Sande v Queensland Law Society Incorporated
[1995] QSC 31
•9 March 1995
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 895 of 1995
[Sande v. Queensland Law Society Incorporated]
IN THE MATTER OF the Mutual Recognition Act 1992 (Commonwealth) and Mutual Recognition (Queensland) Act 1992
- and -
IN THE MATTER OF an Application by PAUL ALEXANDER SANDE and AUSTRALIAN INSTITUTE OF CONVEYANCERS INCORPORATED
REASONS FOR JUDGMENT - FRYBERG J.
DELIVERED: 9th March 1995
CATCHWORDS: Trade - Residual matters - Licensing - Mutual recognition - Existence of occupation - Conveyancer - Local Registration Authority - Mutual Recognition Act 1992, s. 4.
COUNSEL:Applicant: Mr. I. Callinan QC and Mr. R. Traves
First Respondent: Mr. G. Gibson QC and Mr. P. Applegarth
Second Respondent: Mr. D.J.S. Jackson QC
SOLICITORS: Applicant: Messrs. Creswicks
First Respondent: Crown Solicitors
Second Respondent: Messrs. McCullough Robertson
HEARING DATE: 20th January 1995
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 895 of 1995
[Sande v. Queensland Law Society Incorporated]
IN THE MATTER OF the Mutual Recognition Act 1992 (Commonwealth) and Mutual Recognition (Queensland) Act 1992
- and -
IN THE MATTER OF an Application by PAUL ALEXANDER SANDE and AUSTRALIAN INSTITUTE OF CONVEYANCERS INCORPORATED
JUDGMENT - FRYBERG J
Delivered the 9th day of March 1995
Mr. Paul Alexander Sande wrote to the Registrar of this Court in July 1994. His letter was undated and the return address was a post office box at the Gold Coast. His letter said (omitting formal parts):
"Pursuant to the provisions of the Mutual Recognition (Qld) Act 1992, please find enclosed:
1.Application for Admission to the Roll of Conveyancers.
2.Supporting Statutory declaration with supporting evidence.
As a fully qualified and licensed conveyancer in South Australia for nearly 10 years, during which time I attended to approximately 10,000 property transactions including representing Federal and Local Government authorities, my application is sought under the mutual recognition principles.
The application is lodged notwithstanding the provisions of Section 2 of the Legal Practitioners Amendment Act of 1938 and the subsequent Section 2 of the Legal Practitioners Act of 1954 as the Mutual Recognition (Qld) Act 1992 is in terms identical to the Commonwealth Mutual Recognition Act 1992."
The document enclosed with the letter was headed "Application for Admission to Roll of Conveyancers". It was dated 27 July 1994, was signed by Mr. Sande and was in the following terms:
"APPLICATION FOR ADMISSION TO ROLL OF CONVEYANCERS
Pursuant to Section 19(2) of the Mutual Recognition (Queensland) Act 1992, I, PAUL ALEXANDER SANDE of 18 Argyle Crescent Sorrento in the State of Queensland 4217 state that:-
(a)I am registered and licensed as a Land Broker (Conveyancer) in the State of South Australia.
(b)I seek admission to the roll of conveyancers in the Supreme Court of Queensland in accordance with the mutual recognition principles.
(c)I have substantive registration as a Conveyancer with the State of South Australia.
(d)I am not the subject of any disciplinary proceedings nor any preliminary investigations or actions that might lead to disciplinary proceedings in relation to conveyancing.
(e)My registration has not been cancelled or suspended in any state as a result of disciplinary action.
(f)I am not otherwise personally prohibited from carrying on such occupation in any state and am not subject to any special conditions in carrying on the occupation as a licensed conveyancer as a result of criminal, civil or disciplinary proceedings in any state.
(g)There are no other special conditions to which I am subject to in carrying out my occupation in any state.
(h)I hereby give consent to the making of inquiries of, and the exchange of information with, the authorities of any state regarding my activities in conveyancing or otherwise regarding matters relevant to this notice.
Dated the 27th day of July 1994
(signed)
PAUL ALEXANDER SANDE"
It was verified by a statutory declaration to which were attached copies of a "Land Broker's Licence Certificate" granted to Mr. Sande under the Land Agents, Brokers and Valuers Act 1973 (S.A.) on 24 February 1984, and a Landbrokers Certificate issued by the Department of Technical and Further Education of South Australia on 12 December 1984. Nothing else was placed before the Registrar to support the application.
By letter dated 2 August 1994 the Acting Registrar purported to refuse the application in the following terms:
"Since the enactment of Legal Practitioners Act Amendment Act of 1938, no person shall be admitted to practice as a conveyancer after 1 January 1940.
Therefore, pursuant to Section 29(1) of the Mutual Recognition (Queensland) Act 1992, there exists no equivalent occupation in Queensland (the second State) to that for which you are registered in South Australia (the first State).
You application for registration has been considered and for the reasons set out above your application has been refused. This determination shall be effective at the expiration of fourteen days from the date of your receipt of this correspondence."
The evidence before me does not disclose what happened next. However I understand from what was said from the bar table that proceedings are pending in the Administrative Appeals Tribunal. Presumably those proceedings consist of an application for review pursuant to s.34 of the Mutual Recognition Act 1992. Perhaps they will be affected by the outcome of the present application.
The application before me was commenced by originating summons filed on behalf of Mr. Sande and also on behalf of Australian Institute of Conveyancers Incorporated. Who or what the latter body is does not appear from the evidence. The relief sought in the summons is as follows:
"1.On the true construction of the Mutual Recognition Act (Cth) 1992, the Mutual Recognition (Qld) Act 1992, the Legal Practitioners Act 1881-1985, the Legal Practitioners Amendment Act of 1938 and the Supreme Court Act of Queensland 1867:-
1.1The occupation of 'Conveyancer' exists in the State of Queensland and is an occupation within the definition of 'Occupation' in Section 4(1) of the Mutual Recognition (Qld) Act 1992;
1.2Section 42 of the Supreme Court Act 1867 expressly provides for the rights for a Conveyancer to practise subject to certain conditions being met; and
1.3Section 2 of the Legal Practitioners Amendment Act 1938 does not abolish the occupation of Conveyancer in Queensland;
2.Section 2 of the Legal Practitioners Amendment Act 1938 is inconsistent with the Mutual Recognition Act (Cth) 1992 which impliedly provides for the profession of Conveyancer and the said Section therefore invalid by reason of Section 109 of the Commonwealth of Australia Constitution Act 1901.
3.The Applicant/Sande and/or the members of AIC is/are entitled to be registered in Queensland as a Conveyancer(s) pursuant to Section 19(1) of the Mutual Recognition (Qld) Act 1992, after notifying the local registration authority of Queensland namely the Registry of the Supreme Court and/or the Queensland Law Society Incorporated, and pending such registration to carry on the occupation of Conveyancer in Queensland."
At the commencement of the hearing, Mr. Callinan QC for the applicants requested that so much of the summons as sought relief in paragraph 3 on behalf of the second applicant be adjourned. He indicated that he was doubtful whether the applicants would ultimately be pressing for any relief on behalf of the second applicant. The other parties expressed no view as to the position of the second applicant. In my judgment however, the second applicant cannot be ignored merely by forgetting the claim for declarations involving it. On the proceedings as presently constituted, it is an applicant for the declarations sought in relation to Mr. Sande under all three paragraphs of the summons. There is no material to indicate any locus standi for it to seek those declarations, nor is there anything to suggest the existence of a relevant dispute which would found a claim to them. In those circumstances I do not see how I could grant the relief sought while the second applicant remains on the record. However that problem may be put to one side for the time being.
The first declaration sought
It is convenient to refer to the declarations sought by paragraph 1 of the summons as "the first declaration sought", "the second declaration sought" and "the third declaration sought" respectively. The first declaration sought has in sub-paragraph 1.1 two limbs. The first limb refers to the existence in Queensland of the occupation of conveyancer; the second to whether that occupation is an occupation within the definition of "occupation" in the Mutual Recognition Act 1992. Mr. Callinan contended orally that I should resolve the issue on the first limb as a matter of law, simply by having regard to Queensland legislation referring to practising as a conveyancer. The respondents contended that I should not make such a declaration because it would lack utility. There is no evidence before me of a dispute between the parties on this precise question.
In my judgment there cannot be a declaration in the terms sought in the first limb of paragraph 1.1 of the summons, considered in isolation. The terms of the declaration sought would be appropriate only if there had been a determination of a question of fact. No evidence has been placed before me to establish whether in fact the occupation does exist in Queensland. I do not think I can infer existence of the occupation as a matter of present fact from references or assumptions in statutes dating from 1867 to 1954. Moreover in the absence of proof of a live dispute between the parties, I am not prepared to exercise the declaratory jurisdiction of the Court.
However the first limb was probably raised only as an element in the second limb, and probably was not intended to be considered in isolation from it. The second limb is expressed to raise the question whether "conveyancer" is an occupation within the meaning of s.4(1) of the Mutual Recognition (Queensland) Act 1992. A minor preliminary problem is the fact that there is no such section in that act. I presume the reference is meant to be to s.4(1) of the Mutual Recognition Act 1992 of the Commonwealth. That definition is as follows:
"'occupation' means an occupation, trade, profession or calling of any kind that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification (for example, training, education, examination, experience, character or being fit or proper), and includes a specialisation in any of the above in which registration may be granted;"
It is convenient also to set out the definition of "registration":
"'registration' includes the licensing, approval, admission, certification (including by way of practising certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation;"
"Registered" has a corresponding meaning[1]. Those definitions apply "unless the contrary intention appears".
[1]Acts Interpretation Act 1901, s.18A (as amended to 21st December 1992; see Mutual Recognition Act 1992, s.4(2)).
Some observations may be made about these definitions. First there is a degree of circularity between them: each is in part defined in terms of the other. Second, no locality is identified in the definitions and no legislature is identified as the author of the legislation referred to in the definition of "registration". However the argument before me proceeded on the basis that the relevant legislation for the purposes of the proposed declaration was Queensland legislation. Although I was referred to South Australian legislation it was not suggested that I should make the declaration now under discussion by reason of that legislation and there would be little practical utility in my doing so.
The definition of "occupation" may be broken into relevant segments:
(1)an occupation, trade, profession or calling of any kind;
(2)that may be carried on by registered persons;
(3)and only by registered persons;
(4)where registration is wholly or partly dependent on the attainment or possession of some qualification.
I shall consider these segments of the definition in turn.
"occupation, trade, profession or calling"
Despite the reference in s.3 of the act to the principal purpose of the legislation being "promoting the goal of freedom of movement of goods and service providers in a national market in Australia", the operative provisions of the act, at least insofar as they refer to services rather than goods, deal only with occupations. The act relevantly does not attempt to provide for the mutual recognition of legislatively controlled services or activities, but only for the mutual recognition of regulatory standards relating to occupations[2].
[2]See further the discussion relating to "local registration authority" below.
The regular provision of a particular service or group of services to the public may or may not bespeak an occupation, trade, profession or calling. For example giving injections to people and stitching their wounds are, one assumes, services frequently provided by medical practitioners and nurses. I cannot imagine that anyone would presently describe either of those activities, or both taken together, as an occupation, trade, profession or calling in Queensland. It is not easy to articulate with precision the additional elements which constitute a group of activities an occupation, trade, profession or calling. Probably the activities must be substantially the whole of the range of the activities performed in the putative occupation and there may be something of a flavour of a full-time activity to the term. Possibly some element of public recognition of the activities as an occupation, trade, profession or calling is required. I do not think the existence of a system of registration of practitioners is conclusive[3], although it is a relevant factor. It is undesirable that I speculate too much about this point, since it was not the focus of the argument before me.
[3]For example (with apologies to the late Peter Sellers) toothbrush-holesmanship would hardly constitute an occupation within the meaning of the act merely by reason of a system of licensing the hole drillers.
One possible characteristic was the subject of argument. That was, whether it was necessary for anyone actually to be carrying on the alleged occupation at any given time. Mr. Callinan argued strongly that it was not, and I accept his submission in this regard. On the other hand, I do not think it would be irrelevant to examine whether the activities in question were carried on in fact from time to time in the relevant jurisdiction. If they were not, their absence might be some evidence to suggest that they did not amount to an occupation existing in the jurisdiction. If they were, and were the only activities carried on by their practitioners, those facts might be some evidence to suggest that they did amount to an occupation, trade, profession or calling.
The applicants did not put any material before me to indicate whether as a question of fact there is in Queensland an occupation, trade, profession or calling described as "conveyancer". Their case was that this element of the definition was established as a matter of law by reason of Queensland legislation, in particular, the Supreme Court Act 1867. Mr. Callinan submitted that that legislation established the calling of conveyancer; alternatively, he submitted that it recognised the calling. The statutes relied on relevantly provided:
"41[4]. Conveyancing how prohibited. Every person who shall for or in expectation of any fee gain or reward directly or indirectly draw or prepare any conveyance or other deed or instrument in writing relating to any real estate or any proceedings in law or equity (other than and except barristers or attorneys and solicitors of the Supreme Court or certificated conveyancers as hereinafter mentioned and other than and except persons solely employed to engross any deed instrument or other proceeding not drawn or prepared by themselves and for their own account respectively and other than and except public officers drawing or preparing official instruments applicable to their respective offices and in the course of their duty) shall be deemed guilty of a contempt of the Supreme Court and shall and may be punished accordingly for every such offence upon the application of any person complaining thereof or shall for every such offence forfeit and pay the sum of forty dollars to be sued for and recovered in a summary way before any two or more justices of the peace.
[4]Supreme Court Act 1867.
42. Certificated conveyancer. Notice. Every person except a barrister or attorney and solicitor of the Supreme Court who shall be desirous of practising as a conveyancer shall one month at least before making application as hereinafter mentioned give notice in such manner and form as the judges of the Supreme Court shall direct of his intention to apply to the said court for a certificate to practise as a conveyancer and any person having given such notice as aforesaid shall be at liberty to apply to the said court touching his fitness to practise as a conveyancer."
"2[5]. Restriction on admission to practise as a conveyancer. Notwithstanding anything contained in section forty-two of the Supreme Court Act of 1867, but subject as hereinafter provided, no person shall, after the first day of January, one thousand nine hundred and forty, be admitted to practise as a conveyancer nor shall any certificate as provided by the said section forty-two be issued to any such person except in respect of admissions made prior to the aforesaid date; and section forty-one of the "Supreme Court Act of 1867", "The Legal Practitioners Act of 1905", and "The Queensland Law Society Acts, 1927 to 1938", shall be read and construed accordingly:
[5]The Legal Practitioners Act Amendment Act 1938.
Provided that any person who on the first day of January, one thousand nine hundred and forty, is serving under articles pursuant to the Rules of the Supreme Court relating to the admission of persons to practise as conveyancers, and who completes the final examination prescribed by such Rules on or before the thirty-first day of December, one thousand nine hundred and forty-one, shall, subject to such Rules, be entitled to be admitted to practise as a conveyancer and to have a certificate as provided in the said section forty-two of the Supreme Court Act of 1867 issued to him."
"2[6]. Restriction on admission to practise as a conveyancer not to apply in certain cases. Section two of "The Legal Practitioners Act Amendment Act of 1938", shall not apply with respect to a person who before the first day of January, one thousand nine hundred and forty, had passed the examinations prescribed by the rules relating to the admission of conveyancers of the Supreme Court of Queensland.
[6] Legal Practitioners Acts Amendment Act 1954.
Such a person who is of good fame, integrity and character and who is not disqualified or suspended from practising in or before any Court in the British Commonwealth may, subject to this section, be admitted to practise as a conveyancer and issued with a certificate under section forty-two of "The Supreme Court Act of 1867".
Application for such admission and certificate shall be made to the Registrar of the Supreme Court at Brisbane.
Excepting the provisions thereof relating to the certificate mentioned in rule forty-four, the rules relating to the admission of conveyancers of the Supreme Court of Queensland as in force on the first day of January, one thousand nine hundred and forty, shall apply with respect to such an application.
The said Registrar may, and shall at the request of the applicant, refer such an application to a Judge of the Supreme Court for his opinion thereon, and the Registrar shall act upon that opinion."
Mr. Callinan also referred to rules of court designed to implement the foregoing legislation.
In my judgment, nothing in that legislation can be read as creating an occupation, trade, profession or calling of conveyancer. Broadly, the 1867 act deems the performance of a number of activities an offence unless they are performed by persons in enumerated classes. One of those classes is "certificated conveyancer as hereinafter mentioned". The act then makes provision for the Supreme Court to issue certificates to applicants who pass examinations, authorising them to perform another list of activities. It describes the process of applying for such a certificate as applying "for a certificate to practise as a conveyancer".
The proscribed activities are (for reward) drawing or preparing any conveyance or other deed or instrument relating to real estate or proceedings in law or equity. The permitted activities of a certificated conveyancer are filling up and preparing any conveyance, will, deed, bond, lease or agreement for a lease or other contract relating to real or personal property. These activities seem to constitute a subset of the proscribed activities.
The act therefore can be said to recognise a collection of activities carried on by, inter alia, persons who hold conveyancer's certificates. Does that imply the recognition of an occupation, trade, profession or calling of conveyancer? I think not. For all I know, persons who sought such certificates might have universally regarded their occupation as something else; and it might have been so. For example, the activities authorised by conveyancing certificates may have been but a small part of the range of activities performed by nineteenth century land developers. If such were the case, those activities would hardly constitute the occupations of those developers. The true position cannot be determined simply by having regard to the statute.
In any event, I doubt whether I am greatly assisted by a statutory recognition of an occupation in 1867. Harrison described conveyancers as an occupation in England in the nineteenth century but said:
"The reforms of the nineteenth century reduced the need for specialists in pleading and in conveyancing, and the two classes have now almost disappeared in England."[7]
[7]W.N. Harrison: Law and Conduct of the Legal Profession in Queensland, 2nd ed. (1984), p.6.
I do not think a statutory recognition of an occupation in 1867 (assuming recognition was what the statute gave) of much weight in relation to the question whether there is such an occupation in Queensland in 1995.
The 1938 and 1954 provisions are of greater relevance to the issue of registration than they are to the issue of whether there is an occupation, trade, profession or calling of conveyancer. To the extent that they severely restrict the operation of the 1867 act they make it harder to argue that after their passage statutory recognition continued to be given to such an occupation.
It was submitted on behalf of both respondents that while these acts did not instantly abolish the calling of conveyancer (assuming it existed), they operated as "sunset clauses" whose restrictive effect was in time to end the carrying on of the occupation of conveyancer in Queensland. Mr. Jackson QC on behalf of Queensland Law Society Incorporated referred me to ss.14A and 14B of the Acts Interpretation Act 1954 in support of this argument. With due respect I am unable to find any assistance in those sections. The former provides that in the interpretation of a provision of an act, the interpretation that will best achieve the purpose of the act is to be preferred. That provision can hardly be of assistance in determining what the purpose of the act is. The latter section permits consideration to be given to certain extrinsic material in the interpretation of an act for certain specified purposes. The purpose which Mr. Jackson submitted was relevant in the present case was to confirm the interpretation conveyed by the ordinary meaning of the provision. Section 14B does not encourage the use of extrinsic material simply for identifying the purpose of the act.
It cannot be said that the relevant provisions of the 1938 and 1954 acts are particularly well drafted, nor that they dovetail neatly into the relevant provisions of the Supreme Court Act 1867. Nonetheless, for present purposes, their ordinary meaning is clear. In neither case does the ordinary meaning of the words used equate to the abolition of the occupation of conveyancer (assuming it existed). It follows that the extrinsic materials may be used only to confirm a meaning which does not advance the respondents' argument.
The respondents contended that I should look to Hansard pursuant to the provisions of the section. I have looked at the provisions handed to me, but I see nothing in them which bears upon the ordinary meaning of the relevant provisions.
Mr. Jackson very properly drew my attention to ss.38 and 39 of the Queensland Law Society Act 1952. Those provisions, the successors to ss.26 and 27 of the Queensland Law Society Act 1930, establish a regime of practising certificates for solicitors and conveyancers. They remain in force. Section 38(2), which was most recently amended in 1988, provides:
"(2) No conveyancer shall on or after the first day of June, one thousand nine hundred and thirty-one, act or practise as such unless he has obtained from the secretary on application in proper form a certificate which is then in force to the effect that he is on the roll of the Court as a conveyancer and entitled to practise as a conveyancer."
Perhaps it could be argued that such a recent amendment implies a continuing legislative recognition of conveyancers; but no such argument was advanced. In any event, it would not demonstrate recognition of an occupation, but only of the collection of activities comprehended by the expression "act as a conveyancer".
In my judgment, the applicants have not demonstrated that there is in Queensland an occupation, trade, profession or calling of "conveyancer". I should say however that this is partly because they have deliberately refrained from putting evidence on the question before me. Not only may there be such an occupation or calling in Queensland but also there may be persons who currently follow it. It may be, for example, that many people who give their calling as conveyancer do substantially nothing other than the relevant activities. I do not as presently advised see that it would matter if the persons in question happened to be admitted as solicitors or to be employed by solicitors.[8] As this matter does not arise for determination in the present proceedings, I say nothing further about it.
[8]Of course, this might not assist the applicants since presumably such persons would not be "registered" for the occupation "conveyancer": see below.
that may be carried on by registered persons
The second relevant segment of the statutory definition of "occupation" focuses on the existence of a system for registering persons who may carry on the occupation, trade, profession or calling concerned. The first declaration sought directs attention to whether such a system exists in Queensland for conveyancers. On behalf of the applicants it was submitted that s.42 of the Supreme Court Act 1867 combined with the rules of court made for that purpose on 2 March 1886 created the necessary system. The applicants submitted that the acts of 1938 and 1954 simply limit the persons who may practise as conveyancers while recognising that the occupation itself continues. Mr. Jackson pointed out that those rules were repealed by the Rules for the Admission of Conveyancers made on 3 September 1931[9], but it was not suggested that the change materially affected the applicants' argument.
[9]These rules have never been repealed.
The argument is attractive. The act of 1938 seems on its face to operate to limit persons who may be admitted as conveyancers but not to abolish the system of registration of persons who may practice as such. The act of 1954 marginally widened the class of persons who might be admitted but has very little relevance for present purposes[10]. The arguments before me did not address the question whether "registration" as used in the Mutual Recognition Act 1992 refers to a process or to a state of being or both. It is arguable that the term appears in the act in both senses. It is enough for the applicants' purposes if the term refers at least to "registration" in the sense of a state of being registered. The prohibition on further registrations from 1940 was certainly not intended to prevent the continued regulation of the practice of those already on the register. It may be that despite the 1938 act, sufficient remained, and still remains, on the statute book to satisfy the requirements of the words of the Mutual Recognition Act 1992 now under consideration[11]. I need say no more.
[10]From what I was told from the bar table I gather this act was in substance a private act, albeit in the form of a public one.
[11]I refer to the question of whether the Supreme Court is a local registration authority below. It was not argued that the existence of a system of registration satisfying the terms of the act was precluded by the absence of a local registration authority.
carried on only by registered persons
In the course of argument there was some brief discussion on the question whether the system established by the Supreme Court Act 1867 answered the requirement in the definition of "occupation" that the occupation be carried on only by registered persons. It may be observed that s.41 of that act contains other exceptions, viz. barristers, solicitors[12], "persons solely employed to engross any deed instrument or other proceeding not drawn or prepared by themselves and for their own account respectively"[13] and "public officers drawing or preparing official instruments ...". Mr. Jackson disclaimed reliance upon an argument that by reason of the exceptions the terms of the definition were unsatisfied, mainly I think because he had not given due consideration to that argument. No one else referred to it. It is therefore inappropriate for me to express any view on the question. I should say however that the onus is on the applicants to show the exclusivity of the registration system relied upon. I observe that the case is not covered by s.18(2) of the Mutual Recognition Act 1992.
[12]Or strictly, "attorneys and solicitors".
[13]I was told from the bar table that solicitors' employees were regarded as falling under these words!
registration is wholly or partly dependent on the attainment or possession of some qualification.
I accept the submission for the applicants that s.42 of the Supreme Court Act 1867 and the relevant rules of court provide for registration which is wholly or partly dependent on the attainment or possession of some qualification. I do not understand the respondents to have contended otherwise.
While it follows from the foregoing that the first declaration sought must be refused, it does not follow that a declaration in the opposite sense ought to be made. It is a matter for the applicants whether they wish to raise the issue again on other evidence.
The second and third declarations sought
Having regard to the foregoing reasoning, I am not prepared to make declarations in the terms sought by paragraphs 1.2 and 1.3 of the summons. Even assuming paragraph 1.2 is read with the introductory words to paragraph 1 the thrust of such a declaration remains obscure and oblique. I accept Mr. Jackson's submission that such a declaration would lack utility. As to that sought in paragraph 1.3, neither of the respondents contended to the contrary; there was no dispute.[14] I do not think I should make declarations in the terms sought, and no others were suggested.
[14]Mr Jackson refined his submission by putting that the 1938 act did not then (i.e. 1938) abolish conveyancers as a matter of law, but that is not significantly different from the declaration sought.
Paragraph 3 of the summons
It is convenient to consider this part of the application before considering the question of inconsistency under s.109 of the Constitution.
The applicants' submissions were in the following terms:
"28.Once the requirements of section 19(1) are satisfied, the Applicant is entitled to deliver written notice to the local registration authority.
29.Under section 20 of the act, a person who lodges a notice under section 19 is entitled to be registered in the equivalent occupation, as if the law of Queensland that deals with registration expressly provided that registration in South Australia is a sufficient ground of entitlement to registration."
The Mutual Recognition Act 1992 provides as follows:
"16.(1) The mutual recognition principle as applying to occupations is as set out in this Part.
(2) This Part deals with the ability of a person who is registered in connection with an occupation in a State to carry on an equivalent occupation in another State.
(3) In this Part, the firstmentioned State is called "the first State", and the other State is called "the second State".
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."
" 19.(1) A person who is registered in the first State for an occupation may lodge a written notice with the local registration authority of the second State for the equivalent occupation, seeking registration for the equivalent occupation in accordance with the mutual recognition principle."
" 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 second State that deals with registration expressly provided that registration in the first State is a sufficient ground of entitlement to registration."
" 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."
I shall assume without deciding that Mr. Sande is registered in South Australia for an occupation described as land broker. On this basis, the questions which arise under s.19(1) are whether this court is a local registration authority within the meaning of the act; whether there is in Queensland an occupation within the meaning of that act described as conveyancer; and whether, if so, that occupation is equivalent to the South Australian occupation of land broker.
The second question has already been dealt with.
A local registration authority is defined by the Mutual Recognition Act 1992 in the following terms:
'local registration authority' of a State for an occupation means the person or authority in the State having the function conferred by legislation of registering persons in connection with their carrying on that occupation in the State;"
Thus the question in the present case becomes, does this court[15] have the function conferred by legislation of registering persons in connection with their carrying on of the occupation of conveyancer (assuming there is such an occupation) in Queensland. This matter was not addressed directly by the parties in oral argument. However since the case was argued, I have decided the matter of Wood v. Queensland Law Society Incorporated[16]. There I held that this court was not a local registration authority for the occupation of conveyancers (assuming that such an occupation exists in Queensland).
[15]No argument was addressed to me in relation to so much of paragraph 3 of the summons as refers to the Queensland Law Society Incorporated.
[16]Unreported, Motion 57/95, 1 February 1995.
In the light of that decision, I invited the parties to send me supplementary submissions in writing, and this has been done. For the applicants it was contended that the construction of "function" adopted in Wood v. Queensland Law Society Incorporated was too narrow, and was contrary to the purpose of the Act stated in s. 3. That section provides:-
"3.The purpose of this Act is to enable the enactment of uniform legislation relating to the recognition of regulatory standards adopted in Australia regarding goods and occupations."
The long title of the Act is to like effect:-
"An Act to enable the enactment of legislation applying uniformly throughout Australia for the recognition of regulatory standards adopted in Australia regarding goods and occupations."
There is a certain tension between s. 3 of the Act and the mutual recognition principle set out in s. 17. Section 3 is not limited by any recognition of the right of a State to prevent the creation of a national market for service providers by abolishing or prohibiting the provision of a service, even one previously regulated by the State. However the mutual recognition principle, which is the foundation of the operative provisions of Part 3 of the Act, simply does not reflect the wide terms of the stated purpose of the Act.
In resolving this tension, I consider that s. 3 authorises me to have regard to the long title and s. 3 of the Mutual Recognition (Queensland) Act 1992. Those are as follows:-
"An Act to provide for the recognition within each State and Territory of the Commonwealth of regulatory standards adopted elsewhere in Australia regarding goods and occupations.
...
Principal purpose
3.The principal purpose of this Act is to enact legislation authorised by the Parliaments of State under paragraph (xxxvii) of section 51 of the Commonwealth Constitution, and requested by the legislatures of the Australian Capital Territory and the Northern Territory, for the purpose of promoting the goal of freedom of movement of goods and service providers in a national market in Australia."
Those provisions accord with the mutual recognition principle stated in the Commonwealth act. In my judgment they require s. 3 of the latter act to be read down to accord with the mutual recognition principle. The principle should not be widened to accord with s. 3 of the Commonwealth act. Adopting that approach, I see no inconsistency between the purpose of the Act and the construction of the word "function" adopted in Wood v. Queensland Law Society Incorporated.
Mr. Callinan also referred me to the definition of "function" in the Concise Oxford Dictionary:-
"function
1 n. activity proper to person or institution; mode of action or activity by which thing fulfils its purposes; office - holder's duty, employment, profession, calling; religious or other public ceremony or occasion, social meeting of formal or important kind; ..."
and to the dictum of Lord Templeman in Hazell v. Hammersmith London Borough Council[17]:-
[17][1992] 2 A.C. 1 at p. 29.
".....In Section 111 the word "functions" embraces all the duties and powers of a local authority, the sum total of the activities Parliament has entrusted to it. Those activities are its functions."
Although both of those sources mention duty, each also shows that "function" connotes activity. In my judgment they support the decision in Wood v. Queensland Law Society Incorporated rather than the reverse.
Finally, Mr. Callinan referred me to the decision of the Administrative Appeals Tribunal in Sande v. Queensland Law Society Incorporated[18]. In that case the tribunal dismissed an application to review the decision of the Law Society to refuse an application to it by Mr. Sande for a licence as a conveyancer. In the course of its reasons, the tribunal said:-
[18]Unreported, No. Q94/27, 26th July 1994, Messrs. Breen, Beddoe and Muller.
"7.There exist two registration authorities in Queensland in respect of the occupation of conveyancer, namely, the Supreme Court of Queensland for admission to the roll of conveyancers, and the Queensland Law Society Incorporated for the issue of a practising certificate pursuant to section 40 of the Queensland Law Society Act 1952 (as amended)."
The question presently in issue was not in issue in those proceedings. The passage quoted occurs in a non-controversial description of the structure of the relevant Queensland legislation. Nothing in the reasoning in that case detracts from the reasoning which I adopted in Wood v. Queensland Law Society Incorporated.
I remain of the view which I expressed in that case. In my judgment, even assuming there is an occupation of conveyancer in Queensland, this court does not now have a function conferred by legislation of registering persons in connection with the carrying on of that occupation. It is therefore not a local registration authority within the meaning of that term in the Mutual Recognition Act.
