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[2005] WASAT 334
State Administrative Tribunal (WA)
2005-12-15
Mr J, Judge J
Original judgment source is linked above.
ACT : LEGAL PRACTICE ACT 2003 (WA)
CITATION : VELTMAN and LEGAL PRACTICE BOARD [2005] WASAT 334
Professions Legal practitioners Admission in NSW Conditional practice certificate Mutual recognition in WA Request to vary conditions Initially refused Costs and compensation claimed
Mutual Recognition (Western Australia) Act 2001, s 17(1), s 20, s 20(1), s 20(2), s 20(3), s 20(4), s 20(5), s 27, s 27(4), s 29(2), s 34
Legal Practice Board Rules 2004 (WA), r 34, r 34(2), Pt 4
The claim for costs and compensation arising from the Legal Practice Board's initial decision refusing to vary the conditions of the applicant's practice certificate is dismissed
Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence [2000] FCA 900
Re Rowe and New South Wales Police Service (1997) 47 ALD 442
1 The applicant sought an order against the Legal Practice Board for costs including compensation arising from the Board's decision in May 2005 refusing to vary the conditions on her practice certificate. Those conditions imposed a period of supervised employed practice and completion of the New South Wales Practice Management Course before the applicant was eligible to practise on her own account in Western Australia.
2 The applicant was admitted in New South Wales (NSW) and initially obtained a practice certificate containing these conditions in that State. She then sought and obtained admission and the issue of a practice certificate in Western Australia under the Mutual Recognition (Western Australia) Act 2001. The Board imposed the same conditions as had been imposed in NSW, initially on the basis that this was what had been "recognised", and subsequently because disparity in the conditions between NSW and what might otherwise have been imposed in WA was not a sufficient ground to vary the conditions.
3 The applicant appealed to this Tribunal. Shortly thereafter the Board reviewed its decision and acceded to her request to vary the conditions, taking into account that a person in her position who had sought a practice certificate under the Legal Practice Act 2003 (WA) rather than the Mutual Recognition (Western Australia) Act 2001 would not have had the subject conditions imposed.
4 The applicant then sought costs and compensation arising from the Board's earlier decision.
5 The Tribunal found that no grounds for a claim for costs and compensation had been made out.
6 Ms Veltman, the applicant, is a legal practitioner. She originally made an application to this Tribunal in June 2005 for a review of a decision of the Legal Practice Board (the Board) made in May 2005. That decision in effect refused to vary the conditions originally imposed by the Board on her practice certificate. Subsequent to the application to the Tribunal, the Board, in July 2005, effectively reversed its May decision, in the applicant's favour, by varying those conditions. The substantive claim in this matter has therefore been resolved. What is left is a claim against the Board, for costs and compensation under s 87 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) arising from the Board's May 2005 decision. Unfortunately, in terms of the length of these reasons, that claim requires a consideration of the factual and legal matters underlying the substantive dispute, as well as a consideration of the circumstances in which costs and compensation may be ordered against a decision-maker such as the Board.
7 There is no dispute as to the facts. They are revealed in the bundles of documents produced in evidence by the parties. The Board's resolutions are conveniently summarised in the Board's hearing papers. (We mention that these papers, comprising a comprehensive outline of the facts, issues and contentions, and some supplemental submissions on the law, prepared by Mr Thomson, counsel, have been of singular assistance to the Tribunal in identifying the factual background and the matters in dispute.)
8 The applicant completed her law degree at the University of Western Australia at the end of 2001. She was then pregnant and elected therefore to not undertake articles training in Western Australia. For much of 2002 and early in 2003, the applicant worked as a paralegal in Perth, but during late 2002 and in 2003 she resided in New South Wales (NSW) and attended the NSW College of Law. In September 2003, the applicant completed postgraduate pre admission studies at the NSW College of Law, obtaining a Graduate Diploma in Legal Practice. In October 2003, she applied for and was admitted as a practitioner of the Supreme Court of NSW. She was advised by the Law Society of NSW (the regulatory body in that State which issues practice certificates) that the usual practice for a person in her position was to apply for a practice certificate in NSW which would then be recognised in Western Australia (WA). Acting on that advice she sought and obtained a practice certificate from the Law Society of NSW for the period to 30 June 2004 (and a further certificate for the period to 30 June 2005). That certificate was subject to conditions ("the subject conditions") which had to be fulfilled before she was eligible to practise as a sole practitioner being:
(1) a requirement for two years of employed practice under supervision ("the restrictive practice condition"); and
(2) completion of the NSW Practice Management Course ("the course condition").
We mention there was also a condition for completion of mandatory continuing education. That condition has not been the subject of dispute.
9 In January 2004, Ms Veltman applied for admission in WA as a legal practitioner and for the issue of a practice certificate under the Mutual Recognition (Western Australia) Act 2001 (the MR Act) which adopts (and appends) the Mutual Recognition Act 1992 (Cth). In her letter to the Board, dated 23 January 2003 (scil 2004), Ms Veltman requested that any conditions imposed be those which would apply to an applicant who had completed articles in WA and specifically that the period of restrictive practice be 12 months only.
