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Solicitors Self-represented (Applicant) Phelps Reid (Respondent)

File Number: ACTCA 59 of 2017

Decision under appeal: Court/Tribunal: ACT Supreme Court Before: Penfold J Date of Decision: 29 May 2017 Case Title: Barlow v Law Society of the ACT (No 2) Citation: [2017] ACTSC 121

ELKAIM J:

1. I am sitting as the Court of Appeal constituted by a single judge, pursuant to s 37J of the Supreme Court Act 1993 (ACT).

2. For convenience, and without any disrespect, I will refer to Ms Barlow by her name and to the various opposing parties collectively as the Law Society.

3. There are two applications before me.

Ms Barlow’s application

4. This application is for leave to appeal from a decision of Penfold J handed down on 29 May 2017. The application was filed on 28 November 2017. It was filed out of time. Ms Barlow requires an extension of time to allow the application to be heard.

5. The application has been made pursuant to s 37E(4) of the Supreme Court Act 1933 (ACT). The out of time element is governed by r 5312 of the Court Procedures Rules 2006 (ACT).

6. The Law Society opposes the orders sought.

7. The evidence in Ms Barlow’s application is comprised of her affidavit filed on 28 November 2017 and the minutes of a meeting of the Law Society on 15 July 2002 (Exhibit A). The Law Society relies on an affidavit of Mr Michael Phelps, filed on 21 December 2017. This affidavit contains a very useful chronology of the various proceedings that have involved the parties.

8. The relevant decision of Penfold J was handed down on 29 May 2017 (Barlow v Law Society of the ACT (No 2) [2017] ACTSC 121). As it was a decision on an interlocutory matter, any appeal against that decision required leave, which should have been sought within seven days (r 5312 of the Court Procedures Rules 2006 (ACT)). Ms Barlow filed a notice of appeal on 26 June 2017 which, ostensibly, was within time.

9. Unfortunately, Ms Barlow should have filed an application for leave to appeal rather than a notice of appeal. This mistake led the Law Society, on 22 August 2017, to file an application to strike out the appeal as incompetent. This application was heard on 6 September 2017 by Mossop J. His Honour agreed, in a decision dated 1 November 2017, that the appeal was incompetent because a leave application should have been filed (Barlow v Law Society of the ACT [2017] ACTCA 45).

10. Three weeks later, on 28 November 2017, Ms Barlow filed an application for leave to appeal. The Law Society initially submitted that Ms Barlow had not provided an explanation for the delay between June and November 2017. However, when it was pointed out to the Law Society that the intervening period had been taken up by the proceedings before Mossop J, so that the delay was not extensive, the Law Society appropriately withdrew its opposition to the extension of time.

11. Ms Barlow, both in her affidavit and in her oral submissions, concentrated on Exhibit A as being at the core of her complaint against the Law Society. She said her complaints arising from this document had never been properly ventilated. She had never received “a hearing on the merits”.

12. The principles to be applied in an application for leave to appeal were summarised by Refshauge J in Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37; 7 ACTLR 48 at [58]:

(a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases; (b) a Court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion; (c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave; (d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave; (e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant; (f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and (g) it may be a factor favouring the grant of leave that: (i) the decision involves a matter of public importance; or (ii) the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.

13. I would also add that if the appeal is futile or is an abuse of process, leave to appeal should not be granted.

14. The Law Society’s response to the application was that the argument that Ms Barlow seeks to make, arising from Exhibit A, has already been dealt with and rejected. The history, submitted the Law Society, illustrates the futility of her argument and of the draft notice of appeal.

15. The Law Society’s submission was, effectively, that the appeal sought to be pursued was an abuse of process. I agree.

16. As noted above, Exhibit A is the source of Ms Barlow’s complaint. She pointed out, however, that the current proceedings are in tort and the earlier proceedings were not. This distinction is of no import. The fact is that, unequivocally, any controversy arising from the minutes has been comprehensively dealt with in previous proceedings.

17. In the decision of the Full Court, handed down on 12 April 2013 (Barlow v The Law Society of the ACT [2013] ACTSC 68; 272 FLR 470), the Court specifically dealt with this issue from [28]: 28. It apparently came to light in late 2002 that no course had ever actually been prescribed and no such regulation made by the Commonwealth Attorney-General or the ACT Executive for that purpose. The evidence does not explain why that was. 29. Once this was drawn to the attention of the Law Society, it accepted it had been acting on a mistaken assumption and it did not thereafter apply Item 4 (and, presumably, also the alternative in Item 5 to reduce the time under that item) by taking into account the period of training at the ANU Legal Workshop including the Graduate Diploma to reduce to one year the period of legal practice required as a qualification for the grant of an unrestricted practising certificate. This is unsurprising as, if no course had been prescribed, then no-one could meet that part of the criteria set out in Items 4 or 5 of Table 27. Rather extreme terms were used about Item 4, describing it as “a nullity”. That is not correct. It was a valid exercise of legislative power; it was just that no-one could be eligible under the Item for there was no course that was prescribed and so no-one would meet that criterion. 30. Ms Barlow, who had anticipated being able to apply under Item 4, felt very upset by this turn of events. She felt that the Law Society had somehow been responsible for her inability to rely on her Graduate Diploma and one year of employed legal practice under Item 4 for the grant of an unrestricted practising certificate. On the evidence, there is no basis for her to blame the Law Society. The prescription of the course was a matter for the ACT Government and its Executive, not the Law Society which was, of course, bound to apply the law as it was. 31. She says she wrote to the Law Society requesting that it not apply “the new rules” (by which we understand that she wished to be assessed as though the previous “understanding” that Item 4(b)(ii) did refer to the Legal Workshop course and not otherwise) because it would be “unconscionable” not to do so, particularly as it had made representations to her as to the applicable criteria from which it should not be permitted to resile. Ms Barlow submitted that this was not seeking an exception but that “existing legislation and regulations” be applied to her case. The Law Society understandably decided not to give such an undertaking. Indeed, it is almost certain that it could not legally do so.

18. Penfold J, in her decision of 21 February 2017 (Barlow v Law Society of the ACT [2017] ACTSC 35; 317 FLR 297), dealt with the issue from [104].

19. Ms Barlow relied upon the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 in support of her application. She seemed to be suggesting that the decision of Penfold J was “tainted with jurisdictional error” so that “it was not a decision at all”. I was not taken to any particular part of this decision, although no doubt it does stand for the proposition that a decision made without the jurisdiction to make the decision cannot be sustained.

20. Ms Barlow did not, however, make out any case that established jurisdictional error. Her draft notice of appeal does not assist.

21. In her affidavit Ms Barlow complains that Penfold J did not turn her mind “to the substance of the application” in her judgment of 29 May 2017. This is not correct. This judgment needs to be read with her Honour’s earlier judgment of 21 February 2017, which contains a detailed analysis of Ms Barlow’s claim. In particular, her Honour dealt with Ms Barlow’s allegation of jurisdictional error by the Magistrate. Her Honour concluded at [88]:

I have not been able to identify anywhere in Mrs Barlow’s submissions, including those contained in affidavits, where she has identified any legal principle that has been erroneously applied by the Magistrate.

22. An analysis of Penfold J’s decision of 29 May 2017 shows that her Honour examined the question of whether Ms Barlow’s appeal from the Magistrate should be treated as an abuse of process. Her Honour was at pains to evaluate the submissions of both sides. She was critical of the Law Society’s submissions (at [26]).

23. At [32] her Honour looked back at her earlier decision and summarised some of her findings. In particular at subparagraphs (c), (d) and (e) she said:

(c) Mrs Barlow, who had completed the Legal Workshop course and one year of supervised practice by the time she applied in 2004, says she should have been granted an unrestricted practising certificate, first because the earlier advice was not wrong, but secondly because even if it was, she had relied on it and the Law Society was therefore obliged to issue an unrestricted practising certificate (presumably in spite of the fact that this would be in breach of the law by which the Law Society was bound). (d) Having reviewed the legislative history I was satisfied that, from 1998: (i) The basis for issuing practising certificates was found in provisions referring to a “prescribed course of training for the practice of law”; and (ii) There was no prescription of such a course of training in relation to practising certificates in the relevant primary legislation or in any regulation. (e) That is, on and after 2000, there was no course of training that satisfied the description of a “prescribed course of training for the practise of law”, and therefore no scope for issuing an unrestricted practising certificate on the basis of completion of the Legal Workshop course and one year of supervised practice.

24. Then, in [33] her Honour said:

Thus, Mrs Barlow cannot demonstrate that in 2004, the Law Society or any of the other applicants had misunderstood the law (in good faith or otherwise) and had improperly refused her an unrestricted practising certificate. The law simply did not permit the issue of an unrestricted practising certificate to Mrs Barlow, at that time or subsequently.

25. Effectively, Ms Barlow is pursuing a case that she has already lost, perhaps more than once. It is inevitable that the application for leave to appeal must be refused.

The Law Society’s application

26. This application was made pursuant to s 67A of the Supreme Court Act 1933 (ACT). Its purpose is to have Ms Barlow declared a vexatious litigant. As the Law Society pointed out, the path to a person being declared a vexatious litigant involves two steps. Firstly, there must be the technical qualification within the terms of the above section. Secondly, assuming success on the first step, a discretion must be exercised to make the declaration.

27. The Law Society referred to five separate proceedings which it relied upon to establish the existence of vexatious proceedings. These were as follows:

(a) The proceedings commenced in the Magistrates Court in July 2015 and decided by Magistrate Morrison on 1 December 2015 (Barlow v Law Society of the ACT [2015] ACTMC 8). These proceedings were said to lack reasonable grounds.

(b) The appeal from the decision of the Magistrate filed in January 2016 and decided by Penfold J on 21 February 2017 (Barlow v Law Society of the ACT [2017] ACTSC 35; 317 FLR 297). This proceeding was also said to lack reasonable grounds.

(c) The application to set aside a Bankruptcy Notice filed in the Federal Circuit Court on 2 February 2016. This proceeding was said to have the ulterior motive of delaying the creditor’s petition that had been filed by the Law Society.

(d) The Notice of Appeal from the decision of Penfold J. Mossop J struck out the appeal for incompetency, highlighting the unreasonableness of the proceeding (Barlow v Law Society of the ACT [2017] ACTCA 45). The appeal was also said to have the ulterior motive of delaying the bankruptcy proceedings.

(e) The application for leave to appeal which is now before me. The Law Society submits that these proceedings lack reasonable grounds and are intended to delay the bankruptcy proceedings.

28. The Law Society referred me to the decision of Mossop AsJ (as he then was) in Vatarescu v The Commonwealth of Australia and Australian Capital Territory [2013] ACTSC 270; 285 FLR 1 to indicate the principles that need to be applied in hearing an application under s 67A. It is apparent from the judgment that, while the bar may have been slightly lowered by the specific terms of s 67A, it nevertheless remains “very high”.

29. Travelling through s 67A, I am satisfied that the Law Society is an “aggrieved person” and that the five proceedings listed above are “proceedings” within the section. No submission was made to the contrary.

30. I am not, however, satisfied that each of the five proceedings is a vexatious proceeding. The fact that the proceedings are bound to be lost does not, of itself, mean that they were not based on reasonable grounds. I think the test requires something more so that, as stated by Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6], “the issues brought to the Court for determination are manifestly hopeless or devoid of merit”.

31. On my observation of the various proceedings, excluding the application to set aside the Bankruptcy Notice, the current application may well fall within Perram J’s description, but this has been a developing process.

32. Although the proceedings commenced before the Magistrate, and the appeal from them, were obviously lacking in merit, I do not think they could be described, for present purposes, as lacking reasonable grounds.

33. As far as the application to set aside the Bankruptcy Notice is concerned, Ms Barlow accepted that there was a direct correlation between her proceedings and defeating or delaying her bankruptcy. She stated that if she is ultimately successful in this Court, the errors and injustice which ultimately led to the costs order behind the bankruptcy application would be exposed and any cause for her bankruptcy would be extinguished.

34. Ms Barlow’s position is understandable to the extent that she feels that she has never been afforded justice and that, if she does one day succeed, all the ramifications of previous injustices will be undone. Her position of course ignores the fact that, even if she were to succeed in her current proceedings, the costs order giving rise to the bankruptcy application was in previous proceedings, which have well and truly been completed. Whatever result she might obtain from the current or any future proceedings would not affect the original costs order.

35. Thus, while I agree that Ms Barlow has taken steps to delay the bankruptcy proceedings, I would not regard those steps as disclosing an “ulterior purpose” but rather as another indication of her misguided quest to right what she sees as previous wrongs.

36. Accordingly, I do not think the application for a declaration that Ms Barlow is a vexatious litigant should succeed. I will add one further matter. Had I reached the stage of exercising my discretion, I would not have done so in favour of the Law Society.

37. Whatever may be said of the detail of the various proceedings brought by Ms Barlow, I was under the distinct impression that each proceeding reflected a genuine endeavour on her part to remedy what she sees as the incorrect decision of the Law Society not to grant her an unconditional practising certificate.

38. I would finally add that, notwithstanding what I have just said in the previous paragraph, if yet further proceedings were instituted against the Law Society seeking to agitate the same complaints arising from Exhibit A, then, for my part, and without more, I would regard any application under s 67A as likely to succeed.

Costs and orders

39. In respect of costs, each applicant has lost its application. In my view, it is appropriate that each party pay its own costs of the two applications before me.

40. I make the following orders:

(a) The application by Ms Barlow for an extension of time to file the application for leave to appeal is granted.

(b) The application by Ms Barlow for leave to appeal, filed on 28 November 2017, is dismissed.

(c) The application by the Law Society to declare Ms Barlow a vexatious litigant, filed on 21 December 2017, is dismissed.

(d) Each party is to pay its own costs of each application.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 18 May 2018