Legal Profession Act 2007 (Tas), s59(3).

Judgment Number: [2014] TASSC 44

1. This is an appeal pursuant to s84(1)(a) of the Legal Profession Act 2007 ("the Act"). The appellant, Erol Cinar, was admitted to the legal profession in Victoria in November 2011 and in Tasmania in October 2013. He wishes to practise as a barrister in Tasmania. He has not previously practised as a lawyer of any sort. He made arrangements to undertake a period of pupillage with two experienced barristers as his pupil masters, rented a room in some barristers' chambers, and made an application to the Law Society of Tasmania, the respondent, for a practising certificate. The Society refused that application. It contends that the law in Tasmania presently permits the granting of a practising certificate to an inexperienced lawyer only if that lawyer's right to practise is confined to practice as an employee of a law practice or a partner in a law firm. It refused the appellant's application on the basis that he only wanted to practise as a barrister, and that the grant of a practising certificate that was subject to such a restriction would have been futile. This is an appeal from that refusal.
2. Section 48(1) of the Act permits an Australian lawyer to apply to "the prescribed authority" for the grant of a local practising certificate if eligible to do so. The appellant was eligible to do so. The Society is "the prescribed authority": Legal Profession (Prescribed Authorities) Regulations 2008, reg4.
3. Section 53(1)(a) of the Act requires the prescribed authority to consider an application for the grant of a local practising certificate, and permits it to grant or refuse to grant the certificate. Section 84(1)(a) permits a person whose interests are affected by a decision of the prescribed authority to appeal to this Court against a decision to refuse to grant a local practising certificate under s53. The parties are agreed that such an appeal is an appeal by way of hearing de novo. I think that is clear from the statutory context. The Society is not obliged to hold a hearing or give reasons for its decision. The Court is empowered by s84(2) to make any order that it considers appropriate on the appeal. There is no restriction on the grounds of appeal, nor is there any requirement to identify grounds of appeal. Counsel for the parties referred me to a number of decisions that support the conclusion that the appeal is one by way of hearing de novo: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616; Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669; Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110; Barakat v Law Society (NSW) [2014] NSWSC 773.
4. The Society refused the appellant's application for a practising certificate because it took the view that, if it granted him a local practising certificate, s59(1) of the Act would require the certificate to contain a condition that would preclude him from practising as a barrister. In order to evaluate that reasoning, one needs to consider the whole of s59. It reads as follows:

"(1) It is a statutory condition of a local practising certificate that the holder must engage in supervised legal practice only, until the holder has completed -

(a) if the holder completed practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in this or another jurisdiction, a period or periods equivalent to 18 months' supervised legal practice, worked out under relevant regulations, after the day the holder's first local practising certificate was granted; or

(b) if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction, a period or periods equivalent to 2 years' supervised legal practice, worked out under the relevant regulations, after the day the holder's first local practising certificate was granted.

(2) Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice after a period or periods referred to in that subsection.

(3) The prescribed authority may exempt a person or class of persons from the requirement for supervised legal practice under subsection (1) or may reduce a period referred to in that subsection for a person or class of persons, if satisfied that the person or class of persons do not need to be supervised or need to be supervised only for a shorter period, having regard to -

(a) the length and nature of any legal practice previously engaged in by the person or class of persons; and

(b) the length and nature of any legal practice engaged in by the supervisors (if any) who previously supervised the legal practice engaged in by the person or class of persons.

(4) An exemption under subsection (3) may be given unconditionally or subject to such conditions as the prescribed authority thinks appropriate.

(5) The prescribed authority may exempt a person from the requirement for supervised legal practice under subsection (1) if the person has satisfied any requirements relating to training or qualifications prescribed by the regulations as a precondition to becoming a barrister."

1. As the appellant has never engaged in any sort of legal practice, it can be seen that, unless the Society decided to grant an exemption pursuant to s59(3) or s59(5), any practising certificate would have to contain a condition under s59(1) requiring the appellant to "engage in supervised legal practice only" for a period of time. In the appellant's case, the requisite period would have to be two years, pursuant to s59(1)(b).
2. Section 4(1) of the Act contains the following definition:

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

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

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

(i) at least one other partner is an Australian legal practitioner who holds an unrestricted practising certificate; and

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

(c) in a capacity approved under a legal profession rule."

1. No rules have been made for the purposes of par(c) of that definition. Practising as a barrister, no matter how well supervised, therefore does not amount to "supervised legal practice" for the purposes of the Act. The definition only covers practice by an employee of a law practice or a partner in a law firm. Barristers practise as sole practitioners, not as employees or partners.
2. It is impossible for the appellant to obtain an exemption under s59(5). That is because no regulations have been made for the purposes of that subsection. Even if such regulations had been made, they could not be of any assistance to a person in the appellant's situation. Any such regulations could relate only to "training or qualifications prescribed ... as a precondition to becoming a barrister". Such regulations could not prescribe supervision requirements for an inexperienced barrister.
3. That leaves s59(3). Counsel for the appellant submitted that the list of relevant considerations in that subsection was not intended to be exhaustive. Since the Act does not state whether the listed considerations are the only ones to be taken into account, the determination of that question involves construction of the provisions of the Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 per Mason J (as he then was) at 39.
4. But one only gets to that question if there is some basis for concluding that the person in question does not need to be supervised for the applicable period referred to in s59(1) or some shorter period. That is because s59(3) permits an exemption to be made only if the prescribed authority "is satisfied that the person or class of persons do not need to be supervised or need to be supervised only for a shorter period".
5. A practising certificate would be of use to the appellant only if he were exempted completely from the "supervised legal practice" requirement of s59(1). Such an exemption would be appropriate only if the decision-maker was satisfied that he did not need to be supervised at all.
6. The appellant is 34 years old. He holds the degrees of Bachelor of Laws and Master of Laws from Monash University. He is undertaking a second Master's degree course there. He is of good character. He completed a practical legal training course at the College of Law in 2011. He did about 200 hours' voluntary work at the Springvale Monash Legal Service between January 2010 and mid-2013. His work was highly regarded by the solicitor who supervised it there. He undertook a five week placement with a Victorian law firm in 2011 and impressed the partners in that firm. However he has no experience as a practising lawyer. I am therefore not satisfied that he does not need to be supervised in the early stage of his practice of the law.
7. The Society has a "Barristers' Pupillage Policy". It provides for barristers to complete a period of pupillage, lasting for 12 months unless the Council of the Society otherwise determines, under the supervision of senior and junior pupil masters, and for the supervision of the pupillage by the Society.
8. I am satisfied that the appellant is a fit and proper person to commence practice as a barrister in accordance with the Society's pupillage policy. However the supervision provided to a junior barrister in accordance with the pupillage policy has nothing to do with the Act's definition of "supervised legal practice", which applies only to employed legal practitioners and partners in firms.
9. The result of all this is most unfortunate. Although the appellant is a suitable person to commence practice as a barrister, subject to supervision under the pupillage policy, and although two experienced barristers are willing to undertake that supervision as his pupil masters, I must have regard to s59(1) and (3). I am not satisfied that the appellant does not need to be supervised. I therefore have no power to exempt him from the "supervised legal practice" requirements of s59(1). I could grant him a practising certificate that, in accordance with s59(1), limits his right of practice to "supervised legal practice only". But he does not want that. That would allow him to practise only as an employee or as a partner in a firm. The issue of a practising certificate to him would be futile if it contained such a condition.
10. I have therefore decided, with considerable regret, that the only appropriate order is one dismissing the appeal. It seems to me that it would be desirable for the Tasmanian Bar, if it is not already doing so, to consider making a rule for the purposes of par(c) of the definition of "supervised legal practice" in the exercise of the power conferred on it by s221A(1) of the Act.