PQ (a pseudonym) v The Law Society of New South Wales (No 3)

On 19 March 2021, I ordered that the following question be determined as a separate question:

The reasons for my order were set out in PQ (a pseudonym) v The Law Society of New South Wales [2021] NSWSC 258 at [51]-[63].

All references to legislation in these reasons are references to the Legal Profession Uniform Law (NSW), unless otherwise stated.

The question, which is one of statutory interpretation, is to be decided against the following factual background, which was not contested.

On 6 July 2020, PQ (the plaintiff) applied to the first defendant, the Law Society of New South Wales (the Law Society) for a practising certificate as an employed solicitor. In response to this application, the fourth defendant, the Council of the Law Society (the Council) issued a practising certificate to the plaintiff which was valid from 8 July 2020 to 30 June 2021.

At the time of its grant on 8 July 2020, the plaintiff’s practising certificate was subject to three standard conditions: a requirement to comply with continuing professional development requirements (condition 1); a requirement to complete a Practice Management Course before being eligible to be a principal of a law practice (condition 3); and a condition that he is not authorised to receive trust money on his own account (condition 5b).

On 10 November 2020, the plaintiff applied for a variation of his practising certificate to enable him to practise as a principal of a law practice. Following receipt of the plaintiff’s application, the Law Society corresponded with him about further information that was required before a decision could be made by the Council.

On 14 January 2021, the plaintiff completed the requisite Practice Management Course referred to in condition 3 of his practising certificate. Accordingly, the Council issued a further practising certificate to him (valid from 14 January 2021 until 30 June 2021), which is subject only to conditions 1 and 5b (referred to above), condition 3 having been complied with.

The Council did not make a decision on the plaintiff’s application within a period of 90 days from its receipt as communications were still continuing between the Council and the plaintiff regarding his application. Once the 90 days had passed, the Council refrained from determining the plaintiff’s application for a variation because the plaintiff contended that it had already constructively refused it (by not having determined it within 90 days): PQ (a pseudonym) v The Law Society of New South Wales at [60]. In these circumstances, the Council took the view that it ought not determine the application until the question of constructive refusal had been determined by this Court.

The answer to the separate question turns on the construction of ss 100 and 464. However, a brief description of the statutory scheme in which these provisions operate is necessary to appreciate the legislative context in which these provisions operate.

Chapter 3, entitled “Legal Practice”, includes Part 3.3, which makes provision for the grant and renewal of practising certificates, including the imposition of conditions on such certificates. Section 43 confers a right to practise on an Australian legal practitioner. The right to practise is subject to the Uniform Law, rules made under the Uniform Law and conditions on the practitioner’s practising certificate. Practising certificates are granted by the “designated local regulatory authority” for the period of a financial year, or shorter period. The Council is the relevant designated local regulatory authority for the purposes of the grant, renewal and the imposition of conditions on, practising certificates for solicitors engaged in legal practice in New South Wales: s 11 of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act) and s 44. A practising certificate granted or renewed under s 44 of the Uniform Law is subject to conditions imposed by or under the Uniform Law or rules made under the Uniform Law: s 44(2).

Section 47(1) relevantly provides:

The power to vary a practising certificate at the request of, or with the concurrence of, the holder derives from s 74 which provides:

The word “vary” is defined by s 6 to include:

Part 3.6, entitled, “Appeal or review about certificates” includes s 99, which provides in part:

The use of the word “certain” in s 99 makes it clear that not all decisions of the designated local regulatory authority are amenable to appeal or review.

Section 100 of the Uniform Law provides:

By reason of s 11(3) of the Application Act, this Court is the designated tribunal for the purposes of the review of decisions under s 100. Pursuant to s 100(6), this Court undertakes a hearing de novo on the merits (consistently with what this Court held with respect to earlier legislation in Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 at 674-675 (Smart J)).

Section 464 of the Uniform Law relevantly provides:

Rule 111 of the Legal Profession Uniform General Rules 2015 (NSW) provides that, for the purposes of s 464 of the Uniform Law, the specified period is 90 days.

The plaintiff’s submissions on the separate question can be reduced to the following four propositions:

The plaintiff argued that “common sense” required that a decision to refuse to vary a practising certificate was in the same category as a decision to vary a practising certificate and that the plain legislative intention was that it, too, be amenable to appeal or review. He relied on authorities cited by D Pearce, Statutory Interpretation (9th ed, 2019, LexisNexis), at [2.8] and [2.57] and made specific reference to Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 in support of the proposition that a court is entitled to modify the literal meaning of statutory words to overcome an error or defect in the text or to prevent unintended or absurd results.

I have substantially accepted the Council’s submissions, which were provided by Ms Wong SC and Mr Entwisle and addressed orally by Ms Richardson SC, who appeared with Mr Entwisle, it is not necessary to summarise them.

The first question is whether a decision under s 100 is a decision which, under the Uniform Law, “can be the subject of appeal or review” within the meaning of s 464(1). The decisions which can be the subject of appeal or review under the Uniform Law are set out in s 100(1). The decision to vary a practising certificate is expressly included in s 100(1)(b). A decision to refuse to vary a practising certificate is, however, not expressed to be a decision which can be the subject of appeal or review under the Uniform Law.

