Supreme Court of the ACT|2013-04-12|Before: Marshall JJ, Refshauge J

Barlow v Law Society of the Australian Capital Territory [2013] ACTSC 68 (12 April 2013)

MICHAELA BARLOW V THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

LEGAL PRACTITIONERS - appeal from decision of the Council of the Law Society of the ACT - refusal to grant unrestricted practising certificate - no course prescribed under the Legal Practitioners Act 1970 (ACT) - whether applicant nevertheless entitled to unrestricted practising certificate - no such entitlement - appeal dismissed

LEGAL PRACTITIONERS - appeal from decision of the Council of the Law Society of the ACT - refusal to grant unrestricted practising certificate - nature of unrestricted practising certificate - applicant not eligible - appeal dismissed

Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983)

Legal Practitioners Act 1970 (ACT), ss 23, 25, 27, Table 27

Legal Practitioners (Amendment) Act 1993 (ACT), s 44

Legal Profession Act 2006 (ACT), ss 35, 41, 44, 46, 47, 48, 50, 51, 81, 324, Pt 3.3, Definitions

Legal Professional (Solicitors) Rules 2007 (ACT), r 36

Self-Government (Consequential Amendment) Ordinance 1990 (ACT)

Beesly v Hallwood Estates Ltd [1960] 2 All ER 314

Esmonds Motors Pty Ltd v Commonwealth [1970] HCA 15; (1970) 120 CLR 463

Gupta v Australian Capital Territory [2011] ACTSC 39

Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110

Little v Registrar of the High Court of Australia [1991] FCA 255; (1991) 29 FCR 544

THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

2. The parties file with the Associate to the Honourable Justice Refshauge and serve any written submissions they may wish to make as to costs within 14 days from today.

1. Ms Michaela Barlow, the appellant, obtained a Bachelor of Laws degree from the University of New England in 1999 (though part of her course appears to have been completed at the Northern Territory University, as it was then known) and a Graduate Diploma in Legal Practice (the Graduate Diploma) from the Australian National University in 2000. On 23 June 2000, she was admitted as a legal practitioner of this Court.

2. On 28 August 2011, she applied to the respondent, the Law Society of the Australian Capital Territory (the Law Society), for the issue to her of an unrestricted practising certificate. On 31 August 2011, the Law Society refused to issue such a certificate to her.

3. On 18 October 2011, in circumstances referred to below, she amended a Notice of Appeal that had been filed on 16 December 2010, so as to appeal from that decision of the Law Society.

4. That challenge was heard by a Full Court, as required by s 11(2) of the

Supreme Court Act 1933 (ACT). Having heard the appeal, we have come to the view that it should be dismissed for the reasons that follow.

5. Having gained her legal qualifications in 1999 and her admission on 23 June

2000, Ms Barlow was granted a restricted practising certificate. Her name was also placed on the Register of Practitioners maintained under s 55C of the Judiciary Act 1903 (Cth) as a result of her admission to practice in this Court and the holding of a current practising certificate (Little v Registrar of the High Court of Australia

[1991] FCA 255; (1991) 29 FCR 544 at 552). That entitled her to practise in federal courts, including the High Court.

6. Ms Barlow then gained employment for three months with a prominent firm which practised in the area of family law. Disappointed that her probation was not extended by the firm, she spoke to the Professional Standards Director of the Law Society, who assured her, as was the understanding at the time, that as she has completed the Graduate Diploma, she would be eligible to apply for an unrestricted practising certificate if she completed twelve months of employed practice.

7. She then obtained further employment with a private practitioner for five months, again practising in family law. After that she worked for four months as a legal officer for the Commonwealth Attorney-General's Department dealing with matters under the Hague Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983).

8. At about this time, the Law Society became aware that it had erred in the way it had applied the relevant legislation when granting unrestricted practising certificates as set out below (at [18]-[29]).

9. Ms Barlow then purported to establish a practice as a Barrister. She established Barlow Chambers and held herself out as available to work in the areas of Family Law, Immigration matters, Veteran's Affairs matters and Administrative Law. In a schedule provided to the Law Society, she showed that she had conducted matters involving "research", "advice", "conferences" and "correspondence" for twenty persons between 18 February 2002 and 19 November 2004. She declined a request from the Law Society to provide further details of the matters.

10. On 13 September 2004, she applied to the Law Society under the Legal Practitioners Act 1970 (ACT) (the 1970 Act) for the issuing to her of an unrestricted practising certificate. Although the letter in response from the Law Society of 16 November 2004 is a little unclear, initially suggesting that "until such time as you provide the additional information [sought] ... the Society is not prepared to approve your application", it appears that both Ms Barlow and the Law Society considered that her application was rejected by the Law Society. Ms Barlow did not, as she was entitled to do, appeal against that decision.

11. Ms Barlow then obtained employment in the Department of Immigration and Citizenship, where she was employed in various administrative capacities. It was not suggested that her employment in this capacity constituted employment in a legal practice or supervised legal work.

12. She formed the view that the Law Society had made a legal error in refusing her application for an unrestricted practising certificate in 2004 and, accordingly, applied again on 27 July 2010. By this time, the 1970 Act had been repealed and replaced by the Legal Profession Act 2006 (ACT) (the 2006 Act).

13. She said, rather curiously, that her application was not, however, based on her entitlement to be granted a certificate as at 2010, but that the error by the Law Society in 2004 had to be rectified and that this would entitle her to be granted such a certificate.

14. Perhaps unsurprisingly, the Law Society refused the application on the ground that she was not then qualified to be granted such a certificate. Ms Barlow appealed against that decision (the 2010 appeal).

15. During interlocutory consideration of the appeal, Refshauge J suggested that Ms Barlow's reliance on the 2004 decision, wrong or not, would not achieve her purpose as, even if that decision were reversed, the unrestricted practising certificate that would then be granted would have expired. That may not, in fact, be the correct position. His Honour, however, suggested she re-apply based on her current eligibility, if she considered she was so qualified.

16. Ms Barlow did re-apply but again her application was refused and she was informed of the decision by letter from the Law Society dated 2 September 2011.

17. Ms Barlow also wished to appeal against that decision (the 2011 appeal). On 4 October 2011, Refshauge J permitted Ms Barlow to amend her Notice of Appeal for the 2010 appeal to add to it her challenge against the 2011 decision, that is the 2011 appeal.

18. While the Law Society approached Ms Barlow's application in 2010 on an entirely orthodox basis, namely assessing her qualifications and experience at the time of her application against the relevant statutory criteria, Ms Barlow submitted that:

(a) in 2004, the Law Society erred in law when it wrongly applied the 1970 Act in refusing her application for a first unrestricted practising certificate; and

(b) in 2010, the Law Society erred in law in failing to use its discretion to correct its 2004 error.

19. In order to consider this submission, it is necessary to set out some history of the regulation of the profession in this Territory.

20. As noted above (at [1]), Ms Barlow completed her Graduate Diploma in 2000. At that time, admission to practice and the grant of practising certificates were regulated by the 1970 Act which, at s 25, provided for the grant of an unrestricted practising certificate.

21. The qualifications for the grant of an unrestricted practising certificate under

s 25 were set out in Table 27, which appeared as a table to s 27 of the Act.

22. Three items in that Table were relevant, Items 3, 4 and 5, which set out the qualifications as follows:

(a) has not previously held an unrestricted practising certificate; and

(b) during the period of 5 years immediately preceding the date of the application, has, for a period of not less than 2 years or for periods which, in the aggregate, are not less than 2 years -

(i) been employed in a State or Territory under articles of clerkship; or

(ii) been performing work of a legal nature as an employee of a solicitor in the Territory or in a State or another Territory; or

(iii) been performing work of a legal nature in public employment; or

(iv) practised in the ACT or in a State or another Territory as a solicitor, either on his or her own account or in partnership with another legal practitioner; or

(v) been employed or practised, as the case may be, in any 2 or more of the capacities referred to in subparagraphs (i), (ii), (iii) and (iv); and

(c) has attained such a level of professional skill and gained such experience that it is appropriate that an unrestricted practising certificate be issued to him or her.

