Picos v Council of the New South Wales Bar Association

The plaintiff, Ms Picos, wishes to practise as a barrister. She has passed the NSW Bar Examination and the NSW Bar Practice Course. Unfortunately, for reasons which will become apparent, the defendant (the "Council") has determined that her application for a practising certificate should be refused.

Ms Picos has a right of appeal from that decision. However, for reasons best known to herself, she has brought these proceedings seeking relief which, with respect, is inconsistent with the statutory regime that has been established for appeals against decisions of the kind taken by the Council. For the reasons which I set out below, I have come to the view that the appropriate course is for her summons to be dismissed. However, that dismissal should not, and is not intended to, prevent her bringing an appeal in regular form against the decision of the Council should she wish to do so.

These proceedings were commenced by a summons filed in court on 8 October 2019. That summons sought the following interim and final relief:

The summons was filed pursuant to leave granted by Slattery J sitting as duty judge. His Honour proceeded to a contested hearing of Ms Picos' application for interim relief that she forthwith be granted a practising certificate. His Honour dismissed that application: Picos v The Council of New South Wales Bar Association [2019] NSWSC 1382. These reasons should be read together with those reasons.

Because it will later become relevant, I should record as part of the chronology that, while his Honour was in the course of hearing Ms Picos' application, he made orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) (the “CSNPO Act”). As a result of inquiries made by a media organisation for access to the Court's file (as his Honour records in paragraph [56] of his reasons), his Honour made orders in chambers on 10 October 2019 extending the scope of the orders which he had made under the CSNPO Act to cover the whole of the file. He made further orders on 11 October 2019 refining that general non-publication order to make clear that the parties were not prevented from making disclosures to their respective legal representatives in relation to the proceedings.

His Honour's reasons were delivered on 15 October 2019.

On 28 October 2019, the proceedings came before Henry J in the Duty List. Her Honour made these orders:

On 5 December 2019, the Council made its decision. That decision was initially communicated to Ms Picos in a notice described as being a notice under s 464 of the Legal Profession Uniform Law (NSW) (the “LPU Law”):

The Council subsequently became aware of an error in the notice’s description of Ms Picos’ appeal rights. That resulted in a further notice under s 464 of the LPU Law being issued on 9 December 2019:

Having become aware of the Council's decision of 5 December 2019, Ms Picos emailed the Associate to the duty judge (then being Pembroke J) on Saturday, 7 December 2019 at 8.59pm, copied to the legal representatives of the Council:

The next day, being Sunday 8 December 2019, Ms Picos sent a further email at 11.11pm to Pembroke J's Associate which stated:

The matter then came before his Honour sitting as duty judge on 9 December 2019. His Honour closed the court (something which I have not done) and after hearing argument delivered these short reasons:

Conformably with the directions made by Pembroke J at the end of his reasons, Ms Picos has served and delivered to Pembroke J's Associate an amended summons. However, she did not comply with his Honour's direction to file and serve any further affidavit on which she proposed to rely, nor did she comply with his Honour's direction to serve a notice of motion identifying the precise interlocutory relief which she sought.

In accordance with his Honour's directions, the matter came before me as duty judge at 2pm today. Ms Picos appeared for herself. Mr P J Griffin of Senior Counsel appeared for the Council.

The amended summons sought this relief:

Although not apparent from the relief claimed in the amended summons, it sought to join, in addition to the Council, the Attorney General of New South Wales as second defendant and the Attorney General for the Commonwealth of Australia as the third defendant. The attempted joinder of those parties excited applications on behalf of the two Attorneys General that each of them be removed as a party pursuant to r 6.29 of the Uniform Civil Procedure Rules. Mr J McDonnell, solicitor, appeared for the putative second defendant, the Attorney General of New South Wales. Mr J Hutton, solicitor, appeared for the putative third defendant, the Attorney General for the Commonwealth of Australia.

I dealt with those applications as though each of them had in fact been joined to the proceedings. However, in doing so, I had not appreciated that leave to file the amended summons had not in fact been granted. It seems to me, looking at the matter from a strictly technical point of view, that the directions made by Pembroke J on 9 December 2019 did not go so far as to grant leave for the filing of an amended summons. In practical terms, nothing turns on that.

Each of the Attorneys submitted that they should not be party to the proceedings (either actually or putatively) because no relief was sought against them and they had no interest (in the technical sense) in the matters purportedly raised by the amended summons. I accepted those submissions.

Ms Picos submitted that the Attorney General for New South Wales was a proper party because he was ultimately responsible for the administration of the LPU Law and that, for reasons which I did not entirely understand, there was no means of appeal available to Ms Picos from the decision of the Council other than in the inherent jurisdiction of this Court. That seemed to be based upon a reading of s 100 of the LPU Law which, with respect, I do not follow. I shall return to the terms of that law in a moment.