I understood the plaintiff to have accepted that the construction for which he contended required a gloss to be applied to the words of s 100(1)(b) to include a decision to refuse to vary a practising certificate. There are occasions on which a court will read words into legislative provisions to make sense of them or because they are thought to be necessarily implied. The question is whether the present is such a case.

The approach to be taken when a party seeks to have words read into a provision was considered by the High Court in Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 (Taylor). The issue in Taylor was whether, as had been found by the primary judge and the Court of Appeal, the word “claimant” in s 12 of the Civil Liability Act 2002 (NSW) included “the deceased upon whose earnings the claim depends”.

The High Court, by majority (French CJ, Crennan and Bell JJ), rejected the construction, although it accepted, at [37], that reading the words into the section would accord with a purposive construction. The majority said:

The majority identified a further dimension to the prospect of a court applying a gloss to the words used to promote the purpose of the legislation when it said, at [40]:

The textual addition for which the plaintiff contended is inconsistent with the words used in s 100(1)(a), where a decision to refuse to grant or renew a practising certificate is expressly referred to. I am not persuaded that the difference in wording between s 100(1)(a) and (b) can be explained by oversight. Rather, the distinction is explicable when one has regard to the substance of the provisions.

The Council’s power to vary a practising certificate under s 74 can only be exercised in a way which is either not adverse to the holder’s interests or at the request, or with the concurrence, of the holder. The only “downside” to a variation under s 74 for a practitioner is that the practitioner might not have achieved all of what he or she wanted or applied for. The right to appeal a decision to vary is conferred by s 100(1)(b). By contrast, a decision to refuse to vary inevitably preserves the status quo, since the conditions of the practitioner’s practising certificate will be those that applied before the application for variation.

A decision to refuse to vary a practising certificate is to be contrasted with other decisions that may be made by the Council as the designated local regulatory authority, which include decisions to refuse to grant, or renew, a practising certificate, or to suspend a practising certificate. In any of those cases, the effect of the relevant decision is to take something valuable away from the practitioner: the right to practise either for the full length of the financial year, or for a shorter, or longer (in the case of an indefinite suspension) period. This distinction is drawn by s 100 itself since the plain language of the provision indicates that those decisions which operate to change the status quo (including by varying a practising certificate), or have the effect of denying or withholding a right to practise, are amenable to appeal or review under the Uniform Law, whereas those that retain the status quo (such as a refusal to vary a practising certificate) are not.

Given that there is a right of appeal to this Court as the designated tribunal and that the review is a hearing de novo, it can readily be appreciated that the language of s 100 reflects a legislative choice to deny such access with respect to decisions which merely preserve the status quo for those who already have a right to practise. As the duration of a practising certificate is no more than a year (at which time it can be varied or allowed to lapse, thereby giving rise to an opportunity to apply for a new practising certificate), it is understandable that recourse to this Court would be limited.

Thus, in my view, the express words of s 100 are consistent with a distinction being drawn on the basis of the consequences for the practitioner. A decision to vary is amenable to appeal or review under s 100(1)(b), whereas a decision to refuse to vary does not fall within s 100 and therefore is not amenable to appeal or review under the Uniform Law.

In Veltman and Legal Practice Board [2005] WASAT 334, the State Administrative Tribunal of Western Australia construed the legislation consistently with the analysis set out above. The Tribunal said, at [55], of relevantly indistinguishable provisions:

In Aged Care Standards and Accreditation Agency Ltd v Administrative Appeals Tribunal (2009) 181 FCR 515; [2009] FCA 1514, an analogous distinction was drawn by Collier J in the context of accreditation grant principles made under the Aged Care Act 1997 (Cth). In that case, the question arose whether a “variation for which residential care service is to be accredited” included a decision to confirm the existing period of accreditation. Her Honour said, at [35]:

For the reasons given above, s 100 (and therefore s 464) does not apply to a decision to refuse to vary the conditions of a practising certificate. Therefore, the Council has not constructively refused the plaintiff’s application for variation of the conditions of his practising certificate, since s 464(3) does not apply. It follows that the answer to the separate question is “no”. It also follows that, as the Council has not yet determined the plaintiff’s application, there is no relevant decision before the Court which would be amenable to this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW).

I note for completeness that the Council accepted that a practitioner, such as the plaintiff, is not without a remedy, although he does not have a right of appeal or review under s 464. The Council accepted that if it had made a decision, the plaintiff would have a right to judicial review pursuant to s 69 of the Supreme Court Act in respect of an error of law on the face of the record, or jurisdictional error. It also acknowledged that the plaintiff could allow his practising certificate to lapse and apply for a new certificate as the principal of a law practise (rather than simply applying for a renewal of the existing practising certificate). If the Council refused his application for a new certificate, he would have a right of appeal under s 464 as the decision would fall within s 100(1)(a).

As neither party sought an order for costs of the determination of the separate question, the order will be that there be no order as to costs.

For the reasons given above, I make the following orders: