Ejueyitsi v Board of Examiners

[2021] SASCA 118

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

EJUEYITSI v BOARD OF EXAMINERS

[2021] SASCA 118

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Doyle)

13 October 2021

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL

The applicant sought leave to appeal against a decision of a single Judge of this Court refusing to reinstate an appeal against a 31 May 2017 decision of the Board of Examiners to withdraw the recognition previously given to his overseas qualifications.  The appeal was discontinued by operation of r 296(2) of the Supreme Court Civil Rules 2006 (SA).

Held, (the Court) refusing permission for leave to appeal and dismissing the appeal:

1.       There is no right of appeal against a decision made by the Board of Examiners in relation to the overseas qualifications of an applicant seeking interstate admission.

2.       In any event, the applicant’s delays present an obstacle to obtaining leave and the notice of appeal would have been struck out had the application for leave to appeal not been dismissed.

Legal Practitioners Act 1981 (SA); Rules of the Legal Practitioners Education and Admission Council 2004; Supreme Court Act 1935 (SA); Supreme Court Civil Rules 2006 (SA); Uniform Civil Rules 2020 (SA), referred to.
Ejueyitsi v Board of Examiners [2021] SASC 65; Fox v Percy (2003) 214 CLR 118; Re Evenden (1988) 148 LSJS 138, considered.

EJUEYITSI v BOARD OF EXAMINERS
[2021] SASCA 118

Court of Appeal – Civil:  Livesey P and Doyle JA

THE COURT:

Introduction

1. By a notice of appeal dated 21 June 2021 the applicant purportedly appeals as of right against a judgment dated 2 June 2021.  By that judgment Parker J dismissed the applicant’s application dated 30 November 2020 seeking reinstatement of an amended notice of appeal dated 15 June 2017, which had been discontinued by operation of the rules of court. 

   Should leave to appeal be given?

2. On 18 August 2021, the respondent filed an application to strike out the 2021 notice of appeal on the bases that this Court had no relevant appeal jurisdiction and the grounds were “incompetent and incurable”. 

3. Whilst the respondent’s application could have been ruled on by a single Judge, we have convened today so as to consider what, in our view, is the real question: Should the applicant be given leave to appeal the decision of Parker J? As the decision appears to be interlocutory in nature, the appeal is governed by s 50 of the Supreme Court Act 1935 (SA) and r 213 of the Uniform Civil Rules 2020 (SA) (the Uniform Civil Rules). 

4. Whilst there is much to be said for the criticisms made of the notice of appeal, we are prepared to look beyond its terms to the substance of the applicant’s complaint.  In so doing, we have had the benefit of written and oral submissions from the respondent dated 25 August 2021 and today, as well as written and oral submissions from the applicant dated 31 August 2021 and today.

5. Whilst the applicant spent today addressing notions of fraud and what happened before single Judges of this Court, we may put those issues to one side, as did Parker J.[1]

   [1] See for example, Ejueyitsi v Board of Examiners [2021] SASC 65, [24]-[26] (Parker J).

   The decisions made by the Board of Examiners

6. The essential issue is whether the applicant had any right of appeal arising out of decisions made by the Board of Examiners regarding the assessment made of his qualifications pursuant to the Uniform Principles for Assessing Qualifications of Overseas Applicants for Admission to the Australian Legal Profession (the Uniform Principles).  These Uniform Principles governed the consideration given by the Council of Legal Education, which advised the Board of Examiners when, between 30 August 2011 and 1 March 2016, it was determined whether the applicant’s Bachelor of Science in Law obtained from Suffield University in the United States was to be recognised as a qualification which permitted legal practice in an overseas jurisdiction as required by item 1(a) of the Uniform Principles. 

7. Regrettably, the applicant was initially and erroneously told that his qualification was recognised and accredited by the Council.  Acting on that advice, in 2011 the Board resolved to recognise the applicant’s qualification and require that he undertake the “Priestley Eleven” subjects and practical legal training in Australia, which the applicant says that he undertook.  Subsequently, in 2016 the accreditation provided by the Council of Legal Education was withdrawn and the resolution of the Board of Examiners was then revoked. 

8. Later, on 31 May 2017 the secretary for the Board of Examiners wrote to the applicant confirming the decision made by the Board of Examiners on 1 March 2016 and, perhaps unhelpfully, referred the applicant to Part 9 of Chapter 17 of the Supreme Court Civil Rules 2006 (SA) (the Supreme Court Rules 2006) “which deals with appeals against decisions made by the Board of Examiners”. 

9. The applicant then filed his amended notice of appeal, purportedly against a decision made by the Board on 31 May 2017.  He raised issues about whether he required an extension of time as well as about the circumstances in which he first learned about the revocation of the Board’s 2011 decision. 

10. The following year the applicant was advised by Registry that his appeal had been discontinued pursuant to r 296(2) of the Supreme Court Rules 2006.  Little appears to have occurred until the applicant made his application for reinstatement on 30 November 2020. 

    The question of an appeal right

11. We are not concerned with an application for judicial review challenging any decision made by the Board of Examiners between 2011 and 2016.[2]  We are concerned with whether the applicant has a right of appeal against any decision made by the Board.  That right, if it exists, must be one created by statute or perhaps the rules of court.  No right of appeal arises at common law.[3]

    [2]     This potential avenue, and some of the possible problems confronting the applicant, were reviewed in Ejueyitsi v Board of Examiners [2021] SASC 65, [54]-[55] (Parker J).

    [3]     Fox v Percy (2003) 214 CLR 118, [20] (Gleeson CJ, Gummow and Kirby JJ), [70] (McHugh J) and [145] (Callinan J).

12. The Legal Practitioners Act 1981 (SA) (the Act) governs the right of a person who satisfies the Supreme Court that she or he has complied with the Rules of the Legal Practitioners Education and Admission Council 2004 (the LPEAC Rules 2004) to be admitted as a barrister and solicitor by the Supreme Court of South Australia.[4]  Relevantly, the recognition of overseas qualifications by persons intending to seek admission as a legal practitioner in South Australia is governed by r 4 of the LPEAC Rules 2004. By s 14C(2) of the Act “A rule made under this section may leave a matter to be determined according to the discretion of LPEAC or the Supreme Court”. By s 15(1), where a person satisfies the Supreme Court that she or he has complied with the Rules, they are entitled to be admitted. By s 15(2), the Court must refer each application for admission to the Board for its report and recommendation. By s 17A, “LPEAC”, the Legal Practitioners Education and Admission Council established under Division 1 of Part 2A, may issue practising certificates and make them subject to conditions requiring further education, training and experience required or determined under the Rules. LPEAC may delegate any of its functions or powers under s 17A to the Board of Examiners. By s 17A(6) of the Act:

    A decision of LPEAC or the Board of Examiners under this section may be appealed against to the Supreme Court by the person in relation to whom the decision was made or the Attorney-General or the Society.

    [4]     The rules applicable to these proceedings when the Board made their original decision on 30 August 2011, and further decision on 1 March 2016.

13. There is nothing in the Act or the LPEAC Rules 2004 which explicitly provides for an appeal concerning recognition of the qualifications of overseas applicants for the purposes of admission under r 4. 

14. Ultimately, Parker J accepted the submission of the Board that the LPEAC Rules 2004 did not provide for appeals against decisions of the Board made under r 4 concerning applications for admission by applicants with overseas qualifications.  There is an interesting question whether the former Supreme Court Rules 2006, which applied at the time the applicant commenced his appeal,[5] conferred any relevant right of appeal.  Relevantly, rr 407 and 408 of the Supreme Court Rules 2006 provided:

    [5]     Rule 212.2 of the Uniform Civil Rules 2020 (SA) now states that the appellate jurisdiction of the Supreme Court is to be exercised by a single Judge if the appeal is a decision of the Board of Examiners under r 258.2(4) of the Uniform Civil Rules or s 17A(6) of the Act. By r 258.2(2), the Court may assign the Board of Examiners functions and powers in relation to the determination of applications under the Mutual Recognition Legislation (Mutual Recognition Act 1992 (Cth) as adopted by the Mutual Recognition (South Australia) Act1993 (SA) and Trans-Tasman Mutual Recognition Act 1997 (Cth)), concerning interstate legal qualifications, with r 258.2(4) conferring a right to appeal against decisions of the Board of Examiners.  The relevant rules are now the LPEAC Rules 2018.

    407—Application of this Part

    This Part applies to appeals against decisions of—

    (a) the Board under the Act or this Chapter;

    (b) LPEAC under the Act or this Chapter;

    (c) the Law Society under the Act or this Chapter; and

    (d) the Tribunal under the Act or this Chapter.

    408—Appeals

    (1)An appeal against a decision of the Law Society, the Board, LPEAC or the Tribunal under the Act or this Chapter is to be instituted by notice of appeal in an approved form.

    (2) Subject to the Act, an appeal is to be instituted within 21 calendar days after the date of the decision the subject of the appeal.

    (3)     Unless the Court otherwise directs, the appeal is to be governed by Chapter 13.

15. Parker J found that rr 407 and 408 did not confer a right of appeal and were concerned with the procedure by which decisions made by the Board under the Act and Chapter 17 of the Supreme Court Rules 2006 could be appealed.[6] 

    [6]     Rules 407 and 408 of the Supreme Court Rules 2006 also apply to s 46 of the Act (Appeal against appointment of supervisor or manager), s 52A (vesting of power in relation to Part 3 of the Act), s 63 (Establishment of validity of claims), s 77K (Appeal against determination of Commissioner), s 86 (appeal against decision of Tribunal).

16. In contrast to the ruling made by Parker J, the Full Court held in Re Evenden that there was jurisdiction to consider an appeal against a decision made by the Board about the extent to which a person who had completed studies outside Australia must undertake further studies in Australia before applying for admission in this State.[7]  However as Parker J pointed out, under the former Admission Rules, r 45 explicitly conferred a right of appeal against a determination made by the Board. 

    [7]     Re Evenden (1988) 148 LSJS 138 (King CJ, with whom White and Bollen JJ agreed).

    The right of appeal: admission

17. Ultimately, it is not necessary to determine whether there is or is not a right of appeal against a decision made by the Board about the applicant’s United States’ qualification. That is because any appeal right, whether under the Act or the LPEAC Rules 2004, is confined to the suitability or qualifications of an applicant who is seeking admission in this State. 

18. It is common ground that the applicant does not seek admission in this State.  He seeks admission in New South Wales.  Neither the legislation nor the rules operating in this State are intended to address the requirements for admission interstate.  To the extent that rights of appeal are conferred, they are concerned only with the requirements for admission in South Australia. 

19. In the circumstances, there was no right of appeal against a decision made by the Board of Examiners concerning the qualifications of an applicant seeking interstate admission. 

    Conclusion

20. Accordingly, there appears to be no basis upon which the applicant could pursue an appeal to the single Judge of this Court and no basis upon which that appeal could properly be reinstated.  Quite apart from whether there was any right in the applicant to appeal, the long delays associated with his application for reinstatement would appear to present a very significant obstacle.  And, in any event, the applicant’s notice of appeal is, on the face of it, incompetent.  Had we not dismissed the application for leave to appeal, it would have been struck out.

21. In the circumstances, we refuse leave to appeal and dismiss the appeal.