The applicant acknowledges that because the objectors do not consent, she requires leave of the Court.
[2]
With reference to sub-rule (2), which provides that leave may be granted on terms "as may be just", the applicant agrees to pay the respondents' costs in any event up until the time she first informed the respondents that she wished to discontinue her application and would pay their costs. Further, the applicant will give an undertaking not to apply for admission in any other jurisdiction without first giving notice in writing to the respondents. At one point during submissions, the undertaking was elaborated upon to include an undertaking to the equivalent regulatory body in the jurisdiction where the application was being made "anywhere in the world" to inform the body of the matters before the Court and contained within the court book filed in these proceedings.
It is submitted for the applicant that these terms protect the objectors' position with respect to any hypothetical future applications and that, in light of them, the Court may be satisfied it is just to grant leave to discontinue.
The respondents contend that leave should not be granted. The respondents rely heavily on the absence of any supporting affidavit. They argue that the Court cannot grant leave to discontinue when there is no evidence in the form of an affidavit as to the reasons for the applicant wishing to discontinue her application for admission. It is argued with reference to ; at 384 that the application for leave to discontinue should fail on this basis alone. It is submitted that the only inference to be drawn from this failure to adduce evidence is to avoid being cross-examined as to her conduct. It is further argued that the reason for seeking to discontinue her application is to escape the possibility of adverse findings, including the possibility of findings of criminal conduct.
Trade Practices Commission v Manfal Pty Ltd (No 3)
The respondents go even further and argue that by discontinuing her application, the applicant seeks to "deprive" the Court from properly exercising its jurisdiction by "denying the Court the ability to conduct a judicial review of all the relevant circumstances before reaching a state of satisfaction that it is proper to grant leave to discontinue in all the circumstances". It is submitted that the application for leave to discontinue "must" fail on that basis alone.
The submission that the applicant is "depriving" the Court of exercising its jurisdiction assumes that the Court has an interest in determining the application for admission to the legal profession when the applicant does not seek to be admitted. This submission is not supported by a consideration of the Legal Profession Act or general principle.
The submissions that the applicant is "avoiding" being cross-examined smacks of a protagonist who has lost an opportunity for cross-examination. If the application for admission is no longer pursued, I cannot see that there is a legitimate criticism to be levelled at the applicant in seeking to discontinue rather than pursue an application that she does not wish to pursue, or that the lost opportunity is the concern of the Court.
Rules such as r 377 confer an unfettered discretion to grant a party leave to discontinue, which is to be exercised having regard to the circumstances in each case: SCI Operations Pty Ltd v Trade Practices Commission[1984] FCA 52; (1984) 53 ALR 283 per Sweeney J at 311-312. The court, in deciding whether to grant leave and, if so, upon what terms that leave should be granted, has a broad discretion to do justice between the parties (per Sheppard J at 353).
Ordinarily, a court will grant leave to discontinue unless it would cause the defendant injustice: SCI Operations Pty Ltd per Shepperd J at 354. Courts are mindful that parties should not be compelled to litigate against their will, and this is a factor that is relevant to the exercise of the discretion under the rule: Covell-Matthews v French Wools Ltd[1977] 1 WLR 876 at 879; Thunder Studios Inc (California) v Kazal (No 11)[2020] FCA 1656 at [13] per Rares J; Royal Caribbean Cruises Ltd v Reed (No 4)[2021] FCA 614 at [8] per Stewart J. An injustice will arise where the defendant has gained some advantage in the proceedings that would be lost if the plaintiff were allowed to discontinue: Covell-Matthews v French Wools Ltd at 879. It is not the case, however, that if the interests of the respondent cannot be fully protected by conditions on the grant of leave, then the application must be refused. The matter remains one for the exercise of the court's discretion: SCI Operations Pty Ltd (above) at 311.
In Trade Practices Commission v ManfalPty Ltd (No 3) (above), Lee J considered a provision in the Federal Court Rules couched in similar terms to r 377, and refused an applicant leave to discontinue a proceeding against one respondent as it would have prejudiced the right of contribution among the remaining respondents. Lee J at 384 stated that the requirement of leave, in the absence of consent of all parties:
[3]
"contemplates a judicial review of all relevant circumstances and the satisfaction of the court that the grant of leave is proper in all the circumstances_._ In some cases the court may determine that a grant of leave to discontinue should be attended with conditions and in a rare case the court may determine that the only appropriate order is to refuse the leave sought."
[4]
The respondents rely upon the reasoning of Lee J and contend that it is incumbent on the applicant to adduce evidence such as an affidavit which sets out her reason or reasons for the application to discontinue. In my view, this contention is not supported by the reasoning of Lee J and the judgment is not authority for that proposition. His Honour was not speaking to an obligation on any party to adduce evidence on particular issues, but rather identifying matters that the court would give consideration to, if relevant, in exercising its discretion. For an example of a case where there was not any basis for a finding, but an adverse inference was not drawn, see: Royal Caribbean Cruises Ltd v Reed at [13].
Speaking generally, the court's decision may be based on material such as the application, the pleadings, legislation, and the stage of the proceedings, assisted by submissions, if advanced, identifying the parties' interest in the litigation continuing and the implications of discontinuance. Of course, the discretion will be exercised on a case-by-case basis. Given the court will normally grant leave unless it would cause the defendant injustice, it stands to reason that the focus will often be on the position of the respondent or respondents and whether discontinuance will cause injustice to them. In this case, for the reasons discussed, the focus is on the protection of the public, and whether this requires the objections and the application for admission to be determined.
Here, it may be the situation that the applicant has been given advice that at this stage, her application for admission would likely fail, or she might want to avoid being cross-examined about the merits of her application. Even if this inference was reasonably open, it does not follow that the Court must refuse leave. The significance of such a consideration depends on the facts of the case.
In arguing that leave should be refused, the respondents rely on the consequences of granting leave as compared with allowing the application to be discontinued. In essence, the respondents' position relies on the serious nature of the allegations of misconduct which ground their objection. It is argued the protection of not only the Tasmanian public, but the Australian public requires that their objections be determined. In particular, the respondents are concerned about the possibility that, having discontinued her application, the applicant will apply for admission in another jurisdiction and fail to disclose the matters raised before this Court.
This argument brought into focus the consequences and advantages of refusing leave and requiring the application for admission and the objections to be heard and determined, compared with allowing leave to discontinue on the terms proposed. It is accepted that this consideration must be undertaken in light of the purpose of the Legal Profession Act; the statutory scheme, as part of a national scheme; and the nature of the Court's jurisdiction as discussed in Wentworth, which includes the public interest in the Court having a supervisory role.
The foundation for the argument against leave to discontinue is the nature of the objectors' allegations. The particulars of misconduct allege serious dishonest conduct and include attempting to pervert the course of justice with respect to RD's application for admission to this Court. It is pointed out that she has applied for and withdrawn an application for admission in Victoria which she did not disclose in these proceedings, and that she did not disclose this application in the Victorian proceedings. It is argued that the withdrawal of the application has the hallmarks of constituting an attempt to circumvent an obligation for future disclosure of this application and the circumstances giving rise to its discontinuance on an application for admission in another jurisdiction.
The respondents advance practical considerations in favour of determination of the application.
The system of admission to the legal profession is largely uniform throughout Australia and the rules, such as r 783AE, require an applicant for admission to make an affidavit addressing any "relevant matters". This rule provides, in part:
[5]
"783AE Documents supporting application for admission
[6]
(1) If an applicant for admission is a local applicant, the following documents are required in support of the application:
[7]
(a) an affidavit by the applicant in the prescribed form -
[8]
(i) addressing each of the suitability matters; and
[9]
(A) the published notice, or a copy of the published notice, required by rule 783AC; and
[10]
(C) a report from the Commissioner of Police setting out the applicant's criminal record, if any, in this or any other Australian jurisdiction prepared not more than 6 months before the date of swearing of the affidavit;
[11]
(b) two affidavits as to character in the prescribed form, each made by an acceptable deponent;
[12]
(c) any other affidavits, reports, certificates or documents required by the Court."