10 In effect, the applicant was asking that her NSW diploma be treated as equivalent to her having served her period of articles in WA.
11 On 9 February 2004, conveyed by letter dated 23 February 2004, the Board, pursuant to the MR Act, resolved to grant Ms Veltman approval for admission to practise (it acting as the agent of the Supreme Court in the processing of her application), and to issue a practice certificate but subject to the same conditions as were applicable to her NSW certificate, that is, including the subject conditions. The Board's letter advised that these conditions would remain until revoked by it.
12 On 3 March 2004, Ms Veltman was admitted as a legal practitioner by the Supreme Court. On 27 April 2004, a conditional annual practice certificate was issued effective to 30 June 2004.
13 In April 2004, Ms Veltman was employed as a solicitor for the Geraldton Community Legal Centre. As a result of some difficulties in meeting the requirement for supervised practice and because of the "inappropriateness" of the subject conditions, as she saw it, she sought to have the subject conditions varied.
14 She first applied to the Board in this respect on 14 April 2004. In its meeting on 21 June 2004, relayed on 29 June 2004, the Board resolved that it was unable to reconsider the subject conditions "as such conditions were attached to [Ms Veltman's] NSW practice certificate, which were then mutually recognised by WA law". The conditions are then recited although, curiously, without reference to the relevant NSW statutes. However, as requested by Ms Veltman, the Board did resolve to permit her to be employed as a restricted practitioner at the Geraldton Community Legal Centre, subject to arrangements for supervision. (Importantly, it would appear that this permission was not in itself a condition of her practice certificate but rather a decision by the Board as to whether the provision restricting legal practice was satisfied. See letter from the Board dated 19 April 2004.)
15 On 1 July 2004, on Ms Veltman's application, the Board issued a further conditional annual practice certificate, expiring on 30 June 2005.
16 On 24 March 2005, the applicant by her solicitors, Clayton Utz (acting in a pro bono capacity), formally requested the Board, pursuant to s 40(2) of the LP Act, to remove the course condition and sought a reduction in the period of restricted practice from two years to one year. In its detailed submission, the solicitors argued that under the MR Act the Board had a discretion to impose the conditions of the first registration body, including in order to achieve equivalence of occupations between the States, but that it was not bound to do so. The solicitors pointed out that but for the practitioner obtaining a practice certificate in NSW, she might not have sought registration in WA under the MR Act, but rather applied for a practice certificate from the Board under the Legal Practice Act 2003 (WA) (the LP Act). For the purposes of the MR Act, this would have been "registration effected apart from" that Act. The argument put was that in those circumstances, the Board under the LP Act would be permitted to, and as a matter of practice would, impose only one year of restricted practice and, as a matter of practice at least, would not have imposed the condition as to completing the management course (letter par 5.11, par 5.12). The solicitors suggested that the Board's requirement of two years restricted practice was in conflict with s 33(2) of the LP Act, limiting the period of such practice to 12 months. The letter outlined Ms Veltman's employment in Western Australia to this time, including that she had completed 11 months of "legal supervised practice".
17 The application was first considered by the Board (by its delegate the Admissions and Registrations Committee) on 4 April 2005. The Board invited some further submissions in relation to alternative supervision arrangements (again these appear to be treated as relating to the satisfaction of an existing condition rather than as a condition itself). They were provided by Clayton Utz in its further letter dated 3 May 2005. That letter was largely concerned with arrangements for supervision. But it also advised that, in response to their enquiry, the Law Society of NSW had replied to the effect that its practice, when a practitioner from another State applied for registration under the Mutual Recognition (New South Wales) Act 1992, was not to impose the conditions of that State, but rather to "seek to match conditions imposed ... as nearly as possible by using the ... Practising Certificate Conditions ... in accordance with the principles of Mutual Recognition". The "Practising Certificate Conditions" are the standard NSW Law Society Conditions. The advice given appears to assume that the State originally issuing the practice certificate would have conditions substantially equating with the Practising Certificate Conditions. It is not said what would happen if they did not.
18 The Board then met again on 8 or 9 May 2005 and its decision was conveyed by letter dated 20 May 2005 by which:
(1) It acknowledged that it had power to waive conditions imposed in NSW, referring to s 27(4) of the MR Act.
(2) It acknowledged that the subject conditions were more onerous than if she had applied for a practice certificate first in WA.
(3) However, it had resolved that it would not waive the subject conditions because in its view, a disparity in conditions as between the States was not in itself sufficient ground for waiver.
(4) The Board then addressed and approved the alternative supervision arrangement which had been proposed. The Board suggested that the subject conditions did not appear to raise any practical fetter upon the applicant's ability to engage in legal practice.
19 We mention that it does not seem to us that the Board's reliance upon s 27 of the MR Act is correct. That section would seem to be confined to circumstances where there is a deemed registration in the second State, not as here, substantive registration.
20 The Board did not address the solicitors' argument based on s 33(2) of the LP Act limiting the period of restricted practice to 12 months. It appears to us that this argument overlooks that the Board's power under s 33(2) with respect to persons qualified to be admitted under s 27(2)(b), and the limitation on that power under s 33(3), do not affect the Board's powers to impose conditions of practice under the MR Act. Moreover, the applicant was not qualified to be admitted under s 27(2)(b) not having sought nor met the Board's requirements under that provision and under s 27(3) (but rather under the MR Act), such that s 33(3) had no application. It followed that the Board's powers under s 40(1), including to impose a period of restricted practice, were unconstrained.
21 Dissatisfied with the Board's decision, the applicant, on 8 June 2005, filed an application with the State Administrative Tribunal for review under s 44(c) of the LP Act and seeking a new decision varying the subject conditions in the manner she had sought in March 2005.
22 There was a directions hearing before this Tribunal on 28 June 2005 at which various orders were made for the filing of submissions and documents. On 12 July 2005, the Board advised the applicant that it sought an extension of time to comply with the directions in order to "enable it to consider the matter" at a meeting of the Board on 14 July 2005. At the meeting of the Board on that day and communicated that day, it resolved after reviewing the matter, to remove the course condition and vary the restricted practice condition to provide for a period of one year in place of two years. No reasons were then given in support of that apparent change of position by the Board. However, evidence as to those reasons were provided to this Tribunal at its request. In summary, the Board, on reflection, accepted the argument that as a person in the applicant's position but who had applied for a practice certificate under the LP Act (that is, rather than seeking recognition of a NSW practice certificate under the MR Act) would have restriction on sole practice limited to 12 months, it was "fair" to apply the same condition to Ms Veltman. The letter invited the applicant to discontinue the application to this Tribunal.
23 The applicant then sought confirmation from the Board that the restricted practice condition had been satisfied and was therefore removed from her certificate. The Board in accordance with its usual practice sought confirmation from Ms Veltman's most recent employers as to her employment with them. That was duly provided by letters from Michael Tudori & Associates, her current employer, dated 21 July 2005 and from the WA Legal Aid Commission, a past employer, dated 28 July 2005. The Board then advised the applicant, by letter dated 1 August 2005, that the condition had been satisfied and that she was now entitled to hold (and, presumably, held) an unrestricted practice certificate.
24 On the basis of this action by the Board, Ms Veltman withdrew her substantive application for a review of the Board's decision of May 2005 and the Tribunal gave her leave to do so during the hearing on 3 August 2005. However, she then sought costs and incidentally thereto compensation, arising from the Board's May 2005 decision.
25 Ms Veltman appears to put her case for costs and compensation on the basis that in its determination in May 2005, refusing to vary the subject conditions for the reasons given, the Board did not "genuinely attempt to make a decision on its merits" for the purposes of s 87(4) of the SAT Act. In argument, the applicant supported this proposition on the basis that the lack of genuine attempt was the consequence of the Board applying a "policy" (attachment of the same conditions as for her NSW practice certificate) without examining the particular merits of her case. As to this, if made out, it would constitute a possible ground for a claim for costs and compensation irrespective of the "lack of genuine attempt" argument.
26 The applicant, at the hearing, did not produce any independent evidence or documentary evidence supporting her claim for costs and compensation. We directed that the substantive claim should be resolved first and, depending on the outcome, the applicant would then, if necessary, be given an opportunity to produce that supporting material.
27 The applicant also claims costs and compensation by reason of the failure of the Board on 14 July 2005, in effect, forthwith to remove the restricted practice condition. That is, it is said that the Board's request for confirmation of the applicant's recent employment records was unnecessary and caused the applicant to incur costs.
28 We should say at once in relation to this second head of claim, that it seems to us perfectly proper for the Board, once it varied the restricted practice condition, to have sought confirmation of the applicant's employment records before removing the condition. Under s 33(4) of the LP Act, the Board is to be satisfied that the period of employed practice has been met. Once that confirmation was provided, the Board immediately advised that the condition had been met. This part of the applicant's claim is without foundation.
29 The Board takes as a preliminary point that to the extent that the claim is based upon its decision in May 2005 (as the applicant at the hearing confirmed), that was not a "reviewable decision" for the purposes of s 44(c) of the LP Act. This is because it was not "a decision of the Board ... to vary the conditions subject to which a practice certificate is issued to the legal practitioner". Rather it was a decision to not vary the subject conditions it had imposed on 9 February 2004.
30 As to the substantive matter, the Board's position was that:
(1) it was "strongly arguable" that the Board was obliged by the MR Act to impose and continue the subject conditions (this being contrary to the Board's own stated position in May 2005 that it had a discretion in this respect);
(2) alternatively, to the extent it had a discretion to impose the subject conditions, that discretion was, at least arguably, properly exercised.
31 The Board also submits that the applicant has not shown a causal link between the costs and compensation claimed and the effect of the Board's relevant decision. Further, in the course of the hearing, Mr Thomson noted that the claim for compensation largely comprised a "lost opportunity cost". He suggested this did not fall within s 87(3) of the SAT Act, which was confined to compensation for "expenses, loss, inconvenience, or embarrassment". In the Board's further written submissions, the argument was developed to the effect that the reference to "loss" equated to special damages such that there was no scope to allow a claim for "lost opportunity cost" which was in the nature of "general damages". That submission is not persuasive if only because claims for "embarrassment" and "inconvenience" which are clearly in the nature of general damages are specifically included in s 87(3).
