Re the Application of William Dudley Kavanagh To Be Admitted As A Barrister and Solicitor of the Supreme Court of the Australian Capital Territory and Re the Legal Practitioners ACT [1995] ACTSC 12 (6 March 1995)

SUPREME COURT OF THE ACT

IN THE MATTER of the application of WILLIAM DUDLEY KAVANAGH to be admitted as
a Barrister and Solicitor of the Supreme Court of the Australian Capital
Territory
AND IN THE MATTER of the Legal Practitioners Act 1970
No. 4554
Number of pages - 11
Legal Practitioners

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ(1), GALLOP(2) AND HIGGINS(3) JJ

CATCHWORDS

Legal practitioners - Legal Practitioners Act 1970 - application to be regarded as person entitled to apply to be admitted to practise notwithstanding failure to complete course of professional training in law under para.11(2)(b) - completion of Tasmanian practical legal training course - failure to complete twelve month apprenticeship required for Tasmanian admission - previous experience as an arbitrator and negotiator - special circumstances - public interest test - previous experience not sufficiently beyond that of normal applicant - intention not to practise as barrister and solicitor in ACT or at all - subjective belief that completion of Tasmanian practical course sufficient for admission in ACT not relevant - relevance of Mutual Recognition Act 1992 (Cth).

Legal Practitioners Act 1970 (ACT), ss.10(5), 11, 24

Legal Practitioners Act 1993 (Tas.) ss.23, 51
Interpretation Act 1967 (ACT), ss.11A, 26(3)
Interpretation Act 1992 (Cth)
Mutual Recognition Act 1992 (Cth)

Re Snell and Re Legal Practitioners Ordinance 1970 (1982) 43 ACTR 6

Minister for Community Services and Health v. Thoo Chee Keong (1988) 78 ALR

307

HEARING

CANBERRA, 2 February 1995
6:3:1995

Counsel for the Applicant: Mr R Refshauge

Instructing solicitors: Sly and Weigall

Counsel for the Respondent: Mr D Harper

Instructing solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
1. The applicant be regarded as a person entitled to apply under s.11 to be admitted to practise as a barrister and solicitor.

2. The applicant be admitted as a barrister and solicitor.

The Court directs that the name of the applicant be placed on the Roll of Barristers and Solicitors.

DECISION

MILES CJ The facts and the relevant provisions in the Tasmanian and ACT legislation are set out in the judgment of Higgins J.

2. I do not agree that the applicant has established special circumstances in the relevant sense provided for in sub-s.11(5) of the Legal Practitioners Act 1970 (ACT) (the Act).

3. The provisions of sub-s.11(5) no doubt leave a wide discretion in the Court to decide what are special circumstances sufficient to justify an order that, notwithstanding the failure of an applicant to satisfy the requirement of para.11(2)(b), the applicant be regarded as entitled to apply to be admitted to practise as a barrister and solicitor. There is no guidance within the sub-section as to the criteria to be applied in determining what are special circumstances, except to the extent that they must be such as to justify the making of an order under the sub-section. It is appropriate to take a purposive approach to the meaning of the words in the sub-section and to prefer a construction that would promote the purpose or object underlying the Act: Interpretation Act 1967 (ACT), s.11A.

4. A reading of the whole of the Act indicates that its purpose is, broadly speaking, to control and regulate in the public interest the exercise of the privileges and the undertaking of the responsibilities attached to the carrying out within the ACT of the professional practice of a barrister and solicitor. The Act seeks to achieve the purpose partly by restricting entry into the legal profession of the Territory to those persons who have attained the educational standards and undergone the practical professional training which the Act itself lays down. (The Act extends its operation towards achieving that purpose by providing for the control and regulation of the conduct of persons who have been admitted to practise as barristers and solicitors in the Territory but this case is not concerned with that aspect.) The Act gives to the Court as the admitting authority the task of deciding whether or not an applicant has met the standards and undergone the training required by the Act. The Act also gives to the Court a restricted power to allow certain persons to be admitted to practise, despite their failure to meet some of the requirements of the Act as to qualification for admission. That power clearly must be exercised in the public interest.

5. This regime of control of entry of persons into the legal profession in the Territory is not directed in any way towards equipping persons with the qualification or right to practise law anywhere else but in the Territory. Nor is it directed towards conferring status upon, or of affording an opportunity to earn income to, persons who are not concerned with the practise of the law and have no intention of practising as barristers or solicitors. Of course, persons who have satisfied the requirements of the Act as to educational qualifications and practical training have the right to apply to be admitted and, if the Court considers they are of good fame and character, the Court must admit them. For the purpose of admission of persons who have the qualifications and training which entitle them to apply to be admitted to practise, the Court will not be concerned with their motives or intentions. The Court in recent times has admitted those entitled to be admitted in the knowledge that a considerable proportion of them will not go into conventional practice as barristers or solicitors.

6. But when a person who lacks the qualifications laid down by the Act asks the Court to declare that there are special circumstances to justify that person being regarded as entitled to apply for admission as a barrister and solicitor despite the lack of qualifications, it is not only relevant but necessary for the Court to consider how it is that the purposes of the Act might be achieved by allowing the application.

7. Where a person has had practical experience in the office of a solicitor or the chambers of a barrister in connection with the handling of the affairs of clients under the supervision of a barrister or solicitor, the length and breadth of that experience may go so far beyond that of the normal applicant for a first time admission as clearly to establish special circumstances: Re Snell (1982) 43 ACTR 6. The unarticulated premise is that it is in the public interest both that the services of such a person should be made available to those members of the public who want the services of a legal practitioner and that those services be offered to the public in competition with those of other practitioners without the risk that the standard of practitioners generally might be lowered.

8. If a person lacking the practical legal training required by the Act does not intend to practise in the Territory, an immediate difficulty arises as to how the purposes of the Act are to be served by regarding that person as entitled to apply to be admitted as a legal practitioner in the Territory. If such a person does not intend to practise as a barrister or solicitor at all, the difficulty becomes the greater.

9. In two cases in which the Court recently made orders under sub-s.11(5) the persons concerned had, like the present applicant, been admitted to the degree of Bachelor of Laws of the University of Tasmania and completed the practical legal training course there without undergoing the period of apprenticeship necessary to complete the qualification to be admitted to practise in Tasmania. However, prior to the Tasmanian experience they had been admitted to practise overseas and had had practical experience since admission. One had a degree in law from a university in India, had practised as an advocate in the ordinary courts in the Punjab and, having settled in Australia, wished to resume legal practice in Canberra or one of the mainland States. The other had many years experience as a magistrate in Tonga and had received an official indication that he was under favourable consideration for appointment as a Judge of the Supreme Court of Tonga, a consideration which was likely to be the more favourable if he were admitted to practise as a barrister and solicitor in Australia.

10. In both those cases the applicants demonstrated, in addition to their incomplete qualifications to be admitted to practise in Tasmania, substantial experience in the practice of the law comparable to a period of practice as a barrister and solicitor in this Territory, as well as a firm intention to practise as a legal practitioner in one case and to take up office to which only a legal practitioner could expect to be appointed in the other. In the present matter the applicant has had a long and distinguished career as a public servant at the highest level. He has had experience as an advocate before various tribunals. He has acquired experience as an arbitrator, negotiator and mediator and adviser on certain types of contract. His experience in those specialised areas would be at least the equivalent in experience in those areas of persons undertaking articles of apprenticeship. Whilst that is relevant, however, it is not the test. Applying the language in Snell, the applicant has not shown the length and breadth of experience so far beyond that of the normal applicant as to establish special circumstances. His intention is to continue and his hope is to increase his activities as an arbitrator and mediator. Beneficial to the community as those activities may be, they need not be carried out by a legal practitioner. The purposes of the Act are not served by enhancing the applicant's prospects as a professional arbitrator and mediator.

11. Whilst hardship to an applicant is relevant to an application under sub-s.11(5), the fact that the applicant believed that completion of the practical legal training course in Tasmania would be sufficient to satisfy the requirements of para.11(2)(b) of the Act does not advance his claim as to special circumstances. That the application is made under sub-s.11(5) by a person who has passed approved examinations in legal ethics and accounts as required by para.11(2)(b) involves a concession, if not an assertion, on his part that he has failed to satisfy the requirements of sub-para.11(2)(b) as to professional training in law.

12. Reference was made to the Mutual Recognition Act 1992 (Cth). The purpose of that Act as it applies to the legal profession is to promote a national market in legal services and to that end the Mutual Recognition Act facilitates through a simple system of registration (and not formal admission) the recognition by one State or Territory of the right to practise as a legal practitioner gained in any State or Territory. To that extent the Mutual Recognition Act may be considered to contribute towards the development of a national legal profession. It is true that the spirit and intendment of the Mutual Recognition Act means that a court or other admitting authority in Australia should not favour an approach to recognition of qualifications for admission which discriminates against an applicant who has obtained proper qualifications elsewhere in Australia. However, there is a correlative responsibility cast upon this Court to act in the awareness that as a result of granting applications such as the present too readily, it might become the weakest point of entry into the legal profession in Australia. The Court should therefore not see in the fact (if it is a fact) that the applicant's qualifications are not sufficient for his admission anywhere else in Australia as contributing to any special circumstances which are relied upon in order to justify the exercise of the discretion to regard the applicant as one who has the practical training required in the Territory to entitle him to apply for admission as a barrister and solicitor of the Territory.

13. In my view, the application should be refused and I would so order.

GALLOP J I have read the respective judgments of Miles CJ and Higgins J.

2. I agree with the observation of Miles CJ that in dealing with applications for admission based upon a deemed entitlement to admission as a Barrister and Solicitor of this Court on account of special circumstances, there is a responsibility cast upon this Court to act in the awareness that as a result of granting such applications it might become the weakest point of entry into the legal profession in Australia. Such a result cannot be permitted to happen and would not be within the spirit of the Mutual Recognition Act 1992 (Cth). This Court should be cautious and adopt a restrained approach to applications based upon special circumstances.

3. Having said that, and with due restraint, I have reached the conclusion that the present applicant has demonstrated special circumstances. Accordingly, I agree with the order proposed by Higgins J.

HIGGINS J This is an application by the applicant, William Dudley Kavanagh, for an order that he be regarded as a person entitled to apply under s11 of the Legal Practitioners Act 1970 (ACT) (LP Act) for admission to practise as a barrister and solicitor of this Court. If that order is made, he further applies to be admitted to practise as a barrister and solicitor of this Court.

2. A person who is entitled to apply for admission to practise must be admitted if the Court is satisfied that such applicant is "of good fame and character". There is ample evidence that the applicant is of good fame and character. The only question that has been raised in opposition to his application for admission to practise is whether he is "a person entitled to apply to be admitted to practise" under section 11 of the LP Act.

3. Subsection 11(2) specifies the conditions under which a person becomes entitled to apply for admission to practise:

Subject to subsections (3), (4) and (5), a person is entitled to
apply to the Supreme court to be admitted to practise as a
barrister and solicitor of the Supreme Court if -

(a) the person has the educational qualifications for admission
as a barrister and solicitor of the Supreme Court; and
(b) the person has passed an examination approved by the
resident Judges within the meaning of the Supreme Court Act 1933
or any 2 of them in legal ethics and accounts and completed -
(i) the course of professional training in law in the Legal
Workshop within the Faculty of Law in the Faculties within the
Australian National University; or
(ii) a course of a similar nature of not less than 6 months'
duration conducted in a State or another Territory, being a course
the completion of which is recognised in that State or Territory
as a qualification for admission to practise in that State or
Territory.

4. The applicant was, on the 20th day of May 1994, admitted to the combined degrees of Bachelor of Commerce and Bachelor of Laws at the University of Tasmania.

5. The admission to the degree of Bachelor of Laws satisfies the educational qualifications for admission to practise referred to in s11(2)(a) of the LP Act.

6. On the 29th day of July 1994, the applicant satisfactorily completed the course of Professional Training in Law in Legal Practice within the Faculty of Law in the University of Tasmania.

7. Mr Ian Elliott, Director of the Tasmanian Centre for Legal Studies which administers that course has deposed that:

The course is of six months duration and all students must pass
(inter alia) exams in Trust Accounting and Legal Ethics.

8. On the 2nd day of September 1992, those examinations were approved pursuant to paragraph 2 of a direction issued on 16 July 1987. Mr Elliott also deposed that the course undertaken by the applicant was relevantly identical to that course. The applicant therefore satisfies the first requirement of s11(2)(b) of the LP Act.

9. The applicant's original application relied upon a contention that the course conducted in the University of Tasmania (the PLT course) should be regarded as "a course of a similar nature" to the ANU Legal Workshop course approved under s11(2)(b)(i), LP Act and was "a qualification for admission to practise" in Tasmania, thus entitling the applicant to apply for admission pursuant to s11(2)(b)(ii) of the LP Act.

10. In relation to that contention, it may be noted that the qualifications for admission to practise in Tasmania applicable to the applicant are specified in s23 of the Legal Profession Act 1993 (TAS).

11. Section 23(a) and (b) of that Act specify the educational qualifications in law which will be recognised. Section 23(c) requires the applicant to have also completed:

... to the satisfaction of the Board, an approved course of
practical instruction on the duties of a legal practitioner.

12. The PLT course which was undertaken by the applicant is an "approved course".

13. There is a further substantive requirement for admission in Tasmania imposed by s23(d). That is that the applicant shall have:

... completed, to the satisfaction of the Board, articles of
apprenticeship or employment as a judge's associate or
magistrate's clerk or in any other employment approved by the
Board under section 37 for a period of one year or such lesser
period as may be agreed by the Minister, the Board and the
Society.

14. The applicant has not satisfied that requirement and is, therefore, not presently qualified for admission to practise in Tasmania.

15. Of course, the applicant is not applying for admission to practise in this Territory on the basis that he is entitled to admission to practise in Tasmania. He claims to be entitled to admission in the Territory because he is to be regarded as having satisfied the requirements of the LP Act for admissions.

16. If that contention is correct, it would not be open to this Court to refuse admission on the basis that to grant it would enable an applicant to avoid more onerous admission requirements in his or her State or Territory of residence. There is no discretion to refuse admission to a person otherwise qualified. The terms of s11(4) of the LP Act are mandatory: see s26(3) Interpretation Act 1967 (ACT).

17. The applicant has declined to rely upon s11(2)(b)(ii).

18. It is, therefore, unnecessary to determine whether the PLT course undertaken by the applicant complies with s11(2)(b)(ii).

19. Reliance is placed instead upon s11(5). That subsection provides:

On an application for an order under this subsection by a person
who satisfies all the requirements of this section except the
requirement of paragraph (2)(b), the Supreme Court may, if it
is of the opinion that, notwithstanding the failure of the
applicant to satisfy that requirement, special circumstances
exist that justify the making of an order under this subsection,
order that the person be regarded as a person entitled to apply,
under this section, to be admitted to practise, and, upon the
making of the order, the person shall be deemed to be a person
who is entitled so to apply.

20. It may be noted that, by use of the word "may", this subsection confers upon the Court a discretion, to be exercised judicially, as to whether or not to make an order even if "special circumstances" are found: see s26(3) Interpretation Act 1967 (ACT). Once an order is made, however, admission to practise is then mandated by s11(4) of the LP Act.

21. It is a pre-condition to the exercise of the discretion conferred by s11(5), LP Act that "special circumstances" are found to exist.

WHAT ARE "SPECIAL CIRCUMSTANCES"?
22. Clearly, there is a wide range of "circumstances" which will appear relevant to a judgment as to whether severally or collectively, they, or any combination of them, are "special". What are relevant circumstances will depend on the nature and purpose of the legislative or other context in which the expression appears.

23. Burchett J noted in Minister for Community Services and Health v Thoo Chee Keong (1988) 78 ALR 307 at 323:

Examination of the numerous instances of the use of the expression
"special circumstances", in acts and regulations, contained in the
fourth edition of (Stroud's Judicial Dictionary) suggests that,
though occasionally used in a neutral sense (eg to express grounds
for a change of venue), it is almost invariably used to express
grounds of excuse, leniency, allowance or relaxation of some
requirement.

24. The expression in s11(5) is used in that sense. It refers to circumstances which would justify the relaxation of the requirements otherwise applicable under s11(2)(b).

25. To be "special", the circumstances to be demonstrated by an applicant must be such as to satisfy the Court that they justify the relaxation of those requirements and are sufficiently out of the ordinary as to be regarded as "special".

26. In my view, the fact that a person would suffer delay in being able to undertake more remunerative employment by reason of a need to comply with s11(2)(b) would not be "special circumstances".

27. That proposition is supported by the decision of this Court in Re Snell (1982) 43 ACTR 6. In that case, the applicant had gained appropriate educational qualifications. He had not thereafter completed a course of practical legal training. He did enter into articles of clerkship. At that time, 12 months' service thereunder would have constituted a sufficient additional qualification for admission to practise. The applicant sought to be excused from completing the full 12 months of articles relying upon the then equivalent of s11(5) of the LP Act.

28. The applicant relied on the circumstance that, as at the date of his application, he had served as an employee of a solicitor, performing work equivalent to that of an articled clerk, for more than 17 months. There had been a delay of approximately five months in entering articles from the time he had become eligible to do so. As at that latter date he had served as a solicitor's clerk, though not articled, for nearly 11 months. Upon becoming admitted, the applicant would have become entitled to higher remuneration.

29. The application was refused. In so doing, the Full Court (Blackburn CJ, Kelly and Gallop JJ) accepted that past training and experience might support a finding of "special circumstances". Delay in obtaining qualifications might also, but it was noted, at 13, that:

The applicant would at least need to show that a substantial part
of the delay had come about through no fault of his own and that he
had acted with due diligence.
...
In any event it could only be in the most exceptional
circumstances that a failure by an applicant to qualify in one or
more of the subjects of the course which he or she has undertaken
towards qualification for admission to practise would give rise
to that hardship which might possibly be characterized as special
circumstances.

30. The Court acknowledged that financial or other hardship might constitute or support a finding of special circumstances but must, of course, be properly established on the evidence.

31. The Court referred to two previous unreported successful applications in which:

The breadth and length of the experience which each individual
applicant had had was so far beyond that which applicants for
admission to practise for the first time anywhere normally bring
to this court as clearly to establish special circumstances.

32. It seems to me that the most important "circumstance" will be past experience and qualifications which would enable an applicant to be regarded as a person who had gained such experience and training that compliance with the usual requirements would be unnecessary. That is a circumstance which is out of the ordinary.

33. Nevertheless, hardship, proper reasons for a desire not to conform fully with s11(2) are relevant to support a conclusion that "special circumstances" exist.

HAS THE APPLICANT GAINED RELEVANT EXPERIENCE AND TRAINING?
34. There is evidence from the applicant setting forth his past training and experience.

35. He was born in Ireland on 4 August 1936. In July 1959 he was awarded the degree of Bachelor of Architecture by the National University of Ireland.

36. In October 1965, he migrated to Australia. He is a registered Architect in the State of Tasmania. He was employed in the Tasmanian Housing Department and, at his retirement in 1991, the Department of Environment and Land Management. He was employed for 21 years in the Senior Executive Service or its equivalent. For the last seven years of his service he was employed at Assistant Director or General Manager level.

37. The relevant aspects of that experience and training are described by Mr Kavanagh in his affidavit as follows:

7. In the course of that employment:
(a) I was trained, inter alia, in relevant and applicable areas of
contract, administrative and industrial law and practice.
(b) I was responsible for the management and administration of
government contracts, including acting as both the (NPWC 3)
Superintendent and Superintendent's Representative. In these
capacities I was responsible for the fair and impartial
interpretation and enforcement of contract provisions.
(c) I was responsible for the application and administration of
statutes and regulations appropriate to planning and construction
and for their interpretation when called upon.
(d) I was responsible for disciplinary matters relating to
staff (exceeding, at one point, 400 staff and employees) under
my control within the provisions of the Tasmanian State Service
Act 1984 and under applicable industrial legislation.
(e) I represented both my department and the State on various
National organisations and my department on State and Regional bodies.
8. I am an Associate Member of the Institute of Arbitrators,
Australia. I have completed the Institute's General and
Advanced Courses in Arbitration during which I was instructed
by many barristers of the rank of Queens Counsel and by members
of the Judiciary.
9. I have been appointed and have acted as an arbitrator under
the Commercial Arbitration Act (Tasmania) 1986.
10. I have appeared as an advocate before the;
(a) Administrative Appeals Tribunal,
(b) Student Assistance Review Tribunal, and
(c) The (former) Tasmanian Public Service Tribunal.
11. I have advised the successful complainant in a racial
discrimination case which was mediated before the Human Rights
Commission.
12. I have been trained in the conduct of disciplinary inquiries by
the Tasmanian Department of Public Administration and I have
conducted such a disciplinary inquiry for the Tasmanian
Commissioner for Public Employment.
13. I have been a member of the Practice Committee and a member of
the Practice Examining Panel of the Tasmanian Chapter of the
Royal Australian Institute of Architects.
14. I am a trained and experienced negotiator. In addition to having
been trained in negotiation and conflict resolution skills I
also completed the internationally recognised course in
negotiating skills conducted by the California-based Karrass
Centre for Effective Negotiating. I have applied these skills
in dispute resolution over many years in relation to my
professional practice as an architect specialising in the
administration of contracts and as a public service
administrator, details of which are given supra.

38. I would not regard that experience and training alone as being of sufficient breadth to warrant the making of an order under s11(5). However, it is a relevant circumstance and warrants a conclusion that, within the areas described, the applicant has achieved a depth of training and experience well beyond the equivalent of the average newly admitted practitioner.

39. However, the applicant has also completed the PLT course referred to earlier. The 1995 Legal Practice Course Handbook has been produced in evidence. It is said by the applicant to describe accurately the 1994 course which he undertook.

40. There is no direct comparison made by any person who has experience of both the Tasmanian PLT course and the ANU Legal Workshop course. The course description of the 1993 ANU Legal Workshop course was tendered.

41. A comparison of the courses reveals that the aims, objective and content of the 1995 PLT course in Tasmania and the ANU Legal Workshop course 1993 are generally equivalent.

42. The object of the 12 months apprenticeship following the PLT course in Tasmania before admission is not clear. There was no evidence as to whether such an admittee would be entitled to unrestricted practise or if restricted, the period for which and the conditions under which such restrictions would be imposed: see s51, Legal Profession Act 1993 (TAS). Under s24 of the LP Act, a person admitted in this Territory as a barrister and solicitor will not be granted an unrestricted practicing certificate until he or she has performed work of a legal nature or its specified equivalent: see s24(1)(a), for a period of not less that one year in aggregate following a course of practical legal training of the kind approved under s11(2)(b).

43. The material before the Court on this application does not enable a conclusion to be reached as to whether a PLT course graduate would receive better training and experience than an ANU Legal Workshop graduate. The Legal Workshop course is of longer duration than the Tasmanian PLT course. That factor does not, however, enable a comparison of anticipated outcomes to be made. It may be inferred, however, that a person who has completed the Tasmanian PLT course and 12 months' apprenticeship of the kind described in the Legal Profession Act will be no less properly qualified for practice than a graduate of the Legal Workshop seeking admission in this Territory.

44. There are, however, the observations of Mr Elliott, a person suitably qualified to express such a view that:

The applicant because of his maturity became an informal mentor
for the students, many of whom turned to the applicant for advice.
His previous employment experience manifested itself in his work
within the course and his results were well above average.

45. Insofar as the Tasmanian PLT course might be regarded as equivalent in terms of experience and training to the ANU Legal Workshop course only if supplemented by 12 months approved employment, Mr Elliott deposed that:

The applicant has had experience as an arbitrator, negotiator,
mediator and contractual adviser which would at least be the
equivalent in experience of many of the articles of apprenticeship
offered in Tasmania.

46. Again, Mr Elliott seems well-placed to express such an opinion.

47. It seems to me, therefore, that those circumstances, the combination of prior experience and training and the high standard which the applicant achieved would support a finding that the applicant would be at least as fit to practise law in this Territory as any other graduate of a course recognised under s11(2)(b) of the LP Act. In the areas in which he had previous training and experience he would be considerably more experienced.

48. Those matters, in combination, seem to me to amount to "special circumstances" justifying the making of an order under s11(5) of the LP Act.

49. There was a suggestion that service of 12 months' apprenticeship would cause hardship to the applicant. Some disadvantage was certainly demonstrated but none of any different character than was demonstrated in Re Snell (supra). I would not consider that the delay which the applicant might otherwise experience in pursuing fully a career as a legal adviser/solicitor in the field of building and construction law should he be required to undergo 12 months' apprenticeship, though relevant, adds much to his case.

50. There are also the circumstances referred to in paragraphs 16 to 21 of the applicant's supplementary affidavit.

51. Those paragraphs set out his reasons for not choosing to undertake either the ANU Legal Workshop course or the NSW College of Law legal practice course in 1994. Either of those courses, if they had been satisfactorily completed, would have satisfied s11(2)(b) of the LP Act.

52. Those reasons were, in summary:

The applicant believed the Tasmanian PLT course would be regarded
as "of a similar nature" to the ANU Legal Workshop course.
One such course had been found to satisfy s11(2)(b)(ii) previously
and the applicant did not expect that a different finding would be
made in relation to the course which he undertook.

53. I have to say that I do not consider that the judgment so formed by the applicant adds to a finding of "special circumstances".

54. Rather does it seem to me to be relevant to the discretion conferred under s11(5) to decline to make an order even if the circumstances are, relevantly, "special".

55. An apparent intention to avoid the more onerous requirements of an applicant's home State or Territory might be regarded as a ground for refusing to exercise the discretion conferred by s11(5) of the LP Act in favour of an applicant. It is appropriate, therefore, to consider an applicant's reasons for desiring to avoid those requirements.

56. In this case, the applicant has a stated intention to practise outside Tasmania and in a limited area consistent with his past experience and expertise. Given the age and employment history of the applicant, I would readily accept that his intentions are both genuine and likely to be put into effect.

57. It does not appear, therefore, that the applicant is seeking merely to avoid the admission requirements of his home jurisdiction so as to gain an unfair or otherwise inappropriate advantage.

58. I have given some consideration as to whether, as a condition precedent to the exercise of the discretion to make an order under s11(5), the applicant should be required to give an undertaking either not to practise in Tasmania until he has had 12 months' experience in supervised employment of the kind recognised by s23(d) of the Legal Profession Act 1993 (TAS) or some other like undertaking. However, in all the circumstances, I am persuaded that no such undertaking is necessary. I do not believe that there is any relevant reason for exercising the discretion conferred by s11(5), LP Act adversely to the applicant.

59. Accordingly, I would propose that an order under s11(5) be made with the consequence that the applicant is to be regarded as a person entitled to apply for admission to practise as a barrister and solicitor of this Court.

60. Being, therefore, so entitled and being satisfied as to his good fame and character, I would order that William Dudley Kavanagh be admitted to practise as a barrister and solicitor of this Court and direct that his name be entered upon the Roll of Barristers and Solicitors accordingly.