[13]
Similar provision is made if the applicant for admission is a qualified overseas applicant or an overseas practitioner: r 783AE(2), (3).
[14]
By virtue of r 783AB(1), "relevant matter" is defined as "... a matter, other than a suitability matter, which a reasonable applicant under this Division may consider would affect whether or not the Court believes the applicant is a fit and proper person for admission." By virtue of r 783AB(2)(c), it includes "any prior unsuccessful application for admission in any jurisdiction including Tasmania".
It is suggested by the respondents that a discontinued application may not qualify as an unsuccessful application for admission. It is argued that the applicant would not be under an express obligation to disclose the circumstances surrounding this application, the fact of the application, or the objection because it is not an "unsuccessful application".
The applicant argues she would be subject to the general obligation to disclose set out in r 783AB(1). Sub-rule (1) provides an objective test, and it is submitted that this test would apply to an objection to admission.
The respondents agree that the correct interpretation of sub-rule (1) is that it requires disclosure of an objection to admission. The respondents' argument is that the obligation to disclose is not as clear as it would be in the event of an order made by a court dismissing an application for admission after a hearing on the merits of the application.
It is argued that for the applicant to be subject to a clear and express obligation to disclose achieves the primary purpose of the Legal Profession Act, being the protection of the public, and facilitates the regulation of legal practice on a national basis. It is argued that these objectives and the special jurisdiction of the court in its supervisory role weigh in favour of determining the objection rather than granting leave to discontinue. Put another way, it is argued that the desirability of the objection being determined outweighs the undesirability of forcing the applicant to continue with an application that she wishes to discontinue.
Before I leave r 783, it should be noted that in addition to any general obligation to disclose these proceedings, the applicant would be obliged to disclose various "relevant matters" which are underlying matters of conduct which have given rise to the objection, such as the disciplinary proceedings regarding her academic qualifications: r 783AB(2)(b). Thus, the equivalent bodies would be alerted to serious matters.
The respondents' focus on this comparative exercise and the desirability of a determination led to an exploration by the Court of the consequences of an order granting leave to discontinue. In particular, the question was asked whether the respondents would advise their equivalent bodies of the evidence they have, and whether that may be just as productive in terms of achieving the objective of disclosure. In response to this questioning, it was revealed that there are statutory provisions, arrangements, and protocols concerning information sharing between regulators. Ultimately, the result of these provisions and arrangements is that the force of any points in favour of refusing leave evaporated.
Interstate information sharing provisions between regulators are to be found in the Legal Profession Act. Section 602 provides an obligation of confidentiality on the Board and its officers with relevant exceptions including, in subs (a), "in the course of, and for a purpose related to, carrying out the duties of that office or position." Further, subs (2) provides an exception in relation to the provision of information to a "corresponding authority" that has requested the information in connection with actual or possible disciplinary action against an Australian legal practitioner. The term "corresponding authority" is defined to mean bodies equivalent to the Board.
"646 Disclosure of information by local regulatory authorities
[16]
(1) A local regulatory authority may disclose information to another local regulatory authority about any matter relating to or arising under this Act or a corresponding law.
[17]
(2) A local regulatory authority may disclose information to an interstate regulatory authority about any matter relating to or arising under this Act or a corresponding law.
[18]
(a) an authority having functions or powers under a corresponding law; or
[19]
(b) a person or body prescribed, or of a class prescribed, by the regulations as an interstate regulatory authority;
[20]
(a) an authority having functions or powers under this Act; or
[21]
(b) a person or body prescribed, or of a class prescribed, by the regulations as a local regulatory authority."
[22]
Counsel for the respondents queried whether this power applied to an application that was the subject of objection and which was discontinued. The question was raised but there were no contentions pressed.
The section is in broad terms that information may be disclosed by the respondents about "any matter relating to or arising under this Act." This function of disclosure is not predicated on a finding of the Court. There could be little doubt that the section is broad enough to cover applications under the Act which have been subject to objection, and which are discontinued.
It was contended on behalf of the respondents that it would be "clearer and more beneficial" to all regulatory bodies nationally to have a determination from a court. While it can be accepted that a determination would be definitive, the limited point made here is concerned with matters of convenience rather than matters of what is just between the parties or what is required to protect the public interest.
Counsel for the respondents noted the respondents would be subject to an implied undertaking, known as a Harman undertaking, in respect of subpoena material that has been returned, so they cannot hand that material over "to a third party". It should be noted that in this case, a Court book has been filed by the respondents which contains comprehensive information about the applicant's conduct relied upon for the purpose of the objection. In the event that leave is given by the Court to discontinue proceedings, the respondents seek orders releasing them from any implied undertakings that might attach to documents contained in the Court book dated 10 October 2023, filed in these proceedings, and an affidavit of Deborah Jones, filed on 11 October 2023. The applicant was given an opportunity to consider this application for consequential orders and make written submissions in reply but did not take up that opportunity.
In my view, the information sharing provisions enable the regulatory bodies and their equivalent bodies to protect the public in a case such as this.
The other safeguard that was explored was an undertaking by the applicant to the Court in terms that she would not apply for admission to the legal profession in any jurisdiction without first giving notice in writing to the objectors. Necessarily, that would cast a clear obligation on the applicant to disclose, with the sanction of contempt proceedings if the undertaking was breached.
It was acknowledged by the respondents that that would place the applicant in the same position in terms of her obligation to disclose the court proceedings as an applicant who had been unsuccessful in their application for admission. The undertaking that has been offered by the applicant is a further safeguard in protecting the public.
In arguing there was purpose to a full hearing versus giving leave to discontinue, counsel for the respondents reasoned it was important that applications be heard and determined while evidence is available. There is, however, no force in that argument. The court's jurisdiction should not be invoked merely for a hypothetical scenario of a potential application for admission in order to record evidence which may later become unavailable. There are steps that may be taken by parties to preserve such evidence.
[23]
After careful consideration of the arguments, I conclude that the factors raised weigh in favour of granting leave to discontinue. There are statutory safeguards which protect the public from the risk that the applicant might apply to be admitted in another jurisdiction without disclosing these proceedings and the objections that have been lodged. The information sharing provisions and protocols allow for this situation and enable the respondents to disclose to their counterparts in all other Australian jurisdictions a comprehensive level of information underpinning their objections. The undertaking that has been proffered by the applicant casts an obligation upon her to disclose, in addition to her statutory obligation.
I shall make an order granting leave to the applicant to discontinue her application for admission on terms that the applicant provide an undertaking to the Court, as canvassed in these reasons. At one point during the applicant's submissions, an expansive version of the undertaking was indicated. I shall hear from the parties as to the precise terms of the undertaking. I shall also provide counsel for the applicant with a further opportunity to be heard in relation to the consequential order sought by the respondents releasing them from any implied undertakings that might attach to documents contained in the Court book dated 10 October 2023 and the affidavit of Deborah Jones affirmed on 11 October 2023.
The applicant should pay the respondents' costs of the proceedings up until 5 June 2023, when she indicated that she sought to withdraw her application and foreshadowed an undertaking and that she would pay the respondents' costs. After that date, the respondents took up a position and embarked on a contest in which they have been wholly unsuccessful. I shall hear from the parties as to appropriate orders and, specifically, with respect to costs after that date.
Parties
Applicant/Plaintiff:
RD
Respondent/Defendant:
Legal Profession Board [2025] TASSC 20
Cases Cited (6)
RD v Legal Profession Board [2025] TASSC 20 (9 April 2025)
Counsel for the applicant makes the sound point that those principles in Wentworth presuppose that an admission application is being pressed by the applicant. The case does not lend support to the proposition that a court has a role when an admission application is sought to be discontinued or abandoned.
Counsel for the applicant relied on a decision of the High Court in AZC20 v Minister for Immigration, Migrant Services, Multicultural Affairs, and others[2023] HCA 26, 97 ALJR 674, which was concerned with whether there was a "matter" before the Full Court of the Federal Court within the meaning of Ch III of the Constitution and the element of a justiciable controversy. This case has limited relevance to the case before this Court which is not concerned with that issue. It does serve to remind the court of matters of general principle such as that if there is not a genuine ongoing dispute, then the issue is moot and the court cannot provide an advisory opinion: see Edelman J at [72], [73]. Here, counsel for the applicant submits that because the applicant is no longer pursuing an application for admission, there is no controversy or dispute.
The terms of s 32 (1) provide that a relevant professional association or qualifying person may apply to the Supreme Court to hear and determine the issues relating to an objection. The word "objection" in subs (1) is clearly a reference to an objection to an application for admission and assumes its existence.
Subsections (2), (3), and (4) are procedural provisions regarding notices of objection, requirements to state the grounds of the objection, a time limit for lodgement, and provision of a copy of the objection to the Board and the Law Society. Sub-section (5) imposes a requirement upon the Registrar to forward a copy of the notice of the objection to the applicant for admission. Sub-section (6) provides the person who lodges a notice of objection with a right to appear at any hearing held to determine an objection.
It is also plain that the section contemplates that notices of objection are lodged in the context of a pending hearing of the application for admission: s 32(3). The notice must be lodged seven days before the date on which the application for admission is heard, or such time as the Court determines.
In ascertaining the meaning of the statute, the Court's task is concerned with the text of the statute, while having regard to its context and purpose: SZTAL v Minister for Immigration and Border Protection[2017] HCA 34, 262 CLR 362 per Kiefel CJ, Nettle, and Gordon JJ at [14].
The natural and ordinary meaning of the words of s 32 convey that an objection, notice of objection, and the determination of an objection to an admission to the legal profession are predicated upon an application for admission. The terms of the section are tied to an application for admission and, in enabling objections and the hearing of objections, presuppose an application for admission.
If an application for admission is discontinued or withdrawn, there is no application for admission for the court to determine. There is no suggestion in the language of the section that the Court has a role to determine objections if there is no application for admission. The simple but compelling point is that there is no admission to object to and no purpose to the objection.
(1991) 33 FCR 382
(1984) 53 ALR 283
It is inherent in the argument for the respondents that the proper interpretation of the section is that once an application for admission has been filed and an objection made, the objection may take on a life of its own and may exist regardless of the status of the application. There is a need for a trigger or catalyst but, beyond that, there is no need for an extant application. This interpretation, however, cannot be discerned from the section and is unsupported by the language of the section. The argument overlooks the point that the section is in terms such that the objection is anchored to an application for admission and, in fact, its existence is the very raison d'etre for the objection. In exploring this interpretation, it is useful to consider the statutory scheme more broadly.
A consideration of the broader legislative scheme does not suggest that the court's role extends to making orders preventing admissions in cases where an individual is not seeking to be admitted_._ The statutory scheme does not enable the Board or the Law Society, or anyone else, for that matter, a right to object at large to any potential applicant for admission absent an application for admission. The fact that the supervisory role of the court is tied to applications for admission can be seen from the Supreme Court Rules, as well. Rule 783AI provides that on an application for admission, the court can undertake such enquiries as it considers appropriate. There seems, in my view, to be tension between the evident limitations on the court's role when a potential applicant is not seeking to be admitted and the interpretation urged by the respondents with respect to withdrawn or discontinued applications.
As noted, the principles in Wentworth provide context for the interpretation of the section. The principles are not at odds with an interpretation where the ordinary language of the section prevails. They do not suggest there would be any warrant for regarding the court's supervisory role as extending to a withdrawn or discontinued application for admission. Indeed, such a role goes well beyond the court's role envisaged by the principles discussed in Wentworth. If an application for admission is not pursued, the role of the court in protecting the public does not arise.
As a final point, the court's role as envisaged by the respondents' argument amounts to more of a preventative role than a supervisory role. This would be unusual and if Parliament intended this outcome, it would be expected that it would have said so in express terms.
In argument, the respondent seemed to rely more heavily on r 377.