Levick v Law Society of New South Wales

· The matters set out in paragraphs 5.2.4 to 5.5 and annexure L, M, N, O and P of the investigator's report." 3 On the date on which the Council resolved to cancel the plaintiff's practicing certificate it also resolved to make application for the appointment of a receiver of the property of the plaintiff pursuant to s 92 of the Act. 4 In accordance with the resolutions of the Council of the Law Society, a summons was filed on 29 November 2000 (No. 13184/00) in which the Law Society sought the appointment of a receiver to the trust property of the plaintiff. 5 On 7 December 2000, the plaintiff appealed against the cancellation of his practicing certificate by a summons (No. 13250/00) in which he sought an order: " That the whole of the decision of the Council of the Law Society of New South Wales purporting to cancel the practicing certificate of plaintiff pursuant to Sections 37(1)(b&f) of the Legal Profession Act be quashed." 6 The appeal is a full appeal in the sense that it is a hearing of the matter de novo to determine whether the practicing certificate should in fact have been cancelled (Builders Licensing Board v Sperway Construction (Syd) Pty Ltd (1976) 135 CLR 616; Dennis v The Law Society of NSW (Court of Appeal (NSW) 17 December 1979 per Moffitt P with whom Reynolds and Glass JJA agreed); Romero v Council of the Law Society of New South Wales, Supreme Court (NSW) 31 January 1996 pre Dowd J; A Solicitor v Law Society of New South Wales ,25 January 2000 per Rolf J). Both parties are therefore entitled to adduce evidence relevant to the Order that the Court should make pursuant to s.38B of the Act.

7 By Notice of Motion dated 7 December 2000, the plaintiff moved for a stay of the decision of the Council of the Law Society pending the hearing of his appeal and for an order that he be allowed to practice as a solicitor with the restriction that he not conduct or operate a trust account. An order was made that the action instituted by the Law Society (No. 13184/00) and that instituted by the plaintiff (No. 13250/00) be tried together with evidence in each of the actions being evidence in the other. Subject to conditions, a stay was granted in respect of the determination of the Council of the Law Society to cancel the plaintiff's practicing certificate. The matter was then adjourned to enable the plaintiff to fulfil undertakings given to the Court that he would give all proper assistance to the Receiver who had been appointed in respect of the trust property of his practice and to the Law Society in respect of its investigation of his affairs whilst practicing under the firm name of Wayne Levick and Associates. 8 The plaintiff was ordered to effect any amendments to his summons, provide particulars by 13 February 2001, to file any further affidavits on which he proposed to rely by 14 February 2001 and comply with certain other conditions, including providing a complete response to a request for information made by the Receiver in relation to an alleged deficiency of $32,029.32. The matter was then adjourned until 16 February 2001. 9 Although the plaintiff had initially represented himself, he later retained the services of an experienced solicitor who continued to act on his behalf until 22 January 2001. On that date, the plaintiff's solicitor gave notice that she was ceasing to act because she had given her client "certain advice, which advice he failed to accept". Since that date the plaintiff has represented himself. 10 On 13 February 2001, the plaintiff filed an amended summons seeking an order that his practicing certificate be restored. The grounds on which the relief was based were that:

1. The decision of the Law Society "was inappropriate in the circumstances".

2. The decision of the Law Society "was excessive in the circumstances".

3. The practicing certificate "should not have been cancelled".

4. The decision of the Law Society "has been based on mala fides". 11 By the adjourned date of 16 February 2001, the plaintiff had not complied with all the undertakings given to, nor with all the orders made by, the Court. Further orders were then made in relation to the provision of detailed responses to outstanding issues including matters referred to in reports prepared by the Receiver dated 24 January 2001 and 14 February 2001. 12 Because of the exigencies of the Court's lists, the matters could not be listed for further hearing again until 22 June 2001. On that date, the plaintiff had still not complied with a number of the orders that had been made, nor with certain of the undertakings that he had given. Notwithstanding this, on 24 May 2001 he gave notice under s 78B of the Judiciary Act 1903 to the Attorneys General of the Commonwealth, of each of the States and of the Australian Capital Territory and the Northern Territory, that he proposed to contend at the resumed hearing that the appointment of the person who was Governor of the State of New South Wales at the time of the enactment of the Act was "defective and void since the source of his authority derived directly from a Royal prerogative, which did not and does not exist in Australian legislation or law." He also informed the Attorneys General that he proposed to argue that the Act was "defective and void" and that "the laws pertaining to the use of the Royal Sign Manual, under which the commission of appointment of the Governor of New South Wales is issued are solely domestic laws of the United Kingdom and therefore lie outside the jurisdictional authority of the courts of the State of New South Wales". 13 The plaintiff also foreshadowed in his notice that a notice under s 40 of the Judiciary Act 1903 may be filed in the High Court. No such application was filed. 14 The Attorney General for New South Wales decided to intervene in the proceedings. None of the other Attorneys General responded to the plaintiff's notification. 15 As at 22 June 2001, a deficiency of $56,988.44 in the plaintiff's trust account had been reported and remained unexplained. In addition, no assurance was given by the plaintiff that he would rectify failures on his part, to comply with orders and undertakings although such failures had then been extant for some months. As I had concern about the trust account deficiency revealed in the Receiver's report of 14 February 2001 and lack of confidence that the plaintiff would take adequate steps to rectify the deficiency in the trust account or overcome his failures to comply adequately with his undertakings and the orders of the Court, the question of any continuation of the extension of the stay of the decision of the Law Society was considered. 16 The practicing certificate then held by the plaintiff was due to expire on 30 June 2001, and in the circumstances the existing stay was revoked and any further stay refused. The further hearing of the matter was then stood over to a date to be fixed, the plaintiff indicating that he did not propose to make application to the Law Society for the renewal or grant of a practicing certificate. 17 Thus, as at 22 June 2001 the situation was that a Receiver had been appointed to the legal practice known as Wayne Levick and Associates, an inadequacy of accounting records had been asserted by the Receiver and a deficiency in the trust account had been reported. As from that date, the plaintiff had ceased to be the holder of a practicing certificate under the Act and had indicated that he did not propose to seek a practicing certificate or to practice as a solicitor. 18 The matter came on for final hearing on 3 and 4 December 2001. On 3 December 2001 the plaintiff sought a further adjournment of his appeal. For reasons set out in a judgment given on that date (a copy of which is attached) a further adjournment was refused.

19 On 4 December 2001 the plaintiff sought an amendment to the Summons by substituting for the relief as already amended, further relief in the following terms: "i. An order that if the Legal Profession Act is invalid, these proceedings be dismissed save as to the issue of costs and economic loss. (ii) An order that if the Legal Profession Act 1987 is a valid law the defendant issue a Practicing Certificate to the plaintiff upon undertakings by the plaintiff not to operate a Solicitor's Trust Account." 20 A decision in relation to the amendment was deferred to be dealt with in conjunction with the decision in the appeal as already constituted.

FACTS 21 The reports prepared by the Receiver reveal a deficiency in the plaintiff's trust account of $56,988.44. It has not been the subject of any satisfactory explanation from the plaintiff. I accept that there is such a deficiency. Furthermore, I am satisfied from the evidence of the Receiver that the plaintiff failed to maintain his trust account records in such a way as to disclose the true position in relation to the monies received by him in respect of the companies referred to in the resolution of the Council of the Law Society of 28 November 2001. I am also satisfied that the plaintiff failed to keep his trust accounting records in a manner that enabled them to be conveniently and properly audited in respect of such companies. 22 Raymond John Collins, solicitor, who is the Manager of the Professional Standards Department of the Law Society of New South Wales, gave evidence concerning the resolution of the Council of the Law Society of 28 November 2001. I accept his evidence that the plaintiff failed to enrol in and complete the Solicitors Trust Accounting course by 30 October 2000, although he did enrol in and complete the course at a later date. But, as stated by Mr Collins and as is common ground, the plaintiff failed to achieve a mark of at least 75% in such Course. It was conceded in correspondence that he had achieved a mark of only 41%. The plaintiff's complaint was that he should have been given a further opportunity to reach the agreed mark rather than have action taken against him on this ground. 23 I am satisfied that the plaintiff failed to comply with a condition of his practicing certificate to which he had consented, namely that he successfully complete (with a pass mark of at least 75%) the relevant Trust Account Course.

24 The factual bases of the grounds relied on by the Law Society for cancelling the practicing certificate of the plaintiff as specified in its resolution of 28 November, 2000 are thus made out. 25 The plaintiff then relied upon three submissions:

1. The Law Society did not have the power to cancel the plaintiff's practicing certificate.

2. There was no power in the Law Society to issue practicing certificates to, or to licence legal practitioners to practice as, solicitors in New South Wales.

3. Such lack of power was because the Act is invalid. 26 In support of this, the plaintiff argued that:

(a) The Australia Act, 1986 (C'wth) was an enactment of the Federal Parliament, and under s 7 of that Act, the powers to appoint Governors of the States were ceded to, and taken over by, the Commonwealth. This had the consequence that Governors of the various States, and relevantly the Governor of New South Wales, had to be appointed by an instrument of appointment sealed with the Seal of the Commonwealth, not the Seal of the State of New South Wales. The argument then proceeded that since Air Marshall Sir James Rowland, the Governor who assented to the Act, had been appointed under the Seal of the State, his appointment was invalid and hence his actions in assenting to the Act had no effect in law.

(b) There are no empowering documents or legislation issued by the Government or Parliament of the United Kingdom enabling the Queen of Australia to use the Royal prerogatives granted to the Queen of the United Kingdom and in particular no such documents or legislation empowering the Queen of Australia to use the Royal Sign Manual. 27 In the course of the argument, the plaintiff contended that as from 1986 no statutes passed by the New South Wales Parliament were valid. Furthermore, he contended that as at the date of the Australia Act 1986, any commission of the Governor that may then have been in force was revoked and indeed, at one stage it was argued that the State of New South Wales, as well as the other States of the Commonwealth, had ceased to exist. When pressed on this, the plaintiff contended that since the signing of the Treaty of Versailles in 1919, the Commonwealth of Australia as constituted under the Commonwealth Constitution had ceased to exist, that there were no States of the Commonwealth and that there were no valid laws in Australia, other than perhaps the common law of Australia. These submissions are essentially the same as some advanced by the plaintiff in a matter in which he appeared as solicitor for the parties, namely Matchett v Deputy Commissioner of Taxation (two cases) and Lattimore v Deputy Commissioner of Taxation (2000) 158 FLR 171. His submissions in that case were rejected. Like arguments were also rejected by Callinan J in Dooney v Henry (2000) 74 ALJR 1289. I adhere to the views expressed in Matchett v Deputy Commissioner of Taxation and Lattimore v Deputy Commissioner of Taxation (supra) and accordingly am of opinion that the submissions referred to above are without substance and should be again rejected. 28 During the course of argument the submission that as a result of the Australia Act 1986, the power to appoint the Governor of a State was vested in the Governor General of the Commonwealth was withdrawn. Notwithstanding this however, it was still contended that Her Majesty the Queen had no power to appoint a State Governor and at one stage the plaintiff returned to the proposition that the power to appoint a State Governor was vested in the Commonwealth.

29 The above submission does not sit well with s 7 of the Australia Act 1986 nor with s 9A of the Constitution Act 1902 (NSW). 30 Section 7 of the Australia Act 1986 (C'wlth) expressly provides that each State shall have a Governor who shall be her Majesty's representative in the State. The power to appoint the Governor of a State is not one which may be exercised by the Governor him/herself (s 7(2)). That power is reserved to Her Majesty (s 7(3); Constitution Act 1902 (NSW), s 9A). Furthermore, for the purposes of the exercise of the power to appoint a Governor, Her Majesty is required to act on the advice tendered by the Premier of the relevant State (s 7(5)), even if she exercises such power whilst personally present in such State (s 7(4)). The Commonwealth has no part to play in the formulation or tendering of advice as to the person to be appointed as a State Governor, nor does it have any part to play in the appointment itself.

31 In my opinion, the form of s 7 does not bear the construction contended for by the plaintiff and the submission based on such construction is rejected.

