Picos v The Council of NSW Bar Association

[2019] NSWSC 1382

Supreme Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

8, 9 & 11 October 2019

Date of orders:

15 October 2019

Decision date:

15 October 2019

Jurisdiction:

Equity - Duty List

Before:

Slattery J

Decision:

Parties directed to bring in Short Minutes of Order to give effect to these reasons. Costs reserved.

Catchwords:

PROFESSIONS – lawyers – barristers – practising certificates – plaintiff admitted as legal practitioner in the Supreme Court of NSW – plaintiff completed Bar Practice Course and has applied to the defendant for a practising certificate – defendant has not issued a practising certificate and continues to conduct investigations into the plaintiff’s fitness to practice as a barrister – plaintiff seeks forthwith the grant of practising certificate as a barrister – defendant resists the grant of relief – Court denies relief sought by plaintiff.

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010, s 7

Legal Profession Uniform Admission Rules 2015, rr 23, 24

Legal Profession Uniform General Rules 2015, rr 13(1), 111

Legal Profession Uniform Law (NSW), ss 12, 43, 45, 95

Supreme Court Act 1970, s 66(4)

Mental Health Act 2007

Cases Cited:

Roulstone v NSW Bar Association [2015] NSWSC 5

Category:

Procedural and other rulings

Parties:

Plaintiff: Connie Picos
Defendant: The Council of NSW Bar Association

Representation:

Counsel:
Plaintiff: in person
Defendant: P. Griffin SC

Solicitors:
Plaintiff: in person
Defendant: R. Cameron of Hicksons solicitors.

File Number(s):

2019/313902

Publication restriction:

Yes. Case suppressed.

Judgment

1. In February 2017 the plaintiff, Ms Connie Picos was admitted as a legal practitioner to the Supreme Court of New South Wales under Legal Profession Uniform Admission Rules 2015 (“Uniform Admission Rules”). Since then she has practised as a solicitor.

2. In September 2019, Ms Picos successfully completed a course for new readers coming the Bar. The course, the Bar Practice Course, was conducted under the authority of the defendant, the Council of the Bar Association of New South Wales (“the Bar Council” or “the defendant”). The Bar Council carries out many of its functions through the agency of the Bar Association of New South Wales, which is referred to in these reasons as “the Bar Association”.

3. Ms Picos is ready to start practice at the Bar. She has taken Chambers. She has applied to the Bar Council for a Practising Certificate. She has arranged to read with more senior members of the Bar. She was expecting to have a Practising Certificate issued to her on 4 October. But the defendant did not issue one. Instead, it indicated to her that it would continue to conduct investigations into her fitness to practice.

4. Her Summons seeks as final relief, a declaration that she is a fit and proper person to hold a practising certificate. She seeks interim relief in the following terms:

1. Upon the plaintiff giving the undertaking below the plaintiff forthwith be granted a practising certificate as a 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.”

5. The defendant resists the grant of either the interim or the final relief Ms Picos claims.

6. The matter came into the Equity duty list when leave was granted to Ms Picos to file her Summons on 8 October 2019. The matter was listed for further argument on 9 October 2019 and briefly re-listed on 11 October 2019. The Court indicated it would give judgment on 14 October 2019. But the full transcript of the proceedings was not available by then, so judgment was deferred to 15 October 2019. The plaintiff appeared in person. Mr Griffin SC appeared on behalf of the defendant, instructed by Mr R. Cameron of Hicksons solicitors.

Background to the Proceedings – August to October 2019

7. Ms Picos applied for a reader barrister Practising Certificate on 1 August 2019. At about the same time, she enrolled for the Bar Practice Course conducted by the Bar Association.

8. Ms Picos currently holds a Practising Certificate as a solicitor. On 6 August 2019, the Law Society of NSW issued a certificate of her good standing as a solicitor. Ms Picos provided this to the Bar Association in support of her application for a Practising Certificate. The Certificate of good standing stated that there were no matters, or allegations, against her that would affect her capacity for professional practice as a solicitor. Her solicitor’s Practising Certificate authorises her to engage in supervised legal practice as an employee of a law practice.

9. She applied for, and was granted a, Certificate for Professional Indemnity Insurance as a reader barrister from 12 August 2019. And on 30 September 2019, she was informed by the Bar Association’s Professional Development department that she had successfully completed the Bar Practice Course.

10. The plaintiff has a history of mental illness that need only be detailed to a limited extent in these reasons. That history was thoroughly considered when she was admitted by the Legal Profession Admission Board (“the Board”) before she was admitted to practice in February 2017. Relevant details of her medical history are set out later in this narrative.

11. From early in the plaintiff’s communications with the Bar Association, she voluntarily offered her undertaking that should a Practising Certificate be issued her, she would agree to be regularly psychiatrically assessed and to consult a treating psychiatrist. She has for a number of years consulted a treating psychiatrist, Dr Klug, who has reviewed her medical condition on periodic basis since about mid-2017. This was done, in part, in conformity with the requirements of her solicitors’ Practising Certificate.

12. On 22 August 2019, Ms Picos received a telephone call from the Bar Association advising her that a Practising Certificate would not be granted to her by 2 September 2019, on the basis that she was required to undergo a medical examination. By the time she received this notification she had already paid for the Bar Practice Course. She decided to continue to undertake the course, as she was not by then entitled to a refund of the course fees of $4,200.

13. She communicated with the NSW Bar Association in an endeavour to persuade the Bar Council to grant her a Reader Barrister Practising Certificate, in time for her to commence practise at the conclusion of the course.

14. After an exchange of emails between Ms Picos and the Bar Association, on 27 August 2019, its Executive Director, Mr Greg Tolhurst, wrote to Ms Picos to communicate that the Bar Council formally required her to be medically examined before it considered the grant of a Practising Certificate to her. His letter explained that the Bar Council is of the view it “should obtain independent advice on the matter and resolve that you attend on Dr [Jonathan] Phillips to be examined”. The Bar Association’s letter attached a notice under Legal Profession Uniform Law (NSW) (“Uniform Law”), s 95(1) requiring Ms Picos to be medically examined by Dr Phillips on 19 September 2019.

15. The plaintiff undertook the examination by Dr Phillips. Ms Picos indicated in her evidence that she felt “uncomfortable” with aspects of Dr Phillips’ examination for a number of reasons she identified. But the outcome of the examination was favourable. In his report dated 23 September 2019, Dr Phillips recommended that Ms Picos be awarded a Practising Certificate without conditions of compulsory disclosure. Dr Phillips also recommended that she undertake a course of psychiatric surveillance/treatment with Dr Klug or another psychiatrist of her choice, and that she should agree to be reviewed by a psychiatrist appointed by the Bar Association in approximately six months, and thereafter if thought appropriate.

16. Ms Picos explained in her oral submissions, that although she felt she was entitled to decline to be examined by Dr Phillips, for the reasons she developed in argument, she decided to consent to that course. She said she ultimately agreed to an examination because of the pressure of the situation that she was in; she having already undertaken the Bar Practice Course and having left employment as a solicitor and taken a place in Chambers.

17. Soon after 23 September 2019, Mr Tolhurst confirmed to Ms Picos that Dr Phillips’ report had been received and would be placed before the Bar Council. Mr Tolhurst confirmed to Ms Picos on 27 September that the Bar Council would be meeting on 3 October 2019, to consider her application for a practising certificate. Ms Picos hoped that her application would be considered favourably on that occasion.

18. But on Friday, 4 October 2019, Mr Tolhurst wrote to her again, reporting that the Bar Council had met the previous day and that her matter was “still under consideration by the Bar Council and we will get back to you”.

19. This communication not unnaturally left Ms Picos in a state of uncertainty. She was in Chambers. She had passed the Bar Practice Course. She had arranged her tutors. But she did not know when, if at all, a Practising Certificate would be issued to her. It was in that context, on Tuesday 8 October 2019, just after the long weekend, she commenced these proceedings in the Equity Duty List, seeking the relief identified.

20. The plaintiff explained in her evidence, and elaborated in her oral submissions, that she is suffering damage as a result of the failure of the Bar Council to issue a Practising Certificate to her. She summarised that the damage to her from this situation comes under four heads: financial damage; relationship damage; reputation damage; and psychological damage.

21. Ms Picos says that her reputation is suffering potentially irreparable harm because her peers from the Bar Practise Course have already launched their careers at the Bar and are actively practising, whereas she is not in practice. She says that this has led to her isolation and social exclusion. She says that she is suffering economic loss, from not being able to practise and take clients, and that she is missing out on opportunities to speak and write as a barrister.

22. The situation is leading to her whole experience of becoming a barrister being a very negative one, when she hoped it would be a new and positive psychological chapter in her life. The relationship damage that the plaintiff identifies is with her fellow barristers in Chambers and the two people that have agreed to be her tutors, as well as in her domestic relationship with her fiancé.

