 3 of the Admission Regulations requires the applicant to providean affidavit in support in the form set out in sch 2. The affidavit must verify thestatements in the notice and attach, among other things, "the instrument evidencing[the applicant's] existing registration in Australia" or sufficient information toestablish that existing registration.[51] Schedule 1 of the Admission Regulations requires the s 19 notice to read asfollows:TAKE NOTICE that I [full name] of [full address], [occupation] hereby givenotice that I seek registration for the occupation of barrister and solicitor ofthe High Court of New Zealand on the ground that I am entitled to be soregistered in accordance with section 17 of the Trans-Tasman MutualRecognition Act 1997. I certify that:(1) I am currently registered to practise as a [ Barrister and Solicitor oras appropriate] of the States[s] of [name of participatingjurisdiction(s)], Australia, and am therefore registered in anequivalent occupation in [a] participating jurisdiction[s] for thepurposes of section 19 of the Trans- Tasman Mutual Recognition Act1997.(2) I seek admission in New Zealand under section 19 of the Trans-Tasman Mutual Recognition Act 1997 in accordance with the Trans-Tasman mutual recognition principle in relation to occupations.(3) The State[s] of [name or participating jurisdiction(s)] is[are] the[only] participating jurisdiction[s] in which I have registration as a[Barrister and Solicitor or as appropriate].(4) I am not, as a [Barrister and Solicitor or as appropriate] of theState[s] of [name of participating jurisdiction(s)], the subject of anypreliminary investigations or action that might lead to disciplinaryproceedings in any participating jurisdiction or the subject of anydisciplinary proceedings in any participating jurisdiction.(5) My practising certificate as a [Barrister and Solicitor or asappropriate] of the State[s] of [name of participating jurisdiction(s)]has not been cancelled or suspended in any participating jurisdictionas a result of disciplinary action.(6) I am not otherwise personally prohibited from carrying on my practiceas a [Barrister and Solicitor or as appropriate] of the State[s] of[name of participating jurisdiction(s)] and I am not subject to anyspecial conditions in carrying on my occupation as a result of criminal,civil, or disciplinary proceedings in any participating jurisdiction.(7) I am not subject to any special conditions in carrying on myoccupation as a [Barrister and Solicitor or as appropriate] of theState[s] of [name of participating jurisdiction(s)].(8) I hereby consent to the making of enquiries and the exchange ofinformation with the authorities of any participating jurisdictionregarding my activities as a [Barrister and Solicitor or as appropriate]of the State[s] of [name of participating jurisdiction(s)] or otherwiseregarding matters relevant to this notice.Submissions of Mr Little on appeal[52] Mr Little's argument before this Court focused on the legal effect of the steptaken by the Registrar of the High Court at Auckland in accordance with reg 2(4) ofthe Admission Regulations in August 2012 in sending his duplicate s 19 notice to theNZLS. Mr Little emphasised that it was a duplicate notice, not merely a copy.Mr Little was entitled to a practising certificate at that time. The service of the noticeon the NZLS, Mr Little submitted, crystalised his then-existing right to be issued witha practising certificate. It was up to the NZLS to do something about that notice unders 20 of the TTMRA. In the absence of any proper reason to postpone the grant ofregistration, or refuse registration, the NZLS was obliged to grant registration. It wasthen the responsibility of the NZLS to issue any necessary invoice for fees payable inconnection with the issue of the practising certificate.[53] Mr Little also emphasised that the form of s 19 notice to the Registrarprescribed by the Admission Regulations deals not only with the applicant's admissionin Australia, but also requires the applicant to confirm that his practising certificatehad not been cancelled or suspended in any participating jurisdiction, and that they arenot subject to any special conditions in carrying on their occupation. He submittedthat this single s 19 notice is designed to operate as notice to both the Registrar of theCourt and the NZLS. That, he said, is why it requires the applicant to make statementsrelevant to their entitlement to practise, rather than to admission as such.The transmission to the NZLS of the duplicate s 19 notice therefore satisfies therequirement that a s 19 notice be given by the applicant to the NZLS.[54] In August 2012 the Registrar of the High Court had decided that therequirements of s 17 had been complied with. The Registrar's certificate to that effectwas provided to the Judge, who admitted Mr Little as a barrister and solicitor of theHigh Court. The only remaining step — issue of a practising certificate by the NZLS— should have followed. No separate application to the NZLS was required for apractising certificate, after these steps had been taken.[55] Mr Little noted that the NZLS did in fact open a file, allocate him a "[p]ersonID 029002" and include him in its Register.[56] Mr Little went on to submit that he was an individual to whom registration hadbeen granted on the ground referred to in s 17(1) of the TTMRA — that is, he wasregistered in an equivalent occupation in an Australian jurisdiction. Section 17(2)(b)then applied, with the result that he was not disentitled to registration or renewal ofregistration solely because he ceased to be registered in an equivalent occupation inan Australian jurisdiction.