Re Mahiepala
[2006] QCA 153
•2 May 2006
SUPREME COURT OF QUEENSLAND
CITATION:
Re Mahiepala [2006] QCA 153
PARTIES:
IN THE MATTER OF THE RULES RELATING TO THE ADMISSION OF LEGAL PRACTITIONERS OF THE SUPREME COURT OF QUEENSLAND
and
IN THE MATTER OF AN APPLICATION BY DILHARI NADEERA MAHIEPALA FOR ADMISSION AS A LEGAL PRACTITIONER OF THE SUPREME COURT OF QUEENSLAND
(applicant)FILE NO/S:
SC No 3051 of 2006
DIVISION:
Court of Appeal
PROCEEDING:
Application for Admission
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
Orders delivered ex tempore 2 May 2006
Reasons delivered 12 May 2006DELIVERED AT:
Brisbane
HEARING DATE:
2 May 2006
JUDGES:
de Jersey CJ, McMurdo P and Williams JA
Judgment of the CourtORDER:
The applicant is admitted as a legal practitioner
CATCHWORDS:
PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – where the applicant served 40 weeks of her articles on a part-time basis (three days a week) – where the Legal Practitioners' Admissions Board withheld its certificate on the basis that the applicant was required to catch up four days of a seven day week during her part-time employment – the applicant contended that she was only required to catch up two days of a five day working week during her part-time employment – whether the applicant’s method of calculation in her particular case was correct
Solicitors’ Admission Rules 1968 (Qld), r 17(2)(a)(i), r 22
Supreme Court (Legal Practitioner Admission) Rules 2004 (Qld), r 37(3), r 37(5)(b)Re Wishart [1994] 1 Qd R 108, considered
COUNSEL:
M J Hogan for the applicant
A M Daubney SC for the Legal Practitioners Admissions BoardSOLICITORS:
No appearance for the applicant
M Timmins for the Legal Practitioners Admissions Board
THE COURT: The applicant seeks admission as a legal practitioner, but the Legal Practitioners' Admissions Board has withheld its certificate. The applicant has complied in all respects with the rules relating to admission save for an issue as to whether or not she has spent the requisite period under articles.
Rule 17(2)(a)(i) of the Solicitors’ Admission Rules 1968 (Qld) provided:
"The practical training that qualifies a person for admission is -
(a) for a person who . . . has completed, an approved degree in law at a tertiary institution in Queensland - starting, and completing to the satisfaction of the Board, within the three years before applying for admission, any of the following periods of practical training.
(i) Service for a period of two years subject to the conditions prescribed under articles of clerkship."
Rule 22 then provided that service under articles of clerkship "must, as far as practicable, be continuous for the whole of the prescribed term".
Admission is now regulated by the Supreme Court (Legal Practitioner Admission) Rules 2004 (Qld) and relevantly rule 37(3) thereof provides that where a person has commenced articles of clerkship under the Solicitors’ Admission Rules 1968 "[c]ompletion of the training mentioned" in those Rules is "approved practical legal training requirements for admission . . . as a legal practitioner." It is of some significance for present purposes that rule 37(5)(b) of the 2004 Rules relevantly provides:
"a period of service under articles of clerkship . . . is not taken to be a longer period merely because a person works for more than 35 hours a week during the period."
On 15 December 2003 the Solicitors’ Board consented to the applicant entering into articles of clerkship. Prior to formally entering into those articles her intended master wrote to the Board in the following terms:
"I am willing to take Dilhari Mahiepala as an articled clerk for the necessary term of her articles. It is expected that during University semesters in 2004 she will be employed 3 days per week and during University holidays throughout that year she will be employed full time. She expects to complete her Law Degree at Queensland University [of] Technology in or about November 2004 after which time she will be employed full time."
In consequence the Deed of Articles of Clerkship expressly provided:
". . .the Clerk of her own freewill [sic] agrees to serve as Clerk to the Solicitor for a term of 2 years from the 15th day of December 2003 on terms herein appearing those two years to be made up during University semesters in the year 2004 of 3 days work per week (accruing to the term at three fifths of a week per three days of work) and 5 days per week during holidays and thereafter."
Until her application for admission as a legal practitioner on 2 May 2006 the applicant has worked pursuant to those Articles. In consequence it is obvious that, looked at purely on a calendar basis, she has been employed under articles for a period in excess of two years.
On the assumption that a full week for present purposes is five working days, during the two calendar years from 15 December 2003 that the applicant was subject to articles, she actually worked a total of 440 days. If she had not worked only three days a week for a period of 40 weeks she would have ordinarily worked 520 days during the two year period; 520 days would be the usual number of days actually worked by an articled clerk complying with rule 17(2)(a)(i) of the 1968 Rules. That means that as at 14 December 2005 when the two year period was up, the applicant was some 80 working days short of the required 520. In the period between 15 December 2005 and the date of her application for admission as a legal practitioner she has worked more than 80 days, and in consequence, if the calculation is made on that basis, she has completed a full two years under articles.
The Board has not adopted that calculation. Rather the Board has said that an articled clerk is required to work a total of 728 days under articles; that is seven days a week for 104 weeks - the two year period. On that basis the applicant worked 568 days during the two calendar years, and had to work a total of 160 days more to satisfy the Rules. That would not be achieved until 21 May 2006.
The issue for this Court to determine is which method of calculation should be adopted.
Observations made by members of this Court in Re Wishart [1994] 1 Qd R 108 are helpful in resolving the competing submissions. Relevantly Macrossan CJ said at 108-109:
"The admission rules in their present form contain requirements for service under articles for periods which are specified in calendar year terms. I would deduce that these objectively stated requirements have, as their purpose, that all applicants for admission will be equipped with a measured length of experience which has been accepted as adequate in average cases. . . . It can be accepted that there are events and incidents which will apply more or less equally to all persons such as weekend breaks, standard holiday leaves and short absences through illness and they can be broadly regarded as taken up within the standard periods of service which are prescribed. . . . Nevertheless the basic requirement of the rules is not that applicants shall obtain a degree of experience which can fairly be regarded as equivalent to that which is derivable by service in the average case for the specified period but that all applicants shall actually serve and derive experience over the full length of the calendar period which is specified in their case. I would not wish to say anything which implies that applicants can acquire a right to a reduction in overall length of prescribed service by working overtime, habitually working at weekends or foregoing annual leave."
Byrne J in that case said at 111: "This requirement carries an implication that the clerk is expected to attend for practical training during ordinary office hours throughout the prescribed two years, apart from usual, brief absences."
Two relevant matters can be extracted from those passages. Firstly, the two year period is designed to ensure that the articled clerk gains "a measured length of experience" which is deemed to be adequate in the average case. That period cannot be shortened. It cannot be shortened, for example, by working on weekends or working overtime. That conclusion is now enshrined in rule 37(5)(b) of the 2004 Rules.
The second matter to be extracted from the reasoning in Wishart is that the period of practical training occurs during ordinary office hours; weekend breaks apply to all throughout the period.
It follows that where, as here, the applicant has worked subject to articles for more than a period of two calendar years, it is only necessary to make up the shortfall of actual working days. Whether one says that in calculating the time to be served one disregards "weekend breaks" or only has regard to "ordinary office hours" the answer is the same. In the present case the applicant was required to serve for a further 80 working days after the two year period of articles otherwise expired on 14 December 2005.
It follows that the applicant has satisfied the requirements of the Rules.
However, it must be emphasised that the serving of articles over at least a two year period is ordinarily a minimum requirement, subject to appropriate abridgment or exemption. One could not say, for example, that because the minimum requirement is to work subject to articles for 520 days, if one worked seven days a week then the requisite number of days could be achieved in about 17 months. Rule 37(5)(b) of the 2004 Rules now addresses that.
The essential requirement is that an applicant serve two years under articles. Where, as here, an applicant has served under articles for more than two calendar years, but, because five days a week was not worked for a portion of that period the required number of days has not been worked, the further days to be worked can be calculated as submitted by the applicant.
It was for those reasons that the Court on 2 May ordered that the applicant be admitted as a legal practitioner.
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