PQ (a pseudonym) v The Law Society of New South Wales (No 3)

Case •

[2021] NSWSC 420

•

26 April 2021

No judgment structure available for this case.

Supreme Court


New South Wales

Medium Neutral Citation: PQ (a pseudonym) v The Law Society of New South Wales (No 3) [2021] NSWSC 420
Hearing dates: 22 April 2021
Decision date: 26 April 2021
Jurisdiction:Common Law
Before: Adamson J
Decision:

(1)   The separate question ordered on 19 March 2021 is answered as follows:

Q. Is the Council of the first defendant, by reason of s 464(3) of the Legal Profession Uniform Law (NSW), taken to have refused the plaintiff’s application made on 10 November 2020 for a variation of his Australian practising certificate (to authorise him to practice as a principal of a law practice) by reason of not having determined the application within 90 days?

A.    No.

(2)   Make no order as to costs.

Catchwords:

OCCUPATIONS — Legal practitioners — Qualifications and admission — Practising certificates

CIVIL PROCEDURE — Determination of separate question — Whether decision subject to appeal or review under s 100 of the Legal Profession Uniform Law (NSW) — Whether a designated local regulatory authority, by reason of s 464(3) of the Legal Profession Uniform Law (NSW), is taken to have refused an application to vary an Australian practicing certificate by not determining the application within 90 days

Legislation Cited:

Aged Care Act 1997 (Cth)

Civil Liability Act 2002 (NSW), s 12

Legal Profession Uniform General Rules 2015 (NSW), r 111

Legal Profession Uniform Law (NSW), ss 43, 44, 47, 74, 99, 100, 464

Legal Profession Uniform Law Application Act 2014 (NSW), s 11

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal (2009) 181 FCR 515; [2009] FCA 1514

Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26

PQ (a pseudonym) v The Law Society of New South Wales [2021] NSWSC 258

Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9

Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669

Veltman and Legal Practice Board [2005] WASAT 334

Texts Cited:

D Pearce, Statutory Interpretation (9th ed, 2019, LexisNexis)

Category:Procedural rulings
Parties: PQ (a pseudonym) (Plaintiff)
The Law Society of New South Wales (First Defendant)
The College of Law Limited (Second Defendant)
Office of the Legal Services Commissioner (Third Defendant)
Council of the Law Society of New South Wales (Fourth Defendant)
Representation:

Counsel:
In person (Plaintiff)
K Richardson SC / J Entwisle (First and Fourth Defendants)
J Curtin (Second Defendant)
S Andrews (Third Defendant)

Solicitors:
The Law Society of New South Wales (First and Fourth Defendants)
Baker & McKenzie (Second Defendant)
Office of the Legal Services Commissioner (Third Defendant)
File Number(s): 2020/365622
Publication restriction: Non-publication of any information or material that may lead to the identification of the applicant (Court Suppression and Non-publication Orders Act 2010 (NSW), s 7)

Judgment

Introduction

  1. On 19 March 2021, I ordered that the following question be determined as a separate question:

“Is the Council of the first defendant, by reason of s 464(3) of the Legal Profession Uniform Law (NSW), taken to have refused the plaintiff’s application made on 10 November 2020 for a variation of his Australian practising certificate (to authorise him to practice as a principal of a law practice) by reason of not having determined the application within 90 days?”

  1. The reasons for my order were set out in PQ (a pseudonym) v The Law Society of New South Wales [2021] NSWSC 258 at [51]-[63].

  2. All references to legislation in these reasons are references to the Legal Profession Uniform Law (NSW), unless otherwise stated.

Factual background

  1. The question, which is one of statutory interpretation, is to be decided against the following factual background, which was not contested.

  2. On 6 July 2020, PQ (the plaintiff) applied to the first defendant, the Law Society of New South Wales (the Law Society) for a practising certificate as an employed solicitor. In response to this application, the fourth defendant, the Council of the Law Society (the Council) issued a practising certificate to the plaintiff which was valid from 8 July 2020 to 30 June 2021.

