York v Council of the Law Society of New South Wales [2025] NSWCATOD 152;

"The matter is therefore finalised and the file will be closed."

1. Nevertheless, in assessing the application to renew the applicant's practising certificate, the Council considered the breaches of the Uniform Law arising from the applicant's failure to comply with conditions attached to his practising certificate; and proposed the addition of discretionary considerations, by consent. It is apparent from the 18 August decision that the applicant consented to those discretionary conditions.
2. Despite the applicant's consent to those conditions, the Council clarified that it was not possible to relieve the applicant of Condition 2, which arises in accordance with s 49 of the Uniform Law and r 14 of the Uniform Rules.
3. By the letter of 18 July 2025, the Council determined to approve the renewal of the practising certificate with Condition 2.
4. The 18 August decision itself is set out in a letter of the same date, which responds to correspondence from the applicant dated 1 August 2025 consenting to certain discretionary conditions and requesting a practising certificate.
5. In that letter, the Director of Legal Regulation, Professional Standards, the Law Society of New South Wales relevantly states, in effect:

(1) The applicant is fit and proper to hold a practising certificate and the respondent has approved the renewal of the applicant's practising certificate under s 45(4) of the Uniform Law.

(2) The statutory requirements mean that the applicant must engage in supervised legal practice for a period of two years under s 49 of the Uniform Law and r 14 of the Uniform Rules.

(3) The respondent "does not consider that s 45(4) of the Uniform Law can remedy the statutory obligations detailed in s 49 of the Uniform Law and r 14 of the Uniform Rules".

(4) Rather, s 49(4) provides the basis for granting an exemption from the requirement to undertake two years of supervised legal practice. The applicant has provided no evidence of prior legal practice which would warrant the grant of an exemption.

(5) As there is no basis for the exercise of discretion by the Council under s 45 of the Uniform Law to exempt the applicant from the requirement to undertake supervised legal practice for a period of two years, the applicant's practising certificate is renewed subject to that condition (i.e., Condition 2).

1. The applicant submits that the 18 August decision, ultimately, amounts to constructive refusal to grant him a practising certificate. This is for the following reasons:

(1) The applicant applied under ss 43 and 44 of the Uniform Law for a practising certificate without Condition 2.

(2) The Council renewed his practising certificate subject to Condition 2.

(3) The applicant was, therefore, not granted the practising certificate that he sought.

(4) Further, given his age, the applicant is unable to ever satisfy Condition 2.

(5) Accordingly, the 18 August decision was a decision to "refuse to grant an Australian practising certificate"; being a refusal to grant the practising certificate sought.

1. Further, the applicant contends that the decision to refuse to grant the certificate was a decision under s 89 of the Uniform Law.
2. The respondent submits that the application for review does not seek to review a decision of the respondent made under either ss 89 or 92 of the Uniform Law, and as these are the only provisions that could enliven NCAT's jurisdiction, NCAT's jurisdiction is not enlivened.

Whether the 18 August Decision was a decision under sections 89 or 92 of the Uniform Law

1. As the applicant submits that the 18 August decision was made under s 89 of the Uniform Law, it is helpful to set out the relevant legislation.
2. Section 89 of the Uniform Law provides:

89 Automatic show cause events - action by local regulatory authority

(1) If the applicant or holder gives a statement required by this Subdivision, the designated local regulatory authority must determine whether the person concerned is a fit and proper person to hold a certificate.

(2) The designated local regulatory authority may vary, suspend or cancel, or may refuse to renew, a certificate if the applicant or holder -

(a) fails to provide a statement as required by this Subdivision; or

(b) has provided a statement in accordance with this Subdivision but the designated local regulatory authority does not consider that the applicant or holder has shown in the statement that, despite the show cause event, he or she is a fit and proper person to hold a certificate (or can be considered such a fit and proper person if the designated local regulatory authority is satisfied that doing so is warranted in the circumstances); or

(c) has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation.

(3) If the designated local regulatory authority determines that the applicant or holder is such a fit and proper person (or can be considered such a fit and proper person if the designated local regulatory authority is satisfied that doing so is warranted in the circumstances), it -

(a) must take no further action in relation to the show cause event; but

(b) may impose a discretionary condition that it considers appropriate in the circumstances.

(4) In determining a matter under this section, the designated local regulatory authority -

(a) may, but need not, conduct an investigation into the matter; and

(b) is not limited to making its determination, or conducting any such investigation, on the basis of just the automatic show cause event concerned; and

(c) may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the automatic show cause event concerned.

1. Section 89 prescribes the action that must be taken by the Council towards an applicant or holder where an automatic show cause event has occurred in relation to that applicant or holder.
2. Section 86 of the Uniform Law sets out what constitutes an automatic show cause event. It states:

86 Nature of automatic show cause events

An automatic show cause event is any of the following in relation to a person who is an applicant for or the holder of a certificate -

(a) a bankruptcy-related event;

(b) his or her conviction for a serious offence or a tax offence, whether or not -

(i) the offence was committed while he or she was engaging in legal practice as an Australian legal practitioner or was practising foreign law as an Australian-registered foreign lawyer; or

(ii) other persons are prohibited from disclosing the identity of the offender;

(c) an event of a kind specified in the Uniform Rules for the purposes of this section.

1. The Uniform Rules do not specify an event that would, in addition to those specified in s 86 of the Uniform Law, constitute an automatic show cause event.
2. The applicant has not provided evidence to support the proposition that there was the occurrence of an automatic show cause event in relation to him.
3. On the contrary, as detailed above, the history of the matter indicates that the Council considered that there had been the occurrence of designated show cause events, because of the applicant's undertaking of unsupervised legal practice and his failing to hold professional indemnity insurance. Designated show cause events are the purview of s 92 of the Uniform Law.
4. Section 92 provides:

92 Designated show cause events - action by local regulatory authority

(1) If the holder provides a statement required by this Subdivision, the designated local regulatory authority must determine whether the person concerned is a fit and proper person to hold a certificate.

(2) The designated local regulatory authority may vary, suspend or cancel, or may refuse to renew, a certificate if the holder -

(a) fails to provide a statement as required by this Subdivision; or

(b) has provided a statement in accordance with this Subdivision but the designated local regulatory authority does not consider that the holder has shown in the statement that, despite the show cause event, he or she is a fit and proper person to hold a certificate (or can be considered such a fit and proper person if the designated local regulatory authority is satisfied that doing so is warranted in the circumstances); or

(c) has failed without reasonable excuse to comply with a requirement under Chapter 7 made in connection with an investigation of the show cause event concerned or has committed an offence under that Chapter in connection with any such investigation.

(3) If the designated local regulatory authority determines that the person is such a fit and proper person (or can be considered such a fit and proper person if the designated local regulatory authority is satisfied that doing so is warranted in the circumstances), it must take no further action in relation to the show cause event but may impose a discretionary condition that it considers appropriate in the circumstances.

(4) If the designated local regulatory authority determines that the person is not such a fit and proper person (or cannot be so considered such a fit and proper person), it may take the action specified in the notice referred to in section 90 or take less onerous action that the designated local regulatory authority considers appropriate.

(5) In determining a matter under this section, the designated local regulatory authority -

(a) may, but need not, conduct an investigation into the matter; and

(b) is not limited to making its determination, or conducting any such investigation, on the basis of just the designated show cause event concerned; and

(c) may have regard to the facts and circumstances that surround, arise in connection with, relate to or give rise to the designated show cause event concerned.

(6) The designated local regulatory authority is not to deal with a matter under this section if the matter has previously been the subject of investigation or determination under this Law unless the designated local regulatory authority is satisfied there are exceptional circumstances for doing so.

90 Nature of designated show cause events

A designated show cause event is the service of a notice on a holder of a certificate -

(a) alleging -

(i) in the case of a holder of an Australian practising certificate - that the holder has engaged in legal practice outside the terms of a condition restricting his or her practising entitlements; or

(ii) in the case of a holder of an Australian registration certificate - that the holder has provided legal services not permitted by or under this Law; or

(iii) in the case of a holder of an Australian practising certificate who is required to have professional indemnity insurance - that the holder does not have, or no longer has, professional indemnity insurance that complies with this Law in relation to the certificate; or

(iv) a matter of a kind specified in the Uniform Rules for the purposes of this section; and

(b) requiring the holder to provide a statement showing cause why the designated local regulatory authority should not take action, specified in the notice, to vary, suspend or cancel the certificate.

1. Whilst the history of the matter indicates a reference to s 92 of the Uniform law, the Council resolved not to take action under s 92.
2. Ultimately, there is no decision of the Council under either ss 89 or 92 of the Uniform Law that could be subject to review in NCAT.
3. This would be a sufficient basis to dismiss the application for want of jurisdiction. However, in light of the applicant's submissions concerning the Council's constructive refusal to grant the practising certificate sought, I turn to consider that next.

18 August decision was not a decision to refuse to grant the practising certificate

1. The applicant contends that the 18 August decision is a decision by the respondent to refuse to grant a practising certificate to him. However, I find that the 18 August decision was neither in form nor substance, a decision to refuse to renew the applicant's practising certificate; even if, in the applicant's particular circumstances, he is unable to practise.
2. The applicant's difficulties in his ability to engage in legal practice are not because of a lack of a practising certificate. Even accepting that he is unable, as a matter of practical reality, because of Condition 2, to practise, this does not negate the proposition that he has a valid and effective practising certificate.

