In the matter of an application by a Legal Practitioner [2001] ACTSC 82 (8 August 2001)

Last Updated: 14 May 2002

IN THE MATTER OF AN APPLICATION BY A LEGAL PRACTITIONER

[2001] ACTSC 82 (8 August 2001)

CATCHWORDS

LEGAL PRACTITIONERS - application by practitioner to have name taken from roll - exercise of inherent power of Supreme Court - to be exercised only for good cause - applicant admitted in error without full educational qualifications - order made.

Supreme Court Act 1933

Legal Practitioners Act 1970

No. A6638

Judges: Miles CJ, Higgins and Gray JJ

Supreme Court of the ACT

Date: 8 August 2001

IN THE SUPREME COURT OF THE )

) No. A6638

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION BY A

LEGAL PRACTITIONER

ORDER

Judges: Miles CJ, Higgins and Gray JJ

Date: 8 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The order admitting the applicant to practise as a legal practitioner made on 29 June 2001 be revoked.

2. The applicant's name be removed from the Roll of Legal Practitioners accordingly.

3. There be no order as to costs.

IN THE SUPREME COURT OF THE )

) No. A6638

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION BY A

LEGAL PRACTITIONER

Judges: Miles CJ, Higgins and Gray JJ

Date: 8 August 2001

Place: Canberra

EX TEMPORE REASONS FOR JUDGMENT

MILES CJ

1. This is an application by a person admitted as a legal practitioner to have her name removed from the Roll of Legal Practitioners.

2. The application is not on the face of it within s 11 of the Supreme Court Act 1933, which requires that certain proceedings relating to legal practitioners be determined by a Full Court. Nevertheless, because the situation is not entirely clear and because the matter is not without importance, I ordered on 27 July 2001 that the application be heard by a Full Court.

3. The ground of the application is unusual. The applicant asserts that at the time of her admission on 29 June 2001 she lacked the educational qualifications necessary to make her eligible to apply for admission under s 11(1)of the Legal Practitioners Act 1970 and that as a result was admitted in error. This is a surprising assertion, as she was represented by counsel who moved her admission and she took the necessary affirmation with some dozen or so other applicants before the order for admission of them all was made.

4. According to her affidavit affirmed 23 July 2001, which I accept, the error arose in the following circumstances. The written application for admission was filed on 15 June 2001. In a supporting affidavit affirmed 6 June 2001, the applicant deposed that she would file proof of the outcome of her examination in property law before the date listed for the hearing of admission applications, namely 29 June 2001. At the time of filing the written application, she understood from those responsible at the School of Law at the University of Canberra that the results of the examination would be available on 29 June.

5. According to her affidavit, at or about 9.00 am on 29 June 2001 she spoke to an unidentified person at the School of Law and was told that the Examinations Board could not release the results of her examination that day.

6. She further deposes that she then went to the Supreme Court but did not arrive until after 10.00 am when the hearing of applications had already commenced. She says that she was confused and assumed that she would pass the examination and "give the result" after her admission. She says that she now realises her error and should have informed those at the Legal Workshop and counsel appearing for her that her examination result was not available.

7. She also says in her affidavit that she was to sit again for her examination in property law on the day of affirming her affidavit, namely 23 July 2001 but she does not rely on that matter. She apologises for what she says is her error in judgment. It is to be inferred, although she does not expressly say so, that she was at some time between 29 June and 23 July 2001 told that she had not passed the examination in property law.

8. There is no doubt about the Court's power to remove the name of a practitioner from the Roll. However, that is only to be done for good reason.

9. The Court does not take this application lightly. It is to be noted that a member of the public raised the matter in the Registry well before it was disclosed by the applicant. On the other hand, the ineligibility of the applicant for admission was not noticed by her counsel, the Legal Workshop or the Court itself. Further, it is to some extent understandable that, having arrived late at the court for the hearing of admission applications, she spared herself the embarrassment of interrupting the ceremonial proceedings in order to instruct her counsel, or to declare to the Court that she still had no proof that she had passed her examination, and indeed did not know whether or not she had done so.

10. It having been shown that the applicant was not entitled to be admitted the proper order is that the order of 29 June 2001 be revoked and that the Roll be amended accordingly.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Miles.

Associate:

Date: 8 August 2001

IN THE SUPREME COURT OF THE )

) No. A6638

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION BY A

LEGAL PRACTITIONER

Judges: Miles CJ, Higgins and Gray JJ

Date: 8 August 2001

Place: Canberra

EX TEMPORE REASONS FOR JUDGMENT

HIGGINS J

11. I agree with these reasons and I have nothing to add.

I certify that paragraph numbered eleven (11) is a true copy of the Reasons for Judgment herein of his Honour, Justice Higgins.

Associate:

Date: 8 August 2001

IN THE SUPREME COURT OF THE )

) No. A6638

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION BY A

LEGAL PRACTITIONER

Judges: Miles CJ, Higgins and Gray JJ

Date: 8 August 2001

Place: Canberra

EX TEMPORE REASONS FOR JUDGMENT

GRAY J

12. I agree with these reasons and I have nothing to add.

I certify that paragraph numbered twelve (12) is a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 8 August 2001

Counsel for the Applicant: Mr P Donohoe QC with Ms G Wong

Solicitor for the Applicant: Bernard Collaery & Associates

Counsel for the Law Society of the

Australian Capital Territory: Mr G Walker

Solicitor for the Law Society of the

Australian Capital Territory Gary Robb & Associates

Date of hearing: 8 August 2001

Date of judgment: 8 August 2001