32 However, the reference to "loss" rather than to "damage" might well suggest the loss is one "incurred" rather than one for "damage" in the nature of a lost opportunity claim (or, say, for lost profits). That distinction is well recognised as a matter of legal principle. As appears however, the point is not necessary for us finally to decide.
33 The applicant did not put her case of a lack of genuine attempt by the Board to make a decision on the merits by reference to the change of position on the part of the Board in July 2005. However, it seemed to us that this unexplained reversal by the Board might provide a foundation for the applicant's claim for compensation and costs or at least was relevant to it. We put this proposition to the Board and invited it to adduce some additional evidence as to the reasons for its change of mind. The Board did provide further evidence as outlined herein.
34 As mentioned, the applicant's application was made on 8 June 2005 under s 44(c) of the LP Act. It therefore falls within the Tribunal's "review jurisdiction" for the purposes of the SAT Act. Once those proceedings were commenced, s 26 of the SAT Act proscribed the Board making a new decision except in certain circumstances, including where the parties to the proceeding consented thereto. What happened here was that, after the application was made to the Tribunal by Ms Veltman, the Board, on 14 July 2005, made a further decision removing the subject conditions.
35 The applicant did not take any point about the Board's latest decision. She would not be expected to, given that it gave her the unrestricted status to practise which she had long sought. We are prepared to infer therefore that the parties gave consent to the making of the new decision as is required by s 26(d) of the SAT Act. We assume, without deciding, that consent can be given after the relevant decision is made.
Provisions of Legal Practice Act 2003
36 For the purposes of both the preliminary and the substantive aspects of this claim, it is necessary to consider the provisions of the LP Act.
37 It may be said at the outset, that the general scheme of this legislation is that before a person is entitled to practise law in WA he or she must undergo a two stage process. In the normal course, a person will complete a law degree followed by a period of articles of clerkship, currently 12 months, under the supervision of a legal practitioner. The applicant for admission must then establish to the satisfaction of the Board that he or she is of good fame and character and fit and proper to be admitted to legal practice. Following a ceremony in that respect, the person is then admitted as a barrister and solicitor or a barrister or solicitor of the Supreme Court and signs the Roll of Practitioners. That person, now a "legal practitioner", is entitled to a certificate of admission. This is the first stage. The legal practitioner may then apply for a practice certificate and must do so if he or she wishes to engage in legal practice. The Board has the power to refuse a practice certificate on specified grounds. If it issues a practice certificate, the Board may do so conditionally or unconditionally. The conditions may include that the holder of the practice certificate is subject to supervision. The issue of a practice certificate is the second stage of the process. The person is now a "certified practitioner".
38 Importantly therefore, admission does not of itself entitle the person to practise on his or her own account. They must first complete a period of 12 months as an employed legal practitioner.
39 It will be apparent then that in the normal course, a law graduate will be required to undertake 12 months as an articled clerk, and a further 12 months under supervision (in "restricted practice") before they may practise on their own account.
40 The specific provisions are as follows.
41 Part 3 provides for persons to be articled to a legal practitioner. The Legal Practice Board Rules 2004 (WA) (LPB Rules) by r 34 provides for the term of articles to be a period of one year (or for a period of six months where certain work experience requirements are met).
42 Part 4 of the LP Act and the Rules provide for admission. Section 27(2) and s 27(3) of the LP Act provides that a person is qualified to be admitted as a legal practitioner if that person has:
(a) fulfilled the requirements for the taking of a law degree in a specified university or which the Board recognises is substantially equivalent;
(b) has served for the requisite time under articles of clerkship to a legal practitioner; and
(c) has completed prescribed practical legal training (Under Rule 34(2) of the LPB Rules the Articles Training Program is the prescribed practical legal training course).
(a) obtained a qualification that in the opinion of the Board is substantially equivalent to the degree mentioned in (1); or
(b) obtained experience in legal practice in another equivalent jurisdiction; and
(c) met the additional requirements of the Board including
43 Section 28 of the LP Act sets out the practical requirements for admission, including requirements to advertise the notice of intention to apply, paying the prescribed fee and providing adequate evidence to show that the person is of good fame and character and fit and proper to be admitted. Section 30 then provides for admission by the Supreme Court and by s 31 the practitioner must upon admission, sign the Roll of Practitioners.
44 Section 33(1) of the LP Act provides however, that a person qualified to be admitted under s 27(2)(a) (qualification and articles in WA), is not entitled to and must not practise on their own account until, after admission, that person has completed a term of 12 months as an employed practitioner. If however a person is qualified to be admitted under s 27(2)(b) (equivalent qualification and experience and additional conditions), then before they may practise on their own account the Board may require the person to complete, after admission, a period of not more than 12 months as an employed practitioner (s 33(2), (3) and (4)).
