Turner and Registrar Supreme Court Queensland and Ors
[2003] AATA 887
•10 September 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 887
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2002/539
GENERAL ADMINISTRATIVE DIVISION ) Re
DALE TURNER
Applicant
And
1. REGISTRAR SUPREME COURT QUEENSLAND
2. QUEENSLAND LAW SOCIETY
3. QUEENSLAND SOLICITORS ADMISSION BOARD
Respondent
DECISION
Tribunal The Hon R N J Purvis, QC, Deputy President Date10 September 2003
PlaceSydney
Decision The decision under review is affirmed.
[Sgd] R N J Purvis ,QC
Deputy President
CATCHWORDS
MUTUAL RECOGNITION - Mutual recognition of occupations between the States - recognition of conveyancers and solicitors between NSW and Queensland - the equivalence of occupations - “occupation” of conveyancer no longer exists in Queensland - Mutual Recognition legislation predicated upon the existence of an equivalent “occupation” in the second state - equivalence of the occupation of conveyancer and solicitor – decision affirmed
Mutual Recognition Act (Commonwealth) 1992 sections 3, 4, 16, 17, 19, 20, 19, 23, 29, 31
Mutual Recognition Act (Queensland) 1992 section 19
Conveyancers Licensing Act 1995 sections 4, 5(2)(a), 6(1)(2), 17(1)(c), 18(1), 19(1), 20(1), 21(1)(2), 22(2) and Regulation 12Legal Practitioners Act 1995
Queensland Law Society Act 1952
Queensland Law Society Rules
Re Sande and Supreme Court of Queensland (1995) 38 ALD 639
Sande v Registrar Supreme Court of Queensland and Anor (1996) 40 ALD 1
Sande v Registrar Supreme Court of Queensland (1996) 134 ALR 560
Secretary, Department of Social Security v Wetter (1992/3) 29 ALD 310
Commissioner for Superannuation v Scott (1987) 71 ALR 408 at 411
Re Lokuge v Department of Employment, Education and Training (1994) 35 ALD 785 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367
Re Rowe and NSW Police Service (1997) 47 ALD 442
Board of Examiners and the Mines Safety and Inspection Act (WA) v Lawrence (2000) 100 FCR 255
Queensland Law Society v Sande (2) (1998) 1 QDR 273
Barristers Board v Palm Management Pty Ltd [1984] WAR 101
Barristers Board of Western Australia v Central Tax Services Pty Ltd (1984) 16 ATR 155
Florida Bar v Tawn (1965) 174 SO (2d) 395
Cornell v Superannuation System (1989) VR 43
Re Sanderson; ex parte Law Institute of Victoria (1927) VLR 394
Cornall v Nagle (1995) 2 VR 188
Clyne v NSW Bar Association (1960) 104 CLR 186
Charles v Board of Professional Engineers of Queensland (1999) 30 AAR 497REASONS FOR DECISION
10 September 2003 The Hon R N J Purvis, QC, Deputy President the application
1. This is the application by Mr Dale Turner ("the Applicant") seeking review by the Tribunal of a decision made by the Registrar of the Supreme Court of Queensland ("the Respondent") on 25 March 2002 refusing to register the Applicant as a solicitor of that Court (T3). The Applicant, being a licensed conveyancer in New South Wales, had on the 4 March 2002 by notice under section 19 of the Mutual Recognition Act (Commonwealth) 1992 ("the Act") sought such registration pursuant to the provisions of the Act, contending that his occupation as a licensed conveyancer was an equivalent occupation, within the meaning of section 29(1) of the Act, to that of a solicitor in Queensland.
2. In the Statement of Reasons for the refusal of 25 March 2002 the Respondent, after stating findings of fact, namely:
· the Applicant is a Licensed Conveyancer in the State of New South Wales;
· a Licensed Conveyancer is able to carry out certain activities in relation to conveyancing work as provided for in the Conveyancers Licensing Act 1995 (NSW), section 4(1) and (2);
· a Licensed Conveyancer is not permitted to carry out certain activities in relation to conveyancing work as stipulated in Conveyancers Licensing Act 1995 (NSW), section 4(3);
· some of the activities that a Licensed Conveyancer for New South Wales could perform could be regarded as identical to some activities of a solicitor in Queensland when dealing with the conveyance of property;
· the material provided by the Applicant demonstrates that the activities which may be lawfully carried on as a Licensed Conveyancer in New South Wales are not in fact substantially the same as the activities which may be lawfully carried on as a Solicitor in Queensland;
set forth the reasons for such decision including that:
· the activities that can be carried out by a Solicitor in Queensland are much more extensive and expansive to those activities that can be carried out by a Licensed Conveyancer in New South Wales;
· the occupation of Licensed Conveyancer for which the Applicant seeks registration as a solicitor in Queensland is not an equivalent occupation to that of a Solicitor for Queensland and equivalence cannot be achieved by the imposition of conditions.
· to reduce, by the imposition of conditions, the activities authorised by registration as a Solicitor in Queensland to those activities which a Licensed Conveyancer in New South Wales is legally authorised to carry on, is not to effect the registration of such a person as a Solicitor in Queensland. It would purport to effect the registration in Queensland of something, which is outside the denotation of the term "solicitor". The activities in respect of which such a person would be registered would not be representative of those which a solicitor is authorised to carry on (T2).
3. The Queensland Solicitors Board was, by consent, joined as a party to the proceedings. The Queensland Law Society Incorporated became a party joined following a contested application (2002 AAAT 741).
the hearing
4. At the hearing of the subject application the Applicant was represented by Mr Stephen J English of Counsel, the Respondent by Mr Scott A McLeod and the parties joined each by Mr James C Bell of Queens Counsel.
5. There was admitted into evidence the documents lodged by the Respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 marked T1-T14. Documentary material was tendered on behalf of the parties, admitted into evidence and marked accordingly, namely:
Exhibit No
Description
Date
A
Affidavit Mr Dale Turner
25 October 2002
B
Affidavit Mr Dale Turner
28 May 2003
C
Affidavit Mr Alan Stanley West
4 February 2003
D
Affidavit Mr Neville James Moses
18 February 2003
1
Affidavit Mr Peter Leigh Cooper
22 November 2002
2
Affidavit Ms Margaret C Hole
6 December 2002
3
Affidavit Professor Peter Butt
23 April 2003
6. The Applicant, Professor Peter Butt, Mr Peter L Cooper and Ms Margaret C Hole each gave oral evidence upon which they were cross-examined.
the situation leading up to the subject application
7. The Applicant is and was at all relevant times registered as a Licensed Conveyancer pursuant to the provisions of the Conveyancers Licensing Act 1995 (NSW). In Queensland legislation has brought to an end the entitlement of "conveyancers" to practice unless they are duly qualified solicitors who have been admitted to practice as such.
8. By his application of 15 February 2002 the Applicant sought pursuant to the provisions of section 19 of the Act and section 19 of the Mutual Recognition Act (Queensland) 1992, to be admitted as a solicitor of the Supreme Court of Queensland (T3). The application was lodged on 4 March 2002. The Supreme Court of Queensland is the local registration authority for solicitors for the purposes of the Act. The Respondent is the lawfully authorised representative of the Supreme Court.
9. Pursuant to the provisions of section 39 of the Act, guidelines have been approved by the judges of the Supreme Court vesting in the Respondent the powers and duties of the Court under the Act.