  3. At the time of its grant on 8 July 2020, the plaintiff’s practising certificate was subject to three standard conditions: a requirement to comply with continuing professional development requirements (condition 1); a requirement to complete a Practice Management Course before being eligible to be a principal of a law practice (condition 3); and a condition that he is not authorised to receive trust money on his own account (condition 5b).

  4. On 10 November 2020, the plaintiff applied for a variation of his practising certificate to enable him to practise as a principal of a law practice. Following receipt of the plaintiff’s application, the Law Society corresponded with him about further information that was required before a decision could be made by the Council.

  5. On 14 January 2021, the plaintiff completed the requisite Practice Management Course referred to in condition 3 of his practising certificate. Accordingly, the Council issued a further practising certificate to him (valid from 14 January 2021 until 30 June 2021), which is subject only to conditions 1 and 5b (referred to above), condition 3 having been complied with.

  6. The Council did not make a decision on the plaintiff’s application within a period of 90 days from its receipt as communications were still continuing between the Council and the plaintiff regarding his application. Once the 90 days had passed, the Council refrained from determining the plaintiff’s application for a variation because the plaintiff contended that it had already constructively refused it (by not having determined it within 90 days): PQ (a pseudonym) v The Law Society of New South Wales at [60]. In these circumstances, the Council took the view that it ought not determine the application until the question of constructive refusal had been determined by this Court.

Relevant statutory provisions

  1. The answer to the separate question turns on the construction of ss 100 and 464. However, a brief description of the statutory scheme in which these provisions operate is necessary to appreciate the legislative context in which these provisions operate.

  2. Chapter 3, entitled “Legal Practice”, includes Part 3.3, which makes provision for the grant and renewal of practising certificates, including the imposition of conditions on such certificates. Section 43 confers a right to practise on an Australian legal practitioner. The right to practise is subject to the Uniform Law, rules made under the Uniform Law and conditions on the practitioner’s practising certificate. Practising certificates are granted by the “designated local regulatory authority” for the period of a financial year, or shorter period. The Council is the relevant designated local regulatory authority for the purposes of the grant, renewal and the imposition of conditions on, practising certificates for solicitors engaged in legal practice in New South Wales: s 11 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act) and s 44. A practising certificate granted or renewed under s 44 of the Uniform Law is subject to conditions imposed by or under the Uniform Law or rules made under the Uniform Law: s 44(2).

  3. Section 47(1) relevantly provides:

“47   Conditions—categories of practice and trust money

(1)     An Australian practising certificate granted in this jurisdiction is subject to the condition, as determined by the designated local regulatory authority, that the holder is authorised to engage in legal practice—

(a)     in one or more of the following categories—

(i)  as a principal of a law practice;

(ii)  as an employee of a law practice;

…”

  1. The power to vary a practising certificate at the request of, or with the concurrence of, the holder derives from s 74 which provides:

“74   Variation, suspension or cancellation for minor matters, or at request or with concurrence

(1)     The designated local regulatory authority may vary a certificate for a formal or clerical reason or in another way that does not adversely affect the holder’s interests.

(2)     The designated local regulatory authority may vary, suspend or cancel a certificate at the request of or with the concurrence of the holder.”

  1. The word “vary” is defined by s 6 to include:

“… in relation to an Australian practising certificate … impose a condition on the certificate and alter or revoke a condition (other than a statutory condition) already imposed on the certificate.”

  1. Part 3.6, entitled, “Appeal or review about certificates” includes s 99, which provides in part:

“The objective of this Part is to provide a right to appeal against or to seek a review of certain decisions of the designated local regulatory authority in relation to Australian practising certificates and Australian registration certificates …”

[Emphasis added.]

  1. The use of the word “certain” in s 99 makes it clear that not all decisions of the designated local regulatory authority are amenable to appeal or review.

  2. Section 100 of the Uniform Law provides:

“100   Right of appeal or review about Australian practising certificates

(1)     An applicant for or the holder of an Australian practising certificate may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, any of the following decisions of the designated local regulatory authority under this Chapter—

(a)     a decision to refuse to grant or renew the Australian practising certificate;

(b)     a decision to vary, suspend or cancel the Australian practising certificate or, without limitation, to impose a condition on the Australian practising certificate;

(c)     a decision that a person is not entitled to apply for an Australian practising certificate for a specified period (see section 94).

(2)     An appeal or review under this section may be made to review the merits of the decision concerned.

(3)     The designated tribunal may make any order it considers appropriate on an appeal or review under this section, including any of the following orders—

(a)     an order directing the designated local regulatory authority to grant, or to refuse to grant, an application for an Australian practising certificate;

(b)     an order directing the designated local regulatory authority to suspend for a specified period or cancel an Australian practising certificate, or to reinstate an Australian practising certificate that has been suspended or cancelled;

(c)     an order that an applicant or holder is not entitled to apply for the grant of an Australian practising certificate for a specified period not exceeding 5 years;

(d)     an order directing the designated local regulatory authority to vary an Australian practising certificate in the manner specified by the designated tribunal.

(4)     Except to the extent (if any) that may be ordered by the designated tribunal, the lodging of an appeal or application for review under this section does not stay the effect of the refusal, variation, suspension or cancellation concerned.

(5)     The designated tribunal may not order the imposition of conditions on an Australian practising certificate without first taking submissions from the designated local regulatory authority.

(6)     In proceedings on an appeal or review under this section, fresh evidence, or evidence in addition to or in substitution for matters considered by the designated local regulatory authority, may be given.

(7)     In proceedings on an appeal or review under this section in which the question of whether a person is a fit and proper person to hold an Australian practising certificate is at issue—

(a)     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; and

(b)     it is to be presumed in the absence of evidence to the contrary that any statement of facts in the reasons of the designated local regulatory authority for the decision concerned is a correct statement of the facts in the matter; and

…

(8)     The designated local regulatory authority is to give effect to any order of the designated tribunal under this section.”

  1. By reason of s 11(3) of the Application Act, this Court is the designated tribunal for the purposes of the review of decisions under s 100. Pursuant to s 100(6), this Court undertakes a hearing de novo on the merits (consistently with what this Court held with respect to earlier legislation in Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 at 674-675 (Smart J)).

  2. Section 464 of the Uniform Law relevantly provides:

“464 General provisions about appeal or review

(1)     If a decision under this Law relating to a person can be the subject of an appeal or review, the decision-maker must (except in circumstances referred to in the Uniform Rules) ensure the person is given a notice as soon as practicable stating—

(a)     the decision; and

(b)     the reasons for the decision; and

(c)     the rights of appeal or review available to the person in respect of the decision and the period within which any such appeal or review must be made or applied for.

(2)     A failure to comply with subsection (1) does not affect the validity of the decision concerned.

(3)     For the purposes of the provisions of this Law relating to a right of appeal or review about a decision, a failure of the decision-maker to make a decision on a person’s application within a period specified in the Uniform Rules for the purposes of this section is taken to be a decision (the constructive decision) to refuse the application.

(4)     However, the decision-maker may make a decision (the late decision) on the person’s application after that period if the decision-maker is satisfied that—

(a)     no appeal or application for review has been made about the constructive decision; or

(b)     an appeal or application for review has been made about the constructive decision but the appeal or application has been withdrawn; or

(c)     the late decision would be to the person’s benefit.

(5)     The late decision is as valid as if it had been made during that period.”

  1. Rule 111 of the Legal Profession Uniform General Rules 2015 (NSW) provides that, for the purposes of s 464 of the Uniform Law, the specified period is 90 days.

Consideration

  1. The plaintiff’s submissions on the separate question can be reduced to the following four propositions:

  1. a decision under s 100 is a decision to which s 464 applies;

  2. accordingly, the Council was obliged to make a decision on his application for variation of the conditions of his practising certificate within 90 days;

  3. as more than 90 days have passed since the making of the application on 10 November 2020, the Council is taken to have refused the application by reason of the constructive refusal provision in s 464(3); and

  4. as the plaintiff has, by filing the summons, sought review of the constructive decision, the Council has no power to consider the application (unless it decides to grant it: s 464(4)(c)), since it has already constructively refused it.

  1. The plaintiff argued that “common sense” required that a decision to refuse to vary a practising certificate was in the same category as a decision to vary a practising certificate and that the plain legislative intention was that it, too, be amenable to appeal or review. He relied on authorities cited by D Pearce, Statutory Interpretation (9th ed, 2019, LexisNexis), at [2.8] and [2.57] and made specific reference to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 in support of the proposition that a court is entitled to modify the literal meaning of statutory words to overcome an error or defect in the text or to prevent unintended or absurd results.

  2. I have substantially accepted the Council’s submissions, which were provided by Ms Wong SC and Mr Entwisle and addressed orally by Ms Richardson SC, who appeared with Mr Entwisle, it is not necessary to summarise them.

  3. The first question is whether a decision under s 100 is a decision which, under the Uniform Law, “can be the subject of appeal or review” within the meaning of s 464(1). The decisions which can be the subject of appeal or review under the Uniform Law are set out in s 100(1). The decision to vary a practising certificate is expressly included in s 100(1)(b). A decision to refuse to vary a practising certificate is, however, not expressed to be a decision which can be the subject of appeal or review under the Uniform Law.

  4. I understood the plaintiff to have accepted that the construction for which he contended required a gloss to be applied to the words of s 100(1)(b) to include a decision to refuse to vary a practising certificate. There are occasions on which a court will read words into legislative provisions to make sense of them or because they are thought to be necessarily implied. The question is whether the present is such a case.

  5. The approach to be taken when a party seeks to have words read into a provision was considered by the High Court in Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 (Taylor). The issue in Taylor was whether, as had been found by the primary judge and the Court of Appeal, the word “claimant” in s 12 of the Civil Liability Act 2002 (NSW) included “the deceased upon whose earnings the claim depends”.

  6. The High Court, by majority (French CJ, Crennan and Bell JJ), rejected the construction, although it accepted, at [37], that reading the words into the section would accord with a purposive construction. The majority said:

“[38]   The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills “gaps disclosed in legislation” or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’.

[39]   … Sometimes, as McHugh J observed in Newcastle City Council v GIO General Ltd, the language of a provision will not admit of a remedial construction. Relevant for present purposes was his Honour's further observation, ‘[i]f the legislature uses language which covers only one state of affairs, a court cannot legitimately construe the words of the section in a tortured and unrealistic manner to cover another set of circumstances.’”

[Footnotes omitted]

  1. The majority identified a further dimension to the prospect of a court applying a gloss to the words used to promote the purpose of the legislation when it said, at [40]:

“In Australian law the inhibition on the adoption of a purposive construction that departs too far from the statutory text has an added dimension because too great a departure may violate the separation of powers in the Constitution.”

[Footnotes omitted.]

  1. The textual addition for which the plaintiff contended is inconsistent with the words used in s 100(1)(a), where a decision to refuse to grant or renew a practising certificate is expressly referred to. I am not persuaded that the difference in wording between s 100(1)(a) and (b) can be explained by oversight. Rather, the distinction is explicable when one has regard to the substance of the provisions.

  2. The Council’s power to vary a practising certificate under s 74 can only be exercised in a way which is either not adverse to the holder’s interests or at the request, or with the concurrence, of the holder. The only “downside” to a variation under s 74 for a practitioner is that the practitioner might not have achieved all of what he or she wanted or applied for. The right to appeal a decision to vary is conferred by s 100(1)(b). By contrast, a decision to refuse to vary inevitably preserves the status quo, since the conditions of the practitioner’s practising certificate will be those that applied before the application for variation.

  1. A decision to refuse to vary a practising certificate is to be contrasted with other decisions that may be made by the Council as the designated local regulatory authority, which include decisions to refuse to grant, or renew, a practising certificate, or to suspend a practising certificate. In any of those cases, the effect of the relevant decision is to take something valuable away from the practitioner: the right to practise either for the full length of the financial year, or for a shorter, or longer (in the case of an indefinite suspension) period. This distinction is drawn by s 100 itself since the plain language of the provision indicates that those decisions which operate to change the status quo (including by varying a practising certificate), or have the effect of denying or withholding a right to practise, are amenable to appeal or review under the Uniform Law, whereas those that retain the status quo (such as a refusal to vary a practising certificate) are not.