4 A person who -

(a) has not previously held an unrestricted practising certificate; and

(b) during the period of 5 years immediately preceding the date of the application -

(i) has served or practised for a period of not less than

12 months, or for periods which, in the aggregate, are not less than 12 months, in any 1 or more of the capacities referred to in item 3, column 2, paragraph (b); and

(ii) has completed a prescribed course of training for the practice of law; and

(c) has attained such a level of professional skill and gained such experience that it is appropriate that an unrestricted practising certificate be issued to him or her.

5 A person who -

(a) has during the period of 5 years immediately preceding the date of the application -

(i) practised in the ACT or in a State or another Territory as a barrister for a period of not less than 2 years; or

(ii) practised in the ACT or in a State or another Territory as a barrister for a period of not less than 1 year and served or practised, as the case may be, in any 1 or more of the capacities referred to in item 3, column 2, paragraph (b) for a period of not less than 1 year or for periods which, in the aggregate, are not less than 1 year; or

(iii) after completing a prescribed course of training for the practice of law, practised in the ACT or in a State or another Territory as a barrister for a period of not less than 1 year; and

(b) has attained such a level of professional skill and gained such experience that it is appropriate that an unrestricted practising certificate be issued to him or her.

23. In essence, the requirement under Item 3 for what might generally be described as two years' legal work was reduced under Item 4 to one year if the prescribed training course for the practice of law had been completed. Item 5 related to applicants who were barristers; it still required two years of such employment or a total of two years legal work including work as a barrister, again reduced to one year if a prescribed training course had been completed.

24. Ms Barlow says that she believed that she could qualify under Item 4 because the Graduate Diploma she had been granted, she believed, was the prescribed course of training for the practice of law.

25. It appears that this was a widely held view, even within the Law Society itself. Ms Barlow referred to the conversation she had with the then Professional Standards Director of the Law Society who had provided her advice consistent with this understanding of Item 4(b)(ii). See [6] above. The Law Society subsequently acknowledged that this proved to be incorrect advice, though believed to be correct at the time.

26. The 1970 Act was, of course, originally an ordinance made under s 12 of the Seat of Government (Administration) Act 1910 (Cth). As made, that Ordinance provided, at s 133, for the Attorney-General (of the Commonwealth) to make regulations prescribing all matters that are required or permitted by the Ordinance to be prescribed. The Self-Government (Consequential Amendment) Ordinance

1990 (ACT) substituted "Executive" for "Attorney-General" in s 133. By s 44 of the Legal Practitioners (Amendment) Act 1993 (ACT), s 133 was renumbered as

27. Section 202 of the 1970 Act, was further amended so that by 26 July 2001 it provided that, "[t]he Executive may make regulations for [the 1970 Act]". This, by s 44 of the Legislation Act 2001 (ACT), included authorising a regulation "to be made in relation to any matter that ... is required or permitted to be prescribed by [the Act]". Thus, the responsibility of prescribing the course for the purposes of Item 4(b)(ii) (and, we note, Item 5(a)(iii) also) rested with either the Commonwealth Attorney-General or the ACT Executive established under the Australian Capital Territory (Self-Government) Act 1988 (Cth) and never with the Law Society.

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.

32. Ultimately, as noted above (at [10]), she made an application in 2004 for an unrestricted practising certificate, relying for her eligibility on 12 months employed practice as a solicitor, her completion of the Graduate Diploma and also referring to her work as a barrister for 19 months. The Law Society sought some clarification of her work as a barrister and she provided the information referred to above

33. Ultimately, the Law Society considered her application under Item 5 of Table 27 in the 1970 Act and refused the application.

34. Ms Barlow did not appeal against the refusal, but submits that the failure to apply the criteria in Item 4 to her application in 2004 and, therefore, grant it, was an error as she had met those criteria. She submitted that the Item was neither inoperative nor a nullity.

35. She made a number of suggestions about why that was so. In the first place, she made the extraordinary submission that the Law Society, by applying the law as it was, namely with no course being prescribed, had "negligently thwarted the drafter's intention". This submission is misconceived. The drafter's intention was clearly to permit the ACT Executive (and, before it, the Commonwealth Attorney-General) to decide if a course justified the reduction in legal employment from two years to one year. Neither the Commonwealth Attorney-General nor the ACT Executive had done that. Whatever the expectations or (flawed) understandings were, the law was crystal clear, there was no prescribed course and so no-one could meet the criterion required for the reduction of the length of employed practice to one year required as part of the eligibility for the grant of an unrestricted practising certificate.

36. Ms Barlow then made the equally unmeritorious submission that the Law Society had "the responsibility ... to effect such an amendment". Indeed, she later referred to the Law Society "quickly and easily drafting an amending regulation". This showed a lack of awareness of how statute law is made. The Law Society has no power or authority to amend legislation or to make regulations prescribing the course of training for the practice of law. Nor does it have any responsibility for that. It is the responsibility of the ACT Executive which alone from 2001 had the power to do so.

37. Ms Barlow seemed to base a number of submissions on the completely flawed assumption that the Law Society was responsible for the legislation.

38. Her understanding of the making and operation of statutes is limited. As another example, she submitted that, as Ordinances of this Territory were, prior to self-government, delegated legislation, regulations could not be made under them notwithstanding that such regulations have been regularly made since at least

1916: see, for example, the Careless Use of Fire Regulations 1916 (ACT) made under the Careless Use of Fire Ordinance 1916 (ACT). Indeed, s 133 of the original 1970 Act is an example of a regulation making power in an Ordinance. The validity of regulations made under Ordinances was upheld in Esmonds Motors Pty Ltd v Commonwealth [1970] HCA 15; (1970) 120 CLR 463.

39. She then submitted that there was no doubt as to what constituted the "prescribed course of training". Insofar as it was generally thought that this meant the course provided by the ANU Legal Workshop, so much is correct. Until 2002, this is what the Law Society assumed.

40. As Refshauge J said, however, in Gupta v Australian Capital Territory

[2011] ACTSC 39 at [1], "[w]hat 'everyone knows' is, on closer inspection, not always based in fact and the reality may be somewhat different to the common expectation."

41. This is what happened here. Many people, perhaps all those who gave the matter some thought, appear to have thought that the Graduate Diploma course had been prescribed as a course for the purpose of Item 4(b)(ii) (and, presumably, also for Item 5(a)(iii)), but in fact no prescription had actually ever been made by the ACT Executive.

42. Ms Barlow next submitted that a court may have construed the reference to a prescribed course as meaning the Graduate Diploma course of the ANU Legal Workshop. That contention is contrary to authority. In Downey v Prior

[1960] HCA 49; (1960) 103 CLR 353, the High Court held that if the prescription is the essence of the exercise of the statutory power, then the absence of such a prescription deprives the power of any capacity for its exercise. That is the position here. It is not the case that the Law Society was given power which it may exercise subject to any prescription; the prescription is the essence of the exercise of the power. The Court would, accordingly, not have construed the item as Ms Barlow contends.

43. Ms Barlow finally suggested that the Law Society was estopped from acting contrary to the representation made by the Professional Standards Director. Even were the conversation she had with the Director to have been something that would give rise to an estoppel, it being difficult to see what reliance to her detriment Ms Barlow had placed on it. In any event, the Law Society cannot be estopped from applying the law. An estoppel "cannot ... be invoked to ... negative the operation of a statute" as was said by Buckley J in Beesly v Hallwood Estates Ltd [1960] 2 All ER 314 at

44. As a result, Ms Barlow's claim that her application in 2010 should have been granted to redress error in the consideration of her application in 2004 cannot be sustained.

45. We have spent more time on Ms Barlow's claims in respect of what she says was the error in the Law Society's decision in 2004 than such unmeritorious claims would ordinarily warrant. A reviewing court is not bound to address every argument of a litigant before it.

46. In this case, however, there are two reasons for referring to Ms Barlow's submissions in the detail we have. In the first place, they have been long-standing and clearly not only entrenched themselves in Ms Barlow's mind but also infected the relationship between her and the Law Society. Insofar as it can be done, it is desirable that this should be resolved. The fact is, there can be no criticism of the Law Society in its decision in 2004 to reject Ms Barlow's application for an unrestricted practising certificate, save that the Law Society could perhaps had addressed a little more compassionately her clear and understandable disappointment.

47. The second reason is that the Law Society asked us to take into account, in assessing whether Ms Barlow has "attained such a level of professional skill and gained such experience that it is appropriate that an unrestricted practising certificate be issued to ... her", her conduct of these proceedings and the submissions and claims she has made are particularly relevant to this.

48. Ms Barlow's applications in 2010 and 2011 were made under the 2006 Act. That Act provides for the Council of the Law Society (called, in the legislation, the "licensing body") to grant practising certificates under s 44. When granting such a certificate, the licensing body may impose conditions under s 47 and the certificate is subject to statutory conditions set out in ss 48, 50 and 51.

49. Section 35 provides that the Regulation may prescribe criteria for the grant of a practising certificate and, in fact, such criteria have been prescribed.

50. Ms Barlow's application, it was agreed, relied on Item 5 in Table 10, attached to

s 10 in the Legal Profession Regulation 2007 (ACT), which sets out criteria for the grant of an unrestricted practising certificate. The Item provides:

(a) has previously held a practising certificate; and

(b) has attained such a level of professional skill, and gained such professional experience, that it is appropriate that an unrestricted practising certificate be issued to the person.

51. The Law Society rejected the application as failing to meet the criteria.

52. It is to be noted that this item makes no reference to any period of employed or other legal practice.

53. Having been unsuccessful in her application, Ms Barlow appealed to this Court under s 81 of the 2006 Act. In Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110 at [24], the Full Court of this Court held that such an appeal was to be conducted as a hearing de novo. Thus, Ms Barlow does not have to point to an error in the decision of the Law Society but must satisfy this Court that she is eligible under the legislation for the grant of an unrestricted practising certificate in accordance with the criteria set out in the preceding paragraph.

54. Ms Barlow had previously held a practising certificate, thus, she had only to show that she has attained the professional skill and has the professional experience "that is appropriate that an unrestricted practising certificate be issued".

55. It is, therefore, necessary to understand the nature of such a certificate and what it certifies.

56. The current legislation makes it quite difficult to understand what the significance of an unrestricted practising certificate is, so as to determine the way in which that qualification should be addressed.

57. Part 2.4 of the 2006 Act deals with legal practice by Australian legal practitioners. An Australian legal practitioner is an Australian lawyer who holds a local or an interstate practising certificate.

58. Section 44 authorises the Law Society Council to grant a local practising certificate, but not unless the applicant was eligible when the application is made and is a fit and proper person to hold the certificate. Under s 41, a person is not eligible if he or she holds another practising certificate. Under s 46, a local practising certificate is subject to any conditions imposed by the Law Society Council as well as any statutory conditions and s 47 empowers the Law Society Council to impose conditions. There seems no obvious restriction on the conditions that it may impose, including any of a non-exhaustive list of matters set out in s 47(8) (see also s 47(9)), nor on the way it should exercise what seems an unfettered discretion.

59. Section 35 of the 2006 Act provides for three types of practising certificates: restricted practising certificates, unrestricted practising certificates and barrister practising certificates. As noted, it also provides that a regulation may prescribe criteria for granting such certificates.

60. That section imposes a statutory condition on practising certificates, namely that a holder must not hold another practising certificate that is in force during the currency of the certificate granted to him or her: s 35(3) of the 2006 Act.

61. Further statutory conditions are imposed by ss 48, 50 and 51. Sections 48 and 51, not presently relevant, relate to compliance with conditions imposed on admission under a corresponding law and notification if a practising certificate holder is convicted of an offence or charged with a serious offence.

62. Section 50 is now a key section, providing a central qualification for practice. It provides as a statutory condition that "the holder [of a local practising certificate] must not engage in unsupervised legal practice as a solicitor, until he or she has completed the period of supervised practice prescribed by regulation." Section 13 of the Legal Profession Regulation prescribes that, where the person has completed practical legal training other than by articles of clerkship or other supervised practice that qualifies a person for admission, the prescribed period is two years of supervised legal practice.

63. Thus, a person who has completed practical legal training, such as the Graduate Diploma and two years of supervised legal practice may then practice unsupervised. This is not tied to any form of practising certificate.

64. The definition of the now key concept of "supervised legal practise" in the Dictionary is as follows:

supervised legal practice means legal practice by a person who is an Australian legal practitioner -

(a) as an employee of a law practice, if -

at least 1 partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate; and

the person engages in legal practice under the supervision of an Australian legal practitioner mentioned in subparagraph (i); or

(b) as a partner in a law firm, if -

at least 1 other partner is an Australian legal practitioner who holds an unrestricted practising certificate; and

the person engages in legal practice under the supervision of an Australian legal practitioner mentioned in subparagraph (i); or

(c) as a government lawyer, if the person engages in legal practice under the supervision of an Australian lawyer who holds, or otherwise meets the criteria for the grant or renewal of, an unrestricted practising certificate; or

(d) in a capacity approved under the legal profession rules. [There is no such capacity approved].

65. Section 52 provides that legal profession rules may impose conditions on local practising certificates or authorise conditions to be imposed on local practising certificates. The only relevant rule within the Legal Professional (Solicitors) Rules 2007 (ACT) is r 36.2, which provides:

A practitioner who is the holder of a current unrestricted practising certificate must ensure that he or she or another practitioner who is the holder of a current unrestricted practising certificate is at all times in charge of and attends regularly at each address at which the practitioner carries on practice.

66. As noted above (at [50]), the Legal Profession Regulation sets out the criteria for the grant of an unrestricted practising certificate in Table 10. That is the only express reference to the understanding of what an unrestricted practising certificate is and entitles the holder to do. Interestingly, it does not set out any criteria for the grant of a restricted practising certificate. This contrasts with the 1970 Act which provided in s 23 that only a person whose name was on the roll of practitioners kept by the Registrar of the Supreme Court could apply for a restricted practising certificate.

67. Section 22 of the 1970 Act expressly restrained a practitioner from practising on his or her own account or in partnership unless holding an unrestricted practising certificate. There is no such provision in the 2006 Act.

68. The relationship between the holding of an unrestricted practising certificate and practising on the practitioner's own account is, under the 2006 Act and the Legal Profession Regulation, more complex.

69. Mr N Beaumont, counsel for the Law Society, made detailed submissions to show how the terms of the 2006 Act, although not expressly, nevertheless require that a person who practices as a principal in a law practice must hold an unrestricted practising certificate, with one exception, namely a partner in such a practice who is supervised by a partner who holds one (Definition of "supervised legal practice": paragraph (b) set out above at [64]).

70. Thus, for example, s 9 of the 2006 Act defines the term "principal" of a law practice. With the exception of supervised partners, (as to which, see paragraph (b) in the definition of "supervised legal practice" set out at [64] above), all the persons referred to in the definition must, under other provisions of the 2006 Act, hold unrestricted practising certificates, save one, the sole practitioner. Mr Beaumont submitted, and we agree, it would be incongruous if a sole practitioner were in a different position to the other "principals" there set out. Similar implications can be drawn from the provisions relating to professional indemnity insurance under Pt 3.3 and to levies to the Fidelity Fund under s 324(2) of the 2006 Act. Similarly, it would be incongruous were a sole practitioner, who could practice unsupervised, not be required to hold an unrestricted practising certificate when at least one partner of a partnership, each legal practitioner director of an incorporated legal practice and each legal practitioner partner of a multidisciplinary partnership were required to hold an unrestricted practising certificate.

71. It must also follow from the definition of "supervised legal practice", set out earlier (at [64]), that a person who holds an unrestricted practising certificate must be qualified to engage in unsupervised legal practice. If that were not so, the definition would have the absurd result that the partner with an unrestricted practising certificate but who is not eligible to engage in unsupervised legal practice under s 50 of the

2006 Act, could possibly be supervising other legal practitioners. This absurdity requires that the holder of an unrestricted practising certificate be entitled to engage in unsupervised legal practice.

72. It is not at all clear to us why the legislation could not have made express what we have managed to ascertain by implication, but we are satisfied that a legal practitioner may not practice as a principal of a law practice without holding an unrestricted practising certificate, save for a partner supervised by a partner who holds one.

73. Thus, the holder of an unrestricted practising certificate must be a person who is suitable to conduct a law practice as a principal and, other than as a supervised partner, to be qualified to engage in unsupervised legal practice.

74. Applying the provisions of the 2006 Act as we have discussed above, Ms Barlow, in order to qualify for the grant of an unrestricted practising certificate, must show this Court, exercising as it does the jurisdiction of the Council of the Law Society:

(a) s 50 of the 2006 Act and s 13 of the Legal Profession Regulation: that she will either be in a partnership where she will be supervised by a partner who holds an unrestricted practising certificate or that she has completed two years of supervised legal practice; and

(b) s 35 of the 2006 Act and Item 5 of Table 10 of the Legal Profession Regulation: that she has attained a level of professional skill, and gained such professional experience, that it is appropriate that an unrestricted practising certificate be issued to her.

75. It is clear that Ms Barlow has only completed twelve (or possibly thirteen) months of supervised legal practice. She is, therefore, unqualified to engage in unsupervised legal practice. That must bar her from the grant of an unrestricted practising certificate unless she is in partnership supervised by a partner with an unrestricted practising certificate.

76. As to the provisions of Item 5 of Table 10 of the Legal Profession Regulation, we consider the following matters to be critical:

• Ms Barlow had just over one year only of post admission supervised practice in periods between January 2002 and January 2004;

• There is no evidence about the nature or quality of the work she performed from those who supervised her;

• Ms Barlow relied on her experience as a barrister between October 2002 and September 2003 but gives no detail about any work performed by her in that period to enable a fair evaluation of the standard of the work done;

• The low level of her legal work as displayed in the submissions she made to this Court.

77. We are unable, on the material before us, to grant Ms Barlow an unrestricted practising certificate as we are not satisfied that she fulfils the requirements of

Item 5 in Table 10 of the Legal Profession Regulation.

79. The parties will be invited to make submissions as to costs. Our present inclination is that each party should bear their own costs of the earlier hearing before Refshauge J, which was aborted when it was clear the appeal could only be heard by the Full Court, as both should have been aware of the jurisdictional issue which prevented his Honour from hearing the matter. Otherwise, subject to any submissions by the parties, it seems to us that the usual rule as to costs should apply. Any submissions that the parties wish to make will be required to be in writing and filed and served. In the absence of any such submissions within that time, the foreshadowed costs orders will be made.

I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Careless Use of Fire Ordinance 1916(ACT)

Careless Use of Fire Regulations 1916(ACT)

Legal Professional (Solicitors) Rules 2007(ACT)

Legal Practitioners Act 1970(ACT)

Self-Government (Consequential Amendment) Ordinance 1990(ACT)

Legal Practitioners (Amendment) Act 1993(ACT)

Practitioners Act 1970

Government (Administration) Act 1910

Capital Territory (Self-Government) Act 1988

Practitioners (Amendment) Act 1993

Profession Regulation 2007

(Consequential Amendment) Ordinance 1990

Legal Professional (Solicitors) Rules 2007(ACT)

Self-Government (Consequential Amendment) Ordinance 1990(ACT)

Profession Regulation 2007

(Consequential Amendment) Ordinance 1990

Careless Use of Fire Regulations 1916(ACT)

Legal Practitioners Act 1970(ACT)

Legal Practitioners (Amendment) Act 1993(ACT)

Practitioners Act 1970

Capital Territory (Self-Government) Act 1988

Practitioners (Amendment) Act 1993

Careless Use of Fire Ordinance 1916(ACT)

Government (Administration) Act 1910

Barlow v Law Society of the Australian Capital Territory [2013] ACTSC 68

At a glance

Court

Decision date

Before

Source

Judgment (127 paragraphs)

Barlow v Law Society of the Australian Capital Territory [2013] ACTSC 68 (12 April 2013)

Parties

Legislation Cited (28)

Cases Cited (3)