Le Poidevin v Law Society of South Australia - [2004] SADC 145

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
LE POIDEVIN v LAW SOCIETY OF SOUTH AUSTRALIA
Judgment of Her Honour Judge Kelly
20 October 2004
MAGISTRATES
Appeal from a decision of a Magistrate pursuant to Section 38(6) of the Magistrates Court Act and District Court Rule 95 - appeal dismissed.

LE POIDEVIN v LAW SOCIETY OF SOUTH AUSTRALIA
[2004] SADC 145

This is an application to review a minor civil decision of the Magistrates Court. The appeal is brought as of right pursuant to Section 38 (6) of the Magistrates Court Act and the District Court Rule 95
In this matter I had the benefit of the transcript of the hearing before the Magistrate, the reasons for the Magistrate’s decision and I heard oral submissions from both Mr Le Poidevin and Ms Watkins for the Law Society of South Australia.
I am mindful of the provisions of the Act which require the Court in hearing and determining this review to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
Mr Le Poidevin, a legal practitioner, was the plaintiff in Magistrate’s Court proceedings where he claimed three amounts from the “Law Society of South Australia Practising Certificates Fund” for refunds of moneys paid to the Law Society by him as follows:-
·On 13 July 1995 the sum of $490.00;
·On 8 January 1997 the sum of $709.00;
·On 5 January 1998 the sum of $734.00
Mr Le Poidevin who I will refer to as the appellant claimed these moneys were owing together with interest as a result of the fact that although he paid those amounts being the prescribed fees and levies at that time, he was never issued with a practising certificate and that therefore, there has been as he put it, “a total failure of consideration” and he is entitled to a refund. His claim was dismissed in the Magistrate’s Court and he has appealed against that decision.
In order to consider whether he has any basis at law to claim these amounts from the Law Society it is necessary to look at the history of the matter and the legislation which then applied.
The appellant was a legal practitioner who on 23 December 1998 was suspended from practice for a period of 2 years. On 5 July 2001 an order was made by the Full Court striking him off the roll of legal practitioners permanently.
Prior to those events the appellant had been involved in correspondence and disputation with the Law Society concerning his applications in the years 1995 through to 1998 inclusive for practising certificates. The history of the correspondence between the appellant and the Law Society relating to his applications for practising certificates in these years is set out in the folder of exhibits which was tendered before the Magistrate as exhibit D1.
After the Law Society received the fee of $490.00 the application was processed, a certificate of insurance covering the period 14 July 1995 to 31 December 1995 was issued recording the contribution and administration levy of $340.90 and the documentation together with a draft practising certificate forwarded to the Supreme Court which was then the issuing body.
The then Registrar wrote to the appellant on 7 September 1995 raising a number of queries including the activities of the appellant in the first half of the year of 1995, the audit report required to be forwarded in circumstances where there had been a cessation of practice and requesting information about the apparent non-disclosure in his application form of convictions recorded against the appellant.
The queries raised by the Registrar were not answered by the appellant, no practising certificate was issued for the relevant period and on 2 January 1996 the appellant wrote to the Registrar demanding a refund of the sum of $440.90. No refund was made.
Further applications and fees in the respective amounts prescribed by the rules were forwarded to the Law Society in 1997 and 1998. Once again the Law Society processed the applications, a certificate of insurance was prepared recording the respective contributions for the year 1997 $439.00 and for the year 1998 $439.00. The Registrar of the Supreme Court from time to time continued to query the appellant’s right to practice law without a current practising certificate and seeking clarification from the appellant as to the non disclosure of convictions for indictable offences. The appellant was told that his practising certificate would not be renewed until those issues were satisfactorily resolved.
Thereafter it would appear that this disputation between the Registrar and the appellant was overtaken by other events which resulted in the appellant’s right to practice being suspended for a period of 2 years from 23 December 1998. One of the matters in respect of which the Court found unprofessional conduct was the conviction of the appellant which had originally been the subject of the Registrar’s query in the initial correspondence with the appellant in 1995. There were other matters which had occurred since that date in respect of which there were findings of unprofessional conduct.
The appellant brought these proceedings in 2004 in the minor civil jurisdiction of the Magistrates Court claiming in effect on the basis of a contract between himself and the Law Society. He characterised the failure of the Law Society to refund the moneys paid by him for a practising certificate as a total failure of consideration as he put it.
It is necessary to consider the terms of the legislation under which Practising Certificates are issued.
The Legal Practitioner’s Act 1981 and the Regulations there under provide the legislative framework for the application for and issue of practising certificates to admitted legal practitioners in South Australia. Since the date of these applications it is notable that the legislation has been substantially amended, in particular in relation to the capacity of the Law Society to deal with moneys paid to it for the issue and renewal of practising certificates.
The legislation applicable to the appellant’s claim is as follows:-
Division 2 - Practising Certificates
16     (1)    Where a legal practitioner (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………….
(5)    An application for a practising certificate must be accompanied by the prescribed fee and levy………
Restrictions on issue of practising certificates in certain cases
17     (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 ………..
(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.
Term and renewal of practising certificates
18     (1)    Subject to this Act, a practising certificate remains in force until 1 January next ensuing after the day on which it was issued.
(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 a further period of 12 months.
(3)    The practising certificate of a legal practitioner who is required to submit a copy of an auditor’s report to the Supreme Court under Division 5 will not be renewed until the practitioner complies with that requirement.
Evidence of Insurance to be produced to Court.
19     (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, the Supreme Court cannot issue or renew a practising certificate unless the applicant produces evidence to the satisfaction of the Court that, throughout the term for which the certificate is to be issued or renewed, the applicant will be insured to the extent required by the scheme against such liabilities.
(2)    This section does not apply in relation to a legal practitioner of a class excluded by regulation from the provisions of this section.
Register of practising certificates
20     (1)    The Supreme Court must cause a register of practising certificates to be kept.
(2)    A member of the public may inspect the register of practising certificates kept under this section.
Registrar to exercise functions related to practising certificates
20A.          The powers, discretions, functions and duties of the Supreme Court under this Division will, subject to any rule, order or direction of the Court to the contrary, be exercised or discharged by the Registrar of the Supreme Court.
The Act then goes on to deal with the issue of conditional practising certificates and the circumstances in which they might be issued.
Pursuant to Section 52A (1) of the Act the Supreme Court may by rules of Court assign any functions or powers conferred on or vested in it pursuant to the Act to a specified person or body or to a person occupying a specified office or position. The regulations under the Legal Practitioners Act did assign those functions and powers to the Law Society (see regulations 4 & 5).
The Regulations deal with the prescribed fee for each relevant period. A practising certificate remains in force until the 1^st January next ensuing after the day on which it was issued.
The Legislation provided (by section 19(1)) that an applicant for a practising certificate must be insured against any liabilities that may arise in the course of the practice before the Supreme Court issues or renews a practising certificate except in certain circumstances.
It is to that end that the Law Society upon receiving the application for the practising certificate in each case prepared an insurance schedule which was forwarded with the draft certificate to the Supreme Court.
Suffice it to say that pursuant to the applicable legislation and regulations, the Law Society in each of the relevant years upon receiving the application of the practitioner duly attended to the obtaining of the draft insurance schedule and other administrative matters before forwarding the draft practising certificate, the insurance schedule and the application to the Registrar of the Supreme Court for the issuing of the practising certificate.
It can be seen from the foregoing that to characterise the relationship between an applicant for a practising certificate and the processing body viz the Law Society as a contractual relationship is misconceived.
The Legislation as it then was is absolute in its terms “an application for a practising certificate must be accompanied by the prescribed fee and levy”.
Until the legislation was amended in 1999 the capacity of the Law Society to deal with those moneys in any other way than set out for in the strict letter of the legislation was very limited. It is also plain from the history of the correspondence and dealings with the appellant that in respect of the applications made during the relevant years the moneys were processed in the usual way, viz at least part of those moneys were processed and certificates of insurance subject to the Act were issued.
It is clear from the applicable provisions of the Legal Practitioners Act and Rules that a refund of some or all of the monies payable on an application for the issue of renewal of a practising certificate was not specifically provided for. I do not consider that there was an implied power to refund. This is particularly so when the obligation of the applicant to take out insurance cover before the practising certificate was issued or renewed is taken into account. The lack of such a power was unsatisfactory because a substantial proportion of the fees was applied to insurance levies which would not be needed if the practising certificate was not issued or renewed. Nevertheless, I do not consider that, in the circumstances of this claim, the legislation imposes on the Law Society an obligation to reimburse the appellant when all that the Society has done is carry out its statutory obligations.
It would appear from the correspondence that at no stage did the appellant exercise any right of appeal in relation to any decision of the Registrar throughout the period. A refund based on a successful appeal is therefore excluded.
The suggestion which was made in oral argument before the Magistrate that the Law Society is somehow guilty of fraudulent conduct in stealing the appellants money is unsustainable. There was simply no evidence of any such conduct.
For the reasons I have set out, I do not consider that there is any contractual basis or any other basis on which the appellant can lawfully claim a refund of moneys paid to the Law Society for the issuing and renewal of a practising certificate which necessarily included payment for the Legal Practitioner’s Insurance Fund. It follows from what I have said that the Magistrate’s decision should be upheld.
The order of the Court is that the Appeal be dismissed.