The basis for joining the Attorney General for the Commonwealth, as explained by Ms Picos, was even more remote. Ms Picos is a registered migration agent and was concerned that the decision of the Council somehow impeded her capacity to continue to act in that role. Neither the Council nor the solicitor appearing for the Attorney General for the Commonwealth was suggesting that was the case. Mr Griffin SC also made clear that the Council was not suggesting that their decision prevented Ms Picos from undertaking the other occupation in which she has been recently engaged, namely providing research services to a barrister.

In those circumstances, I was of the view that neither Attorney General was a necessary or proper party to the proceedings and I indicated that I would, at the conclusion of the hearing, make orders in accordance with the notices of motion that each of them had filed. I will do so notwithstanding the technical nicety to which I have referred concerning the status of the amended summons.

To understand the course of the argument which followed it is necessary to set out s 100 of the LPU Law:

By reason of the operation of the Legal Profession Uniform Law Application Act 2014 (NSW) (the “Application Act”), an appeal under s 100 of the LPU Law from the decision of the Council lies to this Court. This is a straightforward conclusion with which it seemed Ms Picos was determined to take issue.

She moved for the interim relief in the amended summons to the effect that she should forthwith be granted a practising certificate as a reader barrister for the balance of the year ending 30 June 2020.

That was opposed by the Council on the basis that it was an extraordinary form of relief which this Court would hardly, if ever, grant for two reasons.

First, it was submitted that there was a clear statutory scheme of appeal available to Ms Picos set up by s 100 of the LPU Law. It was contended that the Court would not lightly interfere with that.

Second, attention was drawn to the Council's reasons for decision (Annexure ‘A’ to each of the notices set out in paragraphs [8] and [9] above). The reasons are 58 pages long. It was submitted that the reasons are, on their face, thorough, regular and carefully reasoned. Given such reasons, Mr Griffin SC submitted that the Court would not without very good reason interfere in an interim but nevertheless peremptory way with a decision of the Council exercising its statutory responsibility.

Without expressing any view as to the merits of the decision itself or its correctness, I accept the Council's description of those reasons on their face. I also accept and adopt the Council's two reasons as to why the Court would not grant interlocutory relief of the kind sought by Ms Picos.

Before turning to the balance of the final relief claimed in the summons and the amended summons, I will next consider, to the extent I understood them to be pressed, the other two prayers for interim relief sought by Ms Picos. The first of these was:

That application can be shortly dealt with. The decision of the Council was to refuse to do something. In those circumstances, there is nothing to stay. Relief in the terms sought, with respect, makes no sense.

The second of these was:

The Court declines to grant that relief because Mr Griffin SC made it quite clear that the Council has no current intention to initiate any disciplinary action against Ms Picos and was not aware of any reason why it should do so. Ms Picos replied that she would feel more comfortable if the Council gave an undertaking to that effect. I accept Mr Griffin SC's submission that it is inappropriate for the Council to give such an undertaking which, in my respectful view, would be an impermissible fetter upon the Council's statutory responsibilities should they need to be exercised at some time in the future. In the circumstances of an urgent hearing in the Duty List, it seems to me that where there was no present threat of any disciplinary action being taken by the Council against Ms Picos there was no proper basis upon which the Court could make an order as proposed by paragraph 3(a) of the amended summons.

The hearing then took something of an unusual turn. I can say for the record that when this matter was drawn to my attention in chambers, it was apparent to me that if Ms Picos was bringing an appeal under s 100 of the LPU Law, it was a matter which for obvious reasons should, if possible, be considered by this Court on an expedited basis. As I indicated to the parties, I had made informal arrangements with the expedition judge (Sackar J), who happened to be sitting this afternoon, for the matter to be referred to his Honour immediately to enable directions to be made for the appeal to be progressed.

I gave Ms Picos more than one opportunity to agree to that course, including giving her the opportunity to take a few minutes if she wished to think about what she wanted to do next. For reasons which I do not understand, she resolutely refused to adopt that course. Indeed, at one point she indicated to me that if I was not prepared to grant the interim relief that she was seeking I should simply dismiss the entirety of the amended summons. I again gave her an opportunity to think about whether that was really what she wanted to have happen. She later submitted that the appropriate course, if the Court were to dismiss her application for interim relief, was for me to order a timetable for the balance of the proceedings to be prepared for a final hearing.

That later submission gave rise to the next issue which the Court has had to consider, namely whether there is any utility in the proceedings as constituted either by the final relief sought in the amended summons (see paragraph [15] above) or in the final relief sought in the summons itself (see paragraph [3] above).

The argument then proceeded on that question. When it became apparent to me that leave had not in fact been granted for the amended summons to be filed, I sought clarification from Mr Griffin SC as to whether he was content for me to receive his submissions on the basis that he was opposing leave for the amended summons to be filed and otherwise making an application for the summons, in particular paragraph 5, to be struck out. He said that he was. I conducted the balance of the hearing on the basis that those were the issues which I had to determine. In particular, when Ms Picos told me that she felt she had not been heard as to the fate of paragraph 5 of the summons, I gave her a further opportunity to make submissions as to why that should not be struck out.

