Federal Court of Australia

Picos v Council of the Law Society of New South Wales [2022] FCA 755

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s application for an injunction be refused.

2.    The applicant pay the respondents’ costs of the application to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THOMAS J:

1    This application is made pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (the AHRC Act).

2    The applicant claims the following relief:

1.    Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the Australian Human Rights Commission Act 1986 (Cth) occurs, or until earlier order of the Court, the respondents and each of them will not, whether by themselves, their employees, agents or otherwise, terminate the licence to practice law held by the Applicant, including but not limited to by refusing to renew it beyond 30 June 2022.

…

3    Section 46PP of the AHRC Act gives the Court power to grant interim relief, in an appropriate case, to an applicant who has a pending complaint with the Australian Human Rights Commission and, by reason of that fact, is unable to bring substantive proceedings in the Court.

4    The applicant, an Australian legal practitioner, seeks to preserve her status pending resolution of a complaint to the Australian Human Rights Commission. The applicant seeks to maintain her status as at 13 June 2021, the date the complaint was made.

5    The applicant must show:

(a)    a prima facie case of sufficient strength to justify the preservation of the status quo; and

(b)    the balance of convenience and justice favours the injunction sought.

6    The Court must make an assessment for the purpose of deciding whether the applicant has made out a prima facie case of sufficient strength to justify the grant of the interlocutory injunction. It is also necessary to assess the strength of the case in the context of the assessment of the balance of convenience and justice: see Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [87]-[88] and Warner-Lambert Company LLC v Apotex Pty Ltd (2014) 311 ALR 632; [2014] FCAFC 59 at [70].

7    A number of submissions were made regarding the medical evidence.

8    These reasons do not seek to consider that evidence as it is not directly relevant to the issue under consideration concerning discrimination and, in any event, not all evidence was before the Court.

9    The medical evidence, which goes to the question of whether the applicant is “currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner”, would be relevant in relation to the consideration of any application for an Australian practising certificate, if one is made.

10    Counsel for the respondents submitted a number of times that the respondents do not urge the Court to make a finding about whether the applicant is or is not presently fit to hold an Australian practising certificate. Rather, the real issue was submitted to be whether or not, if the applicant makes an application for a new practising certificate, the Council of the Law Society of New South Wales (the Law Society Council) should be permitted to consider that question as it is required to do under the Legal Profession Uniform Law (NSW) (the LPUL) following the Law Society Council’s usual processes or whether the Court should take that out of the Law Society Council’s hands to appoint and compel the Law Society Council to issue the certificate: see, for example, transcript p 13 ll 35-41.

11     The respondents refer to the affidavit of Ms Meaghan Lewis (at [33]) where there is an outline of what process would be followed if an application were lodged by the applicant for a 2022/2023 financial year practising certificate.

12    This is said to include the following:

… a member of the Law Society’s Professional Standards Department would be appointed to prepare a report for the Law Society Council, analysing all the available information relevant to the applicant’s fitness to hold a practising certificate. Based on the way the Professional Standards department usually handles applications for practising certificates by practitioners with complicated health conditions, I would expect the report to:

a.    include analysis of Dr Diamond’s report;

b.    consider the application and any disclosures made by the applicant;

c.    consider whether future information and steps should be taken under rule 12 of the General Rules or s 95 of the Uniform Law;

d.    consider whether the applicant was a fit and proper person to hold a practising certificate;

e.    consider whether the applicant should be issued with a practising certificate on conditions including that she establish a therapeutic relationship with a psychiatrist for regular consultations and reporting to the Law Society Council.

13    The affidavit continues (at [34]): “The report would be provided to the members of the Law Society Council for their consideration and decision”.

14    The hearing of the present application took place over three days on 10 June, 16 June and 17 June 2022.

15    Each party filed written submissions in advance of the hearing. At 8.50 pm on 15 June 2022, the applicant lodged for filing submissions which withdrew the oral submissions made by the applicant on 10 June 2022. The application has been considered on that basis.

16    The applicant has raised two potential Constitutional issues. They relate to ss 109 and 92 of the Constitution. The first (relating to s 109) was raised in written submissions. The second (relating to s 92) was raised on the final afternoon of the hearing in oral submissions.

17    Section 78B of the Judiciary Act 1903 (Cth) relevantly provides that:

(1)    Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.

….

(5)    Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.

18    Because of the urgency of this matter these reasons deal with the Constitutional issues as necessary. The s 109 issue is dealt with later in these reasons. As to s 92 the applicant submitted (at transcript p 89 ll 43-45 and p 99 ll 1-2):

…

Section 92 of the Australian Constitution provides that:

trade, commerce and intercourse shall be absolutely free.

…

I say that the Law Society is restricting my freedom in trade commerce and intercourse ...

19    Section 92 has no application in the circumstances.

BACKGROUND

20    The applicant and the respondents have each provided chronologies.

21    On five occasions between March 2012 and June 2015, the applicant was detained in hospitals as an involuntary patient.

22    Various reports were provided, including by Drs Cullen, Westmore, Klug and Phillips.

23    On 20 February 2017, the applicant was first issued with an Australian practising certificate by the Law Society of New South Wales (the Law Society).

24    On 10 May 2018, discretionary health conditions were removed from the applicant’s Australian practising certificate on advice from her treating physician, Dr Klug.

25    In July 2019, the applicant was notified she had passed the New South Wales Bar Exam.

26    On 6 August 2019, the Law Society provided the applicant with a certificate of fitness (for provision to the New South Wales Bar Association).

27    On 29 January 2020, 19 March 2020 and 7 September 2020, the Law Society issued to the applicant three further certificates of fitness and good standing.

28    On 14 April 2021, the Law Society issued to the applicant a fifth certificate of fitness.

29    Two letters were forwarded by the Law Society Council to the applicant on 11 June 2021. The applicant asserts that these letters amount to unlawful discrimination.

30    The first letter informed the applicant that the Law Society Council had not either approved or refused the applicant’s 2021/2022 application for an Australian practising certificate. The letter referred to s 45(2) of the LPUL, indicating that the Law Society Council “must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate”.

31    The letter indicated that the matters to which the Law Society Council may have regard in considering whether an applicant is a fit and proper person to hold an Australian practising certificate are set out in r 13 of the Legal Profession Uniform General Rules 2015 (NSW) (the General Rules) and included “whether the applicant is currently of good fame and character” (r 13(1)(a)).

32    The letter continued that the following matters would affect the applicant’s fitness to hold an Australian practising certificate:

(a)    the refusal on 5 December 2019 by the Council of the NSW Bar Association (the Bar Council) of the applicant’s application to hold an Australian practising certificate entitling the applicant to engage in legal practice as a barrister (the refusal);

(b)    the reasons for the refusal; and

(c)    the applicant’s failure to disclose that refusal on the applicant’s application for an Australian practising certificate for 1 July 2020 to 30 June 2021 and in the 2021/2022 application.

33    The Law Society Council invited the applicant to provide, no later than 30 June 2021, any information or submissions the applicant might wish to make.

34    The second letter of 11 June 2021 corrected an error in the first letter. The second letter referred to a further review of records having been undertaken and an acknowledgement that, on 22 September 2020, after the grant of the applicant’s Australian practising certificate entitling the applicant to engage in legal practice from 1 July 2020 to 30 June 2021, the applicant had provided a copy of the reasons for refusal by the Bar Council. On that basis, the applicant was informed that the Law Society Council did not require submissions in relation to the failure to disclose the refusal and indicated that any failure to disclose would not be further considered by the Law Society Council.

35    The letter continued: “However, having regard to s 45 of the Legal Profession Uniform Law and r 13 of the General Rules, the refusal and the reasons for refusal are still matters that affect your fitness to hold a practising certificate”.

36    The letter again invited the applicant, pursuant to r 12(3) of the General Rules, to provide any information or submissions no later than 30 June 2021.

37    On 13 June 2021, the applicant lodged a complaint to the Australian Human Rights Commission against the Law Society Council, stating that she was being discriminated against on the ground of her disability being “historical brain damage and mental illness”.

38    On 14 June 2021, the applicant commenced proceeding NSD560/2021 against the Law Society to the present proceeding, seeking an order under s 46PP of the AHRC Act to maintain the status quo in relation to her practising certificate application pending determination by the Australian Human Rights Commission of complaint 2021-09167. Proceeding NSD560/2021 was discontinued on 2 July 2021 following mediation between the parties. Rather than seek to set aside the discontinuance of NSD560/2021, the applicant commenced the present proceeding.

39    The Australian practising certificate issued for the 2021/2022 financial year was subject to undertakings having been provided by the applicant to the President of the Law Society of New South Wales and to the Law Society Council on 23 June 2021 which included:

(a)    that by a date specified by the Law Society of New South Wales [the applicant] attend a consultation with and be medically examined by a psychiatrist nominated by the Law Society who will provide a report to Law Society addressing matters to be determined by the Law Society; and

(b)    that [the applicant] will comply with any conditions that are imposed on [the applicant’s] practising certificate as a consequence of this psychiatrist’s report.

40    The applicant agreed to the imposition, on the 2021/2022 financial year practising certificate, of a condition requiring the applicant to comply with the undertakings.

41    The Law Society Council resolved to renew the Australian practising certificate for the period 1 July 2021 to 30 June 2022 pursuant to s 45 of the LPUL on the basis the Law Society Council was satisfied that it was appropriate to do so in the circumstances notwithstanding it was not satisfied as to the matters to which it may have regard under r 13 of the General Rules – specifically, the Law Society Council was not satisfied as to the following matters:

a.    whether the applicant was of good fame and character (rule 13(1)(a)); and

b.    whether the applicant was currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner (rule 13(1)(m)).

42    Dr Diamond was instructed on 29 September 2021. The “purpose of examination and report” was described as:

The Law Society asks that you examine [the applicant] and provide it with a report on [the applicant’s] present fitness to engage in legal practice, including whether [the applicant] is currently able to fulfil the inherent requirements of an Australian legal practitioner.

43    The letter of instruction to Dr Diamond was in evidence in the proceeding.

44    There was no dispute that there was a consultation between Dr Diamond and the applicant in October 2021 and that Dr Diamond produced a report in November 2021 which was received by the Law Society on 2 December 2021. Following objection from the applicant, this report was not in evidence in these proceedings.

45    On 10 December 2021, the Law Society sent to the applicant a notice under s 83 of the LPUL outlining the action the Law Society proposed to take as to the applicant’s Australian practising certificate. Section 83 of the LPUL addresses the imposition of conditions on an existing Australian practising certificate.

46    On 11 December 2021, the applicant commenced proceeding NSD1302/2021 against the Law Society Council to the present proceeding seeking injunctive relief against the Law Society Council and then taking action pursuant to the s 83 notice for taking regulatory action against the applicant regarding matters raised in complaint 2021-09167. This proceeding was discontinued on 19 December 2021 following negotiations between the parties.

47    Subsequently, no further step was taken to impose conditions on the applicant’s Australian practising certificate.

48    The settlement terms, which were in evidence in the proceeding, included the following:

1.    Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the [AHRC Act] occurs in relation to [the applicant’s] complaint to the Australian Human Rights Commission made on 13 June 2021, and as amended on 14 December 2021 the Law Society undertakes not to proceed upon, or take any further action in relation to, the notice issued to [the applicant] pursuant to s 83 of the [LPUL] dated 10 December 2021.

2.    Until one of the events specified in ss 46PG or 46PF(1)(b) or 46PH of the [AHRC Act] occurs in relation to [the applicant’s] complaint to the Australian Human Rights Commission made on 13 June 2021, and as amended on 14 December 2021, [the applicant] undertake[s]:

a.    not to seek or accept employment, or any other form of engagement, as a legal practitioner in a law practice,

b.    not to engage in any form of legal work as a sole practitioner.

…

49    The applicant submitted that the first of those terms has the effect that the Law Society Council is prohibited from refusing to renew the Australian practising certificate beyond 30 June 2022.

50    That interpretation is not correct. The undertaking given by the Law Society relates (in its terms) to not taking “any further action in relation to, the notice issued to [the applicant] pursuant to s 83 of the [LPUL] dated 10 December 2021”. On its terms, it has no operation wider than that which is described.

51    The applicant was last issued with an Australian practising certificate by the Law Society Council for the financial year commencing on 1 July 2021. That Australian practising certificate will expire on 30 June 2022.

52    The applicant has not applied to the Law Society Council for an Australian practising certificate for the period 1 July 2022 to 30 June 2023.

53    The applicant has not practised as a lawyer since 1 July 2021.

PRIMA FACIE CASE

54    The matter underlying these proceedings is the issue of an Australian practising certificate in favour of the applicant by the Law Society Council.

55    In New South Wales, the legislative arrangements relating to the issue of practising certificates are contained in the LPUL.

56    The objectives of the LPUL include:

3. Objectives

…

(b)    ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services;

(c)    enhancing the protection of clients of law practices and the protection of the public generally.

…

57    Section 44 of the LPUL provides that the designated local regulatory authority (in this case, the Law Society Council) may, on application, renew an Australian practising certificate in respect of a financial year.

58    Pursuant to s 45 of the LPUL, the designated legal authority must not renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate. In considering whether a person is or is not a fit and proper person to hold an Australian practising certificate for the purposes of s 45, the designated local regulatory authority may have regard to the matters specified in the General Rules: s 45(3).

59    The General Rules provide, in r 13, that, for the purposes of s 45, in considering whether an applicant is or is not a fit and proper person to hold an Australian practising certificate, the designated local authority may have regard to matters which include whether the applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner: see r 13(m).

60    Section 19 of the Disability Discrimination Act 1992 (Cth) (the DDA) provides that it is unlawful for an authority or body that is empowered to renew an authorisation or qualification that is needed for, or facilitates the practice of, a profession, to discriminate against a person on the ground of the person’s disability.

61    The Law Society Council is such a body.

62    Section 21A is, as it describes, an exception, based on the inherent requirements.

63    Section 21A provides that Division 1 of Part 2 (which contains s 19) does not render it unlawful for a person to discriminate against another person on the ground of a disability of the aggrieved person if:

(a)    the discrimination relates to particular work; and

(b)    because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work, even if the relevant employer, principal or partnership made reasonable adjustments for the aggrieved person.

64    Section 21A(2) sets out factors which are to be taken into account in determining whether the aggrieved person would be able to carry out the inherent requirements of the particular work, and these include:

(a)    the aggrieved person’s past training, qualifications and experience relevant to the particular work;

(b)    if the aggrieved person already works for the discriminator—the aggrieved person’s performance in working for the discriminator;

(c)    any other factor that it is reasonable to take into account.

65    Section 21A(3)(e) makes it clear that the exception applies in the case of a body or authority such as that referred to in s 19, in that it provides:

(3)    For the purposes of this section, the aggrieved person works for another person if:

…

(e)    both of the following apply:

(i)    the other person is an authority or body that is empowered to confer, renew, extend, revoke or withdraw an authorisation or qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation;

(ii)    the aggrieved person is a member of that profession, carrying on that trade or engaged in that occupation.

66    The applicant submitted that the LPUL is not a defence to discrimination – that r 13 of the General Rules “provides that the [Law Society] Council may have regard to [subsection] (m) when considering whether the applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner” and can easily be reconciled with s 21A of the DDA: see the applicant’s submissions for resumption of hearing filed on 16 June 2022 (the resumption submissions) at [5(f)].

67    The applicant pointed to the fact that s 19 of the DDA makes it unlawful for an authority to discriminate (a) by failing to renew an authorisation and (b) in the terms or conditions on which it is prepared to confer or renew the authorisation: see the resumption submissions at [5(g)].

68    The applicant submitted that s 21A of the DDA provides an exception based on inherent requirements and can be reconciled with r 13 of the General Rules in that s 21A of the DDA provides at subsection (2) that a person’s past training, qualifications and experience, as well as if the person already works, be taken into account. The applicant submitted that s 21A(3)(e) of the DDA deals with when a person is a member of a profession, and pointed to the fact that the applicant was an Australian legal practitioner from February 2017 who, in 2019, passed the New South Wales Bar Exam and successfully completed the New South Wales Bar Practice Course. The applicant submitted that “It is outrageous and scandalous for the Federal Court of Australia to permit The Law Society of NSW to raise Section 21A against the Applicant – there is simply no credible evidence and no compelling evidence to support such a serious allegation”: see the resumption submissions at [5(h)].

