Re Wishart

[1993] QCA 61

IN THE COURT OF APPEAL	[1993] QCA 061
SUPREME COURT OF QUEENSLAND

MOT No. 118 of 1993

Brisbane

[Re: Wishart]

IN THE MATTER OF "The Solicitors

Admission Rules 1968-1987"

- and -

IN THE MATTER OF an Application for
Admission as a Solicitor of the
Supreme Court of Queensland by

Suzanne Jane Wishart

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The Chief Justice
The President

Mr Justice Byrne

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Judgment delivered 11th day of March, 1993.

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APPLICATION ADJOURNED UNTIL THE NEXT DAY APPOINTED FOR

TAKING APPLICATIONS FOR ADMISSION

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CATCHWORDS: Legal Practitioners - Qualifications and admission - 13 weeks maternity leave taken with consent of master - Wh service under articles - Wh continuous service.

Counsel:	Mr P. Keane for the Applicant.
Solicitors:	The Solicitors' Board entered an appearance.

Hearing date: 1 February, 1993.
IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

MOT No. 118 of 1993

Brisbane

Before The Chief Justice

The President

Mr Justice Byrne

[Re: Wishart]

IN THE MATTER OF "The Solicitors

Admission Rules 1968-1987"

- and -

IN THE MATTER OF an Application for
Admission as a Solicitor of the
Supreme Court of Queensland by

Suzanne Jane Wishart

JUDGMENT - THE CHIEF JUSTICE

Delivered the 11th day of March, 1993

I am in agreement with the conclusion which Byrne J. expresses. I do not consider that it should be decided that the applicant was serving under articles of clerkship during the time when, with the consent of the Solicitors' Board, she took three months' maternity leave between October, 1991 and January, 1992.

The fact that the applicant applied for and obtained the Board's consent to take the leave seems to indicate that she herself considered she would be interrupting her service by taking it. It may be deduced that her interest in obtaining the Board's consent was attributable to a desire to secure an advance intimation that her resultant position would be one where she might be permitted to aggregate two discontinuous periods of service to compute the period of her service overall. The Board, in granting approval to take leave, refrained from indicating that she would be permitted to include the actual period of her leave in any subsequent computation of her total period of service.

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. Any deviation from these basic requirements for service will be permitted only if circumstances are shown which satisfy either the Board or the Court in terms of the discretions which are granted under rr. 94 and 95.

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.

Exceptional absences which are not standard and so not equally applicable to all applicants will include long leave taken for whatever reason, including leave for maternity or paternity reasons, extended overseas visits for holiday purposes or for alternative study experience and absences of significant length by reason of illness. I consider that these more significant absences when they apply will result in clerks' breaking continuity of service. If these absences were allowed to remain and be included within computations of relevant periods of service they would introduce a haphazard element which should not be regarded as intended under the rules. This is because there would result a requirement that applicants equip themselves to widely varying extents in terms of experience under articles and do so in ways which could be totally unrelated to the merits of their situations. However understandable or even commendable may be the reasons for departure from service, these significant periods of absence will not have the character of legal training under articles as contemplated by the rules and they will not provide what is specified as the necessary qualifying experience.

There exist provisions which, depending on the circumstances applicable in a particular case, allow the Board to order an abridgment where one of up to fourteen days is requested and the Court to make a more far-reaching order under its more general power of exemption or abridgment. 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. The rules in their present form contain no primary requirement that the Board or the Court shall make a qualitative examination of service undergone: they call rather for service of specified durations. While the rules remain in that form, any change of emphasis away from a situation where the periods are accepted as standard would be of doubtful benefit to all concerned and would introduce unnecessary confusion. The result is that the applicant can only obtain exemption from what I have called the basic requirement of the rules if she is able to show special circumstances for the exercise of the Court's discretion. I do not consider that the matters she is able to point to meet that test.

The application should be adjourned to the next day appointed for taking applications for admission so that the applicant can proceed further as she then decides.

[1993] QCA 061

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Motion No. 118 of 1993

Brisbane

Before The Chief Justice

The President

Mr Justice Byrne

[Re: Wishart]

BETWEEN

IN THE MATTER OF "THE SOLICITORS ADMISSION

RULES 1968-1987"

- and -

IN THE MATTER OF an Application for Admission as a
Solicitor of the Supreme Court of Queensland by

SUZANNE JANE WISHART

REASONS FOR JUDGMENT - THE PRESIDENT

Delivered the eleventh day of March, 1993

The details of this matter are set out in the reasons for judgment of Byrne J., and I need not repeat them.

Maternity leave, like annual leave, sick leave, study leave and compassionate leave, is in my view an ordinary incident of employment, and an interruption of service under articles of clerkship for such a purpose does not necessarily mean that the service under articles is not "continuous" as required by Rule 22.

Conversely, as Byrne J. indicates, it is of limited relevance that the two solicitors to whom the applicant was articled consider that she has enough knowledge to be able to practise as a solicitor.

At the end of the day, the question must be whether, despite interruptions, the applicant has served the specified period under articles, aggregating periods of service where that is appropriate. There is no rule of thumb which can be automatically applied to provide a solution in all cases.

I have concluded that the applicant should now be admitted. I have taken into account not only the periods for which she was absent from her articles but balancing considerations such as the annual leave which she did not take and the period which has now elapsed since the application was heard. In the circumstances, I do not think that it would be premature to admit the applicant without further delay.

THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 118 of 1993

Before the Court of Appeal

BETWEEN:

IN THE MATTER OF "THE SOLICITORS

ADMISSION RULES 1968-1987"

AND:

IN THE MATTER OF an application for
Admission as a Solicitor of the
Supreme Court of Queensland

by SUZANNE JANE WISHART

JUDGMENT - BYRNE J.

Delivered the 11th day of March 1993

CATCHWORDS:
Admission - whether three month absence is "service" within
rule 17 Solicitors' Admission Rules 1968 - whether
abridgment of six weeks appropriate - standard of clerk not
relevant to abridgment.
Hearing date: 1 February 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 118 of 1993

BETWEEN:

IN THE MATTER OF "THE SOLICITORS

ADMISSION RULES 1968-1987"

AND:

IN THE MATTER OF an application for
Admission as a Solicitor of the
Supreme Court of Queensland

by SUZANNE JANE WISHART

JUDGMENT - BYRNE J.

Delivered the 11th day of March 1993

The applicant, a graduate in law, seeks admission as a solicitor. To qualify for admission she is required to complete "to the satisfaction of the Board a period of practical training being ... service for a period of two years subject to the conditions prescribed under articles of clerkship": r. 17(1)(c)(i) Solicitors' Admission Rules,

1968. By 1 February, when her application for admission was made, a little less than two years had elapsed since she first began to serve as an articled clerk, which was on 4 February 1991. The Solicitors' Board may abridge the time prescribed for service by fourteen days: r. 94(1). The applicant did not seek such a concession, apparently because she thought that a 13 week absence from work in late 1991 and early 1992 precluded an abridgment by the Board. The Court is now asked to abridge the time and admit her. One basis on which we are asked to act is a contention that her 13 week absence is to be treated as time spent in "service ... under articles ...".

The applicant first entered into articles with one of the partners of a Brisbane firm of solicitors. When he left the partnership, on 16 December 1991 the articles were assigned to another solicitor in the firm. With the consent of the partners, the applicant was away from work from 17 October 1991 until 17 January 1992. She calls the period maternity leave. The Board's consent was sought to this arrangement to enhance the applicant's chances of aggregating the periods before and after her absence in calculating her two years "service". The admission Rules permit such a course. Rule 22 provides:

"Service under articles of clerkship ... must, as far as practicable, be continuous for the whole of the prescribed term but the court or board may, if it thinks fit, allow several periods of service ... to be reckoned together, notwithstanding intervals between them."

The attempt to demonstrate that the applicant was in "service" during her absence was based on a submission that her arrangements were, like annual leave, an ordinary incident of employment and for that reason was not an interruption which prevents time running.

Rule 22 has some significance in considering whether
the applicant was in "service" during her absence from work.
Absence so prolonged that it might adversely affect the

sufficiency of training is discouraged by Rule 22's insistence that, so far as practicable, service be continuous. 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. In the context of Rule 22 "continuous" cannot mean without any interruption.

Interruptions due to annual holidays and such events as temporary illness, disability or family exigency must have been anticipated by those who framed the two year service requirement; and so a clerk can be regarded as serving under articles during short absences: Re Sapupo [1974] Qd.R. 168.

However, a clerk is not in "service" during a very

substantial break.

Whether an absence amounts to suspension of service must be a question of degree influenced by the likely impact on the adequacy of practical training. Yet it is the duration of the absence which matters, not its cause. Whether the interruption is occasioned by economic necessity, illness or some other event is not significant in deciding whether a clerk can be regarded as serving while absent.

The three month interruption here was so extended as potentially to diminish the value of the applicant's practical training. It was too long to be regarded as a period during which she was in "service under articles". The applicant was correct in thinking that she requires an abridgment beyond the Board's powers if she is to be admitted at this time.

It is, however, appropriate that the two periods be "reckoned together". Even so the applicant is 13 weeks short of two years service. We were invited, if we reached this conclusion, to abridge the prescribed time for two reasons: (i) that the applicant has taken only two out of a possible eight weeks annual leave and has not used her full sick leave entitlement; and (ii) that the solicitors to whom she was articled consider that she has enough knowledge to practise as a solicitor.

Taking into account that the applicant worked for six weeks of her two annual holidays, her practical training is about six weeks less than it would have been had she been away from the office for eight weeks annual leave. This might have been important if the application for admission had been postponed for some weeks. It cannot greatly assist her now. Nor is it significant that the solicitors think she has developed practical skills to a satisfactory standard. One of them puts her "at the higher end of the scale" of clerks he has seen qualify for admission. But the Rules assume that the most talented of clerks will ordinarily serve two years.

The application is premature. I agree in the order proposed by the Chief Justice.