23. The plaintiff says, and the Court accepts, that the stresses on her at this time are sufficiently strong to have resulted in her suffering physical symptoms. The Court accepts that the plaintiff is encountering these disadvantages at the present time. Mr Griffin SC, on behalf of the Bar Association, did not contend otherwise. Indeed the plaintiff’s genuine distress at the situation in which she finds herself can be readily inferred from the fact that she has bought these proceedings.

24. In his early submissions, Mr Griffin SC indicated that the next scheduled meeting of Bar Council would be in the last week of October 2019. But by the time that the matter was relisted on 11 October, Mr Griffin was able to indicate that if further communications were to take place between Bar Council and Dr Phillips, that once a response was received from Dr Phillips, Bar Council would be able to meet at short notice, specifically to deal with Ms Picos’ application for a Practising Certificate.

25. Ms Picos did not contend that Bar Council is acting otherwise than diligently and in good faith, in considering her application. She clearly wants her application dealt with as expeditiously as possible.

26. The plaintiff provided a comparative table to demonstrate what her present position was: being entitled to practice as an employed solicitor compared to what she could do as a reader barrister. Mr Griffin SC argued that she was in a position to find work as an employed as a solicitor, if she chose. Whilst that is theoretically correct, the practical dimension here is that in the short term, she is in a situation of immense ambiguity. It can be accepted that taking employment as a solicitor is not an easy option for her. For such reasons, and for her psychological wellbeing, objectively speaking, this is a case that indicates as expeditious a decision by the Bar Council, as can be made in the circumstances. Mr Griffin SC submitted that this is the Bar Council’s objective.

Some Features of the Plaintiff's Mental Health History

27. As the Court has earlier indicated full analysis of the plaintiff’s mental health history is not necessary given the conclusions which the Court has come to below in relation to the correct legal approach in this case. But some appreciation of that history is nevertheless important.

28. The plaintiff applied for admission as a legal practitioner in September 2016. She disclosed a history of having been treated for mental illness. She gave the Legal Profession Admission Board ("the Board") pursuant to the Uniform Admission Rules, r 23 a report of her treating consultant psychiatrist, Dr Matthew Cullen. Dr Cullen’s report concluded that Ms Picos had suffered from a mental illness of a psychotic nature which was not consistently treated between 2012 and 2015, but has been treated since. He concluded that Ms Picos remained symptom-free and was compliant with her medication and was regularly attending appointments with Dr Cullen and other members of the treating team at his hospital. Dr Cullen formed the view that with her current regimen that no additional treatment was required and that he did not foresee any issues with her performing the various tasks required of a lawyer. Dr Cullen was her treating doctor.

29. The Board referred her for a medical assessment to Dr Bruce Westmore who concluded that based on her history and the reports from her treating psychiatrist, Dr Cullen that her provisional diagnosis was of a schizophrenic illness – paranoid type – late-onset, but which was currently in remission. Based on her clinical presentation and the reports of her treating psychiatrist, Dr Westmore was of the opinion that the plaintiff’s mental illness presented only a "low/non-existent" risk. The Board approved her admission and she was admitted to this Court as a legal practitioner on 17 February 2017. She then applied for a practising certificate.

30. The Law Society proposed the issue of a practising certificate which required her to establish a therapeutic relationship with a treating psychiatrist, for her to undertake such treatment at her expense and to authorise the treating psychiatrist to inform in the event of her failure to comply with clinical advice. A number of other machinery provisions about notification were also included.

31. By letter dated 3 May 2018, the plaintiff’s treating psychiatrist Dr Peter Klug requested the removal of the conditions for her practising certificate on the basis that she was "well and is unimpaired", is "compliant with treatment", he has a "good professional relationship with her" and she intends to continue seeing me even if the conditions are removed" and she "displays a high level of personal responsibility for the management of her mental health". He expressed the view that the conditions which had been placed upon her practising certificate caused her unnecessary stress in obtaining employment.

32. The conditions were removed from her practising certificate. At the time of her present application it is not in contest that she was compliant with voluntary undertakings to continue treatment with Dr Klug.

33. Ms Picos was unaware that Dr Phillip’s report had been received by the Bar Council until the matter came to Court on 8 October 2019. The report was given to her then. She expressed her disagreement with aspects of it. Dr Klug, her current treating psychiatrist had not seen Dr Phillip’s report. Nor had he an opportunity to examine her at the time of the hearing before me.

34. Dr Phillip’s report gives a history of the course of her mental illness and treatment, which is consistent with the materials available to the Court from Dr Cullen and Dr Westmore. She had a history of suffering domestic violence at the hands of her father. After her mother’s death from cancer in 2009 and falling into an abusive and violent relationship with an older man which broke up, her mental status declined and she was admitted under the Mental Health Act to a number of treatment centres. But having obtained a law degree in 2012, she re-directed her life in 2016 and completed her College of Law studies before gaining admission to practice.

35. Dr Phillips was of the view that Ms Picos had an emotionally triggered delusional disorder, which would have been of short duration but for the fact that it was not recognised and she was not properly treated. Dr Phillips then concluded:

“I believe currently that there is no reason why Ms Picos should not be offered a practising certificate as a barrister, provided she has passed all parts of her formal training, and I do not think that she should be penalised because of her past history of mental disturbance, this including her having to disclose her mental history to others. To do so will colour the perception of others, and is likely to make it very difficult for her to relate with superiors and peers, and to build her practice”.

36. He answered a number of questions from Bar Council more specifically. He did not recommend that any conditions be placed on any Practising Certificate that would be issued to the plaintiff. But his opinion was it would be to her benefit “if she were to accept voluntary undertakings to continue to attend a psychiatrist for treatment” together with an episodic review by an independent second psychiatrist. Ms Picos has submitted that she is quite prepared to give these voluntary undertakings.

37. The Bar Council wishes to put further questions to Dr Phillips based upon him being given information contained in her application for a Practising Certificate. She resists that course and says that she is now fit for practise, and an interim practising certificate should be issued to her.

Analysis of the Parties’ Contentions

38. The plaintiff’s principal contention is that she is a solicitor of good standing and that none of the available medical evidence is a basis to suggest that she is not a fit and proper person to hold a practising certificate. She accepts that she bears the onus of showing that she is a fit and proper person to be granted a practising certificate but says that she can satisfy that in this case, and that an interim practising certificate should be granted to her.

39. This is a matter which arose in the duty list. It is not one in which extensive examination of the regime for the admission of persons to practise and the issue of practising certificates is required. But some particular provisions of the applicable law should be identified. Under the Uniform Law, s 6 the plaintiff is already an “Australian lawyer”, because she is admitted to the Australian legal profession in this jurisdiction. She is also an “Australian legal practitioner”, as she holds a current Australian practising certificate, from the Law Society. She is entitled under the Uniform Law to hold herself out as a solicitor (under Uniform Law, s 12) and is entitled by Uniform Law, s 43 to practise as an Australian legal practitioner in this jurisdiction. The Bar Council, as her designated local regulatory authority, has received her application for the grant of an Australian practising certificate as a barrister in respect of the current financial year under Uniform Law, s 44.

40. The Bar Council must then comply with Uniform Law, s 45 in determining whether it should grant her a practising certificate. Section 45 provides as follows:

“45   Prerequisites for grant or renewal of Australian practising certificates in this jurisdiction

1. The designated local regulatory authority may grant or renew an Australian practising certificate only if it is satisfied that the applicant—

   (a)   is an Australian lawyer; and

   (b)   if required by this Law to have professional indemnity insurance—has, or will have on or before the grant or renewal, professional indemnity insurance in accordance with this Law and the Uniform Rules; and

   (c)   has indicated in the application that he or she does not hold (and he or she 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 under this section.

Note

Section 474(2) contemplates that jurisdictional legislation may fix fees for payment in relation to any function of the Supreme Court, the designated tribunal or a local regulatory authority under this Law or the Uniform Rules. This could, for example, extend to processing an application for a practising certificate.

1. Subject to subsection (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.

2. In considering whether a person is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to the matters specified in the Uniform Rules for the purposes of this section.

3. 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.

Note

A person who has been refused the grant or renewal of a certificate is a disqualified person—see the definition of disqualified person in section 6.”

41. The Uniform Law provides for the designated local regulatory authority to require the applicant to do various things in order to assist its consideration of the grant of a practising certificate. Uniform Law, s 95 provides as follows:

1. Consideration and investigation of applicants or holders

2. In considering whether or not to grant, renew, vary, suspend or cancel a certificate, the designated local regulatory authority may, by notice to the applicant or holder, require the applicant or holder—

   (a)   to give it specified documents or information; or

   (b)   to be medically examined by a medical practitioner nominated by the designated local regulatory authority; or

   (c)   to provide a report from a Commissioner of Police as to whether the applicant or holder has been convicted or found guilty of an offence in Australia; or

   (d)   to cooperate with any inquiries by the designated local regulatory authority that it considers appropriate.