10. By letter dated 5 March 2002 the Respondent forwarded a copy of the Applicant's documentation filed with it to the Secretary of the Queensland Solicitors Board requesting the Board to give consideration to the application and seeking its recommendation (T7). The application was considered by the Board at a meeting held on 13 March 2002, the Board resolving:
"That the Solicitors' Board recommends to the Principal Registrar of the Supreme Court, in relation to the notification by Dale Turner seeking recognition in accordance with the mutual recognition principle whereby he seeks to be admitted as a solicitor of the Supreme Court of Queensland, as set out in the correspondence from the Principal Registrar to the Secretary of 5 March 2002, that the application not be approved on the grounds that the occupation of licensed conveyancer in the State of NSW under the Conveyancers Licensing Act 1995 (NSW) is not an occupation equivalent to that of solicitor in the State of Queensland within the meaning of the term "equivalent occupation", as provided for in the Mutual Recognition (Queensland) Act 1992". (T9)
11. On 12 March 2002 the Respondent wrote to the Applicant, inviting him to forward any written submissions in support of his application (T8). The Applicant subsequently provided written submissions (T11). By letter dated 25 March 2002 the Respondent advised the Applicant that his application for grant of registration had been refused pursuant to the provision of section 23(1)(c) of the Act (T14). The Respondent provided to the Applicant a statement of reasons for the refusal (T2).
the issues before the tribunal
12. The issue primarily before the Tribunal is as to whether the occupation of a licensed conveyancer in New South Wales and the occupation of a solicitor in Queensland are equivalent occupations for the purposes of the Act.
13. It was recognised by the Applicant that the work undertaken in New South Wales by a licensed conveyancer did not encompass the range of activities performed by a solicitor in Queensland, but he maintained that the equivalence could by achieved by the imposition of conditions as to the nature of the work he could carry out.
14. The Respondent noted that the provisions of the Act dealing with equivalence placed emphases upon the activities, which are authorised to be carried out in the respective occupations. The position taken by the Respondent as set forth in the Statement of Facts and Contentions was:
"…
4. A licensed conveyancer in New South Wales is authorised to undertake certain conveyancing work as defined in the Conveyancers Licensing Act 1995 (NSW) ("the CLA”). The conveyancing work that a licensed conveyancer in New South Wales is permitted to carry out expressly excludes the work referred in s.4 (3) of the CLA. Moreover, the Legal Profession Act, 1987 (NSW) ("the LPA") s.48E prohibits a person from undertaking general legal work unless that person is a legal practitioner. This prohibition does not prohibit a licensed conveyancer from undertaking work in accordance with the CLA. But insofar as legal work undertaken by a licensed conveyancer is not specifically permitted by s.4 of the CLA, the licensed conveyancer is subject to the same prohibition as other persons in undertaking legal work. In addition, s.6 of the CLA provides that a licensee is not permitted to do anything, or to allow anything to be done, that is calculated to imply that the licensee is qualified to act as a solicitor.
5. The activities that solicitors in Queensland are authorised to carry out and in fact carry out range across a large number of activities. In fact, there are no express or implied limitations on the kind of legal work that a solicitor in Queensland may perform.
6. Whatever view is taken of the precise range of activities that licensed conveyancers in New South Wales are authorised to carry out and in fact carry out, there appears to be no dispute that solicitors in Queensland are authorised to carry out and in fact carry out a much wider range of activities. To adopt the words of the Tribunal in Sande's case (Re Sande and Supreme Court of Queensland (1995) 38 ALD 639 at 652):
"The conveyancing of property is… only a very small part of these activities."
7. Licensed conveyancers in New South Wales are prohibited from undertaking a large number of the activities that solicitors in Queensland are authorised to undertake and in fact undertake - These include a wide range of transactional activities in both private and commercial fields. In addition these transactional activities and a broad range of advice work, licensed conveyancers are not permitted to commence or maintain legal proceedings. - The fact that the activities which may lawfully be carried out by licensed conveyancers in New South Wales are the same as some of the activities that solicitors in Queensland are authorised to carry out, does not address the question of equivalence posed by the Act."
15. The Queensland Law Society Incorporated and the Solicitors Board of Queensland, the parties joined, maintain, after making a comparison of activities said to be those able to be carried out by a licensed conveyancer in New South Wales, namely:
· "legal work carried out in connection with any transaction that creates, varies, transfers or extinguishes a legal or equitable interest in any real or personal property (Section 4(1) of the Conveyancers' Licensing Act (1995));
· substantially the same as the activities which were formerly carried out by licensed conveyancers in Queensland;
· not substantially the same as the activities which are authorised to be carried out by a solicitor in New south Wales;
·not include any activity which is calculated to imply that the Applicant is qualified to act as a solicitor (Conveyancers Licensing Act 1995 (NSW) section 6);
·not substantially the same as the activities which are authorised to be carried out by a solicitor in Queensland;
·not carried out as an officer of the Supreme Court of New South Wales with the duties associated with such office."
and those which a solicitor in Queensland is authorised to carry out namely:
· "numerous activities which a licensed conveyancer in Queensland was never authorised to carry out;
· numerous activities which a licensed conveyancer in New South Wales is not authorised to carry out;
· substantially the same as the activities which a solicitor in New South Wales is authorised to carry out;
· numerous and difficult to define (Legal Profession Act 1987 (NSW) section 48 B; Legal Practitioners Act 1995 (Qld) section 39; Queensland Law Society Rules, Rule 117 (4));
· must be carried out as an officer of the Supreme Court of Queensland with all the duties associated with that office.”
that,
· “the activities carried out by a licensed conveyancer in New South Wales are not substantially the same as the activities authorised to be carried out by a solicitor in Queensland;
· the activities which a solicitor in Queensland is authorised to carry out cannot be made substantially the same as the activities of a licensed conveyancer in New South Wales by imposing conditions without making the restrictions so extreme as to render the Applicant something other than a solicitor;
· it is essential that the training and education required for admission as a solicitor in one of the states or territories of Australia be undertaken before the Applicant is entitled to be registered as a solicitor in Queensland pursuant to the mutual recognition principle (the Act section 17);
· the occupation of licensed conveyancer in New South Wales is not to be taken to be equivalent to the occupation of a solicitor in Queensland pursuant to section 29 of the Act;
· to uphold the submissions of the Applicant would be to transform the Act from an Act which seeks to facilitate the right of Australians entitled to practice in one State or Territory to pursue their vocations throughout Australia (without submitting themselves to examinations or obtaining qualifications required by another region) into an Act which forces the will of New South Wales upon Queensland, when the historical development of each state has been profoundly different (Sande v Registrar Supreme Court of Queensland and Anor (1996) 40 ALD 1 at 19).”
the relevant legislation
16. As has elsewhere been noted (Re Sande and Supreme Court of Queensland (1995) 38 ALD 639) the purpose of the mutual recognition legislation of the Commonwealth States and Territories was and is to promote the freedom of movement of goods and service providers in Australia by establishing a scheme for the mutual recognition of regulatory standards for goods and occupations throughout the country. As it is expounded in Sandev Registrar Supreme Court of Queensland and Anor (1996) 134 ALR 560 at 580:
"The Act is intended to remove artificial barriers to mobility of services and labour caused by regulatory differences among the States and Territories of Australia. If a person is registered to carry out an occupation in one State or Territory then he or she should be able to be registered and to carry on the equivalent occupation in any other State or Territory without undergoing examinations or other assessments with respect of educational qualifications and experience. Nevertheless the Act preserves the right of the State or Territory in which the applying person seeks to practice (described in the Act as the second state) to regulate the manner of carrying on an occupation in that State so long as the laws of that State apply equally to persons carrying on or seeking to carry on the occupation under the law of the second State, section 17 and 20 of the Act."
17. The present application is concerned with an occupation. The legislation enshrines the mutual recognition principle whereby subject to the provision of Part 3 of the Act a person who is registered for an occupation in one State is entitled to be registered in another State for the equivalent occupation. The provisions of the Act relevant to the present application are:
" 3 Principal purpose
The principal purpose of this Act is to enact legislation authorised by the Parliaments of States 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.
4 Interpretation
…
equivalent, when used in relation to occupations, has a meaning affected by Division 4 of Part 3.
…
occupation means an occupation, trade, profession or calling of any kind that may be carried on only be 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.
…
16 Mutual recognition
(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 first-mentioned State is called the First State, and the other State is called the Second State.
17 Entitlement to carry on occupation
(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.
…
19 Notification to local registration authority
(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 Entitlement to registration and continued registration
(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.
(2) The local registration authority may grant registration on that ground and may grant renewals of such registration.
…
23 Refusal of registration
(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 subsection 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.
…
28 Equivalent occupations
The equivalence of occupations carried on in different States is to be determined in accordance with this Part.
29 General principles
(1) An occupation for which persons may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State if the activities authorised to be carried out under each registration are substantially the same (whether or not this result is achieved by means of the imposition of conditions).
(2) Conditions may be imposed on registration under this Part so as to achieve equivalence between occupations in different States.
…
31 Declarations by Tribunal
(1) On a review, the Tribunal may make an order that a person who is registered in a particular occupation in a particular State is or is not entitled to registration in another State in a particular occupation, and may specify or describe conditions that will achieve equivalence.
(2) On such a review, the Tribunal may make a declaration that occupations carried on in 2 States are not equivalent, but only if the Tribunal is satisfied that:
(a) the activities involved in the occupations are not substantially the same (even with the imposition of conditions); or
…"
18. The above mentioned provisions have as a fundamental prerequisite to their operation the existence of an equivalence between occupations carried on in different states such equivalence existing were the activities authorised to be carried out under each registration are substantially the same. It is to be observed however, that equivalence may be achieved by means of the imposition of appropriate conditions (Sande v Registrar Supreme Court of Queensland (1996) 134 ALR 560 at 563; 40 ALD 1 at 4). However, as noted in Sande (supra) at page 565 the Act is to be applied in a practical, common sense manner regard being had to the substance of the matter and to the substantial equivalence of occupations. The Act seeks to facilitate the right of Australians entitled to practice in one State or Territory to pursue their vocations throughout Australia without submitting themselves to examinations or obtaining qualification required by another region (Sande (supra) at page 581). It is not a matter of forcing the will of one State upon another.
19. Thus, as maintained on behalf of the Respondent and agreed to by the Tribunal the scheme of the Act insofar as it applies to an occupation is as follows. The purpose of the legislation is to provide for the recognition of regulatory standards adopted elsewhere in Australia regarding occupations. The legislation 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. The term "occupation" is defined in section 4(1) of the Act. The term "equivalent" when used in relation to occupations has the meaning ascribed to it in Division 4 of Part 3 of the Act. The Act itself sets out the "mutual recognition principle" whereby subject to the provisions of Part 3 a person who is registered in the first state for an occupation is entitled to be registered in the second state for the equivalent occupation. The concept of "equivalent occupation" is central to the operation of the legislation. The concept is set out in Part 3 Division 4 of the Act especially in section 29. Section 29 does not have the consequence that for every occupation for which persons may be registered in the first state there must be an "equivalent occupation" in the second state (see sections 23(1)(c), 31(2)(a)). "Substantial sameness" of activities cannot in all cases be achieved by the imposition of conditions.
20. The Conveyancers Licensing Act 1995(NSW) provides so far as here relevant :
"4 Conveyancing work
(1) For the purposes of this Act, conveyancing work is legal work carried out in connection with any transaction that creates, varies, transfers or extinguishes a legal or equitable interest in any real or personal property, such as (for example) any of the following transactions:
(a) a sale or lease of land,
(b) the sale of a business (including the sale of goodwill and stock-in-trade), whether or not a sale or lease of land or any other transaction involving land is involved,
(c) the grant of a mortgage or other charge.
(2) Without limiting subsection (1), conveyancing work includes:
(a) legal work involved in preparing any document (such as an agreement, conveyance, transfer, lease or mortgage) that is necessary to give effect to any such transaction, and
(b) legal work (such as the giving of advice or the preparation, perusal, exchange or registration of documents) that is consequential or ancillary to any such transaction, and
(c) any other legal work that is prescribed by the regulations as constituting conveyancing work for the purposes of this Act.
(3) However, conveyancing work does not include the carrying out of any work for the purpose of:
(a) a mortgage on non-residential property where the amount secured by the mortgage exceeds 7 million dollars (with non-residential property being any property that is not residential property for the purposes of Division 8 of Part 4 of the Conveyancing Act 1919), or
(b) commencing or maintaining legal proceedings, or
(c) establishing a corporation or varying the memorandum or articles of association of a corporation, or
(d) creating, varying or extinguishing a trust, or
(e) preparing a testamentary instrument, or
(f) giving investment or financial advice, or
(g) investing money otherwise than as provided for by Division 2 of Part 3,
and does not include any work that is prescribed by the regulations as not constituting conveyancing work for the purposes of this Act.
(4) In this section:
"legal work" means work that, if done for fee or reward by a person who is neither a solicitor nor a barrister, would give rise to an offence under Part 3A of the Legal Profession Act 1987.
…
6 Effect of licence
(1) A licensee is not guilty of an offence under Part 3A (Unqualified Practitioners) of the Legal Profession Act 1987 in respect of conveyancing work that the licensee carries out in accordance with this Act, the regulations and the conditions of the licence.
(2) This section does not permit a licensee to do anything, or to allow anything to be done, that is calculated to imply that the licensee is qualified to act as a solicitor.
…
17 Conduct of conveyancing businesses
(1) The regulations may make provision for or with respect to the following matters:
(a) the manner or capacity in which a licensee may conduct a conveyancing business,
(b) attendance of licensees at premises on which a conveyancing business is conducted,
(c) use of business names by licensees and approval of business names by the Director-General.
…
18 Sharing of receipts with unqualified persons
(1) A licensee must not share the receipts of a conveyancing business with another person unless:
(a) the other person is a licensee, or
(b) the sharing of those receipts with that other person is approved by the Director-General and does not contravene the provisions of any regulation under this section.
…
19 Multidisciplinary partnerships
(1) A licensee must not be in partnership with another person unless:
(a) the other person is a licensee, or
(b) the partnership with that other person is approved by the Director-General and does not contravene the provisions of any regulation under this section.
…
20 Conduct of other businesses
(1) The regulations may prohibit a licensee who conducts a conveyancing business, or who is employed in the conduct of a conveyancing business, from conducting, or being employed in the conduct of, any other business or class of businesses.
…
21 Employment of disqualified persons
(1) A licensee must not, in connection with his or her conveyancing business, employ or pay a person whom the licensee knows to be a disqualified person.
(2) Subsection (1) does not apply in relation to a person who is employed or paid in accordance with leave given by the Director-General.
…
22 Sharing staff of legal practitioners and real estate and other agents
…
(2) A licensee must not employ a person in the conduct of a conveyancing business if the person, while so employed, is employed also by a barrister or solicitor, unless the licensee is in partnership with the barrister or solicitor."
the meaning to be ascribed to the words "substantially the same"
21. The Applicant maintains in his Statement of Facts and Contentions that:
· an occupation for which persons are registered in the State in which the occupation is carried on is taken to be equivalent to an occupation for which persons may be registered in another state if the activities to be carried out under each registration are substantially the same whether or not this result is achieved by means of the imposition of conditions;
· the expression "substantially the same" does not mean "identical with";
· not withstanding the prescribed activities referred to in section 4(3) of the Conveyancers Licensing Act 1995 (NSW) the legal work which a licensed conveyancer of New South Wales is permitted by law to undertake is substantially the same as activities a solicitor in Queensland may undertake.
