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[1991] FCA 255
Federal Court of Australia
1991-06-14
Jenkinson J, Lockhart J
Original judgment source is linked above.
Legal Practitioners - High Court and Federal Courts - entitlement to practise - admitted practitioner - no current practising certificate - whether entitled to practise - Register of Practitioners - High Court - practitioner struck off Register - whether Registrar acting pursuant to a duty or discretion.
Legal Professional Practice Act 1958 s.90(7), s.83(1), sub-ss.5(1), (2), (3), s.80(1)
Judiciary Act 1903 (Cwth) s.55C, s.55B(1), s.49
Little v Lewis [1987] VicRp 64; (1987) VR 798
Little v Law Institute of Victoria (No.3) [1990] VicRp 25; (1990) VR 257
Little v Cornall [1989] VicRp 71; (1989) VR 811
Solicitors for the Respondent: Australian Government Solicitor
The appellant pay the respondent's costs of the appeal to be taxed.
NOTE: Settlement and entry of Orders is dealt with in Order 36 of the Federal Court Rules.
John David Little is and was at all material times a person admitted to practise by the Supreme Court of Victoria under the provisions of the Legal Profession Practice Act 1958. Since 1989, however, he has not been the holder of a practising certificate for which that Act provides. In March 1990, the Registrar of the High Court took the view that he was, for that reason, not entitled to act or practise as a barrister or solicitor in Victoria and therefore not entitled, under the Judiciary Act 1903 (Cwth), to practise in any Federal Court. Accordingly, on 27 March 1990 he caused Mr Little's particulars to be struck from the Register of Practitioners kept at the Registry of the High Court, pursuant to s.55C of the Judiciary Act 1903. Mr Little made an application for an order of review of that decision under the Administrative Decisions (Judicial Review) Act 1977. An objection to the competency of the application was taken, but was dismissed by Jenkinson J. on 22 June 1990. The substantive application was heard on 27 and 28 August by Lockhart J. and dismissed by his Honour on 28 August. Mr Little now appeals against that dismissal.
2. This case is the most recent episode in a long running saga, details of which appear in various judgments of the Supreme Court of Victoria and of this Court. Some reference to that background, gleaned from those judgments, is appropriate to set the case in its historical context.
3. Mr Little was admitted to practise as a barrister and solicitor of the Supreme Court of Victoria on 1 May 1961. The right of any admitted practitioner (other than one engaged in practice exclusively as a barrister) to practise in that State is conditioned upon the issue to the practitioner of an annually renewable practising certificate. Under the legislative scheme now in force the certificate is issued by the Secretary of the Law Institute of Victoria on payment by the applicant of a prescribed practising fee, together with a contribution to the Solicitors Guarantee Fund. It appears that Mr Little did not seek a practising certificate in 1986, contending that the Professional Indemnity Insurance Regulations 1985, which prescribed a contribution to be paid upon application for a practising certificate, were invalidly made. On 13 May 1986, the Secretary of the Law Institute of Victoria obtained an order against him under s.90(7) of the Legal Profession Practice Act 1958 restraining him from acting or practising as a solicitor. On 21 May, Mr Little was committed to gaol for contempt of that order. He appealed against the order and the committal. The Full Court allowed the appeal against the order on the basis that the Regulations were not validly made, but dismissed it in relation to the contempt proceedings - Little v Lewis [1987] VicRp 64; (1987) VR 798. The Regulations were subsequently declared to be valid by amending legislation. Civil proceedings for malicious prosecution ensued - see Little v Law Institute of Victoria (No. 3) (1990) VR 257.
4. Mr Little applied for and was granted a practising certificate for the year commencing 1 January 1987. However, when he applied in August 1987 for his 1988 certificate he did not tender any fee. He contended that a resolution of a general meeting of the Law Institute of Victoria held in June 1986 and purporting to prescribe the fee was not validly passed and therefore that no fee was prescribed or payable. In the event, no practising certificate issued to him. In March 1988 the Secretary of the Law Institute sought another order under s.90(7) of the Legal Profession Practice Act. Nathan J. granted the order on 11 March 1988. An appeal was dismissed by the Full Court of the Supreme Court of Victoria on 8 December 1988. - Little v Cornall [1989] VicRp 71; (1989) VR 811. An application for special leave to appeal to the High Court was refused on 13 October 1989. Following the order of Nathan J. and pending the disposition of the appeal, Mr Little obtained a practising certificate under an agreement with the Law Institute of Victoria that the issue of the certificate would not be raised as a bar to the appeal.
5. He did not obtain a practising certificate for either of the years 1989 or 1990. Nevertheless it seems he continued to practise as a solicitor. By a summons dated 7 August 1990, the Secretary of the Law Institute sought an order that he be fined or imprisoned for contempt of court by reason of his failure to comply with the order of Nathan J. made 15 March 1988. On 7 November 1990, Ashley J. fined him $7,000. In the meantime, on 27 March 1990, the Registrar of the High Court had caused his particulars to be struck from the Register of Practitioners kept at the Registry of the High Court under s.55C of the Judiciary Act 1903. Mr Little sought judicial review on grounds which included breach of the rules of natural justice, lack of authority for the decision under the Judiciary Act, that the Registrar acted under dictation from the Chief Justice of the High Court and that there were various errors of law made. Lockhart J. dismissed his application on 27 August 1990.
6. His Honour briefly set out the events leading up to the Registrar's decision and the various grounds upon which an order of review was sought. He noted that it had not been suggested that Mr Little had a right to practise in any State or Territory Supreme Court, other than the Supreme Court of Victoria. He found that he had not qualified for the issue of a practising certificate under s.83(1) of the Legal Profession Practice Act and was therefore not entitled to practise in the Supreme Court of Victoria. His Honour concluded that Mr Little was not entitled to practise in any federal court by virtue of s.55B(1) of the Judiciary Act 1903.
7. His Honour considered the position of the Registrar of the High Court, holding that he is charged with a statutory duty to cause the Register of Practitioners to be kept at the Registry of the High Court. He rejected a submission that the Registrar could not act under the Judiciary Act to cause particulars in relation to a person in the Register to be struck off unless some "independent complainant" raised the issue. It was plain, in his Honour's opinion, that the power to rectify the Register could be enlivened by the Registrar of his own motion without waiting for someone else to appear and lodge some complaint. It was obviously in the public interest that only persons remain on the Register who are entitled to practise before federal courts. The source of the right to practise in federal courts was not the presence of the practitioner's name on the Register, but rather the right to practise in the Supreme Court of a State or Territory.
8. On this basis his Honour rejected the contention that there had been a breach of natural justice because the Registrar acted on his own motion. There was no substance in the allegation that the Registrar had prejudged the issue without giving to Mr Little an adequate opportunity to make submissions. He concluded, from correspondence passing between them, that the Registrar gave Mr Little a full and fair opportunity to put anything he may have wished with respect to the question of whether his name should be struck off. And on the submission that the Registrar acted under dictation, his Honour noted that he had spoken to the Chief Justice about the topic as would be expected in the ordinary course of relations between a Chief Justice and a Registrar of a Court, but that it was clear that he acted as he himself thought best having had the benefit of that discussion.
9. The argument was also advanced that the Registrar should have considered whether Mr Little was wrongly denied the issue of a practising certificate in Victoria. But his Honour held to be untenable any suggestion that the Registrar is under some obligation to go behind the findings of the relevant statutory body constituted under the Legal Profession Practice Act and the findings of the Supreme Court of Victoria. It was the fact that the practising certificate had ceased to be current and that the entitlement of the person concerned to practise before the courts of Victoria had been removed which enlivened the powers of the Registrar to act under the Judiciary Act. He also rejected a submission that the Registrar should have found, and failed to find, that the prescription of the relevant practising fee by the Law Institute of Victoria and the determination of a contribution to the Solicitors Liability Fund, contravened s.46 of the Trade Practices Act 1974. Even on the assumption that there was otherwise a contravention of s.46 of the Trade Practices Act, the provisions of the Victorian statute attracted the exempting operation of s.51 of the Trade Practices Act.
