Deluux Pty Ltd v Mini-Tankers Pty Ltd [2007] NSWIRComm 101 | Case summary

Deluux Pty Ltd v Mini-Tankers Pty Ltd [2007] NSWIRComm 101 | Case summary | Zoe

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(1) The following functions of the Commission are to be exercised only by the Commission in Court Session: (a) proceedings for an offence taken before the Commission (including proceedings for contempt), (b) proceedings for declarations of right under section 154, (c) proceedings under Part 9 of Chapter 2 (Unfair contracts), (d) proceedings under section 139 (Contravention of dispute order), (e) proceedings under Parts 3, 4 and 5 of Chapter 5 (Registration and regulation of industrial organisations), other than Division 3 of Part 4 (Election of officers), (f) proceedings under Part 1 of Chapter 7 (Breach of industrial instruments), (g) proceedings for the recovery of money under Part 2 of Chapter 7 (other than small claims under section 380), (h) proceedings on a superannuation appeal under section 40 or 88 of the Superannuation Administration Act 1996 , (i) proceedings on an appeal from a member of the Commission exercising the functions of the Commission in Court Session, (j) proceedings on an appeal or case stated from an Industrial Magistrate or any other court, (k) any other proceedings that are, by this Act or any other Act, required to be taken before the Commission in Court Session. (2) The functions referred to in subs (1) (i) and (j) and functions relating to proceedings for the cancellation of the registration of industrial organisations, may be exercised only by a Full Bench of the Commission in Court Session. (3) Subject to subs (4), the functions of the Commission relating to proceedings for contempt of the Commission may be exercised only by a Full Bench of the Commission in Court Session. (4) The functions of the Commission relating to the commencement of proceedings for contempt of the Commission may also be exercised by a judicial member. 11 In describing the work of this Court, it is also necessary to refer to three additional matters. The first is that s 154 of the Act confers a power to grant declaratory relief. The second is that by reason of the Occupational Health and Safety Act 2000, this Court is empowered to hear and determine prosecutions brought under that Act. A breach of the Occupational Health and Safety Act constitutes a criminal offence. The Court is empowered to impose fines exceeding $800,000 in certain circumstances and in limited circumstances to impose a penalty of imprisonment. Thirdly, the Act provides for an appeal process from decisions of single judicial members to a Full Bench of the Court. 12 For completeness, in describing the Court and its work, I note the supervisory jurisdiction exercised by both the New South Court of Appeal and the High Court of Australia. (See, for example, the discussion in the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ in the High Court of Australia in Fish v Solution 6 Holdings [2006] 225 CLR 180 commencing at 187.) 13 In considering the provisions of the Act and the rules that apply to this Court, considerable difficulty is created by the fact that both the Act and the rules by which the Court is governed, namely the Industrial Relations Commission Rules 1996 ("the Rules") refer in general terms to "the Commission" without necessarily differentiating in all cases between the Commission in its role as industrial tribunal and the Commission when constituted as the Industrial Court of New South Wales. 14 However, there are a number of references in certain provisions of the Act that differentiate between the Commission when exercising its functions and power as an industrial tribunal and the Industrial Court of New South Wales. Examples are found in ss 162(2)(i), 163(2), 164(2), 164A(2) and (3), the provisions of which are set out: 162 Procedure generally

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(1) A party to proceedings before the Commission may appear personally or be represented by an Australian legal practitioner or by an agent who is not such a practitioner. (2) However, a party is not entitled to be represented in conciliation proceedings by a person who is an Australian legal practitioner or an agent who is an industrial agent without the leave of the Commission. (3) The leave of the Commission is not required if the Australian legal practitioner represents an industrial organisation (or any of its members) and is an officer or employee of the organisation. (4) The leave of the Commission is also not required if the Australian legal practitioner represents a State peak council and is an officer or employee of the State peak council. (5) The Commission may allow any party appearing before it the services of an interpreter. 17 A superficial reading of s 166, without more, does not, in my opinion, indicate that any part of the provisions of the section is intended to be applied in any differential sense to either or both of the Commission as a tribunal and the Court. Even s 166(2) could not be said to be intended to apply to the Commission to the exclusion of the Court because s 109 of the Act provides a mandatory conciliation process to be applied to s 106 proceedings, utilising either a member of the Court or a non-judicial member of the Commission as a tribunal. 18 If it is possible to characterise the mandatory conciliation process created by s 109, which is to be applied to all proceedings brought under s 106, as "conciliation proceedings" as referred to in s 166(2), this would bring about the curious result that a party would not be entitled to be represented without leave by an Australian legal practitioner or by an industrial agent in proceedings that can only be determined by the Court and in which one would normally expect a party to be represented by a legal practitioner. 19 On this basis, it may be thought that s 166(2) is intended to be confined to conciliation proceedings other than those before the Court under s 109 of the Act. 20 It is also necessary to consider the reference to "industrial agent" as contained within s 166(2) because, in my opinion, this confirms the approach to construction of s 166(2) that I prefer. 21 A reference to industrial agents was incorporated into the Act pursuant to the Industrial Relations Amendment (Industrial Agents) Act 2002. That amending Act inter alia inserted new definitions into the Act of "industrial agent" and "industrial agent service." 22 Industrial agent is defined to mean "a person (other than a legal practitioner or an employee or officer of an industrial organisation) who represents a party in proceedings before the Commission for fee or other reward." 23 Industrial agent service is defined to mean "any service performed by a person in the person's capacity as an industrial agent." 24 That amending Act inserted a new s 90A into the Act, the purpose and effect of which was to ensure that an industrial agent would not represent an applicant or employer in certain proceedings unless there were "reasonable prospects of success". It may be taken as non-controversial that the proceedings were confined to those brought under that Part of the Act which deals with unfair dismissals and compensation orders sought in connection with a finding of an unfair dismissal. The jurisdiction and power to deal with unfair dismissals is exercised by the Commission as an industrial tribunal and is not within the jurisdiction or power of the Court. 25 That the regulation of industrial agents is to be confined to unfair dismissal proceedings is made clear in the second reading speech of the Honourable Mr P Whelan, which is to found at page 6891 of the extract of the proceedings of the New South Wales Legislative Assembly Hansard for Friday 15 November 2002. 26 Accordingly, the reference to industrial agents in s 166(2) is confined to unfair dismissal proceedings before the industrial tribunal and cannot apply to proceedings before the Court. 27 In addition to s 90A, the amending Act made consequential variations to the Act covering, inter alia, the awarding of costs against an industrial agent in certain circumstances, the obligation of an industrial agent to disclose both to the client and the Commission the basis of any costs to be charged and certain requirements of any costs agreement. 28 A number of the Rules refer either explicitly or by implication to representation of parties by an agent in proceedings before the Commission without necessarily specifying whether this is a reference to the Commission as an industrial tribunal or includes, either discretely or overall, a reference to the Court. 29 Rule 75 of the Industrial Relations Commission Rules 1996 ("the Rules") is complementary to s 166. It is in the following terms: 75 Appearance by solicitor, agent or in person

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(1) Where costs are incurred improperly or without reasonable cause, or are wasted by undue delay or by any other misconduct or default, and it appears to the Commission that a barrister, solicitor or agent is responsible, the Commission may, after giving the barrister, solicitor or agent a reasonable opportunity to be heard: (a) disallow the costs as between the solicitor or agent and the solicitor's or the agent's client, (b) disallow the costs as between the barrister and that barrister's instructing solicitor or as between the barrister and the client, (c) direct the barrister, solicitor or agent to repay to the client costs which the client has been ordered to pay to any other party, (d) direct the barrister, solicitor or agent to indemnify any party other than the client against costs payable by the party indemnified. (2) Without limiting the generality of subrule (1), a barrister, solicitor or agent is responsible for default for the purposes of that subrule where any proceedings cannot conveniently proceed, or fail or are adjourned without useful progress being made, because of the failure of the barrister, solicitor or agent: (a) to attend in person or by a proper representative, (b) to file any document which ought to have been filed, (c) to deliver any document which ought to have been delivered for the use of the Commission, (d) to be prepared with any proper evidence or account, or (e) otherwise to proceed. (3) The Commission may, before making an order under subrule (1), refer the matter to the Registrar for enquiry and report. (4) The Commission may order that notice of any proceedings or order under this Rule must be given to the client in such manner as may be specified in the order under this subrule. (5) The term solicitor in this Rule includes the solicitor's agent. 34 It is clear from Rule 209 that there is contemplated the ability of an agent to render costs to a principal. It is not unusual to find provisions such as Rule 209 being incorporated within the rules that apply in courts generally, but confined to legal practitioners. Indeed, they are reproduced in the Uniform Civil Procedure Rules (42.3). I am unable to conclude that Rule 209, in that it contemplates that an agent may charge costs to a principal in proceedings brought before the Commission, is intended to be confined to the Commission when exercising the functions and powers of a tribunal only. Indeed, because of the subject matter of Rule 209, it is more likely, in my opinion, that that rule is directed to proceedings before the Court than proceedings before the Commission sitting as an industrial tribunal. 35 However, it is necessary to qualify the conclusion to which I have come by reference to the provisions of the Rules by observing that the Rules cannot expand upon or be inconsistent with anything which is contained within the Act, they having been created in effect by delegation. The power to make Rules, which is vested in a rule committee (by s 186), is to be found in s 185 of the Act, which is in the following terms: 185 Rules of Commission

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(1) Rules of the Commission may be made for or with respect to any matter that by this or any other Act is required or permitted to be prescribed by rules of the Commission or that is necessary or convenient to be prescribed in relation to the practice and procedure of the Commission under this or any other Act. (2) Without affecting the generality of subs (1), rules of the Commission may be made for or with respect to: (a) the initiation of proceedings in the Commission, or (b) the practice and procedure to be followed in, or for the purposes of, proceedings before the Commission, or (c) the means for, and the practice and procedure to be followed in, the enforcement and execution of decisions of the Commission, or (d) the functions of the Industrial Registrar or other officers under this Act, including functions in relation to proceedings instituted before the Commission, or (e) any matter that may be the subject of rules under the Supreme Court Act 1970 or the Civil Procedure Act 2005 . (3) This section extends to the making of rules relating to the practice and procedure of (and other matters relating to) an Industrial Committee. 36 I conclude, therefore, that the provisions of s 166 should be construed without reference to the Rules. Because s 166(2) should not be construed as applying to the mandatory conciliation proceedings required in s 106 claims, it is appropriate to approach the construction of s 166 overall in the same manner. Clearly, s 166(3) and (4) refer back to the leave that is provided for in subs (2). I have already referred to the definition of industrial agent and the fact that the definition is confined to unfair dismissal proceedings brought before the Commission as an industrial tribunal. As it would be extraordinary to construe subs (2) as requiring leave to be given to an Australian legal practitioner to represent a party in proceedings before the Court, subs (2) should, in my opinion, be construed as applying to conciliation proceedings other than those to be determined by the Court and to those proceedings in which an industrial agent appears, being unfair dismissal proceedings brought before the industrial tribunal. Once this differential approach to construction is seen to be permissible in terms of subs (2), it follows that the same approach may be taken to the provisions of subs (1). That is, consistent with the remaining subsections, subs (1) should be seen to apply generally to proceedings before the industrial tribunal, but is not necessarily indicative that a party to proceedings before the Court may be represented by an agent who is not an Australian legal practitioner. Indeed, as will be seen, there are powerful policy reasons why s 166(1) should be construed in this way. I now proceed to consider these matters.

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(1) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. Maximum penalty: 200 penalty units. (2) Subsection (1) does not apply to engaging in legal practice of the following kinds: (a) legal practice engaged in under the authority of a law of this jurisdiction or of the Commonwealth, (b) legal practice engaged in by an incorporated legal practice in accordance with Part 2.6 (Incorporated legal practices and multi-disciplinary partnerships), (c) the practice of foreign law by an Australian-registered foreign lawyer in accordance with Part 2.7 (Legal practice by foreign lawyers), (d) legal practice engaged in by a complying community legal centre, (e) conveyancing work carried out in accordance with a licence in force under the Conveyancers Licensing Act 2003 , (f) work performed by a land agent in respect of instruments he or she is entitled to draw, fill up or prepare, and to charge for, under the Land Agents Act 1927 , (g) the drawing of instruments by an officer or employee in the service of the Crown (including the Public Service) in the course of his or her duty, (h) legal practice of a kind prescribed by the regulations. (3) Subsection (1) does not apply to: (a) a person who as an employee provides legal services to his or her employer or a related entity if he or she: (i) so acts in the ordinary course of his or her employment, and (ii) receives no fee, gain or reward for so acting other than his or her ordinary remuneration as an employee, or (b) a person or class of persons declared by the regulations to be exempt from the operation of subsection (1). (4) A person is not entitled to recover any amount in respect of anything the person did in contravention of subsection (1) and must repay any amount so received to the person from whom it was received. (5) A person may recover from another person, as a debt due to the person, any amount the person paid to the other person in respect of anything the other person did in contravention of subsection (1). (6) The regulations may make provision for or with respect to the application (with or without specified modifications) of provisions of this Act to persons engaged in legal practice of a kind referred to in subsection (2) (other than subsection (2) (b)-(f)) or persons referred to in subsection (3). 39 Before discussing the provisions of s 14, it is also necessary to have regard to the purpose of the provisions as referred to in s 13 which is in the following terms: 13 Purposes The purposes of this Part are as follows:

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(a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so, (b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so. 40 In construing the provisions of legislation, it is a trite observation that the purposes of the legislation are to be considered. The purpose of s 14 is to reflect matters of public policy as exemplified by the provisions of s 13(a). There is a clear intention to ensure that "legal work" including advice about matters of law and representation before courts is undertaken only by persons who are properly qualified to do so. 41 This clear intention is confirmed by the following extract from the second reading speech of the Honourable Bob Debus, the then Attorney General and Minister for the Environment, which is to be found commencing on p 13404 of the Hansard extract from the New South Wales Legislative Assembly on 7 December 2004. "I turn now to Chapter 2 of the bill. Part 2.2 reserves legal work and titles for practitioners. This reservation protects the public and clients by ensuring legal work is carried out only by people properly qualified to do so. This Part ensures that there is a textually uniform prohibition across Australia restricting unqualified people from engaging in legal practice or representing they are entitled to engage in legal practice. Clause 14 makes it an offence for any person to engage in legal practice for fee, gain or reward unless that person is an Australian legal practitioner…." 42 Whilst the LP Act does not define the meaning of "engage in legal practice", the meaning of those words has been considered authoritatively by the Victorian Court of Appeal in Felman v Law Institute of Victoria (1998) 4 VR 324. The judgment of the Court of Appeal was delivered by Kenny JA with whose reasoning Winneke P and Brooking JA concurred. 43 In the course of his judgment, Kenny JA referred to the fact that in the course of carrying out their professional or business duties, persons who are not legal practitioners and who are not qualified as legal practitioners are nevertheless called upon to give advice about matters of law. In exercising what his Honour described as "occupational expertise" such persons would not necessarily act "….as a solicitor or a legal practitioner simply because the advice involves the expression of an opinion about the requirements of relevant legislation, statutory rules or the like. A person who, in his or her capacity as a tax agent, customs agent or migration agent, proffers advice which touches such matters, does so on account of his or her knowledge of and experience in the fields of taxation, customs or migration (as the case may be). In this regard, he or she is in no different a position from anyone else who, in the pursuit of an occupation, advises upon a matter within and by virtue of his or her expertise, as, for example, an architect who advises upon the legal ramifications of his proposed design…. the giving of advice in the course of carrying on an occupation other than a solicitor's (or legal practitioner's) would not fall (within a description of acting or practising as a barrister or solicitor)." (At p 350). 44 Kenny JA also observed that "some aspects of litigation too can be conducted by a law clerk (providing it can be said that the clerk acts on behalf of his employing solicitor)" (At p 351). 45 However, Kenny JA concluded that in determining whether someone was engaged in legal practice, it was not sufficient simply to look at what his Honour called "the activities of conducting litigation, giving advice and drafting legal instruments".

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Accordingly, therefore, persons who were not Australian legal practitioners were entitled to engage in legal practice provided that they did so without securing the payment of any fee gain or reward. S 14 was amended by the Legal Profession Amendment Act 2006 so as to delete the words "for fee, gain or reward". Prima facie, therefore, the intention of s 14 must be seen to prohibit any person, whether for fee, gain or reward or not, from engaging in legal practice. Whilst this may be the case, however, it seems that the legislature was intending to address another problem when this amendment to s 14 was enacted. During the course of the second reading speech of the Bill in the legislative assembly, recorded in Hansard on 5 April 2006 at p 22174, Mr Matt Brown, the Parliamentary Secretary said, in part: "The Legal Profession Act 2004 prohibits a person from engaging in legal practice for fee, gain or reward unless he or she is an Australian legal practitioner. The bill deletes the words "for fee, gain or reward" to ensure that clients who receive pro bono services from solicitors receive the same level of consumer protection as clients who pay for legal services. This amendment will create uniformity with the Victorian and Queensland legislation on this point. If practitioners are not required to hold a practising certificate, they do not have to undertake continuing legal education, are unlikely to hold professional indemnity insurance, and are not covered by the professional rules. Accordingly, there is a risk that the public will not be protected from under-qualified persons undertaking legal work, however well intentioned they may be. While pro bono legal work must be encouraged, consumer protection is an overriding goal of legal profession regulation. The professional bodies are willing to offer lower practising certificate fees for practitioners who do only pro bono work." 53 It seems that the legislature did not contemplate that a person who was not a legal practitioner would in any circumstances represent someone else by engaging in legal practice. Indeed, the amendment was directed at persons who were qualified solicitors but who did not hold a practising certificate. Such persons were not required to undertake continuing legal education, were unlikely to hold professional indemnity insurance and were not subject to the "professional rules" which are designed to ensure that in the context of court proceedings legal practitioners comply with their dual responsibilities to both the client and the court. 54 Although the amendment to s 14 is directed to this specific area, it reinforces, in my opinion, the intention of the legislature reflected in s 14 of the LP Act to ensure that only appropriately qualified persons engage in legal practice within New South Wales. 55 As I have previously observed, the policy and philosophy of ss 13 and 14 of the LP Act is to ensure that only those persons who are qualified and admitted as legal practitioners may engage in legal practice. No person who is not a legal practitioner should be permitted to engage in legal practice. Furthermore, a person who is admitted to practise as a legal practitioner is required to comply with the provisions of the LP Act and is subject to the supervisory regime established by that Act. There is a procedure set out in the Act dealing with eligibility and suitability for admission as a legal practitioner, requiring persons who are so admitted to be noted on a roll of practitioners, compelling such persons to comply with certain and specified rules of practice, exposing such persons to sanctions in the event of professional misconduct and, in general terms, regulating in an extensive manner the activities and conduct of legal practitioners consistent with a high standard of conduct and representation of clients. Furthermore, there are detailed provisions with respect to the holding of trust monies, the disclosure of costs, the assessment of costs and the recovery of costs. There are also provisions imposing a requirement for mandatory professional indemnity insurance cover. 56 In addition to these provisions of the LP Act, the combined application of the common law and the rules of practice of solicitors and barristers create obligations on legal practitioners that are essential to and an integral part of the efficient and effective administration of justice. 57 This may be illustrated by reference to some of the Solicitors' Rules made by the Law Society of New South Wales, which impact upon the work of solicitors in connection with litigation. For example, Rule 17 requires a solicitor to terminate his or her retainer and withdraw from proceedings if the solicitor becomes aware that a client is withholding information required by an order or a rule of a court with the intention of misleading the court or is informed by a client that an affidavit of the client, which has been filed by the practitioner, is false in a material particular. Furthermore, a solicitor is prohibited from drawing an affidavit alleging criminality, fraud or other serious misconduct unless the solicitor is aware of a reasonable basis for any such allegation, the allegation will be relevant to the proceedings as described and advice with respect to it has been given by the solicitor to the client. By Rule 18, a solicitor is restricted from conferring with or interviewing the opposing party in proceedings except in circumstances that are set out in that Rule. By Rule 19, a solicitor must cease representing a client where he or she is to be required to give evidence "material to the determination of contested issues before the court." 58 Of great significance are the provisions of Rule 23 entitled "Advocacy Rules". I set them out hereunder because even a superficial reading is sufficient to reveal that solicitors acting as advocates in proceedings before any court have a concurrent duty not only to the client but also to the court, and in some cases the opponent, to ensure the efficient and effective administration of the proceedings. " 23 - Advocacy Rules

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(1) A person who commences or carries on proceedings in the Supreme Court or District Court: (a) as the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth, or (b) as the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth), must file with the originating process, notice of appearance or defence, as the case may be, an affidavit as to his or her authority to act in that capacity, together with a copy of the instrument evidencing that authority. (2) The affidavit made by the director of a company within the meaning of the Corporations Act 2001 of the Commonwealth must contain: (a) a statement to the effect that: (i) the director is a director of the company, and (ii) the director has been authorised by a resolution of the directors duly passed at a meeting of directors held on a specified date (which must not be earlier than 21 days before the date of the affidavit) to commence and carry on the proceedings, as the case requires, and (iii) the authority has not been revoked, and (iv) the director is aware that he or she may be liable to pay some or all of the costs of the proceedings, or (b) a statement to the effect that: (i) the director is the managing or governing director of the company and has authority to exercise the powers of the directors, and (ii) the director is aware that he or she may be liable to pay some or all of the costs of the proceedings. (3) The affidavit made by the authorised officer of a corporation (other than a company within the meaning of the Corporations Act 2001 of the Commonwealth) must contain a statement to the effect that: (a) the officer is the holder of a specified office within the corporation, and (b) the officer has been authorised by the corporation to commence and carry on the proceedings, and (c) the authority has not been revoked, and (d) the officer is aware that he or she may be liable to pay some or all of the costs of the proceedings. 61 In summary, it is the intention of Part 7 that natural persons and corporations in the courts referred to be represented either by a solicitor or be, in effect, self-represented.

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63 I observe that apart from the limited requirements of the Act dealing with industrial agents in the context of unfair dismissal claims, there are no equivalent provisions of any legislation that would impact upon the representation of litigants before this Court by agents who are not legal practitioners. 64 It follows that an agent who is not an Australian legal practitioner will not be compelled to observe the obligations created by, and to comply with the responsibilities and duties inherent in, the provisions of the LP Act and the rules of practice such as the Solicitors' Rules to which I have referred. Absent any provisions in the rules of this Court which would replicate the obligations, responsibilities and duties incumbent upon an Australian legal practitioner to which I have referred, this Court could not be confident that an agent would conduct himself or herself consistently with those obligations, responsibilities and duties. This, in my opinion, would detract from the administration and management of proceedings before the Court. These observations are made without reference to any lack of understanding on the part of an agent of the Rules of Practice and Procedure before this Court and, most importantly, of the laws of evidence that every Australian legal practitioner is deemed to know and understand in connection with the preparation and presentation of proceedings before all courts. Of course, an understanding and appreciation of the laws of evidence is even more significant in the case of criminal proceedings, such as prosecutions under the Occupational Health and Safety legislation. 65 If, however, s 166 of the Act is to be construed, contrary to the conclusion that I have reached, so as to enable an agent to represent parties in proceedings before the Court, this creates a prima facie inconsistency with the provisions of s 14 of the LP Act. It is then necessary to deal with such an assumed prima facie inconsistency. 66 There are many instances in reported cases where consideration has been given to the approach that courts should take in resolving such an inconsistency. Sometimes, courts have regard to the chronology of the inconsistent legislation to determine whether or not a statutory provision, which is later in time than an earlier provision, should or should not be determined to have repealed, altered or otherwise affected the earlier provision. Sometimes, the courts have characterised one provision as being of general application and another as being of more special or limited application as assisting in divining the intention of the legislature. Some authorities concentrate on endeavouring to reconcile the apparent conflict so as to ensure that both apparent conflicting statutes may operate harmoniously. 67 Of course, adopting any of these approaches is fraught with difficulty when attempting to fairly represent the intentions of the legislature. In Butler v Attorney-General (Victoria) (1961) 106 CLR 268, Taylor J in the High Court of Australia, in commenting on this aspect, said: "The conclusion which I have reached is based solely upon a comparison of the competing legislative provisions for it is in 'the words of Parliament itself, formally enacted in the statute', that the intention of the legislature is expressed (per Latham CJ in South Australia v The Commonwealth (1942) 65 CLR 373 at p 410). Or as Starke J said in the same case 'The intention, object or purpose of a legislative body can only be legitimately ascertained from what it has chosen to enact either in express words or by reasonable and necessary intendment' (At p 439) But even if it were permissible to impute an intention to the legislature upon extraneous grounds any enquiry for this purpose would be profitless for if the competing provisions could stand together there would, of course, be no problem whilst, on the other hand, if, as I think, they cannot then speculation as to the intention of the legislature - whatever that expression may mean independently of intention expressed in the words of a statute - can be of no assistance." (At 285). 68 That the task of dealing with and reconciling inconsistent legislation is difficult, even at the highest level, may be seen from the result in Butler, where the members of the High Court split 3/2 in determining whether there was any relevant inconsistency and the impact that it had in the circumstances of those proceedings. 69 In a more recent decision in the High Court of Australia, Saraswati v the Queen (1990-1991) 172 CLR 1, Gaudron J said: "It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v. Attorney-General (Vict.) (1961) 106 CLR 268, per Fullagar J. at p 276, and per Windeyer J. at p 290. More particularly, an intention to affect the earlier provision will not be implied if the later is of general application (as is the provision by which indecent dealing is constituted an offence under the Act) and the earlier deals with some matter affecting the individual (as does the limitation provision in s.78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation. The position was stated by Lord Selborne in Seward v. The "Vera Cruz" (1884) 10 App Cas 59, at p 68, as follows: 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so'." (At 17-18) 70 I should add for completeness that Saraswati concerned circumstances in which there were said to be two competing provisions within the same enactment. However, it is suggested that the extract from the judgment of Gaudron J is indicative of the proper approach to construction of inconsistent statutes in the circumstances of these proceedings. 71 There is a certain degree of artificiality in determining whether a piece of legislation is earlier or later in time than that of another enactment. This is because it is sometimes necessary to ascertain whether the conflicting provisions were contained within earlier legislation. For example, in the context of these proceedings, s 14 of the LP Act is in relevantly similar terms to s 48B of the Legal Profession Act 1987. Furthermore, s 166 of the Act replicates a similar provision in the Industrial Relations Act 1991 and which also had found its way into provisions of the Industrial Arbitration Act 1940. 72 Moreover, there may be competing arguments as to which of the Industrial Relations Act 1996 and the LP Act is special legislation and which is general. It might be said that the LP Act is general in terms of the regulation of the activities of legal practitioners throughout New South Wales and that the Industrial Relations Act is of a more general nature including any right of appearance created by s 166. However, the contrary argument is also available and might sought to be justified on an equally rational basis. 73 For my part, I prefer the formulation of the appropriate approach by the Supreme Court of Connecticut that reflects statements of principle found at appellate court level in Australia but would seem to encourage a pragmatic approach to the construction process. In Nizzardo v State Traffic Commission et al (2002) 259 Conn.131, 788A.2d 1158, the Court said: "Such a conclusion would fly in the face of one of our most fundamental tenets of statutory construction, namely, that we must, if possible, construe two statutes in a manner that gives effect to both, eschewing an interpretation that would render either ineffective. [12][13][14] *157 In construing two seemingly conflicting statutes, "we are guided by the principle that the legislature is always presumed to have created a harmonious and consistent body of law...." (Internal quotation marks omitted.) State v. Ledbetter , 240 Conn. 317, 336, 692 A.2d 713 (1997). "Legislation never is written on a clean slate, nor is it ever read in isolation or applied in a vacuum. Every new act takes its place as a component of an extensive and elaborate system of written laws.... Construing statutes by reference to others advances [the values of harmony and consistency within the law]. In fact, courts **1174 have been said to be under a duty to construe statutes harmoniously where that can reasonably be done." 2B J. Sutherland, Statutory Construction (6th Ed. Singer 2000) s 53:01, pp. 322-24. Accordingly, "[i]f two statutes appear to be in conflict but can be construed as consistent with each other, then the court should give effect to both." (Internal quotation marks omitted.) Wilson v. Cohen , 222 Conn. 591, 598, 610 A.2d 1177 (1992); see Hirschfeld v. Commission on Claims , 172 Conn. 603, 607, 376 A.2d 71 (1977). "If a court can by any fair interpretation find a reasonable field of operation for two allegedly inconsistent statutes, without destroying or preventing their evident meaning and intent, it is the duty of the court to do so. Knights of Columbus Council v. Mulcahy , 154 Conn. 583, 590, 227 A.2d 413 (1967); Shanley v. Jankura , 144 Conn. 694, 702, 137 A.2d 536 (1957)." Windham First Taxing District v. Windham , 208 Conn. 543, 553, 546 A.2d 226 (1988). Therefore, "[w]e must, if possible, read the two statutes together and construe each to leave room for the meaningful operation of the other." State v. West , 192 Conn. 488, 494, 472 A.2d 775 (1984). In addition, "[i]f two constructions of a statute are possible, we will adopt the one that makes the statute effective and workable...." (Internal quotation marks omitted.) State v. Scott , 256 Conn. 517, 538, 779 A.2d 702 (2001). "Moreover, *158 statutes must be construed, if possible, such that no clause, sentence or word shall be superfluous, void or insignificant...." (Internal quotation marks omitted.) State v. Gibbs , 254 Conn. 578, 602, 758 A.2d 327 (2000)." 74 In determining this matter on the assumption that there is a prima facie inconsistency between s 166 of the Act and s 14 of the LP Act and in determining whether there is "a reasonable field of operation" for the two provisions "without destroying or preventing their evident meaning and intent" I shall have regard to a number of matters: 1) This Court is a superior court of record with limited jurisdiction circumscribed by legislation. 2) The legislature in s 14 of the LP Act read in light of s 13 of that Act has professed a clear and positive intention to restrict entitlement to represent parties in proceedings before a court to persons who are appropriately qualified, namely Australian legal practitioners. 3) Agents, who are not Australian legal practitioners, do not necessarily have the legal skills and knowledge to properly represent parties in proceedings before this Court, are not subject to the controls and regulation imposed by the LP Act and, most importantly, do not owe a concurrent duty to the court which is integral to and necessary for the proper administration of justice in proceedings before this Court. There are no provisions within the Rules of this Court or within the Act that deal in any way with the manner in which agents are expected to conduct themselves when representing parties in proceedings before the Court. 4) It is in the interests of the community to ensure that only appropriately qualified and skilled persons recognised by law be entitled to represent parties in proceedings before this and any other court in New South Wales. 5) All of these represent powerful policy reasons for ensuring that s 166 is construed in a manner that is consistent with the practice and procedure before courts generally in New South Wales. 6) There are no provisions within s 166 which positively point to construing that section in a manner which is inconsistent with the LP Act so as to enable agents who are not Australian legal practitioners to appear before the Court. Any such construction would defy the analysis of s 166(2) to which I have earlier referred. 75 For all of these reasons I would construe s 166 as limiting representation by an agent to proceedings before the industrial tribunal only and as excluding any entitlement in an agent to represent parties in proceedings before the Court.

[114]

S 14(2)(a) of the LPAct 76 The observations that I have made above concerning the provisions of s 14 of the LP Act have not addressed specifically the provisions of s 14 subs (2)(a). It was the submission of the applicant that s 166 of the Act should be read and construed as constituting authorisation of a law of New South Wales for the engaging in legal practice of a person who is not an Australian legal practitioner. I was not afforded the benefit of any submissions about the meaning of the words "under the authority of a law….". Such research as I have undertaken has not revealed any case authority that would assist in understanding what is intended by these words. However, I note that the dictionary meaning of "authority" makes reference to a power or right. (See, for example, Oxford English Dictionary Second Edition 1989). That is, I would comprehend the expression "under the authority of a law" as importing a connotation that the law has created a power or right in a person not an Australian legal practitioner to engage in legal practice as specified in the law. That is, for s 166 to be construed as representing the exercise of an authority under s 14(2)(a) of the LP Act one would expect some form of clear expression to this effect, as is found in s 14(2)(b) to (g). 77 In applying the ejusdem generis approach to construction, I note that the exceptions that are contained within s 14(2)(b) to (g) of the LP Act contain a degree of specificity. That is, there is some certainty as to the activities that are permitted as described in these subparagraphs. No such certainty or expressed power or right is to be found within s 166. 78 Of course, one might read s 166, in its broadest sense, as creating the same specificity as is found in subparagraphs (b) to (g). For my part, however, I am not so prepared to accept that s 166 may be understood as authorising, in the sense to which I have referred, the engagement in legal practice of a person who is not an Australian legal practitioner in connection with proceedings before this Court. This is because, firstly, the provisions of s 166 involve a degree of ambiguity in the sense that I have previously described. Secondly, and more importantly, s 14 of the LP Act when read in conjunction with s 13 in the context of the discussion, which I have previously undertaken about the need to ensure that only appropriately qualified persons are entitled to represent parties before courts, creates a powerful argument for limiting s 166 and for requiring greater specificity in the provisions of s 166 than it contains. 79 I acknowledge that to some extent, the argument that I have advanced is circular in nature. It is derived from a desire to ensure that the policy that explicitly pervades the LP Act prevails over a contrary reading of s 166. Perhaps it might also be said that because I hold the opinion that s 14 of the LP Act must be construed so as to apply to representation by persons who are not Australian legal practitioners in proceedings before this Court that s 14(2)(a) of the LP Act should be construed in a way that precludes s 166 of the Act as coming within its provisions. 80 There is an analogous situation with respect to criminal proceedings taken before this Court. S 168 of the Act is in the following terms: 168 Criminal procedure

[118]

(1) The provision of legal services by a law practice without reasonable prospects of success does not constitute an offence but is capable of being unsatisfactory professional conduct or professional misconduct by a legal practitioner associate of the practice who is responsible for the provision of the service or by a principal of the practice. (2) A law practice cannot file court documentation on a claim or defence of a claim for damages unless a principal of the practice, or a legal practitioner associate responsible for the provision of the legal service concerned, certifies that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success. (3) Court documentation on a claim or defence of a claim for damages, which has been lodged for filing, is not to be filed in a court or court registry unless accompanied by the certification required by this section. Rules of court may make provision for or with respect to the form of that certification. (4) In this section: "court documentation" means: (a) an originating process (including for example, a statement of claim, summons or cross-claim), defence or further pleading, or (b) an amended originating process, defence or further pleading, or (c) a document amending an originating process, defence or further pleading, or (d) any other document of a kind prescribed by the regulations. "cross-claim" includes counter-claim and cross-action. 86 It was submitted on behalf of the respondent that the applicant's agent was in breach of s 347 by having failed to give the relevant certificate as required by subs (2). 87 There is a short answer to this submission. The applicant's agent is not a law practice and is therefore not amenable to the provisions of s 347. This is whether or not one may properly characterise proceedings brought under s 106 of the Act as being a "claim for damages." I very much doubt whether proceedings may be characterised in this way, but it is not necessary that I determine the matter because, as I have said, s 347 is clearly inapplicable. 88 However, the provisions of s 347 do corroborate the policy of that Act, which is to restrict the ability to provide legal services to those who are appropriately qualified and to regulate the way in which the legal practitioners may conduct themselves in and about litigation. 89 If unqualified persons were allowed to engage in legal practice so as to represent parties in litigation they would fall outside the requirement of certification which is designed to ensure that the representative of a party at least has reasonable grounds for believing, on the basis of provable facts and a reasonably arguable view of the law, that a claim or the defence of a claim has reasonable prospect of success. This is clearly designed to preclude the prosecution and defence of unmeritorious arguments before the courts, for obvious and good reason.

[119]

Nullity 90 It was submitted on behalf of the respondent that the proceedings were a nullity in that they were issued by Workwise Management Pty Ltd on behalf of the applicant, that company not being a legal practitioner and therefore in contravention of s 14 of the LP Act. 91 Unfortunately, the Court did not derive any substantial assistance from the respondent in connection with this submission. Fortunately, the question of whether proceedings may be described as a nullity has recently been the subject of a comprehensive examination by the New South Wales Court of Appeal in Deveigne and anor v Askar [2007] NSWCA 45. In particular, the judgment McColl JA discusses what constitutes a nullity for the purpose of court proceedings in some detail. Her Honour's reasons for judgment were the subject of observations by Spigelman CJ in Swansson v Regina [2007] NSWCCA 67 at [75] to [79]. 92 Deveigne concerned proceedings that had been initiated in the District Court of New South Wales by a plaintiff claiming damages as a result of a motor accident. The person named as the defendant had died after the accident, but prior to the statement of claim being filed. Accordingly, the proceedings were brought against a person who was not in existence at the time that the statement of claim was filed and who, obviously, had never been served with the statement of claim. The NRMA had insured the vehicle being driven by the deceased defendant under a comprehensive third party policy of insurance and had obtained certain orders in the District Court affecting the proceedings in the name of the deceased driver even though, as it appears, it was aware that he was dead. The orders included the dismissal of the District Court proceedings and a costs order. 93 One of the issues for determination in the Court of Appeal was whether the proceedings were a nullity. Hodgson JA agreed substantially with the reasons for judgment of McColl JA, but said: "It may be that proceedings (or applications) purportedly commenced by a non-existent person are a nullity; but I am doubtful if proceedings commenced against a non-existent person are truly a nullity. Certainly, in my opinion, proceedings cannot become a nullity because they are not served. The question of whether or not proceedings are a nullity is different from the question of whether or not a purported order is a nullity, or is liable to be set aside as of right." (At [2]) 94 Giles JA agreed that a costs judgment, which the NRMA had obtained in its favour, was liable to be set aside but did not decide whether this was because it was a case "of true nullity" or whether the costs order had been "improperly made and given and needing to be set aside." 95 The reasons for judgment of McColl JA contain, as I have said, a most comprehensive review of the authorities dealing with a determination of whether court proceedings may be characterised as a nullity or as an irregularity. 96 I set out hereunder, as assisting in such a determination, [82] to [84] of her Honour's judgment: "82 To describe a document or a court proceeding as a "nullity" states a conclusion, rather than the reason for reaching that conclusion: Adams v Lambert [2006] HCA 10; (2006) 80 ALJR 679 at [25]; see also Bounds v The Queen [2006] HCA 39; (2006) 80 ALJR 1380 at [10]; Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [154] per Hayne J. Such statements of conclusion, it has been said, "are not necessarily helpful in resolving the rights of parties", both in the context of administrative decisions and "in the context of proceedings in, and acts and orders of, courts": Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 80 ALJR 1214 at [10] (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ); see also Minister for Immigration and Multicultural Affairs v Bhardwaj (at [46]).

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83 The joint judgment in Berowra contained the following observations (at [13]): "[13] There also is a very real difficulty in characterising proceedings as 'invalid'. The institution of an action or other proceeding is the exercise by the litigant of the freedom to invoke the jurisdiction of the judicial arm of government to determine a dispute. That step engages the procedural law appurtenant to the relevant court, which in modern times is found primarily in the Rules. [14] Professor Jolowicz describes procedural law as creating choices or a sequence of choices in the sense that each procedural step taken by a litigant requires the other party or the court to take some action, so affecting the path which the proceedings take towards ultimate disposition. This is the case even where a procedural rule is expressed in mandatory form; if the party to whom it is addressed chooses to disregard it, the normal outcome is that a choice accrues to the other party either to do nothing or to seek an appropriate order from the court. [15] In the adversarial system of justice, choice rests primarily with the parties and it is generally the case that the court's power of decision or order is exercised upon the application of a party. Generally there is, in law, no restriction upon a person's right to start an action and to carry it to the point at which a choice is cast upon the defendant to make some response in order to avoid judgment in default. Once the procedural law has been engaged, all parties to the litigation are subject to it.[16] None of the above denies the possibility of a defendant denying the plaintiff's right to invoke the jurisdiction of the court, for example where the plaintiff's right is conditional upon there being an action cognisable within that jurisdiction. However, the material point is that that denial must be made within the structure of the relevantly engaged procedural law, and not outside it. Accordingly, the defendant may challenge at an interlocutory level the strength of the plaintiff's alleged case by seeking to have a plaintiff's action struck out for failure to disclose a reasonable cause of action, or dismissed as incompetent. Alternatively, the defendant may have recourse to judicial review by a superior court, challenging the right of an inferior court to adjudicate the plaintiff's claim and seeking orders to prevent the inferior court continuing to hear the claim. However, the invocation of jurisdiction ordinarily enlivens the authority of the court in question at least in the first instance to decide whether it has jurisdiction [Re Macks; Ex p Saint (2000) 204 CLR 158]." (emphasis added) 84 In Berowra , the majority concluded (at [36]) that proceedings commenced by a worker in contravention of s 151C of the Workers Compensation Act 1987 (which required a six months delay before the commencement of court proceedings against an employer for damages) engaged the jurisdiction and procedural rules of the court in question. While the proceedings were vulnerable to an application by the defendant to strike out the initiating process or to move for summary dismissal, they were not a nullity." 97 Her Honour's judgment discusses a number of authorities in which it has been determined that proceedings brought by a non-existent plaintiff or applicant, whether a natural person or a corporation, are a nullity and, in the same way, proceedings commenced against a natural person or a corporation who or which is non-existent are also a nullity. As her Honour explains, "Once proceedings may be so characterised, there is, in effect, nothing which can be the subject of any effective order made by a court nor any jurisdictional power to amend them because, for all practical purposes, the proceedings do not exist." 98 Her Honour's judgment also canvasses the distinction between proceedings that are a nullity and those that may be treated as involving some form of irregularity that is capable of being corrected by a court. Her Honour's judgment discusses the power given to courts to correct irregularities. For the purpose of these proceedings such a power is contained within s 170 of the Act which is in the following terms: 170 Amendments and irregularities

[121]

(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 99 In reviewing a number of authorities dealing with the power to correct irregularities, her Honour concluded: "141 Subsequent cases have adopted the "wide and generous" approach to irregularity provisions: see Italiano v Carbone & Ors [2005] NSWCA 177 at [17] per Spigelman CJ. It should be noted, however, that they are intended to deal with procedural irregularities, not jurisdictional errors of a fundamental kind, such as an ultimate decision made by a decision-maker who did not have the capacity to exercise the statutory power: Attorney General of New South Wales v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 at [97] per Spigelman CJ (Tobias JA agreeing)." 100 Having concluded that s 166 of the Act must be read down so as to render it consistent with s 14 of the Legal Profession Act, it is then necessary to consider whether the institution of these proceedings by an entity which is not a legal practitioner results in the proceedings being characterised as a nullity. 101 This is not the case of proceedings having been instituted in the name of an applicant that is non-existent. Nor is any allegation made by the respondent that the subject matter of the proceedings falls outside the jurisdiction and power of this Court. The allegation is confined, as I have said, to the representation of the applicant in breach of s 14 of the Legal Profession Act. 102 Based on my understanding of what constitutes a nullity, gleaned in large measure from the judgment of McColl JA in Deveigne, I do not conclude that the breach of s 14 of the Legal Profession Act renders these proceedings a nullity, in the sense that they should be regarded as not existing. The breach of s 14 creates, in my opinion, an irregularity that is capable of being cured by an order removing Workwise Management Pty Ltd from the proceedings and making any necessary consequential order against that entity restraining it from further participating in the proceedings. 103 Nor am I able to characterise the proceedings as alleged by the respondent as constituting an abuse of process because of the breach of s 14 of the LP Act.

Deluux Pty Ltd v Mini-Tankers Pty Ltd

At a glance

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Judgment (124 paragraphs)

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Cases Cited (19)

Cited By (3)