In the Matter of the Legal Profession Act and In the Matter of an Application by Joanne Frances Matthews

[2013] TASSC 78

[2013] TASSC 78

COURT:  SUPREME COURT OF TASMANIA

CITATION:In the Matter of the Legal Profession Act and In the Matter of an Application by Joanne Frances Matthews [2013] TASSC 78

PARTIES:IN THE MATTER OF THE LEGAL PROFESSION ACT AND IN THE MATTER OF AN APPLICATION BY JOANNE FRANCES MATTHEWS

FILE NO/S:  181/2013
DELIVERED ON:  4 October 2013
DELIVERED AT:  Hobart
HEARING DATE:  3 and 4 October 2013
JUDGMENT OF:  Pearce J

[EDITED REASONS FOR JUDGMENT DELIVERED ORALLY]

CATCHWORDS:

Professions and Trades – Lawyers – Re-admission to practice – After being struck off – Eligibility for re-admission.

Aust Dig Professions and Trades [1287]

Professions and Trades – Lawyers – Qualifications and admission – Educational requirements.

Aust Dig Professions and Trades [1121]

Professions and Trades – Lawyers – Qualifications and admission – Dispensing with requirements.

Legal Profession Act 2007 (Tas), ss25, 31.

Legal Profession (Board of Legal Education) Rules 2010 (Tas), rr4, 7 and Sch1, Sch2.

Aust Dig Professions and Trades [1126]

REPRESENTATION:

Counsel:
             Applicant:  M Ogilvie
             The Law Society of Tasmania:                   C Gunson
             The Tasmanian Bar Inc:  C Gunson
Solicitors:
             Applicant:  Madeleine Ogilvie & Co
             The Law Society of Tasmania:                   Simmons Wolfhagen
             The Tasmanian Bar Inc:  Phillips Taglieri

Judgment Number:  [2013] TASSC 78
Number of paragraphs:  18

Serial No 78/2013
File No 181/2013

IN THE MATTER OF THE LEGAL PROFESSION ACT
and IN THE MATTER OF AN APPLICATION BY
JOANNE FRANCES MATTHEWS

REASONS FOR JUDGMENT  PEARCE J
(DELIVERED ORALLY)  4 October 2013

1. Joanne Matthews applies for an order that she be admitted to the legal profession. The application is made pursuant to s31 of the Legal Profession Act 2007 ("the 2007 Act"). Section 31(6) of the Act provides:

   "(6)   The Supreme Court may admit a person as a lawyer if satisfied that the person —  

   (a)is eligible for admission; and

   (b)is a fit and proper person to be admitted; and

   (c)has complied with the provisions of this Part." 

2. The Law Society of Tasmania and the Tasmanian Bar Inc (referred to in these reasons as "the objectors") have lodged notices of objection to the application and submit that the applicant is not eligible for admission and is not a fit and proper person to be admitted. I ordered pursuant to r559 of the Supreme Court Rules 2000 that the question of the applicant's eligibility for admission be tried before the balance of the application. It is to that question that these reasons are directed.

1. The evidence establishes that the applicant was admitted to the degree of Bachelor of Laws by the University of Tasmania on 4 May 1990.  She then underwent a "course of six months duration, being a course of practical instruction in the duties of a solicitor and approved by the Board of Legal Education".  After having completed an apprenticeship she was admitted as a legal practitioner of the Supreme Court of Tasmania on 13 September 1991.  At the time the Court made the order for her admission, the Legal Practitioners Act 1959 ("the 1959 Act") was in force.  Pursuant to the requirements in that legislation for her admission the Board of Legal Education ("the Board") certified on 1 August 1990 that:

(a)she had fulfilled to the satisfaction of the Board the requirements of the subjects prescribed under s13(1)(b) of the 1959 Act.  That provision required the applicant to pass examinations conducted by the Board in prescribed subjects; and

(b)she had the qualifications required by s13A(1)(a) and (b) of the 1959 Act.  Those provisions required the applicant to pass the examinations for a Bachelor of Laws at the University of Tasmania and an approved course of practical instruction.

1. The applicant practised as a lawyer in Tasmania between 1991 and 1998.  In 1998 she moved to New South Wales where she was admitted to practice.  In 1999 she moved to Victoria where she was admitted to practice and her name was placed on the roll of practitioners.  She returned to Tasmania and was granted a practising certificate as a sole practitioner in 2004.  She ceased practice at the end of 2006 and her practising certificate expired on 31 December 2006.  On 15 December 2010 the Supreme Court made an order removing the applicant's name from the roll of practitioners consequent on a finding that she was guilty of professional misconduct.

1. Eligibility for admission is provided for in s25(1)(a) and (b) of the 2007 Act. So far as it is relevant to this application it provides that a person is eligible for admission only if the person has attained approved academic qualifications and approved practical legal training requirements, or is exempted by the Court from one or both of those requirements. The term "approved academic qualifications" is defined in s25(2) to mean "academic qualifications that are approved, under the Board of Legal Education rules, for admission to the legal profession in this jurisdiction". The term "approved practical legal training requirements" is defined to mean "legal training requirements that are approved, under the Board of Legal Education rules, for admission to the legal profession in this jurisdiction".

1. The Board is a body corporate presently constituted under the 2007 Act. In s25 the reference to "the Board of Legal Education rules" means the rules of the Board made under s608 of the 2007 Act. Those rules are the Legal Profession (Board of Legal Education) Rules 2010 ("the BLE Rules"). Rules 4 and 7 provide for the two requirements in s25. Rule 4 is entitled "Approved academic qualification" and provides:

"4   Approved academic qualification

(1) For the purposes of section 25 of the Act, the academic qualification approved for admission to the legal profession in Tasmania is the successful completion of a tertiary course of study (whether or not leading to a qualification in law) —

(a)  which is provided by an approved academic institution; and

(b)  includes the equivalent of at least three years of full-time study of law; and

(c) requires a student to acquire and demonstrate a satisfactory level of understanding and competence in the areas of knowledge set out in Schedule 1.

(2) The Board of Legal Education may determine that an applicant has the approved academic qualification without satisfying the requirements specified in subrule(1) if the Board of Legal Education is satisfied that the applicant has acquired and demonstrated a satisfactory level of understanding and competence in the areas of knowledge set out in Schedule 1."

1. Rule 7 is entitled "Approved practical legal training requirement" and provides:

"7   Approved practical legal training requirement

(1)   For the purposes of section 25 of the Act, the practical legal training approved for admission to the legal profession in Tasmania is —

(a)  successful completion of a practical legal training course –

(i)that is conducted by an approved practical legal training provider; and

(ii)that, in the opinion of the Board of Legal Education, requires a satisfactory level of understanding of and competence in the skills, values and practice areas set out in Schedule 2; or

(b)  successful completion of practical legal training —  

(i)that would qualify the person for admission to the legal profession in another Australian jurisdiction; and

(ii)that, in the opinion of the Board of Legal Education, requires a satisfactory level of understanding of and competence in the skills, values and practice areas set out in Schedule 2.

(2)   A person is eligible to undertake approved practical legal training under this Part if the person has the academic qualification approved for admission to the legal profession in Tasmania."

1. The 2007 Act and the BLE Rules make no specific provision for an application for re-admission. At the time that the applicant was first admitted in 1991 different legislative requirements for admission were in place. Then the Board of Legal Education was constituted by s5 of the 1959 Act. Different rules and approvals applied. The rules to which the 2007 Act now refer, and which are to be applied to this application, did not come into effect until 23 June 2010. There are no saving or transitional provisions which entitle the applicant to rely on her earlier qualifications and training to demonstrate compliance with the 2007 Act and the current BLE rules. Thus the applicant is in the same position as a person who may be applying for admission for the first time, and compliance with the 2007 Act is required. Consequently there are a number of aspects of these provisions that cause some difficulty for the applicant. Application of these provisions to this application produces the following result. As to approved academic qualifications, the applicant has successfully completed a tertiary course of study at the University of Tasmania, an approved academic institution by operation of r5 of the BLE Rules, which includes the equivalent of at least three years of full time study of law. Thus compliance with parts (a) and (b) of r4(1) is established. The question then is whether I can be satisfied, on the evidence, that the tertiary course of study she completed "requires a student to acquire and demonstrate a satisfactory level of understanding and competence in the areas of knowledge set out in Schedule 1" as is required by r4(1)(c). Paragraph 1 of Sch1 provides:

"1   Interpretation

An area of knowledge listed in this Schedule —  

(a)    must be studied; but

(b)   does not need to be studied in a specific subject or situation."

1. The schedule then goes on to list eleven areas of knowledge, each with sub-areas.  The listed areas include Civil procedure and Ethics and professional responsibility.  There is no evidence which permits me to safely conclude that her degree required her to acquire and demonstrate a satisfactory level of understanding and competence in those two areas of knowledge.  They are subjects not mentioned in her academic record and there is no evidence establishing that they were incorporated into another subject and studied. 

1. As to completion of an approved legal training requirement, r7 of the BLE Rules requires successful completion of a practical legal training course that is conducted by an "approved practical legal training provider" and that, "in the opinion of the Board of Legal Education, requires a satisfactory level of understanding of and competence in the skills, values and practice areas set out in Schedule 2". An "approved practical legal training provider" means a provider approved under r9 of the BLE Rules. Schedule 2 is entitled "Practical Legal Training Competency Standards" and is divided into four parts respectively entitled General, Skill competency standards, Practice area competency standards and Values competency standards. Each part is divided into sub-parts specifying in detail the areas of skills, values and practice in which the course is to require understanding and competence. The Values competency standards include only one sub-part entitled "Ethics and professional responsibility practice" which then specifies eight areas of understanding and competence in that practice area. In this case the evidence establishes that as a requirement for her admission in 1991 the applicant completed "a course of practical instruction approved by the Board of Legal Education in the duties of a solicitor" as was then required by s13A(b) of the Legal Practitioners Act 1959. In addition she completed an "apprenticeship" as was required by s13A(c). However the terms of the Act do not permit a finding that this constitutes compliance with a practical legal training requirement under the current BLE Rules. It was not a course approved under the 2010 rules and there is no evidence that it included the competency standards, particularly with regard to ethics and professional responsibility.

1. For the foregoing reasons I have concluded that the applicant has not demonstrated compliance with eligibility requirements in s25(1)(a) and (b) of the 2007 Act.

1. Nevertheless this Court may, under s25(4), exempt a person from compliance with the requirements of s25(1)(a) and (b) if satisfied that the person has "sufficient academic qualifications" or "sufficient relevant experience in legal practice" or both, so as to render the person eligible for admission. The terms of subs(4) provide that the Court's ability to exempt is expressed to be "on the recommendation of the Board of Legal Education". Further, by subs(5), the exemption under subs(4) may be given "unconditionally or subject to such conditions relating to the obtaining of further academic qualifications or further legal training as the Supreme Court, on the recommendation of the Board of Legal Education, considers appropriate". In this application there is no evidence that the Board has recommended an exemption, either unconditionally or otherwise. The evidence is to the contrary. It is the submission of the objectors that the jurisdiction to exempt from the requirements of s25(1)(a) and (b) is conditional on a recommendation of the Board to that effect. No doubt there are good reasons for that in most cases. The Court would be greatly assisted by the expertise and experience of the Board and would invariably take the recommendation of the Board into account. The Board will have knowledge of the academic qualifications and practical legal training requirements not easily accessible to this Court. However at first blush the terms of s25(4) seem to be a fetter on the inherent jurisdiction of the Court to admit and remove practitioners contained in the paragraph headed "Practitioners of the Court" in the Charter of Justice 1831. Further, to me, the terms of s25(4) sit uncomfortably with the terms of s31(5) which provides that in "determining the eligibility of a person for admission, the Supreme Court may (my emphasis) rely on the recommendation of the Board of Legal Education".  As to that provision the objectors submit that it permits the Court a discretion to refuse the application if not satisfied the applicant should be exempt from the eligibility requirements even if the Board recommends exemption.  If that submission is correct then the Court would find itself in a position where it may decline to accept a recommendation of the Board in favour of exemption, but would be bound by a recommendation that exemption not be granted.  Nevertheless, even if the Court were to reach a contrary view, whether the Court should exercise an inherent jurisdiction when Parliament has seen fit to legislate detailed provisions regulating the admission of legal practitioners, and in a manner contrary to the recommendation of the Board, is a separate issue that would require careful consideration.

1. There are a number of other points to be made. First, the question of whether the applicant ought be exempt from the academic qualification and practical training requirements is not to be confused with the determination of whether she is a fit and proper person to be admitted. As to the aspect of the application concerning her qualifications and training, the applicant is in no different position to a person whose name may have come off the roll for a reason involving no professional impropriety at all. Whether she is a fit and proper person for admission is a different and much broader inquiry. Second, it is apparent that the Act makes provision for recognition of equivalent qualifications and training from other jurisdictions. There is no reason in principle that there ought not be appropriate recognition of Tasmanian qualifications obtained under earlier legislation. Third, in determining whether the Court should grant an exemption, all of the applicant's qualifications and experience can be taken into account. I would readily infer that her law degree from the University of Tasmania, albeit that it was obtained in 1990, required that the applicant acquire and demonstrate a satisfactory level of understanding and competence in almost all of the areas of knowledge set out in Sch1 of the current rules, whether or not specific subjects are listed in her academic record. The only areas of obvious deficiency are the two subjects I identified earlier, Civil Procedure and Ethics and Professional Responsibility. I would have thought that in the circumstances of this case the absence of a civil procedure subject on her academic record would not lead to a conclusion that her academic qualification is not satisfactory. However in light of the circumstances in which her name was removed from the roll the ethics and professional responsibility subject assumes greater significance and further formal qualification or training in that area may well be an appropriate condition to exemption if it were to be ordered. More generally, it is undoubtedly true that some areas of law will have changed during the intervening period. The applicant has not practised since 2006 and there is little evidence of the nature and extent of her practice until then. But all lawyers must constantly deal with areas of legal change. Also, it is to be borne in mind that persons are frequently admitted to this Court with no experience in legal practice at all, even though they may be newly graduated and have completed the required practice course. It seems to me to be unduly onerous to conclude that the factors relied on by the objectors to which I have referred mean that the applicant does not have a satisfactory level of understanding and competence to render her eligible for admission without starting completely afresh. Thus, as to academic qualifications, my preliminary view is that the lapse of time since her degree and the gap since she last practised is relevant only to the extent that it may indicate the degree to which some supplementary qualification, training or education may be required. As to the practical legal training requirement, my preliminary view is that further practical training demonstrating understanding and competency in the competency standards, at least with regard to ethics and professional responsibility, ought be required as a condition to exemption if it were to be ordered.

1. The applicant tendered in support of the application a letter dated 25 September 2013 written on behalf of the Board. The Board declined to certify that the applicant has the approved academic qualifications and practical legal experience required by the BLE Rules. The Board's conclusion accords with the conclusion I have reached. The Board's letter was particularly directed to the requirement for completion of a subject on ethics and professional responsibility and the practical legal training competency standard for ethics and professional responsibility in practice. Given the reason the applicant's name was removed from the roll in 2010 it is hardly surprising that the Board focussed on those areas. The Board's letter went on however to indicate that on taking into account "all the material before it including the reasons for your removal from the Roll as ordered by Tennent J" it resolved to decline to recommend that the applicant be exempted under s25(4) of the 2007 Act. While it is readily apparent how that reasoning may lead to a conclusion that the applicant is not a fit and proper person to be admitted, it is, with respect to the Board, not so apparent how it may be a reason for declining to exempt her from the eligibility requirements. It is difficult to reach any properly considered conclusion about that without the advantage of an explanation or expansion of the Board's reasons as expressed in its letter.

1. It remains the case that, at least according to the terms of s25(4), the Court is not to exercise its discretion to exempt, absent a recommendation from the Board. By s31(3) the Court may refer the application to the Board and request the Board to provide a recommendation on the person's eligibility for admission, or report on any matter relevant to the person's eligibility for admission. It seems to me to be desirable that the recommendation of the Board as to whether the applicant ought to be exempt, either unconditionally or conditionally, should be sought by the Court. The 2007 Act provides that the Board is to provide its recommendation to the Supreme Court within 30 days of the receipt of such a request. For the reasons I earlier explained the recommendation of the Board will be of considerable value. What its recommendation will be is of course entirely a matter for the Board.

1. It was submitted by the objectors that the question of exemption from the eligibility requirements ought not be dealt with in this application, but should be determined by a separate application to be made before the application for admission. While that course may well have been open it does not preclude the application being referred by the Court to the Board now. I have concluded that the referral and request should be made. The Court is to consider whether to exempt the applicant from compliance with the eligibility requirements in s25(1)(a) or (b) or both. The Court must reach a view about whether the applicant has "sufficient academic qualifications" or "sufficient relevant experience in legal practice" or both so as to render her eligible for admission. In doing so the Court is to be mindful of the purposes of Pt2.2 of the 2007 Act as expressed in s23. The Court would take into account the applicant's qualifications, completion of a course of practical instruction and apprenticeship and experience as a legal practitioner, and determine whether the exemption should be granted unconditionally or subject to conditions. As to those questions the application will be referred to the Board and a recommendation from the Board will be requested. Accordingly, I will refer the application to the Board with the following request:

(a)to provide a recommendation on the applicant's eligibility for admission;

(b)to report on:

(i)whether the Board recommends exempting the applicant from the requirements of s25(1)(a) of the Act in light of the applicant's academic qualifications and relevant experience in legal practice and;

(ii)if so, whether the exemption is unconditional or subject to any, and if so, what conditions as to further academic qualifications;

(c)to report on:

(i)whether the Board recommends exempting the applicant from the requirements of s25(1)(b) of the Act in light of the applicant's practical legal training, apprenticeship and relevant experience in legal practice and;

(ii)if so, whether the exemption is unconditional or subject to any, and if so, what conditions as to further practical legal training.

1. Thus it is unnecessary that I reach a concluded view about whether the Court can or should exempt the applicant from compliance with s25(1)(a) and (b), unconditionally or otherwise, in the absence of a recommendation by the Board to that effect, at least at this stage of the application.

1. The application will be adjourned to a date to allow the Board's report to be received.  I will fix a date for resumption of the hearing after hearing from the parties.