Knaggs v The Solicitors Statutory Committee

[1991] HCATrans 370

Replacenient Page

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S109 of 1990

B e t w e e n -

DOUGLAS KNAGGS

Applicant

and

THE SOLICITORS STATUTORY

COMMITTEE

First Respondent

and

THE LAW SOCIETY OF NEW SOUTH

WALES

Second Respondent

Application for special leave

to appeal

Knaggs 1 13/12/91

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY. 13 DECEMBER 1991, AT 3.45 PM

Copyright in the High Court of Australia

MR D. KNAGGS:  May it please the Court, I am the applicant

in person.

MR G.C. LINDSAY:  May it please the Court, I appear for the

respondents in this motion. (instructed by Murphy

& Moloney) and (instructed by Rosemary MacDougal)

MR KNAGGS:  Your Honours have seen from my notice of motion

and affidavit in support that I come here to

contend that the case, as matters appear to stand,

stops me from appearing on my own behalf as of

right: Collins (Hass) v Reg, (1975) 8 ALR 150,

should be reargued as being, as it were, per
incuriam.

I point out in submissions, which I would like

to hand up in outline, and in the same bundle I
have a list of authorities and photocopies of the

authorities, why I say that that decision should be

reargued.

MASON CJ: Well, we can cut that short, Mr Knaggs. The

Court is prepared to grant you leave to present your case in person.

MR KNAGGS: Well, Your Honour, if Your Honours do not want

to hear me on the status of the case - - -

DEANE J: Well, you have got what you want.

MR KNAGGS: Very well, Your Honours, thank you.

MASON CJ:  Now what do you have to say in support of your

application?

MR KNAGGS:  Your Honours, I took it from the Court list that

I would only be arguing the motion itself today and

for that reason I do not have copies of all the

authorities and I woul~ ask this Court if I could

have another day for hearing the application

itself.

DEANE J:  We would only be hearing the application for

special leave, not the appeal.

MR KNAGGS:  Yes, Your Honours. Well, I am only saying to

Your Honours that I cannot provide to you

authorities in support of my affidavit but if

Your Honours want me to present the case in any

event, that is the application for special leave,

then I would n3turally acquiesce.

MASON CJ: All we would expect you to do at this stage is

present the application for special leave. No

que~tion of appeal arises unless you secure a grant

of special leaua.

Knaggs 2 13/12/91

MR KNAGGS: Yes, Your Honour. Well, Your Honours, this is

then an application for special leave to appeal

against an order of the Court of Appeal which was,

as can be seen from the judgment which is No 6 at

page 20, that a notice of mine be dismissed.	Now,
that notice of motion was to ask the Court of

Appeal to overturn a judgment of a single justice

of appeal which was to the effect that an

application which I made to the supreme court for a

review of a Solicitors Statutory Committee decision

should be heard at first instance by a division of

the court and not by the Court of Appeal.

Now, Your Honours, the essence of the judgment

of the Court of Appeal, that is the Full Court of

Appeal, which is, of course, commencing at page 8

of the application, was that the claimant, myself,

had to show that the proceedings had not been

validly referred to the Court of Appeal by a judge

at first instance of a division of the court.

Now, section 48 of the Supreme Court Act

states that various tribunals, having made an

order, could be subject to appeal direct to the

Court of Appeal and that list of tribunals did not

include the Solicitors Statutory Committee. My

contention was and is that by omitting reference to
the Solicitors Statutory Committee it was intended
by the legislature to assign such an appeal or -

sorry, such an application for review to a

division.

Now, Your Honours, I canvass in the

application for special leave that there have been
a constant stream of authorities to the effect that

the intention of the legislature in a case where

the language is clear cannot be questioned and,

indeed, that even if it is suspected or even if it

is fairly apparent or completely apparent that the
legislature was misled in some way, none the

less -

GAUDRON J: But do you not have to go to the further point

to say that there was no power to refer the matter

to the Court of Appeal?

MR KNAGGS: Well, Your Honour, I submit that there is not

any such power to refer the matter to the Court of

Appeal unless that is done under Part 12 of the

rules because that is the only place in the whole

of the scheme of the Act and rules which provides

for a matter which ought to have been assigned to a

division and was commenced in a division to go to

the Court of Appeal.

GAUDRON J: But it was, in fact, referred, was it not?

Knaggs	13/12/91
MR KNAGGS:	Yes, Your Honour.

GAUDRON J: It was commenced in the division?

MR KNAGGS: It was.

GAUDRON J:	And it started off in the division?
MR KNAGGS:	Yes.
GAUDRON J:	And then it was referred.
MR KNAGGS:	It was, Your Honour, but it can only be referred

under Part 12, and it was not referred under

Part 12 rule 10.

GAUDRON J: But nobody said what it was referred under, did

they?

MR KNAGGS:  No, Your Honour, nobody did, but - - -

GAUDRON J: Well, why would not one just assume that it was

referred pursuant to Part 12?

MR KNAGGS:  Because, Your Honour, that part, with respect,

says that special reasons have to be found by a

justice and that he must, in fact, state the

special circumstances and state what point he is

referring to the Full Court. He cannot simply

refer the case to the Full Court as a whole, he has

to state questions. That is spelt out in Part 12.

GAUDRON J:  Now, this is a point that you did not take at

first instance, did you?

MR KNAGGS: Well, Your Honour, I had no idea of knowing that

His Honour intended to refer the matter under Part

12.

GAUDRON J:  And when it got into the Court of Appeal, you

did not appeal - I am sorry, I will put it this

way: you did.not take the point and you did not

appeal from that order?

MR KNAGGS: Well, I took what I saw as the alternative,

Your Honour, under the Supreme Court Act of asking the judge of appeal to vary the order of the single

judge of the division.

GAUDRON J: Yes, but that assumed - that was all predicated

on the assumption that the matter was validly

before the Court of Appeal.

MR KNAGGS:  No, Your Honour, I submit not. I submit that it

did not predicate that at all because the section of the Supreme Court Act simply says that a judge

Knaggs 13/12/91

of appeal can vary any order of a judge of a

division.

GAUDRON J:  Was your first application not for the matter to

be reassigned?

MR KNAGGS:  Yes, Your Honour.

GAUDRON J: And it was refused.

MR KNAGGS:  That was refused by Clarke JA, yes. Now,

Your Honour, it is wrong, I submit, for His Honour

Clarke JA to say that one may assume that it was

sent up under Part 12 and, in fact, Clarke JA did

not even go into the point of whether or not it was

assigned under Part 12 or whether it had to be.

His reasons, which are set out at page 4 - he

simply refers, on page 5 at point 5, to an argument

that the

Court should exercise its discretion to

prevent the claimant losing one layer of

appeal.

Now, that was certainly an argument I put

before him but he responded to that by saying that
the point is a highly technical one.

Now, I have set out in my application why that is no answer at all because, in fact, the Court of

Appeal has said over and over again, as this Court

has, that the consideration of the matter by a
judge below is of great benefit to the higher court
and the more technical the case, the more that is

so. So that my submission to the Court of Appeal

and to yourselves is that Clarke JA, in saying that

that was one reason he would not assign the matter

back to the division, was wrong.	He also says at
page 5 point 3:

it is clear enough that the Legislature

intended that matters of that nature will

continue to be dealt with in this court by
reason of the inclusion of the disciplinary

Tribunal in the definition of 'Specified

tribunal' ins 48.

Now, on that point, Your Honours - in fact, at

the time when the Disciplinary Tribunal, which in New South Wales is the successor to the Statutory

Committee, was included in section 48 as part of

the list of tribunals which could give rise to a

direct application for reviews of the Court of

Appeal, at the same time as it included the

Disciplinary Tribunal, it deleted - and I say there is no question of it being inadvertent - the

Knaggs 13/12/91

Solicitors Statutory Committee and on an inclusio

unious est exclusio alterius basis - - -

MASON CJ: Yes, but the problem is this, is it not, that

there was a failure to include a transitional provision which would take account of pending

appeals or appeals which might thereafter be

brought from the Statutory Committee?

MR KNAGGS: Well, Your Honour, I say, no. There was a

transitional provision that took care of matters
that had been commenced in a division against the

Statutory Committee - - -

MASON CJ: Yes, but not decisions of the Statutory Committee

which became much later the subject of an appeal.

MR KNAGGS:  No, Your Honour, but the Act provides a clear

path straight to a division in such cases.	So
there is no hiatus and there is no need for a
transitional provision.

MASON CJ: But is not Mr Justice Clarke perfectly correct

when he says that historically, both before and at

the present time, the legislation envisaged that

disciplinary matters of this kind would come from

the tribunals to the Court of Appeal?

MR KNAGGS: Well, Your Honours, I say only where the supreme

court was going itself consider the conduct of the

solicitor. This is no more a disciplinary matter,

I submit, than any other application for review.

Your Honours, the case which was relied on in

the court ultimately below, which was in the

Supreme Court of New South Wales, and I cite the

reasons of Lusher J at page 1, was The Law Society

of New South Wales v Weaver. Now, that is a case,

Your Honour, where, in my submission, there is no

such historic requirement is completely borne out.

In The Law Society of New South Wales v Weaver, the

Court of Appeal sent the matter down again to the
division.	It said the matter should not have been

brought in the Court of Appeal and remitted it back

to a division.

I have heard references from time to time from

my opponents about such a universal and historic

procedure of sending matters straight to the Court

of Appeal but it does not exist. The Court of

Appeal sent the matter the other way around in

Weaver and, yet, that is a case which, in the very first occasion that I approached the court,

Lusher J said - required the matter to go to the

Court of Appeal.

Knaggs 6 13/12/91

Now, Your Honours, His Honour, the President

of the Court of Appeal,	Kirby, expressly says that
he makes no decision on	the accuracy or not of
Lusher J's judgment but

GAUDRON J: Yes, but what was in issue at that stage was the

discretion exercised by Mr Justice Priestley

because all that was in issue at that stage, your

not have appealed from the order of

Mr Justice Lusher, was the discretion that had been

exercised by Mr Justice Clarke.

MR KNAGGS:  Yes. Your Honour, this is how I put that to

Your Honours: true it is that I did not lodge an

appeal and that is because there was an alternative

under the Supreme Court Act to approach the Court

of Appeal, in the first instance, a single judge,

to vary the order of a judge in a division. Now,

Your Honours - - -

GAUDRON J: But the argument is quite different. Depending

on the course you take, the argument is quite

different. The argument, you might have taken if

you had been appealing, was that there was no power

to make the order that was made.

MR KNAGGS:	Yes, Your Honour.
GAUDRON J:	The argument you were making on your application

was that as a matter of discretion the matter

should be sent back and that assumed that it had

come there quite legitimately; maybe not correctly,

but it was in fact there.

MR KNAGGS: But, Your Honour, with respect, I entirely

disagree that I was approaching the court for a

discretion at all. I was approaching a judge of

the Court of Appeal, as it were, by way of review
to say just that: that there was no power. It is

far more a matter of review than appeal, I submit.

There is no power in the Supreme Court Act and

rules to send a matter from a division to the Court

of Appeal except if it is done under Part 12 on a

particular point that needs the consideration of

the Court of Appeal in the opinion of the judge who

has to state what that point is and also state the

special c-ircumstances under Part 12 rule 10.

Your Honours, one cannot query why the

legislature left out the Solicitors Statutory

Committee but there is a very good reason, in my

submission, that holds itself forward fairly

blatantly and that is that every other tribunal

which is in section 48 as a tribunal from which a

review application should go straight to the Court

of Appeal has judges on it, supreme court judges

or, by recognition of the statute constituting

Knaggs 13/12/91

those tribunals, the equivalent or district court judges so that the bare minimum is district court

judges. And that applies also to the new tribunal

which has replaced the Solicitors Statutory

Committee.

So that, Your Honours, the Law Society

contends, as I have said before, that there is an

historical reason for sending it up but, in fact,
it would appear the legislature decided that

because the Solicitors Statutory Committee has no

judges and that they had there set a threshold at
the minimum for review to go straight to the Court

of Appeal was that there is a district court judge

or higher on the tribunal. They were doing that

deliberately and they meant to exclude the

Solicitors Statutory Committee.

Your Honours, as legions of cases say, even if

one suspects the legislature was wrong, if the

legislature sets it out in black and white that

these are the tribunals from which he goes straight
to the Court of Appeal, then exclusio alterius,
those are the only tribunals from which you go

straight to the Court of Appeal. One does not

postulate a mistake by the legislature.

Even President Kirby said that it would seem

that the legislature had made a mistake and that

they ought to be told they had made a mistake.

That is at page 18 line 15:

What has occurred in the drafting ..... would

appear to be an oversight.

Now, even if it were, Your Honours, that court and

this Court and all courts have to simply follow the

wording of the legislature as it finds it. But I

stress there is a very good reason why they

presumably left it out. There is no hiatus so

there is no need for transitional provisions.

Your Honours, I would seek special leave on

the basis that I lose any chance of appeal and

President Kirby recognizes throughout his judgment

that that is something which could perhaps be

devoutly to be wished by a litigant. If I had come
straight from any other tribunal, I would

recognize, and I think the legislature meant us to recognize, that I have already had a judge look at

my case but not having had that and the supreme

court and rules being in the way they are, I

respectfully submit that the Court of Appeal and

the divisions are bound by their own Act and rules.

On that score, Your Honour, there is also authority to say this, that whatever the inherent

Knaggs 13/12/91

powers of a court, it can never give itself

jurisdiction by overriding its own rules which the
legislature has set up as to how it obtains that
jurisdiction. Its inherent power never goes as far
as to overriding its own rules unless they are

merely procedural and here we are talking about the loss of a right of appeal which the judges have all talked about but not seen fit to see as a

sufficiently weighty reason to follow the Act and

rules.

Your Honours, I have set out in my application

at page 30, line 15, paragraph 4:

Justification for special leave

MASON CJ: Well, we have read the papers.

MR KNAGGS:  Yes, I understand that, Your Honour, but I was

going to say that, as you well know, those are all

reasons that I have not even touched on but that

are, I submit, extremely weighty, especially as the

Court of Appeal has left the position at variance with all its other decisions as to whether a

division or judge can send a matter up to the Court

of Appeal when it was properly commenced in the

division.

There were recently many cases in the New

South Wales Court of Appeal concerning the last

elections and in all of those cases - Keating v The

Returning Commissioner and two other cases have

been decided so far - in the Keating case the
parties all wanted the matter to go straight to the

Court of Appeal because of the urgency but the

Court of Appeal, as is clear from the transcript,

sent it back again saying, "If you want a matter to

come straight from your division to us which is

properly commenced in the division, you have to go

under Part 12 rule 2 and show us" - the judge has

to do this, of the division - "special

circumstances and the question to be decided." And

the Court of Appeal said, "That's what you have to

do if you want to bring it straight to us." So

that then in all of those Court of Appeal

judgments, the judgments commence, "This is a

matter sent to this Court", to the Court of Appeal,

"under Part 12 rule 2. The special circumstances

are these and the specific question to be decided
is the following" and then those questions are set
out in numerous paragraphs.

Your Honour, we do not know what was in the minds of His Honour Clarke JA when he refused to

send the matter back to Lusher J, and we do not

know what was in the mind of Lusher J of the Common

Law Division when he sent it up to the Court of

Knaggs 13/12/91

Appeal and one cannot, I submit, in a discretionary
matter such as whether to apply Part 12 rule 2,

say, "Well, these are the various considerations he

might have had in exercising his discretion and

therefore we'll assume that he had the right ones

in his mind" because that is clearly set out in

especially Eagil Trust v Piggot-Brown. I have

mentioned that case on page 31 at line 35 and again

on page 32 at line 15.

Even if the Court had room to speculate

whether Lusher AJ might have meant to refer a

question to the Court of Appeal ..... the Court

should not use this as a means of substituting

its own discretion for his. He did not

express special circumstances to remove the

proceedings -

Now, Your Honours, none of us knows whether

Lusher J, if he had turned his mind to Part 12

rule 2, would have sent it up for consideration of

a question which he felt needed the Court of Appeal

to look at. None of us know if that is what he

meant to do at all. Although, sorry, I will

correct that: we do know that that is not what he

had in mind because he specifically says why he is

sending it up to the Court of Appeal. He is

sending it up to the Court of Appeal because he

feels bound to do so on the authority of Weaver v

The Law Society of New South Wales.

MASON CJ: But, really, we are concerned with

Mr Justice Clarke, not with Mr Justice Lusher.

MR KNAGGS:  Yes, Your Honour, but I submit that inasmuch as

His Honour Mr Justice Clarke said that Justice

Lusher was right, then he is adopting His Honour

Mr Justice Lusher's reasons.

Your Honours, I put to you that this has overthrown the established practice of the supreme

court, this Court of Appeal decision which is

already in the reports, in the New South Wales Law

Reports.

As the voting cases have shown, even where the

parties want the matter to go up, the Court of

Appeal will not take the matter unless it is under

Part 12 rule 2. Far worse, I submit, is my

opponents' argument in my case which is that I

desperately do not want it to go straight to the

Court of Appeal and I have got an entrenched right,

I submit; an entrenched right to have a matter

heard in two tiers, one of first instance and one

of appeal.

Knaggs 10 13/12/91

Your Honours, there are lots of other things

in the application but I understand -

MASON CJ: As I have said, we have read them.

