Law Society of South Australia v Betro - [2025] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
LAW SOCIETY OF SOUTH AUSTRALIA v BETRO
[2025] SASCFC 2
Judgment of The Full Court
(The Honourable Justice Bleby, the Honourable Justice Stein and the Honourable Justice B Doyle)
3 June 2025
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JOINDER OF CAUSES OF ACTION AND OF PARTIES - PARTIES
The Law Society of South Australia (‘the Society’) has filed an originating application seeking declaratory relief and orders in connection with applications made by the respondent under ss 16(1) and 17(3) of the Legal Practitioners Act 1981 (SA) (the ‘Act’) for the issue of a practising certificate and for that certificate to have retrospective effect. The Society’s originating application seeks, amongst other things, that the Court reserve to itself the question whether pursuant to s 17(3) of the Act any practising certificate issued to the respondent is to take effect on a date prior to its issue.
The Attorney-General for the State of South Australia and the Legal Profession Conduct Commissioner (‘LPCC’) are joined as interested parties to the application. The Society’s application has been referred to the Full Court for hearing and programming orders have been made for the necessary materials to be filed to enable the Full Court to address the Society’s application on 18 June 2025.
M is a party to parenting proceedings in the Federal Circuit and Family Court of Australia (‘FCFCOA’) instituted by the father, for whom the respondent appeared as counsel at a time when she did not hold a practising certificate and during the period in respect of which the respondent now seeks that a certificate be issued to her retrospectively.
By interlocutory application filed on 1 May 2025, M seeks to be joined as an interested party to this proceeding, pursuant to r 21 of the UCRs, for the limited purpose of opposing any order under paragraph 3 of the Society’s originating application that would see the respondent granted a practising certificate on a retrospective basis.
The application for joinder is opposed by the respondent, who contends that M lacks a sufficient interest in the question whether she should be issued a practising certificate with retrospective effect, and that the joinder of M would interfere with the efficient and effective resolution of the matter.
Held, ordering that M is joined as an interested party for the limited purpose of opposing the issue of a practising certificate on a retrospective basis, on condition that, until further order, M’s participation as an interested party is limited to the filing of written submissions (supplemented if necessary by any further affidavit material) on identified matters:
1.M does not have a direct interest in the question whether the respondent should be issued a practising certificate with retrospective effect. Her interest is not one which in its own right strongly militates in favour of allowing her to be heard as an interested party, but neither is it so hypothetical or insubstantial that it warrants refusing her application to be joined without further consideration of the extent to which M’s participation is apt to assist the Court;
2.it is at least possible that it may be relevant, in considering whether to issue a practising certificate on a retrospective basis, to consider the extent to which doing so will or has the potential to adversely affect the procedural or substantive rights of any party to litigation in which the practitioner was involved during the period that she did not have a practising certificate;
3.M is well placed to assist the Court in relation to the possible consequences of the Court’s decision in respect of the FCFCOA proceedings to which she is a party, but whether and to what extent it is ultimately appropriate for the Court to make a detailed assessment of those issues in respect of particular litigants is a matter that remains for further consideration in due course;
4.M should not be shut out of contending that her participation should be enlarged, but the Court will consider any such request at the hearing.

Administration and Probate Act 1919 (SA) s 69; Evidence Act 1995 (Cth) s 138; Legal Practitioners Act 1981 (SA) ss 16(1), 17(3), s 52(A); Uniform Civil Rules 2020 (SA) rr 21.1, 22.1 259.4(a), 257.1; Supreme Court Civil Rules 2006 (SA) rr 74(1), 89, referred to.
Burke v Public Trustee for the State of South Australia [2022] SASCA 64, distinguished.
China First Pty Ltd v Mount Isa Mines Ltd [2018] QCA 350; Gardiner v Hughes [2017] VSCA 167; John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1; Kipping v Ash (1845) 1 Rob Ecc 270; 163 ER 1035; Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133; Lottwo Pty Ltd v Tudo [2012] SASC 172; News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410; Ocsalt Pty Ltd v Minister for Mineral Resources & Energy [2012] SASC 67; OneSteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67; Ong v Lottwo Pty Ltd (2013) 116 SASR 280; Pitt v Environment Resources and Development Court (1995) 66 SASR 274; Randall v Randall [2016] EWCA Civ 494; Re 3 Property Group 13 Pty Ltd (in liq) [2022] FCA 1216; Re Cockell [2016] NSWSC 349; Re Kouvakas [2014] NSWSC 786; Re Devoy [1943] St R Qd 137; Re Gillard [1949] VLR 378; Re Culina [2004] NSWSC 504; Ross v Lane Cove Council (2014) 86 NSWLR 34; Saidov & Saidov (No 4) [2025] FedCFamC2F 595, discussed.
Jeavons v Chapman [2008] SASC 249; Levy v State of Victoria (1997) 189 CLR 579; Roadshow Films Pty Ltd v iiNet Ltd (2011) 284 CLR 37; Viscariello v Basedow [2025] SASCA 34, considered.

LAW SOCIETY OF SOUTH AUSTRALIA v BETRO
[2025] SASCFC 2
Full Court – Application: Bleby, Stein and B Doyle JJ

THE COURT: The Law Society of South Australia (‘the Society’) has filed an originating application seeking declaratory relief and orders in connection with applications made by the respondent under ss 16(1) and 17(3) of the Legal Practitioners Act 1981 (SA) (the ‘Act’) for the issue of a practising certificate and for that certificate to have retrospective effect.
Pursuant to s 52A of the Act and r 259.4(a) of the Uniform Civil Rules 2020 (SA) (‘UCRs’), and subject to confidentiality, appeal and reservation conditions referred to in r 257.1, the Supreme Court has assigned to the Society functions and powers relating to the issue of practising certificates.
The Society’s originating application seeks:
1.A declaration that, pursuant to s 16 and s 17 of the Legal Practitioners Act 1981 (SA) (the Act) and on condition of the payment of any fine imposed pursuant to s 17(2) of the Act, the Applicant is required to issue a practising certificate with effect from the date of issue to the Respondent.
2.In the event that the declaration in paragraph 1 is made, pursuant to s 88A of the Act an order that the practising certificate is to be issued to the Respondent with any such conditions as the Court determines ought to be imposed.
3.The Court reserve to itself pursuant to rule 259.1, s 88A of the Act and/or in its inherent jurisdiction, the question of whether pursuant to s 17(3) of the Act any practising certificate issued to the Respondent is to take effect on a date prior to its issue.
4.In alternative to paragraphs 1 and 2 above, the Court reserve to itself, pursuant to rule 258.1, s 88A of the Act and/or in its inherent jurisdiction, the question of the issue of a practising certificate to the Respondent pursuant to s 16(1) of the Act.
The Attorney-General for the State of South Australia and the Legal Profession Conduct Commissioner (‘LPCC’) are joined as interested parties to the application.
The Society’s application has been referred to the Full Court for hearing and programming orders have been made for the necessary materials to be filed to enable the Full Court to address the Society’s application on 18 June 2025.
M is a party to parenting proceedings in the Federal Circuit and Family Court of Australia (‘FCFCOA’) instituted by the father, for whom the respondent appeared as counsel at a time when she did not hold a practising certificate and during the period in respect of which the respondent now seeks that a certificate be issued to her retrospectively.
By interlocutory application filed on 1 May 2025, M seeks to be joined as an interested party to this proceeding, pursuant to r 21 of the UCRs, for the limited purpose of opposing any order under paragraph 3 of the Society’s originating application that would see the respondent granted a practising certificate on a retrospective basis.
The application for joinder is opposed by the respondent, who contends that M lacks a sufficient interest in the question whether she should be issued a practising certificate with retrospective effect, and that the joinder of M would interfere with the efficient and effective resolution of the matter.
For the reasons that follow, whilst we would order that M be joined as an interested party for the limited purpose of opposing the grant of a retrospective practising certificate, on the material and submissions presently filed on M’s part, we would limit the nature of M’s participation to the filing of written submissions (supplemented if necessary by any further affidavit material):
(1)addressing the proper construction of s 17(3) of the Act;
(2)identifying any matters said to militate against the retrospective issue of a practising certificate in the present case, including the likely or potential consequences for M of the Court issuing a certificate on that basis;
(3)articulating the basis for any request to cross-examine the respondent, or to advance oral submissions at the hearing.
In the event that M advances submissions or evidence in support of an enlarged role, the Court will decide whether that should be permitted at the hearing of this matter on 18 June 2025.
Background
The respondent was admitted as a barrister and solicitor of the Supreme Court of South Australia on 20 February 2017 and held a practising certificate continuously from 30 June 2017 to 30 June 2024.
It is not in dispute that from 1 July 2024, the respondent practised as a barrister, appearing in the FCFCOA, without a practising certificate. For the purposes of this application, it is not necessary to address further the circumstances in which the respondent came to be practising without a practising certificate.
Parenting proceedings were commenced by the father in Division 2 of the FCFCOA against M, the mother. Before trial, the proceedings were transferred to Division 1 of that Court.
The respondent appeared as counsel for the father from the commencement of the proceedings and during a trial which took place while the respondent did not have a practising certificate. At the end of January 2025, the trial was adjourned to March 2025.
On 20 February 2025, the LPCC notified the respondent she had been practising without a practising certificate and informed her that she could not continue to practice.
On 4 April 2025, M made an application in the FCFCOA proceedings seeking, amongst other things:
(1)declaratory relief to the effect that the proceedings had been subject to a defect or irregularity causing substantial injustice and which could not be remedied by an order or the Court;
(2)that the proceedings be the subject of an order in the nature of a venire facias de novo and be heard and determined afresh;
(3)that the father be directed to file a ‘Kadlunga list’.
On 7 April 2025, counsel for the Society appeared as amicus at a hearing in the FCFCOA proceedings and informed the Court that it was expected that the respondent practitioner was expected to apply for the issue of a retrospective certificate. The proceedings were adjourned to a directions hearing on 28 April 2025.
On 28 April 2025, the FCFCOA was informed of the proceeding in this Court. In view of the impending retirement of the trial judge an order was made transferring the proceedings to the case management judge for allocation to a different judicial officer.
On 13 May 2025, the FCFCOA made orders granting leave, insofar as necessary, to M releasing her from any implied undertaking to enable M to use documents from the FCFCOA proceedings in this application. The Court also ordered that any final hearing ‘proceed as de novo and to the extent that it is necessary, the part-heard final hearing before the [trial judge] is abandoned’.
The new trial has been listed to commence in late September 2025.
M’s contentions on joinder
M contends that she should be given the opportunity to be heard because she stands to be substantially affected if a certificate is issued to the respondent on a retrospective basis. M proposes to oppose that outcome.
In her written submissions in support of joinder as an interested party, M contended that in the new trial in the FCFCOA a number of issues will ‘hinge on’ whether a practising certificate is retrospectively issued to the respondent, namely:
(1)whether the father can rely on evidence contained in affidavits settled by the respondent and tendered in the abandoned trial and oral evidence given in the abandoned trial as a result of questions asked by the respondent. M contended that as matters presently stand, that evidence is liable to be excluded pursuant to s 138 of the Evidence Act 1995 (Cth). Implicitly, M submits that if a certificate is issued to the respondent on a retrospective basis, that contention will be unavailable;
(2)whether, in consequence of evidence being inadmissible, M may recover her costs thrown away in the new trial;
(3)whether the father can maintain legal professional privilege over documents containing or evidencing communications between the respondent and her instructing solicitor, client or witnesses during the period after 1 July 2025. Again, implicitly, M submits that if a certificate is issued to the respondent on a retrospective basis, her capacity to resist a claim of privilege will be affected;
(4)whether, if the father ultimately achieves a costs order against M, he would be entitled to recover, as part of those costs, the respondent’s counsel fees arising in the period after 1 July 2025. Again, implicitly, M submits that if a certificate is issued retrospectively to the respondent, those costs could be claimed.
M submits that in order to be satisfied that she has a sufficient interest to warrant her joinder as an interested party, the Court need only conclude that these are ‘real’ issues. She contends that they are.
Turning to broader considerations, the nature and extent of the participation proposed by M if joined as an interested party is not entirely clear. In her solicitor’s affidavit in support of the application, it was said that:
The scope of my client’s participation in the proceedings, if joined as an interested party, would simply be to make submissions as to the proper scope of section 17(3) of the Legal Practitioners Act 1981 (SA), and to identify to the Court that if a retrospective practicing [sic] certificate were granted, it would likely have an impact on proceedings in the FCFCOA in which my client is involved. If the Court wished, these issues could be addressed by written submissions, without the need for the Court’s time to be taken up with via voce submissions.
However, in M’s written submissions on joinder, reference is made to what is characterised as a ‘bare assertion – otherwise unexplained’ by the respondent in an affidavit sworn by her to the effect that she first became aware she had not renewed her practising certificate for the year commencing 1 July 2024, on 20 February 2025. M acknowledges that she does not have access to all the relevant affidavit material but appears to foreshadow the possibility that she might, if made an interested party, undertake an ‘examination’ of that issue, presumably including by way of cross‑examination.
M submits that whilst her intervention would occupy some time, it would not do so unnecessarily and, in circumstances where the other parties are not proposing to adopt the role of contradictor, will be of assistance to the Court, and spare it from having itself to adopt an inquisitorial approach.
Respondent’s contentions on joinder
The respondent opposes the application for joinder. She contends that M’s only interest is in obtaining an ‘improbable forensic advantage’ in the FCFCOA proceedings. She submits that even if the retrospective issue of a practising certificate would detrimentally impact M’s prospects of success in the FCFCOA proceedings, that is not sufficient.
In relation to the four issues identified by M, the respondent submits that whether there will be any detriment to M in the proceedings in respect of those issues is ‘unknown and therefore speculative’. The respondent observes that M does not concede that if a retrospective certificate were to be granted that she would not or could not advance the same arguments.
In respect of the issue of privilege, the respondent poses the question whether the application for access to communications with the respondent in relation to the FCFCOA proceedings is made bona fide.
Turning to the broader considerations that might inform the Court’s decision whether to permit M to be joined as an interested party, the respondent submits that:
(1)cross-examination by M’s counsel would disrupt the orderly determination of the application and, even if the Court considers it is undesirable that it performs an inquisitorial role, there is reason to doubt that M (by her counsel) is an appropriate person to act in the role of counsel assisting;
(2)there is no reason to think that the Court will be assisted in the construction or application of s 17(3) of the Act by M’s participation, and M has not identified how she might fulfil the role of contradictor;
(3)the Court has the assistance of the Attorney-General, the LPCC, the Society and the practitioner (the respondent). There is no reason the first three of those parties will not represent the public interest or that the Court will be left with insufficient assistance.
The respondent also makes a submission that although r 257.1(3) contemplates that a person who is dissatisfied with a decision of the Society when performing functions or exercising the Court’s powers as assignee may appeal to the Court, that rule does not avail M given that what is under contemplation is a decision by the Court itself. The respondent also submits that, in context, ‘a person who is dissatisfied’ with a relevant decision can only mean the applicant for a certificate. It is submitted that the absence of any requirement of public notification also suggests that persons other than the applicant are not required to be heard.
Finally, the respondent submits that if M is permitted to be heard in the proceeding, by parity of reasoning, other litigants who participated in matters in which the respondent appeared as counsel might also wish to be heard.
Joinder of an interested party under the UCRs
Rule 21.1 of the UCRs addresses ‘party types’. Rule 21.1(1) provides that parties to an action are either applicants, respondents or interested parties. Rule 21.1(3) defines a respondent as a party (whenever joined) against whom final relief is sought, or whose interests may be directly and adversely affected by the orders sought in the action. Rule 21.1(4) defines an interested party is defined as a party (whenever joined) who should be given the opportunity to be heard in relation to the proceeding or who must be joined to be bound by the result.[1]
[1] The notes to the rule states that the UCRs do not provide for an intervenor and a person who would have been an intervenor under prior rules will be an interested party under the UCRs.

Pursuant to r 22.1, the Court may, at any stage, order the joinder of a party to a proceeding or appellate proceeding on such conditions as it thinks fit.
The Supreme Court Civil Rules 2006 (SA) (‘2006 Rules’) did not provide for the status of an ‘interested party’ as such. Rule 74(1) of those rules enabled the Court to order that a person be joined as a party if satisfied that, among other matters, the person has an interest in the subject matter of the action or in a question of law or fact involved in the action or that they should be joined to ensure all matters in dispute are determined or to enable determination of a related dispute to avoid multiplicity of proceedings.
Rule 89 of the 2006 Rules empowered the Court, on application by a person who sought to intervene in an action, to permit intervention on conditions determined by the Court. That rule provided that an application for permission to intervene had to be supported by an affidavit which, among other things, identified the nature of the applicant’s interest in the action, which need not be a legal or equitable interest. Rule 89 did not otherwise specify criteria for when intervention may be appropriate.
