Queensland Law Society Inc v Sande
[1995] QSC 101
•5 June 1995
IN THE SUPREME COURT
OF QUEENSLAND 679 of 1995
[Queensland Law Society Inc v Sande]
BETWEEN:
QUEENSLAND LAW SOCIETY INCORPORATED
First Plaintiff
AND:
THE COUNCIL OF THE QUEENSLAND LAW SOCIETY INCORPORATED
Second Plaintiff
AND:
PAUL ALEXANDER SANDE
Defendant
JUDGMENT - THOMAS J.
Delivered:5 June 1995
CATCHWORDS: SOLICITORS - mutual recognition principle - application for admission as solicitor with conditions restricting practice to equivalent of land broker in South Australia - issue of "equivalent occupation" - deemed registration upon application - power to refuse application - refusal taking effect "at least" two weeks after notification - applicant's appeal to Administrative Appeal Tribunal against refusal - applicant continuing to make similar applications for sole purpose of linking up deemed registration with two-week periods of delayed effect of refusal - whether an abuse of process - Courts' powers to restrain abuses of process - applicant continuing to practise as conveyancer despite refusals - whether injunction should issue to restrain such practice - extent to which Mutual Recognition Acts' structure of professional system is preserved - further applications and further practice as solicitor or conveyancer - restrained pending final determination of entitlement - Mutual Recognition Act ss. 6(2), 17, 19, 20, 21, 23, 25, 26, 29, 34.
Counsel:R. Perry for the plaintiffs
P.A. Sande in person
Solicitors:McCulloch Robertson for the plaintiffs
Hearing Date: 30 May 1995
IN THE SUPREME COURT
OF QUEENSLAND 679 of 1995
BETWEEN:
QUEENSLAND LAW SOCIETY INCORPORATED
First Plaintiff
AND:
THE COUNCIL OF THE QUEENSLAND LAW SOCIETY INCORPORATED
Second Plaintiff
AND:
PAUL ALEXANDER SANDE
Defendant
JUDGMENT - THOMAS J.
Delivered the 5th day of June 1995
This is a motion for declaration and injunction under O.57 r.1. In effect the Queensland Law Society seeks to restrain Mr Sande from continuing to perform conveyancing work in Queensland unless and until he obtains appropriate registration. There is a pending appeal soon to be heard in the Administrative Appeals Tribunal which will determine whether his application for a limited right of practice as a solicitor ought to be approved or refused. The restraint that I am asked to impose will terminate when and if he obtains the necessary approval.
On the material before me there is little doubt that he has been conducting a conveyancing practice and that unless restrained he intends to continue doing so by one means or another.
The first plaintiff, Queensland Law Society Incorporated ("the Society") is charged with the regulation of the solicitors' profession in this State, and its powers include the issuing of relevant practising certificates. It has the right to bring proceedings for breaches of s.39 of the Queensland Law Society Act.
The second plaintiff, The Council of the Queensland Law Society Incorporated ("The Council") is authorised to bring proceedings with respect to breaches of s.41 of the Supreme Court Act, by virtue of s.5(11) of the Queensland Law Society Act.
On the face of things Mr Sande's conduct breaches both s.41 of the Supreme Court Act of 1867 and s.39 of the Queensland Law Society Act 1952. Any repetition of that conduct, or even variations of it which amount in substance to participating in conveyancing without an appropriate certificate, will continue to infringe those laws. If nothing else appeared, an injunction would be readily granted preventing the continuation of such conduct.
Mr Sande's contention is that notwithstanding the absence of admission in this State as a solicitor or a conveyancer and the fact that he has not obtained a practising certificate, he is entitled by virtue of certain provisions in the Mutual Recognition Act 1992 (Commonwealth) to practise his "equivalent occupation". He contends that the right arises under applications he has made under the Act, and that his right to do so will be continued by the making of further consecutive applications even if those applications continue to be refused by the Registrar.
