[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
THE COURT: These proceedings arise out of an application made by Mr James Bowers (the Solicitor) to the Law Society of New South Wales (the Law Society) for variation of the conditions of his practising certificate. The Solicitor contends that the Law Society constructively refused that application, thereby enlivening the right to appeal to the Supreme Court, the designated authority to determine an appeal under s 100(1) of the Legal Profession Uniform Law (NSW) (the Uniform Law). [1] The Solicitor brought appeal proceedings in the Supreme Court against the Law Society and the College of Law (the College).
On 19 March 2021 [2] , 22 April 2021, 26 April 2021 [3] , 30 April 2021 [4] , 3 May 2021 [5] , 7 May 2021 [6] and 31 May 2021 [7] , a judge of the Common Law Division (the primary judge) made various orders in those proceedings. The Solicitor now seeks leave to appeal from all of the orders. Most of the orders were interlocutory and the final orders did not involve a matter at issue amounting to or of the value of $100,000 or more. Accordingly, leave to appeal is required. [8]
The relevant background can be stated briefly. On 10 November 2020, the Solicitor applied to the Law Society to vary his practising certificate for the year ended 30 June 2021 so as to remove a condition requiring him to practice as an employee. On the following day, the Law Society requested a medical report concerning the Solicitor's ability to carry on practice as a principal. On 24 December 2020, before the Law Society had determined the application, the Solicitor commenced the appeal proceedings in the Supreme Court.
The proceedings were assigned to the primary judge for case management. On 19 March 2021, her Honour ordered that a specific question be determined separately in advance of the balance of the proceedings and listed the matter for hearing of the separate question on 22 April 2021. The question was whether the Council of the Law Society was taken to have refused the Solicitor's application for a variation of his practising certificate, by reason of not having determined the application within 90 days. The separate question involved the proper construction of s 100 and s 464 of the Uniform Law.
Under s 100(1), an applicant for or the holder of a practising certificate may appeal to the Supreme Court against, or seek a review by that Court of a decision to vary, suspend or cancel the practising certificate. Under s 464(3), for the purposes of the provisions of the Uniform Law relating to a right of appeal or review about a decision, a failure of the decision-maker to make a decision on a person's application within a period specified in the Uniform Rules for the purposes of the section is taken to be a decision (the constructive decision) to refuse the application. Under Rule 111, for the purposes of section 464 of the Uniform Law, the specified period is 90 days.
The Solicitor contended that, under those provisions, he had a statutory right of appeal or right of review in respect of his application for variation of the conditions of his practising certificate by reason of the fact that the Law Society had not made a decision on his application within 90 days. On 26 April 2021, the primary judge determined that the Solicitor had no such right and ordered that the separate question be answered "no".
On 3 May 2021, the primary judge ordered that the Solicitor's claim against the College be dismissed summarily and that the College be removed from the proceedings as a party. Her Honour ordered the Solicitor to pay the College's costs.
On 7 May 2021, a hearing was appointed for 25 May 2021 for the hearing of the balance of the Solicitor's claims for relief. On 31 May 2021, after the hearing on 25 May 2021, her Honour dismissed the Solicitor's amended summons of 6 April 2021 and ordered the Solicitor to pay the defendants' costs, save for cost of the determination of the separate question, in respect of which no order as to costs was made.
In his further amended draft notice of appeal filed in support of his further amended summons seeking leave to appeal on 22 June 2021, the Solicitor seeks to appeal from all of the decisions made by the primary judge. The grounds are formulated as follows:
1. unwarranted adjournment of the trial specially fixed for hearing on 11 March 2021 and ordering of a separate question;
2. wrong answer to the separate question on 26 April 2021;
3. wrong dismissal of a notice of motion that the Law Society comply with a subpoena issued at the behest of the Solicitor;
4. wrong decision removing the College as a party to the proceedings;
5. wrong decision in adding the Council of the Law Society as a party on 26 April 2021; and
6. wrong decision on 31 May 2021 imposing conditions on the Solicitor's practising certificate.
By his draft notice of appeal, the Solicitor seeks an order that the appeal be allowed and an order setting aside all of the orders made by the primary judge. The Solicitor also seeks an order that the responses of the Law Society and the College in the proceedings be struck out for failure to make proper and timely answers to notices to produce. Finally, he seeks an order remitting the proceedings for an expedited trial without any evidence or written submissions from the Law Society or the College.
Leave to appeal is ordinarily reserved for cases involving issues of principle, questions of public importance, or circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable. [9] Although the question whether the right of appeal conferred by s 100(1) of the Uniform Law on the holder of a practising certificate to appeal against, or seek a review of, a decision to vary, suspend or cancel the practising certificate extends to a decision to refuse to vary a certificate is not unarguable, the applicant has not demonstrated error going beyond what is merely arguable resulting in injustice.
Moreover, by the time of the hearing of the proceedings by this Court on 29 July 2021, the Solicitor's practising certificate in question had expired by effluxion of time, namely, the period for which his certificate was originally issued. Thus, the practising certificate, the terms of which he seeks to vary, no longer has any operative effect. The Solicitor has indicated in his submissions that he does not intend to apply to renew his practising certificate for any period commencing after 30 June 2021. It follows that any order that would have the effect of overturning the decision of the primary judge that the Solicitor does not have a right of appeal under the Uniform Law from a constructive decision not to vary his practising certificate would be of no utility.
Further, there would be no utility in considering whether the Court has an inherent jurisdiction to order that such a variation be made. Having failed to renew his practising certificate, the Solicitor is presently unable to practise as a solicitor either as an employee or as a principal. If he wished to practise again in the future, it would be necessary for him to apply for a new practising certificate, the terms which would then be a matter for the Council of the Law Society. Any question as to that matter could be the subject of fresh proceedings.
In the circumstances, leave to appeal should be refused. The Solicitor should pay the costs of the other parties to the appeal.
[3]
Endnotes
Legal Profession Uniform Law Application Act 2014 (NSW), s 11(3), Table 2.
See PQ (a pseudonym) v The Law Society of New South Wales [2021] NSWSC 258.
See PQ (a pseudonym) v The Law Society of New South Wales (No 3) [2021] NSWSC 420.
See PQ (a pseudonym) v The Law Society of New South Wales (No 4) [2021] NSWSC 459.
See PQ (a pseudonym) v The Law Society of New South Wales (No 5) [2021] NSWSC 463.
See PQ (a pseudonym) v The Law Society of New South Wales (No 6) 496 [2021] NSWSC 496.
See Bowers v The Law Society of New South Wales (No 7) [2021] NSWSC 611.
See Council of the Law Society of New South Wales v Montenegro [2016] NSWCA 211 at [1].
Be Financial Pty Limited as Trustee for Be Financial Operations Trust v DAS [2012] NSWCA 164 at [32]-[38]; The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13].
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Decision last updated: 05 November 2021