45 Part 5 of the LP Act deals with practice certificates. Section 35 provides that a practice certificate is required by every legal practitioner engaged in legal practice whether or not as an employee. Section 37 provides for applications for practice certificates. Section 38 provides for refusal of a practice certificate.
46 Section 40(1) provides the Board may issue practice certificates unconditionally or subject to conditions.
47 Section 40(2) is important for present purposes:
"The Board may, by notice in writing given to the holder of a practice certificate, add to, vary or revoke a condition of a practice certificate, whether or not the certificate was originally issued unconditionally."
48 As a matter of construction, the power to "add to, vary" would seem to be of "a condition" of the practice certificate (as it clearly is for "revoke"), rather than of the practice certificate itself. It follows that as it applies to unconditional certificates, the provision has limited scope. As a matter of ordinary language it is not possible to "add to, vary or revoke" a condition unless it originally existed. And it is not possible on any view to "vary" or "revoke" a condition which did not originally exist, so that the Board's power in that respect is confined to existing conditions. The qualification ("whether or not ...") can only attach to "add to", so as to mean that a condition may be "added to" a certificate which originally did not contain conditions. There do not appear to be procedures or guidelines provided for the exercise of the Board's power under this section, either under the LP Act or the LPB Rules. It would seem that either the Board might determine to use its powers under this section, for example to add a condition perhaps on a report of misconduct by a third person, or, as here, a legal practitioner might apply to the Board to exercise its powers to vary a condition, to make it less onerous, or to revoke a condition.
49 By s 40(3) the conditions which may be imposed include requiring the holder to undertake legal practise subject to supervision or restricting the type of legal practice or restricting practice to that of an employee of a specified person. Notwithstanding a reference in the preamble of s 40(3) only to s 40(1), these conditions are presumably capable of being imposed either originally under s 40(1), or subsequently under s 40(2).
50 A practice certificate if issued on the application of a certified practitioner is valid for 12 months and, if issued on the application of a legal practitioner, is valid until the following 30 June (s 42).
51 Section 44 of the LP Act, under which the subject application was initially made, provides for "Appeals" as follows:
"A legal practitioner may apply to the State Administrative Tribunal for a review of a decision of the Board -
(a) to refuse to issue a practice certificate to the legal practitioner [clearly a reference to the Board's power to do so under s 38];
(b) to issue a practice certificate to the legal practitioner subject to conditions [clearly a reference to the Board's power to do so under s 40(1)]; or
(c) to vary the conditions subject to which a practice certificate is issued to the legal practitioner."
52 The decision to "vary" the conditions is seemingly a reference to the Board's powers under s 40(2). As indicated above, the expression used in that subsection is "add to, vary or revoke" a condition. The difference is that whereas s 40(2) is directed to the Board's powers with respect to adding to, varying or revoking a condition, s 44(c) refers to its decision to "vary the conditions" of a practice certificate. A "variation" might be treated as including by "addition" or "revocation", such that the power of review covers any "variation" of conditions, including by addition, variation, or revocation. In any event, the Board did not contend otherwise.
53 The Board's argument rather is that s 44(c) is confined to "a decision" of the Board "to vary the conditions". That is, the section is read as if a reviewable decision is only one which positively "varies" a condition. A decision which considered an application to vary a condition, but in the result left it unchanged (as here) is not, on this argument, open to review. When it was put to him, Mr Thomson's position was that there was only a reviewable decision where the status quo in relation to the certificate had changed, in practice, adversely to the legal practitioner. (If it were favourable, the practitioner would not be expected to seek review.) The Board argued that where it had originally imposed a condition which it subsequently, on the practitioner's application, refused to vary, the practitioner was without a remedy except insofar as he or she was able to seek a review of the original decision. That is, relevantly on 9 February 2004, when the Board first imposed the condition under s 40(b). (In fact, it would seem open to the applicant to have also sought review of the decision of the Board on 30 June 2004, in issuing a new certificate with the same conditions. So much would appear to have been acknowledged by the Board in its Supplementary Submissions.) Mr Thomson submitted that it could not have been the intention to give the practitioner a right of review triggered by any unsuccessful application to the Board to vary the conditions, including, for example, one made shortly after the conditions were first imposed.
54 On a literal construction of s 40(c), the Board's view appears correct. The power of review is not as to a decision "to vary or not to vary" or "concerning" a variation. There is some support for this construction also by reference to the earlier subsections. Thus, s 44(a) specifically provides for a review of the decision to refuse a certificate. The draftsman does not assume the position is covered by s 44(b) providing for a review of the Board's decision to issue a conditional certificate and, implicitly, otherwise, including a decision to refuse such a certificate.
55 The distinction between the Board changing or not changing the status quo is clear enough, and it is understandable that the legislation might seek to confine a right of review to a decision, made at the instance of the Board, which operates to increase the burden of conditions on a practice certificate. However, where, as here, it is the practitioner who has sought a variation in conditions; it is not easy to see why a variation to the conditions gives rise to a right of review, including arguably a review of those parts of the decision which did not result in a change in the conditions, but a decision which does not vary the conditions in any respect. For example, if the Board's decision in May 2005 in relation to supervision could be treated as a "variation" to the conditions governing restrictive practice, that would arguably have given the practitioner a right of review generally, including as to the subject conditions.
56 This preliminary issue is not easily resolved. However, notwithstanding our reservations as to the rationale for limiting a right of review to one which changes the status quo, the plain words of s 40(c) are such that we think the Board's argument must be accepted as correct. We would uphold the preliminary point.
57 We note from the applicant's Further Submissions (par 13) that the Board had, on the directions hearing, indicated to the Tribunal that jurisdiction was not disputed. If that is so, then the preliminary issue raised by the Board would appear to have been an afterthought. Nevertheless, the point having been raised and it going to jurisdiction, it must be dealt with.
58 On this basis we would entertain an application by the practitioner for an extension of time to seek a review of the Board's decisions of 9 February 2004 and (if sought) on 30 June 2004 (the issue of the further conditional certificate). However, no such application has been made and for reasons which follow we do not think anything could be achieved by such an application.
59 In case we are wrong on the preliminary point, we turn to the claim for costs and compensation. It will be recalled that the applicant's argument is that in reaching its decision in May 2005 by which it refused to alter the subject conditions, the Board did not genuinely attempt to make a decision on its merits.
60 The Board's submission was that it was not necessary for this Tribunal to make a determination as to whether the Board was correct in the stand it took in relation to the imposition and maintenance of the subject conditions, but only that the Board had genuinely reached its decision on the merits. That proposition is clearly correct and given the difficulties of construction of the MR Act, is gratefully adopted. However, it is hardly possible to determine whether the Board genuinely reached its decision on the merits, without having regard to the issues before it.
61 That requires a brief consideration of the relevant provisions of the MR Act.
62 The Mutual Recognition Act 1992 (Cth) (the Commonwealth Act) was originally adopted by WA in 1995 but subject to the Act terminating in 1998. It has since been extended on several occasions. The current MR Act, which attaches the Commonwealth Act as a "note" continues the adoption of the Commonwealth Act to 2011. (References in these Reasons to sections of the MR Act are references to the sections of the Commonwealth Act.) Note that as the Commonwealth Act is federal legislation operating in WA there would, in the usual course, also be a right of review against a decision of a registration body to the Administrative Appeals Tribunal. See s 34 of the MR Act and Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence [2000] FCA 900 (5 July 2000), Full Federal Court, French J at [19].
63 Section 17(1) (and s 20(1)) relevantly provides that "the mutual recognition principle" is that a person who is "registered" (in this context relevantly, first, admission as a legal practitioner and secondly, the issue of a practice certificate) in the first State (here NSW) for an occupation, is entitled after notifying the local registration authority of the second State (here WA) for the equivalent occupation, to be registered in the second State for the equivalent occupation. "Occupation" is defined to include any trade etc that may be carried on only by registered persons, where registration is wholly or partly dependent on the attainment or possession of some qualification.
64 By s 20(2) the local registering authority may grant registration on the basis of registration in the first State and may grant renewals of such registration. Section 20(3) provides that once a person is so registered, the entitlement to registration continues whether or not registration (including renewal of registration) ceases in the first State. By s 20(4) continuance of registration is otherwise subject to the laws of the second State to the extent to which those laws apply equally to all persons carrying on, or seeking to carry on, the occupation and are not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation.
65 By s 20(5) (and see s 29(2)) the local registering authority may impose conditions on registration, but not such as are more onerous than would be imposed in similar circumstances if it were effected apart from this Part, unless they are conditions that apply to the person's registration in the first State or that are necessary to achieve equivalence of occupations. (Note here the disjunctive "or".)
66 Division 3 provides for deemed registration. Under s 27(4), the local registration authority of the second State may waive any condition imposed under the law of the first State if it thinks it is appropriate in the circumstances. (No such provision is included in relation to substantive registration, presumably because no existing conditions imposed by the first State continue - although, under s 20(5) they might be 'reimposed'.)
67 "Equivalent occupations" are the subject of s 28 and s 29. By s 29(1) an occupation for which a person may be registered in the first State is taken to be equivalent to an occupation for which persons may be registered in the second State. However, this principle is subject to s 29(2) by which conditions may be imposed on registration under the Act so as to achieve equivalence between occupations in different States. Under s 39 it is the duty of each local registration authority to facilitate the operation of this Part and to make use of the power to impose conditions in such a way as to promote the mutual recognition principle. However, that this may not be achievable is recognised by s 23(1)(c), by which the local registering authority may refuse registration if it decides that the occupation is not an equivalent occupation and equivalence cannot be achieved by the imposition of conditions.
68 The subject of equivalent occupations and the place of conditions under the scheme was considered in Board of Examiners under the Mines Safety & Inspection Act 1994 (WA) v Lawrence. French J at [50, 68] regarded as a "helpful approach" the decision of the Administrative Appeals Tribunal in Re Rowe and New South Wales Police Service (1997) 47 ALD 442 at 444:
"It is clear from this section [s 29] that there are, in practical terms five distinct steps to be undertaken in determining the equivalence of occupations. The first is to identify the occupation for which the person is registered in the first state or territory. This is followed by the identification of the activities authorised to be carried out under that registration. The third step is to identify an occupation in the second state or territory for which a person may be registered and the fourth to ascertain the activities to be carried out under that registration. A comparison is then made between the activities authorised to be carried out under each of the registrations to determine whether those activities are substantially the same. That is the fifth step. Part of that fifth step is to consider whether conditions should be imposed on registration to achieve equivalence between those occupations."
69 It is clear from this analysis that it is not merely an examination of the "occupation" under the first State which is required, but of the "activities authorised to be carried out" under that registration. A comparison is then made between that occupation and related activities and the occupation and related activities of the second State. For example, if the authorised activities under the regime of the second State are wider than provided for under the first State, then conditions, perhaps requiring further training or experience, might be imposed to achieve equivalence. This seems clear enough.
70 The more difficult circumstance is where the conditions imposed by the first State are more onerous than those which would otherwise be imposed by the second State if registration were effected otherwise than under the MR Act. Section 20(5) makes clear that in those circumstances the second State may impose (that is, effectively continue) such conditions but provides no guidance as to the circumstances in which it should. Arguably, what lies behind this section is recognition of the desirability of upholding the standards of registration of the first State.
71 Here there is no issue generally with respect to equivalent occupations and the associated activities - both States provide for and regulate "legal practitioners". Both States also recognise the desirability of a period of supervised practice. The relevant "activities" which the applicant was registered for in NSW did not extend to sole practice until the conditions were satisfied. The Board was required to consider the conditions originally imposed in NSW, which effectively restricted the applicant's activities there, and to consider their applicability and appropriateness to the applicant practising in WA. It could then apply conditions to the applicant's practice certificate either on the basis that the NSW conditions had continuing relevance or which provided for equivalence. That might lead to the imposition of conditions on the applicant's practice certificate which, for the purposes of s 20(5) (and s 29(2)) of the MR Act, were "more onerous than would be imposed in similar circumstances .... if it were registration effected apart from this Act" namely, under the LP Act.
72 There is an issue arising from this brief analysis of these provisions which does not appear to have been considered by the parties. That is, that upon the applicant's application for a further practice certificate in June 2004, the matter was arguably one of the "continuance of registration" governed by s 20(4). That being so, the matters for consideration by the Board did not, directly at least, extend to the application of the MR Act including the imposition of conditions under s 20, but rather were governed by the LP Act and relevantly s 40. Reading s 20(3) and s 20(4) together, it would seem that the intent is that following initial recognition of "registration" (relevantly here admission and first certification) any renewal of the practice certificate would be governed by the LP Act as the law of the second Sate. There is the qualification in s 20(4) of the MR Act, by which the local laws do not operate where based upon possession of experience. It seems doubtful that s 40 of the LP Act, allowing for the imposition of conditions, is to be so regarded, for it is a discretionary power which if exercised conditions the "registration" rather than precluding it. However, as we have not had the benefit of submissions from the parties and as our decision does not ultimately depend upon this consideration, we do not express a concluded view on this aspect.
73 With respect to the Board's decisions to impose and maintain the restrictive practice condition, it was open to the Board to support that position for either of the reasons provided by s 20(5) of the MR Act. That is, first because it considered the NSW condition appropriate for someone graduating in legal practice in NSW and thereafter seeking to practise in WA, that applicant having some limited legal experience but without having undertaken articles prior to admission. Second, because it considered that such a condition was necessary to achieve "equivalence" of occupation and activities in WA, namely the right to practise as a legal practitioner but subject to supervision for an appropriate period.
74 The Board's decision to impose and maintain the course condition is less easy to justify. It seems likely that the Board's concern was that the applicant did not commence practice on her own account without some practical training in the matters covered by the course, for example, in relation to trust accounts. No doubt such instruction would generally have been as appropriate to practise in WA as in NSW. However, to in effect require the applicant either to return to NSW to undertake the course or to forego her right to practise unsupervised by reason of the failure to satisfy this condition, does not seem to us to have been necessary. A more appropriate condition would have been either that the applicant undergo a similar course in WA (for example, as provided under the Articles Training Program) or that she have some specific instruction, perhaps by her supervising practitioner, in the subjects covered by the course. In the event however, it seems in practical terms little turns on the Board's decision in relation to this condition. This is because to the extent that the restricted practice condition was supportable (as we think it was) it precluded the applicant practising on her own account, and it endured until the Board's July 2005 decision to remove both conditions.
Genuine attempt to make a decision on its merits
75 It is clear enough from the evidence in this case that the Board originally did not approach the question of the imposition of the conditions in the manner we have outlined. Rather, it appears to have assumed that it was obliged to impose the same conditions as were imposed on the applicant's practice certificate in NSW. Indeed at the hearing, the Board through its counsel, continued to maintain this position as its first alternative submission. In his alternative submission, this practice appears to have been treated as a "policy" of the Board to be applied by it to persons who had obtained recognition under the MR Act.
