Turner and the Registrar, Supreme Court of Queensland - [2002] AATA 741

DECISION AND REASONS FOR DECISION [2002] AATA 741

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2002/539

GENERAL ADMINISTRATIVE DIVISION       )
           Re      DALE TURNER
  Applicant
           And    THE REGISTRAR, SUPREME COURT OF QUEENSLAND
  Respondent

DECISION

Tribunal The Hon R N J Purvis Q.C., Deputy President

Date30 August 2002
PlaceSydney

Decision Pursuant to s 30(1A) of the Administrative Appeals Tribunal Act 1975, the Tribunal orders that the Queensland Law Society and the Queensland Solicitors Admission Board be made parties to the proceedings.

[sgd] R N J Purvis
Deputy President
CATCHWORDS
JOINDER OF PARTIES – whether Queensland Law Society should be party to proceedings – whether Society's interests affected – reasons why Tribunal's discretion should or should not be exercised to allow Society to be a party – whether licensed conveyancer in NSW is equivalent to solicitor in Queensland – Society issues practicing certificates and involved in supervision and enforcement of conditions on certificate – regulates legal profession – Society found to have relevant interest – order made that Society be a party to proceedings

Mutual Recognition Act 1992 (Cth) – ss 4(1), 19(1), 23(1)(c), 39(1), (2)
Administrative Appeals Tribunal Act 1975 – ss 27, 30(1A), 31(1)
Queensland Law Society Act 1952 – ss 4 (1), 1(A), (6), 38(1)(a)(b), 40(1)(a)(b), 41(1)(c)(d)
Queensland Law Society Rules – R2 (3)

Re Control Investment Pty Ltd and Others v Australian Broadcasting Tribunal No1 (1980) 3 ALD74
US Tobacco Co v Minister For Consumer Affairs (1988) 20 FCR 520
Re Sande v Supreme Court in Queensland (1995) 38 ALD 639
Re Woollard and Australian Electoral Commission (2001) 32 AAR 492

REASONS FOR DECISION

The Hon R N J Purvis Q.C., Deputy President

the application

This is an application by the Queensland Law Society ("the Society") and the Queensland Solicitors' Admission Board ("the Board") to be joined as Respondents in an application to the Tribunal for review of a decision made by the Registrar Supreme Court of Queensland to refuse the application of Mr Dale Turner ("the Applicant") for admission to the Supreme Court of Queensland as a solicitor pursuant to section 23(1)(c) of the Mutual Recognition Act 1992 (Commonwealth).
The Applicant at the hearing of the present application did not oppose the Board being so joined. He did oppose the Society becoming a party to the substantive review proceedings.
the hearing of the joined application
At the hearing of the application made by the Society to be joined as a party in the substantive application for review the Applicant appeared on his own behalf, the Respondent was represented by Mr Scott McLeod of Counsel and Mr Rowan Jackson of Counsel appeared for the Society and the Board.
The application made on behalf of the Society was supported by the Respondent.
The issues presently before the Tribunal are:

whether the Society is a person whose interests are affected by the decision in the substantive application;
whether there is any good reason why the Tribunal should not, in its discretion, grant the application of the Society to be made a party.

the decision under review

The decision of the Respondent was made on 25 March 2002. In the reasons for the decision it was stated (T2, p5):
"Section 23(1)(c) provides that a local registration authority may refuse the grant of registration if inter alia, 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.
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, such activities being regulated by Sect.4 of the Conveyancers Licensing Act 1995 (NSW).
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.
The Act should be applied in a practical, commonsense manner, regard being had to the substance of the matter and the substantial equivalence of occupations. Sande v Registrar Supreme Court of Queensland (1995) 134 ALR 560 [565].
Whilst the applicant raises many issues for consideration in the material, I did not consider them to be at all persuasive to distinguish his application from the decision of the Administrative Appeals Tribunal Re: Sande and Supreme Court of Queensland (1995) 22 AAR11."
The application for recognition had been referred to the Board, which after considering the matter resolved (T8, p12):
"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 New South Wales 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."
The issue for determination at the hearing of the substantive application will be as to whether or not the occupation of a licensed conveyancer in NSW is equivalent to the occupation of a solicitor in Queensland for the purposes of the Mutual Recognition Act 1992 (Commonwealth).
the relevant facts
The Applicant is a licensed conveyancer in NSW having been so licensed on 6 July 2001.
Guidelines approved by the Judges of the Queensland Supreme Court on 11 October 1994 vest in the Respondent the powers and duties of the Court under the Mutual Recognition Act 1992.
On 4 March 2002 the Applicant lodged with the Respondent a notice under section 19 of the Act seeking registration as a solicitor. On 25 March 2002 the application was refused, the Respondent having found that (T2, p4):
"…
2. 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) Sect 4(1) and (2).
3. A Licensed Conveyancer is not permitted to carry out certain activities in relation to conveyancing work as stipulated in Conveyancing Licensing Act 1995 (NSW) Sect 4(3).
4. 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.
5. The material 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."

legislative provisions relevant to the substantive application

The Mutual Recognition Act 1992 (Commonwealth) ("the Act") relevantly provides as follows:
"Section 4(1) registration includes the licensing, approval, admission, certification (including by way of practicing certificates), or any other form of authorisation, of a person required by or under legislation for carrying on an occupation.
Section 19 Notification to local registration authority [entitlement to registration]
(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 principal.
…
Section 23 Refusal of registration
(1) A local registration authority may refuse the grant of registration if,
…
(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.
Section 39 General responsibilities of local registration authorities
(1) It is a duty of each local registration authority to facilitate the operation of this part in relation to the occupations for which the authority is responsible and in particular to make use of the power to impose conditions in such a way as to promote the mutual recognition principle.
(2) It is the duty of each local registration authority to prepare and make available guidelines and information regarding the operation of this part in relation to occupations for which the authority is responsible…"

legislative provisions relevant to the joinder application

The Administrative Appeals Tribunal Act 1975 as amended provides:
"Section 27 Persons who may apply to Tribunal
…
(2) An organisation or association of persons whether incorporated or not shall be taken to have interests that are affected by a decision, if the decision relates to a matter included in the objects or purposes of the organisation or association.
…
Section 30 Parties to proceeding before Tribunal
…
1(A) Where an application has been made by a person to the Tribunal for a review of a decision, any other person whose interests are affected by the decision may apply in writing to the Tribunal to be made a party to the proceeding and the Tribunal may in its discretion by order make that person a party to the proceeding.
…
Section 31 Tribunal to determine persons whose interests are affected by the decision
(1) Where it is necessary for the purposes of this Act to decide whether the interests of a person are affected by a decision, that matter shall be decided by the Tribunal and, if the Tribunal decides that the interests of a person are affected by a decision, the decision of the Tribunal is conclusive.
…"
The "interests which are affected" within the meaning of the above statutory provision refer to interests which those bodies have in the subject matter of the decision other than as members of the public (see Re Control Investment Pty Ltd and Others v Australian Broadcasting Tribunal No 1 (1980) 3 ALD 74). It is submitted on behalf of the Society that its interests may be affected by the decision in either a beneficial or adverse way. The Federal Court in US Tobacco Co v Minister For Consumer Affairs (1988) 20 FCR 520 held that a person seeking to be joined as a party must be able to identify a relevant interest or demonstrate a genuine affectation of an interest which attaches to that person. The nature of the interest required in a particular case will be influenced by the subject matter and context of the decision under review. As was indicated in Re Control Investment Pty Ltd (pp 80, 81) [supra] once the interests of a person are seen to be relevantly affected there remains a discretion as to whether joinder is to be ordered, such discretion to be exercised in accordance with a duty to provide a fair hearing and deal with the review application as expeditiously as possible.
The Queensland Law Society Act 1952 provides:
"Section 4 Incorporation of the Society
(1) There shall be a body corporate by the name of the Queensland Law Society Incorporated.
1(A) Subject to this Act the Society shall consist of all persons who for the time being are and whilst they continue to be members of the Society.
Section 38 Prohibition on practising without practising certificate
38(1) No solicitor shall on or after 1 June 1931 act or practice as a solicitor unless -
(a) the solicitor has obtained from the Secretary on application in proper form a certificate which is than in force to the effect that the solicitor is on the roll of the court as a solicitor thereof and entitled to practice as a solicitor; and
(b) in the case where the certificate aforesaid obtained by the solicitor is subject to a condition prescribed by this Act or a condition prescribed by or imposed pursuant to the rules - the solicitor acts or practises as a solicitor in accordance in all respects with that condition
….
Section 40 Application for and issue of certificate
(1) Subject to this Act on payment by the applicant of the prescribed practising fee together with the prescribed contribution to the fund at any levy then payable under this Act by the applicant the secretary shall -
(a) on application by a solicitor practising as a solicitor, or by a conveyancer practising as such - issue to him or her a certificate in the approved form endorsed with such conditions as may apply pursuant to the rules and -
…
(b) on application by a solicitor or conveyancer who shall not have practised as a solicitor or conveyancer prior to the date of such application, accompanied by a declaration by the applicant in the approved form showing, in the case of a solicitor -
…
Issue to the applicant a certificate in the approved form endorsed with such conditions as may apply pursuant to the rules which shall be in force from the date of such certificate until 30 June next following such date.
…
Section 41 Grounds for refusing or cancelling certificate
(1) The secretary may refuse to issue a certificate, the council may, upon a reference by the secretary of any application for a certificate or any question arising in relation to such an application direct the secretary to refuse to issue a certificate and the council may cancel a certificate when issued under the foregoing provisions of this Act if the applicant for or holder of such certificate as the case may be -
…
(c) has failed to comply with any act, regulation, or order related to his or her trust funds or the trust funds of any partnership of which the applicant or holder was a member at the time of such failure;
(d) has after being called upon by the council or the secretary so to do, failed to give to the council an explanation in writing which is in the opinion of the council sufficient and satisfactory in the circumstances touching any matter relating to his or her conduct, or to his or her practice as a solicitor or conveyancer or to give to the council any document (or copy thereof), which is in his or her custody or possession and which the applicant or holder is entitled at law so to give, sought by the council or the secretary to enable to council to satisfy itself considering the explanation, and such failure still continues.
…"

The Queensland Law Society Rules 1987 provide with reference to the objects of the Queensland Law Society that:

"2.The objects of the Society are -
…
(3)To preserve and maintain the integrity and status of the legal profession."

submissions made on behalf of the respondent

As earlier indicated in these reasons, the Respondent supports the application made by the Society to be joined as a party in these proceedings. On behalf of the Respondent it was submitted, that the role of the Society as a regulator of the legal profession is recognised by statute. It is comprised of a significant majority of those admitted to practice in Queensland and its interests relate to its duty and responsibility in representing its members, many of whom may on the basis of evidence placed before the Tribunal (Exhibit B), oppose the admission and registration of a licensed conveyancer as a solicitor.
It was further submitted on behalf of the Respondent that the Society, if it be a party, could call evidence as to those matters which might be acted upon by the Tribunal. This was the situation in Re Sande v Supreme Court in Queensland (1995) 38 ALD 639.
The Respondent, it was submitted, "should be at pains not to compromise the reality and appearance of its impartiality in the role it takes in defending its own decision on a question of registration" (see Re Woollard and Australian Electoral Commission (2001) 32 AAR 492 at 498 and 499 par.17-20. If the Society be joined as a party then it could take the "primary role of contradictor" with the Respondent assisting the Tribunal with arguments and submissions that fairly bear upon relevant considerations.
The Society, it was said, would also be better placed to adduce evidence concerning the activities, which are authorised to be carried on, and in fact are carried on, by licensed conveyancers in NSW and solicitors in Queensland.
submissions and argument on behalf of the society
The Society maintains that pursuant to section 4(6) of the Queensland Law Society Act, the Applicant may become a member of the Society should his application be successful. The Act prohibits a solicitor acting or practising as such without obtaining a practising certificate (s38). In order for such a solicitor to obtain registration to practice it is necessary that the individual be admitted and obtain a practising certificate. The Mutual Recognition Act (s19) requires the Society to be notified of an application being made thereby ensuring it has a sufficient interest in the decision called upon to be made. Section 40 of the Queensland Law Society Act obliges the Society to issue practising certificates but the same can be subject to various conditions. Along with the Respondent, the Society, it is said, falls within the definition of a "local registration authority" within the meaning of the Act, there being in effect two registration authorities in Queensland; the Supreme Court and the Law Society.
Section 41 of the Law Society Act provides the basis upon which the Society may refuse or cancel a practicing certificate, and should the Applicant's application be successful, the Society would be involved in the supervision and enforcement of any conditions that may be attached to his admission as a solicitor and the issue of a practising certificate. The utility of such conditions and the supervision of compliance with such conditions would rest upon the Society.
Rule 2 of the Queensland Law Society Rules as set forth above provides that amongst the objects of the Society is an obligation to preserve and maintain the integrity and status of the legal profession. Thus it is said the Society is a body that maintains an interest in ensuring that only those persons who are properly qualified should be admitted as solicitors and obtain a practising certificate.
The reality is that if the Applicant's application succeeds given his qualification as a conveyancer, then he will be subject to a number of conditions prior to registration. The conditions will attach to the issue of his practising certificate and it will be for the Society to supervise and enforce those conditions. The Society, it was submitted, should be heard on the substantive hearing as to the suitability of the conditions and as to whether it is practicable or otherwise to supervise and enforce them, particularly so where someone who does not have the qualification of a solicitor seeks to admitted or registered.
The Society ought to be heard on the question of the preservation and maintenance of the integrity and status of the legal profession because the question is as to whether someone with significantly different qualifications and practical experience, from that of a solicitor practicing in Queensland, ought to be admitted as a solicitor even if subject to conditions. It is the view of the Society that in the circumstances where its role is to supervise and enforce conditions, which also become part of preserving and maintaining the integrity and status of the legal profession, that it ought to be heard.

As to the exercise by the Tribunal of its discretion under the Administrative Appeals Tribunal Act 1975, it is said that the question to be asked is whether there is any reason to suspect that in making an order for joinder, the Tribunal's ability to provide a fair hearing and deal with the matter expeditiously would be adversely affected. There is no reason to suspect, it was said, that there would be any impact upon the ability to provide for a fair hearing and deal with the matter expeditiously. Indeed representation on behalf of the Law Society may be beneficial in this regard.
submissions by the applicant
The Applicant contended that the Society plays no substantive part in the admission of a person as a solicitor to the Supreme Court of Queensland. Its role, it was said, only commences after that person has been admitted as a solicitor and only if that person makes an application to the Queensland Law Society for a practicing certificate. Further, the public role of the Society and its members is to serve on the Board and that is where the appropriate interest in representation lies for the Society exercising its function under the rules and not "in performing the function of a primary contradictor before the Tribunal". The Applicant contended that the Society was in effect "a union or a lobbyist for its members" and as such did not play a relevant role in relation to the admission of a person as a solicitor.
It was submitted that it was for the Respondent to defend its decision and not for it to stand aside and let arguments take place between the Applicant and the Society and the Board. The Society, it was said, was not the appropriate authority to defend a decision made by the Registrar. As to the adducing of evidence concerning activities of conveyancers in New South Wales and solicitors in Queensland this, it was said, was a question of law and not of fact. The Tribunal it should be said, does not concur with this submission and would regard the receipt of evidence as to the activities engaged in by conveyancers in New South Wales and those engaged in by solicitors in Queensland as germane to a decision being reached in the substantive review application.
Thus, it was said by the Applicant, the Society plays no substantive part in the admission of solicitors on to the role of solicitors in the Supreme Court of Queensland. It has no interest in an application for admission as a solicitor per se. It does have representation on the board and to that extent is able to exert some influence on decisions being made. It is noted by the Tribunal that the latter may well itself indicate recognition on the part of government that the Society should play a part, be it through the Board, in deciding upon admissions.
The Applicant in his detailed and lengthy written submissions, resisting the application of the Society, dealt with many matters, which are more pertinent to the substantive application. As earlier mentioned in these reasons, the Administrative Appeals Tribunal Act 1975 empowers the Tribunal to join a person as a party in proceedings where that person's interest may be affected by the decision which may eventuate.
decision
An Applicant under the Act is required to give notice to the Society. An Applicant if admitted as a solicitor, cannot practice as such without a practising certificate. An Applicant must seek such a certificate. A practicing certificate may well be subject to conditions, conditions which are determined by the Respondent. It is, however, the Society that must ensure compliance with and supervision of the conditions.
The Tribunal is satisfied that the role of the Society is in the regulation of the legal profession, preservation of its interests and ensuring as best it can, that those admitted to practice and having a practising certificate are able to properly serve the interests of those members of the public seeking the provision of legal services. It may be that the body of solicitors in Queensland, members of the Society, have a significant and relevant interest in the admission, registration and certification of a conveyancer. It may be that evidence could be called on behalf of or by the Society relevant to these issues.
The Tribunal is in agreement with the submission made on behalf of the Respondent that it is preferable for the Respondent, being the Registrar of the Supreme Court of Queensland, to be able to adopt an impartial role in defending its decision on a question of registration and admission. The Society will then be in a position to call evidence concerning activities, which are authorised to be carried on, and are in fact carried on, by licensed conveyancers and solicitors.
For these reasons the Tribunal is satisfied that the Society does have a relevant interest that may be affected by the decision to be made in the substantive application, and that it is in the interests of ensuring as best it can, that the correct or preferable decision is in due course made, that the Society be made a party to the proceedings and be enabled to adduce such relevant evidence as may assist in arriving at such a decision.
As earlier indicated and by consent, the application of the Board under date 19 July 2002 to be made a party to the proceedings, is to be granted. The Board is accordingly made a party to the proceedings.
For the reasons hereinbefore set forth, the Tribunal is satisfied that the Society should be made a party to the proceedings. The Society is accordingly made a party to the proceedings.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon R N J Purvis Q.C., Deputy President
Signed: A Stephens .....................................................................................
  Associate
Date/s of Hearing  5 August 2002
Date of Decision  30 August 2002
Solicitor for the Applicant         self-represented
Counsel for the Respondent    S. McLeod, Rowan Jackson
Solicitor for the Respondent    B O'Shea