Barlow v Law Society of the ACT
[2017] ACTSC 35
•21 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barlow v Law Society of the ACT |
Citation: | [2017] ACTSC 35 |
Hearing Date: | 3 May 2016 |
Last submissions received | 14 June 2016 |
DecisionDate: | 21 February 2017 |
Before: | Penfold J |
Decision: | 1. The application to transfer the proceedings to the Federal Circuit Court or the Federal Court is refused. 2. The parties will be heard: (a) about the appropriate orders to be made to give effect to the findings set out at [116] to [119] below; and (b) about the costs of this application. |
Catchwords: | APPEAL – GENERAL PRINCIPLES – right of appeal –competence of the appeal – appeal ground embarrassing and inadequately particularised – striking out notice of appeal – scope for summary dismissal of appeal – inherent jurisdiction – discretionary power. PRACTICE AND PROCEDURE – operation of cross-vesting legislation – scope for transfer from Supreme Court to Federal Circuit Court – bankruptcy proceeding in Federal Circuit Court relating to enforcement of costs order made by Full Court. LEGAL PRACTITIONERS – application for unrestricted practising certificate refused – no misconstruction of applicable legislation by ACT Law Society – obligations of ACT Law Society – compliance with legislation regulating legal profession. |
Legislation Cited: | Bankruptcy Act 1966 (Cth), s 40(1)(g) Constitution of Queensland 2001 (Qld), s 58 District Court Act 1973 (NSW), s 127(2)(c) Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth) Federal Circuit Court of Australia 1999 (Cth) Uniform Civil Procedure Rules 2005 (NSW), pt 51, r 51.1(3) Explanatory Statement, Legal Practitioners Regulations (Repeal) 1986 (Cth) |
Cases Cited: | Barlow v Law Society of the ACT and Ors [2015] ACTMC 8 Barlow v Law Society of the Australian Capital Territory (2013) 272 FLR 470; [2013] ACTSC 68 Young v Hones [2013] NSWSC 580 |
Texts Cited: | Mark Aronson, Matthew Groves, Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) Dean Mildren, The Appellate Jurisdiction of the Courts in Australia (Federation Press, 2015) Sydney Tilmouth, ‘Notices and Grounds of Appeal’ in Graeme Blank and Hugh Selby (eds), Appellate Practice (Federation Press, 2008) 47 |
Parties: | Michaela Barlow (Appellant/Respondent) Law Society of the ACT (First Respondent/Applicant) Larry King (Second Respondent/Applicant) Bill Redpath (Third Respondent/Applicant) Chris Chenoweth (Fourth Respondent/Applicant) David Harper (Fifth Respondent/Applicant) Robert Reis (Sixth Respondent/Applicant) Michael Phelps (Seventh Respondent/Applicant) |
Representation: | Counsel Self-represented (Appellant/Respondent) Mr M Phelps (Respondents/Applicants) |
| Solicitors Self-represented (Appellant/Respondent) Phelps Reid (Respondents/Applicants) | |
File Number: | SCA 1 of 2016 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 1 December 2015 Case Title: Barlow v Law Society of the ACT & Ors Citation: [2015] ACTMC 8 |
Introduction
The parties to this matter are Michaela Barlow, the Law Society of the Australian Capital Territory, and six individuals who are or have been officeholders of the Law Society, one of whom is currently the Law Society’s solicitor. Mrs Barlow (as she describes herself) is the appellant in this court, and the Law Society and the six individuals are the respondents to that appeal.
In the documents before me, there is some lack of clarity about the proper descriptions of the various parties: for instance, the Law Society’s application in proceeding addressed in this decision identifies Mrs Barlow as the appellant, but describes the various respondents to the appeal as “defendants”, while seeking orders in relation to the costs of the “respondents”; one might think that those seven parties are respondents to the appeal and applicants in relation to the application, but it is hard to work out the basis on which they are here described as defendants (although they were defendants in the Magistrates Court). Presumably this looseness of expression reflects the fact that the parties to an appeal are normally referred to as the appellant and the respondent, the parties to an application are normally referred to as the applicant and the respondent, and that in the course of a matter, a particular party may properly fit several of those descriptions in respect of different aspects of the matter. Given this confusion, and except where further clarification is necessary, I propose to refer to the parties simply as Mrs Barlow and the Law Society (which description will include, as the case requires, the six individuals involved in this matter because of their connection with the Law Society).
The appeal is from decisions made in the Magistrates Court in December 2015 dismissing Mrs Barlow’s action against the Law Society and making costs orders in favour of the Law Society.
Background
It is convenient to set out the complex background to this matter in the form of a chronology. Much of the material in the following table is taken from an affidavit made on 19 April 2016 by Mr Phelps, the seventh respondent and the solicitor on the record for the other six respondents.
| Item | Date | Event |
| 1 | 2004 | Mrs Barlow applied to the Law Society for an unrestricted practicing certificate; her application was refused. |
| 2 | 2010 | Mrs Barlow applied to the Law Society for an unrestricted practising certificate; her application was refused. |
| 3 | December 2010 | Under s 81 of the Legal Profession Act 2006 (ACT), Mrs Barlow appealed against the 2010 refusal (the Full Court appeal). The refusal of a 2011 application for an unrestricted practising certificate made after the appeal was filed was also dealt with in that appeal. |
| 4 | August 2011 | After Mrs Barlow began her appeal to the Full Court, she applied to the Law Society for an unrestricted practising certificate for 2011. |
| 5 | October 2011 | Mrs Barlow amended the notice of appeal to add an appeal from the Law Society’s refusal to issue an unrestricted practising certificate for 2011. |
| 6 | 12 April 2013 | The Full Court dismissed the appeal (Barlow v Law Society of the Australian Capital Territory (2013) 272 FLR 470) |
| 7 | 15 May 2013 | The Full Court ordered Mrs Barlow to pay the costs of the Law Society (the first costs order), other than the costs of and incidental to an interlocutory hearing on 28 November 2011 and the delivery of a related judgment on 3 February 2012. |
| 8 | 9 April 2015 | The Law Society filed a bill of costs in the Supreme Court seeking an assessment of those costs. |
| 9 | 15 April 2015 | The bill of costs was served on Mrs Barlow. |
| 10 | 22 July 2015 | By originating application, Mrs Barlow began a new proceeding in the ACT Magistrates Court, against the Law Society and the six other respondents to this appeal (the Magistrates Court proceedings). The orders sought in that proceeding were as follows: 1. An order of prohibition/injunction to stop any further proceedings in respect of the Bill of Costs which the First Defendant has served upon the Plaintiff. 2. A declaration under s261 of the Magistrates Court Act 1930 that: 2.1 s261(1)(a) the plaintiff is not indebted to the First Defendant at all 2. [sic] An order to show cause that the actions of the first six Defendants have not constituted: 2.1 Malfeasance in public office 3. An order that the seven Defendants have caused loss and damage to the Plaintiff. 4. Any other orders that the Court considers appropriate. The grounds of Mrs Barlow’s application were identified as follows: The Magistrates Court has jurisdiction to hear this matter under s257 of the Magistrates Court Act 1930 as the Plaintiff submits to the rules of court in respect of the monetary limits imposed by that section of the act. In an affidavit filed later, she described her proceeding as “an action in tort”, but noted that it might have “perhaps been wrong procedurally”. |
| 11 | 13 August 2015 | The Deputy Registrar of the Supreme Court issued a certificate of costs assessment in the Law Society’s favour in the amount of $51,314.04. |
| 12 | 3 September 2015 | The Law Society filed an interlocutory application in the Magistrates Court seeking orders striking out and summarily dismissing the Magistrates Court proceedings, under either rule 425(3) or rule 1147 of the Court Procedures Rules 2006 (ACT) (the CPRs) |
| 13 | 13 October 2015 | The Magistrates Court proceedings were heard, and directions were given for the filing of written submissions. |
| 14 | 1 December 2015 | The Magistrate allowed the Law Society’s application, dismissed the Magistrates Court proceedings, gave judgment for the Law Society, and foreshadowed an order that Mrs Barlow pay the Law Society’s costs on a party-party basis. |
| 15 | 14 December 2015 | A bankruptcy notice was issued, addressed to Mrs Barlow, identifying the Law Society as the creditor, and claiming an amount of $62,562.35, made up of the costs assessed under the costs order and interest accrued since that assessment. |
| 16 | 15 December 2015 | The Magistrate confirmed the foreshadowed costs order against Mrs Barlow and in favour of the Law Society (the second costs order). |
| 17 | 4 January 2016 | Mrs Barlow filed in the Supreme Court a notice of appeal from the Magistrate’s orders made on 1 and 15 December 2015 (the notice of appeal). |
| 18 | 19 January 2016 | The bankruptcy notice was served on Mrs Barlow. |
| 19 | 2 February 2016 | Mrs Barlow commenced proceedings in the Federal Circuit Court of Australia applying for the bankruptcy notice to be set aside. The ground of the application was specified to be that “the applicant has a counterclaim on foot in the Supreme Court, which exceeds the amount claimed in the Bankruptcy Notice.” The notice identified the current matter (SCA 1 of 2016) as the matter in which the counter claim was made. The application also sought an interim order that “if not set aside, the time for compliance with the Bankruptcy Notice be extended up to and including completion of the [Supreme Court matter, SCA 1 of 2016].” |
| 20 | 19 April 2016 | The Law Society filed an application in proceeding seeking: 1. Order pursuant to rule 5172 of the Court Procedures Rules 2006 (ACT) striking out the notice of appeal filed in these proceedings on 4 January 2016 by the Appellant. 2. In the alternative, order striking out and summarily dismissing the notice of appeal. 3. Order that the Appellant pay the Respondents’ cost of these proceedings on an indemnity basis. 4. Any other orders that the Court considers appropriate. |
| 21 | 28 April 2016 | Mrs Barlow filed a notice of intention to respond to the application. |
| 22 | 2 May 2016 | Mrs Barlow filed an affidavit in this matter, containing a mixture of submissions, argument and evidence. |
| 23 | 3 May 2016 | The hearing of the Law Society’s application before me began at 3:15 pm, and Mrs Barlow made an oral application for “all of these proceedings” to be transferred to the Federal Circuit Court to be determined with the bankruptcy proceedings. (a) the competency of her appeal; (b) whether the appeal grounds were embarrassing or inadequately particularised; and (c) whether the appeal, if not struck out, ought to be removed to the Federal Circuit Court. |
| 24 | 13 May 2016 | Mrs Barlow filed submissions dealing with jurisdictional error by the Magistrate and her application to have the matter removed to the Federal Circuit Court. She also sought to file three affidavits totalling over 30 pages. These were queried by staff of the Court Registry and initially objected to by the Law Society, which subsequently consented to them being received, in order to eliminate the need for a hearing of its objections. |
| 25 | 1 June 2016 | The Law Society’s submissions were filed. |
| 26 | 14 June 2016 | Mrs Barlow’s submissions in reply were filed. |
Summary of the course of proceedings
In short, since the Law Society refused her an unrestricted practising certificate in 2011, Mrs Barlow has proceeded as follows:
(a)she sought unsuccessfully in the Full Court of the Supreme Court to overturn the Law Society’s decision refusing her an unrestricted practising certificate, but has not sought to appeal the Full Court’s decision;
(b)when the Law Society took action to enforce the first costs order, she brought proceedings in the Magistrates Court seeking to block the enforcement of that costs order and raising a variety of new claims against the Law Society;
(c)after the Magistrates Court proceedings were summarily dismissed on the application of the Law Society, Mrs Barlow appealed to the Supreme Court against that decision, claiming jurisdictional error on the Magistrate’s part;
(d)after the bankruptcy notice was served on Mrs Barlow, she began proceedings in the Federal Circuit Court to have the bankruptcy notice set aside in reliance on the Supreme Court appeal, which she identified as involving a counter-claim exceeding the amount claimed in the bankruptcy notice.
(e)when this matter came on for hearing on 3 May 2016, Mrs Barlow made an oral application for the matter to be transferred to the Federal Circuit Court to be determined with the bankruptcy proceedings.
It seems to emerge from material filed by Mrs Barlow, and her oral submissions before me, that she wants the first costs order against her set aside, and that she considers this should be done because she should never have had to appeal to the Full Court, in turn because the Law Society should never have refused her an unrestricted practising certificate in 2004.
She also wishes to obtain, in general terms:
(a)some kind of judicial recognition that the refusal of the unrestricted practising certificate was an act of bad faith on the part of the Law Society and that the Law Society’s actions have caused her loss and damage; and
(b)monetary compensation from the Law Society for the alleged loss or damage.
It is not so clear whether Mrs Barlow is also still hopeful of obtaining an unrestricted practising certificate in the event that she can persuade a court that she should have been issued such a certificate either in 2004 or later.
The notice of appeal
The grounds of appeal specified in the notice of appeal are expressed as follows:
The decision of his Honour Morrison J, evinces jurisdictional error in that it takes into account irrelevant considerations and that it fails to take into account relevant considerations – that it is therefore not a decision made according to law.
The notice of appeal also states that Mrs Barlow will seek to put further evidence before the Court, being:
an analysis of [the Magistrate’s] judgment, describing the jurisdictional errors, to prove that his Honour’s decision to strike out the appellant’s claim in the Magistrates Court is not made according to law.
This appears to be a description of submissions rather than evidence of any kind, although the reference to proving a matter is more apt to refer to evidence than to submissions.
The orders originally sought by Mrs Barlow are, in short, that his Honour’s orders be set aside and that “the plaintiff’s matter be heard by this court”. It is also clear from her various submissions that Mrs Barlow’s core proposition is that her case should be heard “on its merits”.
“New evidence”
This matter is complicated by the fact that Mrs Barlow in her documents uses the expressions “new evidence” and “further evidence” in two different contexts.
In the notice of appeal, Mrs Barlow refers to “further evidence” that is described as set out at [10] above and appears in fact to amount to submissions.
In an affidavit filed on 2 May 2016, Mrs Barlow says that after the decision of the Full Court was handed down, she obtained “new evidence” showing that the Law Society’s 2004 decision was “legally incorrect” (for reasons quoted at [102] below). It seems that this new evidence was her basis for bringing the Magistrates Court proceedings; contrary to submissions made by the Law Society at one point in the proceedings before me, Mrs Barlow has not asserted that it was material that only became available after the Magistrates Court proceeding was dismissed; rather, she says that it was material she discovered only after the end of the Full Court appeal. It is possible that the Law Society’s confusion arose from Mrs Barlow’s use of “further evidence” to refer to some of her submissions about the Magistrate’s errors.
In its decision, the Full Court’s description of the history of the legislation relevant to the granting of practising certificates contained the following statement at [28]:
It apparently came to light in late 2002 that no course had ever actually been prescribed and no such regulation made by the Commonwealth Attorney-General or the ACT Executive for that purpose.
On the basis of the “new evidence” relied on by Mrs Barlow (at [106] below), that statement made by the Full Court appears to be incorrect. That conclusion, however, for reasons discussed at [111] below, has in my view no significance in this matter.
The application in proceeding
The grounds specified for the Law Society’s application are:
(a)that the appeal is incompetent; and
(b)alternatively, that the appeal should be struck out and summarily dismissed on the basis that it is an abuse of process or hopeless, or that the sole ground in the notice of appeal is embarrassing and does not comply with the requirements of rule 5101 (g) of the CPRs.
The issues
Several issues arise out of the Law Society’s application and Mrs Barlow’s responses. In general terms, the Law Society seeks the termination of the appeal because it is incompetent, because the notice of appeal is inadequate, or because the appeal is untenable.
Mrs Barlow, as well as attempting to meet the Law Society’s complaints about her appeal, has asked me to transfer these proceedings to the Federal Circuit Court.
It is convenient to deal with Mrs Barlow’s application first.
Transfer of proceedings to Federal Circuit Court
In support of her application for the current proceedings to be transferred to the Federal Circuit Court, Mrs Barlow relies on ss 4 and 5 of the Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT) (the Cross-vesting Act), which include the following possibly relevant provisions:
4Vesting of additional jurisdiction in certain courts
(1)The Federal Court has and may exercise original and appellate jurisdiction in respect of ACT matters.
...
5Transfer of proceedings
(1)If—
(a)a proceeding (in this subsection called the relevant proceeding) is pending in the Supreme Court; and
(b)it appears to the Supreme Court that—
(i)the relevant proceeding arises out of, or is related to, another proceeding pending in the Federal Court or the Family Court and it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court; or
(ii)having regard to—
(A) whether, in the opinion of the Supreme Court, apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction and apart from any accrued jurisdiction of the Federal Court or the Family Court, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the Supreme Court and capable of being instituted in the Federal Court or the Family Court; and
(B) the extent to which, in the opinion of the Supreme Court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of the Supreme Court apart from this Act and any law of the Commonwealth or another State relating to cross-vesting of jurisdiction; and
(C) the interests of justice;
it is more appropriate that the relevant proceeding be determined by the Federal Court or the Family Court, as the case may be; or
(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by the Federal Court or the Family Court;
the Supreme Court shall transfer the relevant proceeding to the Federal Court or the Family Court, as the case may be.
...
(6)If—
(a)a court (in this subsection called the first court) transfers a proceeding to another court under a law or laws relating to cross-vesting of jurisdiction; and
(b)it appears to the first court that—
(i)there is another proceeding pending in the first court that arises out of, or is related to, the firstmentioned proceeding; and
(ii)it is in the interests of justice that the other proceeding be determined by the other court;
the first court shall transfer the other proceeding to the other court.
(7)A court may transfer a proceeding under this section on the application of a party to the proceeding, of its own initiative or on the application of the Attorney-General of the Commonwealth or of a State or Territory.
(8)A person who is entitled to practise as a legal practitioner in a court has, if a proceeding (the transferred proceeding) in that court is transferred to another court under a law or laws relating to crossvesting of jurisdiction, the same entitlement to practise in relation to—
(a)the transferred proceeding; and
(b)any other proceeding out of which the transferred proceeding arises or to which the transferred proceeding is related, being another proceeding that is to be determined together with the transferred proceeding; in the other court that the person would have if the other court were a federal court exercising federal jurisdiction.
None of these provisions refers to the Federal Circuit Court so as to authorise explicitly a transfer of proceedings to that court from the ACT Supreme Court.
The Law Society says that this means that the transfer application is “fundamentally misconceived”.
Mrs Barlow, however, has two responses to the Law Society’s submission.
First, she says:
4. The Jurisdiction of Courts (Cross-Vesting Act 1987 (Cth), section 3, defines the federal court as the ; "Federal Court of Australia", and does not mention the Federal Circuit Court. At the time of the two cross vesting acts coming into effect in 1987 (Cth) and 1993 (ACT) there was no Federal Circuit Court in existence and therefore could be neither forseen [sic] nor mentioned. However, under section 27 of the Bankruptcy Act 1966, as currently in force, the Federal Court and the Federal Magistrates Court (now the Federal Circuit Court) have concurrent jurisdiction in bankruptcy, and that jurisdiction is exclusive of all courts other than (a) the High Court or (b) the Family Court. If this court is of the view that on grounds of hierarchy [sic] of courts this matter cannot properly be transferred from the Supreme Court of the ACT, to the Federal Circuit Court, of its own knowledge, power and authority it may make an order to transfer the proceedings to the Federal Court.
What Mrs Barlow appears to be saying is that since the Federal Circuit Court did not exist, and all relevant jurisdiction was with the Federal Court, when the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) (the Commonwealth cross-vesting legislation) was passed, that legislation, and the ACT Cross-vesting Act, can, in effect, be read as if they refer to the two courts currently exercising the jurisdiction that was conferred only on the Federal Court when the original cross-vesting legislation was passed.
I am, however, satisfied that if the Commonwealth Parliament had intended to permit proceedings to be transferred between State and Territory Supreme Courts and the Federal Circuit Court, it would have amended the Commonwealth cross-vesting legislation to that effect, either:
(a)when the forerunner of the Federal Circuit Court, namely the Federal Magistrates Court, was created (see the Federal Magistrates (Consequential Amendments) Act 1999 (Cth)); or
(b)when the Federal Magistrates Court was renamed the Federal Circuit Court in 2013 (see the Federal Circuit Court of Australia (Consequential Amendments Act 2013 (Cth)).
Neither of these consequential amendments Acts amended the Commonwealth Cross-vesting legislation at all, and nor were any relevant amendments made by the ACT legislature to the Cross-vesting Act.
Furthermore, the Cross-vesting Act provides for the transfer of proceedings between courts of equal status – under relevant legislation, the Federal Court, the Family Court and the ACT Supreme Court (like other Supreme Courts) are “superior courts of record”; the Federal Circuit Court of Australia Act 1999 (Cth), however, identifies the Federal Circuit Court only as “a court of record”. I would not lightly infer that the parties to the cross-vesting scheme intended to extend it generally to the transfer of proceedings to or from an inferior federal court (but see s 10 of the Commonwealth cross-vesting legislation, which provides, in limited circumstances, for the transfer of matters arising under the Australian Consumer Law to inferior State or Territory courts).
Alternatively, Mrs Barlow says, if I cannot transfer this proceeding to the Federal Circuit Court, I should simply transfer it to the Federal Court. It is not clear how this would help; it would leave her two proceedings still in two different (albeit both federal) courts, and she has not identified any basis on which a judge of a Supreme Court could make orders transferring proceedings between two federal courts (although it may be that the Federal Court can in certain circumstances transfer matters to the Federal Circuit Court). I cannot see any basis on which I could make an order that would result in both Mrs Barlow’s proceedings being before the same court.
Mrs Barlow’s reason for wanting her two proceedings heard together seems to be that she regard the proceedings currently before me as a “counter-claim, set-off or cross demand” as described in s 40(1)(g) of the Bankruptcy Act 1966 (Cth). In her 14 June 2016 submissions, she identifies her claim as a “counter-claim” which, she says, has “sufficient substance” to it (but without identifying the nature of that substance).
Section 40(1)(g) in fact refers to a:
counter-claim, set-off or cross demand ... that [the debtor] could not have set up in the action or proceeding in which the judgment or order was obtained.
To the extent that Mrs Barlow’s action in the Magistrate’s Court sought, on no identified ground, a declaration to the effect that the debt pursued by the Law Society was not owed by her to the Law Society, I cannot see how that dispute could have been pursued anywhere except by an appeal against the Full Court’s costs order (that is, in a further stage of the action or proceeding in which the judgment or order was obtained).
In the absence of submissions on this issue, I note only that an appeal from the Full Court’s decision in Mrs Barlow’s case against the Law Society appears to lie to the Court of Appeal (s 37E(2) of the Supreme Court Act 1933 (ACT), since there is no obvious basis, in the Legal Profession Act 2006 (ACT), the Supreme Court Act, the CPRs, or any other legislation identified in this matter, for concluding that the Full Court was exercising appellate jurisdiction (and see Legal Practitioner v Council of the Law Society of theACT [2014] ACTSC 256 at [14]-[17]). Whether an appeal restricted to the costs orders would require leave is a matter I need not consider at this point.
Furthermore, Mrs Barlow’s application in the Magistrates Court proceedings for the declaration mentioned at [34] above, or for an order of prohibition or an injunction to prevent enforcement of the debt, is not in my view properly described as a “counter-claim, set-off or cross demand” – it amounts to nothing more than an implied assertion that the debt claimed by the Law Society is not owed by her or at least should not be enforced against her.
For these reasons Mrs Barlow’s claim for a declaration about whether the debt should be enforced does not seem to satisfy s 40(1)(g) of the Bankruptcy Act.
Mrs Barlow’s apparently tortious claim against the Law Society may fit the description of a claim that could not have been pursued in the Full Court proceedings. However, as noted by the Law Society in relation to the competency issue at [48] below, that claim is at best “a vague, unparticularised and wholly unsubstantiated claim for damages”. It could not be accepted as a claim, set-off or demand “equal to or exceeding the amount of the judgment debt or sum payable”.
If the claims made in the Magistrates Court proceeding do not include a “counter-claim, set-off or cross demand ... that [Mrs Barlow] could not have set up in the action or proceeding in which the judgment or order was obtained”, then there is no practical utility that I can see in bringing the current proceeding and the bankruptcy proceedings before the same court.
Finally in this context, I note that the current Supreme Court proceeding raises procedural issues (whether the Magistrate was correct to strike out Mrs Barlow’s originating application, dismiss the proceedings and order judgment for the defendants) rather than the issues that Mrs Barlow apparently sought to pursue before the Magistrate (including whether she is indebted to the Law Society, and whether the Law Society is liable to her in tort). At best, the resolution of Mrs Barlow’s appeal in her favour would result in the matter being returned to the Magistrates Court for hearing. It is hard to see how that largely procedural dispute could usefully or conveniently be dealt with by a federal court in the course of dealing with the bankruptcy proceedings; for that reason, even if s 5 of the Cross-Vesting Act were applicable in this case, it is unlikely that I would have found that it was either more appropriate, or otherwise in the interests of justice, for the current appeal to be determined by a federal court.
Accordingly, I am satisfied:
(a)that there is no power under s 5 of the Cross-vesting Act to transfer this proceeding to the Federal Circuit Court; and
(b)that if s 5 of the Cross-vesting Act did generally confer a transfer power on this court, this proceeding would not satisfy the conditions for the exercise of any such power under that section.
The competence of the appeal
The Law Society says that Mrs Barlow’s appeal from the Magistrate’s decision is incompetent, because of the operation of s 274 of the Magistrates Court Act 1930 (ACT), and should be struck out under r 5172.
Section 274 of the Magistrates Court Act is as follows:
274Cases in which appeal may be brought
(1)An appeal may be brought only with the leave of the Supreme Court.
(2)However, an appeal may be brought as of right from a judgment or order—
(a)for, or for the payment of, an amount of $2 000 or more; or
(b)in a proceeding in the Magistrates Court—
(i) in which the matter in issue amounts to, or is of the value of, $2 000 or more; or
(ii) that involves directly or indirectly a claim, demand or question to or in relation to any property or any civil right amounting to, or of the value of, $2 000 or more.
No application for leave has been made.
The Law Society says that the appeal does not fall under s 274(2).
Mrs Barlow’s affidavit dated 2 May 2016 dealt with the competence of her appeal; she pointed out that in January 2016, before responding formally to Mrs Barlow’s notice of appeal, the Law Society queried the need for leave under s 274, but conceded the argument after Mrs Barlow referred Mr Phelps to s 274(2)(b)(ii). The Law Society does not dispute this assertion, but now, for whatever reason, seeks to revive the challenge to the competence of the appeal.
The originating application filed by Mrs Barlow in the Magistrates Court sought the orders set out at item 10 in the chronology at [4] above. The Law Society says that the only paragraph in her application that is possibly relevant under s 274(2) is “3. An order that the seven Defendants have caused loss and damage to the Plaintiff”, but that the proceedings in the Magistrates Court could not, by reference to this paragraph in the context of the application as a whole, be characterised as involving:
directly or indirectly a claim, demand or question to or in relation to any property or any civil right amounting to, or of the value of, $2 000 or more.
The Law Society says that this paragraph “amounts to no more than a vague, unparticularised and wholly unsubstantiated claim for damages”.
In making this submission, the Law Society relies on a statement made by Handley AJ in OCS Australia Pty Ltd v Cho [2010] NSWCA 85 at [10] in relation to s 127(2)(c) of the District Court Act 1973 (NSW):
10 The Court must be able to determine the competency of quantum appeals in personal injury cases without having to hear the appeal. Competency cannot depend on the result. Consequently a bona fide claim for the requisite amount that is susceptible of reasonable support is sufficient to demonstrate that the appeal involves a matter at issue of that amount: Cole v The Commonwealth [1961] HCA 87, 106 CLR 653, 656.
His Honour’s comment related to personal injury cases, but I do not consider that this renders it irrelevant in the current context.
I agree that the paragraph identified by the Law Society does not involve a claim, bona fide or otherwise, for an amount that can be identified as at least $2,000.
However, I note that another of the orders sought by Mrs Barlow in the Magistrates Court proceedings (the first order numbered “2”) is as follows:
2. A declaration under s261 of the Magistrates Court Act 1930 that:
2.1 s261(1)(a) the plaintiff is not indebted to the First Defendant at all
After Mrs Barlow began the Magistrates Court proceeding but before that proceeding was dismissed, the value of the costs order made against her and in favour of the Law Society was assessed by the Supreme Court as $51,314.04. Thus, at this stage, the notice of appeal may relate, among other things, to an application for the setting aside of an order the effect of which is that Mrs Barlow owes a debt of more than $50,000 to the Law Society. I cannot rule out the possibility that if Mrs Barlow made an appropriate application, her notice of appeal could be amended to identify that the debt referred to in her originating claim has now been quantified.
For this reason, I am not inclined to find that Mrs Barlow’s appeal does not fall within the terms of s 274(2)(b) and is therefore incompetent, although that conclusion should not be taken to suggest anything about the substance of her appeal or about the correctness of the Magistrate’s orders in respect of the Magistrates Court proceeding.
Strike out and summary dismissal
The Law Society’s complaint
In the alternative to a strike-out on the grounds of incompetence, the Law Society seeks an order striking out the notice of appeal and summarily dismissing Mrs Barlow’s notice of appeal.
It submits that Mrs Barlow’s stated appeal ground is:
... embarrassing and inadequately particularised and does not comply with the requirements of rule 5101(g) of the Court Procedures Rules 2006 (ACT) to state briefly, but specifically, the grounds relied on in support of the appeal.
A failure to comply with an applicable rule is an appropriate basis on which to criticise an appeal ground. Whether a claim that an appeal ground is embarrassing or inadequately particularised provides a further and separate ground for criticising a notice of appeal is less clear. Nor is a finding of non-compliance with the rule, or of other inadequacies in the notice of appeal, necessarily fatal, especially in the context of an appeal instituted by an unrepresented litigant. However, it is convenient to also whether Mrs Barlow’s appeal ground could be identified as embarrassing or inadequately particularised before considering the consequences of any finding about the adequacy of the notice of appeal.
Rule 5101
Rule 5101(g) of the CPRs requires a notice of appeal to state:
(g) briefly, but specifically, the grounds relied on in support of the appeal, including, in particular, any grounds on which it is claimed that there is an error of law in the order of the court or tribunal;
In her ground of appeal, Mrs Barlow claims jurisdictional error by the Magistrate, and claims that his Honour’s error involved taking account of irrelevant considerations and failing to take account of relevant considerations.
A claim of jurisdictional error is a claim that can meaningfully be made against a Magistrate (Canham v ACT Magistrates Court (2014) 9 ACTLR 84 and cases cited therein), although it would properly be made in an application for judicial review. However, in appropriate circumstances an “appellant” could be permitted to discontinue her appeal and file instead an application for judicial review based on her claim of jurisdictional error (this would put an end to the appeal, but not to the challenge to the Magistrate’s orders).
Claims of taking account of irrelevant considerations or failing to take account of relevant considerations would not commonly be particulars of a claim of jurisdictional error, but this cannot be completely excluded: in Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013) at 18, Mark Aronson and Matthew Groves have identified erroneous treatment of relevant or irrelevant considerations as potentially leading to jurisdictional error, but only ““if the proper construction of the relevant Act is that such errors result in [the] invalidity” of the decision.
A claim that a Magistrate has taken account of irrelevant considerations or failed to take account of relevant considerations is a meaningful ground of appeal against the exercise by a Magistrate of a discretionary power (House v The King (1936) 55 CLR 499 at 505). The power to strike out a pleading is a discretionary power (Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193; Clarke & Ors v Great Southern Finance Pty Ltd & Ors (2010) 243 FLR 451 at [11]). Again, in appropriate circumstances Mrs Barlow could be permitted to amend her ground of appeal to omit the reference to jurisdictional error and focus on the asserted House v The King errors.
I note also Dean Mildren’s comment, in The Appellate Jurisdiction of the Courts in Australia (Federation Press, 2015) at 6.05 that:
The first indication of the grounds of appeal is in the notice of appeal itself, and these do not explain how the joint intends to argue its case. Full disclosure of the appellant’s case comes only when the appellant has served its outline of argument.
In Appellate Practice (ed Blank and Selby, Federation Press, 2008) at 49, Sydney Tilmouth QC notes that “[g]rounds of appeal are too often very uninformative”, and goes on to give examples of grounds of appeal not dissimilar in their lack of detail to that relied on by Mrs Barlow. Similar comments about unilluminating grounds of appeal are made in Beazley, Vout and Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (Lexis Nexis, 2014) at 5.16.
It is clear that such grounds of appeal are undesirable, and potentially unhelpful to the appellant’s case, but it is not so clear that they will routinely be struck out.
For these reasons I would hesitate to conclude that Mrs Barlow’s ground of appeal, which identifies recognisable (if unparticularised) grounds of appeal, does not comply with r 5101.
