Picos v Council of the New South Wales Bar Association

Case •

[2023] NSWCA 218

•

13 September 2023

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Picos v Council of the New South Wales Bar Association [2023] NSWCA 218
Hearing dates: 29 August 2023
Date of orders: 13 September 2023
Decision date: 13 September 2023
Before: Gleeson JA at [1]
Leeming JA at [117]
Payne JA at [118]
Decision:

2023/132537 (Leave to appeal)

(1)   Extend the time for filing of the summons seeking leave to appeal to 26 April 2023.

(2)   Refuse leave to appeal.

(3)   Summons filed 26 April 2023 is dismissed with costs.

2023/132560 (Summons)

(4)   Extend the time for filing of the summons to 26 April 2023.

(5)   Amended summons filed 24 May 2023 is dismissed with costs.

2015/291241 (s 46(4) – Review application)

(6)   Prayers 1, 2 and 7 of the applicant’s notice of motion filed 1 August 2022 are dismissed with costs.

Catchwords:

OCCUPATIONS — Legal practitioners — Barristers — Qualifications and admission — Refusal of grant of practising certificate as a barrister — Where Bar Council determined applicant not fit and proper person to hold practising certificate — Where applicant held practising certificate as a solicitor — Whether Bar Council bound by Law Society Council’s determination that applicant was fit and proper person — Legal Profession Uniform Law (NSW), ss 44(1) and 45(2)

APPEALS — Leave to appeal — Challenge to striking out summons seeking declaratory relief that applicant fit and proper person to hold Australian practising certificate — Where Bar Council refused to grant practising certificate — Where right of appeal from Bar Council’s decision on merits not exercised — Legal Profession Uniform Law(NSW), s 100(1) — Whether issue of principle, general public importance or relevant injustice

ADMINISTRATIVE LAW — Whether reviewable error of law — Application for judicial review of Bar Council’s decision to refuse to grant practising certificate — Whether jurisdictional error or error of law on face of the record — Whether failure to accord applicant procedural fairness

CIVIL PROCEDURE — Court of Appeal — Review of orders of judge of appeal — Where judge of appeal dismissed contempt charges and challenge to registrar’s orders — Whether applicant demonstrated error of principle or decision was plainly wrong — Supreme Court Act 1970 (NSW), s 46(4)

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Interpretation Act 1987 (NSW), ss 5, 9

Legal Profession Uniform Law (NSW), ss 6, 43, 44, 45, 95, 99, 100, 416

Legal Profession Uniform General Rules 2015 (NSW), r 13

Legal Profession Uniform Law Application Act 2014 (NSW), ss 3, 11, 29, 31

Mutual Recognition Act 1992 (Cth), ss 16, 39

Mutual Recognition (New South Wales) Act 1992 (NSW)

Supreme Court Act 1970 (NSW), ss 46, 51, 63, 69

Supreme Court Rules 1970 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), rr 6.29, 42.1

Cases Cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Buckley v Council of Law Society of New South Wales [2022] NSWSC 328

Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118

Christian Community Ministries Ltd v Minister for Early Education and Early Learning [2023] NSWSC 272

Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317

Collier v Lancer [2013] NSWCA 185

Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

House v The King (1936) 55 CLR 499; [1936] HCA 40

In re the Will of Gilbert (1946) 46 SR (NSW) 318

Jaffari v Grabowski [2013] NSWCA 114

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Patrick v Howorth [2002] NSWCA 285

Penson v Titan National Pty Ltd [2015] NSWCA 404

Picos v HealthEngine Pty Ltd [2015] FCCA 1983

Picos v The Council of NSW Bar Association [2019] NSWSC 1382

Picos v Council of the New South Wales Bar Association [2019] NSWSC 1851

Reinhart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403

Re Refugee Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513

R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; [1981] HCA 74

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Transglobal Capital Pty Ltd v Yolarno Pty Ltd 60 NSWLR 143; [2004] NSWCA 136

Victorian Building Authority v Andriotis (2019) 268 CLR 168; [2019] HCA 22

Wentworth v Wentworth (1994) 35 NSWLR 726

Z v Mental Health Review Tribunal [2015] NSWCA 373

Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131

Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38

Category:Principal judgment
Parties: Connie Louise Picos (Applicant)
Council of the New South Wales Bar Association (Respondent)
Representation:

Counsel:
Ms C L Picos (Self-represented – Applicant)
Ms K C Morgan SC / Ms M Kearney (Respondent)

Solicitors:
C L Picos (Self-represented – Applicant)
Hicksons Lawyers (Respondent)
File Number(s): 2015/291241; 2023/132537; 2023/132560
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:

[2019] NSWSC 1851

Date of Decision:
16 December 2019
Before:
Kunc J
File Number(s):
2019/313902

Decisions under appeal/review

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Ms Picos, is an Australian lawyer who held a practising certificate as a solicitor issued by the Law Society Council of New South Wales for the financial year 1 July 2019 to 30 June 2020. In August 2019 she applied to the NSW Bar Association for the grant of an Australian practising certificate as a barrister after passing the Bar Examination conducted by the Bar Association earlier that year. In September 2019 she successfully completed the Bar Practice Course. Following a request by the Bar Council that she attend a medical examination by a psychiatrist, Ms Picos commenced proceedings in the Supreme Court against the Bar Council (the respondent) (2019 proceedings). Her application for interim relief that she be issued a practising certificate as a barrister was refused by Slattery J in October 2019: Picos v Council of the New South Wales Bar Association [2019] NSWSC 1382. Ms Picos ultimately withdrew her August application for the grant of a barrister’s practising certificate, and on 7 November 2019 made a second application to the Bar Association.

On 5 December 2019 the Bar Council resolved to refuse the application of Ms Picos for a practising certificate pursuant to s 45(2) of the Legal Profession Uniform Law (NSW) (Uniform Law). In the reasons for that decision, the Bar Council concluded that Ms Picos is not a fit and proper person to hold a practising certificate, either with or without conditions.

Ms Picos sought leave to file an amended summons in the 2019 proceedings seeking additional interim and final relief, including a declaration that she was a fit and proper person to hold an Australian practising certificate. Ms Picos did not exercise the right of review of the Bar Council’s decision under Uniform Law, s 100(1). Leave to file the amended summons was refused and the amended summons was dismissed by Kunc J on 16 December 2019: Picos v Council of the New South Wales Bar Association [2019] NSWSC 1851.

In April 2023 Ms Picos applied, out of time, for leave to appeal against the orders made by Kunc J. She also filed a summons (amended in May 2023) seeking judicial review of the Bar Council’s decision of 5 December 2019. In both proceedings, Ms Picos contended that the Bar Council’s decision refusing to grant her an Australian practising certificate as a barrister was “invalid” on the basis that the Law Society Council had already determined, through the issuing of her 2019-2020 practising certificate, that Ms Picos was a fit and proper person to hold a practising certificate as a solicitor, and therefore the Bar Council had no power to refuse her application for an Australian practising certificate as a barrister under Uniform Law, s 45(2) on the basis that she is not a fit and proper person. In both proceedings, Ms Picos also alleged a denial of procedural fairness.

Separately, by a notice of motion filed in January 2022 in appeal proceedings commenced and determined in 2015, Ms Picos brought contempt charges in relation to alleged breaches a suppression order made in the 2015 proceedings involving Ms Picos, to which the Bar Council was not a party: Z v Mental Health Review Tribunal [2015] NSWCA 373. The contempt charges alleged various members of the Bar Council and its solicitors had breached the suppression order during the process of considering her application for a practising certificate in 2019 and in the 2019 proceedings.