MR KNAGGS: - - - you have read them. Well, Your Honours, I

do not accept that there is any difference in my

position due to my having elected to go to a judge

of the Court of Appeal and then to the Full Court of Appeal to overturn, that is to vary, orders of

the court below. As Your Honour Justice Gaudron

said, what I am really trying to convince the Court

of Appeal of and yourselves of is that there was no

jurisdiction to do what was done and that is a

review matter which, I take it, one would expect

the Court of Appeal, if they were of the same mind,

to remedy. In fact, it will be seen as well that
in all the argument - and part of the transcript is

before Your Honours but it is also referred to by His Honour President Kirby - those judges did not

say, "This should have been done by appeal and if

he had done it that way, we would have listened to argument on the other side and my opponents, at the same time were not raising any such argument
him. And we are not because he has come to us."

either.

Everybody, as it were, was accepting that this

was a matter in which what the Court of Appeal

should do and what Clarke JA should have done was

to decide whether I was right in my contention that

the Act and rules required the matter to go to a

division at first instance.	Your Honours, that, in
my submission, is - - -

GAUDRON J: But it did go to a division at first instance.

You cannot complain. It did go there. A decision was made to refer it.

MR KNAGGS:	I cannot complain, Your Honour, I took it there.
GAUDRON J: Yes, and that is where it went.
MR KNAGGS:	But I am saying it is because I took it there there is no power. There is only no power to go to
the Court of Appeal if (a), it should have gone to
a division and (b), it was started in the division.
That is the only - I am sorry, let me put it the
other way. The whole crux on my argument is that
there is nothing in the Act and rules to say that
the matter, if it started in a division and it
should have been started in a division, can be
referred to a Court of Appeal except under Part 12 rule 2 on a specific question of law under specific specified circumstances.

Knaggs 11 13/12/91

Your Honours, can I say something else about

the fact that - yes, the fact that His Honour

President Kirby of the Court of Appeal dealt with

my application on its merits. Your Honours, I say

that there are many errors in the decision of

His Honour, with the greatest of respect to him.

The error that he was prepared to assume that the

legislature had made a mistake when the words were

clear - - -

MASON CJ:	Mr Knaggs, you are becoming repetitive.
MR KNAGGS:	I am sorry, Your Honour.

MASON CJ: Because the application book identifies the

errors on which you rely and you have addressed

with respect to them. Now, there is no point in

repeating grounds you have already dealt with.

MR KNAGGS:  I am sorry, Your Honour. Well, Your Honour, the

other matter that is in the application that I also

stress is that the matter was not properly

considered by Their Honours Mahoney JA and

Meagher JA. There is no suggestion that they are

agreeing with His Honour the President of the Court
of Appeal and I submit that it is clear they have
not given the consideration that under the modern

law they are required to give to submissions which,

on their face at least, ought to be answered. They

have not followed, that is to say, the universal formula with variations of saying, "I agree with the reasons and I agree with the order" or even

that they agree at all. His Honour Meagher JA, I

submit, has not made an intelligible decision on my
submissions which included written submissions that

are with the papers. And, similarly, I submit that

His Honour Mahoney JA has not shown that he has

treated my submissions in any way at all. He has

simply ignored them, I submit, and unless both he and His Honour Justice Meagher had said that they

agreed with His Honour President Kirby then I

submit that on the authorities that I have set out,

they have not properly considered the matter and

therefore have failed to give reasons which is, in

itself, an error of law.

I do not have anything else to say that is not

in the application book, Your Honours.

MASON CJ:  Thank you, Mr Knaggs. The Court need not trouble

you, Mr Lindsay.

In procedural matters of this kind, the Court

grants special leave to appeal only in cases where

exceptional circumstances are shown to exist.	No
such circumstances exist in the present case.	The

Knaggs 12 13/12/91

application for special leave to appeal is

therefore refused.

MR KNAGGS: If it please the Court.

MR LINDSAY:	I seek an order for costs?
MASON CJ:	You oppose an order for costs, Mr Knaggs?

MR KNAGGS:  I do, Your Honours. The reason I oppose an

order for costs is that at no time in any of the

courts below did the courts address the arguments

that I had put and I submit, also, that the matters

were treated by my opponents as being matters that
were properly before each tribunal in succession.

I submit that it is a matter of - even if it is

only a matter of practice and procedure, a matter

which I was entitled, I submit, to ask Your Honours
whether you would grant special leave to appeal in

order to, as it were, bring consistency into the

practice of the supreme court and I would therefore

ask that costs not be awarded against me, but that

each party pay their own costs.

MASON CJ:  The ordinary rule is that costs follow the event,

and that ordinary rule ought to be applied in the

present case. The application is therefore

refused, with costs.

MR LINDSAY: If the Court pleases.

AT 4.19 PM THE MATTER WAS ADJOURNED SINE DIE

Knaggs 13 13/12/91