Is the appeal ground embarrassing or inadequately particularised?
The Law Society’s claim that Mrs Barlow’s ground of appeal is embarrassing and inadequately particularised is more convincing. I am satisfied that if the statement of a ground of appeal is a form of pleading, then Mrs Barlow’s statement of her ground could be described as an embarrassing pleading.
A pleading is embarrassing if it is “unintelligible, ambiguous, vague or too general” (Young v Hones [2013] NSWSC 580 at [83]).
In Mayfield & Mayfield v P & B Corporation [2015] WASC 356 at [81], Allanson J said:
pleadings may also be struck out on the ground that they may prejudice, embarrass or delay the fair trial of the action 'because they are evasive, they conceal or obscure the real questions in controversy, they are ambiguous or not reasonably intelligible, they raise immaterial or irrelevant issues, they fail to confine the issues or state the case of the party in question with reasonable particularity, or they raise a case in terms which are simply too general':
(citations omitted)
A particular mischief of an embarrassing pleading is that the defendant simply does not understand what the plaintiff’s case is, and cannot properly respond to it.
In this case, not only does the appeal ground contain a probably incoherent combination of assertions of jurisdictional error and error in dealing with relevant and irrelevant considerations, but it gives no content to any of the errors mentioned. As such, it does not add to the respondents’ understanding of what they need to address or respond to in the appeal.
For the purpose of considering whether it would be appropriate to strike out Mrs Barlow’s notice of appeal but give her leave to file another notice clarifying her appeal ground, I have considered the material provided by Mrs Barlow in connection with the Law Society’s application.
Since the brief oral hearing in May 2016, Mrs Barlow has provided submissions, and submissions in reply, as well as three affidavits containing material in the nature of submissions (a total of 61 pages). That material has included a number of references to her claim of jurisdictional error on the part of the Magistrate, but little in the way of explanation or identification of that jurisdictional error.
For instance, at [22] of her affidavit dated 2 May 2016, she says:
I seek a judicial review of Morrison J’s decision because the decision is vitiated with jurisdictional error, and this is the purpose of my application to this Court on 4 January 2016. (SCA 1 of 2016) The deponent’s statement that Morrison J dismissed my application because it was an abuse of process and had no reasonable prospect of success, is questionable, due to the jurisdictional errors in the judgment.
I have looked more broadly at Mrs Barlow’s submissions in case she has raised any other claim that could possibly be re-pleaded as a proper appeal ground.
Mrs Barlow’s submissions largely consist of repeated re-arguing of the matters that were before the Full Court, supplemented by claims made in reliance on the “new evidence” that is considered at [92] to [115] below.
In her 13 May 2016 submissions at [8], however, she has pointed to one matter that could amount to a particularised claim of error on the part of the Magistrate, being the claim that in considering whether to strike out her claim and dismiss the Magistrates Court proceeding, his Honour “decided the matter on its merits, instead of, as he should have done, determining only whether there existed a prima facie case”. If his Honour did indeed apply the wrong test in considering the Law Society’s action, this might be a basis on which to set his decision aside.
Mrs Barlow explains this error as follows:
His Honour states at paragraph 10 of his judgment that he had regard to all the material. It was not open to him to do so, as the application was a strike out application and not a hearing on the merits of the plaintiff's case. Different tests apply. The court should have examined the evidence, not for the purpose of making findings of fact but only to determine whether a triable issue is disclosed (Wickstead v Browne (1992) 30 NSW 1 at 9). This procedure is analogous to the situation in the Federal Court where the court is to decide whether to set aside a bankruptcy notice on grounds of there being relevant proceedings in another court. The Court does not decide the merits of the process in the other court, but only decides whether there is a prima facie case to be heard. This aspect of the appellants [sic] case is pending in the Federal Court [sic].
Mrs Barlow cites Wickstead v Browne (1992) 30 NSWLR 1 as authority for her claim of error. That case involved an action by a plaintiff whose trust funds had allegedly been misused by a trustee company which subsequently went into liquidation. One of the defendants, an officer of the trustee company, had obtained an order that the proceeding against him be struck out on the ground that it disclosed no reasonable cause of action against him, in that none of the evidence by then available to the court provided any basis for finding that he was personally involved in any of the trustee company’s relevant conduct, and some of it seemed to exclude his involvement.
On appeal, the proceeding against that defendant was reinstated, on the basis that one of multiple defendants cannot be entitled to summary dismissal before trial on the ground of evidentiary deficiencies in the plaintiff’s case, because such deficiencies may be overcome if other defendants go into evidence (at 11-12).
The primary judge in Wickstead v Browne had, in confirming the strike-out, considered evidence said by the defendant to be unavailable to the plaintiff because the defendant had not been cross-examined about that evidence. Handley and Cripps JJA said (at 9):
The judge rejected this submission and in our view correctly. The issue on an application for summary dismissal is whether the action should be allowed to go to trial. The court examines the evidentiary materials placed before it on such an application, not for the purpose of making findings of fact where the material conflicts but to determine whether a triable issue is disclosed.
The point of their Honours’ comment was not to preclude a judge considering a strike-out application having regard to all the material then available to the court, but to permit him or her, in determining “whether a triable issue is disclosed”, to have regard to material then available even if it might at that point have appeared to be inadmissible in any future trial.
Nor is the analogy suggested by Mrs Barlow, between the Magistrate’s consideration of the strike-out application and the Federal Court’s dealings with a bankruptcy notice where current proceedings in another court are raised by the debtor, particularly helpful in this context. Unlike a court dealing with a bankruptcy proceeding in which the debtor relies on a counter-claim, set-off or cross-demand that is before another court, the Magistrate in this case was dealing with proceedings that were in fact before him, and in respect of which he could reasonably expect to be aware of all relevant material that the parties had identified.
Furthermore, an examination of the Magistrate’s decision indicates that, to the extent that his Honour considered evidence, his focus was clearly whether a “triable issue” was disclosed.
I have not been able to identify anywhere in Mrs Barlow’s submissions, including those contained in affidavits, where she has identified any legal principle that has been erroneously applied by the Magistrate.
The Magistrate’s decision
I have also reviewed the Magistrate’s decision with a view to identifying any obvious error that might have concerned Mrs Barlow despite her being unable to articulate its significance for her appeal.
His Honour set out at some length the history of Mrs Barlow’s applications for unrestricted practising certificates, of her appeal to the Full Court, and of the proceeding then before him. It seems that he struggled to find coherence in Mrs Barlow’s documents, which consisted of an Originating Application seeking the orders quoted at item 10 in the chronology at [4] above, affidavits filed on 22 July 2015 and 22 September 2015, and written submissions filed on 30 October 2015, 2 November 2015, and 18 November 2015.
Eventually, the Magistrate addressed two documents annexed to an affidavit filed on 22 September 2015 that purported to provide particulars to Mrs Barlow’s pleading. His Honour described this material, and how he had approached it, as follows:
32The first annexure is headed "Statement of Claim". I refer to it in these reasons by that name. The document comprises 15 pages. It contains a lengthy and somewhat rambling but chronologically accurate history of the plaintiff's dealings with the first defendant in particular and with some reference to the other defendants also. It does contain some clear statements of criticism of the conduct of the first defendant in particular but largely does not plead any cause of action in any traditional manner. At the end of the document there is however a heading - "Precise form of orders sought".
33Despite how it is described in paragraph 16 of the plaintiff's affidavit, the second document is headed "Outline of submissions". It contains submissions going to some of the matters referred to in the statement of claim. In addition it includes submissions directed to matters not expressly dealt with in that document - e.g. a claim of bias and of breach of the Human Rights Act 2004 (Cth).
34There are headings in the statement of claim but they do not help much in the analysis I have undertaken. By way of giving some structure to the analysis I have undertaken I have worked through the list which appears under the heading "Precise form of orders sought" at the end of the statement of claim. It is a more expansive list than what appears in the originating application and does appear to cover, in one way or another, almost all of the plaintiff's complaints. At the end of the list I have also dealt with some other matters which appear to be the subject of comment or complaint even though they have not been pleaded as a basis for any claim as such.
35The list which appears under the heading "Precise form of orders sought" indicates that what is sought is a declaration for what then follows. That is unusually pleaded but is useful in that it reinforces the view that what follows are the claims the plaintiff seeks to put before this court.
The following table summarises the Magistrate’s conclusions by reference to the list of “orders” sought by Mrs Barlow, to which his Honour has added three other topics that Mrs Barlow might have intended to plead:
Item Declaration to the following effect sought by Mrs Barlow Grounds on which the Magistrate concluded that no triable issue was raised 1 The interpretation of the relevant legislation at the 2002 Council meeting was wrong in law given the existence of the 1971 Regulation, the 1986 Regulation and the 1986 Explanatory Memorandum. The principles of res judicata, issue estoppel and abuse of process. 2 The Defendants acted in conflict of interest and breach of their fiduciary to the Plaintiff placing their own interests for the model rules ahead of those of the Plaintiff, causing harm to the Plaintiff. No reasonable cause of action.
Any cause of action identified would be statute-barred under the Limitation Act 1985 (ACT).3 The Defendants, acted in breach of statutory duty towards the Plaintiff. The principles of res judicata, issue estoppel and abuse of process.
No reasonable cause of action.
Any cause of action identified would be statute-barred under the Limitation Act 1985 (ACT).4 The Defendants acted in misfeasance in public office causing harm. No reasonable cause of action. 5 The Defendants acted in breach of contract. No reasonable cause of action. 6 The Defendants conspired to pervert the course of justice. No reasonable cause of action. 7 The first and seventh Defendants failed in their duty to provide relevant evidence to the court thus leading the court into error. The principles of res judicata, issue estoppel and abuse of process.
No reasonable cause of action.
Solicitor’s immunity from suit (D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1).8 The Defendant Larry King defamed the applicant in his recommendation to the Council, wrongly claiming that she was a person who sought special attention. No reasonable cause of action because any cause of action identified would be statute-barred under the Limitation Act 1985 (ACT). 9 The first and second Defendants serially acted as a baton towards the Plaintiff in defence of their invalid decision of 2002. To the extent that his Honour could make sense of this claim – the principles of res judicata, issue estoppel and abuse of process. 10 The Defendant, pay the Plaintiff damages for economic loss. Statement of damages claimed: does not assist in determining whether there is a triable cause of action. 11 The Defendant pay the Plaintiff damages for non-economic loss. Statement of damages claimed: does not assist in determining whether there is a triable cause of action. 12 The Defendant pay the Plaintiff exemplary damages. Statement of damages claimed: does not assist in determining whether there is a triable cause of action. 13 The Bill of Costs to be set aside with injunction that no action is taken by the Defendant to enforce that bill of costs. The principles of res judicata, issue estoppel and abuse of process. 14 That the Defendant compensate the Plaintiff on just terms, as defined in section [51(xxxi)] of the Commonwealth of Australia Constitution Act, for having deprived the Plaintiff of her property – to practice her profession. No reasonable cause of action. Topics possibly intended to be pleaded 15 Negligence. No reasonable cause of action disclosed by any of Mrs Barlow’s material. 16 Bias by “the defendant”. No reasonable cause of action disclosed by any of Mrs Barlow’s material. 17 Breach of the Human Rights Act 2004 (ACT) by “the defendant”. No reasonable cause of action disclosed by any of Mrs Barlow’s material.
A careful reading of his Honour’s reasons suggests that, in an attempt to provide fairness to an unrepresented litigant, the Magistrate went well beyond the inquiries he would normally have been required to make in considering a strike-out application.
Conclusion
None of Mrs Barlow’s criticisms of the Magistrate’s approach, and none of her other submissions, or the “evidence” she points to, gives me any reason to believe that appropriate grounds of appeal against the Magistrate’s decision could be prepared if Mrs Barlow were given leave to re-plead her notice of appeal.
Significance of “new evidence”
Mrs Barlow’s “fundamental complaint”
In his reasons, the Magistrate identified as Mrs Barlow’s “fundamental complaint” her assertion that the Full Court (and the Law Society before it, at least in 2004) had misconstrued the legislation applicable to the granting of unrestricted practising certificates (which misconstruction had been the basis of the 2004 refusal to grant her an unrestricted practising certificate).
This assertion explains many if not all of Mrs Barlow’s claims and complaints. In summary, it seems that she believes:
(a)that the Law Society’s misconstruction of the applicable legislation was used by the Law Society as a ground for refusing her an unrestricted practising certificate in 2004;
(b)that even on the basis of its alleged misconstruction, the Law Society had not been obliged to refuse her an unrestricted practising certificate, but had taken this approach to the legislation for its own (allegedly improper) purposes;
(c)that the Law Society (and the other defendants), in the course of deciding to refuse the unrestricted practising certificate, had committed torts (including, in the case of one defendant, defamation) and a breach of contract, as well as engaging in a conspiracy to pervert the course of justice;
(d)that the Law Society and its solicitor had misled the Full Court about the state of the relevant legislation;
(e)that the Law Society should pay her damages in respect of their torts and breach of contract, and should pay her “just terms” for the acquisition of her property, being her right to practise her profession; and
(f)that if, as she says should have happened, she had been issued an unrestricted practising certificate in 2004, she would not have had to appeal to the Full Court about refusals to issue an unrestricted practising certificate in 2010 and 2011, and she would not have had a costs order made against her by the Full Court, and therefore she should not be liable under the costs order (this proposition, of course, rests on the unstated premise that if Mrs Barlow had been granted an unrestricted practising certificate in 2004, she would have been able to renew her unrestricted practising certificate each year thereafter; the conclusions of the Full Court referred to at [100] below suggest that this may not be a valid assumption).
It is in my view unlikely that many, if any, of these propositions could be made out even if Mrs Barlow were correct in her belief that in 2004 the Law Society applied an incorrect construction of the relevant legislation in dealing with her application for an unrestricted practising certificate. However, it is clear that if the construction of the relevant legislation applied by the Law Society in 2004 was correct, then none of Mrs Barlow’s complaints have any substance.
I note, however, Mrs Barlow’s assertion, in both written and oral submissions, that even if the Law Society was correct in 2004 that it had no power to issue her an unrestricted practising certificate, it should nevertheless have done so, because the Law Society had earlier given her incorrect advice, on which she had relied, about the availability of unrestricted practising certificates.
It is an unfortunate aspect of this case that at some point before 2004 Mrs Barlow was incorrectly advised by the Law Society about the basis on which unrestricted practising certificates could be issued. However, her belief that the giving of this incorrect advice entitled her to obtain an unrestricted practising certificate irrespective of the law seems to reflect a lack of understanding of both:
(a)the Law Society’s obligation to comply with the law in administering legislation regulating the legal profession; and
(b)its obligation to administer the relevant law in the interests of the community rather than in the interests of individuals who have, or who seek, the privileges associated with the practice of the legal profession (in particular, the entitlement to charge members of the public for the provision of legal advice).
Noting the importance that Mrs Barlow attaches to the proper interpretation of the relevant legislation in 2004, it may be useful to consider whether the “new evidence” that Mrs Barlow wants to raise in the Magistrates Court proceeding could have the significance she attributes to it.
Having regard to some of Mrs Barlow’s submissions about the significance of “prescribed” (eg at [113] below), it is useful to start by noting that the Dictionary to the Legislation Act 2001 (ACT), which applied to all relevant legislation at least by 2004, contains the following definition:
prescribed, in an Act, means prescribed by the Act or by regulation under the Act.
Appeal to Full Court
The appeal ultimately determined by the Full Court was an appeal by Mrs Barlow against the Law Society’s refusal to grant her an unrestricted practising certificate for 2011. Before that, she had been refused an unrestricted practising certificate in 2010, as well as having been refused in 2004. By the time of the 2011 refusal, the Full Court found (at [74]) that to qualify for an unrestricted practising certificate, a person must show:
(a) s 50 of the 2006 Act and s 13 of the Legal Profession Regulation: that she will either be in a partnership where she will be supervised by a partner who holds an unrestricted practising certificate or that she has completed two years of supervised legal practice; and
(b) s 35 of the 2006 Act and Item 5 of Table 10 of the Legal Profession Regulation: that she has attained a level of professional skill, and gained such professional experience, that it is appropriate that an unrestricted practising certificate be issued to her.