On the question of equivalence Mr. Callinan referred me to the definition in the Shorter Oxford Dictionary of "equivalent", and to Riley v. Commonwealth[19] and Linhart v. Elms[20]. He conceded that in Queensland a conveyancer has a "slightly more ample" role than a land broker in South Australia. He submitted that absolute or exact equivalence is unachievable "in the real world" and that the mutual recognition principle is not limited to cases where State registration regimes are identical.[21] He submitted that there was no requirement for evidence to establish the appropriateness of conditions, it being sufficient simply to compare the definition of land broker in s.6 of the South Australian act with that of conveyancer in s.42 of the Queensland act.
[19](1985) 159 C.L.R. 1.
[20](1988) 81 A.L.R. 557.
[21]But note the possibility suggested by Linhart v. Elms that there is a requirement for the law to be able to be translated to or substituted in the second jurisdiction: (1988) 81 A.L.R. at pp.571, 579.
Section 29 of the Mutual Recognition Act 1992 directs attention to the activities performed in carrying out the respective occupations. The activities which a conveyancer may carry out in Queensland have already been referred to. A land broker under the South Australian act is entitled for reward to prepare an instrument relating to a dealing in land. The instruments which a land broker may prepare are limited to those affecting Torrens system land[22]. That appears to be all one is entitled to do. A land broker may not practice the profession of the law, an expression which includes preparing any will or other testamentary instrument, preparing an instrument affecting personal property and preparing an instrument affecting any right, power or liability at law or in equity.[23] A conveyancer admitted under s.42 of the Supreme Court Act 1867 may ordinarily do all of these things. In my judgment, the activities of a land broker are not substantially the same as those of a conveyancer.
[22]Land Agents, Brokers and Valuers Act 1973 (S.A.), s.48; Real Property Act 1886 (S.A.), s.3.
[23]Legal Practitioners Act 1981 (S.A.), s.21.
The Mutual Recognition Act 1992 is intended to operate in an environment where there are differences between State regulatory regimes. It requires however that substantial equivalence exist or be achieved by the imposition of appropriate conditions[24]. Whether equivalence can be achieved in the present case by the imposition of appropriate conditions depends entirely upon what those conditions are. I do not think it can be asserted in the abstract that equivalence can or cannot be achieved by conditions. The applicants led no evidence on this matter and did not address me in relation to specific conditions which might be imposed. Moreover the declaration sought in paragraph 3 of the summons is in absolute terms. In my judgment, no such declaration should be made in the absence of a determination of the question of equivalence; and no such determination can be made until it is decided whether substantial equivalence can be achieved by conditions, and if so, by what conditions.
[24]Section 29.
In summary the outcome of each of the three questions upon which the declaration sought in paragraph 3 of the summons depends is adverse to the applicants. This court is not in my judgment a local registration authority within the meaning of the act; there is no evidence before me to justify a conclusion that there is an occupation of conveyancer (within the meaning of "occupation" in the Mutual Recognition Act 1992) presently in existence in Queensland; and there is no evidence sufficient to enable me to conclude that substantial equivalence can be achieved between any such occupation and that of a land broker in South Australia (even assuming the latter is an occupation).
For these reasons the declaration sought in paragraph 3 of the summons is refused.
Paragraph 2 of the summons
Paragraph 2 of the summons invokes s.109 of the Constitution. There is nothing on the file to indicate that notice was given to the various Attorneys-General pursuant to s.78B of the Judiciary Act 1903, but I was informed from the bar table that such notice had indeed been given. Were I to be deciding this application on this ground, I would have required evidence of service to be filed. However in the circumstances it seems unnecessary to pursue this matter.
Despite the terms of the declaration sought, it was not contended by the applicants that the Mutual Recognition Act 1992 impliedly provides for the profession of conveyancer. Rather, it was submitted that if the occupation of conveyancer exists in Queensland, the restrictions (if any) imposed by the 1938 and 1954 acts are inconsistent with the Mutual Recognition Act 1992. On the other hand, for the first respondent it was submitted that no question of inconsistency could arise in this way because the elements of the definition of occupation include the requirement for a system of registration of the occupation. The 1938 and 1954 acts operate at the level of this definition. If they have the effect contended for by the respondents, Mr. Jackson submitted, the Mutual Recognition Act does not operate by its own terms, hence no issue of inconsistency can arise.
As I understood him, Mr. Callinan in reply accepted this proposition. He did not formulate any alternative declaration which would be appropriate in the light of the way the matter was argued. For these reasons, and in the light of the findings which I have already made, it is unnecessary to deal further with this question.
The application is dismissed. I will hear submissions as to costs.
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