[57] In response to questions about whether this approach would circumvent therequirements that apply to New Zealand lawyers under the LCA in relation tomaintaining their currency in the practice of law, Mr Little SC submitted that the onlycurrency requirements are found in s 31(3) of the LCA, which precludes a lawyer whohas not practised for more than 10 years on their own account from resuming practiceon their own account until they have received adequate instruction to the satisfactionof the Council of the NZLS in the duties of a barrister and solicitor or of a barrister, asthe case may require. Mr Little had not been out of practice for more than 10 years,so this requirement did not apply to him.Submissions of NZLS on appeal[58] Mr Collins, counsel for the NZLS, supported the decision below for the reasonsgiven by the Judge.[59] In response to questions from the Court, Mr Collins accepted that Mr Littlewas entitled to be issued a practising certificate as a barrister, subject to meeting thecriteria set out in s 39(4) of the LCA. But, Mr Collins said, he is not entitled to apractising certificate that entitles him to practise on his own account because he doesnot meet the requirements of s 30 of the LCA and he does not meet the requirementsthat apply under s 17 of the TTMRA in relation to an individual who seeks the issueof a practising certificate of that kind. Section 39(4)(c) expressly provides that despites 39(1), the NZLS may refuse to issue a practising certificate to a person who does notmeet the requirements that apply under s 17 of the TTMRA in relation to an individualwho seeks the issue of a practising certificate of the kind sought.[60] In response to questions, Mr Collins accepted that it would be open to Mr Littleto apply to the High Court under s 30(3) of the LCA for leave to practise on his or herown account. But he would need to satisfy the criteria for such leave set out in theLCA Practice Rules Regulations.DiscussionA two step process[61] It is in our view very clear that there are two steps in the process by which aperson becomes entitled to practise as a barrister on their own account in New Zealand,both under the LCA and under the TTMRA.1414 See also Re Carter Dabas [2019] NZHC 1940 at [9].[62] First, the individual must be admitted as a barrister and solicitor of theHigh Court. This step requires an application to the High Court for admission. If thatapplication is successful, the individual's name is entered on the roll of barrister andsolicitors.[63] Second, once the person's name is on the roll, they must apply for and obtaina practising certificate issued by the NZLS that authorises them to practise as abarrister on their own account. This step involves a separate application to the NZLSwhich addresses the distinct criteria that a person must meet in order to be permittedto practise on their own account under s 30 of the LCA and under the LCA PracticeRules Regulations.[64] The LCA prescribes different requirements and different processes that applyat each of those steps for domestic applicants.[65] The TTMRA enables a person who is registered in an equivalent occupation inan Australian jurisdiction to complete each of these steps without needing to complywith the same requirements that apply to domestic applicants. But it does not dispensewith these two distinct steps. To the contrary, the need for two separate authorisationsto be obtained from two separate local registration authorities in connection withpractice as a lawyer is expressly contemplated by the definition of the term"registration" in s 4 of the TTMRA, and by the definition of the term "local registrationauthority" in s 2 of that Act. Sections 17 and 19 of the TTMRA apply separately toeach step.[66] So for example a person who is admitted as a solicitor in an Australianjurisdiction, but who does not hold a practising certificate in that jurisdiction, couldapply for admission in New Zealand under the TTMRA. But they could not rely onthe TTMRA to obtain a practising certificate from the NZLS.[67] And even where an applicant for admission as a barrister and solicitor of theHigh Court of New Zealand under the TTMRA does hold a practising certificate inAustralia, they will not always want to incur the costs and assume the obligationsassociated with holding a practising certificate in New Zealand. A person who seeksadmission under the TTMRA can choose not to seek a practising certificate at thattime, in the same way that many local applicants for admission choose not to do soimmediately upon admission.[68] The requirement in the Admission Regulations that the Registrar of theHigh Court send a duplicate of the s 19 notice given to the Court to the NZLS doesnot operate as a substitute for the individual applicant giving a notice under s 19 to theNZLS seeking the issue of a practising certificate, for four reasons.[69] First, the s 19 notice prescribed by the Admission Regulations is not framed asa notice seeking the issue of a practising certificate. It expressly seeks "registrationfor the occupation of barrister and solicitor of the High Court of New Zealand".15It does not require the applicant to specify whether they seek a practising certificateas a barrister and solicitor, or as a barrister. It does not address the question ofentitlement to practise on one's own account. We do not accept the submission thatthe form prescribed by the Admission Regulations must be intended to operate as anapplication for a practising certificate: it omits critical information that would berequired for that purpose. Nor is Mr Little right to say that an applicant's practisingcertificate must be attached to the notice or to the accompanying affidavit.The applicant must attach information relating to the applicant's existing registrationin Australia: but the registration that is relevant in that context is admission as abarrister and/or solicitor.[70] Second, the transmission of the duplicate s 19 notice by the Registrar of theHigh Court to the NZLS serves to inform the NZLS that the person has soughtadmission as a barrister and solicitor of the High Court of New Zealand. It is notexpressed to be an application for a practising certificate. It does not come from theindividual applicant. It is not accompanied by the fees and levies that are payable forthe issue of a practising certificate. The requirement to file a duplicate notice in theAdmission Regulations, and the provision for that duplicate to be sent to the NZLS bythe Registrar, do not operate as a substitute for the requirement in s 17 of the TTMRA15 Admission Regulations, above n 3, sch 1.that an applicant for a practising certificate must send an application for that form ofregistration to the relevant local registration authority: in this case, the NZLS.[71] Third, it would be inconsistent with the statutory regime governing the legalprofession in New Zealand for every applicant for admission in reliance on theTTMRA to be automatically treated as also applying for a practising certificate, withthe costs and obligations that entails. Applicants for admission who rely on theTTMRA have a choice about whether to go on to seek a practising certificate, andabout when to do so. It would be curious in the extreme if applicants for admissionwho rely on the TTMRA were deprived of that choice, unlike other applicants foradmission as a barrister and solicitor.[72] Fourth, some applicants for admission in reliance on the TTMRA will not infact hold a practising certificate in Australia, and will not be entitled to seek one inNew Zealand in reliance on the TTMRA. It would make no sense to treat suchapplicants as making an application that they are not entitled to make, and are notintending to make.The effect of the steps taken by Mr Little in August 2012[73] In August 2012 Mr Little completed the first of these two steps. He did so inreliance on the TTMRA, and on the specific provisions in the LCA concerningapplicants who rely on the TTMRA. He was entitled to be admitted as a barrister andsolicitor of the High Court of New Zealand. He was so admitted.[74] However if Mr Little wished to obtain a practising certificate of any kind atthat time, he needed to apply to the NZLS for that practising certificate. As explainedabove, an application for a practising certificate is a separate step that requires aseparate notice to be given to the NZLS under s 19 of the TTMRA. He was free todecide not to apply for a practising certificate, and incur the associated costs andobligations. That appears to be the choice he made. He did not communicate with theNZLS to ask for a practising certificate to be issued, or take any follow-up action whennone was issued. He did not pay any fees in 2012, or in subsequent years. He did notcomply with other regulatory requirements such as submission of CPD returns.[75] Mr Little could have applied for a practising certificate in August 2012.He says that he had satisfied all the requirements that applied to him as a Readerbarrister by 21 August 2012. It appears to follow from this that if Mr Little had soughta practising certificate entitling him to practise on this own account immediately afterbeing admitted as a barrister and solicitor of the High Court of New Zealand on17 August 2012, he would not have been entitled to such a practising certificate. But ifhe had applied shortly afterwards, he would have been so entitled. Be that as it may,he made no such application. The NZLS was not required to take any action unders 20 of the TTMRA at that time.[76] Nor can we accept the submission that Mr Little's right to a practisingcertificate "crystalised" in August 2012, with the result that he could make anapplication at any subsequent time on the basis of the entitlement that he then had.It is clear from the scheme of the TTMRA that a registration authority must apply thecriteria in the TTMRA at the time the application is made to it. There is nothing in thescheme of the TTMRA or the LCA that suggests that entitlements to registration cancrystalise at some earlier date, which could be many years before an application ismade for a practising certificate to the relevant local registration authority.The effect of the steps taken by Mr Little in 2020[77] At the time Mr Little applied for a practising certificate in July 2020 he wasnot registered in an equivalent occupation in New South Wales. He was not entitledto practise as a barrister on his own account in that jurisdiction. The Trans-Tasmanmutual recognition principle did not apply to entitle him to registration with that kindof practising certificate. Consistent with the TTMRA, s 39(4)(c) of the LCA expresslyauthorised the NZLS to refuse to issue a practising certificate entitling Mr Little topractise on his own account in New Zealand in circumstances where he did not meetthe requirements that apply under s 17 of the TTMRA in relation to a person seekingthe issue of a practising certificate of that kind.[78] It follows that in July 2020 Mr Little was not entitled to be issued with apractising certificate entitling him to practise on his own account under the TTMRA.Rather, Mr Little was in the same position as any other person who had been admittedas a barrister and solicitor of the High Court of New Zealand, and whose name hadbeen entered on the roll, but who had not previously held a practising certificate in thiscountry. He was entitled to be issued with a practising certificate as an employedbarrister, under s 39(1) of the LCA. He could also apply to the High Court unders 30(3) of the LCA for leave to practise on his or her own account. That applicationwould be determined having regard to the grounds prescribed in the LCA PracticeRules Regulations.[79] The appeal must therefore be dismissed.Result[80] The appeal is dismissed.[81] Mr Little must pay costs to the NZLS for a standard appeal on a band A basis,with usual disbursements.Solicitors:Nicholls Law Ltd, Auckland for AppellantNew Zealand Law Society | Te Kāhui Ture o Aotearoa, Wellington for Respondent