100. Mrs Barlow had only completed 12 or 13 months of supervised legal practice before applying for her unrestricted practising certificate in 2004, and had apparently completed little or none since (at [75]); accordingly she could not satisfy the requirement described by the Full Court at [74](a) unless she was to work in a partnership supervised by a person who did have an unrestricted practising certificate. This was not Mrs Barlow’s intention – she wished to operate her own practice. Furthermore, the Full Court determined, for reasons set out at [76] of its judgment and unrelated to the status of the Legal Workshop course, that she did not satisfy the criteria set out at [74](b). Accordingly, the Full Court dismissed her appeal against the Law Society’s refusal of a 2011 unrestricted practising certificate.
101. However, as explained at [93] above, Mrs Barlow’s claim against the Law Society is founded on its refusal to grant her an unrestricted practising certificate in 2004, which she says was based on a misconstruction of the then relevant legislation. The new evidence she seeks to rely on in the Magistrates Court proceeding is said to relate to the correctness of the 2004 refusal.
102. Mrs Barlow’s argument is set out in her submissions of 13 May 2016 as follows:
13.Mr Phelps, solicitor for the defendants, in his “Defendants Submissions in Reply dated 18 November 2015 states that “... the Plaintiff once again assumes what she has to prove, namely that there was a “prescribed course of legal training “ in 2002 – 2004, when plainly there was not”.
14.This is the critical point of the plaintiff’s case, for the plaintiff says: “There was not a prescribed course of legal training in the regulations because there was no need for there to be one. Indeed, there had been one in 1971, but it had been repealed in 1986 for very good reason. Furthermore, the JACS legislative history, which his Honour Morrison J requested during the course of the proceedings, shows that by 23 November 1994 the ‘PCLE is referred to directly in the act’, but that ‘there was no need for a prescription in Regulations’”.
15.In other words, while the defendants reasoned that they could not grant the certificate because there was no PCLE prescribed by regulation, the new evidence consisting of the 1971 Regulation, the 1986 Regulation, and the JACS legislative history, shows that there was NO NEED for the PCLE to be prescribed by regulation.
(emphasis in original)
The 2004 refusal
103. When Mrs Barlow completed her practical legal training course at the ANU Legal Workshop in 2000, the grant of unrestricted practising certificates was regulated by s 27 of the Legal Practitioners Act 1970 (ACT) (previously the Legal Practitioners Ordinance 1970 (ACT)) (the 1970 legislation), which relevantly permitted the grant of an unrestricted practising certificate to a person who, in the preceding five years, had engaged in appropriate legal practice for two years or had engaged in such practice for one year and had “completed a prescribed course of training for the practice of law”. It was at that time generally believed, including by the Law Society, who had advised Mrs Barlow to that effect, that the course offered by the ANU Legal Workshop had been appropriately prescribed for that purpose.
104. In late 2002, however, it emerged that no regulation had been made and therefore no course had been prescribed. The Law Society accepted that it had been mistaken in its application of the legislation, and no longer accepted completion of the Legal Workshop course as a basis for issuing unrestricted practising certificates to people who had only completed one year of appropriate legal practice. When Mrs Barlow applied for a 2004 unrestricted practising certificate on the basis of her 12 or 13 months of legal practice and her completion of the Legal Workshop course, she was refused.
The “new evidence”
105. The “new evidence” Mrs Barlow relies on is said to establish that the Law Society, and presumably the Full Court, were in fact mistaken in concluding that, in 2004, completion of the Legal Workshop course did not qualify a person to obtain an unrestricted practising certificate after one year of legal practice.
106. That new evidence is as follows:
(a)In 1971 a regulation was made prescribing the Legal Workshop course as a prescribed course of training for the purposes of s 10 of the 1970 legislation, which section at that point dealt with admission requirements. That regulation was repealed in 1986; the Explanatory Statement for the repealing regulation (Explanatory Statement, Legal Practitioners Regulations (Repeal) 1986 (Cth)) explains the repeal by pointing to the insertion of:
a provision in [s 10 of] the Legal Practitioners Ordinance prescribing the Legal Workshop course together with a general provision prescribing courses in practical legal skills in the States for the purpose of entitlement to admission in the A.C.T.
(b)The amending Ordinance by which that provision was inserted in s 10, the Legal Practitioners (Amendment) Ordinance (No. 3) 1986, also contained an amendment headed “Limitations on issue of unrestricted practising certificates”. That amendment replaced a reference, in s 15E of the 1970 legislation, to a course prescribed for admission purposes with a reference to the courses directly referred to in s 10 of the 1970 legislation.
107. Thus, while s 15E remained in that form, the reference to the Legal Workshop in s 10 was also applicable in identifying an acceptable course of practical legal training for the unrestricted practising certificate requirements.
108. However, Mrs Barlow has ignored the subsequent history of the 1970 legislation.
109. The 1970 legislation was amended by the Legal Practitioners (Amendment) Act (No. 3) 1997 (ACT). A new s 11 (Application for admission or enrolment) referred to requirements for admission prescribed by the Rules of Court, and a new s 27 (Issue of unrestricted practising certificates) again referred to applicants who had completed “a prescribed course of training for the practise of law”. One effect of this was to break the link between the admission requirements and the criteria for the grant of unrestricted practising certificates. After the 1997 amendments took effect, the 1970 legislation no longer contained a reference to the Legal Workshop course, and it seems to be agreed by all parties that there was no prescription of the Legal Workshop course by regulation for the purposes of s 27.
Effect of “new evidence”
110. As far as I can see, Mrs Barlow is correct that there was a period when the Legal Workshop course was recognised in the 1970 legislation in relation to both admission requirements and the granting of unrestricted practising certificates, being at least the period in which ss 10 and 15E of the 1970 legislation remained in the forms described at [106](b) above (possibly continuing until 1 June 1998 when the amendments made by the Legal Practitioners (Amendment) Act (No. 3) came into force).
111. However, in my view, the legislative history obtained in the Magistrates Court also indicates that from 1998:
(a)admission requirements were dealt with in the Rules of Court;
(b)practising certificates were dealt with by provisions referring to a “prescribed course of training for the practice of law”; and
(c)there was no prescription of such a course of training in relation to practising certificates either in the 1970 legislation or in any regulation.
112. That is, by 2000, there was no course of training that satisfied the description of a “prescribed course of training for the practise of law”, and therefore no scope for issuing unrestricted practising certificates on the basis of one year of legal practice.
113. Finally, I note Mrs Barlow’s submission in her affidavit of 2 May 2016 that the Legal Workshop course:
since its commencement ... was a prescribed course of practical legal training, whether prescribed by regulation, or whether prescribed by the educational institution that conducted it [and that] it was only the defendants who decided in 2004 that because it was not prescribed by regulation, that therefore, it didn’t exist.
(emphasis added)
114. The suggestion that some kind of prescription of the Legal Workshop course by ANU (as to which possibility Mrs Barlow in any case offers no evidence) would have satisfied the reference in the Legal Practitioners Act 1970 to a course prescribed by that Act or by a regulation under that Act (see [98] above) only has to be articulated for its flaws to be apparent.
115. The new evidence relied on by Mrs Barlow is about the period, starting in 1986 and, importantly, finishing in 1998, during which there was no need for a legal practice course to be prescribed in relation to the grant of unrestricted practising certificates. I cannot see how that evidence would advance her argument about the legal position in 2004.
Conclusions
116. I have concluded:
(a)that there is no power to transfer Mrs Barlow’s appeal to the Federal Circuit Court, and no ground for transferring it to the Federal Court;
(b)that Mrs Barlow’s appeal is not necessarily incompetent;
(c)that the ground of appeal specified in her notice of appeal could be described as embarrassing, in that it does not enable the respondents to know what case they are required to answer; and
(d)that there would be no utility in giving Ms Barlow leave to re-plead her ground of appeal.
117. Having considered Mrs Barlow’s “new evidence” and her arguments about the significance of that new evidence, I have also concluded that the new evidence does not establish what Mrs Barlow says it establishes, and that it does nothing to enhance her claim that the Law Society operated on an incorrect view of the law in 2004.
118. Nor does it provide any help to her in making out her argument that the costs order made in favour of the Law Society should be set aside (because the Full Court proceeding should never have been necessary, because she should not have been refused an unrestricted practising certificate in 2004).
119. On the basis of those findings, I am also satisfied, should it be relevant, that no injustice would be done by striking out Mrs Barlow’s notice of appeal and somehow disposing of the appeal.
120. The next question, however, is whether my conclusions about Mrs Barlow’s appeal ground enable me to dismiss her appeal. This is a matter on which the Law Society has made no submissions.
Available orders
There is in the CPRs relating to appeals to the Supreme Court no equivalent of r 425(3), which permits a court that has struck out an embarrassing pleading under r 425(1) to make any other order it considers appropriate; r 425(3) gives as an example an order staying or dismissing a proceeding, or entering judgment, where the court has struck out the pleading in the proceeding as disclosing no reasonable cause of action.
122. In Nobarani v Mariconte [2016] NSWCA 214, the NSW Court of Appeal considered an application to strike out a notice of appeal, dismiss the appeal, and refuse leave to file any further notices of appeal. Two earlier notices of appeal had been struck out, with leave being given to file a re-drafted notice of appeal. The Court of Appeal declined to strike out the third notice of appeal, but considered “whether the appeal is shown to be so unmeritorious as to call for summary dismissal” (at [23]); the Court concluded that one of the multiple grounds of appeal was not apparently untenable and that it could not say that there was no arguable ground of appeal.
123. It is notable, however, that by r 51.1(3) of the Uniform Civil Procedure Rules 2005 (NSW) all other provisions of those Rules, apply, subject to Part 51, to proceedings in the Court of Appeal. This contrasts with r 5001 of the CPRs, which provides that only specified parts of the civil proceedings rules (ch 2) apply to appeals to the Supreme Court, and which does not specify for that purpose the provisions for striking out pleadings and dismissing appeals set out in r 425. Thus, the NSW Court’s assumption that it had power to dismiss an appeal if it were to strike out the grounds of appeal does not establish that there is any inherent power to dismiss an appeal under the ACT Rules, but can be explained entirely by reference to specific provisions of the NSW Rules.
124. On the other hand, the authorities are clear that generally, courts have an inherent power to ensure that their processes are not abused (von Risefer & Ors v Permanent Trustee Co P/L & Ors [2005] QCA 109 (von Risefer) at [11] to [16] (Keane J).
125. In von Risefer, the disputed notice of appeal was variously described using words such as “incoherent” (at [7]); “an attempt to reopen concluded litigation” and “scandalous or absurd” (at [8]); “without discernible merit of any kind” and “bound to fail” (at [9]); “disclos[ing] no arguable error on the part of the learned primary judge”, “vexatious” and “an abuse of the process of the Court” (at [11]). The Court of Appeal made orders striking out the notice of appeal and prohibiting the plaintiffs from commencing any further proceedings without leave of the Supreme Court.
126. Keane J, without referring to various legislative provisions mentioned by the respondents, said:
[14] It has long been established that a court has the power to ensure that its own processes are not abused. The basic justification for this aspect of a court's inherent jurisdiction was explained by Baron Alderson in Cocker v Tempest where his Lordship said:
"The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion."
This principle continues to be recognised and applied by courts in both Australia and the United Kingdom. The result is, as Wallace P, Jacobs and Asprey JJ noted in the context of the Supreme Court of New South Wales, in words that are equally applicable to the Supreme Court of Queensland, that:
"... there can be no doubt that this Court has an inherent jurisdiction to endeavour to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice and for this purpose to grant in the exercise of its discretion a stay of proceedings, whether permanent or temporary, upon such conditions or terms (if any) as may seem appropriate in the particular circumstances and that this is a jurisdiction which may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case."
(citations omitted)
127. His Honour did make the point that he was not aware of “any Queensland legislation which has cut down the power of the court to prevent abuse of the processes of the court” (at [16]). He also referred at [17] to s 58 of the Constitution of Queensland 2001 (Qld), which provides at s 58(1) that “The Supreme Court has all jurisdiction necessary for the administration of justice in Queensland”, noting that it was in similar terms to s 23 of the Supreme Court Act 1970 (NSW), and at [20] cited:
Jackson v Sterling Industries Ltd where Wilson and Dawson JJ appear to suggest that a section in the nature of s 23 of the New South Wales Act or s 58 of the Queensland Act does provide the foundation for a statutory jurisdiction for the Supreme Court that mirrors the court's inherent jurisdiction. Their Honours noted, when discussing s 23 of the New South Wales Act, that:
"Section 23 provides that the 'Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales'. No relevant distinction is to be drawn between the inherent power of the Court and that bestowed by the section although, as the Court of Appeal pointed out, the section confirms the inherent power without increasing it."
(citations omitted)
128. His Honour continued at [21]:
These decisions suggest that, given the terms of s 58 of the Constitution of Queensland 2001 (Qld), it is at least arguable that the Supreme Court of Queensland need not make separate resort to the inherent jurisdiction to find a power to prevent abuse of its processes.
129. What seems to emerge from these cases is that while there is a clear power to strike out a notice of appeal in various circumstances, there is not necessarily an accompanying power to dispose of the appeal by dismissing it or entering judgment for the respondents. On the other hand, in the absence of a statutory power to dismiss an appeal after striking out a notice of appeal, there is an inherent power in a superior court to prevent an abuse of the court’s processes, which may enable the court, for instance, to bar any further proceedings without the court’s leave.
130. However, since the specific powers available in conjunction with the striking out of a notice of appeal have not been addressed by either party in their submissions on the Law Society’s application, I propose to seek brief further submissions about the appropriate orders to be made in consequence of the findings set out at [116] to [119].
131. Accordingly, I shall make the following orders:
1. The application to transfer the proceedings to the Federal Circuit Court or the Federal Court is refused.
2. The parties will be heard:
(a)about the appropriate orders to be made to give effect to the findings set out at [116] to [119] above; and
(b)about the costs of this application.
| I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 21 February 2017 |
Amendments
1 June 2017Replace “Court Procedures Rules 2006 (ACT), rr 425” with “Court Procedures Rules 2006 (ACT), ch 2, rr 425” Page 1
Replace “Legal Practitioners (Amendment) Act (No. 3) 1997 (ACT), s 11” with “Legal Practitioners (Amendment) Act (No. 3) 1997 (ACT), ss 11”
Page 1Replace “Uniform Civil Procedure Rules 2005 (NSW), r 51.1(3)” with “Uniform Civil Procedure Rules 2005 (NSW), pt 51, r 51.1(3)” Page 2
Replace
Michaela Barlow (Appellant/Applicant)
Law Society of the ACT (First Respondent/Defendant)
Larry King (Second Respondent/Defendant)
Bill Redpath (Third Respondent/Defendant)
Chris Chenoweth (Fourth Respondent/Defendant)
David Harper (Fifth Respondent/Defendant)
Robert Reis (Sixth Respondent/Defendant)
Michael Phelps (Seventh Respondent/Defendant)
with
Michaela Barlow (Appellant/Respondent)
Law Society of the ACT (First Respondent/Applicant)
Larry King (Second Respondent/Applicant)
Bill Redpath (Third Respondent/Applicant)
Chris Chenoweth (Fourth Respondent/Applicant)
David Harper (Fifth Respondent/Applicant)
Robert Reis (Sixth Respondent/Applicant)
Michael Phelps (Seventh Respondent/Applicant) Page 2
Replace “Self-represented (Appellant/Applicant)” with “Self-represented (Appellant/Respondent) Page 2
Replace “Mr M Phelps (Respondents)” with “Mr M Phelps (Respondents/Applicants)” Page 2
Replace,
Self-represented (Appellant/Applicant)
Phelps Reid (Respondents)
with
Self-represented (Appellant/Respondent)
Phelps Reid (Respondents/Applicants) Page 3
Replace “on for January” with “on 4 January” Paragraph 20
Replace “firsts costs order” with “first costs order” Paragraph 5
Replace “Notice of Appeal” with “notice of appeal” Paragraph 19
Replace ““the Court Procedures Rules 2006 (ACT)” with “the CPRs”
Paragraph 35
Replace “Notice of Appeal” with “notice of appeal” Paragraph 116
Replace “(Part 2)” with “(ch 2)” Paragraph 123
Replace “Notice of Appeal” with “notice of appeal” Paragraph 125
October 2017
Replace “I have also reviewed the Magistrate’s decision with a view to identifying any obvious error that might have concerned Mrs Barlow despite her being able to articulate its significance for her appeal”
with
“I have also reviewed the Magistrate’s decision with a view to identifying any obvious error that might have concerned Mrs Barlow despite her being unable to articulate its significance for her appeal.”
Paragraph 86
6
10
21