32 One further matter was advanced in respect of the effect of s 7, namely that since s 7(1) provides that: "Her Majesty's representative in each State shall be the Governor".

and this provision operates only from the date on which the Australia Act 1986 came into force, the absence of the word "is" or the words "is and remains" in s 7(1) has the effect that on the coming into force of the section, the tenure of the Governor in each State of Australia was vacated. I do not agree with this contention. The purpose of s 7(1) is to state the nature of the role or capacity in which the Governor of a State acts. He or she is the representative of the Sovereign in the State with all the powers and functions of the Sovereign except the power to appoint the Governor of the State. The purpose of the s 7(1) is not to define the term of office of a Governor nor to define the method of appointment of a Governor of a State. The absence of any express words dealing with the continuance in office of State Governors who were in such position at the time of the enactment of the Australia Act 1986 is because the continuance in office under the Constitutions of the various States is assumed. Such an assumption is also inherent in the extension by s 2(1) of the legislative powers of Parliaments of the States so as to give extra territorial operation to such laws (see paragaph 35 below), thus reversing the territorial limitation on State powers that was held to apply in Macleod v Attorney General for NSW (1891) AC 455. A like assumption is inherent in the repeal of the power of the Crown to disallow legislation passed by the Parliament of the State that has been assented to by the Governor of the State (s 8). This disallowance applies "after the commencement of (the Australia) Act" 33 As was pointed out by Callinan J in Dooney v Henry (supra), the Constitutional provisions dealing with the situation of Australia, the Parliament of the United Kingdom and the States of Australia, consisted of a package of provisions enacted in Australia, the United Kingdom and the several States. One such provision was the insertion of s 9A into the Constitution Act 1902 (NSW). That section provides for the continuance of a Governor of the State (s 9A(1)). The appointment of a person to the office of Governor is to be effected "under Her Majesty's Sign Manual and the Public Seal of the State" (s 9A(2)). These provisions not only continue the office of the person occupying the position of Governor at the time of coming into effect of s 9A, but thereafter regulate, indeed mandate, the mode of appointment. Such appointment is made by Her Majesty and because of the provisions of s 7(3) and 7(5) of the Australia Act 1986, the appointment is to be effected in accordance with advice tendered by the Premier of the State. The section expressly recognises both the Royal Sign Manual and the Seal of the State as the appropriate means of authenticating the appointment of the Governor of a State of the Commonwealth.

34 In my opinion the arguments referred to in paragraph 32 above fail. 35 The plaintiff sought to meet such a conclusion by contending that s 9A of the Constitution Act 1902 (NSW) was invalid. This was said to be in part because the State of New South Wales had ceased to exist in 1919, and in part because the power to appoint a Governor of a State had been ceded to the Commonwealth. I have already rejected both these arguments. They are without substance, indeed they are, in my opinion, tending towards the vexatious. Furthermore, s 9A of the Constitution Act 1902 (NSW) was inserted by Act No 57 of 1986, which was assented to on 20 May 1986. This was after the Royal Assent had been given to the Australia Act 1986 (Cth) on 4 December 1985 and after that Act had been proclaimed to commence. Section 2(1) of that Act provides: "It is hereby declared and enacted that the legislative powers of the Parliament of each State include full power to make laws for the peace, order and good government of that State and have extra-territorial operation." 36 Section 9A is such a law. It is sanctioned by the Australia Act 1986 (Cth) and by the United Kingdom Parliament in the enactment referred to in the Schedule to the Australia (Request and Consent) Act 1985 (Cth). An Act in the form specified in the schedule was passed by the Parliament of Westminster on 17 February 1986 (1986 C2). There can be no question as to the power of the Commonwealth to enact s.2(1) of the Australia Act 1986 nor as to its effectiveness. It is an exercise of the power of the Commonwealth conferred by s.51(xxxviii) of the Commonwealth Constitution. The submission to the contrary advanced by the plaintiff involves the consequence that the combined Sovereignty of the Commonwealth, the State of New South Wales and the Parliament of the United Kingdom is not apt to include the package of provisions that was enacted in Australia, New South Wales and the United Kingdom in 1986 to give effect to changes to the constitutional relationships between those entities. Such a consequence flies in the face of reality. In my opinion the submission that there was no basis in law to support s.9A of the Constitution Act 1902 (NSW) is without substance. Section 9A of the Constitution Act, 1902 is undoubtedly valid. Such a conclusion accords with the statement made by the Attorney General for the Commonwealth, Mr Lionel Bowen, in his Second Reading Speech of 13 November, 1985. In that speech he said: "… I emphasise that nothing in the legislation will impair the position of the Queen as Queen of Australia. In fact the Queen instead of being formally advised on State matters by United Kingdom Ministers, will now be advised direct by State Premiers in her exercise of the power conferred."

The argument advanced by the plaintiff to the contrary fails. 37 The plaintiff further contended that the use by Her Majesty of the Sign Manual was an exercise of the prerogative and that since the Bill of Rights Act 168, there were only four prerogatives of the Crown extant, none of which applied in Australia. Such submission is inconsistent with s 9A of the Constitution Act 1902 (NSW) and no authority was advanced to support it. Furthermore, the submission was made by the plaintiff without reference to the statute in question. A perusal of that statute negates the submission. Far from providing that there shall be only four royal prerogatives, the Bill of Rights Act 1688 (1 Will & Mary c.2.) states that certain powers of the Crown asserted by King James II are "pretended powers" and are illegal. These include the pretended power of the Sovereign to suspend laws or the execution of laws, the pretended power of the Sovereign to dispense with laws, the "pretence of prerogative" of levying money for or to the use of the Crown without grant of Parliament and the raising or keeping of a standing army within the Kingdom in time of peace "unless it be with consent of parliament." The Bill of Rights Act 1688 is silent about royal prerogatives properly so called, and certainly makes no provision adverse to the use of the Royal Sign Manual as a means of authenticating that an instrument to which it is affixed is the instrument of the Sovereign. Furthermore in New South Wales, as already observed, insofar as the appointment of a Governor is concerned, the use of the Sign Manual by the Sovereign is recognised, indeed mandated, by s 9A of the Constitution Act 1902 (NSW). 38 The argument of the plaintiff based on the Bill of Rights Act, 1688 is without foundation and is rejected.

39 In the light of the foregoing conclusions it is appropriate to return to the application for leave to further amend the Summons which was made by the plaintiff on 4 December 2001. I have already concluded that the Act is not invalid. As a consequence even if the amendment were allowed, the relief claimed in the proposed new paragraph 1 of the Summons would be refused. To allow the amendment would therefore be pointless. Furthermore the matters of substance sought to be raised by the proposed further amended first paragraph are already comprehended by the arguments advanced under Summons in its existing form.

40 The amendment which proposes a new paragraph 2 to the Summons seeks an order which in my opinion is beyond the power of the Court to make. The jurisdiction of the Court is an appellate jurisdiction, albeit in the nature of a re-hearing in respect of the subject matter, namely cancellation of an existing certificate. The power to issue practising certificates to solicitors is conferred on the Law Society, not on the Supreme Court and the power of the Court to make orders does not extend to the Court being substituted for the Law Society in that regard. As a consequence were the further amendment sought to paragraph 2 of the Summons to be allowed it would necessarily be dismissed.

41 Since there is no utility in allowing the amendment sought on 4 December 2001, I am of opinion that the amendment sought should be refused. CONCLUSIONS

42 1. The Legal Profession Act 1987 is a valid enactment of the legislature of New South Wales and is, and at all material times has been, an effective law of the State.

2. The notice given by the defendant to the plaintiff on 28 November 2000 was authorised by the Legal Profession Act 1987.

3. The grounds included in such notice have been established.
4. There is no basis on which the Court should set aside or otherwise interfere with such notice.

5. The plaintiff no longer has a practicing certificate under the Legal Profession Act, and is not entitled to practise as a solicitor within the State of New South Wales.

6. For the reasons set out above, I am of opinion that the summons should be dismissed with costs. ORDERS 43 1. Amendment to Summons sought on 4 December 2001 refused.
7. Summons dismissed.
8. The plaintiff is to pay the defendant's costs of the Summons. **********

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