Viewing the 18 August decision as a decision to impose a condition

1. As the applicant relied on s 100(1)(b) of the Uniform law, which concerns, relevantly, a decision to vary or impose conditions, I turn next to consider that provision.
2. The 18 August decision maintained a condition on the applicant's practising certificate (Condition 2), that is to say, the condition that the applicant be required to engage in supervised legal practice only, until he has completed two years of supervised legal practice. Even assuming this was the "imposition" of a condition, the Council was obliged to impose this condition on the applicant's practising certificate under s 49(1)(b) of the Uniform Law.
3. This does not assist the applicant for at least two reasons. First, he has not sought to challenge the decision to impose Condition 2. Even though the applicant submits that the imposition of Condition 2 had the effect of negating the practising certificate, the applicant challenges the constructive "refusal" to grant or renew the certificate, not the imposition of Condition 2 per se. Second, this is not a decision under either ss 89 or 92. Accordingly, NCAT is not the designated tribunal for a review or appeal under s 100(1)(b) of the Uniform Law.
4. Viewing the 18 August decision as a decision to impose a condition, therefore, does not alter the result.

1. Both parties consented to the dismissal application being determined without a hearing, and both parties have provided written submissions. The applicant has provided the materials on which he wishes to rely, whilst the respondent has had an opportunity to submit materials they may have wished to rely on.
2. In considering whether a hearing is required for the dismissal application, I consider the following factors which weigh against dispensing with a hearing:

(1) The Objects of NCAT include "to ensure that the Tribunal is accountable and has processes that are open and transparent; and to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members": ss 3(f) and (g) of the NCAT Act.

(2) The importance of open justice: John Fairfax & Sons Pty Ltd v Police Tribunal (1986) 5 NSWLR 465 at 476; John Fairfax Publications Pty Ltd v Ryde Local Council (2005) 62 NSWLR 512; [2005] NSWCA 101 at [60]- [63].

(3) The principles of open justice apply to the Tribunal: Forest v Suzanne [2022] NSWCATAP 188 at [30].

(4) The starting position is that a hearing is required (unless it falls into one of the specified exceptions) and that hearings are open to the public (unless otherwise ordered): ss 50 and 49 NCAT Act. In relation to legal disciplinary proceedings, hearings into allegations of unsatisfactory professional conduct or professional misconduct for the purposes of the Uniform Law are to be open to the public, unless the Tribunal orders otherwise: Uniform Law, s 301(2); NCAT Act, Sch 5, Div 4, cl 22(1).

1. In contradistinction to the above factors, I am mindful of the following factors in favour of dispensing with a hearing:

(1) There is no requirement that a hearing must occur in a matter such as this.

(2) This decision concerns an application for dismissal for want of jurisdiction. This is a confined issue that turns entirely on a small range of agreed documents.

(3) The parties provided written submissions.

(4) There has been no suggestion by either party of a need for oral evidence or cross-examination.

(5) This decision will be published and will expose the Tribunal's reasoning and the submissions.

(6) There is a public interest in conserving the Tribunal's resources and the costs to the parties in cases where, as here, the hearing would likely simply amount to a recitation of the written submissions.

1. I have considered the factors above in accordance with the relevant considerations to dispensing with a hearing outlined in Jali Local Aboriginal Land Council v Anderson [2025] NSWCATOD 57.
2. The factors in favour of dispensing with a hearing outweigh the factors against dispensing with a hearing, and I am satisfied that I can adequately determine the issue on the basis of the written materials. Accordingly, a hearing is dispensed with under s 50(2) of the NCAT Act, noting the requirements of s 50(3) have been met.

Constitution of the Tribunal

1. This summary dismissal application, concerning whether the Tribunal has jurisdiction to deal with a matter, is an ancillary decision under s 4(1) NCAT Act, and accordingly Sch 5, Div 5, cl 18(2) of the NCAT Act is applicable to these proceedings. This application can be decided by a member with a "judicial qualification", as defined in Sch 5, Div 4, cl 17(2) of the NCAT Act, without a panel. It is therefore appropriate that I determine this matter alone. I note this process was followed in Shapkin.

1. The 18 August decision is not a decision to refuse to grant or renew a practising certificate. In any event, as described above, the action taken by the Council in the 18 August decision did not follow either an automatic show cause event under s 89, nor a designated show cause event under s 92 of the Uniform Law. Accordingly, even if it is a reviewable decision, the designated tribunal for the appeal or review of the 18 August decision is the NSW Supreme Court, not NCAT: s 11(3) of the Application Act.
2. NCAT has no authority to review the 18 August decision.

(1) The Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

(2) The application is dismissed for want of jurisdiction.

(3) The directions hearing on 12 November 2025 is vacated.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.