3. A failure to comply with a notice under subsection (1) by the date specified in the notice and in the way required by the notice is a ground for making an adverse decision in relation to the action being considered by the designated local regulatory authority.”

   42. The plaintiff submits the Court can grant an interlocutory injunction under Supreme Court Act 1970, s 66(4), as it should appear to the Court “to be just or convenient to do so”. She submits that the balance of convenience justifies the Court intervening in this case to provide the interlocutory relief which she seeks. The Court declines to grant the relief sought for the following reasons.

   43. First, the principal matter holding up a decision by the Bar Council on the plaintiff’s application is the submission of further material to Dr Phillips and receipt of his supplementary report, which can then be considered by the Bar Council. The balance of convenience is best served by requiring the plaintiff to wait a few more days for that to happen. As the discussion below shows, the plaintiff had opposed the provision of further information to Dr Phillips. That opposition has now been resolved by these reasons. The Bar Council is free to provide further material and ask further questions of Dr Phillips. The way is now clear for his further report to be provided. It could be expected shortly in the circumstances of this case.

   44. Secondly, a judge in the Equity Duty List is ill equipped to decide a question of whether or not a Practising Certificate should be issued on an interim basis to the plaintiff in a case such as this. The Uniform Law gives extensive powers of investigation under s 95 to the Bar Council, which can be exercised in an orderly, considered way and by the making of external inquiries. Such consideration is not open to the Court. Dr Phillips was overseas when these proceedings were launched. Dr Klug has not seen Dr Phillips’ report. Neither doctor has been cross-examined. The Bar Council wants to ask Dr Phillips further questions. None of this makes an appropriate setting for the issuing of a mandatory injunction for the grant of a Practising Certificate.

   45. Thirdly, the Court should not lightly interfere by way of an interlocutory injunction with the statutory scheme for the grant of Practising Certificates under Uniform Law, s 45, which has attached to it statutory rights of review under Uniform Law, s 464. But there have been exceptions when the Court has intervened. But in my view, this is not one of them.

   46. The plaintiff argues (see later in these reasons) that the range of powers available to the Bar Council under Uniform Law, s 95 is limited and to be contrasted with, for example, what happens upon admission to practice under the Uniform Admission Rules, r 23. The Uniform Admission Rules, rr 23 and 24 provides:

“23 Health Assessments

1. If there is material before the Board to indicate, on reasonable grounds, that an applicant for a compliance certificate may be currently unable, for reasons of health, satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner, the Board may require the applicant to provide a health report to the Board.

2. A health report must be:

   (a)   prepared by a registered medical practitioner,

   (b)   about the applicant's ability satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner, and

   (c)   provided by a date nominated by the Board.

3. If either:

   (a)   a health report is not provided by the date nominated by the Board, or

   (b)   the Board reasonably considers that any health report provided by the applicant is insufficient for the Board to form a view whether or not the applicant is currently unable, for reasons of health, satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner, the Board may:

   (c)   require the applicant to undergo a health assessment, and

   (d)   appoint one or more appropriately-qualified persons (one of whom must be a registered medical practitioner) as a health assessor to conduct all or part of that health assessment.

4. The Board:

   (a)   must inform the applicant in writing if a health assessment is required, setting out:

   (i)   the name and qualifications of the health assessor, and

   (ii)   the date (at least 28 days after the date of the written notice), time and place for the assessment, each of which must be reasonable having regard to the circumstances of the applicant, as known to the Board, and

   (b)   may disclose to the health assessor any information in the Board's possession that the Board considers relevant to the health assessment, including any documents included in the application for a compliance certificate.

24. Health Assessment Reports

1. A requirement under rule 23(3) to undergo a health assessment is not satisfied unless the health assessor conducting the assessment:

   (a)   prepares a report setting out the health assessor's findings as to whether, and to what extent, the applicant is currently unable, for reasons of health, satisfactorily to carry out the inherent requirements of practice as an Australian legal practitioner,

   (b)   gives a copy of the report to the Board,

   (c)   if the health assessor considers that disclosing to the applicant the information set out in the report is unlikely to be prejudicial to the applicant's health or well-being, gives a copy of the report to the applicant,

(d)   if the health assessor considers that disclosing the information to the applicant is likely to be prejudicial, gives a copy of the report to a registered medical practitioner nominated by the applicant.

