Re Hope [1995] QCA 471 (20 October 1995)

In appealing against the order granting exemption, the Solicitors' Board relies on two grounds. The first is that a single Judge of the Supreme Court has no jurisdiction to exercise the power of exemption conferred by r.95. The second is that the power in question is one that is exercisable only on the application for admission. The applicant in the present case has not made any such application and presumably does not intend to do so until she has completed the requisite period of service contemplated by r.17(1)(d).

The first question on appeal depends on the meaning of "Court" in r.95, which is as follows:

"Notwithstanding anything to the contrary in these Rules contained, the Court, if in special circumstances it thinks fit so to do, may exempt any person from compliance with any of these Rules, either wholly or partly or subject to such conditions as the Court thinks proper."

The word "Court" is defined in the Rules to mean the Supreme Court of Queensland. As a matter of history, the Supreme Court meant the Supreme Court sitting in Banc. Originally the Court could be constituted only by all the Judges sitting and exercising together the jurisdiction and powers of the Court. Apart from particular statutory provisions in that behalf, a single Judge had no authority sitting alone to exercise any of the powers of the Court. See Capricorn Inks Pty. Ltd. v. Lawter International (Australasia) Pty. Ltd. [1989] 1 Qd.R. 8, 12-14; vol. 1 (1992) Journal of Judicial Administration 166.

Legislation in the nineteenth century progressively altered this state of affairs. It did so in two ways. It limited the number of Judges needed to constitute the Court or "Full Court", as it came to be called; and it invested a single Judge with authority to exercise the powers of the Court, at the same time declaring that in doing so the Judge was to constitute the Court. See s.6 of the Judicature Act 1876, which, as to the past, confirmed the power of single judges to exercise the jurisdiction of the Court in all proceedings which might before that Act have been heard by a single judge; and, as to the future, extended the same principle to such proceedings "as may be directed or authorised to be so heard by any Rules of Court to be hereafter made". In all those proceedings, s.6 went on to say, "any Judge sitting in Court shall be deemed to constitute the Court". When, after that, it was intended that a single judge should have the power to sit as the Court, the formula commonly employed was, and still is, "the Court or a Judge ...".

It nevertheless remains necessary to have some recognisable starting point for distinguishing the jurisdiction and powers exercisable only by the Court from those exercisable by a Judge sitting alone. Blurring the distinction will only lead to difficulties of identification in the future. Accordingly, and subject to contextual indications to the contrary, when a statute or a Rule of Court uses the expression "the Court", it should, in the first place, be taken to mean what it says and not to include a single judge of the Court. See Capricorn Inks Pty. Ltd. v. Lawter International (Australasia) Pty. Ltd., at 12-14, which involved setting aside an award, as to which see now O.85, r.14.

In the case of the Admission Rules, the distinction between the "Court" and "the Court or a Judge" is maintained with a fair degree of consistency throughout the Rules. In speaking of appeals from the Solicitors' Board, r.92 uses the expression "the Court or a Judge". So does r.96, in relation to applications by the Board for advice concerning the interpretation of the Rules. Rule 94 is concerned with extensions or abridgements of time. It authorises them to be granted by either the Court or the Board; but, as regards times for service under articles or as Associate or Clerk, it specifically limits the Board's power of doing so to a period of 14 days. In terms it gives no such power to a Judge sitting alone. It is consistent with this pattern to read the word "Court" in r.95 as meaning, as it did before 1991, only the Full Court and not a single judge. It does not, as does r.96 which follows it, use the formula "the Court or a Judge thereof".

The only rule to which we were referred on appeal that, on one view, might be said not to conform directly to this overall pattern is r.67(a). It speaks of admission to practice as a solicitor: (a) at sittings of the "Full Court" designated by the Chief Justice; or (b) at sittings of the Court at Rockhampton or Townsville designated by a Judge of the Court. Paragraph (a) of that rule, or its equivalent, has been in that form since at least 1898. The acknowledged purpose of r.67(b), which was adopted in 1986, was to enable candidates in the northern and central districts to be admitted in those two Supreme Court centres without incurring the expense of bringing themselves (and their friends) to Brisbane for the occasion. For the limited purpose of such admissions, r.67(b) treats a single Judge of the Court at Rockhampton or Townsville as "the Court" or the Full Court. It is noteworthy, however, that in doing so r.67(b) expressly limits non-metropolitan admissions of persons to cases where:

"(i) the person has complied in all respects with these Rules;

(ii) the person has the certificate of the Board; and

(iii) no objection to the admission of the person has been lodged with the secretary."

If a single Judge acting under r.95 has the power to exempt a person from compliance with any of the Admission Rules, it is not easy to conceive of a reason why r.67(b)(i) should have gone out of its way to permit the non-metropolitan admission only of a person "who has complied in all respect with these Rules". A single Judge in Rockhampton or Townsville would be in as good a position as a single Judge sitting anywhere else in the State to decide whether an exemption should be granted under r.95.

So far, the matter has been looked at as it used to be before 1991. It is necessary now to consider the impact of the Supreme Court Act of 1991. Speaking generally, its effect was to invest the Court of Appeal constituted under the 1991 Act with jurisdiction to hear and determine all matters that the Full Court had jurisdiction to hear and determine : see s.29(1). That was apt to include not only the appellate jurisdiction of the Full Court but also any original jurisdiction exercisable in its character as the Supreme Court, Full Court or, more simply, the "Court". At the commencement of the 1991 Act, very little original jurisdiction continued to be exclusive to the Full Court. Most of it had been delegated to or invested in single judges of the Supreme Court by force of particular statutes or the Rules. Notable exceptions were applications for orders absolute for certain prerogative writs: O.81, r.2 (now the subject of the Judicial Review Act 1991), and applications to set aside arbitral awards: see O.90, r.10; Capricorn Inks Pty. Ltd. v. Lawter International (Australasia) Pty. Ltd. [1989] 1 Qd.R. 8.

The other prominent exception was admission to practice as a barrister or solicitor. Jurisdiction over admissions is traceable to art.X of the Charter of Justice issued under the New South Wales Act 1823; 4 Geo IV, c.96. The relevant provisions are reprinted in Harrison's Law and Conduct of the Legal Profession in Queensland, at 11-12 (2nd ed., by Justice G.N. Williams). It provided for the admission of practitioners from Great Britain and Ireland, and then went on to provide that the Supreme Court of New South Wales was authorised to admit:

"so many other fit and proper persons to appear and act as Barristers, Advocates, Proctors, Attorneys and Solicitors, as may be necessary, according to such general rules and qualifications as the said Court shall for that purpose make and establish ...."

Speaking in Incorporated Law Institute of New South Wales v. Meagher [1909] HCA 87; (1909) 9 C.L.R. 655, 677, of that power in the Charter, Isaacs J. said that it was the only power possessed by the Supreme Court to admit a person as a solicitor. See also, to the same effect, Re Davis [1947] HCA 53; (1947) 75 C.L.R. 409, 423; and Re Fox and the Legal Practitioners Act [1964] N.S.W.R. 1047, 1050, 1052.

Section 34 of the Supreme Court Act of 1867 confirmed that in a provision like that in art.X of the Charter, the Supreme Court of Queensland stood for the Supreme Court of New South Wales. In Re Julius [1941] St.R.Qd. 247, 249, Webb C.J., speaking for the Full Court, said:

"It is to be kept in mind that this is a motion to the Court to admit the applicant as a barrister. That, indeed, is the only way in which he can secure his admission. We cannot regard the motion as a mere formality upon which admission must be granted on the Board's certificate. To that extent The Barristers Act of 1848, although it may not have been repealed, may be treated as obsolete.

The function of the Barristers' Board set up by the Rules of court is to assist the Court in deciding whether the applicant should be approved. Under the Charter of Justice it was intended that the Supreme Court should give this approval. Nothing in subsequent legislation applying to Queensland, or in any Rules of Court thereunder, can, we think, be held to express a different intention. See Kahn v. Board of Examiners (Vict.) [1939] HCA 26; (1939) 62 C.L.R. 422, per Rich J. at p.431."

The case of Re Julius involved admission to the Bar; but, as appears from what has been said, the provision for admission to either branch of the profession is founded on art.X of the Charter of Justice.

The power to admit to practice conferred by art.X of the Charter is vested in the Supreme Court, which in New South Wales in 1823 meant the Court in Banc or Full Court, and not a single judge of the Court. It consequently had the same meaning in Queensland at and after Separation in 1859. However, it is a necessary incident of the appellant's contention here that the admission power has now been invested in a single judge of the Supreme Court by virtue of the operation of s.58(2) of the 1991 Act. In Reprint no. 3 of that Act, the subsection has now been renumbered as s.55(2). It provides as follows:

"(2) The jurisdiction and powers of the Court that are not required to be exercised only by the Court of Appeal may be exercised by the Court in the Trial Division."

The question is whether the jurisdiction and powers of the Court, derived from the Charter provisions and regulated by subsequent Admission Rules, are jurisdiction and powers that are "not required to be exercised only by the Court of Appeal ...". If they are not so required, then it is open to a single judge of the Trial Division of the Supreme Court to exercise those powers, and with them the concomitant power under r.95 of exempting applicants from the provisions of the Rules. The expression "not required to be exercised ..." seems to have been borrowed from s.42 of the Supreme Court Act 1958 (Vic.), or one of its statutory predecessors, where, however, it appears in a somewhat different form and structural context, which refers to proceedings "not required under any Act or Rules of the Court to be heard and determined by the Full Court". Cf. Kahn v. Board of Examiners (Vic.) [1939] HCA 26; (1939) 62 C.L.R. 422, 436-437, where the history of the relevant provisions are mentioned by Starke J. Unfortunately, none of the decisions given on the Victorian enactment have proved to be of assistance in solving the present problem. The question therefore falls to be decided as one of interpretation and largely of first impression. Cf. Re Ballantyne Building Constructions Pty. Ltd. [1994] 2 Qd.R. 1.

In a sense, of course it is true to say that none of the jurisdiction and powers of the Court of Appeal is "required" to be exercised "only" by this Court. Even s.69(1), which provides for appeals to the Court of Appeal from the Trial Division, is purely facultative. It does not "require" that the appellate jurisdiction be exercised "only" by the Court of Appeal. The same is true of a host of other appellate provisions including, for example, those contained in s.92 of the District Courts Act 1967 and others that appear in Schedule 2 to the original Act of 1991. The fact is, however, that no one could possibly doubt that such appeals, or the jurisdiction and powers involved in hearing and determining them, are, and are required to be, exercised only by the Court of Appeal, and not by a Judge of the Trial Division sitting alone. Something other than a purely literal reading of the expression "not required to be exercised ... only" in s.55(2) is therefore called for.

The arguments from history have already been canvassed. The power of admitting practitioners is, as the authorities show, ultimately dependent on art.X of the original Charter of 1823 vesting the jurisdiction in the Court, meaning by that the Court in Banc now represented in Queensland by the Court of Appeal. That state of affairs has prevailed ever since the Supreme Court of Queensland was first established, and it has continued to be recognised in practice since the institution of the Court of Appeal in 1991. Unless there is compelling reason for adopting a different view, this Court remains the ultimate admitting authority and the disciplinary authority for practitioners in this State.