10. There were eight grounds of appeal some parts of which were, upon examination, either untenable or unintelligible. It is sufficient for present purposes to identify the principal contentions that arise from them.
1. That the failure to hold a Victorian practising certificate
does not of itself disentitle a practitioner admitted in that
State from practising in federal courts.
2. That the Registrar had to be satisfied on his own account and
not in reliance upon the Secretary of the Law Institute of
Victoria that the refusal to issue Little with a practising
certificate was proper.
3. That the trial judge allowed into evidence the affidavit of
the Secretary of the Law Institute of Victoria but did not
require the attendance of the deponent for cross-examination.
4. That the trial judge usurped the Registrar's statutory
discretion by taking into account various matters which, if
relevant, should have been referred to the Registrar to consider.
5. That there was unrefuted evidence before the trial judge that
the Registrar acted under direction from the Chief Justice of
the High Court.
It is the first contention which lies at the heart of this case and it is necessary in considering it to turn to the relevant statutory framework and some of its history.
11. Sub-section 5(1) of the Legal Profession Practice Act 1958 (Vic) provides for admission to practise in Victoria as follows:
"Every person admitted to practise by the Supreme Court shall be
admitted to practise both as a barrister and as a solicitor."
Sub-section 5(2), which is not material for present purposes, relates to the requirement for a person seeking admission to have taken the oath of allegiance and an oath of good conduct prior to admission. Sub-section 5(3) identifies, by reference to s.111, the courts in which a person admitted is entitled to practise:
"5(3) Every person duly admitted as a barrister and solicitor shall
while his qualification continues be entitled to practise in or
before the courts or persons mentioned in section one hundred and
eleven of this Act on compliance with the special provisions if any
relating to the right to practise in such courts or before such
persons."
The courts mentioned in s.111 are the Supreme Court, the County Court and the Magistrate's Court.
12. The Law Institute of Victoria is referred to in s.16 of the Act which provides:
"16(1) There shall be a body corporate by the name of the Law
Institute of Victoria which is hereby declared to have been
established and incorporated by the Law Institute Act 1917.
(2) The institute shall consist of all practitioners who have
become or who become members of the institute so long as such
practitioners respectively continue to be members of the institute."
The Secretary of the Institute is given statutory recognition by the Act and the duty under s.79 to keep a roll of solicitors and to issue practising certificates of prescribed classes to persons who are entitled under Div.4 of the Act to take out certificates authorising them to practise. Sub-section 80(1) creates the obligation to apply for a practising certificate:
"80(1) Subject to this Act and any order of the
Tribunal every solicitor who intends to practise
during the following year shall during the month of
August in each year make application to the secretary
for a practising certificate."
The duty of the secretary to issue a practising certificate is set out in sub-s.83(1), the first limb of which is as follows:
"83(1) Subject to this Part upon compliance by the
applicant with such of the foregoing provisions of
this Division as are applicable to the applicant and
on payment by the applicant of the prescribed
practising fee (if any) payable by the applicant
together with the contribution to the fund payable by
the applicant under Division two and any levy then
payable by the applicant under Division two the
secretary shall issue to the applicant a practising
certificate in the prescribed form."
The secretary is empowered by s.84 of the Act to refuse to issue a practising certificate on a variety of grounds including non-compliance by an applicant with any provision of the Act. An applicant who is aggrieved by refusal of a certificate may appeal to the Supreme Court of Victoria against such refusal (s.87). Section 90 conditions the right to practise upon the holding of a current practising certificate. The parts of that section relevant for present purposes are:
"90(1) No person shall be qualified to act or practise
or shall act or practise as a solicitor unless -
(a) the person is a practitioner or an
incorporated practitioner; and
(b) the person holds a practising certificate
for the time being in force authorising
the person to act or practise in the
capacity concerned.
(2) Any person who is not so qualified is in this
Division referred to as an "unqualified person".
(3) For the purposes of sub-section (1) of this
section practising as a solicitor, without limiting
the generality of the meaning of that expression as
defined for the purposes of this Division, shall
include in the case of a practitioner, the being
employed by and in connexion with the practice of a
solicitor or firm of solicitors.
