QRS v Legal Profession Board of Tasmania
[2017] TASFC 10
•13 October 2017
[2017] TASFC 10
COURT: SUPREME COURT OF TASMANIA (FULL COURT)
CITATION: QRS v Legal Profession Board of Tasmania [2017] TASFC 10
PARTIES: QRS
v
LEGAL PROFESSION BOARD OF TASMANIA
LAW SOCIETY OF TASMANIA
FILE NO: FCA 1136/2017
DELIVERED ON: 13 October 2017
DELIVERED AT: Hobart
HEARING DATE: 31 August 2017
JUDGMENT OF: Blow CJ, Marshall and Porter AJJ
CATCHWORDS:
Courts and Judges – Judges – Disqualification for interest or bias – Particular grounds – Prejudgment – Expression of concluded view.
Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337; Antoun v The Queen [2006] HCA 2, 224 ALR 51, referred to.
Aust Dig Courts and Judges [50]
Procedure – Civil proceedings in State and Territory Courts – Motions, interlocutory applications and other pre-trial matters – Other matters – Permanent non-publication order sought by interlocutory application – Status of interlocutory application after principal proceeding concluded.
Supreme Court Civil Procedure Act 1931 (Tas), s 201(1).
Hardel Pty Ltd v Burrell and Family Pty Ltd [2009] SASC 77, 103 SASR 408, referred to.
Aust Dig Procedure [1331]
REPRESENTATION:
Counsel:
Appellant: In person
Respondents: N Readett
Solicitors:
Appellant: In person
Respondents: Simmons Wolfhagen
Judgment Number: [2017] TASFC 10
Number of paragraphs: 51
Serial No 10/2017
File No FCA 1136/2017
QRS v LEGAL PROFESSION BOARD OF TASMANIA
and LAW SOCIETY OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
MARSHALL AJ
PORTER AJ
13 October 2017
Orders of the Court
1 Appeal allowed.
2 Order dismissing interlocutory application set aside.
3 Interlocutory application remitted for determination by a single judge.
4 The orders of Brett J made on 13 January 2017, as varied on 19 January 2017, are reinstated until further order of a single judge.
Serial No 10/2017
File No FCA 1136/2017
QRS v LEGAL PROFESSION BOARD OF TASMANIA
and LAW SOCIETY OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
BLOW CJ
13 October 2017
1 The appellant applied to this Court, by originating application, for admission to the legal profession. He was subsequently admitted. While his originating application was pending, he filed an interlocutory application seeking orders that the Legal Profession Board of Tasmania and the Law Society of Tasmania, the respondents to this appeal, be prohibited from disclosing certain material contained in an affidavit sworn by him in support of his admission application. He also sought orders prohibiting news media organisations and related corporate entities from publishing reports and information relating to the admission application. Brett J made interim orders. Those interim orders were not discharged when the appellant was admitted to the profession. Tennent J subsequently discharged the interim orders and dismissed the interlocutory application. This is an appeal from her Honour's orders.
2 For the reasons stated by Marshall AJ, I agree with him that grounds 1 and 2 of the notice of appeal should succeed; that the other grounds of appeal should not; that the appeal should be allowed; that the order dismissing the interlocutory application should be set aside; that that application should be remitted for determination by another judge; and that the interim orders of Brett J should be restored until further order of a single judge. There is a little that I would like to add.
3 The interlocutory application came before Tennent J for the second last time on 29 March 2017. On that occasion, counsel for the respondents suggested, apparently for the first time, that, as a result of the originating application having been determined, the court was functus officio, and that it followed that the interlocutory application should be dismissed. Without giving the appellant any opportunity to make submissions to the contrary, her Honour, in the course of a long discussion, made a number of comments to the appellant that indicated that she agreed with those propositions. At various stages in that discussion she said the following:
• "… the reality of the matter is that you have filed an interlocutory application in pending proceedings. Those pending proceedings have ended. So the interlocutory application can no longer be an interlocutory application."
• "Now, you filed an application in January, that was an interlocutory application in pending proceedings. Those substantive proceedings have been finalised. There is now no jurisdiction if I can call it that to deal technically within [sic] an interlocutory application because the substantive proceedings have ended."
