Fuller v Baptist Union of NSW
[2004] FMCA 789
•10 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FULLER v BAPTIST UNION OF NSW & ANOR | [2004] FMCA 789 |
| PRACTICE AND PROCEDURE – HUMAN RIGHTS – Whether a certificate as to the prospects of success in damages proceedings in the Federal Magistrates Court is required – application of s.198L of the Legal Profession Act 1987 (NSW) considered. |
Civil Liability Act 2002 (NSW), s.3
Federal Magistrates Act 1999 (Cth), s.50
Federal Magistrates Court Rules 2001 (Cth)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Judiciary Act 1903 (Cth), s.79
Legal Profession Act 1987 (NSW), s.198L
King’s College v Allianz Insurance [2003] QSC 353
Oshlack v Richmond River City Council [1998] HCA 11
Solomons v District Court of New South Wales [2002] HCA 47
Wilson v Alexander [2003] FCAFC 272
| Applicant: | SIMON FULLER |
| First Respondent: Second Respondent: | BAPTIST UNION OF NSW ROSE WEIR |
| File No: | SYG2330 of 2004 |
| Delivered on: | 10 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 November 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| The applicant appeared in person |
| Mr C McElroy appeared on his own behalf |
| Solicitors for the Respondent: | Mr W Wade Abbott Tout |
INTERLOCUTORY ORDERS
The Court declares that no court documentation has been filed in proceedings in this Court in this matter for the purposes of s.198L of the Legal Profession Act 1987 (NSW).
There be no order as to costs.
Leave is granted to Mr McElroy to withdraw from the proceedings.
The applicant is to file and serve on the respondents any further affidavit evidence on which he intends to rely on or before 24 December 2004.
The respondents are to file and serve on the applicant any affidavit evidence on which they intend to rely on or before 25 February 2005.
The applicant is to file and serve on the respondents any affidavits in reply on or before 11 March 2005.
The applicant is to file and serve on the respondents an outline of submissions no later than 10 March 2005.
The respondents are to file and serve on the applicant an outline of submissions no later than 16 March 2005.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2330 of 2004
| SIMON FULLER |
Applicant
And
| BAPTIST UNION OF NSW |
First Respondent
ROSE WEIR
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The applicant has instituted proceedings for damages in this Court pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth). This matter came before me today on an interlocutory basis because the respondent seeks a ruling whether a certificate is required for the purposes of these proceedings pursuant to s.198L of the Legal Profession Act 1987 (NSW) (“the Legal Profession Act”). It is common ground that no such certificate has been filed in the proceedings to this point. Section 198L of the Legal Profession Act is headed “Restrictions on Commencing Proceedings Without Reasonable Prospects of Success” and provides:
(1)The provision of legal services without reasonable prospects of success does not constitute an offence but is capable of being professional misconduct or unsatisfactory professional conduct.
(2)A solicitor or barrister cannot file court documentation on a claim or defence of a claim for damages unless the solicitor or barrister certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.
(3)Court documentation on a claim or defence of a claim for damages is not to be accepted for lodgment unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification.
(4) In this section:
"court documentation" means:
(a)a statement of claim, summons, cross-claim, defence or further pleading, or
(b)an amended statement of claim, summons, cross-claim, defence or further pleading, or
(c)a document amending a statement of claim, summons, cross-claim, defence or further pleading, or
(d)any other document of a kind prescribed by the regulations.
"cross-claim" includes counter-claim and cross-action.
I am told by Mr Wade, for the respondent, that no regulations have been made for the purposes of paragraph (d) of subsection (4) to the section.
At the outset of the hearing today, Mr McElroy sought leave to withdraw. I declined that leave until the issue of the need for a certificate had been resolved given that s.198L includes a disciplinary purpose. Submissions were made by Mr Wade on behalf of the respondent and Mr McElroy on his own behalf. Mr Fuller made a very brief submission on his own behalf.
Section 3 of the Civil Liability Act 2002 (NSW) (“the Civil Liability Act”) is, in my view, relevant to the interpretation of s.198L of the Legal Profession Act. That is because relevant terms are defined in that Act but not defined in the Legal Profession Act and it was a provision of the Civil Liability Act which introduced s.198L into the Legal Profession Act in 2002. Section 3 of the Civil Liability Act defines a court as including a tribunal and, in relation to a claim for damages, means any court or tribunal by or before which the claim falls to be determined. Damages is defined to include any form of monetary compensation but does not include:
a)any payment authorised or required to be made under a State industrial instrument, or
b)any payment authorised or required to be made under a superannuation scheme, or
c)any payment authorised or required to be made under an insurance policy in respect of the death of, injury to or damage suffered by the person insured under the policy.
Non-economic loss is further defined by the section.
The issue of whether s.198L of the Legal Profession Act applies to proceedings in the Federal Magistrates Court, or indeed in any federal court, appears not to have been previously considered by a federal court. My research this morning has not produced any judicial guidance by a federal court specifically related to that section, although Mr Wade has taken me to authority which is relevant to the resolution of the issues. That authority is the decision of the Full Federal Court in Wilson v Alexander [2003] FCAFC 272; the decision of the Supreme Court of Queensland in King’s College v Allianz Insurance [2003] QSC 353 and the decision of the High Court of Australia in Solomons v District Court of New South Wales [2002] HCA 47.
There are, in my view, two issues to be resolved for the purposes of determining whether s.198L applies in these proceedings. The first is whether the section is capable of applying in its own terms. The second, if the first question is answered in the affirmative, is whether the section does in fact and law apply. In relation to the second question, it is apparent from my reading of the section that it serves two distinct purposes. The first purpose is a disciplinary one. It is beyond argument that the Parliament of New South Wales may regulate the conduct of legal practitioners admitted to practise in the State. The section in part is directed to the regulation of the conduct of legal practitioners. The section is also intended to regulate the conduct of claims for damages in courts. That purpose is a procedural one. It is also, in my view, beyond argument that the Parliament of New South Wales could not regulate the conduct of federal proceedings in a federal court directly. However, it is apparent from the authorities referred to by Mr Wade that the states may regulate the conduct of proceedings in courts exercising federal jurisdiction indirectly by virtue of the operation of s.79 of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). That section provides that:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
Mr Wade's proposition is that s.198L is capable of applying in its own terms and does apply as a surrogate law of the Commonwealth by virtue of the operation of s.79 of the Judiciary Act. Mr Wade submits that the section originally applied to court documentation as an undefined term. The expression "court documentation" is, however, now defined by subsection (4). On my reading of the definition of “court documentation” it is an exhaustive definition. It identifies documents which are all pleadings.
Mr Wade submits that the intention was to apply to originating processes and other documents which were in the nature of pleadings. It may be, for example, that a statement of claim is an originating process. It is obviously a pleading. However, if a proceeding is commenced by an originating process which is not a pleading, or which, more particularly, is not a pleading identified as court documentation for the purposes of s.198L(4), then in my view s.198L is incapable of applying in its own terms to that process.
These proceedings were instituted by way of application, which was filed on 22 July 2004. It is clear that the applicant seeks damages. It is clear that the proceedings have been instituted in a court. However, an application is not a pleading for the purposes of proceedings in this Court and it is certainly not a pleading of the kind identified for the purposes of the definition of “court documentation” set out in s.198L(4). I say that an application is not a pleading for the purposes of proceedings in this Court because of the terms of s.50 of the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”). That section provides that proceedings may be instituted in a Federal Magistrates Court by way of application without the need for pleadings.
It necessarily follows, in my view, that an application should not be regarded as a pleading in a proceeding in this Court and that the Court proceeds in the absence of pleadings except by order. The documents identified in subsection (4) are all pleadings. I conclude that s.198L is only capable of applying to proceedings in the Court to the extent that the Court decides that the proceedings are to be conducted on the basis of pleadings and to the extent that the Court requires the filing of a pleading of the kind identified in s.198L(4).
That may well be the case where an applicant seeks to invoke the accrued jurisdiction of the Court in order to agitate a claim under the general law. That step has not been taken in these proceedings and the proceedings are not being conducted on the basis of pleadings. It follows, and I find, that no court documentation has been filed in these proceedings to date for the purposes of s.198L of the Legal Profession Act. That finding is of itself sufficient to dispose of the issue raised before me today.
If a proceeding did arise in which “court documentation” as defined had been filed, then the issue would need to be resolved whether s.198L of the Legal Profession Act applies. While it is not necessary to resolve that issue today, my preliminary view is that s.198L(2) is not a law relating to procedure for the purposes of s.79 of the Judiciary Act. In my view, it is a law relating to the conduct of practitioners. It is therefore not a procedural law applicable in proceedings in a federal court exercising federal jurisdiction. On the other hand, subsection (3) is clearly a law relating to procedure. The issue there is whether a registry of the Court would be prevented from accepting for filing a document required by the Court, pursuant to an order made by the Court, for the conduct of proceedings by pleadings.
It would seem to be a strange result if a New South Wales State law could prevent a registry of a federal court exercising federal jurisdiction from accepting for filing a document specifically required by the Court pursuant to an order made by the Court. That result is theoretically possible to the extent that the state law is applied as a surrogate Commonwealth law pursuant to s.79 of the Judiciary Act. Once again, although it is not necessary to decide the issue in these proceedings, my preliminary view is that the Commonwealth has “otherwise provided” for the purposes of s.79 of the Judiciary Act through the enactment of the Federal Magistrates Act and the rules made under that Act by the Court.
Those rules deal comprehensively with the documents that are permitted or required to be filed in the Court for the purposes of proceedings in the court. In my view, it is likely that the Act and rules in combination cover the field to the extent of making “other provision” sufficient to exclude the operation of s.198L. The final resolution of that issue can, however, wait for another day.
The relief that I will grant the parties in relation to this interlocutory proceeding is to make a declaration that no court documentation has been filed in the proceedings in this Court in this matter for the purposes of s.198L of the Legal Profession Act.
On the issue of costs, some unusual factors need to be considered. The respondent has been clearly unsuccessful in the interlocutory matter that was raised for determination. Schedule 1 to the Federal Magistrates Court Rules 2001 (Cth) prescribe an event based costs scale in respect of which this is clearly a stage 2 proceeding for which a lump sum of $1,135 is prima facie recoverable plus a daily hearing fee for a half day hearing of $685 (which could be increased by 150% if the Court were to grant an advocacy certificate). Mr Wade resisted a costs order on several bases, one of which was that it did not necessarily follow that a costs order should be made in the resolution of a procedural point in an interlocutory proceeding.
Another submission was that there was a significant public interest element in the resolution of the issue given that there has been no previous examination of the issue by a federal court. The authority of the decision of the High Court in Oshlack v Richmond River City Council [1998] HCA 11 establishes that where there is a significant public interest element in a proceeding, it may be appropriate for the court to refrain from making a costs order. The other factor in this matter is that Mr McElroy properly revealed that he had already indicated to his client that he would not be rendering an account for his attendance at court today.
I am influenced by the fact that there is a significant element of public interest in the resolution of the important issue of the application of s.198L of the Legal Profession Act in federal proceedings in a federal court. I am also influenced by the fact that, in the absence of a costs order, Mr Fuller would not be required to pay anything to Mr McElroy in respect of his attendance at court today. Those factors are, to my mind, determinative.
I will order that there will be no order as to costs.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 18 November 2004
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