Re Scholer

• Jurisdiction: New Zealand
• Judgment Date: 03 October 1955
• Date: 03 October 1955
• Court: Supreme Court

New Zealand, Wellington Supreme Court.

(McGregor J.)

In re Scholer.

Aliens — Position of — Exercise of a Profession — Admission as Barrister — Ability to Take Oath of Allegiance — Nature of Allegiance Owed by Alien.

The Facts.—In 1951 Scholer, a Dutch national, went to New Zealand where he resided from then on, without, however, becoming naturalized as a British subject. He applied to be admitted as a barrister in New Zealand, and his application was opposed on the basis that an unnaturalized alien is not “a fit and proper person” to be admitted as a barrister.

Held: that the applicant, being an alien, was not “a fit and proper person” to be admitted as a barrister.

The Court said: “There is no question that the applicant is both duly qualified by examination and of good character; but the question is whether, being an unnaturalized alien, he is ‘a fit and proper person to be admitted’ as required by s. 6 of the Law Practitioners Act, 1931.

“The applicant is of Dutch nationality. He served in the former Netherlands East Indies for more than twenty-five years as a member of the judiciary, and subsequently as a legal adviser to a State department; and, later, he practised privately in Holland. He came to New Zealand in 1951 and has resided in this country since that date; but he has not, and, as I understand the position, does not intend to, become a naturalized British subject.

“It is clear that the onus is on the applicant to satisfy the Court that he is a fit and proper person to be admitted: In re Manilal Maganlal, DoctorUNK ([1921] N.Z.L.R. 1059; [1929] G.L.R. 598). It was held in In re HeytingUNK ([1928] N.Z.L.R. 233; [1928] G.L.R. 174), that an alien was not entitled to be admitted as a solicitor. As I read the judgment of the Court in that case, delivered by Sir Charles Skerrett C.J., the following reasons can be deduced:

“(1) That the New Zealand Court occupies a similar position in New Zealand to the High Court of Justice in England, and is largely guided by the principles and conventions of that Court.

“(2) That the Law Practitioners Act, 1931, did not intend to destroy or remove any common-law disability relating to admission as practitioners existing at the date of the constitution of the Colony.

“(3) That the disability of an alien to be admitted as a solicitor was recognized in England by long continued usage. As is stated, from Lord Coke's time and for some 300 years afterwards, there is no record of an alien being admitted as a solicitor. Reliance was placed...