69    The applicant submitted that, if the Court cannot reconcile the DDA with the LPUL (or, indeed, they are irreconcilable or inherently incompatible), the DDA prevailed pursuant to cl 5 and s 109 of the Constitution: see the resumption submissions at [5(i)].

70    As to that conflict, the applicant submitted that “It is outrageous and absurd for the Respondents and their Counsel to submit that the Applicant’s remedy for the refusal of a practising certificate because of unlawful disability discrimination is pursuant to Section 100 of the LPUL”. The applicant submitted that the rights and remedies are those provided by the DDA and the AHRC Act and that a judicial officer must not fail to obey the Constitution: see the resumption submissions at [5(i)(i)].

71    The requirement in r 13 of the General Rules mirrors the terms of the exception outlined in s 21A.

72    The exception outlined in s 21A comes into operation when, because of the disability, the aggrieved person would be unable to carry out the inherent requirements of the particular work even if the qualifying body made reasonable adjustments for the aggrieved person. The qualifying body, because of the provisions of r 13 of the General Rules and s 21A of the DDA, may have regard to whether the applicant is, by reason of a disability, currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner.

73    There is no conflict between the State laws contained in the LPUL and associated General Rules and the provisions of the DDA. The provisions work in tandem so that discrimination because of a disability, such as that outlined in r 13 of the General Rules, is not rendered unlawful.

74    The submissions advanced by the applicant, particularly at [5(h)] of the resumption submissions, seem directed more towards whether, based upon the evidence, it would be open to a qualifying body to come to the conclusion that the applicant was unable to carry out the inherent requirements of the particular work.

75    In this respect, the applicant referred to s 21A(2) of the DDA, which provides that a person’s past training, qualifications and experience, as well as if the person already works in the profession, be taken into account. As mentioned earlier in these reasons, the applicant referred to the applicant’s past training, qualifications and experience and, in that context, submitted that “there is simply no credible evidence and no compelling evidence to support such a serious allegation”.

76    These arguments seem more directed towards the proposition that the factors, which the section provides should be taken into account as to whether the aggrieved person would be able to carry out the inherent requirements of the particular work, would have favoured the applicant.

77    As to that:

(a)    the applicant has not made an application for an Australian practising certificate for the 2022/2023 financial year and so the need for consideration of those issues has not yet arisen; and

(b)    if the need arises, and an application is made, and the Law Society Council considers the application, the Law Society Council will, as submitted by counsel, seek the views of the applicant and follow a process which will ensure the applicant is afforded procedural fairness. If the Law Society Council reaches a conclusion about which the applicant is dissatisfied, it will be open to the applicant to exercise the right of review which is contained in s 100 of the LPUL.

78    The applicant has (as outlined above) submitted that the s 100 appeal is not the appropriate remedy as the applicant’s rights and remedies are those provided under the DDA and the AHRC Act.

79    That is correct if conduct is rendered unlawful by the DDA. The effect of the provisions of s 21A is that there is no breach of the DDA.

80    The applicant submitted that the matter of whether there is a sufficiently strong prima facie case has already been decided by Rares J in June 2021 in NSD560/2021. In that matter, no reasons were published and the first order made on 16 June 2021 was:

The respondent provide proper and detailed particulars to the applicant as to exactly what particular facts, matters and circumstances the applicant must address in her current application to renew her practising certificate in light of its prior decisions to issue her with practising certificates and, on 14 April 2021, a certificate of fitness and good standing, having regard to her disclosures to it of the refusal on 5 December 2019 to issue her a bar reader certificate by the New South Wales Bar Association and her provision, on 22 September 2020, to the respondent of the reasons for that refusal.

81    There is no indication in the orders made that any determination was concluded regarding whether there was a prima facie case of discrimination. The nature of the orders made would not, ordinarily, require consideration of the prima facie case issue.

82    The applicant submitted that the case of Daccache v BOC Limited [2020] FCA 485 is authority for the conclusion that when deciding whether or not there is a sufficiently strong prima facie case it is not appropriate to consider s 21A. In that case, the respondent did not dispute that there was a serious question to be tried: see [31]. The question of prima facie case was not therefore considered as part of the ratio of the decision.

THE BALANCE OF CONVENIENCE

The nature of the application

83    The applicant submitted that the application is for an interim injunction which, as the applicant puts it, will prohibit the Law Society Council from refusing to renew the Australian practising certificate on 30 June 2022.