• "Now, the bottom line is what Mr Readett [counsel for the respondents] outlined a moment ago is absolutely correct. I accept that."
• "… your application was an interlocutory application in pending proceedings. Those proceedings have been finalised. So technically speaking there are no proceedings in respect of which there can be interlocutory orders."
• "What Mr Readett has outlined is correct, and I accept that."
• "I'll tell you what I'm proposing and that is that I make an order … that within 14 days of today's date you file originating proceedings by which you seek the orders sought by your interlocutory application filed on the 11th of January 2017, and an interlocutory application by which you seek the orders on an interim basis … I propose then to adjourn the matter to 10am on the 13th of April; that's one day outside the 14-day period. I would make a further order … in any event, because if you don't do what the first order suggests or if you do I am going to dismiss the interlocutory proceedings."
4 The appellant was obviously contending that the interlocutory application continued to give the Court jurisdiction to continue orders in the terms made by Brett J. The respondents had advanced a contrary contention. Her Honour unequivocally expressed a concluded view without affording the appellant an opportunity to make any submissions as to the issue. This was not a case of apprehended prejudgment. It was a clear case of prejudgment. Ground 1 must succeed on that basis.
5 The orders sought in the interlocutory application were not expressed to be interlocutory orders, interim orders, or any other sort of temporary orders. The orders sought were worded as if they were final and permanent orders. Strictly speaking, they should have been sought in the originating application, along with the order admitting the appellant to the legal profession. In essence, the appellant sought injunctive orders using the wrong process. Rule 15 of the Supreme Court Rules 2000 provides:
"A proceeding or the originating process by which it was commenced is not void solely on the ground that the proceeding was commenced by the wrong process."
6 Rule 14 makes provision for applications to set proceedings aside for irregularity, but no such application was made.
7 In my view those rules add strength to the conclusion that the Court retained jurisdiction to deal with the interlocutory application, and even to make permanent orders as sought by it, after the appellant's admission to the profession.
8 The respondents contend that the interlocutory application has no merit. The respondents are bound by confidentiality provisions in ss 602 and 655 of the Legal Profession Act 2007. They argue that that Act is part of a national statutory scheme, and that the making of orders like those sought by the appellant would clearly and seriously undermine that statutory scheme. They also contend that they have a common law obligation to maintain confidentiality in relation to the documents disclosed to them in the course of the admission proceedings, and not to use the disclosed documents for any collateral purpose: Hammersley Iron Pty Ltd v Lovell (1998) 19 WAR 316; Street v Hearne [2007] NSWCA 113, 70 NSWLR 231. Those submissions may well be correct.
9 However when prejudgment of an issue results in a denial of procedural fairness, as it has in this case, the only appropriate course is to make orders for a new hearing.
10 In Antoun v The Queen [2006] HCA 2, 224 ALR 51, the High Court ordered a new trial in a criminal case as the result of the trial judge having given the appearance of prejudging a submission that there was no case to answer, and then having refused to disqualify himself. The High Court held that, even though the trial judge was correct in concluding that there was a case to answer, the appearance of prejudgment necessitated an order for a new trial.
11 In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55, 229 CLR 577, Kirby and Crennan JJ said at [117]:
"… if the allegation of apprehended bias is made out, a retrial will be ordered irrespective of possible findings on other issues."
12 It follows that, even if the respondents' contentions as to the inappropriateness of permanent orders in the terms of the interlocutory application are perfectly correct, this Court is obliged to order a new hearing of the interlocutory application. If this Court were to accept the respondents' contentions and therefore dismiss the appeal, that would "not remove the impression created by the course that was followed": Antoun (above), per Gleeson CJ at [2].
File No FCA 11/36/2017
QRS v LEGAL PROFESSION BOARD OF TASMANIA
and LAW SOCIETY OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
MARSHALL AJ
13 October 2017
Background
13 By originating application filed on 1 December 2016, the appellant, applied to be admitted to the legal profession. The application was made returnable on 30 January 2017. The application was supported by an affidavit affirmed on 5 January 2017. Paragraph 7 of that affidavit disclosed certain material which was capable of affecting the Court's determination whether the appellant was a fit and proper person for admission to the legal profession. ....
14 On 11 January 2017, the appellant filed an interlocutory application in which he sought a suppression order in respect of the material provided in par 7 of the 5 January application. He also sought a non-publication order. The interlocutory application was supported by an affidavit dated 11 January 2017 which referred to "confidential information" in his 5 January affidavit, ....
15 On 13 January 2017, the interlocutory application came before Brett J on an ex parte basis. His Honour made the following orders:
"1 The Law Society of Tasmania and the Legal Profession Board of Tasmania are prohibited from disclosing any material derived from the proceeding in relation to the information provided in the 'Affidavit in support of application for Admission' sworn [sic] on 5 January 2017, under paragraph 7 which is headed 'Relevant Matters'.
2 That any news media organisation in the State of Tasmania and any related corporate entity in Australia are prohibited from publishing a report of the whole or any part of the proceeding or any information derived from the proceeding.
3 That the matter be adjourned to Thursday 19th January 2017 to allow the Legal Profession Board of Tasmania and the Law Society of Tasmania an opportunity to make submissions in relation to the orders made should they see fit."
16 On 19 January 2017, Brett J varied order 1 of the orders of 13 January by adding:
"Save and except, (a) with the consent of the applicant and (b) any disclosure between the Legal Profession Board of Tasmania or the Law Society of Tasmania in respect of the interlocutory application or the application for admission."
It was also ordered that the Court file not be available for inspection by members of the public without leave of a judge. Liberty to apply was granted to the respondents and the interlocutory application was adjourned to the same time as the hearing of the substantive application on 30 January 2017.
17 On 30 January 2017, Tennent J granted the substantive application. Her Honour ordered that the appellant be admitted to the legal profession. Tennent J adjourned the interlocutory application sine die and continued the orders of 19 January 2017 pending further order. The interlocutory application came on for hearing before Tennent J on 10 March 2017 and was adjourned for mention on 22 March 2017, with the existing orders to continue until further order. Directions were made concerning reliance on affidavit material, the appellant having indicated that he proposed to rely on other affidavits affirmed on 16 January 2017 and 25 January 2017.
18 On 29 March 2017, the matter came back before Tennent J. Her Honour asked the appellant what affidavits he relied on in support of obtaining "final orders". The appellant expressed a reluctance to advise the respondents of the affidavits he intended to rely upon in support of the orders he was seeking. Her Honour noted that the substantive application had been determined and it was unusual to have an interlocutory application that had not been finalised. Her Honour told the appellant that the Court had no jurisdiction to deal with the interlocutory application because the proceedings under the substantive application had ended.
19 Her Honour informed the appellant that he would need to file a writ seeking substantive orders and an interlocutory application within that new proceeding. The appellant was concerned to keep the original interlocutory application on foot so as to avoid being cross-examined on his affidavit material. The appellant sought to file a "sealed affidavit" and have her Honour determine whether the material in it entitled him to privilege against self-incrimination based on the material in that affidavit. Counsel for the respondents applied orally for the interlocutory application to be dismissed. Her Honour adjourned that application to 13 April 2017, giving the appellant an opportunity in the meantime to regularise matters by filing a writ seeking the relief he wished to obtain from the Court. Tennent J said that she was prepared to direct the Registrar to waive a filing fee in respect of the writ which the appellant may seek.
20 On 13 April 2017, the appellant appeared to be under the impression that he had been ordered to file a writ and sought a copy of those orders so he could appeal from them. Her Honour pointed out that she had made no such orders and had listed the respondents' application to dismiss the interlocutory application. The appellant contended that her Honour had suggested on the last occasion that she would dismiss the interlocutory application. He asked the judge to disqualify herself from hearing the respondents' application. He refused to participate further in the proceeding before her Honour.
21 Counsel for the respondent made submissions as to why the interlocutory application should be dismissed. He observed that the purpose of adjourning the proceeding to 13 April was to allow the appellant the opportunity to file a writ seeking a permanent injunction and an interlocutory application in any such new proceeding. Counsel opposed the application that her Honour disqualify herself, given that all she had discussed on 29 March 2017 were possibilities for bringing the matter to finality.
22 Her Honour delivered an ex tempore ruling. She observed that the substantive proceeding was finalised on 30 January 2017. She said that the adjournment sine die of the interlocutory application on that day was "an ill-advised step". Her Honour referred to the discussion on 29 March as to whether the Court had jurisdiction to deal with an interlocutory application in a proceeding that was no longer on foot. She referred to the opportunity given to the appellant to regularise matters by filing a writ and an interlocutory application in any such new proceeding seeking interim orders. Her Honour observed that no such step had been taken.
23 Tennent J observed that the only application the appellant had made on the day was that she disqualify herself from hearing the matter. Her Honour declined to disqualify herself. She observed that on the last occasion she agreed with the respondents' counsel that the appellant should take steps to regularise the proceedings. Tennent J said that she had not compelled the appellant to do so, but had given him the opportunity to do so.
24 Her Honour said that "an interlocutory application is an application in pending proceedings. It is not an application that can be dealt with in a vacuum or unrelated to originating proceedings of the same description". Tennent J held that "this Court does not have continuing jurisdiction to deal with an interlocutory application, effectively in a vacuum". Her Honour dismissed the interlocutory application filed on 11 January 2017 and discharged the orders made by Brett J.
25 The appellant now appeals from those orders, as well as from her Honour's decision not to disqualify herself from hearing the application to dismiss the interlocutory application.
The appeal – ground 1
26 Ground 1 of the appeal alleges that her Honour failed to bring an impartial and unprejudiced mind to the proceeding by expressing strong views on 29 March about dismissing the matter on 13 April.
27 The appellant submitted that a fair-minded observer might reasonably apprehend that her Honour had pre-judged the issue before her on 13 April. This was said to arise from comments made by her Honour about the Court's jurisdiction on 29 March 2017.
28 At line 7 of page 10 of the transcript on 29 March 2017, her Honour referred to the lack of jurisdiction to "deal technically within [sic] an interlocutory application because the substantive proceedings have ended". Her Honour observed that the appellant would need to file a writ. At line 23, page 12, the primary judge said:
"… your application was an interlocutory application in pending proceedings. Those proceedings have been finalised. So technically speaking there are no proceedings in respect of which there can be interlocutory orders."
29 At page 13 of the transcript, her Honour foreshadowed the making of an order that the appellant file a new originating process in 14 days. In the course of a discussion about that proposed order, the primary judge said, "… well, in any event, because if you don't do what the first order suggests or if you do I am going to dismiss the interlocutory proceedings".
30 Counsel for the respondents had foreshadowed an application to dismiss the interlocutory application for want of jurisdiction. At page 19 of the transcript, her Honour said to the appellant:
"… what Mr Readett outlined a few moments ago as to what is possibly the correct legal position in relation to the proceedings we have at the moment is, in my view, correct."
31 At page 20, her Honour said to the appellant:
"… the proceedings you commenced were interlocutory – an interlocutory application in a substantive proceeding which has now gone, that if you want to maintain on a final basis the types of orders that you're seeking, you should more properly file a writ, seek the same orders by way of substantive orders or relief in the writ, and you then file an interlocutory application seeking the orders on an interim basis."
32 In expressing the view that the interlocutory application could not be dealt with as the substantive application in which it was filed had been dismissed, her Honour pre-judged the very issue which was adjourned until 13 April 2017.
33 In light of the comments extracted from the transcript and referred to above, "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" Ebner v Official Trustee in Bankruptcy [2000] HCA 63, 205 CLR 337 at [6], per Gleeson CJ, McHugh, Gummow and Hayne JJ. As Kirby J said in Antoun v The Queen [2006] HCA 2, 224 ALR 51 at [29]:
"A line is drawn between forthright and robust indications of a trial judge's tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings."
34 I consider that the strong comments made by the primary judge constituted an impermissible indication of pre-judgment of the issue which she adjourned to be considered on 13 April 2017. Those comments made on 29 March 2017 foreshadowed what her Honour would do on 13 April, that is, dismiss the interlocutory application on the basis that she had no jurisdiction to deal with it.
35 At the hearing on 13 April 2017, the appellant asked her Honour to disqualify herself from hearing the application to dismiss his interlocutory application. Her Honour refused that application (see page 11 of the transcript). At page 11, line 32ff, the primary judge said:
"I do not propose to excuse myself from dealing with the application now made by Mr Readett. The reason for that is essentially that during the course of the proceedings on the last occasion Mr Readett outlined for the Court, but clearly in [the appellant's] hearing, the steps that he should properly take to, in my words, regularise these proceedings.
Now, I took the view on that occasion that he was correct." [Emphasis added.]
Her Honour went on at page 12 to say that the matters to which the appellant referred in the transcript "do not reflect a view that I had prejudged the application by Mr Readett". I disagree with her Honour's view there expressed, especially in circumstances where she had just said that she took the view on 29 March that the proceedings should be regularised.
36 Ground 1 of the grounds of appeal has been made out.
Ground 2
37 Ground 2 of the notice of appeal contends that the Court erred in holding that it lacked jurisdiction to proceed with the interlocutory application.
38 Her Honour held that the interlocutory application could not be dealt with "in a vacuum" after the substantive proceeding in which it had been filed had concluded.
39 In the ordinary course of proceedings, interlocutory applications are filed to resolve some issue arising in the proceeding. However they are not so confined and may, for example, be brought to seek leave to extend the time within which to bring a proceeding: see Hall v Nominal Defendant (1966) 117 CLR 423 at 440, per Taylor J. In Hall, Taylor J referred to Smith v Cowell (1880) 6 QBD 75 at 78, in which the Court of Appeal held that the expression, "interlocutory order" was "wide enough to include orders made after the conclusion of the proceedings in the action". See also Kay v Attorney-General (Vic) [2000] VSCA 76, 34 ACSR 437 at [32], per Chernov JA.
40 Counsel for the respondent was unable to point to any authority to support the proposition that the Court was unable to continue to deal with an unresolved interlocutory application after the substantive application had been finalised.
41 After a matter has been finalised it is possible that controversies may arise in relation to issues such as variations as to orders made, costs, access to documents on the court file, and the like. There is no hard and fast rule that says an interlocutory application cannot be dealt with or continued after the substantive application has been finalised. If there is a concern about the regularity of an unresolved interlocutory proceedings after the finalisation of a substantive proceeding, the court may take any of the steps provided for in s 201(1) of the Supreme Court Civil Procedure Act 1932, and make any order required to resolve any difficulty which may arise as to the practice or procedure to be followed. Section 201(1) provides:
"(1) In any case in which no form or manner of procedure is provided for by this Act or the Rules of Court , or in which any difficulty arises or doubt exists as to the procedure or practice to be followed in, or with respect to, any proceeding in the Court, or about to be instituted therein, the Court or a judge, if satisfied that such case is unprovided for, or that there is any such difficulty or doubt, shall have jurisdiction to make such order and give such directions as to the institution or prosecution of the proceeding as may be necessary to meet the case, and any proceeding or step in a proceeding taken in accordance with any such order or direction, shall be deemed to be regular and sufficient. Any such order or direction made or given by a judge may be varied or discharged by a Full Court, but the variation or discharge of the order or direction shall not invalidate or affect the regularity or sufficiency of any proceeding or step in a proceeding taken pursuant to any such order or direction."
42 There is also an issue as to whether the order admitting the appellant to practice as a legal practitioner finally disposed of the rights of the parties on 30 January 2017. Only the appellant was a party to the admission application. The respondents were parties to the interlocutory application which was adjourned on that day and left unresolved. Although there is no need to form a concluded view on the matter, it may be that the admission order, seen in the context of the interlocutory application, did not finally resolve the rights of the parties as at 30 January 2017. At the very least, the appellant's right to pursue a suppression order and a non-publication order was left unresolved.
43 In supplementary written submissions, the respondents submitted to the effect that the relief sought in the interlocutory application was not interlocutory but final. This is tantamount to submitting that the interlocutory application was not an interlocutory application at all. The respondents submitted that the order sought in the interlocutory application was a final order prohibiting them from disclosing certain material. It is contended that it was an order which sought to determine substantive rights and impose obligations.
44 Counsel drew a distinction between "procedural or adjectival" orders and those determining substantive rights and obligations. In that regard counsel relied on the judgment of Kourakis J (as he then was) in Hardel Pty Ltd v Burrell and Family Pty Ltd [2009] SASC 77, 103 SASR 408, with which Nyland and David JJ agreed. At [34]-[43] in Hardel, Kourakis J said:
"34 In my respectful opinion there is much utility in the reformulation of the interlocutory/final dichotomy by reference to the concept of procedural or adjectival orders on the one hand, and orders determining substantive rights and obligations on the other. Disputed questions of law may arise between persons about the scope and extent of those rights and obligations, as may factual disputes about the circumstances which attract them. Rights carry with them a co-relative right to enforcement or remedial orders if those obligations are breached. It is the function of courts to adjudicate those controversies. As Kitto J observed in R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361:
'[J]udicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of persons, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361 at 374.'
35 A final order is generally one that creates the 'new charter' to which Kitto J referred. It is the very essence of the exercise of judicial power that it finally settles the controversy which is the subject matter of the action, and thereby precludes any further application for another or different orders with respect to that matter; to ask whether a further application can be brought for the purpose of determining whether an order is final or interlocutory conflates cause and effect.
36 Conversely, decisions on whether the court’s jurisdiction to adjudicate a controversy has properly been invoked, and on whether its procedures for determining that controversy have been complied with, are generally adjectival and therefore interlocutory. Speaking loosely it might be said that parties have a right to the correct and proper application of the procedural rules of the Court to the litigation they conduct within it. Indeed, if the proper procedure is not applied, the parties can generally seek leave to appeal procedural orders. However, parties do not have 'rights' against the judicial tribunals that determine their controversies in the same sense that they have rights against each other under the substantive law.
37 The distinction between substantive and adjectival orders to which I have referred is not the same as, but may be informed by, the distinction drawn by the common law between procedural and substantive legislative amendments for the purpose of determining whether the legislation will be given retrospective or prospective effect.
38 The distinction, I think, also explains why in some cases different orders made on the same application may be interlocutory or final depending on the result. An order granting an application for summary judgment is a final order, because it finally disposes of the action by a judgment which creates a new charter governing the substantive rights of the parties. However, an order dismissing an application for summary judgment merely decides that the procedure by which the controversy will be determined will be the ordinary trial procedures of the Court, and not the summary procedure that the party attempted to invoke. See generally the discussion in Jefferson Ford Pty Ltd v Ford Motor Co Ltd [2008] FCAFC 60; (2008) 167 FCR 372
39 Applying the principles I have identified to an action of the nature here in question, I am of the opinion that an order made on an application to set aside a statutory demand is procedural and interlocutory. The relevant statutory provisions inextricably link proceedings to set that demand aside to proceedings to wind up the debtor company.
40 Those statutory provisions show that, although the service of a statutory demand and the proceeding in which it can be set aside precede an application to wind up a company, their only legal effect is in the subsequent winding up proceedings, should they ever be brought. Proceedings to set aside a statutory demand are therefore analogous to other pre-action proceedings, like applications for leave to proceed and applications for pre-action discovery.
41 Applications to set aside a statutory demand are pre-action procedures which affect, and only affect, the proceedings on the winding up. Service of statutory demands, orders dismissing applications to set them aside and orders varying them do not determine or affect in any way the underlying controversy about the alleged debtor’s liability to pay the debt. If the creditor wishes to prove the debt and obtain an order for its payment, it must take separate proceedings for that purpose. Even orders made on the winding up proceedings cannot settle the controversy over the debt. The substantive right in question in the winding up proceedings is the right of the company to its corporate personality and to the exercise of the rights, powers and privileges that go with it.
42 The procedural nature of the orders made on the application to set aside a statutory demand is emphasised by ss 459C(3) and 459S(2) of the Act. Section 459C(3) allows the company to rebut the presumption of insolvency, which is a statutory concomitant of an extant statutory demand, by proving that the company is solvent notwithstanding the debt which is the subject of the demand. Section 459S empowers the Court, in the exercise of its discretion, to allow the debt itself to be disputed even where a statutory demand has not been set aside.
43 The practical effect of the dismissal of an application does not in any way alter my conclusion. First, it is clear on the authority of Licul that it is the legal effect that must be considered. See also Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 at 377-8 per Kirby P and Glass JA. Secondly, even if one were to consider the practical effect of the dismissal, that effect is completely procedural and adjectival in nature for the reasons that I have given."
45 The instant case is an unusual one. The final order sought in the proceeding was one of admission to the legal profession. The substantive application was supported by an affidavit. The interlocutory application sought to prevent the disclosure of certain material contained in that affidavit and to prevent the publication of a report of the substantive proceeding. The interlocutory orders sought did not contain a time limit. The orders sought were adjectival in the sense that they were intended to limit the use of affidavit material filed in the substantive proceeding and to suppress publication of a report of the substantive proceeding. Although couched in terms which appear to seek final relief the interlocutory application stems directly from the substantive application. If the application for a suppression order had been made during the hearing of the admission application, it would have been seen as adjectival to that admission application and hence interlocutory in nature. The answer to the current quandary lies in s 201(1) of the Supreme Court Civil Procedure Act which is set out at [41] above. Under that provision the Court is able to give directions to resolve the controversy created by the institution of the interlocutory application and facilitate its resolution by the Court.
46 Ground 2 of the appeal should succeed. The primary judge's ruling that the court lacked jurisdiction to deal with the interlocutory application was incorrect.
Ground 3
47 Ground 3 states that the primary judge erred in granting summary judgment to the respondents. In view of my conclusion in respect of ground 2, it is unnecessary to deal with this ground. Her Honour granted the respondents' application to dismiss the interlocutory application because she considered she had no jurisdiction to deal with the interlocutory application. There is no point in characterising the judgment below as one granting summary judgment. Ground 2 sufficiently deals with why the interlocutory application should not have been dismissed.
Ground 4
48 This ground takes issue with comments made by the primary judge in directions hearings preceding her 13 April judgment. Those comments concerned whether the orders of Brett J were interim, and whether his Honour had made any determination about their appropriateness. This is not a proper ground of appeal. It does not seek to challenge her Honour's order to dismiss the interlocutory application. To the extent it seeks to quarrel with comments of her Honour, it is misguided. It is clear from the transcript before Brett J on 13 and 19 January 2017 that his Honour was making interim orders pending a full contested hearing of the merits of the interlocutory application.
Ground 5
49 The appellant raises the issue of her Honour's failure to grant a stay on her orders of 13 April 2017. Whether there should be a stay on those orders pending appeal has been dealt with by Wood J. Her Honour refused that application. This ground of appeal, consequently, was not pressed on the appeal. In any event, the position of the appellant is protected by certain undertakings offered by the respondents regarding disclosure of material in his affidavit in support of his application for admission.
Disposition
50 Having regard to my conclusions with respect to grounds 1 and 2 of the appeal, I would order that the appeal be allowed and the interlocutory application filed on 11 January 2017, be remitted to a judge of the Court. The interim orders made by Brett J on 13 January 2017, as varied on 19 January 2017, should be reinstated and continued until further order of a single judge.
File No FCA 1136/2017
QRS v LEGAL PROFESSION BOARD OF TASMANIA
and LAW SOCIETY OF TASMANIA
REASONS FOR JUDGMENT FULL COURT
PORTER AJ
13 October 2017
51 For the reasons given by Marshall AJ, I agree that the appeal should be allowed, the order dismissing the interlocutory application be set aside, the application be remitted for determination by a single judge and that the interim orders be reinstated until further order. I also agree with the additional comments of the Chief Justice.
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