In order to understand the submissions, it is necessary to give a short history of relevant applications. He has on a number of occasions made concurrent applications to the Registrar of the Supreme Court for admission as a solicitor and admission as a conveyancer. The applications for admission as a solicitor are of a limited kind, seeking the imposition of conditions which would restrict his activities to those that may be undertaken by a conveyancer in South Australia or a conveyancer in New South Wales. The applications for admission as a conveyancer in Queensland are in my opinion not viable for the reasons given by Fryberg J in Re Wood (M.57/95 1 Feb. 1995), and in Re Sande (OS 895/95 9 March 1995). These reasons include the finding that there is no occupation of conveyancer (within the meaning of "occupation" in the Mutual Recognition Act) presently in existence in Queensland.
In the interest of simplicity I shall recount only the recent history of his applications for admission as a solicitor. Under guidelines pursuant to s.39 of the Mutual Recognition Act an application under s.19 is lodged with the Registrar of the Supreme Court. It is considered by the Solicitors' Board whose recommendation is then considered by the Registrar. The decision to grant or refuse is the Registrar's. Paragraph 12 of the guidelines provides that the Registrar may exercise the powers and perform the functions of the Court under the Mutual Recognition Act. Those powers and functions are those relating to the admission of solicitors.27 July 1994 Mr Sande applied to the Registrar for admission as a solicitor (with conditions).
2 August 1994 The Registrar refused the application on the ground that his application did not produce evidence of existing registration as a solicitor. The refusal was under s.23(1)(b) of the Mutual Recognition Act.
10 August 1994 Mr Sande applied to the Administrative Appeals Tribunal for review of the Registrar's decisions (i.e. of his applications for solicitor with conditions and for conveyancer).
28 April 1995 Mr Sande again applied to the Registrar for admission as a solicitor with conditions, in identical terms to those of the previous application.
4 May 1995Registrar requested further information.
26 May 1995Registrar refused the application on the grounds of s.23(1)(b) and 23(1)(c) of the Mutual Recognition Act.
29 May 1995Mr Sande again applied to the Registrar for admission as solicitor with conditions. It was in the same terms as the previous applications save that the circumstance that he was now a conveyancer in New South Wales was added to the material supporting the application, and the conditions restricting his activities were suggested in the application as "those that a conveyancer in South Australia and a conveyancer in New South Wales may legally undertake . .".
Mr Sande's submission refers firstly to "the mutual recognition principle". That is set out in s.17 of the Act:
"17. (1) The mutual recognition principle is that, subject to this Part, a person who is registered in the first State for an occupation is, by this Act, entitled after notifying the local registration authority of the second State for the equivalent occupation:
(a)to be registered in the second State for the equivalent occupation; and
(b)pending such registration, to carry on the equivalent occupation in the second State.
(2) However, the mutual recognition principle is subject to the exception that it does not affect the operation of laws that regulate the manner of carrying on an occupation in the second State, so long as those laws -
(a)apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State; and
(b)are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation."
The effect of State laws that regulate the manner of carrying on an occupation is therefore preserved subject to two provisos. In the present context it seems to me that Queensland laws satisfy s.17(2)(a). The object of 17(2)(b) seems to be that an applicant does not have to prove that his qualification or experience in the first State matches different qualification standards of the second State. It seems to me that the point of that sub-paragraph is to preclude the object of the legislation being defeated by insistence in the second State upon different standards of alleged fitness. The Mutual Recognition (Queensland) Act has been passed in this State, and I do not understand that any Queensland laws of this kind stand in the way of the applicant. If they did they would not withstand s.109 of the Constitution. Accordingly the mutual recognition principle is subject to the operation of those Queensland laws that regulate the manner of carrying on the professions of solicitor and of conveyancer, but not laws that specify the necessary level of qualification or experience.
The section assists Mr Sande in a general way in that it expresses an intention in principle that pending registration he ought to be able to carry on his equivalent occupation here. There is in this case a serious question concerning whether becoming a solicitor, even with limitations, can be regarded as an "equivalent occupation" with that which he practices in South Australia. The legislation does not in the end require that such a question be begged in an applicant's favour. (See ss.23(1)(c), 29). The principle is "subject to this part".
Section 19(1) gives a person registered in one State the right to apply for registration "for the equivalent occupation" in another State.
Section 20 includes the following:
"20 (1) A person who lodges a notice under section 19 with a local registration authority of the second State is entitled to be registered in the equivalent occupation, as if the law of the State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration."
Section 21 gives a power of refusal to the registration authority.
"21 (1) Registration must be granted within one month after the notice is lodged with the local registration authority under section 19.
(2) When granted, registration takes effect as from the date the notice was lodged.
(3) However, the local registration authority may, subject to this Part and within one month after the notice was lodged, postpone or refuse the grant of registration.
(4) If the local registration authority neither grants the registration nor takes action under subsection (3) within the period of one month after the notice is lodged, the person is entitled to registration immediately at the end of that period and no objection may be taken to the notice on any of the grounds on which refusal or postponement may be effected, except where fraud is involved."
Section 23 includes the grounds upon which refusal may be determined.
"23 (1) A local registration authority may refuse the grant of registration if -
(a)any of the statements or information in the notice as required by section 19 are materially false or misleading; or
(b)any document or information as required by section 19(3) has not been provided or is materially false or misleading; or
(c)the authority decides that the occupation in which registration is sought is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
(2) A decision to refuse to grant registration on the ground that the occupation in which registration is sought is not an equivalent occupation takes effect at the end of a specified period (not less than 2 weeks) after the person is notified of the decision, unless it has been previously revoked or there is an application for review to the Tribunal, in which case the Tribunal may make whatever orders it considers appropriate."
Section 25 provides:
"25 (1) A person who lodges a notice under section 19 with a local registration authority of a State is, pending the grant or refusal of registration, taken to be registered as provided in section 20.
(2)Such registration is called "deemed registration" in this Act.
(3) Deemed registration in one State does not of itself provide a basis for registration in another State."
Section 26 deals with the duration of deemed registration, and includes:
"26 (1) A person's deemed registration in the second State continues until it is cancelled or suspended or otherwise ceases in accordance with this Part.
(2) A person's deemed registration in the second State ceases if the person becomes substantively registered in the State in connection with the occupation concerned.
(3) A person's deemed registration in the second State ceases if the local registration authority of the State refuses to grant registration, subject to any determination of the Tribunal.
. ."
The above provisions raise a number of difficulties. One of them is the postponement of the effectiveness of a decision that refuses registration (s.23(2)) for a period of "not less than two weeks". This might contemplate the specification by regulation of a period of two or more weeks. Alternatively it might assume that the local registration authority will specify a period, and that if it does so, it may specify a period of two weeks or more. It is possible to agonise over such drafting difficulties, but on direct impression I do not think that a duty is cast upon the local registration authority to state a specific period. If no period is stated by the authority or by regulation the delayed effect will be two weeks. If the authority chooses to grant a greater period than this, well and good, that greater period will apply.
I shall therefore proceed in the present matter on the footing that s.23(2) of its own force has a suspending effect of two weeks upon the effectiveness of the decision to refuse.
Another difficulty arises in reconciling ss.23(2), 25(1) and 26(3). It will be seen that the mere lodgment of a notice gets the applicant the benefit of "deemed registration" under s.25. However the right of the registration authority to refuse to grant registration is also recognised (s.23(1) and 26(3)). A refusal terminates the deemed registration (s.26(3)). But is s.26(3) subject to the same period of deferment as s.23(2)? Different answers might no doubt occur to different minds. Taking into account the obvious intention of the legislation to assist applicants to carry on an equivalent occupation in another State, the better view may be that the applicant gets the benefit of a two-week period of grace for the purposes of both ss.23(2) and 26(3). I shall act on this basis although I acknowledge the strength of the argument that s.26(3) ends a deemed refusal from the time of the act of refusal, and not from the date when the determination becomes effective as between the registration authority and the applicant (as is the effect of s.23(2)).
Applying this to the facts, on 27 July 1994 Mr Sande obtained the benefit of deemed registration (as a "solicitor with conditions"). He retained the benefit of that deemed registration until 14 days after notification of refusal, that is to say until 16 August 1994. His deemed registration in this State then ceased, and prima facie so did his right to practise here in the stated profession. The bringing of his application to the Administrative Appeals Tribunal for review did not reestablish any form of deemed registration or of entitlement to practice. His activity, at least over the ensuing eight months until 28 April 1995 when he made another application, was not in my view protected by any provision of the mutual recognition legislation. The Administrative Appeals Tribunal has jurisdiction under s.41(2) of the Administrative Appeals Tribunal Act 1975 to stay implementation of the decision that is to be reviewed, but no stay has been sought.
The proceedings in the Administrative Appeals Tribunal are due to be heard very soon. That Tribunal will hear the application de novo and is seised of all relevant issues. It has the power to determine in a binding way whether Mr Sande's application for this limited type of registration should be granted or not, subject of course to further appeal to the Federal Court. That hearing will be the core determination of the issue between the parties. Mr Sande conceded that all issues that are before me in this application are before the Administrative Appeals Tribunal. Those issues will in the ordinary course be determined by that Tribunal after a hearing on 7-8 June 1995. One such issue, probably the main one, is whether the activities authorised to be carried out under each registration are substantially the same (s.29).
Mr Sande went on to submit that "Nothing in the Act stops me from making further applications as I go along, or of using further applications to overcome problems". This I think is the key issue which I must now determine. If Mr Sande is right, he can bring as many applications as he likes, knowing that such applications have already been refused. His purpose is to link up the periods of grace that successive applications may generate. The essential question is whether he has the right to practise as a "limited solicitor" or as a conveyancer before the question of his entitlement to do so has authoritatively been determined. He has himself relied upon the pendency of the appeal to the Administrative Appeals Tribunal in recent litigation determined by Derrington J on 29 May 1995. In those proceedings the Society applied for a declaratory judgment to the effect that the Registrar's determination was correct. Such a declaration would have subverted the proceedings in the only appellate stream provided by the Mutual Recognition Act, and his Honour declined to make the declaration. (See O.S. 5 of 1995 Re Mutual Recognition Act, Re Queensland Law Society Incorporated Derrington J 29 May 1995). That decision of course says nothing about the question whether he should be permitted to practise before the Tribunal determines that he can.
If Mr Sande's submission is correct, notwithstanding the fact that the parties are in the course of litigation to determine whether his application should be granted and notwithstanding that the only decision so far made goes against him and has become effective, he has the right to bring multiple applications of the same kind to achieve further deemed registrations. If he is entitled to acquire rights in this way, he obtained a further deemed registration on 28 April 1995, and the Registrar's refusal of it cannot become effective until 9 June 1995. Furthermore, the additional application that he has brought on 29 May 1995 will give him a further deemed registration which cannot effectively be refused until two weeks after notification of refusal.
He may have the legal right to act in this way, just as any person has the legal right to bring multiple actions of the same kind in a court. However a person who does so abuses the process. The power of a superior court to prevent abuse of process is wide-ranging. It has been said that the Court has an inherent power to prevent the abuse of legal machinery (Remmington v. Scoles (1897) 2 Ch. 1, 4 per Romer J). A superior court has power to prevent persons abusing its own process and the process of inferior tribunals. The procedures which have been invoked in the present case are a form of process, and that if I conclude that Mr Sande's actions are an abuse of them, I may restrain such activity and may treat it as devoid of effect. The limits of this power have not been authoritatively canvassed, and it is not necessary to do more than note that this power underlies a number of important principles, including some aspects of estoppel and res judicata. In Brisbane City Council v. Attorney-General [1979] A.C. 411, 425, the prevention of abuse of process was regarded as the true basis of the principle of the res judicata there in issue. Their Lordships went on to observe the limitation that, "it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation". The breadth of the Court's powers to prevent wide-ranging types of abuse of process is apparent in Barton v. R. (1980) 147 C.L.R. 75, 90, 96.
There is no acceptable basis for thinking that any of the recent applications of Mr Sande, or any of the further ones he proposes to bring, are the bringing forward by him of any genuine subject of litigation. They are being used as a means to achieve an ulterior advantage, and are quite devoid of any other purpose. His right to have a proper ruling on the essential question is already the subject of pending litigation. It is an abuse of process for a claimant to litigate again an identical issue which has already been decided against him in earlier proceedings, even though the matter may not be strictly res judicata.
It is instructive to consider the consequences if Mr Sande's submission is correct. Even if the Administrative Appeals Tribunal gives a decision adverse to Mr Sande he will be still able to practise as a "limited solicitor" or conveyancer in Queensland (and for that matter in any other State or Territory) in perpetuity merely by bringing consecutive applications in the way he has indicated. No process could prevent him having his own way. That would subvert the due administration of the law, and is unlikely to have been intended by the Mutual Recognition Acts. Indeed, had a right of practice been intended pending review under s.34 it would have been provided by some less devious machination.
I do not construe the Mutual Recognition Act or the mutual recognition principle as giving right to applicants to run their own agenda outside the laws that apply to established professional and trade systems. There is a tension in s.17 between application of the new principle and of the preservation of the structure of the system into which the applicant wishes to enter. Under s.6(2) the laws of the State are not affected so far as they can operate concurrently with the Mutual Recognition Act. Plainly it is intended that the systems by which the professions are regulated should continue to function. The primary area in which existing practices are overruled is in relation to local requirements for qualification and experience. Due weight must be given to the principle that pending registration an applicant is entitled to carry on the equivalent occupation and to the wide discretion that exists to apply it. But as earlier mentioned, this is subject to the balance of part 3 of the Act which gives the registration authorities the right to refuse registration, and the fact that after a period of grace, the refusal is effective. Further there is a threshold question whether the application is for an "equivalent occupation" and that question is the subject of pending litigation.
One assumes that the applicant wishes to become part of an honourable professional body. The Registrar's decision is entitled to some legal effect under the Mutual Recognition Act. The subversion of that effect by manipulative abuses of the available process should not in my view be permitted.
I have no doubt that I can restrain further abuses of process and I shall do so. There is some doubt as to whether I may treat as a nullity the last two applications lodged by Mr Sande respectively on 28 April and 29 May. I propose to give him the benefit of that doubt, and to give him a short further period of grace, consistently with the spirit of the Mutual Recognition Act, so that his restraint from practice will commence fourteen days after the time of any refusal of the application dated 29 May 1995.
I declare that since October 1994 the defendant has from time to time acted and practised as a solicitor or conveyancer without having at the time a certificate then in force issued to him by the Secretary of the Queensland Law Society Incorporated, being a certificate referred to in s.38 of the Queensland Law Society Act, in breach of s.39 of the said Act.
An injunction will be granted restraining Paul Alexander Sande from the date which is fourteen days after notification by the Registrar of the Supreme Court of any refusal of Mr Sande's application for admission dated 29 May 1995 until such time as he is lawfully issued with a certificate by the Secretary of the Queensland Law Society Inc, being a certificate referred to in s.38 of the Queensland Law Society Act 1952, from directly or indirectly acting or practising in Queensland as a solicitor or conveyancer without having at the time such a certificate.
An injunction will also be granted restraining Paul Alexander Sande, between the times above stated, from directly or indirectly for expectation of fee gain or reward drawing or preparing a conveyance or other deed or instrument in writing relating to real estate, in the State of Queensland.
I will hear submissions in relation to the form of order.
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