In Jeavons v Chapman,[2] Gray J said that the Court is required to determine whether there is a proper basis for the non-party interest.[3] Even if the non-party satisfies the Court it has an interest in the action, the Court must also consider the extent to which a non-party may be permitted to intervene and the decision whether to permit intervention by a non-party is a matter of discretion to be determined in all of the circumstances.[4] In considering whether to allow intervention by a non‑party intervention pursuant to r 89, he identified four matters were relevant: whether intervention is apt to assist the Court; whether it is in the parties’ interest to allow intervention; whether intervention will unnecessarily occupy time; and whether allowing intervention will add inappropriately to the costs of the proceeding.[5]
[2]     Jeavons v Chapman [2008] SASC 249.
[3]     Jeavons v Chapman [2008] SASC 249 at [13].
[4]     Jeavons v Chapman [2008] SASC 249 at [12]-[13].
[5]     Jeavons v Chapman [2008] SASC 249 at [12].
As Gray J observed, the general principles governing non-party intervention were discussed by Brennan CJ in Levy v State of Victoria.[6]That decision demonstrates that intervention may be appropriate in three main instances:
·where a non-party’s interest would be affected by a decision in the proceeding;
·where a non-party’s interest is likely to be affected by a decision in the proceeding; and
·where parties may not present fully submissions on a particular issue which are submissions the Court should have to assist it to reach a correct determination.[7]
[6] Levy v State of Victoria (1997) 189 CLR 579.
[7] Levy v State of Victoria (1997) 189 CLR 579 at 600-604.
Brennan CJ’s observations were also referred to by the plurality in Roadshow Films Pty Ltd v iiNet Ltd.[8] French CJ, Gummow, Hayne, Crennan and Kiefel JJ said that:
A non-party whose interests would be directly affected by a decision in the proceeding, that is one who would be bound by the decision, is entitled to intervene to protect the interest likely to be affected. A non-party whose legal interest, for example, in other pending litigation is likely to be affected substantially by the outcome of the proceedings in this Court will satisfy a precondition for leave to intervene. Intervention will not ordinarily be supported by an indirect or contingent affection of legal interests following from the extra‑curial operation of the principles enunciated in the decision of the Court or their effect upon future litigation.
Where a person having the necessary legal interest can show that the parties to the particular proceedings may not present fully the submissions on a particular issue, being submissions which the Court should have to assist it to reach a correct determination, the Court may exercise its jurisdiction by granting leave to intervene, albeit subject to such limitations and conditions as to costs as between all parties as it sees fit to impose.
[8] Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; (2011) 284 CLR 37 (French CJ, Gummow, Hayne, Crennan and Kiefel JJ) at [2]-[3].
In Burke v Public Trustee for the State of South Australia,[9] in the context of an application by a person to be joined as a party to an application for judicial advice and directions under s 69 of the Administration and Probate Act 1919 (SA), Doyle JA (with whom Stanley AJA agreed) observed:[10]
In exercising its discretion to order that a non-party be joined as a defendant to ordinary inter partes litigation, the Court will generally have regard to the nature and strength of the interest relied upon by the party seeking to be joined, as well as the broader implications for the efficient and effective resolution of the relevant litigation.[11] The applicant for joinder must make out a proper case to justify joinder; an order for joinder will not ordinarily be made as a matter of course. In considering the sufficiency of the interest of an applicant for joinder, it is sometimes said that the applicant must establish an arguable case as to the existence of the relevant interest.[12]
The parties to the present appeal suggested that the Court may be assisted by the test for standing in probate matters. They referred in this respect to the articulation of that test by McLeish JA in Gardiner v Hughes:[13]
First, in order to establish standing, an applicant for an order revoking a grant of probate or letters of administration must have a sufficient interest in the proceeding.[14] Sufficiency of interest is established by showing that the applicant’s rights would or might be affected if the grant were to be revoked.[15] The bare possibility of an interest will suffice.[16]
While this formulation suggests a fairly low threshold, even the “bare possibility” of an interest nevertheless connotes something more than a mere assertion of an interest, or mere speculation as to the existence of the interest. While it does not require the Court to embark upon any detailed assessment of the merits of the claimed interest, let alone embark upon a ‘mini trial’ of that interest, the evidence must nevertheless reveal a basis, as a matter of fact and law, for the interest said to justify joinder.
[9] Burke v Public Trustee for the State of South Australia [2022] SASCA 64.
[10] Burke v Public Trustee for the State of South Australia [2022] SASCA 64 at [358]-[360].
[11] Ong v Lottwo Pty Ltd (2013) 116 SASR 280 at [50]-[58] (Nicholson J, Kourakis CJ and Stanley J agreeing); Ocsalt Pty Ltd v Minister for Mineral Resources & Energy [2012] SASC 67 at [4]-[9] (Judge Lunn); OneSteel Manufacturing Pty Ltd v Environment Protection Authority (2005) 92 SASR 67 at [18]-[26] (Debelle J); Pitt v Environment Resources and Development Court (1995) 66 SASR 274 at 275-276 (Doyle CJ), 281-282 (Duggan J, Nyland J agreeing).
[12] Lottwo Pty Ltd v Tudo [2012] SASC 172 at [43] (White J); and on appeal in Ong v Lottwo Pty Ltd (2013) 116 SASR 280 at [16], [50]-[53] (Nicholson J, Kourakis CJ and Stanley JJ agreeing).
[13] Gardiner v Hughes [2017] VSCA 167 at [90] (McLeish JA, Tate and Kyrou JJA agreeing).
[14] Re Devoy [1943] St R Qd 137.
[15] Re Cockell [2016] NSWSC 349; Re Kouvakas [2014] NSWSC 786.
[16] Kipping v Ash (1845) 1 Rob Ecc 270; 163 ER 1035; Re Gillard [1949] VLR 378; Re Culina [2004] NSWSC 504. See also Randall v Randall [2016] EWCA Civ 494.
More recently, in Viscariello v Basedow,[17] S Doyle and David JJA said, with reference both to the Corporations Rules and the UCRs:
… Under both sets of rules, the issue of whether it is appropriate to order that a person be joined or heard involves consideration of the nature of the proceedings, the nature and extent of the person’s interest in those proceedings and, at least in the case of the right to be heard, the extent to which the person’s participation is likely to assist the Court’s resolution of the proceedings.[18]
Generally speaking, if a person’s interest may be directly affected by the orders sought in the proceedings,[19] or the person’s interest is such that it is necessary that they be joined (for example, to ensure they are bound by the decision), then the Court will permit that person to be joined as a respondent or interested party. At least in the context of ordinary inter partes litigation,[20] the decision to join a person in these circumstances may not involve any discretion.[21] In a clear case, it can be said that a person is directly affected and has a right to be joined. However, in other cases, the issue ‘involves matters of degree, and ultimately judgment, having regard to the practical realities of the case, and the nature and value of the rights and liabilities of the third party which might be directly affected’,[22] with the decision involving a discretion.
Further, as explained in Burke v Public Trustee for the State of South Australia,[23] even in the context of ordinary inter partes litigation, establishing that a person is directly affected requires:[24]
… something more than a mere assertion of an interest, or mere speculation as to the existence of the interest. While it does not require the Court to embark upon any detailed assessment of the merits of the claimed interest, let alone embark upon a ‘mini trial’ of that interest, the evidence must nevertheless reveal a basis, as a matter of fact and law, for the interest said to justify joinder.
It follows that, if the person has no more than a general or indirect interest, or an interest based on mere assertion or speculation, then the Court will not ordinarily permit them to be joined.
The decision whether to permit a person to be heard, on the other hand, involves a broader inquiry and the exercise of a discretion.[25] In particular, the decision to permit a person to be heard may be informed by not only the nature of the proceedings and the nature and extent of the person’s interest in those proceedings, but also the extent to which the person’s participation is likely to assist the Court’s resolution of the proceedings.
[17] [2025] SASCA 34 at [139]-[143].
[18] Re 3 Property Group 13 Pty Ltd (in liq) [2022] FCA 1216 at [29] (Wigney J); see also Burke v Public Trustee for the State of South Australia [2022] SASCA 64 at [358] (Doyle JA, Stanley AJA agreeing).
[19] News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 525 (Lockhart, von Doussa and Sackville JJ); John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 at [131]-[133] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ); Ross v Lane Cove Council (2014) 86 NSWLR 34 at [51]-[53] (Leeming JA, Meagher JA and Tobias AJA agreeing); China First Pty Ltd v Mount Isa Mines Ltd [2018] QCA 350 at [44]-[60] (Gotterson JA, Fraser and McMurdo JJA agreeing).
[20] Cf where the proceedings involve an application for judicial advice and directions: Burke v Public Trustee for the State of South Australia [2022] SASCA 64 at [370] (Doyle JA, Stanley AJA agreeing).
[21] Ross v Lane Cove Council (2014) 86 NSWLR 34 at [57] (Leeming JA, Meagher JA and Tobias AJA agreeing).
[22] News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 525 (Lockhart, von Doussa and Sackville JJ).
[23] Burke v Public Trustee for the State of South Australia [2022] SASCA 64.
[24] Burke v Public Trustee for the State of South Australia [2022] SASCA 64 at [360] (Doyle JA, Stanley AJA agreeing).
[25] Re 3 Property Group 13 Pty Ltd (in liq) [2022] FCA 1216 at [29] (Wigney J).
It is apparent that the references in that discussion to the Court permitting a person to be joined or alternatively to be heard were intended to distinguish between a person being joined as an applicant or respondent, on the one hand, or being designated as an ‘interested party’ (on the basis that they ‘should be given an opportunity to be heard’), on the other.
In Burke v Public Trustee for the State of South Australia and Viscariello v Basedow, the Court distinguished between ordinary inter partes litigation and other proceedings. Within the latter category, much may turn on the particular nature of the litigation. For instance, because of the limited scope and purpose of applications for private advice, it might be that a non-party seeking to participate would need to establish a more compelling reason for being heard than would be the case if the same issue were being decided in inter partes proceedings.[26]
[26] Bourke v Public Trustee for the State of South Australia [2022] SASCA 64 at [372] (Doyle JA, Stanley AJA agreeing), Viscariello v Basedow [2025] SASCA 34 at [152] (S Doyle and David JJA).
In the present case, however, whilst in one respect the Society seeks declaratory relief as to how it should act, the function that the Full Court performs, and the jurisdiction that the Court has reserved to itself, involves the regulation of the legal profession, which is plainly a matter involving the public interest.[27]
[27] See, eg, Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133 at [72] (Kourakis CJ), at [296] (Bleby JA and Stein AJA).
The relevance of the public interest to the Court’s role might, in some cases, militate in favour of hearing from a person who is in a position to bring before the Court relevant facts or submissions. The importance of reaching an appropriate decision in the public interest might warrant hearing from a person who is well‑placed to assist the Court in that task even though their rights are only liable to be affected in an indirect or contingent way.
That said, in matters such as these, the Court has the assistance of the Society, the LPCC and the Attorney-General, each of whom, in different ways, may be expected to assist the Court in ensuring that it discharges its function with appropriate regard to the public interest. The result is that a person who is in the same, or no better, position to assist in that way, would be unlikely to be joined as an interested party.
It follows that the Court’s preparedness to join a person as an interested party and to hear from them may depend upon the particular matters of fact or law about which they seek to be heard. The Court’s power to impose conditions upon joinder pursuant to r 22.1(1) of the UCRs may be exercised to limit an interested party’s participation to particular issues or in particular respects.
Disposition
It cannot be said that M has a direct interest in the question whether the respondent should be issued a practising certificate with retrospective effect.
Rather, she contends that if the respondent is issued a certificate on that basis, it will prejudice her capacity to object to evidence, or to obtain documents, and that the result may also affect her capacity to obtain an order for costs thrown away, or the quantum of any adverse costs that she might ultimately be ordered to pay. It is not suggested, nor could it be, that the substantive outcome of the parenting proceedings will necessarily turn on the admissibility or discovery issues. At most, their resolution has the potential to shape the forensic contest about those substantive issues.
M’s claimed interest is therefore of an indirect kind.
In respect of the first issue that she has identified, a recent decision of Division 2 of the FCFCOA in a different proceeding demonstrates that, whilst much may turn on the facts and circumstances of the particular case, M’s success on an application to exclude evidence adduced in the first trial is by no means assured, even in the absence of the issue of a retrospective practising certificate.[28]
[28] Saidov & Saidov (No 4) [2025] FedCFamC2F 495 at [42]-[71] (Judge Parker).
As well, it cannot be said that M’s contentions concerning admissibility or privilege must succeed if no retrospective certificate is issued pursuant to s 17(3) of the Act and nor can it be said that those arguments must fail if such an order is made. It is neither practical nor appropriate for this Court to conduct a hypothetical ‘mini trial’ of those matters. Whether in fact the retrospective issue of a practising certificate affects the nature or quantum of any costs order is also subject to a number of contingencies.
For those reasons, the nature of the interest asserted is not one which, in its own right, strongly militates in favour of allowing M to be heard as an interested party. But neither is the asserted interest so hypothetical or insubstantial that it warrants refusing M’s application to be joined without further consideration of the extent to which M’s participation is apt to assist the Court.
The parties’ submissions suggest that there is no authority which has considered the nature of the matters that might bear on the appropriateness of this Court issuing a retrospective practising certificate pursuant to s 17(3) of the Act. It is at least possible that one relevant consideration is whether to do so would or has the potential to adversely affect the procedural or substantive rights of any party to litigation in which the practitioner has been involved.
It is neither necessary nor appropriate, at the stage of joinder, to decide whether that is a relevant consideration, but it may be presumed that M will contend that it is. Whether or not M will be the only party who advances such a contention is not known, but, in any event, in considering whether to accept the contention, and if so what weight to attribute to it, the Court may be assisted by an understanding of how any litigants’ procedural or substantive rights might be affected by the Court’s decision. It seems to us that M is well placed, and likely better placed than the other parties, to lay out for the Court what those consequences might be and to provide the Court with evidence about how the steps she proposes to take in the FCFCOA proceedings may be affected by the Court’s decision. In that way, and on those issues, at least, M’s intervention does have the capacity to assist the Court. Whether it is ultimately appropriate for the Court to make any kind of detailed assessment of the likely impacts of the issue of a retrospective certificate in any particular litigant’s case is a matter that remains for further consideration in due course, noting that the recent decision, to which we referred above, suggests that similar arguments might be advanced in other cases and, bearing in mind that to the extent that refraining from acting under s 17(3) might afford a procedural advantage to one party, it might follow that it results in a corresponding disadvantage to the other.
The position is different, however, with respect to factual matters such as whether the respondent was unaware, until February 2025, that her certificate had not been renewed. M does not claim to be in any better position to assist the Court on this issue than would be the Society, the LPCC or the Attorney‑General. She has not suggested that by virtue of her participation in the FCFCOA proceedings, she has relevant evidence to adduce on that topic. Her characterisation of the respondent’s position as involving ‘bare assertion’ likely reflects that she has not at this stage had access to all the material that has been filed and is available to the parties.
It might be that, if joined as an interested party, upon a review of that material, M is able, by drawing on her own knowledge or observations, to assist the Court on this issue in a way that the other parties cannot. Otherwise, however, there is at least reason to doubt that M should be permitted to participate with a view to contesting the respondent’s evidence about her state of knowledge and awareness.
By reason of the indirect interest identified, she might have an interest in undermining the respondent’s evidence that the other parties lack. But in circumstances where, between them, the other parties can be expected to have made some assessment of their own about the respondent’s evidence, and whether there is a proper basis to test it, participation to that extent may not be apt to assist the Court. Accordingly, we do not consider it appropriate, at this juncture, to permit M to play that broader role. If M seeks to enlarge her role in that way, the Court will be better placed to decide whether that should occur at the hearing, by which time it will have received all the various parties’ submissions and affidavit material.

The other discretionary considerations which are relevant to M’s application to be joined as an interested party are focused upon avoiding undue interruption, delay or cost.
In our view, it is important that M’s participation not delay the orderly disposition of the proceeding. The matter has been listed for a hearing on 18 June 2025 because the nature of the issues raised warranted expedited consideration by the Full Court. M’s participation will have to be on terms that are consistent with and will not unduly disrupt the programming orders that have been made.
In the first instance, we consider it should be limited to the filing of a written submission (supplemented if need be by any further affidavit material) addressing the construction of s 17(3) of the Act and its application in this case. If that is the extent of M’s participation, it is not likely to cause significant delay or cost, and the time and cost that will be involved will be proportionate to the assistance that the Court might receive.
Whilst M should not be shut out from contending that her participation should be enlarged either by allowing her to make oral submissions or to cross-examine the respondent, or in some other way, she should articulate what is proposed in this respect in the written submissions she files, and those questions can be assessed at the hearing in light of the material that will, by that time, have been filed by the other parties. The nature and extent of the role proposed to be played by the other parties will also be clearer.
Orders
We order that M be joined as an interested party for the limited purpose of opposing the grant of a retrospective practising certificate.
We direct that, subject to further order, M’s participation as an interested party is limited to the filing of written submissions (supplemented if necessary by any further affidavit material):
(1)addressing the proper construction of s 17(3) of the Act;
(2)identifying any matters said to militate against the retrospective issue of a practising certificate in the present case, including the likely or potential consequences for M of the Court issuing a certificate on that basis;
(3)articulating the basis for any request to cross-examine the respondent, or to advance oral submissions at the hearing.
M is to file and serve that material on or before 6 June 2025.