Barristers' Board v Power

[1998] QCA 22

IN THE COURT OF APPEAL	[1998] QCA 022
SUPREME COURT OF QUEENSLAND

Motion No. 7897 of 1997.

Brisbane

[Barristers’ Board v. Power]

IN THE MATTER OF THE

BARRISTERS’ ADMISSION RULES 1975

IN THE MATTER OF AN APPLICATION BY
CRAIG EDWARD REVIE POWER FOR
CONDITIONAL ADMISSION AS A
BARRISTER OF THE

SUPREME COURT OF QUEENSLAND

___________________________________________________________________________

Pincus J.A.
McPherson J.A.

Davies J.A.

___________________________________________________________________________

Judgment delivered 19 December 1997

Reasons for Judgment delivered 3 March 1998

Reasons for Judgment - the Court

__________________________________________________________________________

CATCHWORDS:	Application for admission as barrister - applicant admitted as barrister and solicitor in New Zealand - whether requirement of reciprocity of admission established - where applicant’s academic qualification and professional training and experience considered in an application for admission in New Zealand.
Barristers’ Admission Rules 1975 r. 15(d)(4), 15C Re Dooley [1985] 1 Qd.R. 40 Re Beale (1900) 10 Q.L.J. 15
Counsel:	Mr M J Byrne Q.C. for the applicant. Mr J A Crowley Q.C. for the Barristers’ Board
Hearing date:	18 December 1997.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Motion No. 7897 of 1997.

Brisbane

Before Pincus J.A.

McPherson J.A.

Davies J.A.

[Barristers’ Board v. Power]

IN THE MATTER OF THE

BARRISTERS’ ADMISSION RULES 1975

IN THE MATTER OF AN APPLICATION BY
CRAIG EDWARD REVIE POWER FOR
CONDITIONAL ADMISSION AS A
BARRISTER OF THE

SUPREME COURT OF QUEENSLAND

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 19 December 1997

Reasons for Judgment delivered 3 March 1998

On 18 December 1997 Mr Byrne QC moved the conditional admission as a barrister of the

Supreme Court of Queensland of Craig Edward Revie Power. On 19 December 1997 the Court

ordered that the application for conditional admission be refused and these are the reasons for that

order. On 17 September 1993 the applicant was admitted as a barrister and solicitor of the High Court

of New Zealand. He sought admission as a barrister of the Supreme Court of Queensland pursuant to

Rule 15 of the Barristers’ Admission Rules 1975. Mr Power failed to satisfy the Barristers’ Board

with respect to the reciprocity requirement contained in Rule 15(d)(4) which provides:

“He shall have been duly admitted as a barrister-at-law in New South Wales or as a barrister-at-law in the Dominion of New Zealand or as a barrister and solicitor in Victoria; provided that in the latter case proof be given that he has signed and remains upon the roll of counsel of that State, and provided that in any of the three cases mentioned in this paragraph it be established to the satisfaction of the Board, that the State in question, or the Dominion of New Zealand, as the case may be, grants reciprocity of admission to barristers-at-law of the Supreme Court of Queensland.”

The Barristers’ Board opposed the application on the basis that limited reciprocity only exists

in New Zealand for barristers-at-law of the Supreme Court of Queensland and that general reciprocity

is required by the Barristers’ Admission Rules 1975. The issue of reciprocity with New Zealand,

involving an earlier version of New Zealand legislation, was considered in Re Dooley [1985] 1 Qd.R.

40. In that case Macrossan J. (as he then was) stated:

“The requirement of reciprocity appears to involve a consideration of the qualification for admission and, so far as the Queensland rule is concerned, the extent to which the corresponding jurisdiction accepts the mere fact of Queensland admission as qualifying for admission in that other jurisdiction. Some degree of regulation of the right to admission is not inconsistent with the existence of reciprocity, provided that the Queensland admission fundamentally serves as a qualification for admission to the corresponding jurisdiction.”(44)

Macrossan J. cited Re Beale (1900) 10 Q.L.J. 15 which involved an application of a New Zealand

solicitor for admission as a solicitor in Queensland, at a time when a Queensland solicitor was required

to pass a further examination in law before becoming entitled to be admitted as a solicitor in New

Zealand. In that situation the Full Court found that the requirement of reciprocity was not established.

According to the evidence the relevant New Zealand provisions are in the Professional

Examinations in Law Regulations 1987, promulgated by the New Zealand Council of Legal

Education. Regulation 9 which is headed "Ad eundem credits for overseas practitioners" provides by subregulation (1):

“Any person who has been admitted as a barrister, solicitor, advocate, or attorney by a superior court in any country may apply to the Council of the New Zealand Law Society for a determination that the applicant has complied with the requirements of these regulations for admission as a barrister and solicitor.”

Under regulation 9(4) the recommendations of the Council of Legal Education or a committee acting

on its behalf must be communicated to the Council of the New Zealand Law Society and if the latter

Council agrees with the recommendations, it determines the application forthwith; if not then the Council

of the Society determines the application in consultation with the Council of Legal Education. The two

Councils are, except as provided by subcl. 6 of the regulation required to take into account various

matters, which may be summarised for present purposes by saying that they include the applicant’s

academic qualification and his or her professional training and experience.

The scheme therefore, appears to be one which requires the two Councils to exercise a

judgment with respect to the suitability of each applicant; it would not conflict with the regulations if it

were determined that a person admitted to the Queensland Bar was not of sufficient standard,

academically or as to training and experience, to be admitted in New Zealand. In contrast r. 15(d)(4)

of the Barristers’ Admission Rules, quoted above, does not contemplate any examination of the

standard of academic qualification or training or experience of a New Zealand applicant; the

qualification for admission is simply admission in New Zealand. This is enough to show that there is a

substantial difference between the basis on which a New Zealand barrister is entitled to admission here

and that on which a Queensland barrister may seek admission in New Zealand. So the requirement of

reciprocity in r. 15(d)(4) is not satisfied.

In view of the arguments advanced it is desirable to mention two other aspects of the case. One

is that special provision is made by the Professional Examinations in Law Regulations 1987, reg.

9(6), for Australian applicants who have practised for five years immediately preceding the date of

application. In their case there may be a determination that the applicant has satisfied the regulations.

The effect of this is not absolutely clear, but presumably it is intended to relieve those applicants with

whom it deals from the process of scrutiny of the standard of academic qualifications, training and

experience they have attained. Whether or not this is so, the provision made for persons who have

practised for five years cannot detract from the conclusion which has been stated, that there is a

substantial difference between the two bases of admission.

Lastly, it should be noted that under r. 15C of the Barristers’ Admission Rules an applicant

relying upon a United Kingdom, New Zealand or Australian State or Territory admission may, subject

to a certain exception, be required "to complete such course of practical training as the Board may

determine". There was no evidence as to the way in which the Board exercises this discretion with

respect to applicants within its scope. There is evidence before us that in New Zealand in "practice,

Australian practitioners have been required to pass what is in effect the minimum requirement imposed

on all overseas practitioners and that is the Examination in New Zealand Law and Practice". This

appears, on the face of it, to be an examination of wider scope than that which may be required under

r. 15C; but it is unnecessary to determine whether, if it were the only obstacle in the applicant’s path,

this point would defeat his application.

As has been stated, these are the reasons for refusal of the application.