(4) A person shall not be capable of maintaining
any action or suit for the recovery of any fee reward
or disbursement for or in respect of any business
matter or thing done by the person as a solicitor
whilst the person was an unqualified person."
Sub-section (5) is not relevant for present purposes. Sub-section (6) makes it an offence to fail to comply with the provisions of sub-s.(1). Sub-section (7) of s.90, which has been invoked against Mr Little on two occasions, empowers the Supreme Court, on the application of the Secretary of the Institute, to make orders restraining an "unqualified person" from acting or practising as a solicitor or holding out that he is so qualified. Section 91 applies the provisions of ss.110 and 111 of the Act to unqualified persons. Section 111 is a general prohibition against persons not admitted or qualified from carrying on practice in any court. Contravention of that section is punishable as a contempt.
13. Turning next to the Judiciary Act 1903, the provisions under which the Registrar acted are to be found in Pt.VIIIA entitled "Legal Practitioners". Section 55A allows a person who has been admitted to practise as a barrister or solicitor or both under rules made in pursuance of para.(ga) of s.86 of the Judiciary Act to practise in any federal court as a barrister or solicitor or both. Paragraph 86(ga) authorises the Justices of the High Court to make rules of court providing for the admission of persons to practise as barristers or solicitors in any Federal Court and prescribing the conditions of and qualifications for admission and continuance of the right to practise as aforesaid. However, by virtue of s.55B, admission under such rules is not necessary where a person is entitled to practise in the Supreme Court of a State or Territory. The relevant parts of s.55B are set out below:
"55B(1) Subject to this section, a person who-
(a) is for the time being entitled to practise
as a barrister or solicitor, or as both,
in the Supreme Court of a State; or
(b) is for the time being entitled, under a
law (including this Act) in force in a
Territory, to practise as a barrister or
solicitor, or as both, in the Supreme
Court of that Territory,
has the like entitlement to practise in any federal
court.
.
.
.
(3) A person is not entitled to practise as a
barrister or solicitor in a federal court by reason of
sub-section (1) unless his name appears in the
Register of Practitioners kept in accordance with the
next succeeding section as a person entitled to
practise in that capacity."
The succeeding sub-sections of s.55B confer upon persons entitled to practise in any federal court by virtue of sub-s.(1), a right of audience in any court of a State in relation to the exercise by the court of federal jurisdiction and the like right in relation to any court of an internal territory. The provisions thereafter deal with the establishment and maintenance of State and Territory Registers for that purpose. Section 55C provides for the Register of Practitioners to be kept at the Registry of the High Court in the following terms:
"55C(1) For the purposes of s.55B, the Registrar of
the High Court shall cause a Register of Practitioners
to be kept at the Registry of the High Court.
(2) Where it is shown to the satisfaction of the
Registrar that a person would, but for sub-section (3)
of the last preceding section, be for the time being
entitled by reason of that section to practise as a
barrister or solicitor, or as both, in federal courts,
the Registrar shall cause the name of the person, and
the capacity in which he is to be entitled to practise
to be entered in the Register of Practitioners.
(3) Where, otherwise than by reason of an order by
the High Court under sub-section (5), the Registrar is
satisfied that a person whose name appears in the
Register of Practitioners-
(a) is not for the time being entitled by
reason of the last preceding section-
(i) to practise in federal courts;
or
(ii) to practise in federal courts
in a capacity specified in the
Register; or
(b) would, but for sub-section (3) of the last
preceding section, be for the time being
entitled by reason of that section to
practise in federal courts in a capacity
not specified in the Register,
the Registrar shall cause the particulars in the
Register in relation to the person to be struck out or
amended, as the case requires.
.
.
.
(7) Where the Registrar causes an entry to be made
in the Register of Practitioners, or causes an entry
in the Register to be struck out or amended, he shall
cause the ground on which, and the date upon which,
the entry is so made, struck out or amended to be
noted in the Register."
The succeeding sections 55D and 55E of Pt.VIIIA are not relevant for present purposes.
The Interaction of the Judiciary Act 1903 and
The Legal Profession Practice Act 1958 (Vic)
14. When the Judiciary Act 1903 was enacted, it included s.49 which provided:
"49(1) Any person entitled to practise as a barrister
or solicitor or both in any State shall have the like
right to practise in any federal court.
(2) Provided that before so doing he shall produce
to the Principal Registrar evidence showing that he is
so entitled and in what capacity, and the Principal
Registrar shall thereupon enter his name in a Register
of Practitioners to be kept at the Principal Registry.
(3) A copy of the Register shall be kept at every
District Registry.
(4) The High Court may direct the name of any
person to be struck off the Register upon proof that
he has been guilty of conduct which renders him unfit
to be allowed to continue to practise as a barrister
or solicitor, or that he has been deprived by the
Supreme Court of the State, by virtue of his right to
practise wherein he was registered, of the right to
practise in that State as a barrister or solicitor."
Part VIIIA of the Act was introduced by amending legislation known as the Judiciary Act 1966. That amendment enacted s.55A and sub-sections 55B(1) to (3) in terms which remain virtually unaltered. Sub-sections (4) to (10) of s.55B were introduced by later amendments and are not material for present purposes. Section 55C stands now as it was when enacted in 1966 subject to minor and non-material amendments effected by the Judiciary Amendment Act (No. 2) 1979.
15. In introducing the Judiciary Act 1966 in his Second Reading Speech, the then Attorney-General, the Hon. B.M. Snedden, commented that s.49 of the 1903 Act was no longer suited to modern developments. Importantly, he went on to refer specifically to entitlement to practise in State or Territory Courts arising from the holding of a current practising certificate:
"Let me now take the position as to practitioners in
the High Court and other federal Courts. Persons who
are for the time being entitled to practise in the
Supreme Court of a State or Territory will have the
like entitlement to practise in federal courts. To
show that they are "for the time being entitled" they
will need to hold current practising certificates from
a State or Territory in any case where the State or
Territory makes this a test. The Chief Justice has
already issued directions to this effect, and the bill
adopts the Chief Justice's approach. Territory
practitioners do not at present need to hold
practising certificates and, therefore, they will be
able to practise in federal courts without holding
such certificates. A State solicitor who has no
current practising certificate will not, however, be
able to take advantage of this provision."
16. The first consolidating legislation regulating the admission of legal practitioners in Victoria was the Legal Profession Practice Act 1915. It preserved the position of persons admitted before it came into operation, applying the phrase "entitled to practise" to describe their rights. There was no provision of that Act expressly stating that a person admitted after it came into operation was entitled to practise. It was not necessary. Entitlement to practise was an obvious incident of admission under the Act. Nor was there then any requirement for annual practising certificates. In 1922 the Imperial Acts Application Act 1922 (Vic) was passed. Sections 86 to 92 in Div.14 of that Act reproduced and applied to the Victorian legal profession certain provisions of the Solicitors Act 1843 (UK), (6 and 7 Vic Cap 73). It was recognised in an explanatory memorandum prepared for the parliament by Sir Leo Cussen, that many of the provisions of the Act of 1843 which he called "a great consolidating Act", were covered by the Legal Profession Practice Act 1915. But a few of its provisions were included in Div.14 (mistakenly called Div.16 at one point in the memorandum). One of these, s.27, was reproduced as s.89 of the 1922 Act. It was the statutory ancestor of s.5(3) of the current Act of 1958 and was in virtually identical language. By that route the term "entitled to practise" came to describe the right of an admitted practitioner in Victoria under a legislative scheme which imposed no requirement for a renewable practising certificate. Taken in isolation that fact might support an argument that the entitlement referred to in the 1922 Act was conditioned only on admission to practise. But the term was taken from the 1843 Act which had qualified the right of a practitioner in England and Wales to recover fees with the requirement that the practitioner hold a stamped certificate issued annually (ss.25 and 26 of the 1843 Act). In the context from which it was derived, the entitlement to practise was already qualified. Division 14 of the Imperial Acts Application Act 1922 was repealed by the Legal Profession Practice Act 1928 which imported s.89 of the 1922 Act as s.5(3).
17. Annual practising certificates were introduced into Victoria by Pt.4 of the Legal Profession Practice Act 1946. Section 45(1) of that Act provided that no person "shall be qualified" to act or practise as a solicitor unless he is a practitioner and "he holds a practising certificate for the time being in force". The scheme was reproduced in the consolidating legislation of 1958. The legislative history and antecedents of s.5(3) are therefore consistent with the proposition that under the law as it presently stands in Victoria the requirement that a practitioner hold a current practising certificate qualifies the entitlement to practise conferred by that section.
18. In the end, however, the central issue of Mr Little's right to remain on the Register does not depend upon the meaning of "entitled to practise" as used in the Legal Profession Practice Act 1958, but its meaning as used in the Judiciary Act 1903. It is apparent that the entitlement created by ss.55B and 55C to practise in federal courts is ambulatory. It operates upon the range of legislative schemes which from time to time regulate the right to practise in State and Territory courts. Its sense is to be derived from the ordinary meaning of the word "entitle" which is "..to give a rightful claim to anything" - Shorter Oxford English Dictionary. In that ordinary sense it attaches only to a practitioner who has satisfied all conditions necessary to establish the rightful claim to practise. And most telling in the immediate context of these proceedings, is the fact that the Second Reading Speech which introduced the 1966 amendments, proceeded upon the express assumption that the entitlement to practise would be conditioned upon the holding of a current practising certificate.
19. The question of law which lies at the heart of this case must be answered adversely to the appellant. A legal practitioner who, by virtue of s.90(1)(b) of the Legal Profession Practice Act 1958, is not qualified to practise in Victoria is not "entitled to practise" in the Supreme Court of that State within the meaning of ss.55B and 55C of the Judiciary Act 1903. Such a practitioner therefore has no "like entitlement to practise in any federal court" under s.55B(1). And where a person is shown to be not entitled to practise in a federal court, the Registrar has no discretion. He is required by sub-s.55C(3) to cause the particulars in the Register in relation to that person to be struck out.
20. The second issue in the case, is whether or not, as Mr Little contends, the Registrar is required to consider whether the Law Institute has acted properly in withholding the issue of a practising certificate. The short answer to that proposition is that the holding of a current certificate is, by virtue of s.90, a necessary condition of being qualified to act or practise as a solicitor. The fact that the certificate may have been wrongfully withheld, does not alter that consequence and the person remains one who is not entitled to practise in the Supreme Court of Victoria. The remedy for a wrongful refusal to issue a certificate is to be found in s.87 of the Legal Profession Practice Act 1958. The scheme of the Judiciary Act 1903 leaves it to the State legislature to define the question of entitlement. In Victoria, that has been done by using as the criterion the holding by a solicitor of a current practising certificate. And in this context, having determined that no certificate had issued for 1990, the Registrar was not only not empowered to inquire whether the issue of the certificate had been wrongly withheld, but was obliged to strike out the particulars in the Register in relation to Mr Little.
