Felman v Victorian Layers RPA

[1998] HCATrans 152

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M3 of 1998

B e t w e e n -

PHILLIP ANTONY SAMSON FELMAN

Applicant

and

VICTORIAN LAWYERS RPA LIMITED (in substitution for the Law Institute of Victoria)

Respondent

Office of the Registry
  Melbourne  No M4 of 1998

B e t w e e n -

PHILLIP ANTONY SAMSON FELMAN

Applicant

and

VICTORIAN LAWYERS RPA LIMITED (in substitution for the Secretary of the Law Institute of Victoria)

Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 19 MAY 1998, AT 9.33 AM

Copyright in the High Court of Australia

_________________

MR D.R. MEAGHER, QC:   May it please the Court, I appear for the applicant in the matter.  (instructed by Felman & Associates)

MR B.D. BONGIORNO, QC:   If the Court pleases, I appear with my learned friend, MR P.G. LACAVA, for the respondent in both matters.  (instructed by Coltmans Price Brent)

GAUDRON J:   Yes, Mr Meagher.

MR MEAGHER:   May it please the Court, may I deal with them both together?

GAUDRON J:   Yes, thank you.  There will be a slight change to the procedures today.  There will be a bell after 17 minutes rather than a light, and a final bell at 20 minutes.

MR MEAGHER:   Your Honours, if I can go straight to the issues that we seek to agitate in this Court in these matters.  The principles are the same in both of them, although their application differs.

The first area relates to the question of abatement.  The position as it pertains was that with the passage of the Legal Practice Act the Law Institute of Victoria, which was a statutory body, was abolished, and so too, with it, its functionaries.  It was the Law Institute of Victoria that was the applicant in the first matter, and it was

the secretary of that institute that was the, through its assistant secretary, the applicant in the second.

The issue that arose concerns whether or not there was an effective transition from the old Act to the new so far as the two applications were concerned.  The applicant contends that there was not, because not only was the old Act repealed, but that the Law Institute, as a body, and its functionaries, were abolished as of a particular date.  That abolition meant that so far as the first application was concerned, the functionaries necessary for any order made by the court disappeared, and indeed, the jurisdiction of the court, itself, disappeared because it was transferred to a tribunal.

The Court of Appeal, in respect of that matter, found, and as it was open to it to find, that the rights of the institute, such as they were, were transferred by the schedule to the new Act to the society.  Where the departure between us occurs is as to whether the action itself had abated by reason of the loss of the officers necessary for its implementation.  The order that was sought was an order that would deny employment to the applicant save, as permitted by the Council of the Law Institute, that body having been specifically abolished by the new Act. 

The matter is made more pointed by the fact that under the new Act and under its schedule it is provided that it is only orders made before 1 January 1997 that would take effect as orders under the new Act.  Consequently, since no order had been made by then, there was, in our submission to the Full Court, no order that could take effect thereafter.  The Court of Appeal, in respect of that, found that the orders could be saved by reason of sections 14 and 16 of the Interpretation of Legislation Act.

GAUDRON J:   They are the crux of the matter, are they not?

MR MEAGHER:   That is the crux of that matter.

GAUDRON J:   Yes.

MR MEAGHER:   So far as the second matter is concerned, the crux of it is this:  The officer who was empowered to make the application was the secretary of the Institute.  The secretary’s office had vanished as at 1 January 1997 by reason of the abolition of the Institute.  The schedule provided for no transfer of that power of the secretary, although in respect of other powers of the secretary it did.  The Court of Appeal overcame the problem there, or sought to overcome it, by saying that where the statute empowers the secretary to make an application, the secretary holds that power on behalf of the Institute, and therefore the Institute, by reason of its rights being transferred to the society, transferred that right and so the society could now take the place of the secretary.  The crux of that matter is that, in our submission, firstly, the Institute was not a party to the proceedings, and secondly, it is not the law, in our respectful submission, that where Parliament imposes a power on an officer that it thereby imposes the power on the institution to which that person is officer.  Consequently, the Court of Appeal was not in a position late in 1997 to substitute for the secretary the society.  That is the crux of that matter.

GUMMOW J:   That is in Justice Kenny’s judgment at page 65 of the application book.

MR MEAGHER:   Yes.  That is the issue that we would seek to agitate, and so far as the abatement issues generally are concerned, if it is convenient for me to go on to why special leave should be granted on those issues, it is this:  the operation of section 14 and section 16 of the Interpretation of Legislation Act is a matter common - or the sections themselves are common to all jurisdictions in this country, and their operation in circumstances such as these is therefore of interest of a national point of view and not just a State point of view.

GAUDRON J:   But her Honour dealt with that in accordance with established principle, did she not?

MR MEAGHER:   With respect, not, your Honour.  Where they departed from it is that the established principles do not deal with anything more than an issue of repeal.  What had happened here was that the new Act had done more than repeal, it had abolished the entities, and it had declared them abolished from particular dates, and it had provided specific dates before which, and only before which, the orders previously made could be transferred.  What their Honours did there was simply to ignore all of that, and to treat it as if it was a mere repealing statute.  That, in our submission, was not open to them.

GAUDRON J:   I do not know that there would be any difference if it were a mere repealing statute, would there?  If you repeal it, make no provision, they cease to exist.  Repeal it, then for more abundant caution, make provision as to their abolition; same situation, I would have thought.

MR MEAGHER:   Your Honour, with respect, no, because if Parliament determines by statute that the body should be abolished from a particular date, namely 1 January 1997, then it is making it very clear that the bodies are not to continue from that point onwards.  It could not be more specific.  If they go on and say, “Any orders that those bodies have obtained will only be transferred if made before that date”, then Parliament is making it abundantly clear that nothing after that date is to be transferred.  The Court of Appeal has said otherwise, and that is not, in our submission, in accord with established principle.  What is the established principle there is that if Parliament makes its will clear, as clear as that, then the court’s obligation is to abide by it and to apply it.  That is what has not happened here.

The same thing applies with the office of secretary.  There was no mandate at all for it to be said that a legislative power vested in the secretary is thereby a power held for the Institute, and thereby can be transferred to the new body.  There is no authority cited for that, and one would have thought, on its face, quite contrary to normal rules of statutory interpretation.  It is in those respects, your Honour, that we say it is not dealt with in accordance with established principle, but that there has been a departure from it.  That is what we say about the abatement issue.

If I can then press on to the question of the constitutional issue; the section 109 issue.  The issue there can, I think, be summarised in this way:  For many years, in fact, for many, many years, the way in which the profession has been regulated has been by reference to acts done by a solicitor as a solicitor.  That has been the terminology that has been used.  So that for many years it has been that there had to be some representation by the person that he was in fact putting himself forward as a solicitor, when in fact he was not.

In more recent times Parliament has enacted laws that have specifically proscribed certain conduct, and that was so under the Legal Profession Practice Act, where there were certain types of conduct that were quite specifically proscribed unless done by a solicitor, such as filing process in a court, or in making certain legal instruments.

In more recent times still, both in Western Australia and in Cornall v Nagle in Victoria, it has been held by the courts that the age‑old expression of acting or practising as a solicitor was sufficient to encompass things done without representation that they were a solicitor, that the person was a solicitor.  In the Western Australian cases it was formulating a memorandum and articles of association for a company, things of that ilk.  In Victoria, Mr Justice Phillips in Cornall v Nagle found it could extend to the giving of legal advice.

Under the new Act, any suggestion in the drafting that it involved representation as a solicitor vanished.  What the new Act provided simply was that people were not to engage in legal practice.

GAUDRON J:   What do you call the new Act?

MR MEAGHER:   That is the Legal Practice Act.

GAUDRON J:   Yes, and how does that come into issue?

MR MEAGHER:   It came into issue because any order made under the old Act, which is what was being sought here, was, according to the Court of Appeal, to take effect as if made under the new Act, and therefore the prohibitions of the new Act would be the prohibitions the way they were stated that would apply.  That goes back to the first point on the abatement, because what was being said there was that the orders made would be effective because ‑ ‑ ‑ 

GAUDRON J:   Is not this idea somewhat premature; you wait and see if there is an order made.

MR MEAGHER:   The orders that would be made are orders that will affect my client for the future, his future conduct.  They are not orders that are going to punish him for past conduct, except to the extent that they are made, I suppose, on the basis of past conduct.  They are orders that are going to seek to deny him employment in connection with legal practice and, indeed, from engaging in legal practice himself, forever more; and he does not want to be subjected to those orders for the indefinite future, especially in circumstances where their ambit is unclear.

GAUDRON J:   What I am suggesting to you, Mr Meagher, is this:  that if there is any inconsistency, if there were to be any inconsistency, it would be operational inconsistency.

GUMMOW J:   Like in the Shipwreck Case.

GAUDRON J:   Yes, in the Kakariki case.

MR MEAGHER:   Yes.

GAUDRON J:   And you have not yet got to that point.

MR MEAGHER:   No, but he does have an interest in not being put into the position where he engages in conduct which is then said to be in breach of the orders and he is faced with a two‑year imprisonment, or with indefinite imprisonment for contempt of court.  He wants to avoid being put in that predicament.  Your Honour would appreciate that if he was put into that position then he is at risk ‑ ‑ ‑ 

GAUDRON J:   He would only be at risk, would he not - I mean, is this not a somewhat fanciful argument, all told.  He would only be at risk if he had a right.  You claim this under the various Commonwealth Acts, which allow you to practise as a tax agent, for example.

MR MEAGHER:   Yes.

GAUDRON J:   Where is the evidence that he is a tax agent, or an immigration agent, or any of the other ‑ ‑ ‑ 

MR MEAGHER:   No, he is not suggesting he is.  He is a law clerk.

GAUDRON J:   Exactly.  So, where is there any possibility of inconsistency?

MR MEAGHER:   He could not continue as a law clerk, for starters, your Honour, if we are right in what we say.

GAUDRON J:   If the order is made against him, that is right, he cannot continue.  But that does not bring into play section 109.

MR MEAGHER:   In our submission, it brings it into play in this fashion, your Honour, that he is to be subjected to orders which have in their embrace matters that would deny him rights which he could exercise under Commonwealth legislation.

GAUDRON J:   If he were granted the right to practise as one or other of those agents.

MR MEAGHER:   More than that, with respect, your Honour, because these orders would deny him employment by people who have those rights.  What the orders are that they are seeking is not merely that he not, himself, do those things, but that he not be employed in connection with such matters.

GAUDRON J:   In connection with the conduct of legal practice.

MR MEAGHER:   Yes, assuming for the moment we are right about its breadth.  It is not a matter of whether he would seek and be granted ‑ ‑ ‑ 

GAUDRON J:   You are drawing a long bow, are you not, to say that the various Commonwealth provisions to which you refer, guarantee you a right to be employed by those people - people who are licensed under the Commonwealth Act.

MR MEAGHER:   No, they grant a freedom to be employed, your Honour.  It is a freedom, not a right, or a liberty.  What we are here about is liberty, a matter of liberty, not a matter of legal right saying he has a right to do those things.  It is a matter of his freedom to do them.  He is entitled, in a free country, to be free to seek his employment wherever, subject, of course, to the laws of the country and what restrictions they can legitimately impose on him.  So, we are talking, with respect, about liberty.  We are not speaking about his rights or loss of rights, but rather his freedom to seek employment, and to know that when he seeks that employment he can do so freely and without impediment.  A liberty, in our respectful submission, that is no - perhaps not as great but very close to being as great, as personal freedom.  The liberty of his person.  This is a freedom of employment that we are speaking about.  What is sought against him is an order which will take effect so that he would be at risk, so far as he works in the white‑collar area, in almost anything he did, because it is almost impossible, on the way the legislation is drafted, to know where the perameters are.

We cannot complain, as we have said in our submissions, that the law is too wide in that sense, save where it conflicts with federal legislation.  But, it does conflict because on it, as we interpret it, and we say the correct interpretation is, he could not take employment by tax agents or accountants who were tax agents or in the other areas that we have nominated without risk that he would then be in contravention of the orders of the court.  For that reason, we say he is entitled to raise the matter and have it agitated, and to have it determined.

What the Court of Appeal said in answer to that was no more than what, in our respectful submission, was a redrafting of the legislation.  They redrafted it to the extent of saying that it meant engage in legal practice as a legal practitioner.  Those words are simply not there.

The final area that we agitate is in respect of the application to the principles in Wilson and Kable.  In the case of the first matter, it is our submission that the statutory provision, section 95, provides no parameters at all for the court to make its order.  It is sufficient for the applicant in that case, that is the respondents here, to demonstrate that there was a conviction, no matter how many years ago - 20‑odd years in this case - and then an order follows, or should follow.  The Court of Appeal said the court would have to have regard to current activities.  There is no mandate in the statute for that; it is left at large.  We say that contravenes the principles in Wilson and Kable, and in the case of ‑ ‑ ‑ 

GAUDRON J:   In what respect?  I think it was in Wentworth this Court held that the regulation of the right to practise in the Supreme Court was a matter of inherent jurisdiction in a superior court.  Why is it not clearly - I mean, even if you brought it within strict Chapter III confines, why is not the sort of proceeding here in issue a matter incidental to the exercise of judicial power?

MR MEAGHER:   Because this goes far beyond the right to practise.  This goes to a matter of employment.  Practise is only one, may I dare say, a relatively small aspect of the work done by legal practitioners.  This covers a broad range, and it covers everything that is in connection with legal practice.  It is not limited just to a right to practise before the court.  Not, in any way seeking to quarrel with - of course as we cannot ‑ the Court’s decision in Wentworth, simply saying this goes far beyond that, and it goes far beyond it in a form that the statute gives no parameters to at all, and in that respect contravenes ‑ ‑ ‑ 

GUMMOW J:   When you say practise before the court, I do not quite follow that.

MR MEAGHER:   Appearance, filing process ‑ ‑ ‑ 

GUMMOW J:   Well, the court controls solicitors in many activities that do not involve litigation.

MR MEAGHER:   Yes, it does, your Honour, but it does not control all the activities of solicitors.  Nor does it control who solicitors employ.  It controls people who appear as solicitors.

GAUDRON J:   They determine whether or not they are fit and proper people to carry on, to engage in practice as solicitors.

MR MEAGHER:   Indeed, your Honour.

GAUDRON J:   That may well involve - that is quite wide enough, I should have thought, to involve questions of whom they employ, who is sitting in their office and so on, who is dealing with the public on their behalf.

MR MEAGHER:   I am not familiar with any decision where the court has attempted to do that.

GAUDRON J:   Look at it from another point of view.  Let us assume that the man in the front office is a well‑known contract killer.  Why could not the court stop that, and why would not they?

MR MEAGHER:   As a driver, for example, for the solicitor, or something like that?

GAUDRON J:   The man sitting in the front office.

MR MEAGHER:   My time is up.

GAUDRON J:   Thank you.  We do not need to trouble you, Mr Bongiorno.

MR BONGIORNO:   As the Court pleases.

GAUDRON J:   Thank you.  We do not need to trouble you, Mr Bongiorno.

The Court is of the view that neither of the proposed appeals enjoys sufficient prospect of success to justify the grant of special leave.  Accordingly, the applications are dismissed.

MR BONGIORNO:   We seek an order for costs, your Honour?

GAUDRON J:   Do you say anything as to costs, Mr Meagher?

MR MEAGHER:  No, nothing to say on it, your Honour.

GAUDRON J:   They are dismissed with costs.

AT 9.55 AM THE MATTER WAS CONCLUDED