The Court of Appeal's decision in Health New Zealand v Healey begins from an orthodox statutory position, but its defence of the professional barrier deserves scrutiny,

Under the Lawyers and Conveyancers Act 2006, appearing as an advocate for another person in a court is ordinarily reserved to lawyers holding a current practising certificate. The legislation allows exceptions where representation is authorised by statute or permitted by the Court.

Employment law provides one such exception. The Employment Relations Act 2000 allows non-lawyer advocates to represent parties in the Employment Relations Authority and the Employment Court. But that statutory authority does not automatically follow an advocate when proceedings reach the Court of Appeal.

That is the legal framework within which Elizabeth Lambert sought permission to continue representing Noeline Healey.

There is little difficulty with the Court's description of that framework.  The more questionable part of the judgment comes in paragraphs [4] to [11], where the Court moves beyond explaining the law and attempts to justify it.

The Court invokes the complexity of senior court litigation, professional competence, continuing education, ethical obligations, disciplinary control, efficiency, protection of litigants and the public interest as reasons why representation should ordinarily remain restricted to practising lawyers.

Some of those concerns are legitimate.  But taken together, the reasoning presents a much tidier relationship between practising status, competence and efficient justice than either the facts of this case or the judiciary's own recent work on access to justice comfortably supports.

Most obviously, the Court's reliance on complexity sits remarkably badly with the person whose application was actually before it.

The Complexity Argument Barely Fits The Facts

At paragraph [5], the Court identifies the complexity of law and court procedure, particularly in the senior courts, as an important justification for requiring professional legal representation.

At paragraph [6], it refers to earlier authority for the proposition that unqualified people are unlikely to provide much assistance to an appellate court, especially where questions of law are involved.

As a general proposition, there is nothing controversial about saying that complicated litigation benefits from competent representation.  But Elizabeth Lambert is not legally un-qualified.

The judgment itself records that Lambert holds a conjoint BA/LLB, held a practising certificate from 2002 until 2005, and has spent many years representing parties in the Employment Relations Authority and Employment Court.  She is legally trained.

She has previously been authorised to practise law.  She has extensive experience in the substantive jurisdiction from which this appeal arose.

Whatever legitimate criticisms can be made of Lambert's conduct before the Court of Appeal, presenting complexity as though the Court were protecting a litigant from a legally unschooled amateur badly mischaracterises the actual problem.

The relevant question was never whether an ordinary layperson could understand appellate law.

It was whether this particular legally qualified former practitioner, with extensive specialist employment experience, was competent to undertake this particular appellate task.  Those are very different questions.

A Practising Certificate Does Not Confer Appellate Expertise

The Court does make a more specific criticism.  It acknowledges Lambert's substantial employment advocacy experience but observes that she has very limited experience in the Court of Appeal.  That is relevant.  But it does little to justify a broader assumption that a practising lawyer would necessarily be better equipped.

Plenty of practising lawyers have little or no appellate experience.  A lawyer who has spent 20 years conducting conveyancing work does not acquire expertise in employment appeals merely because a practising certificate remains current. Nor does a criminal, family or commercial practitioner automatically understand the unusually restricted jurisdiction exercised by the Court of Appeal over Employment Court decisions.  The Court itself effectively acknowledges the point.

When discussing its earlier decision in Turner v Te Whatu Ora, it repeats the observation that the limitations of the Court's employment jurisdiction can be elusive for practising lawyers.  That is an important concession.  If this particular jurisdiction can be difficult even for practising lawyers, a current practising certificate plainly cannot operate as a reliable proxy for competence within it.

More importantly, Lambert does not comfortably fit the Court's rhetorical contrast between practising lawyers and legally unqualified people.  She is a legally qualified former practitioner.  The real distinction is therefore not between: lawyer and an unqualified advocate.

It is between:  a lawyer who currently holds a practising certificate and a legally qualified former lawyer with substantial specialist employment experience who does not.

Once the distinction is stated accurately, complexity starts doing remarkably little analytical work.  The real issue is professional status and regulation.

Regulation And Competence Are Not The Same Thing

The Court's regulatory argument is considerably stronger.  Practising lawyers are subject to the Lawyers and Conveyancers Act, the Conduct and Client Care Rules, continuing professional development requirements, disciplinary jurisdiction and overriding duties arising from their position as officers of the Court.

Lambert does not sit within that complete regulatory framework.  That is a real distinction.  But it is a distinction about regulation.  It is not necessarily a distinction about competence.

Indeed, the Court effectively admits this at paragraph [20].  There, it says that representatives who are being paid for advocacy would ordinarily be expected both to be properly trained in law and to be subject to comprehensive professional and ethical obligations backed by disciplinary controls.

The Court then expressly says that Lambert satisfies the first criterion but not the second.  That is important.  By paragraph [20], the Court has accepted that Lambert's legal training is not the problem.  The remaining problem is that she is outside the regulatory regime applicable to practising lawyers.

That is capable of being defended as a policy position.  But it should be called what it is.  A practising certificate establishes that a person remains within a professional regulatory system. It does not establish that the person is the most competent available advocate for a particular case.

Conversely, the absence of a current practising certificate does not erase a law degree, previous legal practice or years of specialist advocacy experience.  The Court's earlier emphasis upon complexity therefore looks increasingly misplaced.

Continuing Professional Development Does Not Solve The Problem

The Court also relies upon practising lawyers' continuing professional development obligations as one reason for distinguishing them from non-practising lawyers.  Those obligations have obvious value.  But they should not be asked to prove more than they actually do.

Practising lawyers providing regulated services are generally required to complete at least 10 hours of qualifying continuing professional development activities each year.  That does not create expertise in every jurisdiction in which a lawyer might appear.

A practitioner specialising in property law can satisfy their CPD obligations entirely appropriately without acquiring meaningful expertise in employment appeals.

The Court's own acknowledgement that the limits of its employment jurisdiction may prove elusive even to practising lawyers illustrates the problem.

If specialist competence is what matters, specialist competence should be examined.  If professional regulation is what matters, professional regulation should be examined.

Conflating the two risks turning a regulatory credential into evidence of substantive expertise which it does not necessarily establish.

The Employment Court's Own Chief Judge Has Questioned The Complexity Narrative

There is a more fundamental problem with using complexity to justify restrictions upon representation.  The judiciary itself has begun questioning whether some of that complexity is being created by the justice system.

In October 2025, Chief Judge Christina Inglis of the Employment Court examined the increasing prevalence of self-represented litigants and the barriers they encounter.  Her analysis directly challenged the comfortable assumption that litigants simply "need a lawyer".  The more difficult question was why.

If a person genuinely requires professional legal representation simply to navigate an employment dispute, what does that say about the dispute-resolution system itself?

Chief Judge Inglis questioned whether employment procedure had gradually been designed around lawyers, judges and institutional participants rather than the employees and employers whose disputes the system exists to resolve.  Her examination of Employment Court files produced findings that are particularly relevant to Healey.

Although self-represented parties sometimes required additional assistance from the Registry, their presence did not significantly increase hearing time.  They also filed fewer interlocutory applications.

Her comparative analysis further suggested that case processing by both practitioners and the Court had become more complicated over time, with substantially more interlocutory litigation contributing to longer-running proceedings.  That sits very awkwardly beside the complexity argument advanced in Healey.

Lawyers undoubtedly manage legal complexity.  But lawyers, judges, procedural rules and professional practices can also create it.

There is something fundamentally circular about allowing a justice system to become increasingly complicated and then using that complexity as evidence that litigants must become increasingly dependent upon a restricted professional class.  The argument eventually becomes:

1. The system is complicated, therefore you need a lawyer.

2. But why is it so complicated?

3. Because this is how lawyers and courts have developed the system.

That should not be accepted as an inevitable feature of justice.  It should be recognised as an access-to-justice problem.

And the contradiction becomes particularly stark in Healey.

The proposed representative was not an enthusiastic friend carrying a folder of internet research into an appellate court.  She was a legally qualified former practitioner with extensive experience in employment litigation.  If complexity was genuinely the concern, Lambert's qualifications should have substantially answered it.  If they did not, complexity was probably never the real problem.

Efficiency Is Also An Assumption, Not A Given

The Court also says that the public interest in the effective, efficient and expeditious disposal of litigation will generally be best served by appropriately qualified lawyers.  Again, the proposition sounds obvious.  But the evidence from the Employment Court complicates it.

Chief Judge Inglis' review did not find that self-represented litigants materially lengthened hearings.  They also generated fewer interlocutory applications.  Meanwhile, the processing of cases by practitioners and the Court itself had become increasingly complex.

None of this proves that lawyers make litigation inefficient.  That would be absurd.  Lawyers can identify the real issues, eliminate hopeless arguments, marshal evidence, comply with procedure and focus the Court upon the governing law.

But lawyers can also generate discovery disputes, interlocutory applications, procedural challenges, evidential arguments and tactical litigation that a layperson would never contemplate.

Sometimes lawyers make proceedings more efficient.  Sometimes lawyers make proceedings more lawyerly.  Those things are not synonymous.  This problem is not confined to employment law.

The Rules Committee's Improving Access to Civil Justice project arose partly from concern about the cost and complexity of civil litigation, increasing numbers of unrepresented litigants and the extent to which conventional court procedure can make pursuing otherwise legitimate claims economically irrational.

There is therefore a strange tension within the judiciary's position.  On one hand, the courts acknowledge that procedural complexity can prevent people obtaining justice and have undertaken reform efforts designed to reduce it.

On the other, Healey invokes that same complexity as one reason to restrict the people who may help litigants navigate it.

Both propositions cannot be accepted uncritically without confronting the relationship between them.

The Protection Argument Is Stronger, But Still Incomplete

The Court is on firmer ground when it turns to professional obligations.  Practising lawyers are officers of the Court.

They owe enforceable duties to clients and to the administration of justice.  They are subject to complaints procedures and disciplinary jurisdiction.  Those safeguards matter.

An employment advocate operating outside that regime is not subject to an equivalent comprehensive statutory structure.

But regulation should not be romanticised.  A disciplinary framework does not guarantee excellent advocacy.  It does not prevent every incompetent lawyer from practising.  It does not eliminate unnecessary litigation.

And it does not establish that a regulated generalist necessarily understands a specialist employment dispute better than an experienced employment advocate.  

The absence of equivalent regulation for employment advocates is a legitimate policy concern.

But that invites an obvious question.  Why not regulate them?

If paid employment advocates occupy a substantial and enduring place in New Zealand's employment jurisdiction, accreditation, minimum qualifications, insurance requirements, ethical obligations and enforceable disciplinary procedures are all conceivable responses.

Simply excluding those advocates when proceedings cross into a senior court does nothing to solve the underlying regulatory problem.  It merely limits the representation available to litigants.

Cost Cannot Be Reduced To Consumer Preference

The Court also says that saving money may be relevant when deciding whether to allow lay representation, but generally distinguishes genuine inability to pay from somebody who could afford a lawyer and merely wishes to avoid the expense.  That distinction looks considerably cleaner in a law report than it does in real life.

New Zealand's judiciary has repeatedly acknowledged a serious access-to-justice problem.  Chief Justice Helen Winkelmann has emphasised that legal rights mean little unless people have practical access to the institutions capable of enforcing them.

The Rules Committee has recognised increasing numbers of self-represented litigants and the economic irrationality that can arise when the procedural costs of pursuing a civil claim approach or exceed the value of the dispute itself.  The Government's recent review of legal aid has likewise identified serious pressures affecting both access to providers and the sustainability of the system.

Against that background, describing somebody as merely wishing to "save money" risks trivialising the economics of litigation.

There is an enormous space between being destitute and being comfortably able to finance Court of Appeal proceedings.  A person may technically possess enough money to retain counsel while also paying a mortgage or rent, supporting children, servicing debt, losing income and facing the possibility of exhausting savings defending litigation.

That difficulty becomes even more obvious where the person did not choose to initiate the appeal.  Healey is the respondent.

Health New Zealand is seeking leave to appeal.

A litigant may therefore use an employment advocate throughout the specialist jurisdiction, succeed or obtain a favourable decision, and then find themselves forced into a completely different representation model because the other party takes the matter upstairs.

The litigant may have to hire a new lawyer and pay that lawyer to learn years of litigation history.  Or they can represent themselves.  It is difficult to see how replacing an experienced specialist advocate with no advocate at all necessarily improves the administration of justice.

The Remuneration Argument Produces A Peculiar Incentive

The Court also treats payment of a lay advocate as a factor weighing against permission being granted.  Its concern is understandable.  Where someone receives money for legal advocacy, the Court expects that person to possess appropriate training and to be subject to professional and ethical controls.  But the practical result is strange.

An experienced specialist who charges for professional assistance may encounter a greater barrier to appearing than a friend or family member assisting without charge.  Payment does not demonstrate incompetence.

If the concern is consumer protection, the more obvious response is to ask whether professional employment advocates require an appropriate regulatory framework.  Excluding them from senior courts does not resolve that question.  It simply narrows the representation available to litigants.

There Were Better Reasons To Refuse Lambert

None of this necessarily means Lambert should have been permitted to represent Healey.  The Court identifies considerably stronger reasons for refusing her application.  

They arise from Lambert's actual conduct before the Court of Appeal.  In Turner v Te Whatu Ora in 2024, Lambert filed material in support of a litigant without first obtaining leave to represent that person.  The Court allowed the material to be considered on that occasion but specifically warned that this should not be taken as indicating that such an approach would ordinarily be accepted.

In Young v Port of Tauranga Ltd in 2025, Lambert again filed material for an applicant without first obtaining permission.

The Court expressly recorded concern about her doing so.  Then the same issue arose for a third consecutive year in Healey.

The previous appellate proceedings also raised questions about Lambert's command of the particular jurisdiction involved.

In Turner and Young, proposed questions were rejected because they were either not questions of law or were not seriously arguable.

In Young, some proposed questions had not been raised in the Employment Court at all, while another argument relied upon legislative provisions that were not in force during the relevant employment relationship.  Those matters are significant.  More importantly, they relate to Lambert's actual performance in the Court of Appeal.

If the Court concluded from that history that Lambert had demonstrated an inadequate understanding of the narrow appellate jurisdiction under s 214 of the Employment Relations Act, that is an argument capable of being examined on its merits.

Likewise, repeatedly filing documents on behalf of litigants without obtaining permission could legitimately concern a Court whose rules require that permission.  Those grounds are far more convincing than abstract observations about unqualified people struggling with complicated law.  And that raises a question of its own.

If Lambert's actual conduct provided adequate reasons to refuse leave, why was such a broad defence of the professional barrier necessary?

The Real Issue Is Larger Than Elizabeth Lambert

Health New Zealand v Healey should not ultimately be reduced to whether one employment advocate deserved permission to appear in one appeal.  The judgment exposes a structural problem.

Parliament expressly permits non-lawyer advocates to represent people within the specialist employment jurisdiction.  An advocate may therefore represent an employee or employer in the Employment Relations Authority and Employment Court.

That advocate may know the client, the witnesses, the evidence, the procedural history and the underlying employment law.

Then the dispute reaches the Court of Appeal.  The rules fundamentally change.  The person who has conducted the litigation can suddenly become incapable of continuing without exceptional judicial permission.  The client must find a practising lawyer, pay that lawyer to learn the case, or attempt the appeal personally.

The Court partly justifies that boundary by pointing to the complexity of senior court litigation.  Yet the judiciary itself acknowledges that excessive procedural complexity is an access-to-justice problem.

The Chief Judge of the Employment Court has gone further, questioning whether employment procedure has increasingly been shaped around lawyers and judges instead of the employees and employers it exists to serve.

That leaves the complexity reasoning in Healey particularly exposed.  The Court was entitled to examine Lambert's actual appellate record.  It was entitled to be concerned about her repeated failure to seek permission before purporting to represent litigants in the Court of Appeal.  It was entitled to consider the absence of the regulatory and disciplinary controls imposed upon practising lawyers.  Those are genuine issues.

But the suggestion that the central difficulty is legal complexity and the need for legally trained representation is difficult to reconcile with the person whose application was actually before the Court:

• Lambert was legally trained.

• She had previously held a practising certificate.

• She possessed extensive specialist employment advocacy experience.

• And the Court ultimately accepted that she satisfied the legal-training component of its own test.

What she lacked was not legal education.  It was regulatory status.  That may provide a principled reason for drawing a line.

But if that is where the line is really being drawn, the judiciary should say so plainly.

Because a justice system cannot indefinitely make itself more difficult to navigate, acknowledge that conventional legal representation is beyond the practical reach of many people, permit specialist alternative representation throughout most of a dispute, and then use the complexity of its own procedures as justification for taking that representation away.

At some point, complexity stops being an answer.  It becomes part of the problem.

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References

Health New Zealand v Healey [2026] NZCA 351.

Turner v Te Whatu Ora – Health New Zealand, Wairarapa (formerly Wairarapa District Health Board) [2024] NZCA 203.

Young v Port of Tauranga Ltd [2025] NZCA 504.

New Zealand Professional Firefighters Union Inc v Fire and Emergency New Zealand [2021] NZCA 60, [2021] ERNZ 54.

Re G J Mannix Ltd [1984] 1 NZLR 309 (CA).

Honda New Zealand Ltd v New Zealand Boilermakers' etc Union [1991] 1 NZLR 392 (CA).

Petersons Global Sales Ltd v Peterson [2010] NZCA 56.

Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679.

Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZCA 491, (2015) 23 PRNZ 141.

Gee v Plumbers, Gasfitters and Drainlayers Board [2012] NZHC 377.

Damjanovic v Maley [2002] NSWCA 230, (2002) 195 ALR 256.

Employment Relations Act 2000, ss 214 and 236.

Lawyers and Conveyancers Act 2006, ss 4, 6, 24 and 27.

Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, rr 2, 2.1 and 3.9.

Lawyers and Conveyancers Act (Lawyers: Ongoing Legal Education – Continuing Professional Development) Rules 2013, particularly r 6.1.

Christina Inglis, Chief Judge of the Employment Court, "A Yellow Brick Road? Paving the Way for Lay Litigants in the Employment Court", Ethel Benjamin Address, 31 October 2025, Courts of New Zealand.

Helen Winkelmann, Chief Justice of New Zealand, "Access to Justice: We Need More (Than) Lawyers", MacKenzie Elvin Law Lecture, 24 August 2022, Courts of New Zealand.

Rules Committee | Te Komiti mō ngā Tikanga Kooti, "Improving Access to Civil Justice", Courts of New Zealand.

Francis Cooke J, "High Court Rules Civil Changes", Rules Committee | Te Komiti mō ngā Tikanga Kooti, Courts of New Zealand.

Ministry of Justice, "Accessible and Affordable Justice Programme", including the Government's review of the sustainability and accessibility of legal aid.