76 It does not seem to us, on our reading of the MR Act, that the first alternative submission is correct. From the outline given above, it is clear that the Board, as the "second State", had a discretion whether to impose the conditions of the first State. It might impose those conditions because originally provided (and continued for good reason), or to achieve equivalence. But there is nothing in the MR Act which compelled it to do so.
77 By the time of the Board's subject decision, in May 2005, it accepted that it had a discretion in the matter. It also acknowledged that the subject conditions were more onerous than would be the case if the applicant had not obtained a NSW practice certificate, that is, if she had obtained admission under the MR Act but sought certification under the LP Act. Its position however, was that a disparity in conditions as a result of differing legislation was not in itself sufficient ground for waiver of conditions. There was no elaboration of this by the Board at the time or at the hearing. In the Board's supplementary submissions it sought to justify the imposition of the subject conditions on the basis that it reflected its "policy" which in the circumstances applied to the applicant. At best the reason given appears to mean that the Board continued to regard the NSW conditions as of continuing relevance and appropriateness. This position might be supported on the basis that, at the time of the issue to her of the practice certificate, the applicant had had some work experience but had not undertaken the usual period of 12 months articles. What can be put by the applicant however, is that the Board's decision in July 2005 to reduce the period of restrictive practice to 12 months, and the reasons now given in support of that decision, suggest that the Board did not in May 2005 give consideration to the equivalent position of WA graduates whose admission in NSW was mutually recognised, but who applied for a practice certificate under the LP Act and whose limitation on practice was 12 months only.
78 That does not of itself lead to the conclusion that in May 2005, the Board did not genuinely attempt to make a decision on its merits. The Board clearly had regard to the submissions made on behalf of the applicant by Clayton Utz. It made some enquiries in relation to the supervision aspects. It further considered the provisions of the MR Act and reached a decision that it indeed had a discretion in the matter. It must be taken to have regarded the subject conditions as of continuing relevance. Importantly, in the additional evidence provided by the Board after the hearing, there is a Report of the Law Admissions Consultative Committee in February 2002 entitled "Towards a National Legal Profession". This expressly supports the position that where the applicant for registration is subject to a period of restricted admission (practice) in his or her home State (relevantly here NSW) which is longer than the period of restrictive admission (practice) which applies in the State in which registration is sought (relevantly WA), it is suggested that the second State should impose as a condition the longer period. That report also supports a uniform period of two years restricted admission applicable to all jurisdictions. Whether or not that report was in the minds of the members of the Board in May 2005, it supports the policy which they had adopted and the decision which they took. Moreover, it is to be borne in mind that under s 20(5) of the MR Act (assuming it is applicable for "renewals of registration"), the regulating authority of the Second State is entitled as a matter of discretion to impose the first State conditions independently of the need to achieve equivalence.
79 Having now seen and considered the further evidence from the Board, we do not regard the circumstance that in July 2005, the Board reconsidered the matter and changed its mind as evidence of a lack of genuine attempt in May 2005 to reach a decision on its merits. The evidence shows that following its earlier decision, the Board, by its Chairman Mr Penglis, reflected on the matter. Although he regarded the earlier decision in relation to the course condition as supportable, particularly having regard to the Report mentioned, in the interests of the equality of treatment of persons in a similar position to Ms Veltman, he advised her application be acceded to and arranged a further meeting of the Board to consider the matter. The Board was persuaded to accept this position.
80 There was not the same consideration given to the justification for maintaining the course condition. We infer that having decided against applying the policy with respect to the restrictive practice condition it was thought appropriate also to review the application of the policy to the course condition. It was decided to vary, by revoking, the course condition. As mentioned, whatever the merits of maintaining that condition to July 2005 (as to which we have reservations) it could not have any causative effect given the existence of the course condition to this time.
81 Moreover, it is apparent from the provisions of s 87(4) that where an application for costs is made, this Tribunal is to have regard to whether the decision-maker genuinely attempted to make a decision on its merits. It does not follow from a determination that for some reason or in some respect the decision-maker failed to have regard to some relevant matter, that would constitute less than a genuine attempt such that costs would automatically follow, much less so merely because the decision was not upheld by this Tribunal. Here the question under consideration was complex. The interpretation and operation of the MR Act is difficult, no doubt because it attempts to apply uniform recognition principles across a range of occupations each otherwise governed by individual State Acts. The Board was obliged to consider whether the applicant ought meet the conditions originally imposed in her "home" State (NSW) and generally whether she had the necessary training and experience before practising on her own. As a matter of fact she was in a different position from persons who first sought the issue of a practice certificate in WA. Those were weighty considerations affecting the integrity of the legal profession and the protection of the public.
82 In all the circumstances, irrespective of our decision on the preliminary issue, we do not think an award of costs and compensation is appropriate.
83 The claim for costs and compensation arising from the Legal Practice Board's decision refusing to vary the conditions of the applicant's practice certificate is dismissed.
I certify that this and the preceding [83] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT