[1993] HCA 4
Cole v Whitfield (1988) 165 CLR 360[1988] HCA 18
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64[1991] HCA 54
Duncan v New South WalesNuCoal Resources Ltd v New South WalesCascade Coal Pty Ltd v New South Wales (2015) 255 CLR 388[2015] HCA 13
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
[2000] HCA 63
Ex Parte Lenehan (1948) 77 CLR 403
[1996] HCA 24
Lambert v Weichelt (1954) 28 ALJ 282
McRae v Commonwealth Disposals Commission (1951) 84 CLR 377
[1951] HCA 79
Minister for Immigration v Guo (1997) 191 CLR 559
[1997] HCA 22
Moore v Scenic Tours Pty Ltd [2020] HCA 17
(2020) 377 ALR 209
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279
(2017) 91 ALJR 302
Street v Queensland Bar Association (1989) 168 CLR 461
[1989] HCA 53
The Queen v Australian Broadcasting Tribunal
ex parte Hardiman (1980) 144 CLR 13
Judgment (30 paragraphs)
[1]
Law Society of New South Wales (1989) 17 NSWLR 669
Texts Cited: Legal Profession Admission Board of New South Wales, 'Guide for Applicants for Admission as a Lawyer in NSW in accordance with the Legal Profession Uniform Admission Rules 2015'
Category: Principal judgment
Parties: Andrew John Green (Plaintiff)
Legal Profession Admission Board (Defendant)
Representation: Counsel:
Self-represented (Plaintiff)
K Pham (Defendant)
By summons filed on 7 May 2020, Andrew Green (the plaintiff) appealed against the refusal by the defendant, the Legal Profession Admission Board (the Board), to issue a compliance certificate under s 19(3) of the Legal Profession Uniform Law (NSW) (the Uniform Law) (the Board's decision) which would have enabled him to be admitted to legal practice as an Australian lawyer. The plaintiff also claims a writ of certiorari quashing the Board's decision, a writ of mandamus and an order for restitution. On 1 July 2020, the plaintiff filed an amended summons.
In summary, the plaintiff's primary claim for relief, if granted, would have the effect that he could be admitted to legal practice in Australia on conditions which include that he pass Evidence and complete the practical legal training component within a specified period. He contended that, if he is admitted, he will be able to obtain employment as a lawyer and that he will be in a better financial and psychological condition to fulfil the conditions than he is presently.
The New South Wales Bar Association was originally named as the first defendant. It filed an appearance. However, by notice of motion filed on 10 September 2020 it sought to be removed as a party. Wilson J made an order to that effect on 22 October 2020: Green v The New South Wales Bar Association [2020] NSWSC 1575. Accordingly, the New South Wales Bar Association is no longer a party to the proceedings, leaving the Board as the only active defendant. The Board's entitlement to be represented at the appeal in this Court has been put beyond doubt by s 21(4) of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act) (see below).
Ms Pham, who appeared on behalf of the Board, emphasised in written submissions and orally that, although the Board is prepared to play the role of contradictor, it did not propose to contend that the plaintiff ought not be granted a compliance certificate. She submitted that whether the plaintiff was entitled to a compliance certificate was a matter for the Court. The Board confirmed its concern to comply with the principles in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35; [1980] HCA 13 (Hardiman), in so far as they could be said to be applicable in circumstances where further applications could be made to the Board in the future. This approach has been judicially sanctioned: see, for example, Jackson (Previously Known As Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 at [17]-[22] (Johnson J).
Before turning to the background to the appeal, I propose to summarise the relevant legislative provisions. Unless otherwise indicated, all references in these reasons to legislation are references to the Uniform Law.
[4]
Definitions
Section 6 includes the following relevant definitions:
"Australian lawyer means a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction;
Australian legal practitioner means an Australian lawyer who holds a current Australian practising certificate;
…
Australian practising certificate means -
(a) a practising certificate granted to an Australian lawyer under Part 3.3 of this Law as applied in a participating jurisdiction; or
(b) a practising certificate granted to an Australian lawyer under a law of a non-participating jurisdiction entitling the lawyer to engage in legal practice;
…
foreign lawyer means an individual who is properly registered or authorised to engage in legal practice in a foreign country by the foreign registration authority for the country
…"
Other relevant definitions are included below.
[5]
Part 2.1 of the Uniform Law
Part 2.1 deals with unqualified legal practice. Section 10 prohibits unqualified legal practice. Section 11 prohibits an entity (which is defined in s 6 to include an individual) from representing that it is entitled to engage in legal practice unless it is qualified.
Section 12 regulates the use of particular words and titles, including "solicitor". Section 12(2) provides:
"(2) Entitlement to take or use title A person is entitled by force of this section to take or use a title to which this section applies if -
(a) the person is of a class authorised by the Uniform Rules for the purposes of this section to take or use that title…"
Section 12(3) creates a rebuttable presumption (for the purposes of s 11(1)) where someone, relevantly, describes him or herself as a solicitor, that the person has represented that he or she is entitled to engage in legal practice.
[6]
Part 2.2 of the Uniform Law
Part 2.2 of the Uniform Law provides for admission to the Australian legal profession.
Section 15 provides:
"The objective of this Part is to protect the administration of justice and the clients of law practices by providing a system under which persons are eligible for admission to the Australian legal profession only if -
(a) they have appropriate academic qualifications and practical legal training, whether obtained in Australia or elsewhere; and
(b) they are fit and proper persons to be admitted."
This Court (and other Supreme Courts) may admit a person as an Australian lawyer if the person fulfils certain conditions. Of present relevance, such a person can be admitted if the designated local regulatory authority (the authority) has provided the Supreme Court with a compliance certificate in respect of the person and the certificate is still in force: s 16(1)(a).
Section 17 makes provision for the prerequisites for the issue of a compliance certificate: that the person "has attained the academic qualifications specified under the Admission Rules for the purposes of this section (the specified academic qualifications prerequisite)"; "has satisfactorily completed the practical legal training requirements specified in the Admission Rules for the purposes of this section (the specified practical legal training prerequisite)"; and "is a fit and proper person to be admitted to the Australian legal profession".
Section 18(1) relevantly provides that an authority may exempt a person from the specified academic qualifications prerequisite if it is satisfied that the person has sufficient legal skills or relevant experience so as to render the person eligible for admission. Section 18(2) provides that the legal skills or experience or both can be obtained in legal practice, in service with a government authority or in any other way and do not need to be obtained in Australia.
Section 19(1) entitles a person to apply for a compliance certificate which the authority, under s 19(3) may issue.
Under s 20, the authority may recommend that a compliance certificate be issued in respect of a foreign lawyer with conditions on admission. It relevantly provides:
"20 Conditional admission of foreign lawyers
(1) The designated local regulatory authority may recommend in a compliance certificate in respect of a foreign lawyer that the foreign lawyer be admitted subject to conditions of one or more of the following kinds -
(a) a condition limiting the period of the foreign lawyer's admission;
(b) a condition requiring the foreign lawyer to undertake particular academic or practical legal training or both;
(c) a condition requiring the foreign lawyer to engage in supervised legal practice;
(d) a condition limiting the area of law in which the foreign lawyer may engage in legal practice;
(e) a condition otherwise restricting the foreign lawyer's practising entitlements.
(2) The admission of a foreign lawyer is subject to the conditions (if any) recommended by the designated local regulatory authority in the compliance certificate.
(3) The Supreme Court may, after the admission of a foreign lawyer, vary or revoke a condition to which the foreign lawyer's admission by the Court is subject. The designated local regulatory authority may make recommendations about the variation or revocation of a condition, and the Court must consider any recommendations made by the designated local regulatory authority in deciding on the variation or revocation of the condition.
(4) Without limiting the grounds on which a person's name may be removed from the Supreme Court roll, the Supreme Court may order the removal of a person's name from the Supreme Court roll for a contravention of a condition.
(5) Without limiting subsection (4), a contravention of a condition is capable of constituting unsatisfactory professional conduct or professional misconduct.
(6) Nothing in this section is intended to interfere with the inherent jurisdiction of the Supreme Court to refuse admission."
[7]
The Application Act
Section 21(4) of the Application Act provides that the Board is entitled to be represented and heard at any appeal referred to in s 28 of the Legal Profession Uniform Law (NSW) (the Uniform Law). As referred to above, this puts beyond doubt the Board's entitlement to act as a contradictor in these proceedings and is sufficient to overcome the convention that the decision-maker ought file a submitting appearance in respect of a decision which is sought to be impugned.
Section 164(1) of the Application Act provides:
"164 Protection from liability
(1) No liability attaches to a relevant person for any act or omission done or omitted in good faith and in the exercise or purported exercise of functions under this Act or the local regulations."
"Relevant person" is defined in s 164(2) of the Application Act as including the Board and its members.
Section 211 of the Uniform Law provides:
"An Australian legal practitioner must not engage in legal practice in this jurisdiction unless the practitioner holds or is covered by an approved insurance policy for this jurisdiction and the policy covers that legal practice.
Civil penalty: 100 penalty units."
Schedule 3 of the Application Act provides for the composition of the Board. Pursuant to cl 1, the Chief Justice and three judges of this Court are to be on the Board, as are two barristers nominated by the Bar Council. Two solicitors and two academics are also to be on the Board.
[8]
The Legal Profession Uniform Law Application Regulation 2015
Regulation 19 of the Legal Profession Uniform Law Application Regulation 2015 (NSW) relevantly provides:
"19 Government and corporate lawyers - transitional exemption from holding practising certificate
(1) A government or corporate lawyer is exempt from the requirement to hold an Australian practising certificate in respect of functions as such a lawyer if he or she:
(a) was not an Australian lawyer on 1 July 2015 and was a government or corporate lawyer at any time within the period of 12 months before 1 July 2015, but in the case of a corporate lawyer is only exempt until 1 July 2018, or
…
(2) Sections 10 (1) and 11 (1) of the Uniform Law do not apply to any such government or corporate lawyer while he or she is so exempt from the requirement to hold a practising certificate.
It was common ground that because the plaintiff was, as at 1 July 2015, a foreign lawyer who was employed as Legal Counsel with Alstom Grid (see further below), he fell within reg 19(1)(a) and therefore could practise law in Australia until 1 July 2018 although he was not admitted and did not have a practising certificate.
[9]
The Admission Rules
The Legal Profession Uniform Admission Rules 2015 (NSW) (the rules) relevantly make provision for the specified academic qualifications prerequisite as follows:
"5 SPECIFIED ACADEMIC QUALIFICATIONS PREREQUISITE
(1) For the purposes of section 17 (1)(a) of the Uniform Law, subject to these Rules, the specified academic qualifications prerequisite is successfully completing a tertiary academic course in Australia, whether or not leading to a degree in law, which:
(a) includes the equivalent of at least 3 years' full-time study of law,
(b) is accredited by the Board, and
(c) the Board determines will provide for a student to acquire and demonstrate appropriate understanding and competence in each element of the academic areas of knowledge set out in Schedule 1, or otherwise determined by the Admissions Committee after consulting each of the Boards.
…
[Schedule 1 sets out the following academic areas of knowledge: Criminal Law and Procedure, Torts, Contracts, Property, Equity, Company Law, Administrative Law, Federal and State Constitutional Law, Civil Dispute Resolution, Evidence and Ethics and Professional Responsibility.]
6 SPECIFIED PRACTICAL LEGAL TRAINING PREREQUISITE
(1) For the purposes of section 17 (1) (b) of the Uniform Law, subject to these Rules, the specified practical legal training prerequisite is acquiring and demonstrating an appropriate understanding and competence in each element of the skills, values and practice areas:
(a) set out in Schedule 2, or
(b) otherwise determined by the Admissions Committee after consulting each of the Boards.
…
11 DIRECTIONS ABOUT QUALIFICATIONS
(1) A person who has wholly or partially completed the academic requirements for admission in a foreign jurisdiction may apply to the Board for a direction about what additional academic qualifications must be acquired by that person in order to meet the requirements of rule 5.
(2) A person who has completed the practical legal training requirements for admission and has been admitted in a foreign jurisdiction may apply to the Board for a direction about what additional practical legal training understanding and competence must be acquired by that person in order to meet the requirements of rule 6.
…"
The Board has published a document, of which there are various versions, entitled "Guide for Applicants for admission as a lawyer in NSW in accordance with the Legal Profession Uniform Admission Rules 2015".
[10]
The plaintiff's initial legal qualifications and subsequent employment
The plaintiff was admitted to legal practice as a solicitor in England and Wales in September 2008 and has 11 years of post-qualification experience in the law.
The plaintiff practised in England as a lawyer, then Associate, with Pinsent Masons LLP in Construction Advisory and Disputes, from September 2008 to April 2014, which was said to involve major projects, construction and dispute resolution regarding energy, infrastructure, power, construction, IT and technology, mitigating project risk, managing claims and resolving disputes.
He has worked in New South Wales in both legal and non-legal positions. He was Legal Counsel with Alstom Grid, in the Australia, East Asia and Pacific Legal Team, from January 2015 to October 2015 (which meant that reg 19(1)(a) of the regulations applied to him); and Senior Legal Counsel with NBN Co Ltd in the Build Operations Legal Team, Legal and Security Department, from November 2015 to June 2018. When the transitional provisions relating to foreign lawyers (reg 19, referred to above) ceased to have operation, the plaintiff was appointed Manager, Security Industry & Agency Engagement with NBN Co Ltd in the Security Group, Legal and Security Department, from July 2018 to July 2019, which was accepted to be a non-legal position. The plaintiff said from the bar table that he had been made redundant in July 2019 but did not disclose whether he had received any redundancy payment at that time.
[11]
The application for exemption from academic study and practical legal training
The plaintiff applied to the Board which assessed his application and decided that, before he was admitted, he was required to complete further academic study in the subjects of Australian Constitutional Law, Administrative Law, Law of Associations, Evidence, Practice and Procedure and Legal Ethics. By letter dated 10 August 2016 the Board informed the plaintiff of the results of its assessment of his academic qualifications and its decision under r 11. The Board said:
"This decision will remain valid provided that you complete the further study and apply for admission within three (3) years of the date of this letter.
This decision has been made under Rule 11(1) of the Legal Profession Uniform Admission Rules 2015, or rule 97(7A) of the NSW Board Admission Rules 2015, as applicable."
The plaintiff has completed all further academic subjects apart from Evidence. The first time he was enrolled in Evidence (in Term 1 of 2018) he did not sit the exam. He sat the exam in Term 1 of 2019 and failed.
[12]
The application for admission
On 10 January 2019 the plaintiff lodged his application for conditional admission with the Board through its online portal. The pro forma document contained the following note:
"We will not start processing your application until we have received all the pages of this printout and all your documentary evidence as specified in the checklist below."
The application exhibited to the affidavit of Leigh Plater affirmed 17 September 2020, which was read by the Board, comprises the application lodged by the plaintiff, together with documents which were provided subsequently as well as handwritten annotations on the document. The application in this form is a business record, which is admissible under s 69 of the Evidence Act 1995 (NSW). I am entitled, pursuant to s 183 of the Evidence Act to "draw any reasonable inferences from [the document] as well as from other matters from which inferences may properly be drawn". The composite document contains annexures which bear various dates. For example the character references are dated 11 December 2019 and 15 January 2020. The checklist on page 1 of the document has been endorsed by two sets of initials, the first dated 6 February 2020 and the second dated 10 February 2020. I infer that the composite document was not complete before 15 January 2020. As a consequence, the Board, in accordance with its notification, did not process the application until at least that date.
In his application for conditional admission, the plaintiff expressed an interest in practising Australian law in-house or in a law firm. The plaintiff relied on his employment set out above and contended that his experience in NSW involved supporting multi-national companies and government business enterprises to deliver deals, mitigate risk and avoid claims in the areas of technology, media and telecommunications, information, communications and technology, privacy, data protection and data retention, construction advisory and disputes.
The plaintiff stated in his application that he did not have employment arrangements in place but that he intends to be employed either in an in-house role as deputy general counsel or with a law practice as an employee or as special counsel, involving advising corporate and/or public sector entities on telecommunications, media and technology transactions intellectual property, data protection, privacy and cyber security.
[13]
Other applications made by the plaintiff to the Board
[14]
Application for exemption from the practical legal training component
The Board separately assessed the plaintiff's practical legal training and decided, pursuant to r 11 that he was required to complete practical legal training in Trust and Office Accounting and Ethics and Professional Responsibility. The Board informed the plaintiff of its decision by letter dated 13 February 2019.
The plaintiff confirmed orally that he had not embarked on the practical legal training component of the Board's requirements and explained that he had not sought to do so because his understanding was that he would not be permitted to do so until he had completed the academic component (by passing Evidence) or been conditionally admitted on condition that he complete this component within a particular time period.
[15]
Application for an extension of time to enrol in Evidence
On 20 August 2019 the plaintiff applied for an extension of time to enrol in Evidence for the Winter 2019 session. His statutory declaration in support of the application said as follows:
"I respectfully request that, pursuant to Rule 67, the Examinations Committee exercises its discretion to relax Rule 66 of the NSW Admission Board Rules to permit me to sit the Evidence (11) examination that I was unable to attend in Winter 2018 due to a head injury and concussion. See statutory declaration at Appendix 1.
For consideration by the Examination Committee, I would like to highlight that:
- I have not performed at my best in previous Evidence examinations, in part due to heavy work commitments prior to each examinations and other extraneous factors including Type 1 Diabetes where the stress and limited exercise caused erratic blood sugars with periods of hypo or hyper glycaemia In the lead up to examinations that adversely affects mental performance;
- I am currently not employed, exercising regularly and I am now using a Medtronic Minimed insulin pump and a Continuous Glucose Monitor which provide improved regulation of blood sugars by constant adjustments of the amount of insulin delivered based on real time analysis of my blood sugars - it seeks to mimic the actions of a person's pancreas, liver and brain. See letter at Appendix 2 relating to the benefits of an insulin pump for a diabetic;
- With the risks in bullet 1 minimised, I consider that I will be able to perform at my best and hope to achieve success utilising the expertise gained;
- I have passed the other academic subjects (for which I did not receive an exemption, namely Practice and Procedure, Ethics Administrative Law, Constitutional Law and Law of Associations),
- I have been practising law covering all of these subject areas throughout my legal career in Australia from January 2015 -June 2018 (see Statement and Response at Appendix 2),
- I have utilised this legal expertise from July 2018 onward to deliver security advisory services empowering nbn business stakeholders to achieve key objectives on relevant national security, data and privacy legislation and public policy matters
- I am dedicated to furthering my legal career in Australia in the areas of national security, data and privacy Evidence will allow me to complete my academic studies and progress my legal career utilising evidentiary submissions where appropriate."
[16]
The Board's assessment of the plaintiff's application for conditional admission
On 10 March 2020 the Board sought comments on the plaintiff's application from the Victorian Legal Admission Board (the Victorian Board) and the NSW Law Society. The Board indicated that its response to the application was as follows:
"Conditional admission is not supported because: no employment arrangements; no clear proposed conditions; and the applicant has twice failed the subject of Evidence in the [Board's] Diploma course."
The Victorian Board provided its comments on 12 March 2020. It indicated that it did not support the application for the reasons identified by the Board, that is "no employment arrangements and no clear proposed conditions".
Ms Gibson, Head of Licensing and Scheme at the NSW Law Society provided a response on 25 March 2020. Ms Gibson noted the NSW Law Society understood that the Board's position was based on the fact that the plaintiff has no employment or supervision arrangements in place and has failed to pass a directed academic subject, Evidence. She noted the following:
"1. The applicant has completed five (5) of his six (6) areas of directed academic study;
2. It is unclear, at this stage whether the applicant has completed all of his PLT requirements. In any event, the passage of time would permit the current applicant to complete any remaining directed PLT areas and then apply for admission
3. The LPAB has to date adopted an approach that the grant of conditional admission pursuant to an application from an overseas qualified lawyer, prior to them having met the academic and PLT requirements for admission, ought be supported by evidence of employment, supervisory or professional support arrangements in place.
4. The applicant is well experienced and qualified on a global level in the fields of technology, information systems, risk management and strategy, communications and cyber security."
The NSW Law Society's conclusion is expressed as follows:
"Given the:
1. uncertainty of the applicant's status in respect of the:
a. already failed Evidence examination; and
b. PLT requirements, and
2. absence of the applicant having:
a. satisfied the statutory criteria for admission, resulting in the applicant applying for conditional admission, nor having;
b. provided details of any proposed employment and supervision arrangements,
it would be premature to grant conditional admission."
[17]
The procedural history of these proceedings
It is not necessary to set out the procedural history of these proceedings in detail. However, because the plaintiff pressed his claim for damages and the Board objected, on procedural as well as substantive grounds, to the claim being put, it is necessary to set out the way in which the claim was pleaded and particularised.
As referred to above, the plaintiff filed a summons on 7 May 2020. The following were included in his claim for relief:
"- an order for restitution of the fees paid by the Plaintiff for submitting the conditional admission application, further documents, and this appeal.
- an order that the Defendants compensate the Plaintiff for the costs incurred by the Plaintiff for this appeal."
Under the heading "appeal grounds" in the summons, the plaintiff said, in paragraph 2:
"This summons does not particularize the Applicant's claim for damages for loss of opportunity to earn the salary of a practising lawyer of NSW and the Applicant reserves its position regarding any such claim against the Defendants."
By letter dated 29 May 2020, the Crown Solicitor's Office, which acted on behalf of the Board, wrote to the plaintiff. Of present relevance, the Board's solicitor said:
"Damages for loss of opportunity
You have not particularised a claim for loss of opportunity to earn the salary of a practising lawyer of NSW and state that you reserve your position regarding any such claim against the defendants.
The Board draws your attention to s. 164(1) of the Legal Profession Uniform Law Application Act 2014 ('the Application Act') and s. 467 of the LPUL, which relevantly provide that no liability attaches to the Board or a member of the Board for any act or omission done or omitted in good faith and in the exercise or purported exercise of functions under the Application Act or the LPUL.
I am instructed that the Board will oppose any later attempt to further amend the Summons to particularise any claim for damages."
On 1 July 2020 the plaintiff filed an amended summons. In paragraph 5 of the orders sought, he claimed:
"an order for restitution as the Court thinks fit regarding the Plaintiff's loss of opportunity to practise as a lawyer admitted in NSW."
Under the heading "appeal grounds" in the amended summons, the plaintiff said, in paragraph 2:
"This summons does not particularize the Plaintiff's claim for damages for loss of opportunity to earn the salary of a practising lawyer admitted in NSW."
[18]
Consideration
The plaintiff's claim for relief includes: an appeal under s 26 of the Uniform Law; a claim for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) for error of law on the face of the record; and a claim for damages "suffered because of the impugned decision and recovery of costs". However, before turning to these matters, it is first necessary to address the plaintiff's challenges to the validity of the Uniform Law.
[19]
Alleged invalidity by reason of s 92 of the Constitution
The plaintiff argued that the requirement in the Uniform Law for a person to be admitted to practice is invalid because it is inconsistent with s 92 of the Constitution, which provides:
"On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free."
Section 78B(1) of the Judiciary Act 1903 (Cth) relevantly provides:
"Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court."
On 18 November 2020, seven days before the hearing, the plaintiff caused notices under s 78B to be served on the Attorneys-General of the Commonwealth and the States. The Attorneys of New South Wales, Western Australia, Victoria and Queensland have indicated that they do not propose to intervene. Responses are still outstanding from Tasmania, the Northern Territory, the Australian Capital Territory and the Commonwealth. It was accepted that the notice given was not sufficient to amount to reasonable notice in time for the hearing on 18 November 2020.
The appropriate test to be applied by primary judges, when faced with an argument that is said to fall within s 78B of the Judiciary Act, was expressed by Gageler J in Re Culleton [2017] HCA 3; (2017) 91 ALJR 302 at [29] as follows:
"Section 78B of the Judiciary Act does not, in my opinion, prevent me from dismissing so much of the summons as seeks to give effect to Senator Culleton's attempt to raise the constitutional objection to jurisdiction. French J made the point in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd that s 78B 'does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be'. To give rise to the obligation not to proceed without notice a cause pending in court must truly 'involve' a matter arising under the Constitution or involving its interpretation. As Toohey J stated in Re Finlayson; Ex parte Finlayson, in a passage quoted with approval by Gummow, Hayne and Callinan JJ in Glennan v Commissioner of Taxation, '[I]n terms of s 78B, a cause does not 'involve' a matter arising under the Constitution or involving its interpretation merely because someone asserts that it does'. In short, the constitutional point must be real and substantial."
[20]
Alleged invalidity founded on doctrine of restraint of trade
The plaintiff contended that the requirement for a person to be admitted to practice amounts to an unenforceable restraint of trade. The doctrine of restraint of trade, which operates to invalidate provisions of a contract or require them to be read down, is a common law doctrine. It is therefore subject to parliamentary sovereignty. The so-called restraint arises, if at all, from the wording of the Uniform Law and the Application Law. The legislation applies of its own force and not by reason of any contractual relationship between the applicant or practitioner and the Board. The evident intention of the Uniform Law is to create a monopoly by providing that only Australian lawyers (being those who are admitted) may practise law in Australia. The evident purpose of confining legal practice to those who meet the requisite standards is to protect the public. The common law doctrine of restraint of trade has no application in this context.
[21]
Alleged invalidity of s 28(2) of the Uniform Law
As set out above, s 28(2) of the Uniform Law prohibits the Court from making an order for costs against the designated local regulatory authority (such as the Board) in favour of an applicant where the appeal was not successful. The plaintiff submitted that s 28(2) was invalid under the principle enunciated in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24.
It is well established that a court ought not determine a constitutional question unnecessarily: Lambert v Weichelt (1954) 28 ALJ 282 at 283. There must be facts which necessitate the determination of the question to determine parties' rights in actual controversy: Duncan v New South Wales; NuCoal Resources Ltd v New South Wales; Cascade Coal Pty Ltd v New South Wales (2015) 255 CLR 388; [2015] HCA 13 at [52] (French CJ, Hayne, Kiefel, Bell, Gageler, Keane and Nettle JJ).
The parties accepted that this question did not presently arise, and may not arise. They agreed that it would be appropriate that I reserve the question of costs to give the parties an opportunity to consider my reasons before deciding whether the question arose for further argument. In these circumstances, it would not be appropriate to express any view on s 28(2) as I have not heard argument on its construction and the question may be moot.
[22]
Application for relief under s 69 of the Supreme Court Act
[23]
Claims in the nature of certiorari and mandamus
As referred to above, the plaintiff seeks relief in the nature of certiorari and mandamus on the basis of alleged errors of law on the face of the record and jurisdictional error.
I am not persuaded that it is necessary to address these issues since an appeal under s 26 is a de novo appeal. In Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669, the Court of Appeal considered the nature of an appeal against the cancellation of a practising certificate in the context of the Legal Profession Act 2004 (NSW) (rep), which was the statutory predecessor to the Uniform Law. The Court held that the appeal was a hearing de novo in the exercise of the Court's original jurisdiction. It is thus not necessary for the plaintiff to establish error.
By reason of the nature of the appeal under s 26, there is little if any utility in determining whether there is an error of the requisite type. Even if there were such an error, there would be no point in remitting the matter back to the Board for its determination (as the plaintiff appeared to accept) when this Court has the power to determine the matter for itself. The rights of the parties are protected by s 101(1)(a) of the Supreme Court Act which confers a right of appeal to the Court of Appeal against decisions of single judges. The powers of the Court of Appeal on such an appeal derive from s 75A of the Supreme Court Act.
The plaintiff confirmed at the hearing that the only reason he wanted these matters determined was to support his claims for restitution and costs. I am not satisfied that his claims for restitution require these claims for relief to be determined. Nor would they be relevant to costs. This Court's function is not to determine hypothetical points or points that do not lead to any substantive relief. In these circumstances, I decline to determine the plaintiff's applications for relief in the nature of certiorari and mandamus.
[24]
Allegation of apprehended bias
I note for completeness that the plaintiff also alleged that the Board's decision was affected by apprehended bias because some members of the Board were judges or barristers and might, on that basis, look askance at the application of someone who had not passed Evidence. As I understood it, the plaintiff's submission was based on the apprehension that, as barristers practise in a forensic environment where the rules of evidence apply, and that, as judges are, almost invariably, former barristers, a reasonable observer might consider that they might not bring a fair mind to the plaintiff's application.
It was common ground that, as required by Sch 3 to the Application Act, of the 11 board members, four judges of this Court (including the Chief Justice) are members as well as two barristers nominated by the Bar Association.
It is sufficient to say that I am not persuaded that it is arguable that any apprehension of bias could be created by that circumstance. The applicable test is that articulated by the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ):
"Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle."
The composition of the Board and the relevant appeal body (this Court) is provided for by the Application Act and the Uniform Law. In these circumstances, Parliament can be taken to have intended that a Board, the composition of which includes judges and barristers, would be the body which decides questions such as arise in the present case. Parliament can also be taken to have envisaged that a judge of this Court would be called upon to make such a decision on appeal, since it has been expressly provided for in the legislation.
[25]
The appeal under s 26 against the refusal of the plaintiff's application for conditional admission
In deciding whether to issue a compliance certificate to the plaintiff or to impose conditions on his admission, there are two potential issues: first, whether the plaintiff is a fit and proper person for the purposes of s 19(3)(b); and, secondly, whether he meets the academic and practical legal training prerequisites and, if not, whether he should nonetheless be granted conditional admission under s 20.
No question of an exemption under s 18 arises in the present case since the plaintiff did not contend that he should be exempted from Evidence. Indeed, he acknowledged orally:
"The condition with regards to the academic requirement in respect of evidence would allow me to practice as a lawyer and support myself through completing evidence, which I know is obviously a central feature of being a barrister for obvious reasons."
[26]
Whether the plaintiff is a fit and proper person
I am satisfied on the basis of evidence adduced by the plaintiff in support of his application for admission that he is currently of good fame and character. The only matter raised by the Board is that, as referred to above, the plaintiff has, in written submissions filed on 1 and 6 October 2020 in these proceedings, described himself as "Andrew Green, Plaintiff's solicitor". The use of the word "solicitor" creates a rebuttable presumption that the entity, in this case the plaintiff, has represented that he is qualified to practise. Thus, the description would appear to amount to a contravention of s 11 of the Uniform Law.
As referred to above, this apparent breach was brought to the plaintiff's attention by Wilson J in the course of the hearing on 22 October 2020 of the NSW Bar Association's successful application to be removed as a party to the proceedings. As far as the evidence reveals, he has not described himself as "solicitor" in subsequent documents. In these circumstances, I do not consider the breach to be sufficient to disqualify the plaintiff from being regarded as a fit and proper person, given that he would appear to have learned from Wilson J's salutary remarks. Further, he described himself in those terms in the context of proceedings in which it was plain that he was a foreign lawyer who had not been admitted as an Australian lawyer.
[27]
Whether the plaintiff ought be conditionally admitted
The other outstanding issue is whether the plaintiff meets the academic and practical legal training prerequisites and, if not, whether he should be conditionally admitted under s 20.
The considerations which are relevant to applications for exemption or conditional admission include the following:
1. the purpose of the Board's academic and practical legal requirements, which is to ensure that those admitted to legal practice, whether local applicants or foreign lawyers, meet minimum standards;
2. the applicant's previous work experience;
3. which of the subjects which the Board has required to be passed have been passed and which remain outstanding;
4. why the applicant has not passed the subject or subjects which remain outstanding; and
5. the importance of the outstanding subjects to the practice proposed by the applicant.
As set out above, the plaintiff has 11 years of post-qualification work experience in the areas of law in which he seeks to practise. During this period he worked overseas and in Australia as in-house counsel. He has only one academic subject, Evidence, and two practical legal training subjects, Trusts and Office Accounting, outstanding.
The reason his Evidence subject is outstanding is that he has failed the subject once and twice failed to sit the exam.
The plaintiff contended that the conditions on his admission which he proposed were sufficient to protect the public and that there was no reason to defer his admission pending the fulfilment of the remaining academic and practical requirements. He submitted that there was little difference in terms of protection of the public between admitting him conditionally with appropriate restrictions on his practising certificate and delaying his admission until he had completed Evidence and the practical requirements. He argued that further delay was very detrimental to his financial position and mental health and that it was not justified, given the proposed conditions.
I reject this submission. There is an important distinction between admission as an Australian lawyer and the issue of a practising certificate. I accept Ms Pham's submission that admission is the relevant gateway to the practice of the law, whereas a practising certificate is an annual licence to practise. It is significant that the Board is the relevant admitting authority (in conjunction with this Court, which makes the relevant order for admission) whereas the NSW Bar Association and the NSW Law Society are the authorities with power to issue, suspend and cancel practising certificates.
[28]
Claim for damages
The plaintiff seeks damages for "restitution". Because an amended summons, rather than a pleading, has been filed, there are no allegations which make plain the basis on which the claim is made. I have extracted above the portions of the summons and the amended summons which set out the basis for the restitutionary claim. The plaintiff consistently acknowledged in documents filed in this Court that he did not specify or particularise his claim for damages for loss of opportunity to practise as a lawyer in New South Wales.
Although his claim was expressed to be one for "restitution", the claim was in substance a claim for damages. In his written and oral submissions, the plaintiff put his claim for damages on the basis of the Australian Consumer Law and alleged that the Board was a trading corporation which had made a false representation to him. This claim has not been pleaded. In oral submissions, the plaintiff contended that the Board had made a false representation to him by including in its guide the suggestion that applicants are to propose conditions when s 20 of the Uniform Law required the Board to recommend conditions. It is difficult to see how this could amount to a false representation. Furthermore, the plaintiff has not adduced any evidence to indicate that the Board or any of its agents acted other than in good faith. Accordingly, there is no basis for supposing that the protection from liability in s 164 of the Application Act would not be available as a complete defence to the plaintiff's claim.
Further, even if the claim had been pleaded and were otherwise maintainable it could not give rise to relief since the plaintiff has not established that he has suffered any loss. It is well established that mere difficulty in assessing damages does not relieve a court from assessing them as well as it can: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83 (Mason CJ and Dawson J); [1991] HCA 54 (Amann). The plaintiff is required to prove loss on the balance of probabilities and with as much precision as the subject matter reasonably permits: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10; (2003) 77 ALJR 768, Hayne J at [39], citing Amann, at 80, 83-84 (Mason CJ and Dawson J), 138 (Toohey J), 153 (Gaudron J) and 161 (McHugh J).
However, the authorities do not provide any warrant for relieving a plaintiff of the obligation of proving loss when such material can be assumed to be readily available. The present case is far removed from, for example, a claim for damages for injuries negligently sustained to an infant where the plaintiff's loss of earnings for a lifetime need to be assessed or McRae v Commonwealth Disposals Commission (1951) 84 CLR 377; [1951] HCA 79 (McRae) where the appellants had been retained by the respondent to recover an oil tanker which had sunk to the ocean floor. In that case it turned out that there was no oil tanker in the locality provided for in the contract. The appellants' damages were assessed to include the expenditure wasted in reliance on the promise that there was an oil tanker at the locality given.
[29]
Orders
For the reasons given above, I make the following orders:
1. Dismiss the appeal under s 28 of the Legal Profession Uniform Law (NSW).
2. Otherwise dismiss the amended summons.
3. Reserve costs.
[30]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 November 2020
Parties
Applicant/Plaintiff:
Green
Respondent/Defendant:
Legal Profession Admission Board
Legislation Cited (9)
Australian Consumer Law Evidence Act 1995(NSW)
Legal Profession Act 2004(NSW)
Legal Profession Uniform Law Application Regulation 2015(NSW)
The wording of s 20 evinces a legislative intention to confer more latitude on the Board with respect to admission of foreign lawyers since the option of conditional admission is not available for applicants who are not foreign lawyers.
It was common ground that the plaintiff is a foreign lawyer within the definition in s 6 (see above), as he is admitted to practice in England and Wales.
Sections 17, 18 and 19 are to be read together. Where the applicant is a foreign lawyer, s 20 must also be read with these provisions. Thus, the power in s 18 to exempt a person (including a foreign lawyer) from compliance with the academic or practical legal training prerequisites is intended to be exercised with regard to the power in s 20 to grant conditional admission to a foreign lawyer. The relevant decision-maker (whether it be the Board or the Court) is entitled to consider the conditions that could be imposed on admission of a foreign lawyer when addressing the question of whether the lawyer has sufficient skills to be eligible for admission for the purposes of s 18.
Thus, a foreign lawyer who wishes to be admitted in New South Wales could, as part of an application for a compliance certificate under s 19, seek exemption from academic or practical prerequisites under s 18 or, in the alternative, seek conditions on admission under s 20. It would be a matter for the decision-maker whether either or none of these options is appropriate in deciding whether to grant or refuse the application.
Section 26 relevantly provides for appeals as follows:
"26 Right of appeal about compliance certificates
(1) An applicant for a compliance certificate may appeal to the Supreme Court against the refusal of the designated local regulatory authority to issue a compliance certificate.
…
(4) The Supreme Court may make any order it considers appropriate on an appeal under this section.
(5) If the Supreme Court decides that an appeal under subsection (1) should be granted, the order may include a direction that the order has the same effect as a compliance certificate provided to the Court by the designated local regulatory authority."
Section 28 provides for appeals as follows:
"(1) An appeal under this Division is to be by way of a rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence before the designated local regulatory authority may be given on the appeal.
(2) On an appeal under this Division, the Supreme Court may make an order as to costs as it thinks fit, other than an order against the designated local regulatory authority in favour of an applicant where the appeal was not successful."
It was common ground that the plaintiff did not need to establish error in the Board's decision for the purposes of an appeal under s 26: Saunders v Legal Profession Admission Board [2015] NSWSC 1839 at [41]-[42] (Schmidt J).
Although there is no provision for an appeal against the refusal of an exemption under s 18, I consider that this Court, when hearing an appeal against the refusal of a compliance certificate, has the power to exempt an applicant under s 18 or impose conditions under s 20, as the Board has when addressing the question at first instance. This conclusion flows from the relationship between the provisions addressed above. However, it is not necessary to express a concluded view on the matter as this question does not arise in the present case since the plaintiff does not seek to be exempted from Evidence or the practical legal training component. As referred to above, he merely seeks that these requirements be fulfilled post admission, as a condition of his admission, rather than pre-admission.
Part 10 of the Guide, which is entitled "Conditional admission of foreign lawyers" relevantly said:
"Applying for conditional admission
A foreign lawyer must apply for conditional admission as part of an online admission application using the Admission Portal. When lodging their documentary evidence, the foreign lawyer must also include a separate statement with information about:
(i) the nature and scope of the foreign lawyer's skills, experience, employment and responsibilities in legal practice
(ii) the nature and scope of the legal practice in which the foreign lawyer proposes to engage in Australia, and
(iii) any proposed employment, supervisory and professional support arrangements which the foreign lawyer has already made in Australia.
The foreign lawyer may also attach to their documentary evidence a statement which:
(iv) sets out the nature, scope and purpose of any conditions of the kinds set out in section 20 of the Uniform Law which the foreign lawyer considers might appropriately be attached to the certificate of compliance
(v) explains how any conditions proposed by the foreign lawyer will assist the foreign lawyer's practice in Australia and why the conditions may be appropriate in the circumstances.
If you are considering applying for conditional admission, you are welcome to contact the Office of the LPAB to discuss your particular circumstances with the Executive Officer, before you lodge your application.
Determining an application for conditional admission
Under procedures agreed between the admitting authorities of jurisdictions which are participating in the Legal Profession Uniform Law framework:
a) the LPAB is not required to recommend any condition proposed by the foreign lawyer
b) the LPAB may recommend one or more other conditions of the type referred to in section 20(1) of the Uniform Law if the LPAB considers that such conditions:
i. may assist the foreign lawyer to adjust to practising law effectively and efficiently in Australia
ii. may help to ensure that the foreign lawyer provides legal services of an appropriate professional quality and standard to clients in Australia, or
iii. are appropriate for any other reason
c) before deciding to recommend any conditions, the LPAB will refer the foreign lawyer's application and any conditions proposed by the LPAB to the admitting authority in each other participating jurisdiction and to the practice regulator in NSW for comment
d) after considering any comments, the LPAB may issue a compliance certificate with respect to such a foreign lawyer, subject to such conditions recommended by the LPAB, if the LPAB is satisfied that the foreign lawyer is also a fit and proper person to be admitted to the Australian legal profession
…
Refusal of conditional admission
Examples of common reasons for the Board refusing to recommend to the Supreme Court that a foreign lawyer be admitted subject to conditions include that:
• the applicant has no employment, supervisory or professional support arrangements in place in Australia, or
• the conditions proposed by the applicant would not adequately protect consumers of legal services and the administration of justice, in the absence of the applicant having met the academic prerequisite for admission, or
• it would be impractical for the applicant to avoid practice that pertains to the academic areas of knowledge in which the applicant has not completed studies.
An applicant who is refused conditional admission will usually be able to apply separately for unconditional admission, after meeting the academic and/or PLT prerequisites.
…"
In his application he proposed conditions on his admission as follows:
"Proposal on appropriate other conditions which would be applicable to my admission as a lawyer of NSW
Given my considerable civil litigation experience from the UK (nearly 8 years) and my civil & criminal litigation experience in Australia on private client matters (over 4 years), I propose that the appropriate other conditions which would be applicable to my conditional admission as a lawyer of NSW:
- I must complete the College of Law's PLT course of Trust & Office Accounting and Ethics & Professional Responsibility within 1.5 months of this application.
- I only engage in legal practice under supervision from an experienced lawyer or partner holding an Australian practising certificate during the first 3 months of my post-admission legal practice.
- if I practice as an employee of a company in legal practice, I must hold or be covered by an approved professional indemnity insurance policy (unless exempted).
- if I practice as a principal of a law practice (i.e. unsupervised) in NSW, I must hold or be covered by an approved professional indemnity insurance policy (unless exempted).
- Until I have passed Evidence, in any matter involving the initiation of litigation proceedings to resolve the dispute, I must not issue advice to a client unless, prior to the advice being issued to the client, it has been reviewed by an experienced lawyer or partner holding a valid Australian practising certificate."
The plaintiff contended in his application to the Board that the grant of conditional admission would enable him to secure employment and complete the required academic studies.
Before his application for conditional admission (which had been first submitted in January 2019) was complete and therefore able to be considered by the Board, the plaintiff made two further applications to the Board which are summarised below.
By letter dated 17 September 2019 the Board wrote to the plaintiff and informed him that his application had been considered by the Performance Review Sub-Committee which had decided that he must sit Evidence in the March 2020 examinations, and that he was not entitled to sit for any other subject in the March 2020 examinations. The letter concluded:
"Should you not comply with the above decision you will be excluded from the course."
The Board's records establish that the plaintiff has enrolled in Evidence on three occasions: 2 May 2018, 26 October 2018 and 16 October 2019. In 2018 the plaintiff failed to sit the Evidence examination, although he was enrolled in the subject. In 2019 the plaintiff sat the Evidence examination and failed as he obtained a mark of 41%. In 2020 the plaintiff again failed to sit the Evidence examination, although he was enrolled in the subject.
On 7 April 2020, the Board resolved to refuse the plaintiff's application for conditional admission and to advise him that he may apply for unconditional admission upon completion of the academic and practical training requirements for admission.
The Board notified the plaintiff by letter dated 8 April 2020. Its reasons are apparent from the following passage:
"The Board concluded that use of the section 20 provisions for conditional admission is not appropriate in your particular case because:
1. You do not have employment and supervision arrangements in place
2. You did not propose clear conditions of the kind set out in section 20(1)(a) to (e) of the Legal Profession Uniform Law (NSW)
3. You have twice attempted but not yet passed the subject of Evidence in the LPAB's Diploma in Law course."
In schedule 1 to the amended summons, the plaintiff said:
"The Plaintiff does not specify its [scil, his] claim for damages for loss of opportunity and reserves its position regarding any such claims."
He also said that he sought relief which included:
"an order for restitution as the Court thinks fit regarding compensating the Applicant for the loss of opportunity to practise as a lawyer of NSW."
In written submissions filed in these proceedings on 1 and 6 October 2020, the plaintiff described himself as "Andrew Green, Plaintiff's solicitor".
On 22 October 2020, the notice of motion filed by the NSW Bar Association was heard by Wilson J. After delivering an ex tempore judgment and making orders that the NSW Bar Association be removed as a defendant, her Honour cautioned the plaintiff about describing himself, as he had done in his submissions, as a "solicitor". Her Honour said, as is recorded on the transcript:
"In these proceedings, on various formal court documents that you have signed, you have done so in the capacity of 'solicitor for the plaintiff'. There is some information in the material connected with your former employment which could lead someone to conclude that you have held yourself out to be a lawyer able to practice in New South Wales. As you clearly understand, you are not a solicitor admitted to practise in New South Wales. If there was a conclusion from a regulatory authority that you were holding yourself out as a solicitor able to practice in New South Wales, that is to commit an offence which carries, on conviction, not just a fine, but a term of imprisonment set at a maximum of two years. So, in future legal proceedings and in any activities in which you are engaged that have a legal flavour, can I caution you against characterising yourself as a solicitor. You are not a solicitor in New South Wales and, if you hold yourself out in that capacity, you put yourself at risk of being prosecuted and even gaoled."
In subsequent documents filed on behalf of the plaintiff, being his submissions filed on 3 and 5 November 2020, he has changed the description to read as follows:
"Self-represented Plaintiff and solicitor qualified in England and Wales".
It was not suggested that the most recent description involved a breach of the Uniform Law.
Accordingly, it is necessary to determine whether the issue raised by the plaintiff concerning the interpretation and effect of s 92 of the Constitution is a "real and substantial" issue such as would require me not to proceed with that aspect of the case until adequate notice has been given to the Attorneys-General.
In Cole v Whitfield (1988) 165 CLR 360; [1988] HCA 18 the High Court found that s 92 prohibits laws that discriminate against interstate trade or commerce in a protectionist sense. Applicants for admission, whether they were trained in New South Wales, elsewhere in Australia or fall within the definition of foreign lawyer in s 6 of the Uniform Law are required to fulfil the statutory requirements for admission. There is, thus, no relevant discrimination which operates in an interstate context: cf. Street v Queensland Bar Association (1989) 168 CLR 461; [1989] HCA 53 where the High Court held that a state cannot impose limits on professional practice qualifications on grounds that a person is not permanently residing in that state. The plaintiff is, relevantly, in no different position from a local applicant or an applicant who was trained in a different jurisdiction within Australia, except that he has the additional avenue of conditional admission pursuant to s 20 as he is a foreign lawyer. It is open to the legislature to distinguish between applicants who are foreign lawyers and those who are not. Section 92 has no relevant operation in this setting.
I am not persuaded that the plaintiff has raised any arguable basis on which it could be said that the Uniform Law operates in a way which results in factual or legal discrimination. I do not regard the submissions made by the plaintiff based on s 92 as raising any "real or substantial" constitutional point. For this reason, s 78B of the Judiciary Act does not prevent my continuing to hear the matter or determine the point.
In so far as the plaintiff's submission implicitly extended to me (as a Judge of this Court who was a barrister), I reject the submission for the reasons given above. In any event, I did not understand the plaintiff to have made any application that I recuse myself on this basis. It is not necessary to address this question further.
The distinction is also evident both at the commencement of practice and at its end-point. For example, there are several bases on which a practising certificate may be suspended, cancelled or not renewed (see Part 3.5) but the only real basis on which a lawyer's name can be removed from the roll (being the opposite of admission) is if the person is regarded as permanently unfit to practise: Prothonotary of the Supreme Court of New South Wales v Ritchard (Court of Appeal (NSW), 31 July 1987, unrep) at 1-2 (McHugh JA), cited with approval in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [26] (Spigelman CJ, Mason P and Handley JA agreeing). If a person whose name has been removed from the roll seeks re-admission, it is necessary to persuade the Court that the presumption of probable permanent unfitness has been displaced: Ex Parte Lenehan (1948) 77 CLR 403 at 422; [1948] HCA 45 (Latham CJ, Dixon and Williams JJ).
Section 15, identifies the protection of the administration of justice and of clients as the objective of the system of admission of persons to legal practice created by Part 2.2. Subject to one significant exception, admission as a lawyer is warranted only when a person meets certain standards of competence in a wide range of areas of law which are regarded as central to legal practice. While many groups within the profession tend towards specialisation, it is very much in the public interest that, at least at the moment of admission, the putative Australian lawyer is educated in the law as a whole. Just as the public is entitled to expect every medical practitioner to be sufficiently educated in the principles of anatomy, it is entitled to expect that every admitted legal practitioner is competent in the fundamental subjects set out in Sch 1 to the rules (which are listed above).
The exception to the principle is provided for in s 20 which permits the Board to recommend conditions on the admission of foreign lawyers. Conditional admission may be appropriate, for example, if an in-house lawyer for a German pharmaceutical company is transferred to Australia for a limited period to negotiate a contract for a COVID-19 vaccine. In such circumstances, the Board might recommend conditions under s 20 which limit the rights of the applicant to practise law to advising that pharmaceutical company under supervision of an Australian lawyer with an unrestricted practising certificate.
Given the plaintiff's acceptance that he must pass Evidence, the only difference between his contention and that of the Board's is as to whether he must pass evidence before or after admission. Although the plaintiff has asserted that he will be more employable if he is admitted than he is presently, I do not necessarily accept that to be the case. However, in any event, it is important that this Court does not, by acceding to applications such as the present; undermine the basic foundation of legal practice under the Uniform Law, which, as referred to above, is that a person must meet particular standards in a wide range of areas before the person is entitled to be admitted. If the past is any guide to the future (and it may be the best available guide: see Minister for Immigration v Guo (1997) 191 CLR 559 at 576; [1997] HCA 22), it cannot be assumed that the plaintiff will pass Evidence by any particular date. Thus any condition on his admission which specified a date for the passing of the exam (as would be necessary) would render him susceptible to breach, thereby giving rise to the prospect that the plaintiff's name would be removed from the roll by this Court: s 20(4).
I am not persuaded that s 20 ought be used as an alternative pathway to the plaintiff's admission, in circumstances where he does not meet the criteria in s 17 for a compliance certificate. The interest in protecting the public would be better served by requiring the plaintiff to complete Evidence (and the other practical legal training requirements) before his admission. While the case of each applicant is to be determined on its merits, I am not persuaded that there is anything about the plaintiff which would warrant an exception being made in his case from the general principle that he must establish the relevant competence as a condition precedent to his admission. I accept Ms Pham's submission that the Board and this Court can take into account the applicant's employment in determining whether conditional admission is appropriate since this is relevant to the protection of the public.
The plaintiff contended, in the alternative, that the Board ought to have proposed its own conditions to allow him to be conditionally admitted. He argued that the wording of s 20 placed an onus on the Board to recommend conditions and that the Board had failed to do so in the present case. This submission reflects a misunderstanding of the purpose and effect of s 20, which is an option available to the Board in the case of applicants who are foreign lawyers. A foreign lawyer who can meet the academic and practical requirements will not need to seek conditional admission under s 20. A foreign lawyer who cannot meet those requirements is in a position whereby he or she can propose conditions which are designed to meet the objective in s 15 notwithstanding that the requirements are not met. Although the Board is, if the conditions put forward by the applicant are acceptable, the entity which recommends those conditions to this Court, as the admitting court, it will generally be for the applicant, as the proponent of conditional admission, to set out the conditions to which his or her admission would be subject. It is no part of the Board's role to work out for an applicant how he or she could be admitted, but rather, the Board's function is, relevantly, to discharge the duties and perform the functions conferred on it by the Uniform Law in the system of admitting persons to legal practice under Part 2.2 of the Act.
It is significant that a breach of a condition on admission is a ground on which a person's name may be removed from the roll: s 21(4). In these circumstances, the role of the applicant in proposing conditions serves a practical purpose as well as ensuring procedural fairness.
For these reasons, the appeal must be dismissed.
In his affidavit of 25 September 2020, which was in the form of submissions, the plaintiff claimed past economic loss of a "gross salary of $209,100" and future economic loss from 19 July 2019 on the basis that the (non-legal) position he had held from July 2018 had been made redundant. He contended in that affidavit that, if the compliance certificate had been granted by the Board the plaintiff would have continued in his previous role as an admitted lawyer. I understood the plaintiff ultimately to accept that he had adduced no, or insufficient, evidence to permit the Court to determine the difference, if any, between the position he was in now and the position he would have been in had the Board issued a compliance certificate which would have enabled him to be admitted. On this basis, I understood the plaintiff to abandon his claim for economic loss.
Nonetheless the plaintiff pressed a claim for damages for distress and disappointment on the basis of Moore v Scenic Tours Pty Ltd [2020] HCA 17; (2020) 377 ALR 209 (Moore). In Moore, the High Court followed Baltic Shipping Co v Dillon (1993) 176 CLR 344; [1993] HCA 4, where the Court held that damages for disappointment and distress could be recovered in an action for breach of contract where the object of the contract (in that case to provide a holiday) was to provide pleasure or relaxation. Moore provides no basis for such an award in the present case. There is no contract between the plaintiff and the Board and no conceivable analogy between practising law and going on a holiday.
In these circumstances, the plaintiff has failed to prove that he has suffered any compensable loss. Accordingly, his claim for "restitution" must fail.