APPLICATION BY HOFFMAN FOR THE GRANT OF AN EXEMPTION PURSUANT TO RULE 11(3) OF THE
[1999] NTSC 136
•22 June 1999
IN THE FULL COURT
OF THE SUPREME COURT
OF THE NORTHERN TERRITORY
No. LP7 of 1999 (9904663)
NTSC136
IN THE MATTER OF AN APPLICATION
BY DAVID ANTHONY HOFFMAN FOR
THE GRANT OF AN EXEMPTION
PURSUANT TO RULE 11(3) OF THELEGAL PRACTITIONERS RULES
CORAM: MARTIN CJ, MILDREN & BAILEY JJ REASONS FOR JUDGMENT
(Delivered 22 June 1999)
MARTIN CJ
BAILEY J:
We have had the benefit of reading the draft judgement of Mildren J. We
agree with the reasons for judgement and the proposal that the matter be
adjourned for further submissions as to the precise form of the orders.
MILDREN J:
This is an application pursuant to r11(3) of the Legal Practitioners Rules for
the grant of an exemption from the practical requirements of the Rules
relating to the admission of legal practitioners.
The applicant is a resident of the State of Queensland. On 25 October 1990,
after what he describes in his affidavit as “twenty years experience in the
industrial relations field”, the applicant was appointed a Commissioner of
the Australian Industrial Relations Commission. Prior to this time, the
applicant deposes that he practised extensively as an industrial advocate and
negotiator. The applicant does not otherwise depose to his qualifications
and experience prior to 1990 in any detail. In an affidavit sworn by John
Norman West, one of Her Majesty’s Counsel in and for the States of New
South Wales, Victoria, South Australia, and Western Australia, and for the
Australian Capital Territory, the deponent states that he has worked with the
applicant as a colleague in matters before the Industrial Tribunal, now
known as the Australian Industrial Relations Commission, for four years,
commencing some twenty-eight years ago. In a letter addressed to the
Secretary of the Legal Practitioners Admission Board written by Ms
Catherine Arnold, Barrister-at-law, of Brisbane, which is exhibit I to the
applicant’s affidavit of 31 December 1998, Ms Arnold advises the Board
that she has known the applicant since 1987, that at that time she practised
as a solicitor in private practice in Queensland, and until his appointment,
she briefed the applicant regularly to appear in matters before the Australian
and Queensland Industrial Relations Commissions. It appears from Ms
Arnold’s letter that from 1976 until his appointment to the Commission, the
applicant lectured in industrial relations and advocacy on a part time basis at
Universities, Colleges of Advanced Education and TAFE Colleges, (she
does not say where); that the applicant obtained a Bachelor of Arts degree
majoring in Industrial Relations and Economics conferred, apparently in
1988 (she does not say by which institution); that from 1980 – 1990, the
applicant had served as a committee member, President and National Vice
President, of the Industrial Relations Society of Queensland; that, since
1976, the applicant has been a fellow of the National Institute of
Accountants and Chairman of the National Investigation Committee, (but it
does not appear what those bodies may be), and that he was formerly
National and Divisional Counsellor and State President of “the Institute”
(which institute is not explained). It is a pity that little of what appears to
be an extensive background in industrial advocacy and practice, including
teaching experience and professional recognition by his peers, is sworn to
by the applicant himself, but for these purposes, and bearing in mind the
attitude of the Law Society, I consider that it is open for me to find that the
applicant has had, prior to 1990, some twenty years’ experience as an
industrial advocate and/or as someone briefing others, including solicitors
and barristers, in contested industrial matters, and that he was sufficiently
experienced and well regarded to be appointed a Commissioner in 1990.
[3] On 12 March 1992 the applicant was appointed as an Industrial
Commissioner of the Queensland Industrial Relations Commission, and on
22 November 1992, he was appointed Chairman of the Police Arbitral
Tribunal of the Northern Territory. In January 1992, the applicant was
appointed Chairman of the Prison Officers Arbitral Tribunal, and of the
Senior Prison Officers Arbitral Tribunal, of the Northern Territory. In
January 1996, the applicant was appointed Chairman of the National Investigation Committee of the National Institute of Accountants. (This
may be “the Institute” to which Ms Arnold refers in her letter).
In July 1998 the applicant qualified for admission to the Degree of Bachelor
of Laws at the Queensland University of Technology. The Legal
Practitioners Admission Board has certified that the applicant has completed
the academic requirements for admission as prescribed by the Rules, but
that, because the applicant has not complied with the practical requirements
for admission, he is not entitled to be admitted to practice unless he were to
obtain an exemption under rule 11(3).
The evidence submitted on behalf of the applicant shows that the applicant
has had to advise on and deal with a wide range of legal issues both as an
advocate and a Commissioner, and that he is familiar with the rules of
evidence and procedure. Mr Paul Robert Munro, a Senior Deputy President
of the Australian Industrial Relations Commission, has deposed to the fact
that he has known the applicant since his appointment in 1990; that he has
worked closely with the applicant on a number of cases in which they have
both been engaged, and that the applicant has conducted many public
hearings and produced numerous written decisions and determinations, many
of which have required detailed consideration of a diverse range of legal
issues. Mr Munro says, in para 8 of his affidavit, that he has in mind:
… the relatively wide range of statutory interpretation issues
concerned with employment law matters including contracts of
employment, with the admission, exclusion or production of
evidence, with the construction of Commonwealth or local
government statutes, with administrative law and about thejurisdictional basis of the tribunal’s exercise of function.