In February 2022, Registrar Riznyczok made case management orders in relation to the January 2022 notice of motion, which Ms Picos sought to set aside in March 2022. On 22 July 2022, Kirk JA dismissed Ms Picos’ challenge to the Registrar’s orders: Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131. Kirk JA subsequently revoked the suppression order in the 2015 proceedings and all subsequent variations of it, with Ms Picos’ consent on 8 March 2023: Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38. By a notice of motion filed in August 2022, Ms Picos sought to vary or discharge the orders made by Kirk JA on 22 July 2022 under s 46(4) of the Supreme Court Act 1970 (NSW).

The three applications before the Court of Appeal were:

the summons seeking leave to against the orders of Kunc J on 16 December 2019;

the amended summons seeking judicial review of the Bar Council’s 5 December 2019 decision; and

the notice of motion seeking to vary or discharge the orders made by Kirk JA on 22 July 2022 in the 2015 proceedings.

The Court held (Gleeson JA, Leeming and Payne JJA agreeing), dismissing the application for leave to appeal, judicial review, and the review application:

As to the leave to appeal summons

The decision of the Law Society Council to renew Ms Picos’ Australian practising certificate as a solicitor for the financial year 2019-2020 did not operate as a constraint on (i) the discretionary power of the Bar Council under s 44(1) of the Uniform Law to grant Ms Picos an Australian practising certificate as a barrister, nor (ii) the obligation imposed on the Bar Council by s 45(2) of the Uniform Law not to grant Ms Picos an Australian practising certificate as a barrister if the Bar Council concluded that she was not a fit and proper person to hold such a certificate: [55].

There was no denial of procedural fairness in Kunc J dismissing the summons in the 2019 proceedings following the Bar Council’s oral application to have the summons struck out or dismissed. His Honour had offered Ms Picos the opportunity of obtaining an expedited hearing of the 2019 proceedings in the Equity Division if she amended her summons to include an appeal under s 100 of the Uniform Law, which Ms Picos declined: [62]-[67].

As to the judicial review amended summons

There was no jurisdictional error in the exercise of the Bar Council’s power to refuse Ms Picos’ application for a practising certificate: [78]-[87].

There was no denial of procedural fairness with respect to the Bar Council’s medical expert changing his view as to Ms Picos’ fitness to practise without reassessing her. Ms Picos was afforded the opportunity to consider and respond to the reports of the Bar Council’s expert. She did so by providing to the Bar Council a report of her treating psychiatrist: [85], [87].

As to the review application

There was no error in Kirk JA’s decision that the declaratory relief sought by Ms Picos in her January 2022 motion that she be declared a fit and proper person, was misconceived because that relief related to proceedings that were separate and subsequent to the 2015 proceedings, in which the appeal had been determined: [103]-[104].

There was no error by Kirk JA in not setting aside the Registrar’s case management orders including because insofar as Ms Picos sought an order in the nature of certiorari in respect of the decisions of Slattery J and Kunc J, the Court lacked a power to grant certiorari in respect of a decision a judge of the Supreme Court acting in their capacity as such: [105].

Penson v Titan National Pty Ltd [2015] NSWCA 404, applied.

Judgment

  1. GLEESON JA: The three applications before the Court arise from the decision of the Bar Council of the New South Wales Bar Association on 5 December 2019 to refuse an application by Ms Connie Picos for an Australian practising certificate as a barrister pursuant to s 44(1) of the Legal Profession Uniform Law (NSW) (the Uniform Law).

  2. Proceedings 2023/132537: Ms Picos seeks leave to appeal against orders made by Kunc J on 16 December 2019 refusing leave to file an amended summons and striking out with costs the summons which sought declaratory relief that Ms Picos is a fit and proper person to hold an Australian practising certificate. An extension of time is sought as the summons seeking leave to appeal was filed on 26 April 2023, more than three years after the making of the orders by Kunc J.

  3. Proceedings 2023/132560: Ms Picos seeks judicial review of the Bar Council’s decision of 5 December 2019. She relies upon an amended summons filed 24 May 2023. An extension of time (if required) is sought as the summons in the judicial review proceedings was filed on 26 April 2023, more than three years after the decision of the Bar Council.

  4. Proceedings 2015/291241: Ms Picos seeks by notice of motion filed 1 August 2022 to discharge or vary orders 1-6 made by Kirk JA on 22 July 2022 in appeal proceedings she commenced against the Mental Health Review Tribunal in 2015 (the 2015 proceedings).

  5. Ms Picos was unrepresented in this Court, in the 2019 proceedings and on the application before Kirk JA in 2022 in the 2015 proceedings. Her underlying complaint in the applications before this Court is the same. She contends that the Bar Council’s decision of 5 December 2019 refusing to grant her an Australian practising certificate as a barrister is “false” and therefore “invalid”. It is said that since the Law Society Council of New South Wales had already determined, through the issuing of a practising certificate to 30 June 2020, that Ms Picos was a fit and proper person to hold a practising certificate as a solicitor, the Bar Council was required to accept the judgment of their peers and therefore had no power to refuse her application for an Australian practising certificate as a barrister. As explained below, that contention in all its various forms is misconceived.

  6. For the reasons that follow, an extension of time should be granted for the applications for leave to appeal and judicial review, and all three applications should be dismissed with costs.

Applicable statutory regime

  1. It is of assistance first to describe the applicable statutory regime before outlining the circumstances in which the leave to appeal and judicial review applications come to this Court. It is convenient to defer at this point an explanation of the discrete circumstances in which Ms Picos seeks review of the interlocutory orders made by Kirk JA in the 2015 proceedings.

  2. Chapter 3 of the Uniform Law includes Pt 3.3 dealing with the grant and renewal of Australian practising certificates in New South Wales to eligible and suitable persons who are already admitted to the Australian legal profession in any jurisdiction. The definitions in s 6(1) of the Uniform Law provide that an “Australian legal practitioner” means an Australian lawyer who holds a current practising certificate, and an “Australian lawyer” means a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction. It is common ground that Ms Picos was admitted as a lawyer of the Supreme Court of New South Wales on 17 February 2017.

  3. An Australian legal practitioner is entitled to engage in legal practice in “this jurisdiction”, being New South Wales (s 43(1)), subject to any requirements of the Uniform Law, the Legal Profession Uniform General Rules 2015 (NSW) (the Uniform Rules) and the conditions of the practitioner’s Australian practising certificate (s 43(2)).

  4. Section 44(1) of the Uniform Law provides that “[t]he designated local regulatory authority may, on application, grant or renew an Australian practising certificate in respect of a financial year”. The term “designated local regulatory authority” is defined in s 6(1) of the Uniform Law to mean:

a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used. (Emphasis added.)

  1. The Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act) is “a law of this jurisdiction”. Table 1 under s 11(1) of the Application Act specifies that the “designated local regulatory authority” for the purpose of Ch 3 of the Uniform Law (except for some provisions not presently relevant) is the “Appropriate Council”, which expression is defined in s 3(1) of the Application Act to mean:

(a)   subject to paragraph (b), the Law Society Council, or

(b)   in relation to matters relating to barristers or former barristers (including an application for a practising certificate to practise as a barrister)—the Bar Council.

  1. The term “Law Society Council” means the Council of the Law Society, which in turn is defined as the Law Society of New South Wales, and “Bar Council” means the Council of the Bar Association, which in turn is defined as the New South Wales Bar Association: s 3(1), Application Act. Each of the Bar Council and Law Society Council is given the functions conferred or imposed on it, relevantly, by the Uniform Law or by the Application Act: ss 29, 31, Application Act.

  2. The combined effect of these provisions of the Uniform Law and the Application Act is to recognise the continued distinction in New South Wales between barristers and solicitors and their respective professional organisations – the Bar Association and the Law Society. The Bar Council is the designated local regulatory authority with the power to grant or renew an Australian practising certificate to engage in legal practice as a barrister, whilst the Law Society Council is the designated local regulatory authority with the power to grant or renew an Australian practising certificate to engage in legal practice as a solicitor.

  3. The power conferred on the designated local regulatory authority by s 44(1) of the Uniform Law to grant or renew an Australian practising certificate is subject to two conditions or constraints.

  4. One is that the designated local regulatory authority may grant or renew an Australian practising certificate only if it is satisfied of the three matters referred to in s 45(1) of the Uniform Law, namely that the applicant:

  • is an Australian lawyer: s 45(1)(a);

  • has, or will have on or before the grant or renewal, professional indemnity insurance in accordance with the Uniform Law and the Uniform Rules, if required by the Uniform Law: s 45(1)(b); and

  • has indicated in the application that he or she does not hold and does not have a current application for another Australian practising certificate that would be in force concurrently with the certificate whose grant or renewal is sought: s 45(1)(c).

  1. The other is that, subject to sub-sec (4), the designated local regulatory authority must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate: s 45(2). The qualification in s 45(4) is that a person may be considered a fit and proper person to hold an Australian practising certificate even though the person does not satisfy the requirements for a matter to which the designated local regulatory authority may have regard, if it is satisfied that this action is warranted in the circumstances.

  1. The matters to which the designated local regulatory authority may have regard in considering whether an applicant is a fit and proper person to hold an Australian practising certificate are set out in r 13 of the Uniform Rules and include (i) whether the applicant is currently of good fame and character (r 13(1)(a)); and (ii) whether the applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner (r 13(1)(m)).

  2. Part 3.6 of the Uniform Law provides for a right of appeal or review of certain decisions of the designated local regulatory authority in relation to Australian practising certificates: s 99. Section 100 provides a right of appeal or review to the designated tribunal against a decision of the designated local regulatory authority under Ch 3 to refuse to grant or renew the Australian practising certificate: s 100(1)(a). The designated tribunal is the Supreme Court of New South Wales: Application Act, Table 2, s 11(3).

  3. The right of appeal conferred by s 100(1) of the Uniform Law is a review of the merits of the decision: s 100(2). On such an appeal, the designated tribunal (here, the Supreme Court) may make any order it considers appropriate including an order directing the designated local regulatory authority to grant, or refuse to grant, an application for an Australian practising certificate: s 100(3)(a).

  4. If the question of whether a person is a fit and proper person to hold an Australian practising certificate is at issue on such an appeal, the onus of establishing that a person is a fit and proper person to hold an Australian practising certificate is on the person asserting that fact: s 100(7)(a).

Background

  1. In 2017 the Law Society Council granted Ms Picos a practising certificate as a solicitor from 1 July 2017, subject to several discretionary conditions which were later removed on 10 May 2018. It is common ground that Ms Picos held a practising certificate issued by the Law Society Council for the year 1 July 2019 to 30 June 2020.

  2. In June 2019 Ms Picos passed the Bar Examination conducted by the Bar Association. On 1 August 2019 she applied to the Bar Association for the grant of an Australian practising certificate as a barrister. In September 2019 she successfully completed the Bar Practice Course.

  3. In her August 2019 application to the Bar Association, Ms Picos disclosed various matters, including (i) adverse credit findings made against her in Picos v HealthEngine Pty Ltd [2015] FCCA 1983, (ii) other litigation in which she had been involved as a party, (iii) that she was the person referred to as “Z” in the Court’s judgment in the 2015 proceedings: Z v Mental Health Review Tribunal [2015] NSWCA 373, and (iv) that she has previously been treated for schizophrenia and she had not received any psychiatric treatment since May 2018.

  4. At the request of the Bar Council, pursuant to s 95(1)(b) of the Uniform Law, Ms Picos was medically examined on 19 September 2019 by a psychiatrist, Dr Jonathan Phillips. Following receipt of Dr Phillips’ report of 23 September 2019, the Bar Council resolved that it would be assisted by a further report from Dr Phillips.

  5. On 8 October 2019, Ms Picos commenced proceedings against the Bar Council seeking interim and final relief (the 2019 proceedings). On 15 October 2019, Slattery J declined to grant the interim relief sought, namely, that Ms Picos be issued with a practising certificate: Picos v Council of the New South Wales Bar Association [2019] NSWSC 1382.

  6. Dr Phillips provided a second and third report to the Bar Council on 22 October and 23 October 2019. In his third report, Dr Phillips stated that he was of the opinion that by reason of Ms Picos’ currently unstable mental status, she was not currently fit to hold a practising certificate, either with or without conditions. Copies of those reports were provided to Ms Picos on 23 October 2019. She responded by requesting an urgent listing of the 2019 proceedings before the Equity duty judge. It is not necessary to refer to the detail of what occurred when the proceedings were thereafter mentioned before several Equity duty judges. Ultimately, on 26 October 2019 Ms Picos withdrew her first application for the grant of a barrister’s practising certificate.

  7. On 7 November 2019 Ms Picos made a second application to the Bar Association. That application included a report from Ms Picos’ treating psychiatrist, Dr Klug, dated 31 October 2019. After correspondence between the solicitors for the Bar Council and Ms Picos, a further report of Dr Klug dated 19 November 2019 was provided by Ms Picos to the Bar Council.

Bar Council decision

  1. On 5 December 2019 the Bar Council resolved to refuse the application of Ms Picos for a practising certificate pursuant to s 45(2) of the Uniform Law. The reasons for the Bar Council’s decision are contained in a document of 53 pages, together with an annexure of 5 pages listing the legal proceedings to which Ms Picos was a party. The reasons contained 7 sections: (A) Background; (B) Disclosure to the Bar Association regarding commencement of proceedings, health and medical reports; (C) Attendance at Bar Practice Course and contact with the Bar Association; (D) Proceedings against the Bar Council; (E) Medical examination; (F) Relevant law; (G) Consideration; and (H) Conclusion.

  2. Under the heading “Conclusion”, the reasons noted that the three reports of Dr Phillips support the conclusion that by reason of her current unstable mental status, Ms Picos is presently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner, and there is nothing in the material available to support action under s 45(4) of the Uniform Law. The reasons also noted that if Dr Klug’s opinion that Ms Picos is well and unaffected by mental illness is accepted, her conduct in the context of litigation (both historical and current) is inconsistent with the good character (or fitness and propriety) expected of members of the practising profession. The reasons concluded that Ms Picos is not a fit and proper person to hold a local practising certificate, either with or without conditions and, in accordance with s 45(2) of the Uniform Law, the Bar Council must refuse to grant Ms Picos a practising certificate.

  3. The Bar Council informed Ms Picos of its decision by notice dated 5 December 2019 and by further notice dated 9 December 2019. The later notice correctly informed Ms Picos that she may apply to the Supreme Court for a review of the decision pursuant to s 100(1) of the Uniform Law and s 11 of the Application Act.

Disposition of the 2019 proceedings

  1. Ms Picos did not exercise that right of appeal. Instead, she sought leave to file an amended summons in the 2019 proceedings seeking additional interim and final relief. That application came before Kunc J on 16 December 2019, who made orders relevantly that the New South Wales Attorney-General and the Attorney-General of the Commonwealth of Australia be removed as parties (order 3), refused leave to file the amended summons dated 12 December 2019 (Order 4), struck out the summons filed 8 October 2019 (Order 5), extended an earlier suppression and non-publication order to include all hearings and judgments in the proceedings (Order 6), and ordered that Ms Picos pay the costs of the Bar Council (Order 7): Picos v Council of the New South Wales Bar Association [2019] NSWSC 1851.

  2. The respective decisions of the Bar Council of 5 December 2019 and Kunc J of 16 December 2019 are the subject of two of the applications before this Court.

Extension of time

  1. Ms Picos requires an extension of time within which to apply for leave to appeal and to seek judicial review. The Bar Council opposed an extension of time on the basis that extending time would be futile as there is no arguable case for a grant of leave to appeal or the grant of relief by way of judicial review. The factors of general relevance to the exercise of the discretion to extend time are the length of the delay, the reason for the delay, whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [55] (Basten JA).

  2. Whilst the delay in seeking both leave to appeal and judicial review is significant, being more than three years in each case, there was no challenge to the explanation for the delay given by Ms Picos in her affidavit of 17 May 2023. Nor did the Bar Council assert that any prejudice would be suffered by an extension of time. I am satisfied that it is in the interests of justice to grant the extension for both applications.

LEAVE TO APPEAL

  1. The draft notice of appeal contains seven grounds. The substantive relief sought in par [4] is a declaration that the Bar Council’s “purported resolutions of 5 and 9 December 2019 to refuse [Ms Picos] an Australian practising certificate are invalid”. Ms Picos did not press the relief sought in par [5], that she be granted a “NSW Bar reader certificate”.

  2. The challenge to the interlocutory decisions of Kunc J removing parties to the 2019 proceedings and refusing leave to file the amended summons face the difficulty that the Court exercises great restraint in interfering with an interlocutory decision on a matter of practice and procedure: In re the Will of Gilbert (1946) 46 SR (NSW) 318; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39.

Removal of parties

  1. The proposed amended summons dated 12 December 2019 sought to join the Attorney-General of New South Wales as the second defendant and the Attorney-General for the Commonwealth of Australia as the third defendant in the 2019 proceedings. After noting that there was some uncertainty as to whether the amended summons had been filed, Kunc J found that neither Attorney-General was a necessary or proper party to the proceedings: at [21]. An order was made that insofar as each Attorney-General may have been taken to have been joined to the 2019 proceedings, each of them was removed as a party pursuant to r 6.29 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) (order 3).

  2. There is no proposed ground of appeal challenging that part of order 3 removing the Attorney-General of New South Wales as the second defendant.

  3. Proposed ground 7 contends that his Honour erred in declining to join the Commonwealth Attorney-General as a party on the grounds that the basis for joining the Attorney was remote and that there were no impediments to Ms Picos continuing as a migration agent or providing research services to a barrister: at [20]. It is asserted that “to hold her in these lower occupations of migration agent and researcher was an obvious global red flag for human trafficking, of which the appellant is victim”.

  4. This ground misstates the basis on which his Honour refused to join the Commonwealth Attorney-General as a party. As his Honour noted at [20], neither the Bar Council nor the Commonwealth Attorney-General suggested that the Bar Council’s decision somehow impeded her capacity to act as a registered migration agent, and the Bar Council made clear that it was not suggesting that Ms Picos could not provide research services to a barrister. No House v The King error has been identified in relation to the order removing the Commonwealth Attorney-General as a party: House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40.

Refusal of leave to file amended summons and striking out the summons

  1. The amendments in the proposed amended summons as marked up with underlining, with the proposed deletions as marked up with ruling through were:

Interim relief

1. Upon the plaintiff giving the undertaking below The plaintiff forthwith be granted a practising certificate as a reader barrister for the balance of the year ending 30 June 2020.

Undertaking

The plaintiff undertakes that upon being requested by the Court to do so, the plaintiff will surrender the practising certificate granted.

2. Costs of the interim relief, payable forthwith.

2b In the alternative to [1], a stay on the operation of the decision of the first defendant of 5 December 2019

3a Additionally, an injunction restraining the first defendant from initiating any disciplinary action against the plaintiff, until further order.

3. Further or other order as the Court sees fit may think just and equitable.

4 Liberty to apply.

Final relief

5. A declaration that the plaintiff is a fit and proper person to hold an Australian Practising certificate.

6. A declaration that the resolution of the first defendant of 5 December 2019 to refuse the plaintiff an Australian practising certificate is invalid.

7. A declaration that the Notice under section 464 of the Legal Professional Uniform Law issued to the plaintiff on 9 December 2019 is invalid.

8. A declaration that the plaintiff was validly admitted to the Australian legal profession on 17 February 2017

9. A declaration that the first defendant is not the “admitting” authority or body in the State of New South Wales.

10. A declaration that the plaintiff is a fit and proper person.

  1. Kunc J gave the following reasons for refusing the interim relief sought in the proposed amended summons:

  1. par 1 – that Ms Picos be granted a practising certificate as a reader-barrister for the balance of the year ending 30 June 2020 – was inappropriate, for the reasons given at [26]-[28]:

First, it was submitted that there was a clear statutory scheme of appeal available to Ms Picos set up by s 100 of the LPU Law. It was contended that the Court would not lightly interfere with that.

Second, attention was drawn to the Council's reasons for decision (Annexure ‘A’ to each of the notices set out in paragraphs [8] and [9] above). The reasons are 58 pages long. It was submitted that the reasons are, on their face, thorough, regular and carefully reasoned. Given such reasons, Mr Griffin SC submitted that the Court would not without very good reason interfere in an interim but nevertheless peremptory way with a decision of the Council exercising its statutory responsibility.

Without expressing any view as to the merits of the decision itself or its correctness, I accept the Council's description of those reasons on their face. I also accept and adopt the Council's two reasons as to why the Court would not grant interlocutory relief of the kind sought by Ms Picos.

  1. par 2(b) – to stay the operation of the decision of the Bar Council on 5 December 2019 – was inappropriate, for the reasons given at [30]:

That application can be shortly dealt with. The decision of the Council was to refuse to do something. In those circumstances, there is nothing to stay. Relief in the terms sought, with respect, makes no sense.

  1. par 3(a) – relating to interim injunctive relief restraining any disciplinary action against Ms Picos – was inappropriate, for the reasons given at [32]:

The Court declines to grant that relief because Mr Griffin SC made it quite clear that the Council has no current intention to initiate any disciplinary action against Ms Picos and was not aware of any reason why it should do so. Ms Picos replied that she would feel more comfortable if the Council gave an undertaking to that effect. I accept Mr Griffin SC's submission that it is inappropriate for the Council to give such an undertaking which, in my respectful view, would be an impermissible fetter upon the Council's statutory responsibilities should they need to be exercised at some time in the future. In the circumstances of an urgent hearing in the Duty List, it seems to me that where there was no present threat of any disciplinary action being taken by the Council against Ms Picos there was no proper basis upon which the Court could make an order as proposed by paragraph 3(a) of the amended summons.

  1. Kunc J summarised his reasons for refusing leave to file the amended summons at [41]:

Insofar as leave has not been given for the amended summons to be filed, I decline to grant that leave. The reason for doing so is that to the extent it seeks the interim relief to which I have earlier referred, the Court would refuse it. Insofar as it seeks the final relief to which I have referred, that relief, as I have indicated, is not directed to the matter that is really in issue between the parties, which will only be resolved by the bringing of an appeal under s 100 of the LPU Law.

  1. Addressing the final relief sought in the summons (par 5), Kunc J found that a declaration that Ms Picos is “a fit and proper person to hold an Australian practising certificate” is not a form of relief consonant with the statutory regime under s 100 of the Uniform Law: at [42]. After referring at [43] to the statutory regime in s 100, including s 100(7)(a) and (b) concerning how the question of a “fit and proper person” is to be dealt with in an appeal, his Honour continued at [44]:

The Court has therefore concluded that it would be completely inimical to the just, cheap and quick resolution of the issues genuinely in dispute between the parties to allow the summons to proceed in its current form, and in circumstances where Ms Picos seems to have been completely unable to be persuaded that it is in her interests to amend that document to seek relief conformable with an appeal under s 100 of the LPU Law. An examination of the transcript will disclose that I made that suggestion to her on more than one occasion and, for reasons best known to herself, she replied that was not an amendment which she wished to make.

Proposed ground 4

  1. Proposed ground 4 contends that his Honour erred in refusing leave to file the amended summons on the basis that Ms Picos had a right of appeal pursuant to s 100 of the Uniform Law for the review of the Bar Council’s decision.

  2. It is said that there is an issue of general principle because the Bar Council’s decision is based on “falsehood”. It is also said that there is an injustice because the decision of the Bar Council is “false”. These contentions are mere hyperbole. There is no material which supported these contentions.

  3. It is also said that there is an issue of general public importance because “the blocking of the applicant commencing work as a barrister from mid-2019” is “a matter of national security and global instability” and indicative of “the collapse of the administration of justice”. This characterisation of Ms Picos’ inability to work as a barrister in New South Wales cannot be accepted. No issue of general public importance has been identified which would justify the grant of leave to appeal.

Construction of “fit and proper” person condition in s 45(2)

  1. Contrary to the submissions of Ms Picos, it is an error to treat the “fit and proper” person condition in s 45(2) of the Uniform Law as being deemed to have been satisfied with respect to the Bar Council’s consideration of her application for a practising certificate as a barrister because the Law Society Council must have been so satisfied of the s 45(2) condition when it renewed her practising certificate as a solicitor for the 2019-2020 financial year. That is for several reasons.

  2. First, the Law Society Council and the Bar Council each have separate and distinct functions as the designated local regulatory authority in New South Wales with respect to the applications which can be made to each of them for the grant or renewal of an Australian practising certificate: the Law Society Council with respect to an application to engage in legal practice as a solicitor and the Bar Council with respect to an application to engage in legal practice as a barrister.

  3. Since each has power under s 44(1) of the Uniform Law to grant or renew a practising certificate in their respective spheres of responsibility, there are sound reasons why the Law Society Council’s satisfaction of the “fit and proper” person condition in s 45(2) in relation to an applicant to engage in legal practice as a solicitor is not determinative for the Bar Council’s consideration of the s 45(2) condition in relation to the same applicant to engage in legal practice as a barrister.

  1. One is that the practice of advocacy is unique in the respects referred to by Callinan J in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; [2005] HCA 12 at [366]. It is conceivable that the Law Society Council and the Bar Council might reach different conclusions (which are not legally unreasonable) as to whether the same applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner as a solicitor or as a barrister: Uniform Rules, r 13(1)(m).

  2. Another is the potential for change in circumstances between successive applications by the same person to the Law Society Council and to the Bar Council. Such differences might include (i) the disclosures made by an applicant, and (ii) the information provided to the Bar Council as a consequence of the exercise of its powers of investigation given by s 95(1) of the Uniform Law.

  3. Secondly, the contention by Ms Picos that the power conferred on the Bar Council by s 44(1) of the Uniform Law is constrained by an earlier decision of the Law Society Council to grant or renew an Australian practising certificate to the same applicant ignores the ordinary meaning of the word “may”, “if used to confer a power, indicates that the power may be exercised or not, at discretion”: Interpretation Act 1987 (NSW), s 9(1). (The Interpretation Act, relevantly, applies to the interpretation of the Uniform Law: see Uniform Law, s 416(7).) A contrary intention as to the meaning of “may” in s 44(1) cannot be discerned from the text or context, including legislative purpose of ss 44 and 45 of the Uniform Law: Interpretation Act, s 5(2).

  4. Thirdly, the contention also ignores the express requirement in s 45(2), subject to s 45(4), that the Bar Council “must” not grant or renew an Australian practising certificate if it considers that the applicant is not a “fit and proper” person to hold such a certificate. As a general proposition the word “must” imports an obligation: Coffs Harbour and District Local Aboriginal Land Council v Lynwood [2017] NSWCA 317 at [8]-[9] (Basten JA). To read down the s 45(2) condition as being deemed to have been satisfied in relation to an application to the Bar Council for the grant of an Australian practising certificate, if the Law Society Council was previously satisfied that the applicant is a “fit and proper” person to hold a practising certificate as a solicitor, involves an unwarranted qualification to the terms of the obligation imposed on the Bar Council by s 45(2) of the Uniform Law.

  5. Contrary to the submissions of Ms Picos, the decision of the Law Society Council to renew her Australian practising certificate as a solicitor for the financial year 2019-2020 did not operate as a constraint on (i) the discretionary power of the Bar Council under s 44(1) of the Uniform Law to grant Ms Picos an Australian practising certificate as a barrister, nor (ii) the obligation imposed on the Bar Council by s 45(2) of the Uniform Law not to grant Ms Picos an Australian practising certificate as a barrister if the Bar Council concluded that she was not a fit and proper person to hold such a certificate.

Mutual recognition principle

  1. Ground 4(c) contends that the Mutual Recognition Act 1992 (Cth) as adopted in New South Wales by the Mutual Recognition (New South Wales) Act 1992 (NSW), required the Bar Council to grant Ms Picos’ application for an Australian practising certificate as a barrister. Reference was made to s 39 of the Mutual Recognition Act and Victorian Building Authority v Andriotis (2019) 268 CLR 168; [2019] HCA 22 at [12] and [26].

  2. Section 39 of the Mutual Recognition Act relevantly provides:

39 General responsibilities of local registration authorities

Facilitating operation of this Part

(1)    It is the duty of each local registration authority to facilitate the operation of this Part in relation to the occupations for which the authority is responsible, and in particular to make use of the power to impose conditions in such a way as to promote the mutual recognition principle.

Nothing in s 39 assists Ms Picos.

  1. Section 16 of the Mutual Recognition Act is also relevant. It provides that the “mutual recognition principle” as applying to occupations is as set out in Pt 3 of the Mutual Recognition Act. The mutual recognition principle is concerned with registration for an occupation in a state (the first State) being sufficient registration in another State (the second State). As explained by Kiefel CJ, Bell and Keane JJ in Victorian Building Authority v Andriotis at [24]:

The mutual recognition principle accepts that registration for an occupation in the first State is sufficient for registration in the second State, without any further requirements of the laws of the second State being fulfilled. Were it otherwise, the primary purpose of the MRA would be substantially undermined.

  1. The mutual recognition principle has no application to the present case which concerns successive applications within the same State to the applicable designated local regulatory authority in New South Wales for an Australian practising certificate to engage in legal practice as a solicitor and subsequently to engage in legal practice as a barrister.

No improper exercise of power

  1. Although proposed ground 4(e) contends that the Bar Council’s decision was not a bona fide exercise of power, this contention is not based on an allegation of absence of good faith in any of the three different meanings conveyed by the expressions “good faith” and “bad faith” as identified by Aickin J in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 232; [1981] HCA 74, and noted in the joint judgment in Commissioner of Taxation v Futuris Corporation Limited (2008) 237 CLR 146; [2008] HCA 32 at [12] (Gummow, Hayne, Heydon and Crennan JJ). For this reason, Futuris does not assist Ms Picos.

  2. Rather, the contention is based on the premise that the Bar Council’s decision was “false” because she already held an Australian practising certificate issued by the Law Society Council to 30 June 2020. As explained at [48]-[55] above, that premise is incorrect.

Procedural fairness

  1. Proposed ground 3 contends that Ms Picos was denied procedural fairness in the 2019 proceedings because she did not receive fair notice of the Bar Council’s oral application to have the summons struck out or the proceedings dismissed instanter and she was denied a fair hearing. This complaint is not a fair reflection of what occurred at the hearing on 16 December 2019.

  2. His Honour first dealt with the application by Ms Picos for leave to file the amended summons insofar as it sought interim relief and indicated why interim relief was inappropriate. His Honour then afforded Ms Picos the opportunity to address the basis of final relief sought in both the amended summons and the summons, including the declaration sought in par [5] of the summons – that she was a “fit and proper person”. In that context, his Honour raised with Ms Picos whether she sought to include an appeal under s 100 of the Uniform Law, to which Ms Picos maintained that she did not and that she sought the interim relief in the amended summons.

  3. His Honour offered Ms Picos the opportunity of obtaining an expedited hearing in the Equity Division if she amended her summons to include an appeal under s 100 of the Uniform Law, but Ms Picos declined that offer, asserting (incorrectly) that there is no statutory right of appeal against the Bar Council’s decision. Ms Picos confirmed that she was seeking the relief set out in the amended summons and that if his Honour was not prepared to grant the relief, her wish was for the summons to be dismissed. His Honour then offered Ms Picos time to consider what she wanted to do, noting that she should think about “the implications of what you have just asked me to do”.

  4. Ms Picos responded that the Court could dismiss the application for interim relief and make a timetable for the summons, however, she understood that senior counsel for the Bar Council contended that she was not entitled to any relief and the summons should be dismissed. His Honour corrected Ms Picos’ understanding of the Bar Council’s position, pointing out that whilst the Bar Council opposed the interim relief, it did not oppose directions being made so that an appeal by Ms Picos could be heard by the Court.

  5. There was further discussion between his Honour, senior counsel for the Bar Council and Ms Picos as to what should occur. His Honour explained to Ms Picos that the Bar Council’s position was that if she was not prepared to amend her summons to include an appeal under s 100 of the Uniform Law, in which event the matter would be referred to the expedition duty judge to fix a timetable for the matter to proceed, the Bar Council sought an order striking out the summons. The following exchange then occurred:

HIS HONOUR: Would you like a few minutes to think about your position?

PLAINTIFF: No, your Honour, I have more than enough time. I have been in this Court since 8 October … I am not willing to amend the amended summons dated 12 December any further. I understand that Mr Griffin’s position is that the summons ought to be dismissed. If your Honour is inclined to make that order, then so be it.

  1. There was no denial of procedural fairness in the conduct of the hearing on 16 December 2019.

Other grounds

  1. Proposed ground 1 does not arise as it relates to par [6] of the declaratory relief sought in the amended summons: see [41] above. In any event, for the reasons given above, the contention that the Bar Council cannot refuse to grant Ms Picos an Australian practising certificate is misconceived.

  2. Proposed ground 2 contends that the summons could not be struck out because it had already been filed and the proceedings were part-heard before Slattery J. This misunderstands the position. The grant of leave by Slattery J on 8 October 2019 for Ms Picos to file her summons did not preclude the Bar Council submitting at the hearing before Kunc J that the summons should be struck out if Ms Picos did not seek leave to amend the summons to include an appeal under s 100(1) of the Uniform Law. Nor was the matter before Slattery J part heard. His Honour had refused an application by Ms Picos for interlocutory relief on 15 October 2019.

  3. The summons was struck out by Kunc J on the basis that it should not proceed because, as framed, it was not brought under the statutory regime for review of the Bar Council’s decision, as set out in s 100 of the Uniform Law. In those circumstances, it was inimical to the just, quick and cheap resolution of the issues genuinely in dispute to permit the summons to stand. That finding was well-open to Kunc J. No reasonably clear error has been identified.

  4. Proposed ground 5 contends that his Honour erred in failing to transfer the 2019 proceedings to the Common Law Division. This incorrectly assumes that Ms Picos made such an application before his Honour, when she did not.

  5. Proposed ground 6 contends that the 2019 proceedings were infected by contempt, referring to three matters: (a) the second and third medical reports dated 17 (sic) and 23 October 2019 obtained from Dr Phillips were created during the course of the 2019 proceedings to defeat Ms Picos’ summons; (b) the Bar Council’s resolutions of 5 and 9 December 2019 were created after Ms Picos filed her summons on 8 October 2019 and were “false on their face”; and (c) an alleged breach of the suppression orders made in the 2015 proceedings by the Bar Council identifying Ms Picos as “Z” to unfairly label her a “paranoid schizophrenic” to the judge and others.

  6. As to (a) and (b) above, there is no material which supports these allegations. As to (c) above, Ms Picos identified herself in her application to the Bar Association as the person referred to as “Z” in the 2015 proceedings. There is no substance in any of these complaints.

Conclusion

  1. Leave to appeal should be refused. Contrary to the submissions of Ms Picos, none of the decisions of Kunc J to (i) remove the Commonwealth Attorney-General as a party, (ii) refuse leave to file the amended summons, and (iii) strike out the summons with costs, raise an issue of principle, question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Cheng v Motor Yacht Sales Australia Pty Ltd t/as the Boutique Boat Company (2022) 108 NSWLR 342; [2022] NSWCA 118 at [15].

APPLICATION FOR JUDICIAL REVIEW

  1. The relief sought by Ms Picos in the amended summons filed 24 May 2023 is:

  1. an extension of time (if required);

  2. an order in the nature of certiorari quashing the purported resolutions (decisions) of the Bar Council; and

  3. a declaration that the purported resolutions of the Bar Council are false, including, on the basis that Ms Picos held an Australian practising certificate issued in the State of New South Wales to at least 30 June 2022.

  1. It is not in dispute that if an extension of time is granted, the Bar Council’s decision to refuse Ms Picos’ application for a practising certificate is subject to the Court’s supervisory jurisdiction pursuant to s 69(1) of the Supreme Court Act 1970 (NSW), including orders in the nature of certiorari quashing the legal effect of an act or decision which has been reached in breach of a condition of its validity: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580, 595; [1992] HCA 10. To obtain relief, which is discretionary, Ms Picos must demonstrate that the Bar Council committed jurisdictional error in the exercise of its power to refuse to issue a practising certificate, or, arguably, that there was an error of law on the face of the record: Christian Community Ministries v Minister for Early Education and Early Learning Ltd [2023] NSWSC 272 at [6] (Basten AJ).

  2. A decision-maker falls into jurisdictional error, “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]; Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [23]-[24] (Kiefel CJ, Gageler and Keane JJ). One recognised form of jurisdictional error is the failure to accord procedural fairness during a hearing: Kirk at [60]. Such a failure is susceptible to correction as jurisdictional error: Re Refugee Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].

  3. Identifying an error of law on the face of the record involves two steps: first, it is necessary to identify legal error and secondly, that error must be located within, and thus identified by reference to, the “record” of the decision maker. The “record” includes the reasons expressed by the court or tribunal for its ultimate determination: s 69(4). However, as Basten AJ explained in Christian Community Ministries v Minister at [7]-[8], the concept of error of law on the face of the record is obscure in relation to decision-makers, not being courts or tribunals. No argument was advanced by the parties, and it is not necessary to decide whether the Bar Council is a “tribunal” as referred to in s 69(3) and (4) of the Supreme Court Act. Even if it is permissible to have regard to the Bar Council’s reasons for decision (s 69(4)), as distinct to the decision itself, Ms Picos has not demonstrated any error of law by reference to the reasons for the Bar Council’s decision.

Grounds of review

  1. It is contended that the Bar Council’s decision should be quashed on the following grounds:

  • Ms Picos held an Australian practising certificate issued by the Law Society of New South Wales to at least 30 June 2022 (ground 1);

  • the Bar Council’s decision was unlawful (ground 2), it was made without power or not in the proper exercise of power (ground 3), it was “false on its face” (ground 4), it was void ab initio (ground 6), and it is a fraud (ground 7);

  • the Bar Council’s decision was made with a lack of procedural fairness (ground 5); and

  • by reason of grounds 1 to 7, the Bar Council’s decision “is an obvious instrument of human trafficking and murder whereby the plaintiff’s education and qualification as an Australian barrister are wrongly denied…” (ground 8).

  1. Neither the grounds of review nor the submissions of Ms Picos distinguished between asserted jurisdictional error or error of law on the face of the record.

  2. Grounds 1, 2, 3, 4, 6 and 7 are related. These grounds may be taken to assert jurisdictional error on the basis that the Bar Council misapprehended or disregarded the limits of its functions or powers to refuse to issue a practising certificate, given that Ms Picos already held a practising certificate as a solicitor. Nevertheless, the contention that the Bar Council’s decision is tainted by jurisdictional error, fraud or error of law on the face of the record or is void ab initio is misconceived: see [46], [48]-[55] above.

  3. Ground 5 alleges a failure by the Bar Council to afford Ms Picos procedural fairness. The content of the procedural fairness to be afforded to Ms Picos in her application for an Australian practising certificate as a barrister is to be determined by the applicable statutory regime: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [34] (Bell, Gageler and Keane JJ) citing Kioa v West (1985) 159 CLR 550 at 584; [1985] HCA 81.

  4. Addressing the particulars of this complaint, ground 5(a) alleges that the Bar Council’s decision was without power or not a proper exercise of power. This contention has been addressed and rejected at [60]-[61] above. It otherwise has no relevance to the asserted denial of procedural fairness.

  5. Grounds 5(b) and (c) allege that the Bar Council’s consideration of “fitness allegations outside of the medical grounds” constitutes a denial of procedural fairness. This complaint is directed to the Bar Council’s consideration of Ms Picos’ involvement in litigation to which she was party, including the adverse credit finding made against her in one proceeding. There was no denial of procedural fairness: the involvement of Ms Picos in such litigation was a matter disclosed by her in her application to the Bar Association for the grant of a practising certificate.

  6. Ground 5(e) alleges a denial of procedural fairness on the ground that the Bar Council’s medical expert changed his opinion without reassessing Ms Picos. That Dr Phillips changed his opinion without assessing Ms Picos again did not constitute a denial of procedural fairness by the Bar Council. After his initial opinion, based solely on his assessment of Ms Picos, Dr Phillips was provided with additional material and based on that additional material reconsidered his opinion in his first report. It is not in dispute that the additional material provided to Dr Phillips had been provided by Ms Picos to the Bar Association or to Ms Picos from the Bar Association. Further, Ms Picos was afforded the opportunity to consider and respond to the second and third reports of Dr Phillips which were provided to her on 23 October 2019. She did so by providing to the Bar Council a report of Dr Klug, her treating psychiatrist, together with an additional report in response to questions raised by the solicitors for the Bar Council. There was no denial of procedural fairness.

  7. Grounds 5(d) and (f) allege that the medical reports obtained from Dr Phillips dated 17 (sic) October and 23 October 2019, and the Bar Council resolutions of 5 and 9 December 2019 “were created to defeat” Ms Picos’ summons filed on 8 October 2019, which is a serious contempt. This is a similar complaint to grounds 6(a) and (b) of the draft notice of appeal, which have been addressed at [73] above. The unparticularised allegation of contempt by the Bar Council is unsubstantiated by any material. Insofar as the allegation is one of bad faith, it is unsupported by any evidence.

Conclusion

  1. Given that none of the grounds of review have been established, ground 8, which relies upon the success of grounds 1 to 7, does not arise. The application for relief by way of judicial review should be dismissed.

  2. One further matter should be mentioned for completeness. Even if jurisdictional error in the exercise of the Bar Council’s power, or, arguably, error of law on the face of the record had been demonstrated, relief under s 69 of the Supreme Court Act is discretionary and, in my view, would have been withheld in this case in the exercise of the Court’s discretion: Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328.

  3. That is because (i) Ms Picos had an available right of appeal under s 100 of the Uniform Law to challenge the Bar Council’s decision on the merits but did not exercise that right, (ii) a timely appeal could have been dealt with as an expedited matter in the Equity Division before the financial year ending 30 June 2020 had passed, and (iii) given the significant delay in commencing the judicial review proceedings, the grant of a practising certificate as a barrister for the financial year ending 30 June 2020 is now hypothetical and moot.

REVIEW OF DECISION OF KIRK JA

Background

  1. Order 4 made in the 2015 proceedings on 1 December 2015 provided:

Pursuant to the Court Suppression and Non-publication Orders Act 2010, prohibit the disclosure of information tending to reveal the identity of the applicant, including by disclosure of information which might indirectly lead others to identify the applicant.

  1. By notice of motion filed 17 January 2022, which she later sought to amend, Ms Picos brought contempt charges in the 2015 proceedings alleging that the Attorney-General of New South Wales and various officers of the Bar Council and its legal representatives (collectively, the Bar Association respondents) had breached the suppression order made in the 2015 proceedings, during the process of considering her application for a practising certificate in 2019 and in the 2019 proceedings.

  2. The relief sought in the 17 January motion also included a declaration that order 6 made by Kunc J on 16 December 2019 was a “mistake” (par 2), an extension of the suppression and non-publication orders made by Slattery J on 10 October 2019 as amended on 11 October 2019 (par 3), a declaration that the Bar Council’s decision “is false on the basis that [Ms Picos] was and is the holder of an Australian practising certificate” (par 5), a declaration that the Bar Council had failed to observe procedural fairness in its resolution of 5 or 9 December 2019 (par 6), and orders in the nature of certiorari in relation to the decision of Slattery J of 15 October 2019 (par 7), and the decision of Kunc J of 16 December 2019 (par 8).

  3. On 14 February 2022 Registrar Riznyczok made orders granting leave to Ms Picos to file a further amended motion on the condition that various paragraphs be omitted from the 17 January motion (prayers 2-8 and proposed prayer 1B), and that two separate amended motions be filed and served in relation to the relief seeking to charge (i) the Attorney-General of New South Wales and (ii) the Bar Association respondents with contempt of this Court based upon the suppression order made on 1 December 2015 in the 2015 proceedings.

  4. Ms Picos applied by notice of motion filed 9 March 2022 to set aside the decision of Registrar Riznyczok of 14 February 2022 so far as it related to prayers 2 to 8 of her 17 January motion. She also sought declaratory relief, including a declaration that she is a fit and proper person to hold a practising certificate. The Attorney-General sought by motion filed 30 March 2022 that the contempt charges be summarily dismissed or struck out. The Bar Association respondents also sought by motion filed 25 March 2022 that the proceedings against those respondents be summarily dismissed or struck out.

  5. On 22 July 2022, Kirk JA determined three motions in the 2015 proceedings arising out of the contempt allegations: Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131. His Honour summarily dismissed parts of the applications by Ms Picos and struck out other parts, leaving part of one application to proceed to hearing. He also dismissed the applicant’s motion seeking to set aside the decision of Registrar Riznyczok so far as it relates to prayers 2 to 8. The contempt proceedings have since been either dismissed or discontinued.

  6. On 8 March 2023, Kirk JA made further orders in the 2015 proceeding, relevantly, that order 4 made on 1 December 2015 and all subsequent variations of that order are revoked: Z v Mental Health Review Tribunal (No 3) [2023] NSWCA 38.

Review of decision of single judge of appeal

  1. Section 46(4) of the Supreme Court Act provides that the Court of Appeal may discharge or vary a judgment given by a judge of appeal, or an order made or direction given by a judge of appeal. This provision is conventionally referred to as empowering the Court, constituted by three judges, to “review” an interlocutory order made by a single judge: Wentworth v Wentworth (1994) 35 NSWLR 726 at 729 (Mahoney JA, Handley JA agreeing).

  2. An application for review pursuant to the Supreme Court Act, s 46(4) is not an appeal: Collier v Lancer [2013] NSWCA 185 at [19]. An applicant for review must show that there has been an error of principle in the exercise of the power or that the decision was plainly wrong: Transglobal Capital Pty Ltd v Yolarno Pty Ltd (2004) 60 NSWLR 143; [2004] NSWCA 136 at [6]; Patrick v Howorth [2002] NSWCA 285 at [10].

  3. Further, as this Court noted in Reinhart v Welker (2011) 93 NSWLR 311; [2011] NSWCA 403 at [48], the applicant seeking a s 46(4) review has a heavy burden to discharge in order to have a judge of appeal’s order set aside: see also Collier v Lancer at [20]; Jaffari v Grabowski [2013] NSWCA 114 at [27].

Orders made by Kirk JA

  1. The orders made by Kirk JA on 22 July 2022 relevantly included order 1 dismissing prayers 4-10 of Ms Picos’ motion filed 9 March 2022. Order 2 concerned dismissal of the contempt application against the Attorney-General of New South Wales. Order 3 concerned dismissal of certain allegations in the statement of charge filed by Ms Picos on 15 March 2022 against certain Bar Association respondents, and order 4 concerned striking out certain matters in the statement of charge filed by Ms Picos on 15 March 2022, to the extent that they were not summarily dismissed. Order 5 dealt with costs. Order 6 listed the matter for further hearing before his Honour for review of the suppression order made in the 2015 proceedings.

  2. Nothing in Ms Picos’ submissions suggest that she is seeking to review orders (2)-(6) made by Kirk JA on 22 July 2022. As indicated, the contempt charges have since been dismissed or discontinued, and the suppression order made by this Court in the 2015 proceedings and all variations have since been revoked, in circumstances where Ms Picos indicated her consent to that course.

  3. Turning to the challenge to order (1), it is plain that Kirk JA was correct to dismiss Ms Picos’ application to set aside the decision of Registrar Riznyczok of 14 February 2022 insofar as it related to prayers 4-8 of her notice of motion filed 17 January 2022, including the proposed amendments to that motion.

Prayers 4, 5 and 6 of 17 January motion

  1. Each of prayers 4, 5 and 6 of the 17 January motion sought declaratory relief. Kirk JA gave three reasons at [67]-[69] why the Registrar’s decision to reject these prayers was correct. It is sufficient to refer to the third reason, being that the declarations cannot be sought in the 2015 proceedings for the reasons given by Kirk JA at [63]-[64]:

[63]   It was misconceived to seek relief relating to separate and subsequent proceedings through this Court of Appeal proceeding, which was resolved seven years ago. It is one thing to seek to bring contempt charges in this proceeding based on an order made by this Court in this matter. It is quite another to seek to vary or overturn orders made by the Supreme Court in other proceedings, involving different defendants.

[64] This proceeding was brought as an appeal from a decision of the Supreme Court, pursuant to s 101 of the Supreme Court Act 1970 (NSW). It is an appeal from a specific decision. The appeal from that decision has been determined and is at an end. The Suppression Order has some ongoing effect and thus is capable of being varied or rescinded by the Court. It, like any other imperative order, may found a charge of contempt for non-compliance. But the potential reinvigoration of this appeal matter by way of filing charges of contempt based on the Suppression Order does not give the applicant the right to seek relief not directly connected to the appeal heard in 2015. As counsel for the Attorney-General aptly put it in written submissions, these proceedings “do not supply the Applicant with a perpetual vehicle through which she may agitate applications for interim and final relief relevant to substantively and procedurally distinct proceedings of which this Court is not otherwise seised”.

  1. There is no error in upholding the decision of the Registrar that these prayers were inappropriate.

Prayers 7 and 8 of 17 January motion

  1. These prayers sought “an order in the nature of certiorari” in relation to the decisions of Slattery J on 15 October 2019 and Kunc J on 16 December 2019. Kirk JA found at [75] that the Registrar was correct to strike out prayers 7 and 8, which sought relief which could not be granted for the reasons he gave at [72]-[74]. In short, the Court did not have power to grant certiorari in respect of a decision of a judge of the Supreme Court acting in their capacity as such: Penson v Titan National Pty Ltd [2015] NSWCA 404 at [8]. There is no error in that decision.

Prayers 9 and 10 of 17 January motion

  1. For completeness, I will address prayers 9 and 10 of the 17 January motion. Prayer 9 sought an order that the suppression and non-publication order of 1 December 2015 be lifted and prayer 10 sought “further or other order as the court deems fit”. Kirk JA correctly noted that these prayers depended on the success of the review application in prayer 4 and, given the outcome in relation to that prayer, these prayers should also be dismissed: at [80]. Again, there is no error in that decision. Nor did his Honour err in making order 6 listing the matter for further hearing for review of the suppression and non-publication order.

Other matters

  1. It is not necessary to address seriatim each of the complaints in Ms Picos’ written submissions on the motion. For completeness, however, I will briefly indicate why there is no substance in her complaints asserting unfairness in the hearing before by Kirk JA.

  2. It is said that his Honour made arbitrary assessments of evidence and did not provide adequate time for the hearing. That is not correct. His Honour heard submissions from the parties to the motion over the course of one day on 5 May 2022 and delivered detailed and comprehensive reasons for judgment on 22 July 2022.

  3. It is said that his Honour erred because the evidence “was not on/filed/directed to be filed for the final hearing”. Again, that is incorrect. Prior to the hearing on 5 May 2022, directions had been made that Ms Picos file and serve any affidavit evidence by 12 April 2022 and written submissions by 26 April 2022, and she did so by filing her affidavit on 8 April 2022 and written submissions on 11 April 2022.

  4. It is said that his Honour erred in the order in which he considered the three issues on 5 May 2022 and should have first addressed the issue of summary dismissal of the contempt charges against the Bar Association respondents. There is no basis for the suggestion that consideration of the three issues in an alternative order would have changed the outcome of the proceeding.

  5. It is said that it is “absurd” to say that Ms Picos ought to file different or separate processes, rather than her 17 January motion in the 2015 proceedings. For the reasons given by Kirk JA at [63]-[65] in relation to prayers 2 and 3 of the 17 January motion, [67]-[69] in respect of prayers of 4, 5 and 6 of the 17 January motion, and [72]-[75] in respect of prayers 7 and 8 of the 17 January motion, it was inappropriate for Ms Picos to seek the relief sought in the 17 January motion in the 2015 proceedings.

  6. It is said that his Honour erred because he did not properly remit the proceedings to a Division under s 51(2)(b) of the Supreme Court Act. This complaint is misconceived. Section 51(2)(b) provides that where proceedings are commenced in the Court of Appeal but are under the Act or the Supreme Court Rules 1970 (NSW) assigned to a Division, the Court of Appeal may, on application, or by its own motion, order that the proceedings be remitted to a Division. Contrary to the premise of Ms Picos’ submission, the 2015 proceedings were properly commenced in the Court of Appeal and were not otherwise assigned to a Division.

  7. It is said that his Honour failed to apply s 63 of the Supreme Court Act in failing to completely and finally determine all matters in controversy between the parties. Reference to s 63 does not assist Ms Picos. His Honour did not fail to deal with all issues before him on the motions heard on 5 May 2022. As Kirk JA observed at [63]-[64], what Ms Picos sought to do by her 17 January motion was to introduce new claims in the 2015 proceedings unrelated to the subject matter of the concluded appeal.

Conclusion

  1. The application to review the orders made by Kirk JA on 22 July 2022 should be dismissed.

Conclusion and orders

  1. Each of the applications by Ms Picos has failed and there is no reason why costs should not follow the event: UCPR, r 42.1.

  2. I propose the following orders:

2023/132537 (Leave to appeal)

  1. Extend the time for filing of the summons seeking leave to appeal to 26 April 2023.

  2. Refuse leave to appeal.

  3. Summons filed 26 April 2023 is dismissed with costs.

2023/132560 (Summons)

  1. Extend the time for filing of the summons to 26 April 2023.

  2. Amended summons filed 24 May 2023 is dismissed with costs.

2015/291241 (s 46(4) – Review application)

  1. Prayers 1, 2 and 7 of the applicant’s notice of motion filed 1 August 2022 are dismissed with costs.

  1. LEEMING JA: I agree with Gleeson JA.

  2. PAYNE JA: I agree with Gleeson JA.

**********

Decision last updated: 13 September 2023

Cases Citing This Decision

0

Cases Cited

39

Statutory Material Cited

10

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39