84    On the other hand, the respondents submitted that the application is in effect for an interim mandatory injunction compelling the Law Society Council to renew the Australian practising certificate from 30 June 2022.

85    The applicant referred to r 17 of the General Rules, which deals with the duration of an Australian practising certificate. Rule 17(1) provides that an Australian practising certificate is in force, if renewed, from the date of its renewal until the end of the following 30 June. Rule 17(2) provides that, if an application for the renewal is properly made before its expiry, but the designated local regulatory authority has not determined the application by the following 1 July, the certificate is taken to continue in force on and from that 1 July until the certificate is dealt with or the holder withdraws the application. The applicant submitted that this is a circumstance where the certificate would continue in force without any decision by the Law Society Council.

86    The respondents referred to s 37 of the Legal Profession Uniform Law Application Act 2014 (NSW). Section 37 deals with timing of the application for renewal of a local practising certificate and prescribes two periods, a “standard renewal period” and a “late fee period”. Currently, any application would be in the late fee period. The respondents drew particular attention to s 37(3) which provides that: “The appropriate Council may reject an application for renewal during the late fee period”. It was submitted the reason for such a rejection might be if sufficient time were not allowed for evaluation of the application.

87    The provisions of r 17 of the General Rules do not support the applicant’s argument.

88    The applicant submitted that, unless there are disclosures made in relation to an application for an Australian practising certificate, the process of renewal is procedural with no decision required. This submission is not supported by the legislation.

89    The applicant pointed to communications received from an officer of the Law Society which indicated that the officer could make a decision in relation to the application in certain limited circumstances. The Law Society Council is of course able to delegate pursuant to s 32 of the Legal Profession Uniform Law Application Act 2014 (NSW). Such delegation does not alter the requirements of the process outlined in the LPUL.

90    It is necessary to consider the terms of the legislation and the nature of the certificate which is issued.

91    Section 44 of the LPUL provides that the “designated local regulatory authority may, on application, grant or renew an Australian practising certificate in respect of a financial year”.

92    Rule 17(1) of the General Rules provides that:

An Australian practising certificate is in force—

…

(b)    if renewed, from the date of its renewal until the end of the following 30 June,

unless the certificate is earlier suspended, cancelled or surrendered.

93    In this case, the applicant is the holder of an Australian practising certificate which will expire on 30 June 2022. At the time immediately before the complaint was made (the date at which the applicant wishes to preserve the status) the applicant was the holder of an Australian practising certificate which was to expire on 30 June 2021. If the applicant is to obtain an Australian practising certificate for the next financial year (2022/2023), it will be necessary for the Law Society Council to renew the Australian practising certificate: s 44(1) of the LPUL.

94    In seeking an order that the Law Society Council cannot refuse to renew the Australian practising certificate beyond 30 June 2022, given the provisions of the legislation, the order would necessarily require the Law Society Council to renew the Australian practising certificate for the financial year commencing 1 July 2022. Such an order is mandatory in nature.

95    Section 45(2) of the LPUL requires that the Law Society Council must not renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate. Pursuant to r 13 of the General Rules, that question involves consideration of whether the applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner.

96    The effect of the order being sought is to compel the Law Society Council to issue an Australian practising certificate to the applicant without having considered whether the statutory requirements are complied with.

97    The considerations outlined in the LPUL are important aspects of a scheme designed to achieve objectives such as the maintenance of confidence in the legal profession and enhancing protection of clients and the public.

98    The applicant submitted that there is no prejudice or harm to the respondents. However, the powers and rights conferred upon the respondents are not for the respondents’ benefit, but rather in pursuance of the objectives of the LPUL. The prejudice or harm flows from the potential for the system being compromised. This is relevant to the balance of justice question.

99    This Court is not being asked to determine whether the applicant is currently unable to carry out satisfactorily the inherent requirements of practice as an Australian legal practitioner. The question before the Court on this application focuses on whether there has been a breach of the DDA.

100    This Court would be ill-equipped to determine that question (essentially in place of the Law Society Council were the injunction to be issued). As is clear, not all the information is before the Court. For example, the applicant objected to the report of Dr Diamond being put into evidence in this proceeding and so the Court has not seen that information. It was this report which has been central in recent times.

101    For the same reason, the Court does not have evidence of the Bar Council’s reasons for deciding to refuse to grant the applicant an Australian practising certificate.

102    In 2019, the applicant sought an order against the Bar Council (see Picos v The Council of the NSW Bar Association [2019] NSWSC 1382). In that proceeding, the applicant sought interlocutory relief pursuant to s 66(4) of the Supreme Court Act 1970 (NSW) that the applicant be granted an Australian practising certificate as a barrister for the balance of the year ending 30 June 2020. The applicant had made an application for an Australian practising certificate as a barrister. However, the Bar Council had declined to issue an Australian practising certificate, advising it would continue to conduct investigations into the applicant’s fitness to practice.

103    In declining to grant the relief, Slattery J pointed to the extensive powers of investigation which the Bar Council could exercise in an orderly considered way and by making external inquiries. He concluded that the Court should not lightly interfere by way of an interlocutory injunction with the statutory scheme for the granting of practising certificates under the LPUL, which had attached to it statutory rights of review under the LPUL. Of course, the court in that case was not exercising jurisdiction pursuant to the AHRC Act. Different considerations apply. However, the observations made in relation to the extensive powers available to the regulatory body (in this case the Law Society Council) are relevant in ensuring that the decisions are taken on the most comprehensive information in furtherance of the objectives of the LPUL.

104    The applicant submitted that if the status quo is not preserved “the consequences for me are catastrophic” (at transcript p 93 ll 34-38). The applicant submitted that her licence to practice law would be lost or severely restricted including through her previous undertaking where “I cannot even seek employment as a legal practitioner”. The previous undertaking is, of course, not being considered in these proceedings. Of course, if the undertaking causes a loss, this loss is not relevant to the balance in relation to these proceedings.

105    The applicant submitted (at transcript p 94 ll 8-11) that the applicant was not seeking employment as a lawyer but seeking to practice as a barrister.

106    The applicant submitted that:

I am using my status as an Australian legal practitioner elsewhere, such as in my dispute with the New South Wales Bar Association. If I were to lose my status as an Australian legal practitioner of good standing, the harm will be to my reputation, and I will suffer relationship damage including with current clients, that is, migration agent clients that I am allowed to have through the regime with the Federal government, and the repairable social rejection. So I say damages will not be adequate.

107    Further, the applicant submitted (at transcript p 96 ll 4-15):

[i]n 2013, I created Female Fund, a for-profit which was to be capitalised at one billion dollars with the assistance of the WA State Government but has been subject to litigation. And I am also the creator of the world’s first women’s index for the stock exchange for Australia and other parts of the world. This goes to the impact upon my reputation and dealings with other people where the Law Society is permitted to terminate or otherwise discriminate against me on the basis of my disability …

108    By reference to the date mentioned, some of the matters referred to in the previous paragraph appear to have occurred before the applicant obtained the first Australian practising certificate. In terms of the impact with respect to the NSW Bar Association it was clear from the submissions made that the NSW Bar Association is aware of these proceedings and is itself a party to litigation with the applicant.

109    It is not necessary to hold an Australian practising certificate to be a migration agent.

110    As to the balance of convenience, it is relevant that:

    the applicant has not applied for a renewal of an Australian practising certificate for the period 1 July 2022 to 30 June 2023;

    the applicant has not practised as a lawyer since 1 July 2021, and has said that she does not seek employment as a solicitor but wishes to practice as a barrister;

    the applicant can make application for an Australian practising certificate in the normal way which, counsel for the respondents has told the Court, will be treated in the same as other applicants including following requirements as to procedural fairness; and

    if dissatisfied with the outcome of any application for an Australian practising certificate, a right of appeal is available to the applicant pursuant to s 100 of the LPUL, which includes a merits review.

111    The two factors, whether there is a prima facie case of sufficient strength and where the balance of convenience and justice lies, are interrelated. Especially given the issues identified relating to the protection of the public embodied in the LPUL, the balance of convenience and justice weighs heavily against the granting of an injunction. The prime facie case is not of sufficient strength, particularly in view of that fact.

112    The applicant’s application for an injunction is refused with costs.

Associate:    

Dated:        29 June 2022