1. A report prepared under this rule, or evidence about a report or its contents, is confidential and may not be disclosed to any person except where permitted by law or with the consent of the applicant.”

   47. Finally, the plaintiff sought to rely upon Roulstone v NSW Bar Association [2015] NSWSC 5 (“Roulstone”) as a basis for contending that the Court had power to grant the relief sought in the form of an interlocutory mandatory injunction for the issue of a practising certificate. Roulstone was a case where such an interim certificate was issued, irrespective of what might happen at a final hearing.

   48. The plaintiff relied upon the following passage from Roulstone, (at [14]):

2. Although the Plaintiff currently holds a local practising certificate from the Law Society it was not contended by the Plaintiff that what was being sought was a renewal where a different onus would apply under s 48(4). The parties agreed that the issue to be determined by the appeal under s 108 was whether on the material before the Court the Plaintiff had satisfied the onus of demonstrating that he was a fit and proper person to hold a practising certificate. However, this was not the final hearing and what was sought was an interim order, said to be an order in the form of an interlocutory mandatory injunction.”

   49. In Roulstone, (at [23] to [25]), Davies J helpfully discussed the proper test for the grant of an interim order by the Court in circumstances such as this.

3. An issue arose concerning the approach the Court should take when considering whether to make an interim order for the grant of a practising certificate as the Plaintiff seeks. The Plaintiff submitted that the matter was analogous to the grant of an interlocutory mandatory injunction. Reference was made to Business World Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 to suggest that there is no difference in principle for how such an injunction should be approached from any other interlocutory injunction. Such an approach would require the Plaintiff to establish that there is a serious question to be tried and that the balance of convenience favoured the granting of an injunction. For the expression “a serious question to be tried” to be meaningful in the present context, the Plaintiff would need to show some likelihood that the contempt charge would not result in him being found not to be a fit and proper person to hold a practising certificate.

4. I do not find that a helpful approach in the context of s 48(3) and s 108 of the Act. The parties agree that the onus is on the Plaintiff under s 48(3) even for the obtaining of an interim order. They also agree that the Court must make the determination that the Bar Council was required to make.

5. I consider, therefore, that the correct approach where an interim order is sought is to examine all of the evidence before the Court and to determine if the Plaintiff has discharged the onus imposed by s 48(3). The result that the Court reaches on an interlocutory application may differ from the result at the final hearing by reason of the extent of the evidence that will be available at the final hearing from cross-examination and otherwise. In addition, the Court will be required to make findings of credit based on all of that evidence.”

   50. But in my view Roulstone is not an appropriate basis for reasoning in this case. Although an interim Practising Certificate was issued in Roustone, it was in respect of a practitioner who had the benefit of a deemed refusal and was already seeking to challenge that deemed refusal. In this case, no decision has been made and, as best the Court can see, the making of a decision by the Bar Council is imminent.

   51. In a subsidiary argument, the plaintiff contends that she has already been through the process of admission and made full disclosure to the Board so she should not be required to do so again. She points to the extensive nature of the investigation done under the Legal Profession Admission Rules, rr 23 and 24 and says that is far more thorough than anything that could now be done by the Bar Council.

   52. But this argument fails to come to grips with the fact that the Board’s investigation was in February 2017 and the plaintiff has applied for a Practising Certificate to practise as a barrister starting in October 2019. The structure of the Uniform Law is clear. Uniform Law, Part 2.2 deals with admission to the Australian legal profession. But once admission has been achieved, Uniform Law, Part 3.3 deals with the issuing and renewal of practising certificates to Australian legal practitioners. The latter is quite a separate analytical task, which is not answered merely by observing that admission has already been achieved.

   53. Before Mr Griffin SC indicated to the Court on 11 October 2019 that a decision could be made by the Bar Council as soon as any supplementary report was received by Dr Phillips, the parties put submissions about how long Bar Council had to make a decision in the plaintiff’s case. The Uniform Law, s 464 confers a right of appeal or review of decisions made under the law but if a decision is not made within a period “specified in the Uniform Rules for the purposes of this section”, s 464 deems a constructive decision to be made to refuse the application: see Uniform General Rules 2015, r 111. Mr Griffin SC contended that as the plaintiff’s application was filed on 1 August 2019 the Bar Council had until 30 October 2019 to make a decision.

   54. Ms Picos submitted that the Bar Council did not have a right to take 90 days. She contended that if a constructive decision was made against her that she might become a “disqualified person” under Uniform Law, s 6 with adverse consequences to her. But in my view that is a very unlikely effect of the legislation. Moreover, given Mr Griffin SC’s submission on 11 October 2019 that the Bar Council would deal with this matter as soon as possible, the questions of time limits fall away.

The Extent of the Bar Council’s Further Communications with Dr Phillips

55. The parties put their principal argument on 8 and 9 October 2019. The Court then reserved its decision. During these first two hearing days the Court made orders prohibiting the disclosure of particular exhibits under the Court Suppression and Non-Publication Orders Act 2010, s 7 (“the Non-Publication Act”). But the Court had not made a general order under the Non-Publication Act, suppressing publication of all of the evidence. Such an order, at least on an interim basis, is well warranted in a case of this kind.

56. But in the meantime a media organisation made enquiries of the Court for access to the Court’s file. The Court therefore made orders in chambers on 10 October 2019 extending the scope of the orders under the Non-Publication Act to cover the whole of the file. The communication of those expanded orders to the parties was a factor leading to the re-listing of the proceedings on 11 October 2019.

57. By 11 October 2019, to obtain a further opinion from Dr Phillips, the Bar Council was proposing to send Dr Phillips the plaintiff’s application for a Practising Certificate. On 11 October 2019, the Bar Council wanted clarification that the suppression order issued in chambers did not prevent it from communicating the plaintiff’s application for a Practising Certificate to Dr Phillips. In response Ms Picos submitted that if the Court were to adjust the suppression order to allow such communication to take place, the Court would be endorsing the correctness of the release of her application for a Practising Certificate to Dr Phillips, contrary to what Ms Picos submitted was the correct legal position.

58. Ms Picos submitted that if the suppression order were suspended that the Bar Council did not have the power under Uniform Law, s 95 to provide a copy of her application for a Practising Certificate to Dr Phillips for his further comment. Ms Picos put brief argument in support of that contention on 11 October 2019 and Mr Griffin SC replied.

59. For the reasons which follow, in my view, the Bar Council is now entitled under Uniform Law, s 95 to provide Ms Picos’ application for a Practising Certificate to Dr Phillips, if it chooses to take that course.

60. When a designated local regulatory authority such as the Bar Council is considering whether or not to grant a practising certificate, the Uniform Law, s 95 confers upon it a range of powers of investigation. This provision has been set out earlier in these reasons. Ms Picos takes the point that s 95(1)(b) should be read as a narrow authorisation that a candidate for admission may be "medically examined by a medical practitioner nominated by [Bar Council]" and no more. The nominated medical practitioner here, of course, is Dr Phillips. Ms Picos submits that this power to require a medical examination does not include an authorisation for the Bar Council to provide copies of her application for a practising certificate to the medical practitioner in question. By way of contrast Ms Picos took the Court to the Uniform Admission Rules, rr 23 and 24 which have been set out above. She contrasted, for example, the detailed authorisation in rule 23(4)(b) that the Board may disclose to the health assessor, "any information in the Board's possession that the Board considers relevant to the health assessment, including any documents included in the application for a compliance certificate", with the absence of such words from s 95(1)(b).

61. Of course the Uniform Admission Rules, rr 23 and 24 apply at the stage of admission. But post admission, and for the purposes of the Bar Council’s consideration whether an applicant is, or is not, a fit and proper person to hold an Australian practising certificate, as the designated local authority, it may have regard to a range of matters under the Legal Profession Uniform General Rules 2015 (NSW), r 13(1). One of the r 13(1) matters to which the designated local authority may have regard is "(m) whether the applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner". But at the time of the Bar Council considering the grant or removal of a practising certificate, there is no equivalent provision to the Uniform Admission Rules, r 23(4)(b), specifically authorising the provision of information to a medical practitioner. Ms Picos says no such power exists.

62. Attempting to construe the Uniform Law, s 95 by reference to both these sets of rules is not a productive exercise. One must first start with the Uniform Law, s 95. In my view, it gives ample authority to the Bar Council to provide Ms Picos’ application for a practising certificate to Dr Phillips.

63. The plaintiff’s construction of Uniform Law, s 95 is not persuasive. The section provides ample scope for the communication of documents to a medical practitioner appointed under s 95(1)(b). Whilst the section is not specific, it clearly assumes that there must be some communications between a designated local regulatory authority and the medical practitioner to arrange the medical examination and ask relevant questions. Ms Picos did not contend otherwise. Indeed, it is also to be implied from the structure of s 95 that the medical practitioner should be informed that the purpose of the examination is to assist the consideration of the designated local regulatory authority, whether it will "grant, renew, vary, suspend or cancel" a practising certificate. A designated local regulatory authority, such as the Bar Council, is entitled in its communications with the medical practitioner to ask questions relevant to that purpose, to focus the medical opinion which is derived from the medical examination.

55. But s 95 also assumes that the Bar Council’s consideration will be informed by any report from the medical examination and that the professional judgment and expertise of the medical practitioner will go into the preparation of that report. It must therefore be permissible, to give effect to the statutory purpose, that if a medical practitioner wanted to see more documents to assist in forming a medical opinion, then communications for that purpose would be authorised by the section, as they would be necessary for the formation of the medical practitioner’s opinion.

56. The Bar Council proposes here to offer the plaintiff’s application for a practising certificate to Dr Phillips. Dr Phillips will then exercise his professional judgment as to whether he wishes to look at that document before answering any supplementary questions posed to him. That is a matter for his professional judgment in providing his opinion to the Bar Council. The Bar Council can offer this document to Dr Phillips. If he believes in his professional judgment that he should examine it for the formation of any further opinion concerning Ms Picos, then such conduct by the Bar Council and Dr Phillips is authorised by s 95.

57. Another source of power authorises the same result. Uniform Law, s 95(1)(d) requires the applicant for a practising certificate "to co-operate with any inquiries by the designated local regulatory authority that it considers appropriate". The Uniform Law does not limit the scope of the inquiries that may be made under s 95(1)(d), other than that they must serve the relevant purpose here of complying with the command of Uniform Law, s 45(2) "not [to] grant or renew an Australian practising certificate, if it considers that the applicant is not a fit and proper person to hold the certificate". The “inquiries” by Bar Council may go so far as to include seeking to know from a medical practitioner whether that medical practitioner’s expert opinion would be varied in any way by being informed by the detail of the medical examinee’s application for a Practising Certificate. That is an enquiry which Bar Council could in the exercise of these functions "consider appropriate”. Once it had done so, the applicant is required "to co-operate with" that inquiry. In a case such as this, if the Bar Council were to reach the view that it wants to give the plaintiff's application for a practising certificate to Dr Philips to further its inquiries, it is entitled by force of s 95(1)(d) to the plaintiff’s co-operation in that course.

58. The Court is mindful that Ms Picos is sensitive to the exercise of such statutory powers against her, given their coercive overtones. She has consistently made the point throughout these proceedings that she gave her voluntary co-operation to the regime for medical examination in relation to her Law Society practising certificate. Given the prior use against her of coercive powers under the Mental Health Act 2007, the plaintiff’s freedom to choose, rather than be coerced, is clearly of the most profound importance to her.

59. But for the reasons stated, statutory power to provide her application for a practising certificate to Dr Phillips does exist. In my view the Bar Council is entitled to take that course, if it chooses. These reasons should be taken as authorisation for the Bar Council to proceed in that way. But if any more formal order to that effect is required, Short Minutes can be brought in to give effect to that aspect of these reasons.

60. The plaintiff is entitled to procedural fairness, as the Bar Council deals with her application under Uniform Law, s 45, exercising the powers conferred upon it by Uniform Law, s 95. Ms Picos has said she may wish to consult Dr Klug about Dr Phillips’ medical reports and about the same materials that are proposed to be provided to Dr Phillips. In my view, it follows from the Court's analysis of the Bar Council’s powers under Uniform Law, s 95 that she would be entitled to share that information with Dr Klug, so as to put her in a position to reply, if required, to any further opinion of Dr Phillips.

Conclusions and Orders

70. Although the plaintiff has been unsuccessful, this is not for any want of good advocacy in her own cause. The plaintiff carefully marshalled available materials and arguments and deployed them effectively in support of her case. Arguing one’s own cause as a litigant in person always presents a special challenge in maintaining objectivity but she met that challenge.

71. For these reasons, the Court declines to grant the interlocutory relief sought. It has not dealt with final relief. Costs will be reserved. The Court therefore makes the following orders and directions:

1. Direct the parties to bring in Short Minutes of Order to give effect to these reasons.

2. Direct that the publication of these reasons be suppressed in accordance with the orders made by the Court on 11 October 2019.

3. Costs reserved.

4. Liberty to apply.

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Decision last updated: 18 August 2020