Then there is the argument from convenience. The power to admit and the power to exempt from compliance with the Rules must go hand in hand. It would be surprising if a single Judge of the Trial Division acting alone could exercise the power to exempt from compliance with the Rules, leaving the Court of Appeal with no function to perform but that of formally administering the appropriate oaths or ensuring that they were taken. Next, there is the structure of the Rules themselves. They provide in some detail what requirements must be satisfied in order to qualify for admission. The qualifications so prescribed are the outcome of consultation, sometimes lengthy, between the Solicitors' Board and the Judges acting in their collegiate capacity to approve Rules of Court and alterations to them. It would, to say the least, be odd if a single Judge sitting alone had power to set aside those requirements at will, and to do so without reference to his or her colleagues or the Solicitors' Board.

The point is, as it happens, not entirely devoid of authority of a persuasive kind. In Re Fox and Legal Practitioners Act [1964] N.S.W.R. 1047, the applicant applied for admission under s.4(c)(1) of the Solicitors' Admission Rules (N.S.W.), which conferred eligibility for admission as a solicitor on a barrister of five years standing. The applicant was a barrister of only two years standing, but he sought the exercise in his favour of the Court's discretion under r.65 on the footing that he had been employed for some 12 years as a clerk in the office of the Public Trustee followed by about 3½ years with a solicitor. Rule 65, which is comparable to r.95 of our own Admission Rules, provided:

"The Court may if satisfied there is sufficient reason for so doing, relax or dispense with any of these rules and make such order as in the opinion of the Court the circumstances require".

Leaving open the question whether, under art.X of the Charter, the Court had power to ignore the "general rules and qualifications" it had made for regulating admissions, Sugerman J. (at 1051) went on to say:

"The Court has, in fact, made general rules and has, in fact, laid down general qualifications for eligibility for admission as solicitors. It has, by its Rules, prescribed what shall be the acceptable standards for admission to the profession of a solicitor. It has provided for a system of examinations, namely the Solicitors Admission Board examinations and for the acceptance of the degree of Bachelor of Laws in their stead; and it has provided for the obtaining of practical experience by service of the appropriate period of articled clerkship or by certain periods of service as a managing clerk or in certain offices of the Public Service. In my opinion the Court should be most reluctant to depart from the general standards thus laid down, or to undertake the task of passing judgment as a Court separately and individually upon the qualifications of each candidate for admission.

It would only be, in my opinion, in the most exceptional cases, if at all, that the Court, assuming it to have the requisite power, should thus depart from the general standards which it has laid down by way of prescribing qualifications for admission."

"No doubt r.65 has a function to perform, but that Rule is not, in my opinion, intended for giving effect to such a proposition as is advanced in this case, namely the acceptance of a set of qualifications which differs entirely from anything prescribed by any of the Rules. It is directed rather to enabling the Court to deal in such minor deviations from particular Rules of the Solicitors' Admission Rules as occur, from time to time, in exceptional cases where an insistence upon strict compliance with the Rules would cause incommensurate hardship and where the relaxation or dispensation which is being sought may, it is thought, be granted without any real risk to the maintenance of appropriate standards for admission to the profession. And the present, as I have said, is not such a case.

To the same effect were the observations of Maguire J. in Re Fox (at 1052) that:

"... It is obvious that ordinarily the Court has, in the past, determined the fitness of a person to be admitted as a solicitor by applying the Rules which have been made prescribing qualifications for admission to the profession, and I think myself that whilst general Rules setting out qualifications and requirements exist, they should not be departed from, or at any rate, they should not be departed from except in exceptional cases."

His Honour considered that "what was being done here is to secure the admission of Mr Fox to practice as a solicitor upon a ground that is not specified in the general rules". See also the remarks of Walsh J. at 1053.

In the present case no question was raised by the Board about the sufficiency of the applicant's service as associate to the Senior Member, or its equivalence or otherwise to or with service as a clerk to a judge of District Courts. The question nevertheless remains whether, acting under r.95 there is jurisdiction in the Court to set aside the specific qualifications set out in r.17(1)(c) and (d) in order to arrive at a result which is not in terms contemplated by the Rules. To do so might be thought to go well beyond the exercise of a judicial discretion "in special circumstances", and instead to involve the exercise of legislative power without attempting to satisfy the statutory prerequisites for making Rules of Court.

There may, therefore, be a serious doubt whether in reliance on r.95 it is possible even for the Court of Appeal to achieve the object sought to be attained here by adding or substituting a new qualification or ground of eligibility for admission as a solicitor which, by its very nature, is bound to be general and not special in its future operation. In the end, however, and even if such a power is exercisable under r.95, there are in what has already been said compelling reasons for concluding that the power is not available on application to a single judge of the Trial Division. If it is properly exercisable by a single judge, there was and is no rational explanation for denying it to a Judge sitting to admit a candidate in Rockhampton or Townsville. Yet that is the effect of r.67(b)(i) of the Admission Rules. It is only if a candidate for admission in one of those centres has complied "in all respects with these Rules" that a motion for admission can be granted by a single Judge in Rockhampton or Townsville. Otherwise the candidate is bound to apply for admission in Brisbane where he or she can seek the indulgence of the Court of Appeal acting under r.95 to grant exemption from compliance with those Rules. What r.67 thus demonstrates is that the discretion under r.95 to exempt is, in the end, a jurisdiction or power which is required to be exercised only by the Court of Appeal, and so is not one which may, within the terms of s.55(2) of the Supreme Court Act 1991, be exercised by the Court in the Trial Division.

Strictly speaking, this makes it unnecessary to determine the second of the two grounds relied upon by the Board on the appeal, although from what has been said it will be evident that ordinarily an application under r.95 will be made and determined at the point of admission and not some time before it.

The appeal must be allowed. The point on which the Board has succeeded here was not taken in the Court below. In view of that, the Board must accept responsibility for the respondent applicant's costs of this appeal.

The appeal is allowed with costs to be paid by the appellant. The whole of the judgment given on 12 April 1995 is set aside.

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MOYNIHAN J.

The question which arises in this appeal is whether a judge of the trial division of this Court may, as the learned primary Judge purported to do, exercise the power of exemption conferred by r.95 of the Solicitors' Admissions Rules to exempt the respondent from the requirements of r.17(1)(d) of those Rules. The circumstances in which that question arises are set out in the reasons for judgment of McPherson J.A., which we have had the advantage of reading, and it is unnecessary to repeat them here. His Honour has also set out the relevant legislative provisions which also relieves us of the necessity of setting them out again.

We agree with his Honour that the appeal should be allowed and the judgment below set aside because the learned primary Judge did not have power to make the order which he did. We set out briefly below our reason for that conclusion. As it agrees, in substance, with one of the reasons for that conclusion of McPherson J.A. we shall set it out in summary form only. We also agree, for the reason which he gives, that the appellant should pay the respondent's costs of this appeal.

There is no doubt that, under the Rules, the admitting court is, subject to one specific exception, the Court of Appeal: r.67(a). The exception is contained in r.67(b) which was inserted in order to enable those seeking admission from Central or Northern Queensland to become admitted without the need to incur the cost of travelling to Brisbane for that purpose. It enables them to be admitted by a single judge in Rockhampton or Townsville provided they have complied in all respects with the Rules, they have the Certificate of the Board and no objection to their admission has been lodged with the Secretary. It is plain that the intention of r.67, read as a whole, is that if any prospective applicant has not complied in all respects with the Rules, does not have the Certificate of the Board or has to face an objection to his or her admission the admitting court in such situation can be only the Court of Appeal. It would be surprising, as McPherson J.A. has pointed out, if, notwithstanding that a single judge sitting to admit a person to practise as a solicitor in Rockhampton or Townsville cannot, on the application for admission, grant an exemption under r.95, that judge, or some other judge, could grant such an exemption on an earlier occasion.

If the Court of Appeal is the only admitting body in any case in which the rules have not been fully complied with then, in the absence of a clear contrary intention, it, and only it, should determine whether an exemption from compliance with any of the Rules should be granted pursuant to r.95.

In our view r.67 requires a construction that the exempting power under r.95 can be exercised only by the Court of Appeal.