Hally v Queensland Law Society Inc [1960] HCA 44; (1960) 105 CLR 286 (8 July 1960)

HIGH COURT OF AUSTRALIA

HALLY v. THE QUEENSLAND LAW SOCIETY INC. [1960] HCA 44; (1960) 105 CLR 286

Legal Practitioners (Q.)

High Court of Australia
Dixon C.J.(1), Menzies(1) and Windeyer(1) JJ.

CATCHWORDS

Legal Practitioners (Q.) - Solicitor - Striking off roll - Rule - Failure to reply to communication from Council - Deemed to be professional misconduct - Validity of rule - Limiting construction to bring within the power - Procedure - Preliminary proceeding - Whether the Solicitor should be heard by the Statutory Committee before it forms an opinion that a prima facie case is shown and fixes a day for hearing - Special leave to appeal - The Queensland Law Society Act of 1952 (Q.), ss. 5 (9)*, 6 (3)* - Rules of the Queensland Law Society Incorporated, rr. 68B*, 76* - Rules of Court made in pursuance of the Queensland Law Society Act of 1927, rr. 2*, 3*, 4*.

HEARING

Brisbane, 1960, July 8. 8:7:1960
APPLICATION for special leave to appeal from the Supreme Court of Queensland.

DECISION

The judgment of the COURT was delivered by DIXON C.J.:-
This is an application for special leave to appeal from an order of the Full decision of the Statutory Committee of the Queensland Law Society was dismissed. The order of the Statutory Committee struck off the roll of solicitors the name of the present applicant. (at p292)

2. Two points of law are made in support of the application. The first is that to a not inconsiderable degree the proceedings were based upon r. 76 of the Rules made under The Queensland Law Society Acts, which are now of 1952. In fact, of a number of charges there were five that may be said to have depended on that rule. There were seventeen charges in all and of those there were three, I think, dismissed. Rule 76 says that: "(1) Where any practitioner fails to reply to any communication or request from the Council or the secretary, the secretary may notify the practitioner in writing that if such failure continues for a period of twenty-one days from the date of his receiving such notification he will be liable to be dealt with for professional misconduct. (2) If such failure so continues for a period of twenty-one days from the date of his receiving such notification, such failure shall be and shall be deemed to be professional misconduct and the practitioner shall be liable to be dealt with by the Statutory Committee accordingly, unless he furnishes a reasonable explanation to the Statutory Committee, and on any such proceedings before the Statutory Committee the tendering of the communication or request from the Council or the secretary to which the practitioner has failed to reply, together with proof of the due posting of such communication, shall be prima facie evidence of the truth of the matters contained in any such communication and of any enclosures therewith or annexures thereto." (at p292)

3. The power to make the rules is contained in s. 5 (9) and, on behalf of the applicant, it is contended that the power does not cover such a rule. There is a difficulty confronting the contention contained in s. 5 (9) (ii) which says: "Such rules and by-laws shall be approved by the Governor in Council, by Order in Council, and shall be published in the Gazette, and shall thereupon have the same force and effect as if they were embraced in and formed part of this Act, and shall be judicially noticed, and shall not be questioned in any proceedings whatever." That is a provision sometimes found in statutes and which, almost invariably, occasions the Court difficulty in knowing how far it goes. In the present case it is important to notice the power of the Statutory Committee to strike off the rolls and to see what it does. That is contained in effect in s. 6 (3) of The Queensland Law Society Act. It is not necessary to read it in full, but it makes the power depend upon an application to strike the name of the practitioner off the roll or to require a practitioner to answer allegations of malpractice or professional misconduct or unprofessional conduct or practice. (at p293)

4. Such a matter is to be heard by the Statutory Committee, which shall have power, after hearing the case, to make any such order as striking off the roll or suspending from practice, either conditionally or otherwise, the practitioner to whom such application relates, or as to the payment by any party of costs or otherwise in relation to the case as before the commencement of this Act the Court would have had power to make in accordance with the authority and practice of the Court. (at p293)

5. If r. 76 conflicted with sub-s. (3) there would be much to be said against its validity if sub-s. (3) of s. 6 is the authority of the Statutory Committee to act and to make an order. Of course, if it did so conflict, a question would arise immediately under sub-par. (ii) of sub-s. (9) of s. 5. (at p293)

6. We are of opinion, however, that r. 76 should be read subject to and not as rising superior to sub-s. (3) of s. 6. It should be read subject to that sub-section as not entitling the Statutory Committee to exercise its power of striking off the roll or suspending, or making some other order which the Court would have had power to make, unless in the end it is of opinion that within the meaning of sub-s. (3) of s. 6 there has been what the provision calls malpractice or professional misconduct or unprofessional conduct or practice. So construing r. 76, we think it is valid and should be upheld as within s. 5 (9). (at p293)

7. The second point which was made was of a much less substantial character. It was that before the Statutory Committee proceeded to hold a hearing it should, under r. 3 of the Rules of Court, have heard the parties, particularly the solicitor, on the question whether a prima facie case had been made out for holding a hearing. Rule 3 says: "Before fixing a day for the hearing the Committee may require the applicant to supply such further information and documents relating to the allegations as they think fit and in any case in which in the opinion of the Committee no prima facie case is shown the Committee may, without requiring the practitioner to answer the allegations, dismiss the application. If so required so to do either by the applicant or the practitioner the Committee shall make a formal order dismissing such application.". We do not agree that that rule requires the Committee to hold a preliminary hearing in which the solicitor is heard before fixing a day for the actual hearing. (at p294)

8. A similar rule was considered in the case of Marshall's Appeal; In re Two Solicitors (1938) 1 KB 616 . We do not consider that the majority of the judges in that case meant to decide that on the similar rule the solicitor was entitled to be heard; but, in any case, on the Queensland legislation, we do not think that that authority is applicable. We think that it is enough that the Committee investigate the matter and form an opinion that a day should be fixed for a hearing and, of course, duly notify the solicitor of the day. (at p294)

9. We are therefore against the two points which are advanced. In any case, having read the transcript in this case, we think that we ought not to grant special leave even if either of the points or both of them had been made out because we do not think that the case should have been decided otherwise than it has. As to the second, of course, it may be said that if it were a good point the proceedings were improperly commenced, but the result of them has been such as to make it extremely undesirable - if it were wrong - for us to grant special leave on such a ground. As to the other point, it affected only five of the numerous charges and we think there was abundant ground disclosed by the materials in the transcript for striking the solicitor off the roll independently of those five cases. (at p294)

10. We therefore think this application for special leave should be dismissed with costs. (at p294)

ORDER

Application for special leave to appeal dismissed with costs.