In the Matter of Michael Trevor Prescott, A Practitioner And the Legal Practitioners Act 1981
[2009] SASC 312
•1 October 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
In the Matter of MICHAEL TREVOR PRESCOTT, A PRACTITIONER AND THE LEGAL PRACTITIONERS ACT 1981
[2009] SASC 312
Judgment of The Honourable Justice Bleby
1 October 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES - CANCELLATION AND SUSPENSION
Application by legal practitioner for extensions of time within which to file audit reports of trust account – applicant lodged audit report late two years in a row – applicant continued to practise during the period in which practising certificate was taken to be suspended – whether Court has power to extend time after late audit report has been submitted – whether Court has power to make an order for extension of time nunc pro tunc – whether orders sought would cure a procedural defect or a fundamental irregularity.
Application dismissed – Court does not have power to make orders sought.
Legal Practitioners Act 1981 (SA) s 21, s 22, s 23, s 33, s 52, s 52A, s 82; Trade Practices Act 1974 (Cth); Fair Trading Act 1987 (Cth); Legal Practitioners (Miscellaneous) Amendment Act 2003 (SA), referred to.
Emanuele v Australian Securities Commission (1997) 188 CLR 114; David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265; Whisprun Pty Ltd v Sams [2002] NSWCA 394; Hartley Poynton Ltd v Ali (2005) 11 VR 568, discussed.
Kahoury v Government Insurance Office of New South Wales (1983) 165 CLR 622; Elyard Corporation Pty Ltd v DBB Needham Sydney Pty Ltd (1995) 61 FCR 385; Williamson v Henshaw (1747) Dickens 129; Jesson v Brewer (1763) Dickens 370; Lawrence v Richmond (1820) 1 Jac & W 241; Re Jones [1891] WN 114, considered.
In the Matter of MICHAEL TREVOR PRESCOTT, A PRACTITIONER AND THE LEGAL PRACTITIONERS ACT 1981
[2009] SASC 312Civil
BLEBY J.
Introduction
Section 33 of the Legal Practitioners Act 1981 (SA) (“the Act”) requires that a legal practitioner who maintains a trust account must have the accounts and records for each year ending 30 June audited by an approved auditor, and must submit a copy of the auditor’s report to this Court on or before 31 October in that year or such later date as the Court may allow. The first question on this application is whether the Court has power so to extend the time after a late audit report has been submitted or, in the alternative, to make such an order nunc pro tunc. The second question is, if the Court has such a power, whether it should be exercised in this case.
Section 33 of the Act provides:
(1) A legal practitioner who maintains a trust account must in each year—
(a) have the accounts and records kept by the legal practitioner under this Division (made up to 30 June in that year) audited by an auditor approved by the Supreme Court in accordance with the regulations (an "approved auditor); and
(b) a copy of the auditor's report to the Supreme Court on or before 31 October in that year or such later date as the Supreme Court may allow.
Maximum penalty: $10 000.
(2)If a local legal practitioner fails to submit a copy of an auditor's report to the Supreme Court in accordance with subsection (1), the legal practitioner's practising certificate will be taken to be suspended until subsection (1) is complied with.
In this case the legal practitioner did not submit his audit report for the financial year ending 30 June 2006 until 1 December 2006. For the financial year ending 30 June 2007 the report was submitted on 2 November 2007.
In respect of the failure to submit the report by 31 October 2006, the Legal Practitioners Conduct Board (“the Board”) commenced an investigation on 7 February 2007. There was correspondence between the practitioner and the Board until 6 August 2007. On 10 September 2007 the Board filed a charge of unprofessional conduct against the practitioner in the Legal Practitioners Disciplinary Tribunal (“the Tribunal”). The allegations were:
1That the practitioner failed to comply with requirements under the Act and the Regulations under the Act with respect to his practice trust account. Particulars included the fact that the audit report was not submitted before 31 October 2006. There were other irregularities alleged as well;
2That the practitioner continued to practise as a legal practitioner throughout the month of November 2006 while his practising certificate was suspended by operation of s 33(2) of the Act;
3That the practitioner charged clients for legal work undertaken by him in South Australia during the period that his practising certificate was suspended.
There were other allegations of unprofessional conduct in relation to the Board’s investigation, but these have not been proceeded with.
It was after service of the charge concerning these matters that the failure to submit the auditor’s report for the financial year ended 30 June 2007 occurred.
The charge was heard by the Legal Practitioners Disciplinary Tribunal on 14 and 15 April 2008 when judgment was reserved. It has not yet been delivered, pending the outcome of this application.
As will be seen, it is not necessary for the purpose of these proceedings to make any detailed findings as to the circumstances in which the failures occurred. It is sufficient to note that the applicant is an experienced practitioner, having been admitted to practise in 1979. At all material times he had been practising as a sole practitioner under the name “Prescotts Barristers and Solicitors”. On 1 July 2006 he joined another firm as a non-capital partner where he has continued to practise. Upon joining the new firm he transferred some of his active files to that firm and any associated trust funds to that firm’s trust account. His own trust account became a dormant account with a decreasing balance as matters relating to it were wound up. It was closed in December 2007.
There is no suggestion of any irregularity in the application of the trust moneys.
The proceedings
On 13 May 2008 the practitioner filed an interlocutory application in this Court in the matter relating to his admission to practice (File No 2461 of 1977) in which he sought, among other things, the following orders:
1That the date by which the applicant submit a copy of the audit report of the trust account of Prescotts Barristers and Solicitors pursuant to s 33(1)(a) for the financial year ended 30 June 2006 be extended nunc pro tunc until the 1st day of December 2006.
2That the date by which the applicant submit a copy of the audit report of the trust account of Prescotts Barristers and Solicitors pursuant to s 33(1)(a) for the financial year ended 30 June 2007 be extended nunc pro tunc until the 2nd day of November 2007.
Following some doubt about the appropriateness of the application in that matter, a fresh application was filed in the current proceedings (Matter No 1040 of 2008) on 18 July 2008. The relief sought by summons in that application was the same as in the previous application.
On the day in which that application was set down for hearing, counsel raised, for the first time, a question as to this Court’s jurisdiction to hear the application given that the Court had, pursuant to s 52A of the Act, assigned to the Law Society of South Australia its powers under s 33(1)(b) of the Act. Without deciding whether this Court did have jurisdiction to hear the application at first instance, I adjourned the hearing to enable the practitioner to apply to the Law Society for the orders he had sought from this Court. Subsequently, on 3 December 2008, the Law Society advised the practitioner’s solicitors of the result of his application in the following terms:
1.The Supreme Court has, pursuant to Section 52A of the Legal Practitioners’ Act 1981 (LPA) assigned to the Society various administrative functions and powers including powers under Section 33(1)(b) of the LPA. The Society is of the view that there is no power under Section 33(1)(b) of the LPA to allow a retrospective ability to extend the time limit under that Section. Accordingly, the Society refuses to make the orders as sought by your client.
2.If the Society does have the power to make the orders as sought by your client, the Society:-
(a)Is not prepared to make the orders sought with respect to the 2006 audit report, noting the significant period of delay both in the filing of the report and the making of the application to extend, and the fact that your client’s conduct with respect to the preparation of the 2006 audit report is the subject of ongoing proceedings in the Legal Practitioners’ Disciplinary Tribunal; and
(b)It is prepared to make the orders sought at paragraph 1 by your client with respect to the 2007 audit report.
Following this decision by the Law Society the practitioner filed an amended summons. By that amended summons he still seeks orders granting extensions of time nunc pro tunc but now, in the alternative, he appeals against the decision of the Law Society pursuant to s 52A(3) of the Act.
At the hearing the applicant, the Law Society and the Board were all represented by counsel. It was agreed by all parties that I should approach the matter as a re-hearing de novo on both the application and the appeal. Accordingly, I am relieved of any need to decide whether or not there is a residual power in the Court to deal with the application where the power to do so has been assigned to the Law Society.
The submissions summarised
Section 33(1)(b) of the Act provides that an auditor’s report must be submitted by 31 October each year “or such later date as the Supreme Court may allow”.
The practitioner argued that the power conferred by s 33(1)(b) is a remedial power, and as such should be construed so as to provide the most complete remedy for the situation with which it is intended to deal. He also relied on the Court’s inherent power to make orders that operate retrospectively.
The Law Society submitted that the legislative scheme of the Act was not such as to permit the Court to make an order nunc pro tunc pursuant to s 33(1)(b). The Act provides for certain consequences (including the automatic suspension of a practising certificate) to flow from late submission of an audit report and, in the Society’s submission, it would be inconsistent with the policy and intent of the legislation if a practitioner could retrospectively be relieved of those consequences by an order such as that sought by the practitioner.
Similarly, the Board submitted that the Court had no jurisdiction to extend time after the report had been filed. The Board says that s 33(1)(b) should be construed so as only to permit an order extending time if the order is made before 31 October in the relevant year. Otherwise, it is submitted, s 33(2) would lack certainty of operation. Further, the Board notes that s 33(1) is a mandatory strict liability provision which is directed at the protection of the public and submits that it is inappropriate to construe such a provision in the way for which the practitioner contends.
Consideration
What is in question is the power of the Court (or the Law Society), at a time after the relevant auditor’s report has been submitted, to fix a date later than 31 October for the submission of the report. Alternatively, what is in question is the power of the Court to fix a date nunc pro tunc from 31 October.
In either case there would have been a period from 31 October to the date of the order when an offence has been committed under s 33(1). There will also have been a period from 31 October to the date of submitting the report during which the practitioner’s practising certificate will be taken to have been suspended. This would result, if the practitioner continues to practise, in possible offences being committed against ss 21(1), 22 and/or 23 of the Act. There may also, depending on the terms of the scheme, be a lack of professional indemnity insurance in respect of the practitioner under a scheme of insurance adopted under s 52. It may also precipitate a charge of unprofessional conduct, as happened in this case, brought under s 82 of the Act. The rights of third parties may also be affected by the practitioner’s inability to enforce recovery of fees for work done or billed during the period, as well as possible exposure of the practitioner to an action from misleading and deceptive conduct under the Trade Practices Act 1974 (Cth), or the Fair Trading Act 1987 (SA). The consequences of the deemed suspension of the practising certificate may, therefore, be quite extensive.
The practitioner argued that the use of the word “may” in s 33(1)(b) imports a discretion, exercisable at anytime, whereas if Parliament had intended that the discretion could only be exercised on or before 31 October, Parliament would have used the expression “may have allowed” instead of the expression “may allow”. I do not accept that submission. Had the expression “may have allowed” been used, it would not say whether the Court may have allowed a later date before 31 October or after the date of submission of the report or at some other time. I consider that it would have made no difference.
The practitioner further argued that a construction of s 33(1)(b) which permits the Court to allow a date after 31 October, even if application is made after that date and even if application is made after the audit report has actually been submitted, is fairly open on the language of the section. It was submitted that it was intended to deal with the situation of a legal practitioner not being in a position to submit an audit report by 31 October. That situation can arise before the Court, so it was submitted, either before 31 October of the relevant year or later. It was submitted that the Court’s power is remedial in character, to be exercised where the Court is satisfied that the practitioner should be relieved of the statutory date. The section should be beneficially construed to allow the order to be made after 31 October and to give the most complete remedy which is consistent with the actual language employed and to which its words are fairly open.[1]
[1] Kahoury v Government Insurance Office of New South Wales (1983) 165 CLR 622, 638.
What that submission overlooks is that the practitioner will almost certainly know or be taken to know on or before 31 October that he has not submitted a report and that he needs an extension of time to do so. Rather than being a remedial provision, the extension of time is a privilege conferred on a party deserving it. It is part of a scheme, contained in Pt 3 Div 5 of the Act, of strict regulation of those to whom clients’ money is entrusted as to the circumstance and manner of its disposal, the keeping of necessary records and the auditing of accounts. The regulatory purpose of s 33 is achieved by imposing penal and other significant consequences if the deadline for submitting the report is not met. Those consequences can only be avoided by a practitioner seeking an extension of time under s 33(1)(b). If those consequences are to be avoided, an application with appropriate reasons must be made before the deadline, and the Court (or the Law Society) is able to make an order appropriate to the circumstances, including, if necessary, a refusal of an extension of time.
There are several reasons why the order must be made before 31 October and not afterwards. The power is to extend the time for submitting the report. Section 33 does not contain any power to excuse a practitioner who is in breach of the section from the consequences of default which may accrue, or to alter the rights of third parties which may arise as a result of the default. I have already mentioned a number of those likely consequences. They cannot be expunged or pardoned by what the Law Society in its submission described as a “temporal artificiality”.
A review of the recent history of relevant amendments to the Act is instructive. At all material times prior to 11 December 2003, s 33 of the Act consisted only of sub-s (1). Subsection (2) was added by the Legal Practitioners (Miscellaneous) Amendment Act 2003 (SA).
Prior to 11 December 2003 a practising certificate, once issued or renewed, remained in force until 1 January of the year following its issue.[2] By the Legal Practitioners (Miscellaneous) Amendment Act 2003 s 18 of the Act was amended to accommodate a desire to require annual renewals of the practising certificate to occur on 1 July in each year. The actual date was not prescribed by the amended Act, but it allowed the change to occur.
[2] Legal Practitioners Act s 18(1) as it was prior to 11 December 2003.
Prior to 11 December 2003 s 18(3) of the Act provided:
(3)The practising certificate of a legal practitioner who is required to submit a copy of an auditor’s report to the Supreme Court under Division 5 will not be renewed until the practitioner complies with that requirement.
By the 2003 amendments to the Act, s 18(3) was repealed and a new subsection which is not material for present purposes was substituted.
It was submitted, and indeed may well have been the case, that the amendments to ss 18 and 33 were consequential upon the need to change the renewal date of practising certificates.
Under the former regime, if a solicitor did not submit an auditor’s report by 31 October, the practising certificate of the solicitor was not immediately affected. Unless it was suspended or cancelled for some other reason, it would continue until the following 1 January. Section 18(3) merely ensured that it could not be renewed until the auditor’s report had been submitted. Without the amendments to s 18(3) and s 33, when the renewal date of practising certificates was changed to 1 July, it would have enabled a solicitor to continue practising without submitting an auditor’s report until the following 1 July. It was for that reason that the amendments to s 18(3) and the addition of s 33(2) were made.
Prior to the 2003 amendments, if a practitioner was in default in submitting the report, it was never necessary to obtain an order under s 33(1)(b) in order to preserve the right to practise. If the default were remedied within two months, the practising certificate would be renewed. If the default was not remedied, it was s 18(3) which ensured that the solicitor could not renew a practising certificate until the report was submitted. No retrospective order extending time could affect that.
The only other reason for attempting to obtain a retrospective order extending the time for submitting an auditor’s report would have been to avoid a possible conviction for a breach of s 33(1). But the breach, by then, would have been committed. While the Act enabled the Court to make an order extending time, it did not enable the Court to prevent or to erase a conviction. Without specific statutory authority to do so, it would be quite contrary to public policy to hold that the Court could act retrospectively in order to erase an offence which, by then, had been committed.
It follows that prior to 11 December 2003, the only power to make an order under s 33(1)(b) was to do so prospectively. The addition of s 33(2) did not change that.
Without express statutory authority a retrospective order cannot erase an offence if one has been committed. The deemed suspension of the practising certificate under s 33(2) will continue until the report is in fact submitted and for no longer. No-one sought to argue otherwise. The consequences of the default cannot be undone by a retrospective order. The only effective order is one that is made prospectively.
The practitioner’s alternative submission was that the Court has power to and should make the orders sought nunc pro tunc. That is an inherent power in the Court which exists in order to avoid injustice.[3] It is reflected in r 117(2)(b) of the Supreme Court Civil Rules 2006 (SA) and in the well-known “slip rule” contained in r 242.
[3] Elyard Corporation Pty Ltd v DBB Needham Sydney Pty Ltd (1995) 61 FCR 385, 392 Lockhart J.
The origin and effect of nunc pro tunc orders was summarised by Toohey J in Emanuele v Australian Securities Commission:[4]
Mozley and Whiteley's Law Dictionary[5] offers this definition of nunc pro tunc:
"Now instead of then; meaning that a judgment is entered, or document enrolled, so as to have the same legal force and effect as if it had been entered or enrolled on an earlier day."
The orders of the Court of Chancery, issued by the Lord Chancellor, stretched in a continuous series from 1388 to the Judicature Acts late in the nineteenth century. Until the advent of formal law reports, those orders provided the best evidence of the organisation of the Court and the rules of procedure which led to the substantive rules of equity. However the system of recording the orders was haphazard. Not only was there an absence of an official record; some orders were made during the hearing of a case.[6] The first record of an order nunc pro tunc seems to be of one made by Lord Clarendon in Ex parte Robert Devenish and Henry Devenish v Richard Bernford, per pet, a private case.[7]
Thereafter the use of an order nunc pro tunc is well recorded in judicial decisions.[8] In Donne v Lewis,[9] Lord Eldon said:
"The Court will enter a Decree nunc pro tunc, if satisfied from its own official documents, that it is only doing now what it would have done then."
[4] (1997) 188 CLR 114, 131-132.
[5] 11th ed (1993), 184.
[6] Holdsworth, A History of English Law, 3rd ed (1945), vol 5, 265-266.
[7] Beames, General Orders of the High Court of Chancery (1815), 290-291, which dates the order as 4 December 1691, see also Harrison and Leach, Seton on Decrees (1862), vol 2, 1137.
[8] See eg, Williamson v Henshaw (1747) Dickens 129, (1747) 21 ER 217; Jesson v Brewer (1763) Dickens 370, (1763) 21 ER 312; Lawrence v Richmond (1820) 1 Jac & W 241, (1820) 37 ER 367; Re Jones [1891] WN 114.
[9] (1805) 11 Ves Jun 601, 601, (1805) 32 ER 1221, 1222.
The power is not plenary. It cannot be used to relieve a party of the consequences of their acts. It would be used where the Court is issuing the order to correct a slip, error or procedural defect in an existing proceeding that is not the subject of a process prescribed by statute, but relates to the internal rules and regulations of the Court. It will also be used where the Court is intervening to correct a slip, error or procedural defect in a process that is prescribed by statute, but only where the statute, by its own language, clearly authorises it. In that case the power will be circumscribed by the construction of the statutory provisions in their context, and having regard to the purpose which the relevant provision is intended to serve.
David Grant & Co Pty Ltd v Westpac Banking Corporation[10] is not a case directly in point but is a helpful illustration of a statutory power being limited by its terms and the object of the Act. The facts were that on 4 July 1994 Westpac Banking Corporation served statutory demands on the appellants. The companies failed to comply with the demands within 21 days, as required by the demands pursuant to s 459E(2)(c) of the Corporations Law (“the Law”). The companies did not file or serve applications to set aside the demands within the 21 days of service specified. Section 1322(4), (5) and (6) contained extensive provisions for extending and abridging time fixed under the Law, including a power to extend time when the period concerned had ended and notwithstanding that the contravention or failure resulted in the commission of an offence. However, s 459G of the Law, which was inserted later, provided:
(1)A company may apply to the Court for an order setting aside a statutory demand served on the company.
(2)An application may only be made within 21 days after the demand is so served.
(3)An application is made in accordance with this section only if, within those 21 days:
(a) an affidavit supporting the application is filed with the Court; and
(b) a copy of the application, and a copy of the supporting affidavit, are served on the person who served the demand on the company.
[10] (1995) 184 CLR 265.
The appellants sought to rely on the provisions of s 1322 of the Law in order to have the Court make an order nunc pro tunc extending the time within which the demand could be complied with. It was held unanimously by the High Court that the provisions of s 1322 did not avail the appellants in their bid to have the time extended. The specific requirements of s 459G were, in effect, a code relating to the extension of time for compliance with statutory demands, to the exclusion of s 1322.
Gummow J delivered the judgment of the Court with which other members of the Court concurred. One of the matters which his Honour took into account in reaching the conclusion he did was the consequence of extending time after the prescribed time had expired on the presumption of insolvency under s 459C(2) of the Law, as that presumption was an important element in the scheme of Pt 5.4 relating to winding-up on the grounds of insolvency. The effect of the scheme was that a company was presumed to be insolvent if, among other things, the company failed to comply with a statutory demand. A company would fail to comply if, at the end of the period set for compliance, the demand was still in effect and was not complied with. The period of compliance was 21 days after the demand was served or a longer period if the company applied in accordance with s 459G.
The consequence of allowing an order nunc pro tunc would have been a lack of certainty because there would be a period of a failure to comply with the demand after 21 days during which the company was presumed to be insolvent, but if the period were extended nunc pro tunc there would, in effect, be a later and contradictory non-insolvency for that same period. That was contrary to the express provisions of the Act.
While the decision in David Grant is not decisive of this case, it provides a useful analogy. The Court will resist orders which purport to effect changes in substantive rights and obligations imposed by statute merely by the device of making an order nunc pro tunc unless the statute clearly authorises it. It is different where the Court is dealing with its own internal rules in a matter in which it has jurisdiction, and in the interests of justice corrects a procedural error or defect without affecting existing rights or creating new ones.
In Emanuele v Australian Securities Commission[11] the Australian Securities Commission made an application under s 459P of the Law that a number of companies be wound-up in insolvency. However, the Commission failed to obtain the leave of the Court, as required by s 459P(2) of the Law before applying for the order. The trial Judge made an order for winding-up without reference to the question of the granting of leave. There was an appeal to the Full Federal Court which made an order nunc pro tunc granting leave to the Commission to bring the proceedings. By a majority, the High Court held that the failure to obtain leave was a mere defect or irregularity in the exercise of the Court’s jurisdiction which did not affect the validity of the order made. It could be cured by granting leave nunc pro tunc.
[11] (1997) 188 CLR 114.
Toohey J distinguished David Grant on the basis that that case was decided in relation to a temporal provision which had certain consequences, whereas, on a proper construction of these provisions of the Law, all that was required was that the Court be satisfied that there was a prima facie and appropriate case to wind-up a company. It was insignificant whether that was done before or after leave was given.[12]
[12] Ibid 131.
Dawson J, while agreeing with Toohey J, said that the failure to obtain leave “was a mere defect or irregularity in the exercise of [the Court’s] jurisdiction. … Since the failure to obtain leave was procedural and did not go to jurisdiction, there was no reason why the Full Court of the Federal Court should not have cured the defect or irregularity by granting leave nunc pro tunc”.[13]
[13] Ibid 125.
Kirby J said:[14]
It is trite to say, but worth repeating, that the power of a court, such as the Federal Court, to correct obvious slips by orders in appropriate cases nunc pro tunc is one granted by legislation and the rules and implied in the express powers of the Court to avoid injustice.
[Footnote omitted].
[14] Ibid 152.
In relation to David Grant, Kirby J said:[15]
Although the decision in Grant concerned a provision in some ways similarly expressed and in the same Part of the Law, it is readily distinguishable. The provision there in question (s 459G) conferred private rights against companies which had failed to comply with demands within a time fixed by the Law. The explanatory material, cited in Grant, makes it clear that the purpose of the Law in that regard was to establish a complete code for the resolution of disputes involving statutory demands and to remove the technical deficiencies which had led to much commercial inconvenience. A degree of strictness was contemplated by the drafters. It was provided by the language adopted in the Law. Given such purposes, the decision in Grant is hardly surprising. The position under s 459P, in question in these proceedings, is quite different. Section 459P(2) does not confer private rights, least of all on the ASC. The right to apply for an order arises elsewhere. The structure of Pt 5.4 of the Law makes it clear that what s 459P is dealing with is a procedure to be followed in making the application.
[Footnotes omitted].
[15] Ibid 156.
Of the provision in question in Emanuele, Kirby J said:[16]
The requirement of the Court's leave is there for the superintendence of the proceedings by the Court. At least in the case of a superior court of record such as the Federal Court, it is available, retrospectively, to sanction the Court's own proceedings. The missing ingredient was a step by the Court itself which, if justice required it, could, exceptionally, be ordered retrospectively by a nunc pro tunc order. The power to so order was not excluded by the express provisions of the Law.
[Footnote omitted].
[16] Ibid 157.
The two judges who dissented did so on the basis of the construction of the Corporations Law. Brennan CJ regarded the requirement of leave as not being able to be regarded as being “merely procedural”.[17] He went onto say:[18]
The correct approach is to ascertain whether the irregularity, where it arises from statute, is a fundamental irregularity. In the present context, the question is whether the statute on its true construction contemplates the lifting of the prohibition on the commencement of proceedings without leave by the making of an order after the application for winding up in insolvency is made. When the prohibition is designed to protect the interests of a particular person – a member of the Armed Forces in Cameron v Cole; creditors considering the placing of a company in official management in Re Excelsior; the company itself in the present case – and a contravention of the prohibition would or might prejudice that person's interests, the contravention is a fundamental irregularity. The purpose and effect of the provision would be undermined if the absolute protection which the provision is expressed to confer were transformed into a discretionary bar that could be relieved by a curial order.
[17] Ibid 122.
[18] Ibid 124.
Gaudron J, also in dissent, held that the time could not be extended. Her decision was based on the construction of s 459P. Until leave was granted, there was no application, and there had been a failure of the Court to exercise an independent discretion as to whether the application should proceed.
At least four of the judges in Emanuele considered that if a nunc pro tunc order extending time was purely procedural and did not affect the rights of parties, it could be made. The principal difference which emerged between the majority and the minority revolved around the interpretation of the relevant provisions of the Law.
A similar difference has been the basis of decision in other cases. In Whisprun Pty Ltd v Sams[19] the question arose as to the power to make an order nunc pro tunc granting leave to commence proceedings outside the limitation period prescribed by the Workers Compensation Act 1987 (NSW) where leave had not been obtained before expiry of the relevant period. The approach taken by the NSW Court of Appeal was the same as that taken in Jol v State of New South Wales,[20] namely that “[t]he provision was to be construed as allowing leave to be given nunc pro tunc if the purpose of the provision would be as well served by deciding the question of leave after the proceedings have been commenced as by deciding the question before the proceedings were commenced”.[21]
[19] [2002] NSWCA 394.
[20] (1998) 45 NSWLR 283.
[21] [2002] NSWCA 394, [7], [15].
In Hartley Poynton Ltd v Ali[22] s 29(1) of the Administration and Probate Act 1958 (Vic) provided that, subject to the provisions of the section, on the death of any person, all causes of action subsisting against or vested in the person survived against (or as the case may be) for the benefit of the person’s estate, subject to certain exceptions. Section 29(2) of the Act provided that where a cause of action survived for the benefit of the estate, the damages recoverable were not to include any exemplary damages. The deceased had commenced an action against a stockbroker for a loss of funds belonging to the deceased. The trial Judge reserved judgment on 16 October 2001 and delivered judgment on 16 April 2002, upholding most of the claims and awarding damages, including an amount for exemplary damages. The plaintiff died between reservation and delivery of the judgment, and his executor and trustee was substituted as plaintiff. In a further reserved judgment the trial Judge allowed the executors’ application for an order nunc pro tunc effectively antedating the judgment to 16 October 2001, thereby including the amount for exemplary damages. An appeal by the defendant in respect of the exemplary damages was allowed.
[22] [2005] VSCA 53, (2005) 11 VR 568.
After an exhaustive review of the authorities and the history of nunc pro tunc orders, Ormiston J, who delivered the judgment of the Court, concluded:[23]
[W]ith a few minor exceptions, nunc pro tunc judgments and orders, … have not been granted to alter the substantive rights of parties but only to overcome procedural irregularities and difficulties.
[23] Ibid [73], 606.
To make an order nunc pro tunc in these proceedings would not be to cure a procedural defect. It would not be acting in the course of the Court’s acknowledged jurisdiction. The practitioner invoked jurisdiction for the purpose of making an order nunc pro tunc having the effect of affecting his obligations and responsibilities and his clients’ rights. It was not a procedural order being sought but a substantive one. He was asking the Court to cure a fundamental irregularity.
The degree of strictness required by Parliament in submitting the auditor’s report is evidenced by the consequences of not doing so by the required date: an offence is committed and there is a deemed suspension of the practitioner’s practising certificate. The matters to be considered in determining if there should be an extension of time relate to the reasons why the practitioner is unable to comply with the statutory requirement. There must be good and cogent reasons to do so. If the order is made after 31 October, other considerations will inevitably intrude, namely the effect of making the order on the rights and obligations of the practitioner and the rights of the practitioner’s clients. The making of an order after 31 October is much more than correcting a procedural irregularity. The Court cannot do now what it would have done then without affecting presently accrued rights and obligations of the practitioner and his clients.
For these reasons I consider that the Court does not have the power to make the orders sought by the practitioner.
Whether the power should be exercised
If I am wrong in deciding that the Court has no power to make the orders, I would still not make the orders in this case. It must be inferred that the practitioner was aware of his breach in respect of the 2006 financial year at least by 1 December 2006, when the report was submitted, and by 2 November 2007 in respect of the 2007 financial year. No action was taken for an extension of time in either case until 13 May 2008, after the Tribunal had completed its hearing of the charges against the practitioner and had reserved its judgment. If an application is to be made it must be made in a timely fashion and not merely, as would appear to be the case of the practitioner, in order to avoid a possible adverse finding against him by the Tribunal.
I have had placed before me a number of affidavits setting out the facts and circumstances surrounding the failures to submit the audit reports. I have also had placed before me the transcript of the proceedings before the Tribunal. Some of the facts before the Tribunal are in dispute and some, it appears, will turn on findings of credit by the Tribunal. It would be quite inappropriate for me to attempt to make findings of fact in those circumstances when the Tribunal has heard oral evidence and is in a far better position to make its own judgment on the facts and to determine what consequences for the practitioner should follow on any findings that are made.
Conclusion
The application for orders pursuant to s 33(1)(b) of the Legal Practitioners Act and by way of appeal against the decision of the Law Society to decline to make any such orders is dismissed.
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