21. In the course of the hearing, the Registrar sought to rely upon two affidavits. One was sworn by Ronald Stephen Huttner, a legal practitioner, and the other by Robert John Albert Cornall, the Secretary of the Law Institute of Victoria. Huttner's affidavit indicated that he had appeared on behalf of the respondent in other proceedings in the Federal Court on 15 May 1990 between one Jong Ki Moon and the Minister for Immigration and Ethnic Affairs. Mr Little had appeared for the applicant in those proceedings which were numbered V G132 of 1990. Huttner exhibited a copy of an affidavit sworn in those proceedings which in turn exhibited correspondence from the Law Institute of Victoria and the Registrar of the High Court respectively, indicating that Mr Little was not the holder of a current practising certificate and that he had been struck off the Register of Practitioners kept in the High Court Registry. He also exhibited to his affidavit before Lockhart J., a transcript of the proceedings in V G132 of 1990, ex tempore reasons for judgment in those proceedings given by Ryan J. and a copy of the judgment of Nathan J. delivered on 11 March 1988. Also exhibited were a copy of an application for special leave to appeal in the High Court sworn and filed by Mr Little on 3 January 1989 and a transcript of proceedings in which that special leave was refused on 13 October 1989. In his affidavit, Mr Cornall deposed that the Law Institute had recently commenced new proceedings against Mr Little in the Supreme Court of Victoria pursuant to s.90(7) of the Legal Professional Practice Act seeking an order restraining him from acting or practising as a barrister or solicitor while not the holder of a current practising certificate. At the time that the affidavit was sworn, those proceedings had been adjourned to 30 July 1990. He exhibited an affidavit sworn by him in those proceedings together with documents exhibited to it and deposed to the truth of that affidavit. The exhibited affidavit set out factual matters of a formal character relating to Mr Little's admission to practice, his cancellation of his membership of the Institute and his failure to pay practising fees in connection with his application for a practising certificate for the year commencing 1 January 1988. It set out a history of the 1988 proceedings under s.90(7), failure to pay the prescribed fee for 1990 and the fact that no practising certificate was issued to Little for that year. Correspondence between Mr Little and the Law Institute was annexed together with correspondence from the Australian Government Solicitor to the Law Institute which, it was said, indicated that he continued to practise as a solicitor without being the holder of a current practising certificate.
22. It was not until sometime between 9.15am and 9.30am on the first day of the hearing, that Mr Little gave notice orally to the Registrar's solicitors that he required Messrs. Huttner and Cornall to attend for cross-examination. His Honour referred to O.14 r.9 of the Federal Court Rules which deals with the giving of notice requiring the attendance of deponents for cross-examination. He held that although no time limit is imposed by the rule, it requires that notice be given within a time that is reasonable in all the circumstances. Having regard to the fact that the hearing date had been known for some weeks, notice given on the morning of the trial was not given within a reasonable time. His Honour therefore regarded the case as one in which no notice had been given and on that basis was prepared to receive the affidavits in evidence without their deponents being present for cross- examination. He went further and held that, having regard to the irrelevant or peripheral character of the matters upon which Mr Little proposed to cross-examine, he would, in the exercise of his discretion, have allowed the affidavit into evidence even if notice had been given and the deponent not been present for cross-examination.
23. Most of the material in the affidavits was irrelevant or only marginally relevant. For on the proper construction of s.55C of the Judiciary Act 1903, in the circumstances of this case, the only matter of which the Registrar had to be satisfied to enliven his duty to cause Little's name to be struck off the Register was that he did not hold a current practising certificate. And that was the only fact necessary to satisfy his Honour that the Registrar was obliged to act as he did. Most of the material in the affidavits was irrelevant to that conclusion, and the result would have been the same had none of it been admitted into evidence.
24. The contention that the learned trial judge substituted his own discretion for that of the Registrar arises out of the fifth ground of appeal. The meaning of the ground itself eludes precise definition. It is sufficient to say that it proceeds upon the assumption that the Registrar is exercising a statutory discretion in deciding whether or not to act under s.55C of the Judiciary Act 1903. As has already been observed, that assumption is incorrect. The Registrar was exercising a statutory duty and consideration of the matters referred to in this ground of appeal would not have altered it. Moreover the legal conclusion that the Registrar was under a duty to act as he did is a sufficient answer to the contention in the third ground of appeal that the learned trial judge ought to have found on the evidence that the Registrar had acted under the dictation of the Chief Justice of the High Court. Even if that were true, and his Honour found it was not, the Registrar, having no discretion in the matter, the only relevant question was whether or not he acted in accordance with his duty. For the reasons already given that question must be answered in the affirmative.
25. There were other matters raised in the grounds of appeal none of which disclose any tenable basis for interfering with his Honour's judgment.
26. The central question in this case has been disposed of against the appellant. A number of his contentions were raised on the erroneous assumption that the Registrar had a discretion in deciding whether or not to cause the particulars in relation to him to be struck from the Register. The Registrar had a duty to act as he did. In that context considerations relevant to the proper exercise of a discretion had no place. The appeal must be dismissed with costs.
# Re John David Little
Registrar of the High Court of Australia \[1991\] FCA 255; 101 ALR 247 29 FCR 544