Zhao v The New Zealand Law Society

JurisdictionNew Zealand
JudgeKÓS
Judgment Date24 August 2012
Neutral Citation[2012] NZHC 2169
Docket NumberCIV 2012-404-2777
CourtHigh Court
Date24 August 2012

Under the Judicature Amendment Act 1972

In The Matter Of an application for judicial review

BETWEEN
Richard Zhao
Plaintiff
and
The New Zealand Law Society
Defendant

[2012] NZHC 2169

judges:

Stephen Kós J

CIV 2012-404-2777

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Application for judicial review of a the respondent Law Society's decision to convene a meeting of the Fitness for Practice Committee without first informing the plaintiff practitioner of the interviewers' reasons for recommending his application under s30 Lawyers and Conveyancers Act 2006 (“LCA”) to practise on his own account be declined — whether application for review was premature because a final decision had not been made and because s30(3) LCA (application to HC to practise on own account) provided a parallel process — whether assurance that plaintiff would be provided with reasons for refusing approval created a legitimate expectation.

counsel:

F C Deliu for Plaintiff

P N Collins for Defendant

F C Deliu, PO Box 68559, Auckland for Plaintiff

P N Collins, Auckland for Defendant

JUDGMENT OF THE HON JUSTICE KÓS
Introduction
1

A barrister applies to the Law Society to practise as a solicitor, on his own account. He attends an interview arranged by the Society. He answers questions on trust accounting and related matters poorly. The interviewers also take account of a number of complaints against him, although these have been resolved by standards committees on the basis that no further action is required. The interviewers recommend against approval of the application. As is normal, the application is then referred to the Society's Fitness for Practice Committee. The applicant asks to see the interviewers' reasons for recommending against him. And to be able to address the Committee. Someone from the Law Society apparently agrees to those requests. But nothing is done. The Committee is set to convene without prior reasons being given, and without an invitation to attend being extended.

2

The day the Committee is due to convene, the applicant issues these proceedings. He says the adverse recommendation by the interviewers, and the convening of the Committee without prior reasons or an invitation to appear, are unlawful administrative acts. A wide array of grounds for judicial review are advanced. Natural justice and legitimate expectation are at the vanguard.

3

The Society says the application is premature. No final decision has been made. And in any case, the statute provides a parallel process. The applicant may, if dissatisfied with the Society's approach, apply direct to the Court for approval to practice on his own account.

4

The issues arising in this case are listed at [64]. A summary of my conclusions is at [102]. But, first, the facts in more detail.

Facts
5

Mr Zhao was admitted to the bar on 13 February 2009. Prior to admission he had worked for a year as a tax accountant at Deloitte. Then he became a law clerk at Equity Chambers. He was employed then by Mr Frank Deliu, his counsel in the present proceedings. He moved with Mr Deliu to a new set, Amicus Chambers, in March 2009. Mr Zhao's affidavit annexes a printout from the Amicus Chambers website. It states:

Richard is one of the founding members of the firm and leads the firm's Asian department. He previously worked for the litigation department of a top law firm in New Zealand as well as working as a tax specialist in one of the big four accounting firms.

The reference to “the firm” is apparently a reference to Amicus Chambers. It is an incorporated law firm for the purposes of the Lawyers and Conveyancers Act 2006 (Act). As for his work for the litigation department of a “top law firm”, Mr Deliu told me that was not in fact as a lawyer. The website text suggests otherwise. It is misleading.

6

In preparation for practice on his own account Mr Zhao successfully completed the “Stepping Up” course run by the Society in July 2011. He passed the Trust Account Supervisor training programme in February 2012. At that point he had been admitted for three years.

Application

7

On 27 February 2012 Mr Zhao sought approval to practise on his own account. That is governed by s 30 of the Act. 1 He filed an application in the form prescribed by the Society. After setting out his background, the application states that his intention is to practice in areas of immigration, family, and taxation, criminal and civil litigation. He also stated his intention to practise as Richard Zhao Lawyers Limited, an incorporated law firm of which he was sole shareholder and director.

8

The Society's form was somewhat out of date. It required the applicant to declare whether he had completed the “Flying Start” programme. That was the predecessor to the “Stepping Up” programme which Mr Zhao had passed in July 2011. There being no reference to the “Stepping Up” programme, Mr Zhao ticked that he had completed the “Flying Start” programme. He also ticked that he had completed the Trust Account Supervisor training programme.

9

The form also contained a series of questions relating to whether the applicant was a fit and proper person. Some of the questions were equally applicable to New Zealand and overseas. Others, were strictly confined to overseas jurisdictions. So, for instance, one question asked:

Are you the subject of current disciplinary action in another profession or occupation in New Zealand or a foreign country …

Exactly what “disciplinary action” means is unclear. But the question applies both to New Zealand and foreign jurisdictions. Then another question asked:

Have you been or are you the subject to an unresolved complaint under a corresponding foreign law or a current investigation charge or order by a regulatory or disciplinary body for persons engaged in a legal practice under a corresponding foreign law?

So that question appears confined to foreign jurisdictions. The form, it may be noted, does not actually address complaints in the New Zealand legal profession at all. Presumably the Society would look to its own records for that information.

10

There were 13 such questions in all. The form says that if the applicant has answered “yes” to any question, he or she has to provide detailed information on a separate sheet. Mr Zhao ticked all 13 questions “no”.

11

On 2 March 2012 the Society acknowledged receipt of Mr Zhao's application. The acknowledgment noted that he had ticked the “Flying Start” box as having been attended and asked for a copy of his certificate. It went on to say:

The “Flying Start” course has now been replaced by the “Stepping Up” course which includes an exam. The “Flying Start” course unfortunately did not. Therefore, please find attached the exam paper you are required to answer. The exam is compulsory even if, as in your case, the “Trust Account Supervisor” course was attended.

Mr Zhao was required to return the exam by 30 March 2012. The Society also advised Mr Zhao that he was scheduled for an “interview” on 13 April 2012.

12

The interview process is not referred to in the Society's website page that discusses such applications. Rather, that website says:

Applications to practise on your own account are initially processed by branch offices. Send the completed application form, the original referee form/s, and the payment to your nearest branch office. After processing your application, the branch will make a recommendation to the national office in each case. Applications will be dealt with administratively by the Society. If any issues arise, they will be referred to the Fitness for Practice Committee.

The website also states:

If your application is declined, you may apply to the High Court for leave to practise on your own account.

13

Three days later, on Monday 5 March 2012 Mr Zhao replied to the Society. As he had in fact completed the “Stepping Up” course, he did not think he needed to complete the exam. He attached an email sent to him advising of his enrolment in the “Stepping Up” course. But he did not send the certificate of completion. He had lost it. He asked if the Society could obtain a copy itself. It should be noted that the guidance notes annexed to the application form state clearly that an incomplete application will not be considered until all the required information and documentation has been received.

14

Mr Zhao took no issue with the proposed interview. He simply asked if it might be arranged earlier than 13 April. Otherwise he would attend that day. He had some further questions. First, when he could expect to receive approval? Secondly, what was the quickest time in which he could set up his own practice? Thirdly, he asked some questions about practical procedures in relation to setting up his trust account, and who he needed to contact from the Law Society about that. It follows from that that it appeared he intended to operate such an account. 2

15

On 12 March 2012 the Society responded. It confirmed that Mr Zhao did not need to undertake an exam because he had attended the “Stepping Up” course. It explained who he should contact at the Society to obtain a replacement “Stepping Up” certificate. It was for him to obtain it. The Society said it required it as proof that the exam had been passed. It answered as best it could the questions that Mr Zhao had about starting his practice. It explained that the practical procedures for opening a trust account could be discussed with any standard trading bank. But the Society's representative went on to say, “I have spoken with our inspectors and it is possible to provide you with a practice check-list at the time of your interview”.

16

A month later the Society still had not received Mr Zhao's “Stepping Up” certificate. On Tuesday 10 April 2012, just three days before the intended interview, the Society emailed Mr Zhao. It said:

Without proof that you have attended the course and passed the exam, your...

To continue reading

Request your trial
11 cases
  • Newton v Family Court at Auckland
    • New Zealand
    • Court of Appeal
    • 24 May 2022
    ...to relief in judicial review proceedings because their rights were not affected. She emphasised the findings of the High Court in Zhao v New Zealand Law Society that the conduct of the NZLS interviewers in fitness-for-practice examinations was amenable to review because the interviewers' in......
  • ANZ Sky Tours Ltd v New Zealand Tourism Board Trading as Tourism New Zealand
    • New Zealand
    • High Court
    • 30 April 2019
    ...where preliminary steps have been reviewable as capable of altering rights include Hot Holdings Pty Ltd v Creasy & Ors, 27 and Zhao v New Zealand Law Society. 28 In Hot Holdings, the High Court of Australia held that a preliminary assessment and recommendation by a mining warden had a disce......
  • Newton v Family Court at Auckland
    • New Zealand
    • Court of Appeal
    • 24 May 2022
    ...their rights, recognition of the breach, and to assist with ensuring future compliance by LFCs. 138 139 Zhao v New Zealand Law Society [2012] NZHC 2169, [2012] NZAR 894 at See Air Nelson Ltd v Minister of Transport [2008] NZCA 26, [2008] NZAR 139 at [60]–[61]. [274] We need not separately s......
  • Smith v Brown
    • New Zealand
    • High Court
    • 27 September 2013
    ...Amendment Act 1972, s 4. 23 Section 3. 24 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 . 25 Zhao v New Zealand Law Society [2012] NZHC 2169 26 Siemer v Heron , above n 13. 27 Philip A Joseph Constitutional & Administrative Law in New Zealand (3rd ed, Brookers, Wellington, 2007. 28 Comb......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT