Law Society of South Australia v Betro (No 2)

[2025] SASCFC 3

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

LAW SOCIETY OF SOUTH AUSTRALIA v BETRO (No 2)

[2025] SASCFC 3

Judgment of The Full Court  

(The Honourable Justice Bleby, the Honourable Justice Stein and the Honourable Justice B Doyle)

26 June 2025

PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES

PROFESSIONS AND TRADES - LAWYERS - QUALIFICATIONS AND ADMISSION - JURISDICTION OF SUPREME COURTS

Ms Betro (‘the practitioner’) was admitted as a barrister and solicitor of the Supreme Court of South Australia and signed the Roll of Practitioners in 2017.  She held a practising certificate from 30 June 2017 to 30 June 2024.  From 1 July 2021, she practised as a barrister in the family law jurisdiction.

Although she had completed the mandatory continuing professional development (‘MCPD’) requirements for the year ending 31 March 2024, the practitioner did not lodge a certificate evidencing that compliance by 14 April 2024.  The practitioner did not submit an application to renew her practising certificate for the period commencing 1 July 2024 until 9 July 2024, when she made an online application using the Law Society of South Australia (‘Society’) website.  Upon making that application, invoices were generated in respect of the required renewal fees and professional indemnity insurance (‘PII’) contribution.  The practitioner failed to make payment of those invoices.  In those circumstances, and because she had not certified that she had completed the MCPD requirements for the previous year, a practising certificate did not issue.

The practitioner practised as a barrister exclusively in the family law jurisdiction without a practising certificate between 1 July 2024 and 20 February 2025, when the Legal Profession Conduct Commissioner (‘the Commissioner’) informed her that she had been practising without a certificate.  She immediately ceased practising and subsequently applied for a certificate, including on the basis that it take effect from 1 July 2024. 

In April 2025, the Society filed an originating application seeking declaratory relief and orders in connection with the applications made by the practitioner under ss 16 and 17 of the Legal Practitioners Act 1981 (SA) (‘Act’). The Society sought that the Court reserve to itself the question whether, pursuant to s 17(3) of the Act, any practising certificate issued to the practitioner should take effect on a date prior to its issue. The practitioner is the respondent to the originating application. The Attorney-General and the Commissioner are joined as interested parties. For reasons given on 3 June 2025, the Court directed that M be joined as an interested party for the limited purpose of opposing the grant of a retrospective practising certificate. M is a party to proceedings in the Federal Circuit and Family Court of Australia (‘FCFCOA’) in which the practitioner had appeared without a practising certificate.

The practitioner accepted that she was entirely to blame for failing to lodge the required MCPD certificate, failing to attend to all the steps necessary to obtain a practising certificate, and practising without a practising certificate.  The practitioner gave evidence explaining the circumstances in which those failings occurred.  Her evidence was that she did not appreciate that she had been practising without a practising certificate until informed of that fact on 20 February 2025.  She accepted, however, that she should have been aware of that fact.  She unreservedly apologised to the Court.  In the period of approximately four months following 20 February 2025, she has taken steps to address those failures and to ensure that, if and when granted a practising certificate, she is in a position to diligently attend to her regulatory and practice management obligations.

The issues raised on the application and by the submissions of the parties and interested parties are whether:

1.subject to payment of the required fees, proof that the requisite insurance has been obtained under the scheme contemplated by s 52 of the Act, and payment of any fine imposed, the practitioner is entitled to have a prospective practising certificate issued to her;

2.the Court should require the practitioner to pay the prescribed fine before a certificate is issued to the practitioner pursuant to s 17(2) of the Act;

3.the Court should impose further conditions on the practitioner; and

4.any certificate issued to the practitioner should take effect from a date prior to the date of issue, pursuant to s 17(3) of the Act.

Held, granting declaratory and other relief on the originating application:

1.subject to payment of the required fees, proof that the requisite insurance has been obtained, and the payment of any fine imposed, the practitioner is entitled to have a prospective practising certificate issued to her;

2.the practitioner must pay the maximum prescribed fine pursuant to s 17(2) of the Act before a certificate is issued to her;

3.supervision, education, practice management and reporting conditions should be imposed on the practitioner’s practice until 30 June 2026;

4.in deciding whether to exercise the power in s 17(3) of the Act, the Court will consider whether the protective purposes of the Act and the importance attached by the Act to the maintenance of professional standards will be adequately served or protected without the practitioner being exposed to subsequent disciplinary or criminal investigation, prosecution or sanction;

5.the Court would not embark upon a decision whether to exercise the power in s 17(3) of the Act if insufficient is known of the relevant circumstances to permit the Court to make an assessment of the quality or gravity of the practitioner’s failure, any explanation or context proffered by the practitioner for it, and the likely efficacy of any steps taken by the practitioner (supported by any conditions that may be imposed by the Court) in ensuring that there will be not repetition of the relevant failing;

6.the Court resumes or reserves to itself the function of deciding whether any practising certificate issued to the practitioner should take effect from a date prior to its issue pursuant to s 17(3) of the Act;

7.although the practitioner’s failings are serious, in view of the explanation that she has given, and the way in which she has responded to their revelation during the succeeding four months whilst she has been unable to practise, there is no reason to doubt the practitioner’s fitness to practise;

8.the protective and related purposes that might be served by declining to exercise the power in s 17(3) of the Act, and by allowing any disciplinary or other processes to take their ordinary course, are sufficiently met in this case by the chastening effect upon the practitioner of this proceeding, the public and professional scrutiny that her conduct has invited, the positive steps taken by the practitioner during the period in which she has ceased practice to address her failings, the disapprobation of her conduct expressed by the Court in its reasons, the fine to be imposed on the practitioner and the conditions to be imposed upon her future practice;

9.the imposition of a fine, the imposition of conditions, and the expression of the Court’s disapprobation are sufficient to convey to the practitioner and the profession the importance of the relevant obligations and to ensure public confidence in the maintenance of appropriate professional standards;

10.neither the possible prejudice to insurers or underwriters under the PII scheme, nor the potential prejudice to M’s position in the FCFCOA proceedings, requires that any certificate issued to the practitioner not take effect from an earlier date.

Observations made on the issue and renewal of practising certificates pursuant to the Act and in connection with the control and discipline of practitioners.

Crown Proceedings Act 1992 (SA) s 9(2); Director of Public Prosecutions Act 1991 (SA) s 7(1); Evidence Act 1995 (Cth) s 138; Legal Practitioners Act 1981 (SA) ss 5(1), 7, 13, 14AB, 14B, 14C, 14I, 14J, 15, 16, 17, 17A, 18, 19, 20, 20AD, 20AC, 20AF, 20AG, 20AH, 20AI, 20AJ, 21, 22, 52, 52A, 68, 69, 70, 71, 72, 77B, 77J, 77L, 78, 82, 84A, 86, 88A, 89, 96; Legal Practitioners Regulations 2014 (SA) reg 65(1)(b); Mutual Recognition Act 1992 (Cth); Rules of the Legal Practitioners Education and Admission Council 2018 rr 10, 13(3), 14, Appendix C, cl 6.1; South Australian Legal Practitioners Conduct Rules; Uniform Civil Rules 2020 (SA) rr 21.1(4), 257.1, 259.1, 259.4(a), referred to.

A v Hayden (No 2) (1984) 156 CLR 532; Attorney-General v Bax [1999] 2 Qd R 9; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117; Briginshaw v Briginshaw (1938) 60 CLR 336; Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649; Commonwealth v Vance (2005) 224 FLR 243; Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407; Council of the New South Wales Bar Association v Dwyer [2014] NSWCA 302; Council of the New South Wales Bar Association v Perry [2007] NSWCA 111; Glengallan Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233; Independent Commission against Corruption v Cunneen (2015) 256 CLR 1; Jordan v Persse [2017] SASC 133; Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149; Legal Practitioners Conduct Board v Hannaford (2002) 83 SASR 277; Legal Practitioners Conduct Board v Kerin (2006) 246 LSJS 371; Legal Profession Conduct Commissioner v Alderman [2015] SASCFC 11; Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102; Legal Profession Conduct Commissioner v Mancini [2022] SASCFC 1; Legal Profession Conduct Commissioner v McCardle (No 2) [2024] SASCFC 4; Maxwell v The Queen (1996) 184 CLR 501; Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490; O’Sullivan v Farrer (1989) 168 CLR 210; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470; Re Davis (1947) 75 CLR 409; RS Howard & Sons Ltd v Brunton (1916) 21 CLR 366; Saidov v Saidov (No 4) [2025] FedCFamC2F 495; Smith v New South Wales Bar Association (1992) 176 CLR 256; Swashplate Pty Ltd v Liberty Mutual Insurance Company trading as Liberty International Underwriters (2020) 381 ALR 648; The Law Society of South Australia v Murphy (1999) 201 LSJS 456; Ulowski v Miller [1968] SASR 277; Wentworth v New South Wales Bar Association (1992) 176 CLR 239; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279, discussed.

Law Society of South Australia v Betro [2025] SASCFC 2, considered.

LAW SOCIETY OF SOUTH AUSTRALIA v BETRO (No 2)
[2025] SASCFC 3

Full Court: Bleby, Stein and B Doyle JJ

1. THE COURT:  Ms Betro (‘the practitioner’) was admitted as a barrister and solicitor of the Supreme Court of South Australia and signed the Roll of Practitioners in 2017.  She held a practising certificate from 30 June 2017 to 30 June 2024.  From 1 July 2021, she practised as a barrister in the family law jurisdiction and held the appropriate category of practising certificate until 30 June 2024.

2. Although she had completed the mandatory continuing professional development (‘MCPD’) requirements for the CPD year ending 31 March 2024, the practitioner did not lodge a certificate evidencing that compliance by 14 April 2024.[1]   

   [1]     Rules of the Legal Practitioners Education and Admission Council 2018 (‘LPEAC Rules’), Appendix C, cl 6.1.

3. The practitioner did not submit her application to renew her practising certificate for the period commencing 1 July 2024 until 9 July 2024, when she made an online application using the Law Society of South Australia (‘Society’) website.  When such applications are made, invoices are automatically generated in respect of the required renewal fees and professional indemnity insurance (‘PII’) contribution.  Certificates are not issued until the prescribed fee and required PII contribution are paid.

4. The practitioner overlooked payment of those amounts.  As well, because she had not submitted a certificate, the Society was unable to confirm that she had completed her MCPD requirements for the previous CPD year.

5. The result was that the practitioner’s application did not result in the issue of a practising certificate.  The practitioner was sent automated email responses containing advice as to how to make payment of the renewal fees.  She was also sent an email on 23 July 2024 by a Regulatory Support Coordinator of the Society advising her that she had not yet been issued a certificate. 

6. As will be later explained, the practitioner’s evidence is that she did not appreciate that her certificate would not issue until she had paid the required fee and contribution and that she ultimately overlooked making payment.  She does not recall reading the 23 July 2024 email.  The practitioner also failed to open later emails alerting her to the fact that she had not been issued a certificate.  She accepts that she is at fault for failing to read, absorb and act upon the contents of the email communications she received.

7. The practitioner practised as a family law barrister without holding a practising certificate from 1 July 2024 until 20 February 2025, when she was approached in the precincts of the Federal Circuit and Family Court of Australia by the Legal Practitioners Conduct Commissioner (the ‘Commissioner’).  He informed her that she had not renewed her practising certificate. 

8. The practitioner ceased practising immediately.  She engaged in discussion with the Society and its Ethics and Practice Committee about the steps she was required to take to make an application for the issue of a practising certificate (and on a retrospective basis), including providing satisfactory evidence that she had complied with the MCPD requirements in the previous CPD year.

9. We accept that during the period between mid-July 2024 and 20 February 2025, the practitioner did not in fact, appreciate that she was practising without a certificate.  The practitioner accepts that she ought to have appreciated that she was practising without having completed the steps necessary to renew her practising certificate. 

10. The practitioner’s failure to renew her practising certificate, and her conduct in practising without a current certificate, are serious matters, for which she accepts she bears sole responsibility. 

11. We accept as genuine her shock, contrition and remorse, consequent upon being informed that she had for many months been practising without a certificate.  The practitioner unreservedly apologises to the Court and has previously communicated an apology to others.

12. On 7 March 2025, the practitioner made an application for a practising certificate with retrospective effect from 1 July 2024, in the expectation it would be considered by the Board of Examiners.  In late March 2025, the Board of Examiners formed the view that it did not have power to determine the application.[2] 

    [2]     Where a practitioner has not completed the prescribed amount of MCPD in respect of the preceding CPD year, r 14 of the LPEAC Rules empowers the Board of Examiners, inter alia, to direct that a practising certificate be issued to or renewed by the practitioner subject to a condition or conditions determined to be appropriate.  Because the Board of Examiners was satisfied that the practitioner had in fact completed the prescribed amount of MCPD in the 2023/2024 CPD year, it considered it lacked power to determine the practitioner’s application

13. In April 2025, the Society resolved to refer the subject matter of the practitioner’s application to this Court. On 16 April 2025, the Society filed an originating application seeking declaratory relief and orders in connection with applications made by the practitioner, 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.

14. The Attorney-General for the State of South Australia and the Commissioner were joined as interested parties to the application.[3] 

    [3] The Attorney-General for the State of South Australia was entitled to intervene pursuant to s 9(2) of the Crown Proceedings Act 1992 (SA) for the purpose of making submissions concerning the proper construction of the relevant provisions of the Act. The Commissioner’s role and functions are described in Division 2 of Part 6 of the Act. The Commissioner’s statutory function is such that he was properly joined as an ‘interested party’ pursuant to r 21.1(4) of the Uniform Civil Rules 2020 (SA) (‘UCRs’).

15. On the application of M, a party to proceedings in the Federal Circuit and Family Court of Australia (‘FCFCOA’) in which the practitioner appeared without holding a practising certificate, we made orders on 3 June 2025 joining M as an interested party for the limited purpose of opposing the grant of a retrospective practising certificate.[4]  That was subject to conditions limiting the extent of her participation in the hearing.  We subsequently enlarged M’s right to participate in the proceeding by permitting her to file two further responsive written submissions and to make a brief oral submission at the hearing.

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

16. Although the form of any final relief that the Court might grant was refined in the course of submissions at the hearing, the Society’s originating application sought:

    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 259.1, 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.

17. Paragraph 1 seeks declaratory relief on the basis that, on the proper construction of the Act, the Court (or the Society) is, subject to identified conditions, required to issue a new certificate to the practitioner; that is, on proper construction of the Act, the fact that the practitioner has practised without holding a certificate does not engage a more general discretion whether to grant a certificate on a prospective basis. Paragraph 2 reflects that, in its role as the Court’s assignee,[5] the Society is not itself empowered to impose conditions when issuing a practising certificate. Paragraph 3 invites the Court to resume or reserve to itself the function or power to decide whether to issue a certificate with effect from a date prior to its issue, pursuant to s 17(3) of the Act.[6]  Paragraph 4 is by way of alternative to paragraphs 1 and 2 and can be put to one side for present purposes.

    [5] Pursuant to s 52A of the Act and r 259.4(a) of the UCRs, and subject to confidentiality, appeal and reservation conditions referred to in r 257.1, the Court has assigned to the Society functions and powers relating to the issue of practising certificates.

    [6]     UCRs, r 257.1.

1. In our view, the Society is correct to submit that upon producing satisfactory evidence that the practitioner has obtained insurance under the PII scheme in force under the Act, the practitioner is entitled, subject only to payment of any fine that may be imposed, to be issued with a prospective practising certificate.

2. We consider that the maximum prescribed fine should be imposed upon the practitioner.  We would also impose supervision, education, practice management and reporting conditions upon the practitioner’s right to practise for a period until 30 June 2026.

3. The Court has been provided with detailed evidence addressing the circumstances surrounding the practitioner’s failure to renew her practising certificate and her practice as a family law barrister without holding a practising certificate.  We consider we have sufficient evidence upon which to decide whether the certificate to be issued to the practitioner should take effect from 1 July 2024, with the consequence that the practitioner would not be exposed to future disciplinary or criminal sanction for practising without a certificate during the relevant period. 

4. We are satisfied that it is appropriate that the practising certificate be issued with effect from an earlier date.  The protective and related purposes that might be served by declining to do so, and by allowing any disciplinary or other processes to take their ordinary course, are sufficiently met in this case by the chastening effect upon the practitioner of this proceeding, the public and professional scrutiny that her conduct has invited, the positive steps taken by the practitioner during the period in which she has ceased practice to address her failings, the disapprobation of her conduct expressed by the Court in these reasons, the fine to be imposed on the practitioner and the conditions to be imposed upon her future practice. 

5. The practitioner’s failings are serious. Nevertheless, in view of the explanation that she has given, and the way in which she has responded to their revelation during the succeeding four months whilst she has been unable to practise, we see no reason to doubt the practitioner’s fitness to practise.  In the particular circumstances of this case, we do not consider that further sanction is required to meet the protective and related public purposes that inform the regulation of the profession.  The imposition of a fine, the imposition of conditions, and the expression of this Court’s disapprobation are, in our view, sufficient to convey to the practitioner and the profession the importance of the relevant obligations and to ensure public confidence in the maintenance of appropriate professional standards.

6. We do not consider that the possible prejudice to insurers or underwriters under the PII scheme, or the impact that our decision might have on M’s position in FCFCOA proceedings, require that any certificate issued to the practitioner not take effect from an earlier date.

7. Our more detailed reasons follow.

   The practitioner’s background and practice at the relevant times

8. Following the practitioner’s admission in 2017, she was employed as a solicitor at Duncan Basheer Hannon, where she practised exclusively in the firm’s family law team.  Between May 2020 and September 2021, she was employed in the family law team of a different firm, Stanley & Co Lawyers.  By July 2021, she was promoted to the position of senior associate at that firm.

9. In late July 2021, the practitioner was approached by Ms Taanya Lewis (now of Senior Counsel) to move to the independent bar and fill a vacancy at Elizabeth Evatt Chambers (‘EEC’) brought about by the appointment of a former member as a judicial officer.  The practitioner accepted the invitation and commenced practice as a barrister practising in the area of family law in September 2021.  From that time, the practitioner practised under a ‘category BA’ certificate.[7] 

   [7] Act, s 16(2); LPEAC Rules, r 10.

10. During 2022 and 2023, the practitioner undertook and completed the Bar Readers Course offered by the South Australian Bar Association.  In January 2023, she undertook the Advanced Trial Advocacy Intensive course offered by the Advocacy Training Council of the Australian Bar Association ordinarily available only to persons who have a minimum of five years’ experience as a barrister.

11. In June 2023, the practitioner participated in a panel in a CPD session offered by the Family Law Section of the Law Council of Australia as a part of the Adelaide Family Law Intensive.  After that session, she was asked to assist in preparing the major paper for the following year’s seminar series.  That required the practitioner to read and summarise fifty recent interesting family law cases, and involved approximately 2-3 weeks of research.  When she agreed to undertake this work, the practitioner intended to complete the work over a five month period between July 2023 and December 2023.

12. The practitioner completed the Bar Readers Course in July 2023 and was, from that time, in a position to accept trial briefs.  Between August 2023 and December 2023, the practitioner was briefed in four trials involving considerable preparation, including a trial in which 13 witnesses were called. 

13. During this period a member of the practitioner’s family was unexpectedly diagnosed with a serious illness requiring surgery and a lengthy period of treatment.  The practitioner was also preparing for her wedding which took place on 16 December 2023.  These commitments made it impossible for the practitioner to complete the work required for the upcoming seminar series.

14. In the latter part of 2023, the practitioner began to feel overwhelmed by the workload of her practice.  In the week commencing 20 November 2023, the practitioner appeared as counsel in ten matters before the FCFCOA; in the week commencing 27 November 2023, she appeared in 14 different matters, and in the week commencing 4 December 2023, she appeared as counsel in a three day trial and then seven different matters before the FCFCOA; and in the week commencing 11 December 2023, she was counsel at two mediations.  During this period, her email inbox began to build up with unread emails and she felt exhausted by the demands of practice.  She planned to catch up on the administrative side of her practice in January 2024, when she had holidays planned.

15. Ultimately, however, she spent two weeks of the planned break preparing the work for the seminar series and did not catch up on the administrative side of her practice, nor attend to cleaning up her email inbox. 

16. On 15 January 2024, she returned to Chambers and began accepting briefs.  Over the succeeding period of eight to ten weeks, the practitioner was instructed to appear as counsel in a significant number of defended interim hearings, mediations, miscellaneous hearings and trials.  There were only six working days before the end of March 2024 when she did not have a scheduled court or mediation commitment, and she was fully occupied on those days preparing for upcoming matters.

17. By April 2024, the practitioner decided that she would set aside Tuesday afternoons to the exclusion of court matters (apart from trials) to undertake administrative work and practice management.  She instructed the Chambers’ clerk not to accept any briefs on her behalf that required her to attend court or meetings with instructing solicitors on a Tuesday.

18. The practitioner did not strictly adhere to that practice and quickly found herself in court on most Tuesdays even when no trials were listed.  She did not request the clerk’s help in getting on top of her practice management responsibilities, as she did not consider that to be part of the clerk’s role. 

19. Between April 2024 and August 2024, the practitioner’s heavy workload continued.  It was during this period that she was required, but failed, to attend to the renewal of her practising certificate.

20. In August 2024, a chambers colleague with a very significant family law practice was appointed as a Justice of Division 1 of the FCFCOA. After her colleague’s appointment, the practitioner (with some assistance from other members of Chambers) found herself effectively absorbing that colleague’s practice. Her workload ‘exploded’ at this point.

21. Whilst the practitioner was able to manage her caseload, this came at the expense of keeping on top of her practice management, or otherwise taking time away from work.  It commenced to have an impact on her family life.

22. The practitioner’s evidence was that as her email inbox began to increase, particularly in the latter half of 2024, she became paralysed by the scale of the task of clearing it.  She engaged in avoidance because the task was too big to confront. 

23. In the course of preparing for court work, or undertaking chambers work, the practitioner did not adopt the practice of monitoring emails as they arrived.

24. She was able to keep up with matter-related correspondence because she typically received physical briefs (or, in the case of interstate briefs, electronic briefs using the ‘e-Brief Ready’ platform and not by email) and, when she needed access to emails relevant to a particular matter, she used a search function available within Outlook.  When instructing solicitors needed to contact her to prompt her to settle a document or respond to an email, she encouraged them to contact her by her mobile phone or via her clerk.  This approach was proved effective enough in relation to her substantive work inasmuch as neither her instructors nor opposing counsel nor court staff ever raised a concern with her about failing to answer correspondence.

25. The result, however, was that by 20 February 2025, when it became apparent that she had failed to renew her practising certificate, she had some 800 unopened and therefore unread emails in her chambers email inbox that related to legal practice in some way.  Of those, approximately 100 or so were from her clerk sending dictation or not specifically related to a matter, and about 20 emails were from instructing solicitors or support staff requesting her to send an invoice for completed work.  The unread emails included a small number of inquiries about new matters to which the practitioner had not responded.  Another category of unopened emails was emails her instructor had sent to an opposing party’s solicitor but copied to her and which she had settled at her instructor’s request.  The practitioner said she would recognise those emails and not open or read the email, because she had advance knowledge of its contents.  The vast majority of the unread emails were from external organisations of which the practitioner was a member or to which she had subscribed.

    Delay in renewing practising certificate in respect of 2023-2024 year

26. In respect of the period commencing 1 July 2023, the practitioner applied to renew her practising certificate on 22 June 2023. 

27. Upon making such an application, four invoices are automatically generated: a fee for the renewal of  practising certificate, a fee relating to participation in the professional standard scheme, Society membership and finally, a professional indemnity insurance (‘PII’) contribution.  The practitioner paid the first three, but overlooked the fourth, of these invoices. 

28. On 29 June 2023, the practitioner was sent an email from the Society reminding her that the PII contribution was outstanding.  She received further emails about that topic on 7 and 14 July 2023.  The practitioner’s evidence is that she did not open or read these emails.  On 9 August 2023, Mr Bartel of the Society contacted the practitioner by telephone.  Phone records show that the duration of the call was 356 seconds.  The practitioner paid the relevant fee by credit card during the telephone call.  As a result, on that day, she was issued a practising certificate with effect from 1 July 2023 to 30 June 2024. 

29. The practitioner’s evidence is that she was not expressly informed that the certificate would be or had been issued retrospectively and that she did not appreciate, when making payment of her PII contribution on 9 August 2023, that she had been without a practising certificate in the period between 1 July 2023 and 9 August 2023.  She only learnt that she had been treated as having sought and been granted a retrospective certificate when informed of that circumstance by reading an affidavit filed on behalf of the Society in these proceedings.

30. The practitioner’s evidence was that at times she struggled to keep up with the demands of practice at the family law bar, particularly with respect to practice management and professional administration.  She found that the demands for her work were high and she ascribed this to three main factors:

    ·the appointment of a number of senior members of the bar to judicial office;

    ·the merger of the Family Court of Australia and the Federal Circuit Court of Australia and the creation of a case management pathway by the FCFCOA that resulted in hearings being held in the Adelaide Registry and by Microsoft Teams in relation both to trials and interim defended hearings in which the judicial officer was located interstate;

    ·the nature of family law practice at the bar, which entails barristers being briefed relatively late and in the expectation that they will appear at short notice, often in circumstances where a number of other matters may be listed for hearing on the same day, and where matters may be stood over and recalled later in the day, creating difficulties in juggling competing commitments.

31. The practitioner’s evidence is that over the period relevant to this matter the volume of work for family law barristers increased whilst the number of counsel available to undertake that work did not.

    Failure to renew practising certificate in respect of 2024-2025 year 

32. In order to be granted a practising certificate for the period commencing 1 July 2024, the practitioner was required to satisfy the Society that she had completed the prescribed MCPD requirements for the CPD year that ended on 31 March 2024.[8]  By 14 April each year, practitioners are required to lodge a certificate recording compliance with the MCPD requirements for the preceding CPD year.[9]

    [8]     LPEAC Rules, r 13(3).

    [9]     LPEAC Rules, Appendix C, cl 6.1.

33. The Society sent automated emails to practitioners notifying and reminding them of these obligations on 1 April 2024, 10 April 2024, 15 April 2024 and 7 May 2024.  A personalised email was sent to the practitioner on 13 June 2024 alerting her to her non-compliance.  As well, the South Australian Bar Association had sent a reminder to the practitioner on 21 May 2024.  The practitioner’s evidence was that she did not open or read any of these emails.  As earlier noted, she had in fact completed the MCPD requirements for the previous CPD year.  Her failure was in not certifying that fact.

34. The Society also sent automated reminders to practitioners in relation to the renewal of their practising certificates on 31 May 2024, 17 June 2024 and 28 June 2024.  Those emails clearly advised that if a practitioner wished to continue to practise after 30 June they were required to submit their application and ensure all relevant fees were paid by no later than 30 June.  Again, the practitioner’s evidence is that she did not open or read those emails prior to 20 February 2025.

35. On 5 July 2024, the practitioner was sent an email by the Society noting that its records indicated that a practising certificate application remained outstanding.  The practitioner has not been able to locate this email but does not say that it was not delivered to her inbox.

36. What prompted the practitioner to apply to renew her certificate on 9 July 2024 was not the email correspondence just described but a requirement to provide prison authorities with a copy of a current practising certificate in order to participate in a telephone conference with a client who was on remand at Yatala prison.  The practitioner was notified of that requirement late on 8 July 2024 and logged on to the Society’s website the following day in an attempt to locate her certificate.  It was then that she realised she had not applied to renew her certificate.  She immediately submitted an online application that day.

37. However, because she did not go on to make on-line payment of the associated fees, her application was not processed.  As well, she had not submitted her MCPD certificate.  The practitioner was in fact sent an email on 9 July 2024 containing prompts about the payment of renewal fees but, again, she did not open or read the email.

38. The practitioner’s evidence is that she entirely accepts that she should have been alive to the requirement to pay the renewal fees before her certificate could be issued.  She had sufficient funds to do so.  Her evidence was as follows:

    At the time when I submitted the online application on 9 July 2024, I did not turn my mind to the fact that the renewal fees had to be paid before I could be issued with a renewal practising certificate.  I thought that if I submitted the application, the practising certificate would be renewed, and to the extent that any fees were due, that could be one at a later date.  I accept that was an error of understanding.

    After submitting the online application on 9 July 2024, the thought of paying renewal fees lingered in my mind possibly for a day or two.  I recall thinking about it during the week that I submitted the application.  I cannot now recall precisely when it slipped my mind, but once the thought of paying renewal fees passed, I did not think about it again until 20 February 2025.  I acknowledge that this is unacceptable and that I should have sought out the invoices and ensured that the renewal fees were paid immediately.

    I further accept that had I read the automated response from the LSSA dated 9 July 2024, I would have realised that a practising certificate and certificate of insurance would not be issued until payment had been made.

39. The practitioner was sent a further email from the Society’s Regulation Support Coordinator, Ms Curtis, on 23 July 2024.  The email stated that the Society had been unable to issue her with a certificate because of a failure to pay the renewal fee or lodge an MCPD compliance certificate.  The practitioner has located this email and her evidence is that it appears to have been opened but that she has not recollection of ever having read it.

40. A further email was sent to the practitioner by Mr Bartel of the Society on 26 November 2024, referring to the fact that she had not renewed her practising certificate.  This email was not opened or read by the practitioner before 20 February 2025.

41. The evidence on this application suggests that telephone calls were made from the Society to the practitioner or her Chambers during the relevant period.  However, the Society staff and officers do not depose to a recollection of having spoken with the practitioner on the topic of her practising certificate during the relevant period. 

42. Most relevantly, there is a record of a telephone call to the practitioner’s mobile number on 11 July 2024.  The duration was 23 seconds.  The practitioner’s evidence was that she never had a phone conversation with an officer or staff member of the Society on that date.  The inference to be drawn in all the circumstances is that a voicemail message was left for the practitioner.  Her evidence is that she did not receive or listen to the message and she has no current record of any message.

    Complaint to the Commissioner and events of February 2025

43. On 19 February 2025, the Chief Executive of the Society was informed by the Commissioner that a complaint had been made about the cross-examination of a party to proceedings in the FCFCOA and that, in connection with that complaint, he had become aware that the practitioner had been practising without a certificate since 1 July 2024.  The Commissioner informed the Chief Executive that he had left a call with the practitioner’s Chambers’ clerk that day requesting that she return his call. 

1. The practitioner’s evidence was that at about 4.30 pm she saw a message via WhatsApp from her clerk advising that Mr Keane, who she knew to be the Commissioner, had called and requested that she call back.  She thought that the call might relate to a complaint about her.  She decided not to return the call that evening because at the time she saw the message she had consumed two glasses of wine.  She resolved to call him the following day.  In the meantime, she checked to see if he had sent an email to her, and noted that he had not.

2. On 20 February 2025, the Commissioner informed the Chief Executive that he left a further message for the practitioner that morning, had subsequently attended EEC and been informed the practitioner was appearing in the FCFCOA and then attended the FCFCOA where he met and spoke with the practitioner.  The practitioner’s evidence was that she had matters in Court in the morning and was planning to return the Commissioner’s call in the afternoon.  She had not been aware of a further message from the Commissioner sent that morning. 

3. When the practitioner spoke with the Commissioner, he informed her that she did not have a practising certificate.  The Commissioner suggested that he and the practitioner ought to speak with the Society and that they could ‘quickly issue [her] with a practising certificate’.  A telephone call was made by them both to the Chief Executive.  That is the conversation the Chief Executive recounts in her affidavit.  The Chief Executive explained that there was an issue with MCPD.  The practitioner conveyed that she had completed the practitioner’s MCPD requirements.  The Chief Executive said that the Board of Examiners would need to determine the application and that the Society would provide her instructions about what to do.

4. According to the practitioner’s recollection, the Commissioner said that the Society would deal with the practising certificate issue and that she would then receive correspondence from him to which she would need to respond.  She was told there was no need to panic and that she would need to pay a fine.  It was explained to her that this situation had happened before, including in the case of senior counsel.  The practitioner was encouraged to action things right away but told that she could not practice in any way in the meantime.  She complied with this instruction.

5. Late on 20 February 2025, the practitioner received an email from the Society’s Mr Bartel which stated that she would need to apply to the Ethics and Practice Committee for a retrospective practising certificate and that this would need to consist of a letter addressed to the Committee setting out the circumstances by which she came to practice without a certificate and an affidavit explaining what work she had carried out in the intervening period, together with a proforma email in the form attached to the email.  Later that day she received a further email from the Society on behalf of the Board of Examiners saying that she would need to address the fact of her MCPD non-compliance and submit an application to the Board in the form of a statutory declaration addressing her compliance with the CPD requirements and providing evidence.  The email explained that the Board of Examiners was to meet on 25 March 2025 and that she would need to submit the material by 7 March 2025. 

6. The practitioner arranged for her Chambers’ clerk to contact her instructing solicitors by telephone or email or both and to advise them she had ceased all work as a barrister immediately because of an issue with her practising certificate.  She offered to conduct a handover where appropriate and to provide an affidavit in support of any adjournment application that might be required.  The Acting Director of Ethics and Practice advised the practitioner that undertaking handover work was appropriate.

7. As was earlier recounted, the Board of Examiners ultimately decided that it could not deal with the application because the practitioner had in fact completed her MCPD requirements.  The Society then refrained from issuing a certificate itself, and instituted these proceedings in April 2025.  The proceedings have been case-managed towards a hearing before the Full Court on 18 June 2025.  

8. It is unnecessary to express a view on whether the position adopted by the Board of Examiners was correct, nor to address the question whether, the Society having formed the view that it was obliged to grant a certificate on a prospective basis, it could or should have done so, leaving only the question of conditions or whether to issue a certificate on a retrospective basis to this Court. 

9. In our view the only relevant circumstance in relation to events occurring after 20 February 2025 is that the practitioner has, in the period following 20 February 2025, not engaged in practice.  During the period in question the practitioner has ‘turned away’ or re-allocated a significant volume of work.  Her evidence is that she has forgone professional fees exceeding $170,000.  It is not necessary to make a finding about the extent of any financial loss, save that it is not insubstantial and that there has been a financial impact on the practitioner.  We return to the significance of that circumstance later.

   Steps taken by the practitioner to address practice management shortcomings

10. During the period the practitioner has not been practising, she has attended a CPD session on time management and billing.  She has indicated she has enrolled to attend a law practice management course which is scheduled to run from August to September 2025. 

11. The practitioner has given consideration to ways in which she would change her practice in the future to avoid becoming overwhelmed and overloaded by the demands of briefs she accepts.  In March 2025, the practitioner met with another member of EEC whom she regards as having excellent practice management skills and received advice about a practice management plan.

12. The practitioner has also had discussions with Ms Lewis SC, Head of Chambers at EEC, and the Chambers’ clerk, about the proposed introduction of practice management systems to monitor members’ practising certificates and MCPD compliance. 

13. The practitioner has proposed that if she is returned to practice she would attend monthly meetings with Ms Lewis SC to discuss practice management, administrative compliance and email correspondence, with a view to ensuring obligations are met well ahead of deadlines.  Ms Lewis SC has sworn an affidavit addressing these matters and she was present during the Full Court hearing on 18 June 2025.  She confirmed her preparedness to support and mentor the practitioner. 

14. In her affidavit, Ms Lewis SC also affirmed that:

    ·she was the practitioner’s secondary mentor during the practitioner’s period as a Bar Reader and was comfortably satisfied that the practitioner met the standards necessary to practice on her own account as a member of the independent bar;

    ·since becoming senior counsel, she specifically requested that the practitioner be retained as her junior in a number of significant trials.  This was on the basis that she had complete confidence in the practitioner’s forensic skills, technical abilities and professional judgment.

15. Ms Lewis SC’s high opinion of the practitioner’s competence as a family law barrister is also supported by a number of practitioners (including a former judge), each of whom have given supportive references despite being aware of the practitioner’s conduct in practising without having renewed her practicing certificate.

16. The practitioner has reviewed and read all of her previously unread emails.  She has taken steps to reduce the volume of unnecessary correspondence, and has established a system for categorising and dealing with email correspondence.  She has also discussed ways in which the Chambers’ clerk can assist by also monitoring her email correspondence.

    Findings with respect to the practitioner’s state of mind

17. We have summarised the effect of the practitioner’s evidence about her state of mind and belief during the relevant period.  In short, her evidence is that she wrongly believed that upon making an application to renew her practising certificate on 9 July 2024, she had been issued a certificate. 

18. She appreciated at that time that there were fees required to be paid, but did not understand that the issue of the certificate was contingent upon payment.  Nor did she turn her mind to the fact that she had not submitted a certificate of MCPD compliance, albeit that she had in fact met the relevant MCPD requirements.  She intended to make, but then overlooked making, the required payments. 

19. With the possible exception of the 23 July 2024 email, she did not open or receive the various email reminders that were sent to her.  She does not recall reading the 23 July 2024 email.  She did not receive any telephone call from the Society before she was confronted by the Commissioner.  She was not expecting and was shocked by the Commissioner’s communication to her that she had been practising without a certificate.

20. The Society confirmed that it did not wish to cross-examine the practitioner in relation to her evidence.[10]  Nor did the Attorney-General or the Commissioner.  If any of those parties was in possession of evidence that would have contradicted or undermined the practitioner’s evidence as to her state of mind and belief, undoubtedly, they would have brought that evidence to the Court’s attention.

    [10]   Prior to the hearing on 18 June 2023, the parties and interested parties were informed that the Court was inclined to refer to itself the question whether a certificate should be issued to the practitioner with retrospective effect.  At the outset of the hearing, no party opposed that course, and the Court directed accordingly.  A consequence of doing so was that it was no longer in prospect that the Society might itself be called upon to decide whether to exercise that discretion, thus removing a circumstance that might otherwise potentially have precluded the Society from cross-examining the practitioner if it had considered that there was a proper basis to challenge the veracity or reliability of her evidence.

21. Whilst M did seek to cross-examine the practitioner, that request was not made on the footing that M was possessed of knowledge or material beyond that available to the applicant and the other interested parties.  In those circumstances, and consistent with the views we expressed in our decision concerning joinder,[11] we were not persuaded that it was appropriate to enlarge M’s participation so as to permit her counsel to cross-examine the practitioner. 

    [11]   Law Society of South Australia v Betro [2025] SASCFC 2 at [57]-[62].

22. In circumstances where the other parties and interested parties evidently considered that they lacked a basis to challenge the truthfulness of the practitioner’s evidence, we considered that M’s interest in the matter was insufficient to justify her doing so.  Had we considered that, in light of the other evidence relevant to the matter, the practitioner’s account was such as to call for further elaboration or challenge before it could be accepted, we might have requested that one of the parties or interested parties act as contradictor so as to ask further questions of the practitioner, or we might have chosen to ask questions of the practitioner ourselves.  However, having independently reviewed the relevant evidence, we did not form that view.

23. The practitioner had completed her MCPD requirements and was in a financial position to pay the relevant renewal fees.  There was no rational reason for her to deliberately refrain from doing so.  Had she been aware that she would be practising without a certificate and potentially exposed to disciplinary and criminal sanction by failing to attend to the relevant requirements for renewal, there would be no reason for her to refrain from taking those steps.  Her evidence about the nature of her practice is detailed and there is no sufficient reason to doubt it.  It may be that, having regard to the seriousness of a finding that the practitioner knew or was wilfully blind to the fact that she was practising without a certificate, a finding to that effect should only be made based on clear or cogent evidence.[12]  At all events, we consider that the practitioner’s evidence should be accepted. 

    [12]   Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J), Kerin v Legal Practitioners Complaints Committee (1996) 67 SASR 149 at 153 (Millhouse J).

24. That is not to say that the practitioner’s failure to comply with the LPEAC Rules requirements, her failure to attend to the renewal or her certificate, and her significant period of practice without a certificate did not involve a serious failing on her part.  More will be said about that later in these reasons.  Rather, it is to indicate that we accept as honest the practitioner’s evidence about her state of mind and belief at relevant times.

    The Society’s approach in other cases

25. The evidence discloses that over the past decade there have been at least 30 instances of applications to the Society for the issue of a practising certificate with retrospective effect.  Of those, 26 have been granted.  The period of retrospectivity has ranged from between five days to 16 months and 11 days.  Two recent grants involved barristers.

26. No party submitted that the Society’s approach in other instances in which practitioners have failed to renew their certificates and have sought that a certificate issue to them with retrospective effect is determinative.  We agree that it is not.  Plainly, this Court is not bound by anything akin to a parity principle arising from decisions previously made by the Society.  At its highest, the significance of the evidence is to illustrate that the practitioner’s failing could not be characterised as unique.  It perhaps serves as a reminder, albeit not one with any determinative significance, that practitioners can become overwhelmed by their work and distracted from their practice management responsibilities. 

    The issues

27. The first issue for resolution, which concerns the declaration sought by paragraph 1 of the Society’s originating application, is whether, subject to the payment of the required fees, proof that the requisite insurance is obtained, and the payment of any fine imposed, the practitioner is entitled to have a practising certificate issued to her, at least on a prospective basis.  No party or interested person submitted that, those conditions apart, the issue of a certificate involves a matter of discretion.   For reasons that will be elaborated upon, we agree.

28. The second issue for resolution is whether a fine should be imposed upon the practitioner and whether any further conditions should be imposed upon the issue to the practitioner of a practising certificate.  As will be explained, we consider that a fine should be imposed as a condition of the issue of a practising certificate to the practitioner.  We also consider that a number of conditions should be imposed upon the practitioner’s practice until 30 June 2026.

29. The third issue for resolution is whether the power to issue a certificate so that it takes effect from a date earlier than its issue should be exercised, pursuant to s 17(3) of the Act. The practitioner submitted that a certificate should be issued to her with effect from 1 July 2024. M opposed that. The Society, together with the Attorney-General and the Commissioner, advanced submissions in relation to the considerations relevant to the power, but did not make a positive submission as to whether the power should be exercised in this case.

30. Pursuant to the reservation in r 257.1(1) of the Uniform Civil Rules 2020 (SA) (‘UCRs’), we resumed or reserved to ourselves the function of considering whether a practising certificate should be issued to the practitioner with effect from the date requested by her, in exercise of the power in s 17(3) of the Act.

31. The parties and interested parties all submitted that the effect of exercising that power would be that the practitioner’s practice of the profession of the law during the relevant period, would be taken, for the purposes of the Act at least, to have been authorised by the holding of a practising certificate. The practitioner would therefore not be exposed to any further disciplinary or punitive sanction in relation to having practised without a practising certificate beyond whatever powers we might exercise in connection with the application before us. M’s primary contention was that because it would have that effect, the power was not properly exercisable in circumstances where the practitioner would otherwise be potentially exposed to a punitive sanction. Alternatively, M submitted that, as a matter of discretion, it should not be exercised where it would have that effect, nor where it would prejudice arguments that are otherwise available to her in connection with the FCFCOA proceedings.

32. At issue therefore is the effect of an exercise of the power in s 17(3) and the scope of the considerations that bear on the exercise of the discretion. Resolving that question and the other issues requires a consideration of the construction of a number of provisions contained within Part 3 of the Act (‘The practice of the law’) and their application to the circumstances of the practitioner. Those provisions should be understood in the broader scheme of the Act and its operation in augmenting the Court’s inherent jurisdiction to control and discipline legal practitioners.

    The regulation, control and discipline of practitioners under the Act

33. The Act regulates the practice of the law in South Australia.  Amongst other things, it continues in existence the Society,[13] establishes the Legal Practitioners Education and Admission Council (‘LPEAC’)[14] and the Board of Examiners,[15] and provides for the appointment of a Legal Profession Conduct Commissioner.[16]  The Act also establishes the Legal Practitioners Disciplinary Tribunal (the ‘Tribunal’).[17]  Each of the Supreme Court, LPEAC, the Society, the Commissioner and the Tribunal is a ‘regulatory authority’ within the meaning of that defined term.[18]

    [13] Act, s 7. Section 13(1) confers upon the Society a right to appear before courts and tribunals in any matter affecting its interests or members, or in which it is directly or indirectly concerned or interested.

    [14] Act, s 14B. Section 14C confers various functions upon LPEAC.

    [15] Act, s 14I. The Board has the functions and powers conferred on it under the Act or by SPEAC: s 14J of the Act.

    [16] Act, s 71. The functions of the Commissioner are set out in s 72(1) of the Act.

    [17] Act, s 78.

    [18] Act, s 5(1).

34. Division 1 of Part 3 of the Act concerns the admission and enrolment of legal practitioners and comprises s 15. Pursuant to that section, a person is entitled to be admitted and enrolled as a barrister and solicitor of the Supreme Court if they satisfy the Supreme Court that they are a fit and proper person to practise the profession of the law and that they have complied with (or alternatively been exempted from compliance with) the rules of the Court relating to admission and the rules made by LPEAC prescribing the qualifications for admission.[19] 

    [19] Act, s 15(1).

35. The Court must refer each application for admission to the Board of Examiners for its report and recommendation.[20]  The Board may refer matters raised by an application to LPEAC for its advice or determination.[21]  Where the applicant has previously had their name removed from the roll, the application is referred to the Attorney-General, the Society and the Commissioner, each of whom is entitled to be heard by the Court on the application in accordance with the rules of the Court.[22]

    [20] Act, s 15(2).

    [21] Act, s 15(3).

    [22] Act, s 15(1a).

36. Division 2 concerns the issue of practising certificates and conditions that may be imposed upon them. Relevantly, it provides as follows.

    16—Issue of practising certificate

    (1)Where a legal practitioner who has been admitted and enrolled as a barrister and solicitor of the Supreme Court (not being a legal practitioner who has been suspended from practice) applies to the Supreme Court for a practising certificate, the Court will, subject to this Act, issue a practising certificate in the practitioner's name.

    (2)If LPEAC has made rules prescribing different categories of practising certificate and a legal practitioner has applied for a particular category of certificate under subsection (1), the practising certificate issued by the Supreme Court in the practitioner's name may be of that category.

    (5)An application for a practising certificate must be accompanied by the prescribed fee and levy.

    (6)If LPEAC has made rules prescribing different categories of practising certificate, the regulations may prescribe different fees and levies for different categories of certificate.

    17—Restriction on issue of practising certificates in certain cases

    (1)If, for a period exceeding one month, a legal practitioner has not held a practising certificate, the Supreme Court may, on application for a practising certificate, require the practitioner to furnish evidence satisfying it that the practitioner—

    (a)     has not practised the profession of the law without holding a practising certificate; or

    (b)     has not committed any other act that might constitute a proper ground for disciplinary action.

    (2)Where an applicant for a practising certificate has, without lawful excuse, practised the profession of the law while not holding a practising certificate, the Supreme Court may require the applicant to pay a prescribed fine before it issues a practising certificate to the applicant.

    (3)The Supreme Court may, in any case that it considers appropriate, issue a practising certificate that has effect from a date prior to the date of issue of the certificate.

    17A—Conditions as to training etc

    (1)A practising certificate will, if the rules made by LPEAC under this Act so require, be issued or renewed subject to conditions determined by LPEAC—

    (a)     requiring the holder of the certificate to undertake or obtain further education, training and experience required or determined under the rules; and

    (b)     limiting the rights of practice of the holder of the certificate until that further education, training and experience is completed or obtained.

    (2)LPEAC may, on such terms as it thinks fit, determine that such conditions will not apply, either wholly or in part, in relation to any practitioner or practitioners of a particular class.

    (3)If the holder of a practising certificate issued or renewed subject to conditions under subsection (1) fails to satisfy LPEAC, in accordance with the rules, of compliance with the conditions, LPEAC may determine—

    (a)     that further conditions (determined by LPEAC) are to be imposed; or

    (b)     that the practising certificate is to be cancelled, or is not to be renewed, and no new practising certificate is to be issued to the person until stipulated conditions have been complied with,

    (and a determination under this subsection takes effect on a date fixed by LPEAC).

    (4)LPEAC may delegate any of its functions or powers under this section to the Board of Examiners.

    (5)A delegation under this section—

    (a)     must be in writing; and

    (b)     may be conditional or unconditional; and

    (c)     is revocable at will; and

    (d)     does not prevent LPEAC from acting in any matter.

    (6)A decision of LPEAC or the Board of Examiners under this section may be appealed against to the Supreme Court by the person in relation to whom the decision was made or the Attorney-General or the Society.

    (7)On such an appeal, the Supreme Court—

    (a)     may confirm, vary or reverse the decision of LPEAC or the Board of Examiners; and

    (b)     may make any consequential or ancillary order.

    (8)For the purposes of this section insofar as it relates to a legal practitioner who is admitted and enrolled as a notary public under the Notaries Public Act 2016, a reference to rules made by LPEAC includes rules made by LPEAC under that Act.

    18—Term and renewal of practising certificates

    (1)Subject to this Act, the Supreme Court may issue a practising certificate for such period (not exceeding 12 months) as the Court thinks fit.

    (2)Subject to this Act, the Supreme Court will, on receipt of due application for the renewal of a practising certificate made before the date of expiration of the practising certificate, renew the practising certificate and the practising certificate then, subject to this Act, remains in force for the period stated in the practising certificate as renewed (which must not exceed 12 months).

    (2a)If the Supreme Court is satisfied that any particulars appearing on a practising certificate are incorrect, the Court may cancel the practising certificate and issue a replacement practising certificate.

    (3)Where a practising certificate that has been suspended under this Act for a period or until the happening of some event expires before the end of that period or before the happening of that event, the practising certificate may not be renewed until the expiration of that period or the happening of that event (as the case may be).

    19—Insurance requirements

    (1)Where a scheme under section 52 is in force requiring legal practitioners to be insured against liabilities that may arise in the course of, or in relation to, legal practice—

    (a)     the Supreme Court cannot issue or renew a practising certificate unless the applicant produces evidence to the satisfaction of the Court that the applicant has obtained the insurance against such liabilities required by the scheme for the term for which the certificate is to be issued or renewed; and

    (b)     if, at any time during the term of a practising certificate so issued or renewed, the holder of the certificate ceases to be insured against such liabilities as required by the scheme, the practising certificate will be taken to be suspended until the holder of the certificate obtains such insurance.

    (2)This section does not apply in relation to a legal practitioner of a class excluded by regulation from the provisions of this section.

1. The Act requires that there be a register of current practising certificates that may be inspected by a member of the public.[23]

   [23] Act, s 20.

2. Division 2A contains provisions concerning the amendment, suspension or cancellation of practising certificates. If it considers that a ground for doing so exists, the Court may, on the application of the Attorney-General, the Society or the Commissioner, make an order amending, suspending or cancelling a practising certificate.[24]  The fact that a holder of the certificate is not a fit and proper person to hold the certificate is a ground for amending, suspending or cancelling the certificate.[25]  In response to a representation made to the Registrar by the practitioner, or of its own motion, the Court may revoke the amendment, suspension or cancellation.[26]

   [24] Act, s 20AD(1).

   [25] Act, s 20AC(a).

   [26] Act, s 20AF.

3. Division 2B establishes a ‘show cause’ regime in respect of practising certificates.  A ‘show cause event’ in relation to a person occurs if, amongst other things, the person becomes bankrupt or is convicted of a ‘serious offence’ or a ‘tax offence’.[27]  Where such an event has occurred in relation to a person after their admission, they must, when first applying for a practising certificate, set out particulars of the event and explain why they consider themselves to be a fit and proper person to hold a certificate.[28]  If such an event happens in relation to a person who already holds a certificate, they must provide notice to the Court and a statement explaining why, despite the event, they consider themselves to be a fit and proper person to hold a certificate.[29]  

   [27] Act, s 5(1).

   [28] Act, s 20AG.

   [29] Act, s 20AH.

4. In either case, the Commissioner and the Society must be given notice and may make a written representation.  The Court may then refuse to issue, or may amend, suspend or cancel the person’s certificate if not persuaded that the person is a fit and proper person to hold a certificate.  Alternatively, the Court may require the applicant or holder to complete further education or training, or receive counselling, of a specified type.[30]

   [30] Act, s 20AI.

5. Division 2C empowers the Court immediately to suspend a practising certificate where it considers that is necessary in the public interest.[31]

   [31] Act, s 20AJ.

6. Division 3 is titled ‘Entitlement to practise etc.’.  It reinforces Divisions 1, 2, 2A, 2B and 2C by the creation of a series of criminal offences.[32] Section 21 provides in part as follows.

   [32]   Jordan v Persse [2017] SASC 133 at [33] (Hinton J).

   21—Entitlement to practise

   (1)A natural person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless the person—

   (a)     is a local legal practitioner; or

   (b)     is an interstate legal practitioner.

   Maximum penalty: $50 000.

7. Section 22 makes it an offence to practise or hold oneself out as being entitled to practise the profession of the law whilst their right to do so is under suspension. These offences are not ‘serious offences’ within the meaning of the Act, because they are not ‘indictable offences’. A prosecution in respect of these offences must not be brought unless the Attorney-General has, by instrument in writing, authorised the institution of the proceedings.[33]

   [33] Act, s 96(2).

8. Division 13 provides for the establishment by the Society of a professional indemnity insurance scheme. Section 52 provides as follows.

   52—Professional indemnity insurance scheme

   (1)The Society may, with the approval of the Attorney-General, establish a scheme providing professional indemnity insurance, to an extent provided by the scheme, for the benefit of legal practitioners and law practices.

   (2)The scheme—

   (a)     will operate for the benefit of a class, or classes, of legal practitioners or law practices defined in the scheme;

   (b)     will provide for insurance indemnity partially under a master policy negotiated between the Society and insurers participating in the scheme and partially from a professional indemnity fund to be established, administered and applied in accordance with the scheme;

   (c)     may provide for the determination and settlement of claims against legal practitioners or law practices covered by the scheme;

   (d)     may impose on legal practitioners or law practices obligations to pay premiums, levies, fees or other charges (which may vary according to factors stipulated in the scheme);

   (e)     may impose, or provide for the imposition of, civil or criminal sanctions or penalties against legal practitioners or law practices who fail to comply with their obligations under the scheme;

   (f)     may confer discretionary powers on the Society in relation to the administration or enforcement of the scheme;

   (g)     may make any other provision reasonably necessary for, or incidental to, the administration or enforcement of the scheme.

   (3)The scheme, and any amendment to the scheme made by the Society with the approval of the Attorney-General, have the force of law and are binding on—

   (a)     the Society;

   (b)     the legal practitioners and law practices covered by the scheme;

   (c)     the insurers and other persons to whom the scheme applies.

   (4)The Society must keep a copy of the scheme and of any amendment to the scheme available for inspection at its public office and must, on request for a copy of the scheme or amendment and payment of a reasonable fee fixed by the Society, provide such a copy.

   (5)In this section—

   legal practitioner includes—

   (a)     a member of a faculty of law in a university; and

   (b)     a person who has ceased to be a legal practitioner but who was a legal practitioner when a liability covered by the scheme arose; and

   (c)     an interstate legal practitioner;

   professional indemnity insurance means insurance against—

   (a)     civil liability arising in connection with legal practice (whether the liability arises from an act or omission on the part of the insured legal practitioner or some other person);

   (b)     civil liability incurred by a legal practitioner or law practice in connection with the administration of a trust of which the practitioner is a trustee.

9. Division 14 contains s 52A, which authorises the Supreme Court to assign functions or powers conferred or vested in it under the Part to specified persons or bodies or office holders, subject to any conditions or limitations imposed. A decision made by an assignee may, subject to the rules of the Supreme Court, be appealed against to the Supreme Court by the person in relation to whom the decision was made.

10. Part 6 of the Act concerns investigations, inquiries and disciplinary proceedings. It contains provisions that govern the making of complaints about, and investigations into, allegations that practitioners have engaged in ‘unsatisfactory professional conduct’ or ‘professional misconduct’.

11. ‘Unsatisfactory professional conduct’ includes conduct of a legal practitioner occurring in connection with the practice of the law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.[34] 

    [34] Act, s 68.

12. ‘Professional misconduct’ includes unsatisfactory professional conduct where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.  It also includes conduct that would, if established, justify a finding that the practitioner is not a fit and proper person to practise the profession of the law.[35]

    [35] Act, s 69.

13. Section 70(a) of the Act provides that conduct which consists of a contravention of the Act is capable of amounting to unsatisfactory professional conduct or professional misconduct.

14. In addition to providing for the appointment of the Commissioner and conferring powers upon them, Part 6 of the Act contains provisions relating to the Legal Practitioners Disciplinary Tribunal (‘the Tribunal’) and disciplinary proceedings before the Supreme Court.

15. The Commissioner’s functions include to investigate suspected unsatisfactory professional misconduct and professional misconduct, to lay charges before the Tribunal and in some cases to commence disciplinary proceedings against legal practitioners or former legal practitioners in the Supreme Court on the recommendation of the Tribunal.[36]  The Commissioner may commence an investigation on his or her own initiative, in response to a direction by the Attorney-General or the Society, or in response to a complying written complaint.[37]

    [36] Act, s 72(1).

    [37] Act, s 77B. Where a matter comes to the attention of the Society such that it decides there are reasonable grounds to suspect that a legal practitioner or former legal practitioner has committed an act or omission that would constitute unsatisfactory professional conduct or professional misconduct, the Society must, as soon as practicable, provide a report to the Commissioner in relation to the matter: s 14AB(1c).

16. The Commissioner is conferred a number of compulsive powers when carrying out an investigation.[38] 

    [38] Act, s 77B(4), Schedule 4.

17. Where, following an investigation, the Commissioner is satisfied that there is ‘evidence’ of unsatisfactory professional conduct or professional misconduct, s 77J describes the powers that may be exercised.[39]  They include reprimanding the practitioner, ordering the payment of a relatively modest fine, ordering the practitioner to undertake training, education or counselling or be supervised, and imposing specified conditions on the practitioner’s certificate.  Some more expansive powers are only available where the practitioner consents.  Certain of the powers exercisable by the Commissioner in this context may be the subject of an appeal to the Tribunal.[40] 

    [39]   The meaning of ‘evidence’ in this context was considered in Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 at [8]-[9], [162]-[180] (Stein AJA, Kourakis CJ and Bleby JA agreeing).

    [40]   Act, s 77K.

18. Where the Commissioner is satisfied that the conduct in question cannot be adequately dealt with under s 77J, the Commissioner must, subject to a relevant time limit,[41] lay a charge before the Tribunal in relation to the conduct unless he or she considers that it would not be in the public interest to do so.[42]  

    [41] Section 82(2a) of the Act precludes the laying of a charge more than five years after the person laying the charge became aware of the conduct unless the charge is laid by the Attorney-General or the Tribunal allows an extension of time.

    [42] Act, s 77L. The mandatory obligation to lay charges in that section is neither the source of, nor a pre-condition to, the Commissioner’s power to lay charges which is contained in s 82 of the Act: Legal Profession Conduct Commissioner v Belperio [2024] SASCA 102 [6], [133]-[134] (Stein AJA, Kourakis CJ and Bleby JA agreeing).

19. A charge may also be laid in the Tribunal alleging unsatisfactory professional conduct or professional misconduct by the Attorney-General, the Society or a person claiming to be aggrieved by reason of the conduct.[43]  

    [43] Act, s 82(2).

20. Where the Tribunal finds a practitioner guilty of unsatisfactory professional conduct or professional misconduct it may reprimand the practitioner, order the payment of a fine, impose conditions on the practitioner’s certificate, or suspend the practitioner for a period of time.[44]  The Tribunal’s proceedings are generally held in public.[45]  There is a right of appeal to this Court.[46]

    [44] Act, s 82(6).

    [45] Act, s 84A.

    [46] Act, s 86.

21. Where the Tribunal, after conducting an inquiry, recommends that disciplinary proceedings be commenced against the legal practitioner in the Supreme Court, the Commissioner, the Attorney-General or the Society may institute those proceedings in the Supreme Court against a practitioner.[47]

    [47] Act, s 89(1).

22. Alternatively, if the Commissioner is of the opinion that the name of a legal practitioner should be struck off the roll of legal practitioners maintained under the Act because the practitioner has been found guilty of a serious offence, or for any other reason, the Commissioner may, without laying a charge before the Tribunal, institute disciplinary proceedings in the Supreme Court against the practitioner.[48]

    [48] Act, s 89(1a).

23. In disciplinary proceedings, the Supreme Court may reprimand the practitioner, impose conditions on a certificate, suspend the practitioner’s practising certificate, order that a legal practitioner’s name be struck off the roll of legal practitioners or make any other order (including as to costs) that it considers just.[49]

    [49] Act, s 89(2).

24. These functions and powers conferred pursuant to the Act upon the Society, the Commissioner, the Tribunal and the Court do not derogate from the inherent jurisdiction of the Supreme Court to control and discipline legal practitioners.[50] Without limiting that jurisdiction, the Act provides that the Court may act under its inherent jurisdiction to control and discipline legal practitioners on the application of the Attorney-General, the Commissioner or the Society.[51]

    [50] Act, s 88A(1).

    [51] Act, s 88A(2).

25. The Court’s inherent jurisdiction with respect to the discipline of practitioners is a corollary of its authority to admit persons to practise as officers of the Court.[52] The exercise of that jurisdiction by the Court, and, where relevant, the exercise of powers conferred by the Act upon the Commissioner or the Tribunal, is for the protection of the public.[53]  Relatedly, the jurisdiction is exercised to safeguard the reputation of the profession and maintain proper standards in the profession.[54] 

    [52]   Re Davis (1947) 75 CLR 409 at 414 (Latham CJ), 419 (Starke J), 427 (McTiernan J).

    [53]   Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 251 (Deane, Dawson, Toohey and Gaudron JJ), Smith v New South Wales Bar Association (1992) 176 CLR 256 at 270 (Deane J).

    [54]   Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286 (Dixon CJ).

26. Whilst disciplinary sanctions or measures might have a punitive effect upon the practitioner, that is not their purpose.[55]  Protecting the public might require deterring the practitioner and other practitioners from similar conduct in the future.[56]  By deterring misconduct and upholding professional standards, the Court maintains public confidence in the legal profession.[57]

    [55]   The Law Society of South Australia v Murphy (1999) 201 LSJS 456; [1999] SASC 83 at [30] (Doyle CJ, Millhouse and Prior JJ agreeing).

    [56]   Legal Profession Conduct Commissioner v Mancini [2022] SASCFC 1 at [95] (Livesey P, Stanley and Doyle JJ).

    [57]   Legal Profession Conduct Commissioner v McCardle (No 2) [2024] SASCFC 4 at [116] (Livesey P, S Doyle and David JJ).

27. The appropriate sanction in a particular case will entail consideration of the extent and character of the conduct (including whether it involved dishonesty), the practitioner’s response to the wrongdoing and any other matters that bear on the practitioner’s character and fitness to practise.[58]  It may also involve having regard to the practitioner’s level of seniority and any external stressors that may give some context to the practitioner’s failings.  That said, relative inexperience and external stressors or pressure will have a limited capacity to mitigate the seriousness of a professional failing where dishonesty is involved.[59]  It may be relevant to consider whether the practitioner had taken any steps to attempt to address the external stressors.[60]  

    [58]   Legal Profession Conduct Commission v McCardle (No 2) [2024] SASCFC 4 at [117] (Livesey P, S Doyle and David JJ).

    [59]   Attorney-General v Bax [1999] 2 Qd R 9 at 13 (McPherson JA), Legal Practitioners Conduct Board v Hannaford (2002) 83 SASR 277 at [24] (Gray J), Legal Practitioners Conduct Board v Kerin (2006) 246 LSJS 371; [2006] SASC 393 at [19] (Gray J), at [44] (White J).

    [60]   cf. Legal Practitioners Conduct Board v Jones (2010) 272 LSJS 529; [2010] SASCFC 51.

28. The Act augments the Court’s inherent jurisdiction by conferring roles and functions upon the Society, the Attorney-General, the Commissioner and the Tribunal in connection with the control and discipline of legal practitioners. 

29. The provisions of the Act relating to the issue and renewal of practising certificates form a part of that regime. The basal requirement for the practice of the law is that the person is admitted and enrolled as a barrister and solicitor of the Supreme Court.[61] That is subject to both educational and character-based requirements. A person who has been admitted and enrolled is a ‘legal practitioner’ for the purposes of the Act.[62] 

    [61]   Admission in one State entitles a person to mutual recognition in another pursuant to the Mutual Recognition Act 1992 (Cth) and its State and Territory counterpart legislation.

    [62] Act, s 5(1).

30. However, as the framing of the prohibition in s 21(1) of the Act makes clear, a person may not practise the profession of the law, or hold themselves out as entitled to do so, unless they also hold a practising certificate. If they hold a practising certificate issued under the Act, they will be a ‘local legal practitioner’. If they hold a practising certificate issued by a regulatory authority of another participating State or Territory, they will be an ‘interstate legal practitioner’.[63] 

    [63] Act, s 5(1).

31. It has long been recognised that the issue of an annual practising certificate is not a mere formality, nor is it only a device for raising revenue to assist in the funding of professional bodies involved in the administration of the Act.[64] Requiring practitioners to apply for and renew their practising certificates advances the protection of the public in a number of ways. First, the Act caters for different categories of certificates to be issued, and this way a more tailored regulation of practitioners is achieved.[65]  Secondly, the pre-requisites to the grant or renewal of a certificate include the obtaining of insurance[66] and the undertaking of continuing educational and training requirements.[67]  Thirdly, the facility to amend, suspend, cancel or impose conditions upon practising certificates is a means by which legal practitioners may be regulated or disciplined short of the Court being satisfied that the practitioner’s name should be struck off the roll, in the exercise either of its statutory or inherent jurisdiction.[68]

    [64]   See, eg, Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490 at 497 (Reynolds JA, Moffitt P agreeing).

    [65]   Act, sub-ss 16(2), 16(6).  See also LPEAC Rules, r 10 and the South Australian Legal Practitioners Conduct Rules.

    [66] Act, s 19.

    [67] Act, ss 17A. See, eg, Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [36]-[38] (McColl JA, Sheller and Beazley JJA agreeing).

    [68] Act, s 88A and 89.

32. Quite apart from the combined effect of ss 21 and 70(a) of the Act, it is recognised that a practitioner who practises whilst not holding a practising certificate may be found to have engaged in unsatisfactory professional conduct or professional misconduct.[69] 

    [69]   See, eg, Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at [101] (Gleeson JA, Macfarlan JA and Sackville AJA agreeing).

33. However, in characterising the conduct, and deciding the disciplinary consequences that may be appropriate, the state of mind of the practitioner is likely to be influential.  In a number of instances, barristers who have engaged in legal practice knowing that they do not have a practising certificate have been struck off.[70]  A person who dishonestly represents their entitlement to provide legal services may, in the course of so doing, be exposing their putative client to a significant and uninsured risk of harm.[71]  The gravity of the conduct, and any disciplinary sanction that may be required in the protection of the public interest as a consequence, may also be affected by whether the reason the practitioner did not hold a certificate was that they had failed to attend to making payment of the relevant fees or insurance contribution, on the one hand, or whether they failed to meet substantive training and educational requirements, on the other.

    [70]   See, eg, Council of the New South Wales Bar Association v Perry [2007] NSWCA 111, Council of New South Wales Bar Association v Dwyer [2014] NSWCA 302.

    [71]   Legal Profession Conduct Commissioner v Alderman [2015] SASCFC 11 at [14] (Gray, Stanley and Parker JJ).

    The first issue: must a certificate issue?

1. The practitioner in this case did not make application for the renewal of her practising certificate before the date of expiration of her previous certificate. The consequence is that s 18(2) of the Act is not engaged in this case. The practitioner’s application for a practising certificate requires consideration to be given in the first instance to s 16(1) of the Act. We do not consider that s 16 is confined to the case of a practitioner’s first application for a certificate.

2. In our view, because the practitioner was an admitted and enrolled barrister and solicitor who was not suspended at the relevant time, and was not a person in respect of whom a ‘show cause event’ had occurred, she was, subject to any other requirements or preclusions contained in Division 2 of Part 3 of the Act, entitled to be issued a practising certificate.

3. That follows from the use of the word ‘will’ in s 16(1) which, when contrasted with the word ‘may’ in s 17, suggests an imperative use. The same is true of a renewal application governed by s 18(2). Of course, that is not to deny the Court’s power, pursuant to the other processes described in the Act and subject to affording procedural fairness, to suspend or cancel a certificate so issued. It is rather to conclude that the scheme of the Act is that, subject to the defined conditions and limitations in Division 2 of Part 3, an admitted and enrolled practitioner will be issued a certificate upon making due application. The Act does not contemplate the exercise of a discretion at that point in respect of a person who may have committed an offence that is not a ‘serious offence’.

4. However, by the time of her application first made in March 2025, the practitioner had not held a practising certificate for a period exceeding one month. It followed that under s 17(1) the Court, or its assignee the Society, was entitled to require her to furnish evidence satisfying it that she had not practised without holding a certificate or had not committed any other act that might constitute a proper ground for disciplinary action.[72]

   [72] On one view, the application made in March 2025 might be treated as a continuation of the application first made on 9 July 2024. That application did not attract the operation of s 17(1). Ultimately, it is unnecessary to resolve this question. The power in s 17(2) is not conditioned on the fact of an inquiry made under s 17(1).

5. The practitioner could not satisfy the Society or this Court of the first of those matters, because it is conceded that she has practised the profession of the law without holding a practising certificate. Further, she does not contend that she had any lawful excuse for practising without a certificate. Accordingly, by reason of s 17(2), the Supreme Court (or its assignee) ‘may require the applicant to pay a prescribed fine before it issues a practising certificate to the applicant’. In the case of a person who has practised without a certificate for a period exceeding three months, the prescribed fee is equal to the fee for the issue or a renewal of a practising certificate for at least six months.[73]

   [73]   Legal Practitioners Regulations 2014 (SA), reg 65(1)(b).

6. We agree with the submissions of the Society that in the case of a person who has practised the law without a practising certificate, whilst there is a discretion whether to impose a fine ‘before it issues a practising certificate’, the Court is not required separately to exercise a discretion whether to issue the certificate on a prospective basis.  Again, that is not to deny that the earlier conduct in practising without a certificate may not lead to disciplinary consequences that might, in an appropriate case, lead to a suspension, amendment or even cancellation of a practising certificate, or to some other disciplinary sanction.  It is simply to recognise that in the case of enrolled and admitted practitioners who have satisfied certain formal requirements, the issue to them of a practising certificate with prospective effect does not involve a discretion.

