Little v Cornall

[1989] HCATrans 230

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml of 1989

B e t w e e n -

JOHN DAVID LITTLE

Applicant

and

ROBERT JOHN ALBERT CORNALL

(In his capacity as Secretary

of the Law Institute of

Victoria)

Respondent

Application for special leave

to appeal

BRENNAN J

DAWSON J

Little

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 OCTOBER 1989, ATl0.01 AM:

Copyright in the High Court of Australia

MlT 3/1/JH 1 13/10/89

MR J.D. LITTLE:  May it please the Court, I appear in

person to deal with this application.

MR H.R. HANSEN, QC:  If the Court pleases, I appear with my

learned friend, MR G.M. RANDALL, for the

respondent. (instructed by Malcolm R Howell)

BRENNAN J:	Mr Little?
MR LITTLE:	Your Honours, this case arises out of a sequal

of what are the facts referred to by my friend.

BRENNAN J:  Mr Little, the Court has amongst other documents,

the by-laws of the Law Institute of Victoria as

Amended on 29 April, 1987.	Do you have that
document?

MR LITTLE:  I have some by-laws, as amended, on 18 April 1985,

Your Honour.

BRENNAN J:	Well, I do not know how this came to the Court. There seems to be a covering letter; perhaps you can
throw some light on this, Mr. Hansen, which is headed,
for some reason, "confidential". There is no
confidentiality about any document that comes to
this Court.
MR HANSEN:	No, I understand that that was provided by my

instructing solQcitor, but I do not know why it would

be called confidential.

BRENNAN J:	Well, has it been provided to Mr Little?
MR HANSEN:	There is a set here but it was provided to him

before the Full Court and handed up to the Full Court

on the hearing of the argument before them and

they were also used before Mr Justice Nathan

at first instance.

BRENNAN J:  Well, Mr Little can have my copy of it.

MR HANSEN:	I have got a spare one here, yes.
MR LITTLE:	The Victorian Parliament passed in 1987 an Act that

provided that the solicitors' liability committee,

with the approval of the Law Institute Council could

determine what the contribution should be to the

solicitors' liability fund which is an, I might say,

indemnity fund.	Those amendments were made to
section 88H	of the LEGAL PROFESSION PRACTICE ACT 1958.

It inserted subsection (2A):

The Committee, with the approval of the

council, may determine -

(a) the amount of contribution payable by

classes of solicitors -

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et cetera. And, that subsection also says that

the connnittee may determine:

(f) any other terms and conditions of any

class of contract.

Previously, Your Honours may recall, the amount of the contribution was to be determined by regulation

and those regulations were held to be invalid

in the previous proceeding so that this was an

attempt to make the scheme proof against any further
challenge. That is one aspect of the case,

Your Honours, and the other aspect concerns the

fee, the practising fee. And, that is set in

pursuance of section 88(l)(a) of the

LEGAL PROFESSION PRACTICE ACT, which says that:

The council may make rules of the

institute for or with respect to all or

any of the following matters:

(a) Prescribing the practising fee to be

paid upon the lodging of any application
for a practising certificate and providing
for the payment to the institute of and

the recovery of the prescribed fee.

Provided that -

(i) such fee shall not exceed the fee in

respect of membership of the institute for

the time being payable, under any by-law

made pursuant to section twenty-four of
this Act, by any member of the institute

of a like class ..... to that of the person

lodging the application; and

(ii)      a member of the institute who has

paid his subscription to the institute for the year to which or any part of which the

certificate if issued would relate shall

not be required to pay any practising fee

on lodging any such application.

So, it is envisaged there that the fee shall not exceed the subscription but clearly the subscription

may exceed the fee.

BRENNAN J:  But, Mr Little, you have to come to grips with

section 90(7), do you not?

MR LITTLE:  Yes, I will do that. I thought I should lay that

background. As I have set out in my affidavit,

Your Honour, the reasons given by the Full Court for dismissing the appeal were, in my submission,

hopelessly wrong. The Full Court relied on

section 87(l)(a) of the Act as giving a right of

appeal that I should have pursued if I wish to

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remedy the failure of the secretary to issue me

a practising certificate and the Court referred to well known authorities that say that where a

right is given and there is an avenue also given

to enforce that right by statute, then that

avenue must be pursued and they said that

section 87(l)(a) provided that avenue. Now, in

fact, it did not provide the avenue for the reasons

that I have set out in the affidavit. Firstly,

section 87(1)(a) refers to a refusal - that is the

only relevant word - of a certificate to a

person. Now, there was no refusal in this case.

What happened was that the secretary said he was

unable to issue me a practising certificate

basically for the reason that I had not paid what

was claimed to be the prescribed practising fee and the contribution that was claimed for the indemnity

fund. He was not seeking to operate at any stage

under the refusal provisions of section 84 because

section 87 then refers back to section 84. It says:

Any applicant for or holder of a practising certificate who feels aggrieved by the

refusal of a certificate to the applicant

by the secretary under section 84 ..... may

within seven days -

et cetera. And, the secretary made it quite clear that he was not acting under the refusal powers of

section 84; he was simply saying he was unable to

issue me a certificate because I had not paid the fee

and, therefore, section 83 did not require him to

issue a certificate and also section 88K said that

he must not issue me a certificate.

DAWSON J:	Well, you applied for a certificate?
MR LITTLE:	Oh yes, I applied.

DAWSON J:  You did not get one?

MR LITTLE:	I did not get one.
DAWSON J:	So, your application was not granted.

MR LITTLE:  It was not granted, no. But, there was no

purported refusal.

BRENNAN J:	What is the difference?
MR LITTLE:	Well, I will explain that, Your Honour, in the

light of the statutory provisions. The secretary

can only refuse under section 84 ,on specified grounds
and none of those grounds were specified and it is

very doubtful, I think, that any of those grounds are

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applicable. Certainly, ground 84(l)(ga) is not,

which says:

fails to pay an amount of contribution that

he or she is liable to pay under Division SA. Now, that liability to pay a contribution does not arise, of course, until one enters into a contract

and I had not done that. So that, it seems that

there was no ground there under which the secretary

could refuse if that had been his intention.

DAWSON J:	What about (d)?
MR LITTLE:	Well, I am not quite sure which provision I am

supposed to have contravened or failed to comply

with, Your Honour.

BRENNAN J: 

Mr Little, if your application was met with a

non grant and that does amount to a refusal, then
it may be or it may not be, that the refusal was

authorized by the powers conferred by section 84(1).

But, if it did amount to a refusal and was not so

authorized, then your remedy would have lain

elsewhere to compel the grant.

MR LITTLE: 

By mandamus?

BRENNAN J: 

Yes.  The relevant proposition, as I understand

what Their Honours have said, is that in proceedings

under section 90(7), the question is whether or not

the terms of that subsection are satisfied by the

facts of the case. In this instance, the facts of

the case did satisfy the terms, therefore, the order

must go. Now, your proposition is, that one of those

terms ought not to have been satisfied and

Their Honours'response, as I understand it to that, is to say, "Well, if it wasn't satisfied, there are other ways in which you could achieve satisfaction".

Well, it does not really come to grips with the real

issue which is, does section 90(7) apply

according to its terms?

MR LITTLE:  Yes, Your Honour. What the court said, in my

submission, was that there was another way which was

section 87(1) and that clearly, in my submission,

was not another way. So that it then becomes a

question, Your Honour, of the significance of the

word "may" in section 90(7) and the court took the

view that one could not read into that the usual

just and equi.table requirement for the issue of an

injunction. As the Full Court did, the earlier

Full Court did, in LITTLE V LEWIS, that court had

no difficulty in looking at the legality of the

refusal of the secretary to issue the practising

certificate and this Full Court, in LITTLE V CORNALL,

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had some difficulty in declining to follow that

earlier decision which, in my submission, is

clearly correct.

DAWSON J:  Which is the provision, Mr Little, requiring

your contribution to accompany your application

for a practising certificate? Is there such a

provision?

MR LITTLE:  There is no provision requiring the contribution

for the insurance to accompany the application for

a practising certificate.

DAWSON J:  Well, where is the provision requiring you to have

insurance to enter into the contract?

MR LITTLE:  There is, in fact, Your Honour - I hope I do not

sound technical - no provision in the Act requiring

one to take out insurance but section 88K says that:

A practising certificate in respect of a

year must not be issued to a solicitor

under Division 4 unless the solicitor -

(a) has entered into a contract

..... or

(b) is exempt from compliance with this section.

DAWSON J:  Why is that not a failure - if you ~pply for a

practising certificate and do not enter into a

contract with professional indemnity insurance,

why is that not a failure to comply with the Act?

MR LITTLE:  Well, Your Honour, that does not impose an

obligation on me; it imposes an obligation, in effect,
on the secretary not to issue a practising certificate.

It may sound like a fine point but it is very carefully

drafted for that reason. The obligation is imposed

not on the solicitor; it is imposed on the secretary.

It does not say, that provision, that one must take

out professional indemnity insurance, it just says

if you do not do it, you will not get a practising

certificate.

TOOHEY J:  But, unless a person holds a practising certificate,

he or she is an unqualified person for the

purposes of the Act, are they not?

MR LITTLE:	That is what section 90 says, yes.
TOOHEY J:	Then, if that is read in conjunction with

section 90(7), an application by the secretary,

that person being an unqualified person can be

restrained from practising as a solicitor. Let me

just take it one step further, Mr Little. If the

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person against whom the proceedings are brought

wishes to resist that application, he can hardly

do it by saying that he is not an unqualified

person unless in some other proceedings it has

been shown that the institute erred in refusing to

grant a practising certificate.

MR LITTLE:  What one should look at, in my submission,

Your Honour, although superficially one can put

that proposition, what one has to take into account is that the secretary here is acting, in effect, as

judge and executioner. He is seeking to, in the

interests of his employer, enforce payment of

an insurance premium; he is more or less acting as an

insurance salesman saying, "Look, if you don't pay,

I won't give you a practising certificate". And,

that gives him a serious conflict of interest; it

is also true, of course, in relation to the

practising fee- if, as I have submitted, the institute

is using that power to prescribe the practising

fee improperly and misappropriating public moneys,

then once again, he is using his power to refuse a

practising certificate to, in effect, cover up the

institute's misappropriation of those statutory

moneys.

TOOHEY J:  But, none of that, it seems to me, converts the

status of the person from being an unqualified person

to something else, unless in proceedings that had

been taken, it has been shown that a direction has

been obtained requiring the institute to issue a

practising certificate.

MR LITTLE:  As I say, Your Honour, superficially that is so

but, once again, I come back to the proposition

that in subsection (7) there is the word "may"

and that requires, in my submission, that it is just

inequitable for the issue of an injunction to occur.

And it is not, in my submission, where the allegedly

unqualified person has done everything in law that

he is required to do and the secretary creates a

breach in that person by refusing to issue a

practising certificate. The breach is not

basically in the so-called unqualified person, it is

in the secretary and in those circumstances it would

be extremely unfair, unjust and inequitable to, at

the say so of the secretary, issue an injunction

which could lead then to commital without the so-called

unqualified person having any chance basically to
defend himself and saying, "I've done everything I'm

required to do". And, in those circumstances, to say,

"Well, you can go away and you can get a mandamus", is

a rather unnecessary step because one would go to the

same judge presumably, or a judge in the same court,

the judge can decide all these issues on an application

under section 90(7) and settle the matter there and

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then. It is the most, if I may say - using the

formula of the Full Court, if you are given a

right and a way to enforce it, you should use that

way and, in my submission, the way to enforce it

is, on an application like this, to say,

decided then, and on the strength of that decision, the Secretary is bound by those decisions, on those issues, and has to issue a

"Well, it's not just and equitable that the the issues

practising certificate and that is what happened

in the earlier case.

BRENNAN J:  Does not that argument somewhat overlook that the

purpose of this legislation is not the adjustment

of rights as between the Law Institute and the

practitioner but the protection of the public?

That argument, as I understand it, would leave it

to proceedings under section 90(7) to determine

whether or not a practitioner who has not been

granted a practising certificate should be allowed

to practise without it. Now, that means that the

public would, for a time, be unprotected.

MR LITTLE: Unprotected from what, Your Honour?

BRENNAN J: Unprotected from practices being conducted

by practitioners without practising certificates.

MR LITTLE: Well, of course, that is the Institute's or the

Secretary's responsibility, to ensure that people

do, if they want to practise, act in accordance

with the law but, in my submission, it cannot be

conceived to be the intent of this Act that a

person who has done everything he is required to

do to practise can be stopped from practising on the simple say-so of the Secretary when he

himself has acted improperly, if that is what

is established, and created what one might call

a superficial offence in that person who is

practising. The point that Your Honour makes assumes

that the Secretary is in some way the protector

of the public and it may turn out, Your Honours,

that he is not the protector of the public and

just who is protecting the public should, in my

submission, be looked at in an application by the

Secretary under section 90(7).

If this type of provision is interpreted in the way that is being suggested by the Full Court,

and this type of provision is given greater currency

in the statutes of the country then, in my submission,

one will come to a situation where the public officers

will be able to exercise a very dangerous power to

achieve all sorts of improper ends for their

particular - one can say in this case - enterprises,

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because the Institute has gone into business as an

insurer and it is using this power in relation to

the practising certificate to enforce the payment of an insurance premium. If one has that sort of

situation expanded, perhaps, as governments try to

deregulate, then the ultimate outcome in terms of

personal liberty and personal rights is potentially

a very serious one and the Court should not shy away

from looking at what these public officials are

doing simply because of the technicality that one
can say on the superficial wording of an Act,

"Well, by virtue of what the Secretary has done,

this person is unqualified and we'll look no further."

In my submission, it is not just; it is not equitable.

It is not just a question of the public being protected. In my submission, there is no protection

required in a case like this. The protection must be

accorded also to the person who is being deprived

by the Secretary for, as I would submit, improper

reasons - terribly improper reasons. If the

Secretary is using the power under section 83

which requires him to issue a practising certificate
when an application is made and an appropriate fee

is paid, if he uses that power along with the Institute

to enforce payments that the Institute is not entitled
to, to aggrandize the coffers of the Institute with
public moneys, and it is very serious too when the

Secretary can, as I say, enforce payments of insurance -

what are claimed as insurance premiums for an insurance

business run by the Institute.

So, certainly the Court should be concerned

about protection but it is not just a question of

protection of the public and the best way to protect

the public, in my submission, is to ensure that

people like the Secretary are required to carry out

their legal duties and not allowed to get away through

the non-issue of practising certificates and other

certificates with all sorts of, as I allege,

improper objects in mind.

I take Your Honour's point that one could

say one should apply for a mandamus or some other

remedy of that nature but there is no reason, as I

have said, why these issues cannot be determined on

a section 90(7) application as the Court in

LITTLE V LEWIS felt itself quite capable of doing.

They are the submissions I have to make on

section 90(7). There is no point in me going into

the other matters unless I know the Court's view on

this question.

BRENNAN J: Yes. It is on section 90(7) that your application

for special leave must succeed or founder, must it?

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MR LITTLE:  Yes, Your Honour, yes.

BRENNAN J: Well, is there anything further you wish to say

on that?

MR LITTLE:  Perhaps I should say this: the whole approach of

the Full Court was, if I may say so, with respect,

somewhat hasty. For example, at page 36 of the

judgment - perhaps I should go into these matters

because perhaps the Full Court is also under some

misapprehension.

BRENNAN J:  But you will understand that the question before

us is whether special leave should be granted, not

whether the appeal should be resolved in some

fashion or another.

MR LITTLE:  Of course, Your Honour. I just cannot find it

at the moment, Your Honours, but one of the points

the court made was - and it seemed to somewhat

follow some of the connnents that has fallen from

this Bench - the court said at page 34 of the

application book:

There are good reasons why the ordinary

rule should be applied in this case.	A
refusal of the restraining order would
leave the appellant free to act or
practise as a solicitor although
"unqualified" -

in other words, although he does not have a

practising certificate -

and without his having paid any fees

including his contribution to the

Solicitors Guarantee Fund for which he

concedes his liability.

Now, Your Honours, that is quite wrong. It is

true I conceded my liability for that but I had

also paid that contribution to the Solicitors'

Guarantee Fund as the court itself noted earlier

in its judgment on page 24 of the application book

where it said, in the seventh line:

He did, however, return with the

application a sum of $10 being a

contribution to the Solicitors'

Guarantee Fund.

So, the court was wrong in that respect, quite wrong, on its own judgment.

Further, the framework of the present

proceedings is such as to disallow

any binding adjudication by the court

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of the issues which the appellant

raises.

And that is, with respect, in my submission, again, not true. The issues raised, if they had been decided, would have created issue estoppels and

determine them for all time.	And then the court
goes on to say:

While it may be accepted that the

word "may" leaves a discretion of some

kind whether an order should be made, it

would rarely, in our view, result in a

refusal where the conditions specified

ins. 90(7) have been fulfilled. It

may well be that this court in LEWIS V LITTLE

considered the circumstances there provided

such a rare circumstance. However, the

appellantin this case was obliged, in our

opinion, to pursue his contentions through
the appeal procedures provided by

s.87 -

which were not open to me. So, really, what the

court is saying, I suppose, is that because I

did not take the precaution of technically issuing

mandamus proceedings at the same time as the

Secretary applied for this injunction, therefore,

I am not entitled now to raise these issues and

that, in my submission, would have been basically

just a technicality. I could have raised it and

then this problem that Your Honours raise with

me would have been completely overcome and, indeed,

that is, in fact, what I sought to do in the earlier

case of LITTLE V LEWIS. I made an oral application

for mandamus then and, as I recall, I headed one
of the court documents as a mandamus application.

In my submission, that is basically just a technicality and the court should not be deflected

by such a relatively minor matter when such major

issues are at stake,	issues that concern the
honesty of the legal profession in this State and

that concern. major constitutional issues.

BRENNAN J:  Thank you, Mr Little. We need not trouble you,

Mr Hansen.

The reasons for judgment of the Full Court

in this matter relating to the construction of

the terms of section 90(7) of the LEGAL PROFESSION

PRACTICE ACT 1958, Victoria, is not attended with

sufficient doubt to warrant the grant of special

leave on that ground.

The applicant seeks to attack the exercise of the discretion conferred by section 90(7) but the

arguments on which the attack rests seek to show

merely that the applicant ought to have been granted

a practising certificate. Unless it could be shown

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that the applicant had a right to a practising

certificate which could not otherwise be enforced,

that argument against the exercise of the

discretion could not be sustained. It cannot be

so shown though we do not need to examine the

Full Court's observations on the availability of

the appeal procedures under section 87.

There is, therefore, no sufficient reason

to is accordingly refused.

doubt the correctness of the order made by the leave. Special leave

MR HANSEN:	I think that carries costs.
BRENNAN J:	You are asking for costs in this matter?
MR HANSEN:	Yes, I do.

BRENNAN J: Very well, in this matter there will be an order

for costs.

AT 10.36 AM THE MATTER WAS ADJOURNED SINE DIE

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