Legal Practice Board v Meredith Kinga Anne Boroky & Anor (including corrigendum dated 5 March 1998) [1998] FCA 21 (23 January 1998)

Last Updated: 18 March 1998

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
	)
WESTERN AUSTRALIA DISTRICT REGISTRY	) WG 97 of 1997
	)
GENERAL DIVISION	)

BETWEEN:	THE LEGAL PRACTICE BOARD Applicant
AND:	MEREDITH KINGA ANNE BOROKY AND JAMES HOWARD GRAHAM Respondents

JUDGE(S):	R D NICHOLSON J
DATE:	23 JANUARY 1998
PLACE	PERTH

CORRIGENDUM

On page 1 of the reasons for judgment change the date from "1997" to "1998".

On page 4 of the reasons for judgment at line 3 remove the brackets from around the words "complied with subs 40(2)" and delete the words "in that the fee applicable".

Nicholas McGlew

Associate to Justice R D Nicholson

5 March 1998

FEDERAL COURT OF AUSTRALIA

PROFESSIONS - lawyers - qualifications and admission - mutual recognition - imposition of fee on registration interstate of admission - whether quantum of fee to be fixed by local registration authority with regard to work in relation to each particular application or whether to be fixed as a matter of general calculation.

Mutual Recognition (Western Australia) Act 1995 (WA), s 40

Legal Practitioners Act 1893 (WA), ss 15(2)(c), 15(2)(d)

Legal Practice Board Rules 1949, r 51A

Air Caledonie International and Ors v The Commonwealth (1988) 165 CLR 462 referred to

Montchel Pty Ltd v Civil Aviation Authority [1991] FCA 466; (1991) 31 FCR 445 followed

Sande v Registrar, Supreme Court of Queensland (1996) 40 ALD 1 referred to

THE LEGAL PRACTICE BOARD v MEREDITH KINGA ANNE BOROKY AND JAMES HOWARD GRAHAM

WG 97 of 1997

R D NICHOLSON J

PERTH

23 JANUARY 1998

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 97 of 1997

BETWEEN:	THE LEGAL PRACTICE BOARD Applicant
AND:	MEREDITH KINGA ANNE BOROKY AND JAMES HOWARD GRAHAM Respondents

JUDGE:	R D NICHOLSON J
DATE OF ORDER:	23 JANUARY 1998
WHERE MADE:	perth

THE COURT ORDERS THAT:

. The appeal be allowed against that part of the decision of the Administrative Appeals Tribunal dated 4 August 1997 as dealt with the basis upon which a fee imposed under s 40 of the Mutual Recognition (Western Australia) Act 1995 (WA) is to be calculated.

. Orders (ii) and (iii) of the orders of the Administrative Appeals Tribunal dated 4 August 1997 be set aside.

. The matter of the appropriateness of the fee be remitted to the applicant to reconsider in accordance with the reasons of the Court herein.

. There be no order as to costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG 97 of 1997

BETWEEN:	THE LEGAL PRACTICE BOARD Applicant
AND:	MEREDITH KINGA ANNE BOROKY AND JAMES HOWARD GRAHAM Respondents

JUDGE:	R D NICHOLSON J
DATE:	23 JANUARY 1997
PLACE:	PERTH

REASONS FOR JUDGMENT

HIS HONOUR: This is an appeal against that part of the decision of the Administrative Appeals Tribunal ("the Tribunal") given on 4 August 1997 whereby the Tribunal remitted the matter to the respondent to reconsider and to determine, in accordance with the principles set out in the Tribunal's reasons for decision, the appropriate fee, not exceeding the reasonable administration cost, of the admission of the respondents as practitioners by the Supreme Court of Western Australia, with liberty to the parties to apply in respect of the calculation.

The Tribunal also set aside the decision under review. That decision was a decision by the applicant to impose upon each of the applicants a fee of $500. The applicant is prepared to reconsider the appropriateness of that fee given that neither of the respondents now seeks to be admitted to practice in the Supreme Court of Western Australia. However, the applicant takes issue with the enunciation of principle made by the Tribunal concerning the manner in which it is to reconsider and to determine the appropriate fee.

On this "appeal" there was no appearance for the respondents. In view of the fact the application raised a point of general issue in relation to the operation of the Mutual Recognition (Western Australia) Act 1995 (WA) ("the Mutual Recognition Act") notice was given to the Attorney General of Western Australia. He declined to appear in the matter and expressed the view had he done so, it would not have been as contradictor.

In view of the orders made by the Tribunal the matter is not academic. While the order of the Tribunal is extant, the respondent is subject to an obligation to act in accordance with the reasons of the Tribunal.

Tribunal reasons

In its reasons the Tribunal said the respondents had applied for review of the decisions of the applicant dated 12 August 1996 refusing the respondents' application for admission to legal practice in Western Australia pursuant to the Mutual Recognition Act. After those applications had been lodged the applicant agreed each of the respondents should be so admitted. Although the Tribunal in its reasons subsequently stated the respondents were duly admitted by the Supreme Court of Western Australia, that is not the case. The applicant asserts the respondents were not so admitted and this is corroborated by correspondence from one of the respondents on behalf of each of them to the solicitors for the applicant.

In its reasons the Tribunal said the applicant had made no rule prescribing a fee for admission under the Mutual Recognition Act. The only fees for admission prescribed in the Legal Practice Board Rules 1949 made pursuant to the Legal Practitioners Act 1893 (WA) were those in r 51A. Those could not apply under the Mutual Recognition Act since they are expressed to be for the purposes of that rule, which deals with admission under ss 15(2)(c) and (d) of the Legal Practitioners Act. The fee prescribed in r 51A for that purpose in the case of an applicant who has been admitted and is entitled to practise in the Superior Courts of Law in a State or Territory of Australia is $500. In any other case it is $700.

In the case of each of the respondents they were seeking admission only and were not seeking practising certificates. The Tribunal accepted the issue before it was whether the applicant's decision to impose upon each of them a fee of $500 was justifiable pursuant to the terms of the Mutual Recognition Act.

The Tribunal placed reliance on what was said by Lockhart J in Sande v Registrar, Supreme Court of Queensland (1996) 40 ALD 1 at 6 where he said:

"The Act forms part of a legislative scheme which involved the enactment of complementary legislation by the parliament of each of the states and the legislature of each of the territories and the Commonwealth parliament. The purpose of the scheme was to establish the legal framework for the mutual recognition by the states and territories of each others different regulatory standards regarding goods and occupations. It sought to remove (a) unnecessary impediments to interstate trade in goods arising from differing state and territory standards and regulations, and (b) artificial barriers to the mobility of performance of services amongst states and territories arising from local registration or licensing laws. The Act was perceived by the Commonwealth Parliament and by the parliaments of the states and legislatures of the territories as contributing to the creation of a more efficient national market and enhancing Australia's international competitiveness."

The Tribunal then turned to various provisions of the Mutual Recognition Act concluding, in reasoning which is not challenged on the appeal, that admission in Western Australia required admission as a practitioner and the issue of a practising certificate. As neither of the respondents held a practising certificate, "the equivalent occupation" for each of them was to be admitted as a practitioner of the Supreme Court of Western Australia. This did not require the same amount of administrative inquiries as did an applicant for issue of a practise certificate.

The Tribunal then turned to s 40 of the Mutual Recognition Act which reads:

"40. (1) A local registration authority has power to impose fees in relation to substantive or deemed registration or the continuance of registration arising under this Part, but any such fees may not be greater than are applicable for registration apart from this Part.

(2) Nothing in this section prevents the fixing or prescribing of fees referred to in this section under any other law of a State, but the fees may not be greater than can be imposed under this section.

(3) The local registration authority may impose a condition on substantive or deemed registration arsing under this Part to the effect that a person may not carry out activities under registration unless a fee or other payment has been paid, but such a condition may not be imposed unless it corresponds to a requirement attaching to registration apart from this Part.

(4) This section does not authorise the imposition of a tax.

The Tribunal accepted the fee which the applicant had fixed pursuant to r 51A(b) was not in excess of the amount fixed in relation to the respondents and so (complied with subs 40(2)) in that the fee applicable

In relation to subs 40(4) the Tribunal noted the effect of the decision in Air Caledonie International and Ors v The Commonwealth (1988) 165 CLR 462 was that a charge which greatly exceeds the administrative cost of carrying out the "deemed registration" would amount to the imposition of a tax.

The Tribunal then concluded:

"24. The Tribunal considers that it is required under the MR Act that a person who is registered `in connection with an occupation' in the `first State' should be similarly registered in connection with the equivalent occupation in the second State (Western Australia) without being subject to a fee which would amount to a tax.

25. In determining this issue the Tribunal has considered whether the $500 exceeds a reasonable estimate of the administrative costs of effecting and registering the admission. As each of the applicants has been admitted in the Supreme Court of Western Australia of their respective first States and the relevant authorities of those States have already performed inquiries into their qualifications, fitness and character, the Board in Western Australia need only make a formal check that these inquiries have been conducted by the relevant authority in the first State. The Tribunal questions whether the cost of such minimal formal inquiries would justify a fee of $500 but lacks sufficient evidence to determine this matter.

26. After considering all the evidence and materials before it and the submissions of both counsel, the Tribunal finds that the quantum of the fees charged in relation to the admission of the applicants by the Supreme Court of Western Australia, should be reconsidered by the respondents in the light of the principles set out in these Reasons for Decision."

Grounds of appeal

The grounds of appeal are as follows:

(i) The Tribunal erred in law in holding that the appropriate fee to be charged by the applicant to each of the respondents must not exceed the reasonable administrative cost of the admission of that respondent as a practitioner by the Supreme Court of Western Australia.

(ii) Section 40 of the Mutual Recognition (Western Australia) Act 1995 entitles the applicant to charge a fee bearing a discernible relationship to the costs and expenses incurred by the applicant in effecting the registration of persons as legal practitioners under the Mutual Recognition (Western Australia) Act 1995 generally, rather than on a case by case basis by reference to the costs or expenses incurred in any particular case.

Contentions

In support of these grounds the applicant relies on three main streams of argument. The first derives from the language of the section. Subsection 40(1) empowers a local registration authority to "impose fees in relation to substantive or deemed registration or the continuance of registration or the continuance of registration arising from this Part". It is submitted the language contemplates a general fixation of charges. The imposition is in relation to "registration" not "a" or "each" registration. It is not language which requires the assessment of admission fees on a case by case basis. Being a general calculation which is envisaged, it is a calculation made regardless of the level of work done in any particular circumstance.

The second limb to the appellant's case involves reliance on the decision in Montchel Pty Ltd v Civil Aviation Authority [1991] FCA 466; (1991) 31 FCR 445. This decision dealt with the validity of charges under the Civil Aviation Act 1988 (Cth). That Act required the charges for services to reasonably relate to the relevant expenses incurred and to not be such as to amount to a tax. In construing the section, Pincus J concluded (at 446):

"Compliance with the section depends upon the nature of the relationship between the amount or rate of a charge, on the one hand, and the Authority's expenses, on the other. If the two are equal as to each service or facility provided, the relationship is perfect. But it is evident that there is no intention that a calculation must be done in respect of every separate provision of a service or facility. What [the section] contemplates is that there may be a general fixation of charges to relate them to the ... expenses, not that an analysis of the expenses shall be made each time a service or facility is provided." [emphasis added].

Although the case was concerned with an `amount of rate of charge', his Honour later refused to accept that the intention in passing the legislation was that:

"a much more complex charging system had to be introduced, of such a kind as to enable accurate assessment of the proper cost ... of each individual service provided."

It is to be noted the section at issue in Montchel introduced the concept the amount or rate of charge would be "reasonably related" to the expenses. If such wording did not exclude a general fixation of charge the position is a fortiori in the case of s 40 of the Mutual Recognition Act.

The third limb of the argument in support is to the effect it is unlikely the legislature would have intended to require a "local registration authority" to calculate for each and every registration a separate fee bearing a discernible relationship to the administrative costs of effecting that particular registration.

These submissions stand uncontradicted so the Court is unassisted by other views on the matter. It would be potentially defeating to the aims of the Mutual Recognition Act if local registration authorities were permitted to raise, through the authority of s 40, barriers to interstate registration which the Act as a whole is designed to remove. It is apparent however that a local registration authority may exercise the power in terms of s 40 without regard to fees fixed elsewhere outside the State. It is also apparent, for the reasons submitted on behalf of the applicant, the power is one of a general nature so that it follows the quantum fixed, provided it complies with the requirements of the section, is a quantum resulting from a general calculation regardless of the level of work done in any particular circumstance.

In my view the submissions for the applicant are correct. I therefore consider the Tribunal was in error of law in that part of its orders which required the applicant to reconsider the matter in accordance with the reasons of the Tribunal. The appeal should therefore be allowed to the extent sought.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R D NICHOLSON

Associate:

Dated:

Counsel for the Applicant:	S Penglis
Solicitor for the Applicant:	Freehill, Hollingdale & Page
Counsel for the Respondent:	No appearance
Solicitor for the Respondent:	None on record
Date of Hearing:	21 October 1997
Date of Judgment:	23 January 1998