Lincoln v New Zealand Law Society [2018] NZHC 2641 (10 October 2018)

Last Updated: 16 October 2018

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000462 [2018] NZHC 2641

BETWEEN	RICHARD LINCOLN Applicant
AND	NEW ZEALAND LAW SOCIETY Respondent

Hearing:	9 October 2018 (by way of telephone conference)
Appearances:	Applicant R Lincoln Appeared in Person P N Collins for Respondent
Judgment:	10 October 2018

_{REASONS FOR DECISION OF GENDALL J}

[1] Yesterday, 9 October 2018, the applicant, pursuant to an application under r 5.21 High Court Rules, sought a more explicit pleading or further particulars of certain matters noted in the respondent’s notice of opposition to his application for admission as a barrister and solicitor of the High Court of New Zealand.

[2] Having heard submissions from both the applicant personally and from

Mr Collins for the respondent, and having considered all the material which was placed before the Court by the parties, I determined that the application seeking a more explicit pleading and/or further and better particulars was not appropriate here and it was dismissed. In doing so I indicated that my reasons for that decision would follow. I now give those reasons.

[3] The applicant has applied to be admitted as a barrister and solicitor of the High

_{Court pursuant to s 52(1) of the Lawyers and Conveyancers Act 2006 (the Act) and}

LINCOLN v NEW ZEALAND LAW SOCIETY [2018] NZHC 2641 [10 October 2018]

generally pursuant to the Lawyers and Conveyancers Act (Lawyers: Admission) Rules

2008 (the Rules). The application has been brought in the absence of a certificate of character from the New Zealand Law Society, as provided for in r 5 of the Rules.

[4] Rule 6(4) of the Rules therefore applies here. Under this rule the respondent

_{must :}

...serve on the candidate a notice of opposition that sets out the grounds on which the application for admissions is opposed, along with any affidavits in support of the notice...

[5] This is because the application to the Court here does not include the certificate of character from the respondent required and provided for in the Act and the Rules.

[6] In addition, r 6.4(b) goes on to provide that, in this situation:

(b) The candidate’s application must be determined at a hearing, and the

_{Law Society mu st be represented at that hearing.}

(emphasis added.)

[7] Pursuant to these provisions, on 23 July 2018 the respondent filed its notice of opposition to this application on the following stated grounds:

(a) It is required to do so by r 6(4) of [the Rules] in circumstances where the applicant elected to make this application before the respondent had completed its determination of his application for a certificate of character under r 5(1); and

(b) Appearing in the affidavit of Sarah Laurie Inder sworn on behalf of the respondent.

[8] That supporting affidavit from Ms Inder, sworn 19 July 2018, was also filed in this Court on 23 July 2018.

[9] In the 19 July 2018 affidavit Ms Inder deposed:

21. PAC (the Law Society’s Practice Approval Committee) considered that the following matters were relevant to the opposition by the New Zealand Law Society to the originating application for admission:

(a) The applicant’s Facebook postings and his dealings with the police officer and his wife which were inappropriate for a

person of a mature age seeking to be admitted to the legal profession;

(b) The impression that he did not appreciate that his conduct was inappropriate, or show any remorse or insight, despite being prompted by the interviewers to do so;

(c) His harassment of the police officer’s wife which showed a significant lack of judgment, and the impression that his explanations to the interviewers were unconvincing and implausible;

(d) The way in which the applicant had promoted himself as providing legal services was thought to be misleading, suggesting to the public that he was a practising member of barristers’ chambers, possibly breaching s 22 of the Act;

(e) His character references were minimal in content and did not outweigh the legitimate concerns about his character, prompted by the material disclosed in Mr Mackenzie’s letter.

[10] This reference to the PAC related to a telephone conference meeting of this Committee convened to consider in part the applicant’s position. Ms Inder attended that meeting, having prepared a summary paper for it and then recorded the Minutes of the meeting. Her comments at para 21 of her affidavit, noted above, outline matters which had been recorded from the minutes.

[11] In his present application for a more explicit pleading and/or further and better particulars, the applicant directs his enquiry particularly to those matters noted above recorded in Ms Inders’ affidavit.

[12] The substantive hearing of the application by the applicant for admission here is set down for hearing on 7 November 2018. As I understand the position, Ms Inder is required for and available for cross-examination at this hearing.

[13] In addition, a not inconsiderable amount of material relating to the respondent’s considerations in this matter has been provided both to the applicant and the Court.

[14] The present further particulars application is brought pursuant to r 5.21 of the

High Court Rules which relevantly provides:

5.21 Notice requiring further particulars or more explicit pleading

(1) A party may, by notice, require any other party –

(a) to give any further particulars that may be necessary to give fair notice of –

(i) the cause of action or ground of defence; or

(ii) the particulars required by these Rules; or

(b) to file and serve a more explicit statement of claim or of defence or counterclaim.

(2) A notice must indicate as clearly as possible the points on which the pleading is considered defective.

(3) If the party on whom a notice is served neglects or refuses to comply with the notice within five working days after its service, the Court may, if it considers that the pleading objected to is defective or does not give particulars properly required by the notice, order a more explicit pleading to be filed and served.

(4) Even if no notice has been given under this Rule, the Court may on its own initiative order a more explicit pleading to be filed and served.

[15] Essentially, here, the applicant is not requiring a more explicit notice of opposition to be filed by the respondent but, rather, he seeks further particulars of those matters in Ms Inders’ affidavit I note above.

[16] On this issue of further particulars, McGechan on Procedure at para HR5.21.01 states:

HR5.21.01 Purpose of Particulars

Particulars are of pleadings but they are not themselves pleadings, and an opposing party does not plead to particulars (just as a defendant does not plead to the prayer for relief). Particulars serve a different function from pleading; their role is to illuminate, but that is all...

Particulars help to ensure that the pleading states a clear issue and informs the opposite party of the case to be met or defence to be argued. A party’s pleading is not simply the minimum which the opposing party needs so as to be able to plead...It is intended to:

“[S]upply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading.”

[17] The affidavit of Ms Inder here, as I see it, however, is essentially one about process and it includes the production of a range of accompanying documents as exhibits. At para 21 of her affidavit, Ms Inder as the Secretary to the PAC is simply passing on its comments concerning matters which were thought to be relevant to the respondent’s opposition to the application by the applicant. It follows the relevant extract from the transcript of the Minutes of the PAC meeting which was annexed to Ms Inders’ affidavit, along with a summary paper she had prepared for the PAC meeting.

[18] As I see it, all that adequately informs the applicant of the grounds of opposition which the respondent is required to present pursuant to r 6.4 of the Rules.

[19] Furthermore, the applicant here is in a position where he can place before the Court any evidence he may choose relating to his character or his fitness for admission to persuade the Court as to his suitability for admission under the Act.

[20] I am satisfied that the grounds put forward by the respondent in its notice of opposition and as clarified in Ms Inders’ affidavit are clear and no further particulars are properly required.

[21] It was on this basis that this application by the applicant was dismissed.

[22] That said, the substantive hearing date for this matter scheduled for

7 November 2018 is confirmed together with the earlier timetabling directions made in this proceeding.

...................................................

Gendall J

Solicitors:

Paul Collins, Barrister, Christchurch

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