22. The meaning that is to be properly ascribed to words "substantially the same" was the subject of debate before the Tribunal. It is important as it then sets the parameters within which the factual situation is to be accommodated namely, are the activities of a licensed conveyancer "substantially the same" or with conditions can be made "substantially the same" as those of a Queensland solicitor.
23. On behalf of the Applicant reference was made to a number of reported decisions where the words "substantial", "substantial compliance", "substantially", "maintained", "dependent", "more", "or and identical with" were considered.
24. The context in which the word "substantially" is found is as a qualification upon the word "same". That is the word means something less than “the same", that is, "identical with". It seems to the Tribunal that the more apt paraphrase of the concept is by the use of the words "in the main" or "as to the greater part" or "essentially" (see also Secretary, Department of Social Security v Wetter (1992/3) 29 ALD 310 at 317; Commissioner for Superannuation v Scott (1987) 71 ALR 408 at 411).
25. The word does not stand-alone but qualifies the concept of "the same".. When considered in the context of the intent of the legislation, as already discussed, that of mutually recognising the equivalence of occupations, it is appropriate to consider whether the activities of the relevant occupations are "in the main" or "as to the greater part" the same. The judge of fact is to look at the totality of the activities in which a licensed conveyancer is able to engage and the totality of the activities in which a solicitor is able to engage and as a matter of fact and common sense ask the question whether these activities are in the main, or as to the greater part the same. Whilst "substantially" cannot be quantified (see Re Lokuge v Department of Employment, Education and Training (1994) 35 ALD 785 at 788; Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367) it does suggest that a significant and considerable portion of the activities must be the same. A determination as to the latter depends partly on the Tribunal’s own judgement and partly on the burden of the evidence tendered. Whether there is a substantial sameness is a question of fact.
equivalent occupations
26. As has earlier been discussed it is as to the activities of each occupation that attention needs to be directed in order that a determination can be made as to equivalence. Equivalence is to be determined in accordance with the Act (section 28) and the application of the "substantially the same" test. It may be noted as set forth above that the Conveyancers Licensing Act 1995 itself provides that a licensee is not guilty of an offence for acting as a barrister or solicitor if he or she conducts conveyancing work as defined by section 4 of that Act provided he or she is not permitted to do anything or to allow anything to be done that is calculated to imply that the licensee is qualified to act as a solicitor (sections 4 and 6).
ascertaining substantial equivalence
27. As has been earlier noted in these reasons the provisions of the Act dealing with equivalence place emphasis upon the activities which are authorised or able to be carried out in the respective occupations. Occupation is defined in section 4 of the Act and on the basis of evidence before the Tribunal licensed conveyancers and solicitors each fall within the definition.
28. In order that the relevant "substantial equivalence of occupation" (see Sande (supra) at page 565) may be ascertained a number of distinct steps of inquiry have to be undertaken namely:
1. Identify the occupation for which the person is registered in the first state or territory;
2. Identify the activities authorised to be carried out under that registration;
3. Identify an occupation in the second state or territory for which a person may be registered;
4. Ascertain the activities authorised to be carried out under that registration;
5. A comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same and recognise whether conditions should be imposed on registration to achieve equivalence between those occupations.
(See also Re Rowe and NSW Police Service (1997) 47 ALD 442 at 444; Board of Examiners under the Mines Safety and Inspection Act (WA) v Lawrence (2000) 100 FCR 255 at 282.)
activties of a licensed conveyancer and a solicitor
29. Ms Margaret Hole, a solicitor and accredited specialist in property law and one time President of the Law Society of New South Wales outlined the history of conveyancing in New South Wales and the circumstances that led to the enactment of the conveyancers legislation in 1995. She detailed the pre-requisites for admission as a solicitor and as a licensed conveyancer. She made a comparison of the two occupations and concluded by saying:
· "The activities which a New South Wales licensed conveyer is permitted to carry out under the Conveyance Licensing Act 1995 are a small part of the activities which a New South Wales solicitor is permitted to carry out and the two occupations are not equivalent. I am of that opinion because:
·There are express limitations on the activities a New South Wales conveyancer may perform whereas there are no express or implied limitations on what a solicitor may perform in relation to legal work;
·The education and training in law required for admission and the right to practice as a solicitor in New South Wales are more extensive and comprehensive than the education and training required to become a licensed conveyancer.
·The New South Wales legislation differentiates between the occupations of solicitors and conveyancers and it does not recognise equivalence between those occupations except to the limited extent that is implicitly achieved in section 4(1) and (2) of the Conveyancers Licensing Act 1995.
·The activities expressly proscribed by section 4(3) of the Conveyancers Licensing Act 1995 form a significant part of the practice of New South Wales solicitors both in their own right and incidental to more complex transactions.
· In my opinion in more complex transactions involving activities proscribed by section 4(3) of the Conveyancers Licensing Act 1995 it would be a very significant disadvantage to a client to be represented by a conveyancer who is only lawfully permitted to carry out the activities referred to in section 4(1) and (2) of the Act. Clients run the risk that not all the relevant legal issues are identified in a timely and efficient manner or at all meaning that there may be considerable scope for duplication inefficiency and mistakes in more complex transactions.
· …conveyancers are not trained or expected to be competent in legal work outside the scope of section 4(1) and (2) of the Conveyancers Licensing Act. In my opinion they lack the education, experience and skill to practice outside those areas."
30. The Applicant is a licensee under the Conveyancers Licensing Act 1995 and permitted to undertake conveyancing work (section 6(1)). The relevant provisions of the Conveyancers Licensing Act 1995 referable to the undertaking of such work are as set forth above and as per sections 4, 5(2)(a), 6(1)(2), 17(1)(c), 18(1), 19(1), 20(1), 21(1)(2), 22(2) and Regulation 12 of the Act.
31. The Applicant says that in order to satisfy the requirements of the Conveyancers Licensing Committee certain criteria had to be met, namely:
1. Have a minimum of two years experience prior to the commencement of the Act in a conveyancing business as the principal or manager;
2. Undergo an inspection of the Applicant's business accounts and files by a Law Society inspector;
3. Pass an examination as set out by the Education Subcommittee prescribed by the Conveyancers Licensing Act 1992 including representatives from the Law Society of New South Wales, Land Titles Office Educational Institution (Macquarie University) and a consumer representative in order to satisfy the committee that the Applicant's knowledge of the law and practice was adequate for the committee to grant a certificate of eligibility. The examination comprised the following:
(a)written assignment;
(b)oral examination; and
(c)written examination;
4. Property checks by Attorney General's Department.
32. The Applicant successfully sat for the relevant exams and met the requirements of the Conveyancers Licensing Committee and was granted a certificate of eligibility on the 24 November 1993. He subsequently made application to the Law Society of New South Wales for an Conveyancers License which was granted with the following condition:
"The holder of the licence is required to complete a course of further legal education relating to conveyancing during each year for which the holder is a licensee."
The later mentioned condition is said to be issued on all licences, as continuing legal education is compulsory for licensed conveyancers.
33. In 1995 the Conveyancers Licensing Act 1992 was repealed, the new legislation providing for a much broader scope of legal work for conveyancers who held an unrestricted licence. In order to obtain an unrestricted licence conveyancers who had been licensed under the 1992 Act were required to pass an approved course as set out by the Conveyancers Licensing Committee, where upon satisfactory completion and passing the examination a conveyancer could make application for an unrestricted licence as provided for by the Act. The Applicant attended an approved course at the University of Western Sydney and completed the required subjects, namely rural conveyancing, commercial leases and the retail leases act, commercial guarantees, finance and security, planning and subdivision, ethics, business management, business structures, consumer rights, equitable principles and trusts, mortgages and taxation and company law.
34. After passing all the examinations on the subjects above detailed the Applicant made application for and was granted an unrestricted licence. He has held a licence now for almost ten years during which time he has practiced as prescribed by the Act.
35. Professor Peter Butt, Professor of Law at the University of Sydney detailed the educational requirements for licensed conveyancers and solicitors in New South Wales. He referred to the subjects prescribed for study at various accredited institutions. He made a comparison between the educational requirements for admission to each occupation. Professor Butt stated his opinion to the following effect:
· "The educational requirements for law degree students differ markedly from those of licensed conveyancing students.
· Law degree students study in depth subjects which licensed conveyancing students either do not study at all or study only tangentially such as the principles of equity, administrative law, federal constitutional law, evidence, litigation, substantive criminal law and international law.
· A law degree course involves a study not only of the principles of law but also of the underlying policies and the social context in which the principles operate. It requires not merely a study of the technical rules of law but an understanding of how the rules have developed, the purposes they serve and a critical appraisal of their utility in modern society. This makes law degree courses more demanding then courses which merely teach "black letter" principles or which concentrate mostly on the acquisition of practical skills.
· Courses for licensed conveyancers take a different approach. They provide a broad general treatment of areas of law and practice that are likely to be encountered by property professionals. They do not require the same analysis of policy and conflicting case law that is required in accredited law degree courses. While doubtless sufficient to instruct prospective licensed conveyancers in basic principle and alert them to danger areas likely to arise in conveyancing and commercial transactions, they do not give the same depth of understanding of law as is required to qualify for practice as a solicitor.
· This difference in approach is reflected in the different entrance criteria for admission for law degree courses and conveyancers licensing courses. In the case of university law courses only the most academically gifted of school leavers qualify for admission. … In comparison the entrance requirements for licensed conveyancer courses are less strict.
· Law courses designed to qualify lawyers for practice in New South Wales are more extensive and rigorous then those designed to qualify persons for practice as licensed conveyancers. In particular courses that seek to prepare students for practice as lawyers demand at least three years study compared to two years for licensed conveyancers, more stringent entrance requirements, a wider subject area, a greater debt of analysis and appreciation of the social context and utility of relevant principles and heightened analytical and critical skills.
36. Evidence was tendered relevant to the activities that a solicitor and a licensed conveyancer are each able to undertake:
(a)"An exhaustive list of activities which the Queensland Law Society says can be performed by solicitors in that State" (Exhibit A, Annexure DT1). The Applicant sought to identify activities so listed which he said he could "lawfully perform" in New South Wales. However, during the course of his cross-examination the Applicant acknowledged that he was not licensed to advise clients as to their rights insofar as those rights are unrelated to a transaction of real or personal property. He acknowledged that he was not licensed to advise a client as to a right in relation to criminal law, family law, intellectual property, land rights, negligence, corporations law, trusts, testamentary dispositions, investment or financial advise unrelated to a transaction of real or personal property. The Applicant was taken through each of the activities that he had earlier identified as being ones that he was able to "lawfully perform" and he accepted that unless the activity fell within a transaction or was associated with a transaction that he was precluded from acting. If there is no transaction involved he accepted that he could not advise a client as to his or her rights. More particularly he was asked questions and gave the following answers:
"Question: So far it seems like your position is that you fully accept that your license is limited to giving advise which is connected with a transaction --- That is correct.
Question: And therefore as a client comes into your firm or into your office you will have to make a judgement about that at an early time to see that you are licensed to do the work they seeking to retain you for --- That's reasonable.
Question: That question would not be one that a solicitor would have to undertake, would it - Not, unless they had conditions on their licence ---Absolutely that is right.
Question: But that is not a question a solicitor without conditions would have to undertake on each occasion --- that is correct."
The Applicant acknowledged that criminal law was exclusive to lawyers. He agreed that the nature of the work that he was able to perform "should be connected to a transaction and if it falls outside of that scope than that is work that I would not undertake; I am not permitted to do so" (transcript page 27).
When it was put to him that:
"this affidavit was obviously directed towards being convincing to the Tribunal that the scope of your licence was sufficiently wide to make it arguably equivalent to that of a solicitor, was it not?",
the Applicant replied:
"In terms of section 4 of the Conveyancers Licensing Act as I have stated in number 3 of my affidavit, yes".
He later acknowledged that:
"if the advise is not connected to a transaction that creates rights between parties then it's not my area of law and I don't practice in that area of law and I don't purport to do so". (Transcript page 34)
And again when asked:
"do you accept that it is fundamental to your licence that the advise you give is associated with transactions of property",
he replied
"both real and personal property, yes. And - sorry, and the preparing of any dead that is necessary or document that is necessary to give effect to that transaction and the legal advise, yes."
He was asked:
"but your licence does not cover the giving of advice in relation to rights which don't relate to a transaction",
he replied:
"yes, I concede that".
(b)In relation to the abovementioned list of activities, Ms Margaret Hole said:
· "…Insofar as there is legal work to be carried out in connection with those activities it may only be performed by a licensed conveyancer in New South Wales if it falls within section 4(1) and (2) the Conveyancers Licensing Act 1995 and is not an expressly excluded activity listed in section 4(3) of the Act.
· Section 48B(2) of the Legal Profession Act 1987 specifically permits a licensed conveyancer to carry out "conveyancing work in accordance with the licence in force under the Conveyancing Licensing Act 1995".
· Section 48E of the Legal Profession Act 1987 is entitled "Limitations on general legal work and probate work" and provides that a person is prohibited from undertaking general legal work unless that person is a legal practitioner. Subsection 4(d) specifically permits a licence conveyancer to undertake work in accordance with a licence in force under the Conveyancers Licensing Act 1995. There is no extension of the work to include the description of general legal work set out in section 48E other then as specifically prescribed in section 4 of the Conveyancers Licensing Act 1995. Insofar as legal work undertaken by any licensed conveyancer is not specifically permitted by section 4 of that Act, the licensed conveyancer is under exactly the same restriction as any other person in New South Wales, namely that a person may not undertake work for fee or reward if that person is not a solicitor or barrister if that work would give rise to an offence under part 3A of the Legal Profession Act (Exhibit 2, paragraphs 38 to 40).
(c)Mr Cooper, a solicitor of the Supreme Court of Queensland since 1970, having extensive experience in real and personal property transactions, outlined the requirements for admission as a solicitor in Queensland of a statutory (further to Schedule 2 of the Admission Rules), educational and practical training nature. As to the activities which a Queensland solicitor may perform Mr Cooper said that they are underpinned by the areas of knowledge and any additional electives undertaken in the following ways, namely familiarising the solicitor with the law in each of the areas of knowledge and those additional electives, familiarising the solicitor with the general body of law which operates within Queensland and providing the solicitor with an appreciation of the inter relationships between the various laws or legal principles that may impact upon a transaction or a matter in Queensland. Although legal work and the activities which a Queensland solicitor is authorised to undertake and does undertake are not prescribed or defined by legislation, it is in depth training in the areas of knowledge during an LLB course at university, as supplemented by the other required units of education and training and admission to practice as a solicitor in Queensland, which in practical terms define what the legal profession and the community recognises as being within the scope of activities authorised and expected to be performed by Queensland solicitors (Exhibit 1, paragraphs 22 and 23). Mr Cooper continued by saying that the rules protect the public by ensuring as far as it is reasonably possible that a person who is entitled to hold himself or herself out as a practising solicitor in Queensland has the underpinning attributes referred to above and the necessary education, training and skills needed to appreciate, understand and manage all the legal issues that are or are likely to be relevant to a transaction or a matter.
37. Having made a comparison of the curriculum and prescribed texts for the Queensland admission course with the information provided to him as to the pre-requisites for admission as a licensed conveyancer, Mr Cooper was of the opinion that the approved courses for a licensed conveyancer are substantially limited when contrasted with the scope of, and detail of education in, the core subjects relating to the areas of knowledge required to be completed for a person to qualify for admission as a Queensland solicitor (Exhibit 1, paragraph 37). Comparing a practicing Queensland solicitor and a New South Wales licensed conveyancer, Mr Cooper said that:
"Based upon:
(a) my analysis of Sections 4, 6 and 7 of the Conveyancers Licensing Act;
(b) the educational and training pre-requisites for admission to practise as a solicitor in Queensland and to obtain a practising certificate from the QLS (Queensland Law Society);
(c) my experience in practising as a solicitor since 1970,
… I am of the opinion that the activities authorised to be carried out by a New South Wales conveyancer pursuant to the Conveyancers Licensing Act are significantly limited in their scope when compared with the activities implicitly authorised and generally expected, to be carried out by a Queensland solicitor."
(Exhibit 1, paragraph 39).
More particularly Mr Cooper said that:
"…activities (inter alia) which Queensland solicitors are authorised to carry out, but which New South Wales conveyancers are not, consist of each of the activities …expressly prohibited under section 4(3) of the Conveyers Licensing Act…
The commencing or maintaining of legal proceedings, the creating, varying or extinguishing of a trust, the preparing of a testamentary instrument, in particular represent a significant part of the practice of the majority of Queensland solicitors.
38. Mr Cooper continued by saying that it is far from uncommon for a Queensland solicitor otherwise engaged in a transaction or matter, which includes an activity permitted under section 4(1) and (2) of the Conveyancers Licensing Act 1995, to also have to deal with an activity proscribed by section 4(3) of the Act as part of that transaction or matter. In larger conveyances of non-residential property it is not uncommon for there to be a mortgage in excess of $7 million through a financier, including a vendor, providing finance. Mr Cooper said that even in relatively straightforward matters it is not uncommon for a trust or corporation to have to be established or varied. Ensuring that a buyer has a correct structure to acquire property is often very important because of the potential impact revenue legislation relating to tax and stamp duty may have on a transaction. This major consideration may require the establishment of a company and/or trust involved in a transaction or the variation of a company's constitution or a trust deed.
39. A very import facet of being a Queensland solicitor, according to Mr Cooper is to be able to appreciate the laws of civil and criminal procedure, the costs and time, and the rules of evidence involved in legal proceedings, which may become relevant to the transaction or matter even if legal proceedings do not ultimately eventuate. The ability to understand and if necessary to undertake enforcement rights and advice thereon is very important. Solicitors' clients expect their solicitor to be able to protect their interests, whether by way of the issue of claims for specific performance, recovery of possession, damages or any other relevant common law statutory or equitable relief in each specific case. Many property transactions are documented with potential litigation in mind. Limited or inadequate knowledge of court procedure, rules of evidence, equity and the litigation system itself adversely impact on the ability of a conveyancer in certain circumstances to fully protect the clients' interests in the documentation or execution of those transactions or matters. A conveyance Mr Cooper said may also have consequences for a client's personal estate and therefore require preparation, or amendment, of a testamentary instrument in order to ensure that it will achieve the testator's or testatrix's objectives.
40. Another category of activities which Queensland solicitors are authorised to carry out, but which New South Wales conveyancers are not, consist of the myriad activities which are based upon the areas of knowledge which Queensland solicitors are trained in and assumed to have basic competence in outside the scope of section 4(1) and (2) of the Conveyancers Licensing Act 1995. There are activities, according to Mr Cooper, which a Queensland solicitor is authorised to perform by reason of education in areas of knowledge which fall outside any apparent area of knowledge required as part of the education pre-requisites for a New South Wales licensed conveyancer. Examples include, litigation referable to equitable remedies, equitable defences, bare trusts, charitable trusts, resulting trusts, Federal and Queensland constitutional law and the various sources and natures of governmental powers, freedom of information, judicial review issues such as standing, grounds and the principles of judicial review, the laws relating to legal professional privilege, public interest privilege, admissibility of evidence, estoppels, succession and probate. There are other activities which a Queensland solicitor is authorised to perform and which appear to be the subject of some basic educational prerequisites for a New South Wales licensed conveyancer, which are not reasonably able to be categorised within activities permitted by section 4 of the Conveyancers Licensing Act except to the limited extent that it may probably be said to be consequential or auxiliary to an activity authorised by section 4 of that Act. Examples include, revenue law based advice, advice on financing, estate planning advice, advice on compliance with legislation and advice on some limited aspects of contract law relevant to conveyancing.
41. With reference to the "exhaustive list of activities" referred to above (Exhibit A, Annexure DT1), Mr Cooper said that the same is not “exhaustive” but simply representative of the sort of activities a Queensland solicitor may perform. He took issue with the Applicant saying in effect that no less than 95 per cent of the activities, could not, in absence of a relevant transaction be performed by a licensed conveyancer. Other activities he described as "possible" such as being where the limited activity could be performed but not any other legal work, which might reasonably be expected to be involved in the activity. In summary he maintained that the Applicant's conclusions as to the activities he is entitled to perform could only be based upon an unreasonable, artificial and erroneous interpretation of section 4(1) and (2) of the Conveyancers Licensing Act. Because an activity permitted by that section may occasionally be included in a "possible" activity, this does not mean that every aspect of that activity falls within the scope of permitted activities for the purposes of that section. Beyond the activities permitted by section 4 (1) and (2) of the Conveyancers Licensing Act the Applicant, according to Mr Cooper, is in the same position as a layman in that he lacks training in the law needed to competently practice as a solicitor and is not permitted to perform for fee or reward any legal work beyond the activities specified in section 4(1) and (2) (Exhibit 1, paragraphs 55 and 56).
42. Ms Margaret Hole expressed her opinion to the effect that the educational and training requirements to be admitted to practice as a solicitor in Queensland and the scope of the activities which a Queensland solicitor is permitted to perform are substantially the same as those of a New South Wales solicitor (Exhibit 2, paragraph 41).
43. The Tribunal accepts that licensed conveyancers should be equally competent with solicitors in the fields in which they are entitled to practice. It would negate the purpose and intent of the legislation if this was not so. The Tribunal is also satisfied that a licensed conveyancer acting in a transaction within the limits imposed by section 4 of the Act should conform to standards and practice maintained by a solicitor acting in a similar transaction. The legislation expects no less.
acting and/or practising as a solicitor
44. The occupation of a solicitor exists in Queensland (see inter alia Legal Practitioners Act 1995, Queensland Law Society Act 1952 and Queensland Law Society Rules). The requirements for admission as a solicitor in Queensland are contained in the Rules relating to the admission of solicitors in the Supreme Court of Queensland. But as Thomas J said, the activities authorised to be carried out once a person is registered as a solicitor are not simple to define (Queensland Law Society v Sande (2) (1998) 1 Qd R 273 at 291).
45. The following is however certain. Section 39 of the Queensland Law Society Act 1952 makes it unlawful for any person without registration to act or practice "as a solicitor". Rule 117 (4) of the Rules of the Queensland Law Society Incorporated (1987) defines acting as a "practitioner" as including:
(a) the drawing, preparing or filing of any proceeding in any court on behalf of any other person;
(b) the drawing, preparing, filing or lodging (whether for registration or otherwise) on behalf of any other person of
1. any deed; or
2. any instrument in writing relating to real or personal estate; or
3. any memorandum or articles of association; or
4. any instrument or document having effect as a deed.
46. However, such a rule is inclusive only and does not assist in defining that which a solicitor is entitled by registration to do to the exclusion of others. Section 19 of the Legal Practitioners Act provides that barristers or attorneys and solicitors may for a fee draw or prepare any conveyance or other deed or instrument in writing relating to any real estate or any proceedings in law or equity.
47. Assistance is however afforded in aid of an understanding of the activities authorised to be carried out by a solicitor by the opinions expressed in a number of decided cases. It has been said (Barristers Board v Palm Management Pty Ltd [1984] WAR 101) that the "administration of law" has wide import and relates in the main to non curial work of that character and limited only by the exclusion of mechanical or clerical work not requiring technical or professional skill to attempt it nor the exercise of judgement in doing it. Brisden J in The Barristers Board (supra) and in Barristers Board of Western Australia v Central Tax Services Pty Ltd (1984) 16 ATR 155 at 117, gave approval to observations made in Florida Bar v Town (1965) 174 So (2d) 395 namely:
"It is generally understood that the performance of services in representing another before the courts is the practice of law.. The practice of law also includes the giving of legal advice or counsel to others as to their rights and obligations under the law and the preparation of legal instruments including contracts by which legal rights are either obtained, secured or given away although such matters may not be then or ever be the subject of proceedings in a court.
We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitutes the practice of law. It is safe to follow the rule that if the giving of such advice and performance of such services effects important rights of a person under the law and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen than the giving of such advice and the performance of such services by one for another as cause of conduct constitutes the practice of law."
48. Acting as a solicitor was identified in Cornell v Superannuation Systems (Aust.) Pty Ltd [1989] VR 43 and Re Sanderson; Ex parte Law Institute of Victoria (1927) VLR 394 at 397 as:
"If a person does a thing usually done by a solicitor and does it in such a way to lead to the reasonable inference that he is a solicitor - if he combines professing to be a solicitor with action usually taken by a solicitor - I think he does act as a solicitor."
49. The term "acting or practising as a solicitor" was also considered in Cornall v Nagle (1995) 2 VR 188 at 196 where it was said that a person who is neither admitted to practice nor enrolled as a barrister and solicitor may be seen to be acting or practising as a solicitor, if such conduct may be seen as the doing of something which, though they are not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor. Further by doing something that is positively proscribed by the Act or by rules of court unless done by a duly qualified legal practitioner. Again a person may be so seen to be acting if there is the doing of something which in order that the public may be adequately protected is required to be done only by those who have the necessary training and expertise in the law.
50. It cannot be forgotten that a solicitor is an officer of the Court and is obliged to conduct each activity bearing in mind his duty to the Court as well as to a client (see Sande (1995) 38 ALD 639; Clyne v NSW Bar Association (1960) 104 CLR 186 at 198).
51. Having in mind the above statutory provision and expressions of opinion it is relevant to consider the activities of those giving advice and performing services which affect the rights of a person under the law. The evidence before the Tribunal is such as to establish that a solicitor in Queensland performs the activities without restriction as detailed in the “listing” but they are not exhaustive. There is no statutory definition anywhere of the activities a solicitor can undertake and indeed there is no statutory provision which specifically allows a solicitor to give legal advice. There is undoubtedly an obligation to be able to appreciate the laws of civil and criminal procedure.
52. In his affidavit evidence Mr Cooper details the educational requirements for admission as a solicitor in Queensland, (Exhibit 1, paragraphs 14 to 24) other requirements and the areas of knowledge deemed to be a pre-requisite to practice. The Queensland Law Society in the granting of a practicing certificate to a person admitted as a solicitor of the Supreme Court of Queensland is to be mindful of the statutory requirements relevant in this regard. Likewise the activities which a person is expressly excluded from performing in the absence of being a Queensland solicitor are identified (Exhibit 1 paragraphs 40 to 49).
53. During the course of his cross-examination Mr Cooper was asked to identify the difference in the activities of a New South Wales solicitor and a New South Wales licensed conveyancer. He answered by saying:
"I would have thought that from what I have gleaned in preparing for today that the New South Wales conveyancer appears to me to be able to carry on activities that seem to be from the, I think it is section 4 of the legislation, are transactional based. In doing what I think the definition talks about is conveyancing work and associated with that he can give advice in relation to those matters. I would have thought that that is a much more restricted field of practice than that of a New South Wales lawyer because a lot of one's work as a lawyer whether you are in New South Wales or Queensland, is often times not associated with any transaction as such. It is associated with giving advice on matters. And I would have thought to that extent a New South Wales lawyer would have a much greater area. And in addition to that the provisions of the legislation restrict specifically, restrict areas for a conveyancer."
54. When Ms Hole was asked "what authority does a solicitor rely upon to give legal advice" she replied "by admission as a solicitor and the admission that is gained through the qualifications and acceptance by the Court for admission as a solicitor" (Transcript page 87).
55. Having considered all of the evidence placed before it referable to the activities of a Queensland solicitor and indeed a New South Wales solicitor and the activities of a licensed conveyancer, the Tribunal is satisfied that the conveyancing of property and thereby the dealing in and advising in relation to property transactions comprises a relatively small part of a solicitors activities. It is, as was stated on behalf of the parties joined, fundamental to the role of a solicitor that she or he advise as to rights both related to and unrelated to transactions, advise, act for and appear in Court in respect of litigation and have as fundamental the obligatory relationship with the Court and a duty to conduct all activities, baring in mind that obligation and relationship. The Tribunal is satisfied that the activities of a licensed conveyancer cannot be said to be substantially the same as the activities of a Queensland solicitor or vice versa.
56. It must however be asked whether the activities enabled to be carried out by a licensed conveyancer can then be made substantially the same as those of a solicitor by the imposition of conditions.
imposition of conditions to obtain equivalence
57. Under the Act it is competent for the registering authority to impose conditions upon an Applicant in order that a "substantially the same" position might be obtained. This possible course requires consideration to be given to the following factors:
1. As already found, the activities carried on in Queensland by a solicitor are much broader than the activities carried on by a licensed conveyancer in New South Wales. It may be possible to curtail such activities so as to limit the activities which may be carried out so that they are substantially the same as those carried on by a licensee, however to effect the reverse is another matter.
2. Consistent with what has been discussed above, it is not possible for conditions to be imposed upon a conveyancer's activities which could make the then activities substantially the same as those authorised to be carried on by solicitors in Queensland. The legislation requires that substantial similarity in activities be achieved if the same is possible by the imposition of the conditions. It seems to the Tribunal that in order for a licensed conveyancer’s activities to be seen as substantially similar to those of a Queensland solicitor, the conveyancer would need to be required to undertake the educational endeavour, training, experience and the other qualities above identified as being peculiar to a solicitor. That is, the conveyancer would need to satisfy conditions such as would be necessary to enable that person to be admitted by the Supreme Court and duly registered for practice.
3. Thus the imposition of conditions could not result in the activities authorised to be carried out within the occupation of a licensed conveyancer being substantially the same of those of a Queensland solicitor. To translate what was said in Charles v Board of Professional Engineers of Queensland (1999) 30 AAR 497 as applicable to the present application:
… [w]e have considered whether equivalence may be obtained by the imposition of conditions. In order to achieve equivalence, the activities of a [Queensland solicitor] would have to be restricted to such an extent that they reflected only those activities authorised by registration under the [Act]. Those activities are not authorised by virtue of registration as a [Queensland solicitor] … That is to say the occupation, would be something different from a [Queensland solicitor] for which the [solicitors legislation] provides registration … [The Tribunal] does [not consider that equivalence of the occupations of a [licensed conveyancer] and of a [Queensland solicitor] can be achieved by means of the imposition of conditions.
To impose conditions on the activities which a solicitor in Queensland may undertake in order to be substantially the same as those activities authorised under the Conveyancers Licensing Act (NSW) would be to render a conditionally registered person something other than what might be described as a solicitor.
58. As in Sande (1995) 38 ALD 639 so in this application. The fact that a solicitor is an officer of the Supreme Court, whereas a conveyancer is not, is of significance. The relationship carries a degree of status as well as obligation and responsibility. It imposes obligations, which in some circumstances will direct the manner in which the solicitor will perform relevant functions. It is not a meaningless feature of the occupation of a solicitor. It is difficult to see, as it was in Sande (supra) how equivalence can be achieved between the occupation of a licensed conveyancer, which does not involve the duty to the Court and that of a solicitor, which does. Such equivalence could only be effected by imposing conditions, which not only restrict the range of activities to be performed but which also remove the overriding duty to the Court. The duty is however fundamental to the concept of being a solicitor and if removed then the person would no longer be a solicitor in the sense and with the understanding earlier detailed in these reasons.
59. It is also to be noted that if any conditions were to be imposed they would be such as to reflect section 4 of the Conveyancers Licensing Act 1995. Supervision of compliance with the conditions would present difficulty. Under the Conveyancers Licensing Act 1995 as earlier detailed in these reasons, controls are imposed on the activities of the practice of a licensee. Such limitations preclude a licensee from entering into partnership, employing or otherwise sharing remuneration with solicitors. There is a preclusion from conveyancers employing solicitors or acting in partnership with solicitors. To ensure registration as a conveyancer in New South Wales one may think these restrictions would need to be maintained or registration would be lost. Counsel on behalf of the parties joined maintained that, as the Queensland parliament had thought to abolish conveyancers in that State (see Sande 40 ALD 1 at 19), the imposition of conditions on a licensed conveyancer, even if the same were possible in order that registration as a Queensland solicitor might be maintained, would transform the Act into one which forces the will of one State upon another. That is, the person admitted in Queensland subject to conditions would be a person who is able to practice as a conveyancer in New South Wales and would be enabled in Queensland to do no more than that which she or he is entitled to do in New South Wales. That is, that person would practice in Queensland, as would a licensed conveyancer in New South Wales. Thus there would then be in Queensland the practice of a licensed conveyancer. This would be contrary to Parliament’s intent when conveyancers were abolished in 1938.
60. It is relevant in this connection to note the matters raised by Ms Margaret Hole when considering the change from being a licensed conveyancer to a solicitor in New South Wales. She said that in order for a licensed conveyancer to obtain admission as a solicitor in New South Wales that conveyancer would need to undertake studies to convince the Legal Practitioners Admission Board that the person had obtained sufficient qualification to comply with the rules in the same way as any other person seeking to be admitted pursuant to the Legal Profession Act 1987. A conveyancer wishing to be admitted as a solicitor would also be required to undertake a practical legal training course to satisfy the requirements of the Legal Practitioners Admission Board. A licensed conveyancer wishing to be so admitted with an unlimited practising certificate would also need to satisfy the practice requirements following admission of a legal practitioner and sufficient employment to obtain an unlimited practicing certificate. Thus, she concluded, were it thought to impose conditions upon the occupation of a New South Wales solicitor as it is presently known in order to achieve equivalence with the occupation of a New South Wales conveyancer, the resulting occupation would, in her opinion, be something other than that of a solicitor. The Tribunal agrees with this opinion as expressed by Ms Hole.
61. Mr Cooper also expressed his opinion, this to the effect that the scope of activities which a New South Wales licensed conveyancer is permitted to perform is so much more limited then the scope of activities which a Queensland solicitor is implemented to perform, that the imposition upon such a conveyancer of conditions necessary to achieve equivalence between the two occupations would make the resulting occupation something other than that of a Queensland solicitor. The Tribunal concurs with this opinion.
62. Earlier in these reasons mention was made of the intent of the legislation as expressed in the Act and elsewhere. It is intended to ensure that persons carrying on occupations the activities of which are equivalent or substantially the same should be enabled to obtain registration enabling the person to practice in another region of the country. It was not intended to enable one occupation to be with or without the imposition of conditions translated into another occupation by avoiding the prerequisites for admission by way of education, training and experience. The conveyancing of property comprises only a small part of the activities of a Queensland solicitor. If a solicitor’s activities were to be restricted by conditions as is suggested by and on behalf of the Applicant the result would be so extreme as to render that person something other than a solicitor. A licensed conveyancer does not have a right of appearance in any court. The conveyancer is not an officer of the court. The legal work that a conveyancer is enabled to perform must be connected with a transaction which excludes so much of the law, vis, inter alia, litigation, civil procedure and evidence, torts, criminal law, family law, neighbourhood disputes, land rights, trespass, nuisance, discrimination, workplace health and safety, employment law, administrative law, immigration and insurance law and constitutional law both Federal and State. Litigation, creating a corporation and creating a trust are all areas of activity peculiar to a solicitor. Over many years the Supreme Courts have determined what education is essential for a person to be admitted as a solicitor. Suffice it to say that a person licensed under the Conveyancers Licensing Act is not enabled to practice as a solicitor or hold herself or himself out as a solicitor and has a limited area where she or he can practise within the scope of a solicitor’s work. It would not be correct for the Tribunal to conclude equivalence without any consideration of conditions. As already been indicated the imposition of conditions is singularly inappropriate in an application such as the present. Indeed the imposition of any conditions would not achieve the outcomes sought to be achieved, that is equivalence. The cutting down by conditions of registration in Queensland to those in New South Wales would make the Applicant other than the solicitor for which he was seeking to contend he was in an equivalent occupation.. Seeking to use the Act to obtain registration as in the present application is contrary to its intention. There is no intent to impose the will of one State or Territory upon another. Indeed if the Applicant were to be registered on conditions then any New South Wales licensed conveyancer would be entitled to be registered on conditions. Be it that in New South Wales licensed conveyancers are recognised it would be wrong to use the Act to impose on Queensland an occupation that its legislature has decided it should not have.
63. The onus is on the Applicant to show pursuant to section 29 of the Act that the activities authorised to be carried out as a licensed conveyancer are substantially the same of those of a Queensland solicitor. The Tribunal is satisfied that the Applicant has not discharged this onus. If the Applicant's activities were to be restricted by the imposition of conditions, the result would be so extreme as to render him something other than a solicitor. Further, equivalence cannot be achieved between the occupation of a licensed conveyancer and that of a Queensland solicitor which does not involve the overriding duty to the Court. This duty is fundamental to the concept of being a solicitor and if it were removed than the person would no longer be a solicitor in the usually accepted sense of the word.
64. It is of the essence of the practice of law as a solicitor in Queensland and as a solicitor and barrister in New South Wales that the practitioner be entitled to advise a client as to rights and then enforce those rights by acting for and appearing for the client in Court. It may well be and the Tribunal is so of the opinion that a reason for the respect the public gives to a solicitor and comes to the solicitor for advice is because of the right to appear in Court, the knowledge of how to enforce rights and in particular the obligation the solicitor has to the Court as an officer of the Court. That obligation comes with the respect given to the solicitor by the Courts, this because of the duty owed, the obligation and relationship recognised. The existence of this relationship creates difficulty for those other than solicitors being so registered. As was submitted on behalf of the parties joined, the intention of the Act was and is to allow similar occupations to be registered throughout Australia, not different ones. The occupation of a licensed conveyancer is in this sense different of that of a Queensland solicitor.
65. For the reasons herein before set forth, the Tribunal is of the opinion that the correct and/or preferable decision in this application is to affirm the decision under review. The decision under review is affirmed.
I certify that the 65 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis, QC, Deputy President
Signed: L Bonouvrie
AssociateDate/s of Hearing 31 July 2003, 1 August 2003
Date of Decision 10 September 2003
Counsel for the Applicant Mr S J English
Counsel for the Respondents Mr S A McLeod, Mr J C Bell
Solicitor for the Respondents Mr B O'Shea, Mr I Hughes
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