There was a simple proposition at the heart of the Council's submissions as to why the amended summons should not be allowed to be filed and the summons be struck out. That was that Ms Picos has a clear and straightforward route to challenge the decision of the Council. That is by an appeal under s 100 of the LPU Law. As I earlier indicated, the Court was prepared to do everything it could to facilitate the expeditious determination of such an appeal if Ms Picos was to bring it.

It was submitted for the Council that none of the final relief sought in either the amended summons or the summons itself was of a kind that was directed to such an appeal or in fact addressed, having regard to s 56 of the Civil Procedure Act 2005 (NSW), what was really the only matter in issue between the parties, namely whether Ms Picos was entitled to have the decision of the Council set aside and then to consequential relief, presumably being an order that the Council be directed to issue her with a practising certificate.

I accept the Council's submissions. Ms Picos' response seemed to be premised on a belief that there was no statutory avenue of appeal available to her and that somehow what she had to do was to bring an appeal in the inherent jurisdiction of this Court. With great respect, a plain reading of s 100 of the LPU Law with the Application Act demonstrates that view is misconceived.

In any event, even if she were right, other parts of the relief which she sought in the amended summons were just not directed to an issue raised by the Council’s decision. One example is prayer 8 of the amended summons which seeks a declaration "that the plaintiff was validly admitted to the Australian legal profession on 17 February 2017". As Mr Griffin SC confirmed, there is no issue about the validity of her admission in February 2017. Nor do I see any utility in paragraph 9 of the amended summons seeking a declaration that the Council "is not the 'admitting' authority or body in the State of New South Wales".

Insofar as leave has not been given for the amended summons to be filed, I decline to grant that leave. The reason for doing so is that to the extent it seeks the interim relief to which I have earlier referred, the Court would refuse it. Insofar as it seeks the final relief to which I have referred, that relief, as I have indicated, is not directed to the matter that is really in issue between the parties, which will only be resolved by the bringing of an appeal under s 100 of the LPU Law.

That then leaves the summons itself. The final relief sought in the summons is a declaration that the plaintiff is "a fit and proper person to hold an Australian practising certificate". For the same reasons I have earlier given, that is not a form of relief consonant with the statutory regime under s 100 of the LPU Law.

I do not accept Ms Picos' submission that it is defensible on the basis that were such a declaration to be made, she would then be free to make a fresh application for a practising certificate with the benefit of a declaration that she is a fit and proper person. With the greatest of respect to her, that is not what the scheme contemplates and it would not be in the interests of the proper administration of justice for the Court to allow the proceedings to go forward as constituted by the summons in the face of the regime established by s 100 of the LPA Law. In that regard, I note s 100(7)(a) and (b) which set out how the question of "fit and proper person" is to be dealt with in the context of an appeal under s 100 (see paragraph [22] above).

The Court has therefore concluded that it would be completely inimical to the just, cheap and quick resolution of the issues genuinely in dispute between the parties to allow the summons to proceed in its current form, and in circumstances where Ms Picos seems to have been completely unable to be persuaded that it is in her interests to amend that document to seek relief conformable with an appeal under s 100 of the LPU Law. An examination of the transcript will disclose that I made that suggestion to her on more than one occasion and, for reasons best known to herself, she replied that was not an amendment which she wished to make.

The final matter that I need to refer to is the fact that the proceedings have been subject to suppression and non-publication orders for some time. The orders that have been made have been expressed to be until further order of this Court. In the ordinary course, and in the absence of any further order, the order which I will shortly pronounce dismissing the summons would have the effect of bringing the suppression orders to an end.

I asked Ms Picos whether she wanted that to be the outcome of the dismissal of the summons and whether she wanted the suppression orders continued. She said that she did. The reason which she gave was that she might bring proceedings in the near future (which I assume to be proceedings by way of an appeal) which might in some way be adversely affected if people were able to have access to the decisions of this Court in relation to the summons (in particular the decision of Slattery J and now the reasons which I am delivering today).

In the circumstances of an urgent hearing in the Duty List, there has not been an opportunity fully to explore the basis on which the suppression orders ought to continue. I have very real doubts as to whether it is appropriate for them to continue. But in the exigent circumstances in which I have had to deal with the matter, I propose to continue the orders on a limited basis given that the proceedings have thus far been conducted subject to the suppression orders that were originally made by Slattery J.

That limited basis is to put a time limit on how long the orders should continue. Having regard to the facts that it is at the end of the legal year and that Ms Picos has said she may wish to take advice as to what her next steps should be, I am of the view that an extension of the orders up to and including Friday, 13 March 2020 is appropriate. If Ms Picos takes no steps to bring an appeal or other proceedings relating to the Council's decision within that time, then the suppression orders originally made by Slattery J will come to an end on that date. If, however, she commences such proceedings within that time, then I make it clear that it will be a matter for her if she wishes those suppression orders to continue to persuade the Court, in the light of whatever proceedings she has brought, that it is appropriate for the orders to continue pending the determination of those proceedings, whatever they may be.

The orders of the Court are as follows: