Picos v Council of the Law Society of New South Wales

1. The applicant's application for an injunction be refused.
2. The applicant pay the respondents' costs of the application to be taxed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THOMAS J: 1 This application is made pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act). 2 The applicant claims the following relief: 1. Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, terminate the licence to practice law held by the Applicant, including but not limited to by refusing to renew it beyond 30 June 2022. … 3 Section 46PP of the AHRC Act gives the Court power to grant interim relief, in an appropriate case, to an applicant who has a pending complaint with the Australian Human Rights Commission and, by reason of that fact, is unable to bring substantive proceedings in the Court. 4 The applicant, an Australian legal practitioner, seeks to preserve her status pending resolution of a complaint to the Australian Human Rights Commission. The applicant seeks to maintain her status as at 13 June 2021, the date the complaint was made. 5 The applicant must show: (a) a prima facie case of sufficient strength to justify the preservation of the status quo; and (b) the balance of convenience and justice favours the injunction sought. 6 The Court must make an assessment for the purpose of deciding whether the applicant has made out a prima facie case of sufficient strength to justify the grant of the interlocutory injunction. It is also necessary to assess the strength of the case in the context of the assessment of the balance of convenience and justice: see Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [87]-[88] and Warner-Lambert Company LLC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59 at [70]. 7 A number of submissions were made regarding the medical evidence. 8 These reasons do not seek to consider that evidence as it is not directly relevant to the issue under consideration concerning discrimination and, in any event, not all evidence was before the Court. 9 The medical evidence, which goes to the question of whether the applicant is "currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner", would be relevant in relation to the consideration of any application for an Australian practising certificate, if one is made. 10 Counsel for the respondents submitted a number of times that the respondents do not urge the Court to make a finding about whether the applicant is or is not presently fit to hold an Australian practising certificate. Rather, the real issue was submitted to be whether or not, if the applicant makes an application for a new practising certificate, the Council of the Law Society of New South Wales (the Law Society Council) should be permitted to consider that question as it is required to do under the Legal Profession Uniform Law (NSW) (the LPUL) following the Law Society Council's usual processes or whether the Court should take that out of the Law Society Council's hands to appoint and compel the Law Society Council to issue the certificate: see, for example, transcript p 13 ll 35-41. 11 The respondents refer to the affidavit of Ms Meaghan Lewis (at [33]) where there is an outline of what process would be followed if an application were lodged by the applicant for a 2022/2023 financial year practising certificate. 12 This is said to include the following: … a member of the Law Society's Professional Standards Department would be appointed to prepare a report for the Law Society Council, analysing all the available information relevant to the applicant's fitness to hold a practising certificate. Based on the way the Professional Standards department usually handles applications for practising certificates by practitioners with complicated health conditions, I would expect the report to: a. include analysis of Dr Diamond's report; b. consider the application and any disclosures made by the applicant; c. consider whether future information and steps should be taken under rule 12 of the General Rules or s 95 of the Uniform Law; d. consider whether the applicant was a fit and proper person to hold a practising certificate; e. consider whether the applicant should be issued with a practising certificate on conditions including that she establish a therapeutic relationship with a psychiatrist for regular consultations and reporting to the Law Society Council. 13 The affidavit continues (at [34]): "The report would be provided to the members of the Law Society Council for their consideration and decision". 14 The hearing of the present application took place over three days on 10 June, 16 June and 17 June 2022. 15 Each party filed written submissions in advance of the hearing. At 8.50 pm on 15 June 2022, the applicant lodged for filing submissions which withdrew the oral submissions made by the applicant on 10 June 2022. The application has been considered on that basis. 16 The applicant has raised two potential Constitutional issues. They relate to ss 109 and 92 of the Constitution. The first (relating to s 109) was raised in written submissions. The second (relating to s 92) was raised on the final afternoon of the hearing in oral submissions. 17 Section 78B of the Judiciary Act 1903 (Cth) relevantly provides that: (1) 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. …. (5) Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so. 18 Because of the urgency of this matter these reasons deal with the Constitutional issues as necessary. The s 109 issue is dealt with later in these reasons. As to s 92 the applicant submitted (at transcript p 89 ll 43-45 and p 99 ll 1-2): … Section 92 of the Australian Constitution provides that: trade, commerce and intercourse shall be absolutely free. … I say that the Law Society is restricting my freedom in trade commerce and intercourse ... 19 Section 92 has no application in the circumstances.