7. The circumstance which triggers the discretion to require a practitioner to furnish evidence of the matters in s 17(1) does not, in our view, carry any particular ongoing significance in understanding the consequences that might follow where a person has practised the profession of the law while not holding a certificate, whether pursuant to s 17(2) or otherwise. The discretion to impose the payment of a fine as a condition of the issue of a certificate arises where the applicant has, without lawful excuse, practised without a certificate. A fine may be considered appropriate where the period of practice is substantially less than the one month period that triggered a relevant inquiry. Conversely, the conditional obligation to issue a certificate, on a prospective basis, arises even where the period of practice without a licence may have exceeded one month.

8. It follows that the practitioner is entitled to have a certificate with prospective effect issue to her subject to:

   ·payment of the prescribed fee or levy;[74]

   ·proof that she has complied with the MCPD requirements for the previous CPD year;[75] and

   ·production of evidence that she has obtained insurance against such liabilities required by the PII scheme operating under s 52 of the Act for the term for which the certificate is to be issued.[76]

   [74] Act, s 16(5).

   [75] Act, s 17A(1), LPEAC Rules, r 13(3).

   [76] Act, s 19(1)(a).

9. The practitioner has since 20 February 2025 been ready, willing and able to pay the prescribed fee and the relevant PII contribution.  She has also demonstrated that she had in fact complied with the MCPD requirements for the previous CPD year.  If, however, the Court were to decide that the practitioner should be issued a certificate that takes effect from an earlier date, a question arises as to whether she will be in a position to demonstrate that she has obtained relevant insurance for the period between the date that the certificate would take effect and the date upon which the relevant PII contribution is paid or the certificate issues.

10. The terms of the Professional Indemnity Insurance Scheme 2024 were tendered in evidence. It is not necessary to describe its terms or operation in extensive detail. 

11. In general terms, and subject to ‘run off’ cover for ‘former practitioners’ (which may be put to one side), it operates on a ‘claims made’ basis.  Relevantly, the scheme applies to and for the benefit of ‘Practitioners’ in respect of ‘Claims’ arising in connection with the ‘Insured’s Legal Practice’ during the ‘Period of Insurance’. 

12. The scheme defines ‘Legal Practice’ to mean ‘the provision of such legal services as are usually provided by a legal practitioner in private practice in Australia, while holding a current practising certificate under the Act or a law of a State or Territory of the Commonwealth of Australia and entitled to practice thereunder’. It defines a ‘Practitioner’ to include ‘a person duly admitted and enrolled as a barrister and/or solicitor of the Supreme Court of the South Australia or the Supreme Court of any participating State’ and who either is ‘entitled to practice [sic] the profession of the law in South Australia …’ or ‘who requests indemnity under the Scheme, agrees to be bound by its terms, and to whom Insurers have agreed to issue and have issued a Certificate of Insurance’.

13. As the Society submitted, the scheme document should be construed in light of the regulatory context in which it is to operate.[77] That supports giving the expression ‘Practitioner’ a meaning which is broad enough to accommodate a practitioner who is issued a certificate on a basis that takes effect from an earlier time pursuant to s 17(3) of the Act.

    [77]   See, eg, Swashplate Pty Ltd v Liberty Mutual Insurance Company trading as Liberty International Underwriters (2020) 381 ALR 648 at [62] (Besanko, McKerracher and Colvin JJ).

14. Further, the Society accepted that, if the Court were to decide that it is otherwise appropriate to issue a certificate with retrospective effect, the practitioner would, subject to payment of the relevant contribution, qualify as a ‘Practitioner’ within the meaning of the scheme.  In view of the Society’s involvement in the administration of the scheme,[78] we are satisfied that the practitioner will therefore be in a position to satisfy the requirement in s 19(1), including if we decide that a certificate should issue with effect from a date earlier than its issue.

    [78]   The Society is the sole shareholder of Lawguard Management Pty Ltd, which manages the professional indemnity fund responsible for the first $600,000 of a claim in respect of the scheme.

15. It follows that the practitioner is entitled to be issued a practising certificate on satisfaction of the necessary pre-requisites discussed above.

    The second issue: imposition of a fine and conditions

16. The practitioner does not dispute that the power to impose a fine (the payment of which will be a condition of her being issued a practising certificate) is enlivened. That is to say, she practised the profession of the law without lawful excuse within the meaning of s 17(2) of the Act.

17. We are satisfied that this is an appropriate case in which to require that the practitioner pay the prescribed fine before she is issued with a practising certificate.  Even if the effect of the imposition of a fine over and above the financial consequences that the practitioner has suffered by reason of the period that she has not been practising since she appreciated her status is marginal, the imposition of the fine is a means of marking the Court’s disapproval and reminding the profession of the relevant obligations.

18. As has been seen, the imposition of conditions upon a practitioner by the Commissioner, the Tribunal, or in disciplinary proceedings brought in the Court, is a disciplinary measure contemplated by the Act. Subject to affording procedural fairness, the Court might also impose such conditions in the exercise of its inherent jurisdiction to control and discipline practitioners. In the present case, all parties with a relevant interest in the question are before the Court. In the practitioner’s oral submissions, the Court was informed that the practitioner consents to the imposition of the conditions in terms reflecting an undertaking she had previously proffered in the event of being issued a certificate.

19. Those undertakings entailed the practitioner being supervised by Ms Lewis SC in relation to her workload management, organisation and management of email and associated systems, and compliance with administrative and regulatory requirements.  The proposed supervision entails meeting at least monthly and that, subject to making arrangements for client confidentiality, Ms Lewis will have access to the practitioner’s email and calendar. Ms Lewis would then provide a written report every three months to the Society and the Commissioner, addressing the practitioner’s compliance with the relevant conditions, workload management and compliance with administrative and regulatory requirements. 

20. Under the proposed undertakings, the practitioner is also required to complete the Society’s Accredited Law Practice Management course by 30 June 2026, including assessments, and three hours of MCPD in the category of ‘Practice Management and Business Skills’, additional to that required by the ordinary MCPD requirements.  The practitioner is also to adhere to the practice management plan she prepared and which was tendered in evidence.

21. We consider that conditions reflecting these undertakings are appropriate and proportionate measures that will ensure the protection of the public, consistent with the protective purposes that inform the regulation, discipline and control of practitioners under the Act.

    The third issue: practising certificate with effect from date prior to issue

22. As has been noted, the power in s 17(3) of the Act is conferred upon the Court. Pursuant to s 52A and r 259.4(a) of the UCRs, the Supreme Court has assigned to the Society functions and powers relating to the issue of practising certificates.

23. The first question for consideration arising from the originating application was whether the Court should resume, or reserve to itself, the function of deciding whether the certificate to be issued to the practitioner should take effect from a prior date, pursuant to r 257.1.  If so, Court must then consider for itself whether this is an appropriate case for the exercise of that power.

24. The power to issue a practising certificate that has effect from a date prior to its issue is conferred upon the Court ‘in any case that it considers appropriate’. The section itself provides no more explicit guidance as to the circumstances in which it may be appropriate to exercise the power in question, but its exercise is informed and confined by the scope and purpose of the Act.[79]  Put another way, the power should not be exercised if it would undermine the protective and other public purposes that underlie the scheme of regulation we have described. 

    [79]   O’Sullivan v Farrer (1989) 168 CLR 210 at 216 (Mason CJ, Brennan, Dawson and Gaudron JJ).

25. In order to consider whether the exercise of power would be consistent with, and would not undermine, the objectives otherwise sought to be advanced by the Act, it is necessary to understand the legal consequence of the exercise of the power. The Attorney-General submits that whilst the words ‘has effect from’ are capable of bearing shades of meaning, it would be incongruous if an order made under s 17(3) were not taken retrospectively to authorise the practice of the law by the practitioner for the purposes of the Act itself. In other words, a harmonious construction of the Act requires that if a person has been issued a certificate with effect from a date prior to the date of issue, they will thereafter not be taken to have practised the profession of the law without a certificate for the purposes of the Act. The practitioner, the Society and the Commissioner support that submission.

26. M appears also to accept that, if exercised, the power under s 17(3) would preclude the person being prosecuted for an offence against s 21 of the Act. However, M’s submission is that, because that would be the consequence, the power is only available to be exercised in circumstances where the practitioner has not practised the profession of the law during the time after the cesser of the previous practising certificate, where the Attorney-General has refused to authorise a prosecution,[80] or where the practitioner has been acquitted of a charge of contravening s 21. M contends that this construction is the result of a process of adjustment of meaning between competing provisions, required by the plurality approach in Independent Commission against Corruption v Cunneen.[81]   In M’s submission, unless the power or discretion is read down in that way, it would operate as a ‘dispensing provision’ as well as risk interfering with a prosecutorial discretion, inconsistently with the idea that such discretions are generally immune from judicial review.[82]

    [80] Act, s 96(2).

    [81] (2015) 256 CLR 1.

    [82]   Maxwell v The Queen (1996) 184 CLR 501 at 534 (Gaudron and Gummow JJ).

27. In our view, the limitation for which M contends reads into the provision limitations not contained within it and would unduly circumscribe the power conferred by s 17(3). The power is conferred on the Court, not the executive branch.[83] As has been observed, the prohibitions in Division 3 of Part 3 serve to reinforce (and augment) the requirements imposed by other Divisions of that Part. The focus of those requirements is the protection of the public and the maintenance of appropriate professional standards. Consistently with this, the prosecutorial discretion is conferred directly upon the Attorney-General, who together with the Society and the Commissioner, has a statutory role in relation to disciplinary matters arising under the Act.[84] This Court has the ultimate responsibility for the control and discipline of practitioners with a view to furthering those objectives. In that context, there is no reason to doubt that the power conferred on the Court under s 17(3) is capable of being exercised where it would have the effect of foreclosing further disciplinary or other sanctions that might be pursued under the Act.

    [83]   cf. A v Hayden (No 2) (1984) 156 CLR 532 at 580 (Brennan J).

    [84]   cf. Director of Public Prosecutions Act 1991 (SA), s 7(1).

28. We would accept, however, that the power is to be exercised with an awareness of the immunising consequence that it will or may have for the practitioner.  That awareness is, in our view, important, both with respect to the decision whether to resume the relevant function, and if so whether to exercise the power. 

29. In deciding whether to exercise the power in s 17(3), the Court will consider whether the protective purposes of the Act and the importance attached by the Act to the maintenance of professional standards will be adequately served or protected, without the practitioner being exposed to subsequent disciplinary or criminal investigation, prosecution or sanction arising out of having practised without a practising certificate.

30. Necessarily, that invites attention to the nature and gravity of any failing by the practitioner, the practitioner’s state of mind, the practitioner’s response to the failing, the extent to which the practitioner has by reason of the events which have prompted the application been chastened for any such failing, and the extent to which any terms or conditions imposed upon the practitioner may advance and sufficiently serve the protective and public purposes that might be served by disciplinary or criminal proceedings.  To give an obvious example, if the Court’s assessment was that the practitioner had knowingly and dishonestly misrepresented their capacity to practise, there could be little justification for exercising the power in a way that would immunise the practitioner from further consequence.  The imposition of a fine and conditions in such a case would scarcely be sufficient to protect the public or to maintain appropriate standards.

31. Accordingly, the Court would not embark upon a decision whether to exercise the power in s 17(3) if it considers that insufficient is known of the relevant circumstances to permit the Court to make an assessment of the quality or gravity of the practitioner’s failure, any explanation or context proffered by the practitioner for it, and the likely efficacy of any steps taken by the practitioner, supported by any condition that may be imposed by the Court, in ensuring that there is no repetition of the relevant failing.

32. In the present case, the Society, supported by the Commissioner, invited the Court to reserve to itself the power to decide whether to issue a certificate with effect from an earlier date.  Implicit in that submission was that there was a sufficiently clear evidentiary basis upon which the Court might make the required assessment.  No party opposed the Court reserving to itself that question.  There is a substantial body of evidence before us which canvassed the relevant considerations.  No regulatory body submitted that it was desirable that the ordinary disciplinary processes be left to ‘play out’, on the footing that compulsive or other investigative techniques were likely to shed better light on the nature, gravity or extent of the practitioner’s failings.  In our view, there is a public interest in the matter being resolved without unnecessary delay. 

33. For those reasons, we reserved to ourselves the question whether to issue the practitioner a certificate with retrospective effect.  We turn to a consideration of whether it is appropriate to exercise the power in the practitioner’s favour.

34. The practitioner contended that the exercise of power might be guided by modifying the criteria applied to the grant of an extension of time for the institution of proceedings that are otherwise time-barred.[85] In our view, is not particularly profitable to reason by analogy with a discretion which is focused upon balancing the rights and expectations of two private parties. The primary focus must be upon whether, in all the circumstances, the power can appropriately be exercised without undermining the Act’s protective purposes, the public interest and the maintenance of appropriate standards in the profession.

    [85]   The practitioner referred to the criteria identified by Bray CJ in Ulowski v Miller [1968] SASR 277 at 281: the length of delay; the explanation for the delay; the hardship to the plaintiff if the extension is not allowed; the prejudice the defendant if the extension is allowed; and the conduct of the defendant in the litigation.

1. The Society’s written submissions identified, as a factor possibly militating against the exercise of the power, the possible impact upon the fund or the insurers or underwriters of the scheme. The Attorney-General, however, submits that because the Act not only contemplates but requires that the practitioner be insured against liabilities that may arise in the course of practice in accordance with any scheme in force under s 52 of the Act, the prospect that a claim might be made against the fund is not a factor that militates against the exercise of the power.

2. We agree with that submission. Further, it is important to appreciate that an obvious purpose of the Act’s provision for a scheme of insurance is to mitigate the risk that a client of a legal practitioner is unable to recover in the event that the practitioner’s breach of duty to the client causes them loss or damage. The scheme does not avail a practitioner in the event of a dispute about the client’s obligation to the practitioner by way of costs.

3. Accordingly, if it were relevant to consider the possible prejudice to the fund, insurers or underwriters, as a result of the grant of a practising certificate with retrospective effect, it might be said that there is a corresponding benefit to the public by ensuring that a client of a person who has suffered loss by the breach of duty of a person who held themselves out as a legal practitioner is not disadvantaged by the fact that the practitioner had not in fact renewed their practising certificate. Accordingly, we do not regard the risk of prejudice to the fund, insurers or underwriters as militating against the exercise of the power in s 17(3).

4. M's alternative to her primary submission about the scope of s 17(3) is that it should not be exercised so as to prejudice her position in the FCFCOA proceedings in which the practitioner appeared for the opposing party (the ‘father’). The circumstances of those proceedings are outlined in our earlier judgment.[86] 

   [86]   Law Society of South Australia v Betro [2025] SASCFC 2 at [13]-[20].

5. As explained in that judgment,[87] M contends that the following issues may ‘hinge on’ whether the power in s 17(3) is exercised:

   (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.

   [87]   Law Society of South Australia v Betro [2025] SASCFC 2 at [22].

6. The Attorney-General submits that M’s submission misconceives, or at least overstates, the operation of s 17(3). The Attorney-General contends that, consistent with the principle of legality, s 17(3) should not be construed as retrospectively affecting rights and liabilities to a greater extent than is necessary to meet the regulatory purposes of the Act itself.[88] That is to say, s 17(3) only has direct operation in respect of the rights and liabilities provided for by the Act itself.

   [88]   RS Howard & Sons Ltd v Brunton (1916) 21 CLR 366 at 371 (Griffith CJ), referred to with approval in Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at [31] (French CJ, Crennan and Kiefel JJ).

7. Additionally, the Attorney-General, supported to some extent by the practitioner, submits that, even absent the exercise of power pursuant to s 17(3), M’s contentions respecting the exclusion of evidence pursuant to s 138 of the Evidence Act 1995 (Cth), and in relation to the unavailability of legal professional privilege, are not likely to succeed. As to the former, referring to the decision in Saidov v Saidov (No 4),[89] it was submitted that exclusion is inherently unlikely in circumstances where it has not been shown why materially the same evidence would not have been likely to be received by other means in any event.  As to the latter, the Attorney-General points to authority to the effect that the failure of a legal practitioner to hold a practising certificate may be relevant to, but is not determinative of, a claim for legal professional privilege.[90]

   [89] [2025] FedCFamC2F 495 at [70] (Parker J).

   [90]   Commonwealth v Vance (2005) 224 FLR 243 at [31]-[35] (Gray, Connolly and Tamberlin JJ), Candacal Pty Ltd v Industry Research & Development Board [2005] FCA 649 at [99] (Lee J), Glengallan Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233.

8. In our view, there is force in the submission that the feared prejudice to M’s interests in the FCFCOA proceeding verges on the speculative. However, in any event, we would accept the Attorney-General’s further submission that in deciding whether to exercise the power in s 17(3) of the Act, the Court should be slow to attribute weight to what might be consequential matters turning on rights and liabilities derived from different sources.

9. In these circumstances we consider that the matters relied upon by M are at best peripheral to the exercise of the power in s 17(3).

10. We return to the matters that we earlier identified as important to a consideration of whether the exercise of power would be inconsistent with the protective and related purposes of the Act.

11. It is common ground that the practitioner failed to file a certificate of MCPD compliance in a timely way, and was at least nine days late in applying to renew her practising certificate.  She failed to do all that was necessary to achieve a renewal of her practising certificate.  By reason of a failure to keep abreast of her email correspondence and to be sufficiently astute to her practice management obligations, she then both overlooked the payment of the required fees and PII contribution and, more importantly, continued to practise without having regularised her status.  These are, as we have said, serious matters, particularly against the background of her delay in attending to payment of one relevant invoice in relation to the previous year’s renewal. The practitioner accepts that she alone is at fault in respect of them.

12. However, we have accepted that the practitioner was not in fact conscious that she was, in the period following 9 July 2024, practising without a certificate.  Further, there was no substantive obstacle to her having been issued a certificate.  She had completed in excess of the MCPD requirements.  She was in a position to pay the relevant fees and contribution. 

13. Further, the reasons for her failings are relevant.  Whilst they do not themselves justify the failings, they may be contrasted without other possible explanations that would cast the practitioner’s conduct in a more serious light.  Essentially, the practitioner allowed substantive legal work to overwhelm, and interfere with the proper performance of, her regulatory and practice management obligations.  It is not the case that the practitioner prioritised some extraneous personal interest.  We do not overlook that the performance of client work is for reward, but the evidence before us tends to demonstrate that the practitioner did not become overburdened because of her desire to increase her earnings.  Rather, in circumstances where there was high demand for the services of family law barristers generally (and upon her in particular, having taken over a substantial part of a departing colleague’s practice) and high demands upon them in the jurisdiction in which they practice, she allowed herself to become overwhelmed by those demands.  The demands included non-paying work, such as the significant time she devoted to preparing a major paper for a seminar series, which came at the cost of planned personal leave.

14. The evidence before us demonstrates that the practitioner has gained significant insight into the importance of managing her workload so that she properly discharges her regulatory and practice management obligations.  She has the support of chambers colleagues in that regard. 

15. Were separate disciplinary proceedings to be pursued in relation to the practitioner’s failings, a likely resolution of them would entail a reprimand, the imposition of conditions to ensure that she follows through on the planned reforms to her practice, and consideration might also be given to the imposition of a fine.  This is not a case in which we have come to doubt the practitioner’s fitness for practice.  Her failings, whilst serious, are the failings of a relatively junior, but evidently competent, hard-working and otherwise diligent barrister.  She is held in high regard by others practising in the family law jurisdiction. Even putting the apparent shortage of family law barristers to one side, it would not serve the public interest for the practitioner to be suspended or otherwise prohibited from practice on an ongoing basis.

16. As to the first matter, by these reasons, we have expressed our disapprobation of the practitioner’s conduct.  By these reasons, we also reinforce to the profession the importance of all practitioners diligently and promptly attending to the renewal of their practising certificates. As to the second, we have decided that conditions should be imposed upon her practice until 30 June 2026. 

17. As to the third, we have indicated that the practitioner will be required to pay the fine prescribed for the purposes of s 17(2). In the circumstances of this case, relevant to consideration of whether some greater impost is called for is the circumstance that the practitioner has, as a direct consequence of her failings, been unable to practice for a period of approximately four months. As well, the proceeding in this Court has attracted significant professional and public interest and scrutiny. There can be no doubting the chastening effect of those circumstances upon the practitioner.

18. In all the circumstances of this case, we consider it is appropriate that the practising certificate that, subject to the outstanding conditions, will issue to the practitioner, take effect from 1 July 2024.

    Disposition

19. The orders of the Court will be that:

    (1)It is declared that, pursuant to ss 16 and 17 of the Legal Practitioners Act 1981 (SA) (‘Act’), and on condition that the respondent:

    (a)pays the maximum fine prescribed by reg 65(1)(b) of the Legal Practitioners Regulations 2014 (SA);

    (b)obtains insurance against such liabilities required by the scheme approved under s 52 of the Act (‘Scheme’) for the term for which the practising certificate is to be issued; and

    (c)pays the prescribed fee and levy as required by s 16(5) of the Act and her contribution to the 2024 Scheme and the administration fee in respect of the Scheme;

    the respondent is entitled to be issued with a practising certificate with effect from 1 July 2024.

    (2)On satisfaction of the conditions set out in orders (1)(a)-(c), the applicant is directed to issue the respondent with a practising certificate with effect from 1 July 2024.

    (3)Any practising certificate issued to the respondent pursuant to order (2) or in respect of the period 1 July 2025 to 30 June 2026 is subject to the conditions attached to this order.

    (4)The applicant has liberty to apply to extend or vary the conditions if not satisfied that the respondent has complied with such conditions, such application to be made with fourteen (14) days prior written notice to the respondent and the second interested party.

20. The conditions that we would impose are as follows:

    (1)From the date of issue until 30 June 2026, the following conditions are imposed on any practising certificate that is issued to the practitioner:

    (a)the practitioner will be subject to supervision by Ms Taanya Lewis SC (‘Supervisor’) in relation to the following aspects of the practitioner’s legal practice:

    (i)     the management of the practitioner’s workload and the practices adopted by the practitioner to manage her workload;

    (ii)    the organisation and management of the practitioner’s email account, including inbox and associated systems; and

    (iii)   the practitioner’s compliance with administrative and regulatory requirements, including communications with the Law Society of South Australia.

    (b)For the purposes of supervision, the practitioner will meet with the Supervisor at intervals of not more than one (1) month and for that purpose will provide the Supervisor with access to the practitioner’s email account and diary/calendar ensuring that client confidentiality is maintained, conflicts of interest are avoided, and prior notice is provided to instructors.

    (c)The practitioner will procure a written report from the Supervisor every three (3) months, which must be provided to the Law Society of South Australia and to the Legal Profession Conduct Commissioner, addressing:

    (i)     the practitioner’s cooperation with supervision and her compliance with the conditions;

    (ii)    the practitioner’s management of her workload, including the organisation and monitoring of her email account; and

    (iii)   the practitioner’s compliance with administrative and regulatory requirements.

    (d)The practitioner will complete the Law Society of South Australia’s Accredited Law Practice Management course by 30 June 2026, including assessments.

    (e)The practitioner will complete three (3) hours of MCPD in the category of Practice Management and Business Skills, in addition to the ten (10) units of MCPD required for the period 1 April 2025 to 31 March 2026.

    (f)The practitioner will adhere to the practice management plan exhibited to the practitioner’s Affidavit dated 19 May 2025 (FDN 15) at tab 13, pages 78 – 81, filed in CIV-25-004462.

    (2)The Law Society of South Australia has liberty to apply to extend or vary the conditions if not satisfied that the practitioner has complied with the conditions, such application to be made with fourteen (14) days prior written notice to the practitioner and the Legal Profession Conduct Commissioner.

21. We will hear the parties as to the costs of the proceeding.