Mr Munro concludes in para 9 of his affidavit that:
… the work Mr Hoffman has undertaken on a regular basis since
1990 is sufficiently akin to legal professional practice to justify a
finding that his work has called for the application of a significant
and an ever increasing level of practical legal skill and a professional
standard of competence.The applicant has not undertaken articles of clerkship, has never worked in a
legal office, and has not undertaken a course of practical training of a kind
recognised as sufficient under the admission rules of any other jurisdiction
such as to enable him to be admitted as of right, either in this jurisdiction or
elsewhere. The applicant is not eligible to be admitted to practice in
Queensland, although he could apply to the Supreme Court of Queensland
for exemption from the practical requirements for admission in that State.
Were he to do so, he may be able to rely upon, by way of analogy, s58 of the
Legal Practitioners Act (QLD) which enables lengthy periods of service as a
clerk (or a position of a higher grade) in a registry of a Supreme Court or
District Court, (for example) to qualify as sufficient service for admission
purposes, and to argue that his experience as a Commissioner since 1990
should be regarded as being, certainly not less sufficient than that of such a
clerk.
The applicant has also explained why he has chosen to seek admission to
this Court, rather than to the Supreme Court of Queensland. The President of the Queensland Industrial Relations Commission is required by law to be
a Judge of the Supreme Court of Queensland, and the current President, as
well as a number of past Presidents, are still serving Judges of that Court.
The applicant has had both a professional and personal association with
those Judges over a number of years. I am satisfied that the applicant’s
application to this Court is bona fide, and that no attempt is being made to
seek any improper advantage by applying to this Court rather than to the
Supreme Court of Queensland. Were it otherwise, the Court could in the
exercise of its discretion, refuse the application.
Rule 11(3) empowers the Court, if it is of the opinion that the applicant has
had experience in the practice of law in Australia other than that specified in
Rule 11(1), to grant such exemption from rule 11 as it considers proper in
the circumstances. There is no longer any need for the applicant to show
“special circumstances”: c.f. s11(5) of the Legal Practitioners Act (now
repealed), and Re Mallett (1989) 95 FLR 63; Re McLaren (1992) 107 FLR
398. The approach to be adopted under the present rule has not been
authoritatively considered by this Court. The only instance of an
application under this rule is Re Nelson (1994) 116 FLR 104. It is plain
from that case that the concern of the rules is to ensure that the public
interest is met in only having properly qualified and experienced persons
admitted to practice as legal practitioners.
The applicant has made it clear to this Court that his purpose in seeking
admission is to advance his career prospects in his chosen field. Further promotion to a position in the Australian Industrial Relations Commission is
impossible for the applicant unless he is admitted as a practitioner. This
shows that the applicant does not in fact intend to practice as a legal
practitioner in this Territory, a factor which I consider is relevant to the
exercise of the Court’s discretion. As Miles CJ put it, in Re Kavanagh
(1995) 125 FLR 138, at 139, it is not only relevant but necessary for the
Court to consider how it is that the purposes of the Legal Practitioners Act
might be achieved by allowing the application. In that case, the applicant
had no intention of practising as a legal practitioner either. His purpose in
seeking admission was to enhance his prospects as an arbitrator and
mediator. Miles CJ was of the view that the purposes of the Act were not
served by enhancing those prospects. Miles CJ was in dissent. The majority
of the Court, Gallop and Higgins JJ, did not comment on that aspect of the
case, but, with respect, it seems to me to be relevant to the exercise of the
Court’s discretion, as it may, for example, be appropriate in some cases for
the Court to extract certain undertakings before granting the application: c.f.
the matters considered by Higgins J at 149. In this case, I have no doubt
that the applicant is genuine and that there would be no need to extract any
form of undertaking from him.
[10] On the material placed before this Court, there is no doubt that the
applicant’s experience and training as an industrial advocate and as a
Commissioner warrants a conclusion that within the areas described the
applicant has achieved a depth of training and experience well beyond that of the average newly admitted practitioner. Although that training and
experience is in a narrow field, the applicant has also had experience in
briefing counsel, judgment writing, and evidence and procedure which leads
me to conclude also that he is suitably qualified as a barrister. However, in
this jurisdiction applicants when admitted may practice as either barristers
or solicitors or both. What is also apparent is that the applicant has had no
practical experience, or virtually no practical experience, suitable to qualify
him as a solicitor: c.f. the applicant in Re Kavanagh, who had undertaken a
PLT course in Tasmania. I bear in mind that the attitude of the Law Society
is that the application is not opposed. I take it from that, that the Law
Society considers that the applicant’s experience and training is such, that
the application should not be opposed – which is perhaps a different thing
from saying that the application should be supported. The attitude of the
Law Society is a matter to which great weight is usually given, but the fact
is that the applicant does not assert that he has had any experience at all in
such matters as conveyancing, will preparation, the drafting of commercial
documents or the drafting of pleadings and other court documents which are
the basic tools of trade of a solicitor. It cannot assi st the applicant that he
presently does not intend to practice; the fact is that he may one day change
his mind. Nor is it enough that the applicant would not be able, in any
event, to obtain an unrestricted practising certificate. This consideration
was referred to and rejected by this Court in Re McLaren (1992) 107 FLR
398 at 406, and although the legislation has changed then, I consider that the principle is correct and should be applied to the present scheme constituted
by the Act and the Rules.
[11] In my opinion the application, in so far as it is for a complete exemption,
should be refused, but I consider that the applicant should be granted a
partial exemption, which would require the applicant to serve either six
months articles or attend and satisfactorily complete those parts of a suitable
PLT course which will provide him with the experience and training he
lacks. I would assume that the applicant may prefer to undertake PLT rather
than articles, but there is no material before us which would enable us to
specify what particular parts of a suitable PLT course should be undertaken.
I would therefore suggest that the application be adjourned to enable the
applicant to put before the Court such further information as he may be
advised and to hear further submissions on the precise form of the orders.
0