  2. Given that there is a right of appeal to this Court as the designated tribunal and that the review is a hearing de novo, it can readily be appreciated that the language of s 100 reflects a legislative choice to deny such access with respect to decisions which merely preserve the status quo for those who already have a right to practise. As the duration of a practising certificate is no more than a year (at which time it can be varied or allowed to lapse, thereby giving rise to an opportunity to apply for a new practising certificate), it is understandable that recourse to this Court would be limited.

  3. Thus, in my view, the express words of s 100 are consistent with a distinction being drawn on the basis of the consequences for the practitioner. A decision to vary is amenable to appeal or review under s 100(1)(b), whereas a decision to refuse to vary does not fall within s 100 and therefore is not amenable to appeal or review under the Uniform Law.

  4. In Veltman and Legal Practice Board [2005] WASAT 334, the State Administrative Tribunal of Western Australia construed the legislation consistently with the analysis set out above. The Tribunal said, at [55], of relevantly indistinguishable provisions:

“The distinction between the Board changing or not changing the status quo is clear enough, and it is understandable that the legislation might seek to confine a right of review to a decision, made at the instance of the Board, which operates to increase the burden of conditions on a practice certificate. However, where, as here, it is the practitioner who has sought a variation in conditions; it is not easy to see why a variation to the conditions gives rise to a right of review, including arguably a review of those parts of the decision which did not result in a change in the conditions, but a decision which does not vary the conditions in any respect …”

  1. In Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal (2009) 181 FCR 515; [2009] FCA 1514, an analogous distinction was drawn by Collier J in the context of accreditation grant principles made under the Aged Care Act 1997 (Cth). In that case, the question arose whether a “variation for which residential care service is to be accredited” included a decision to confirm the existing period of accreditation. Her Honour said, at [35]:

“I consider that the meaning of the words ‘variation of period for which residential care service is to be accredited’ is plain. There is no ambiguity to warrant further exploration in an attempt to identify the intention of Parliament. The intention of Parliament appears clearly in the words used — a reconsideration decision is reviewable when the accreditation body varies (either up or down) the period for which a residential care service is to be accredited. A reconsideration decision where the accreditation body simply confirms its original decision in relation to the period of accreditation is not a decision which ‘varies’ that period — and it is not reviewable. To read into ‘variation’ a meaning which includes ‘no variation’ strikes me as absurd, and in stark contradiction to the specific language of s 7.1.”

Conclusion

  1. For the reasons given above, s 100 (and therefore s 464) does not apply to a decision to refuse to vary the conditions of a practising certificate. Therefore, the Council has not constructively refused the plaintiff’s application for variation of the conditions of his practising certificate, since s 464(3) does not apply. It follows that the answer to the separate question is “no”. It also follows that, as the Council has not yet determined the plaintiff’s application, there is no relevant decision before the Court which would be amenable to this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW).

Further matters

  1. I note for completeness that the Council accepted that a practitioner, such as the plaintiff, is not without a remedy, although he does not have a right of appeal or review under s 464. The Council accepted that if it had made a decision, the plaintiff would have a right to judicial review pursuant to s 69 of the Supreme Court Act in respect of an error of law on the face of the record, or jurisdictional error. It also acknowledged that the plaintiff could allow his practising certificate to lapse and apply for a new certificate as the principal of a law practise (rather than simply applying for a renewal of the existing practising certificate). If the Council refused his application for a new certificate, he would have a right of appeal under s 464 as the decision would fall within s 100(1)(a).

Costs

  1. As neither party sought an order for costs of the determination of the separate question, the order will be that there be no order as to costs.

Orders

  1. For the reasons given above, I make the following orders:

  1. The separate question ordered on 19 March 2021 is answered as follows:

Q. Is the Council of the first defendant, by reason of s 464(3) of the Legal Profession Uniform Law (NSW), taken to have refused the plaintiff’s application made on 10 November 2020 for a variation of his Australian practising certificate (to authorise him to practice as a principal of a law practice) by reason of not having determined the application within 90 days?

A.    No.

  1. Make no order as to costs.

**********

Decision last updated: 26 April 2021

Actions
Download as PDF Download as Word Document