Cinar v Law Society of Tasmania [2014] TASSC 44 (18 August 2014)

Last Updated: 3 May 2016

[2014] TASSC 44

COURT: SUPREME COURT OF TASMANIA

CITATION: Cinar v Law Society of Tasmania [2014] TASSC 44

PARTIES: CINAR, Erol

v

LAW SOCIETY OF TASMANIA

FILE NO: 455/2014

DELIVERED ON: 18 August 2014

DELIVERED AT: Hobart

HEARING DATE: 14 August 2014

JUDGMENT OF: Blow CJ

CATCHWORDS:

Professions and Trades – Lawyers – Practising certificates – Other matters – Statutory requirement of condition permitting only supervised legal practice as employee or partner – Applicant desiring to practice as barrister under pupillage.

Legal Profession Act 2007 (Tas), s59(3).

Aust Dig Professions and Trades [1131]

REPRESENTATION:

Counsel:

Appellant: A G Melick SC

Respondent: N R Readett

Solicitors:

Respondent: Simmons Wolfhagen

Judgment Number: [2014] TASSC 44

Number of paragraphs: 16

Serial No 44/2014

File No 455/2014

EROL CINAR v LAW SOCIETY OF TASMANIA

REASONS FOR JUDGMENT BLOW CJ

18 August 2014

This is an appeal pursuant to s84(1)(a) of the Legal Profession Act 2007 ("the Act"). The appellant, Erol Cinar, was admitted to the legal profession in Victoria in November 2011 and in Tasmania in October 2013. He wishes to practise as a barrister in Tasmania. He has not previously practised as a lawyer of any sort. He made arrangements to undertake a period of pupillage with two experienced barristers as his pupil masters, rented a room in some barristers' chambers, and made an application to the Law Society of Tasmania, the respondent, for a practising certificate. The Society refused that application. It contends that the law in Tasmania presently permits the granting of a practising certificate to an inexperienced lawyer only if that lawyer's right to practise is confined to practice as an employee of a law practice or a partner in a law firm. It refused the appellant's application on the basis that he only wanted to practise as a barrister, and that the grant of a practising certificate that was subject to such a restriction would have been futile. This is an appeal from that refusal. Section 48(1) of the Act permits an Australian lawyer to apply to "the prescribed authority" for the grant of a local practising certificate if eligible to do so. The appellant was eligible to do so. The Society is "the prescribed authority": Legal Profession (Prescribed Authorities) Regulations 2008, reg4. Section 53(1)(a) of the Act requires the prescribed authority to consider an application for the grant of a local practising certificate, and permits it to grant or refuse to grant the certificate. Section 84(1)(a) permits a person whose interests are affected by a decision of the prescribed authority to appeal to this Court against a decision to refuse to grant a local practising certificate under s53. The parties are agreed that such an appeal is an appeal by way of hearing de novo. I think that is clear from the statutory context. The Society is not obliged to hold a hearing or give reasons for its decision. The Court is empowered by s84(2) to make any order that it considers appropriate on the appeal. There is no restriction on the grounds of appeal, nor is there any requirement to identify grounds of appeal. Counsel for the parties referred me to a number of decisions that support the conclusion that the appeal is one by way of hearing de novo: Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616; Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669; Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110; Barakat v Law Society (NSW) [2014] NSWSC 773. The Society refused the appellant's application for a practising certificate because it took the view that, if it granted him a local practising certificate, s59(1) of the Act would require the certificate to contain a condition that would preclude him from practising as a barrister. In order to evaluate that reasoning, one needs to consider the whole of s59. It reads as follows:

"(1) It is a statutory condition of a local practising certificate that the holder must engage in supervised legal practice only, until the holder has completed —

(a) if the holder completed practical legal training principally under the supervision of an Australian lawyer, whether involving articles of clerkship or otherwise, to qualify for admission to the legal profession in this or another jurisdiction, a period or periods equivalent to 18 months’ supervised legal practice, worked out under relevant regulations, after the day the holder’s first local practising certificate was granted; or

(b) if the holder completed other practical legal training to qualify for admission to the legal profession in this or another jurisdiction, a period or periods equivalent to 2 years’ supervised legal practice, worked out under the relevant regulations, after the day the holder’s first local practising certificate was granted.

(2) Subsection (1) has effect subject to any other conditions that relate to engaging in supervised legal practice after a period or periods referred to in that subsection.

(3) The prescribed authority may exempt a person or class of persons from the requirement for supervised legal practice under subsection (1) or may reduce a period referred to in that subsection for a person or class of persons, if satisfied that the person or class of persons do not need to be supervised or need to be supervised only for a shorter period, having regard to —

(a) the length and nature of any legal practice previously engaged in by the person or class of persons; and

(b) the length and nature of any legal practice engaged in by the supervisors (if any) who previously supervised the legal practice engaged in by the person or class of persons.

(4) An exemption under subsection (3) may be given unconditionally or subject to such conditions as the prescribed authority thinks appropriate.

(5) The prescribed authority may exempt a person from the requirement for supervised legal practice under subsection (1) if the person has satisfied any requirements relating to training or qualifications prescribed by the regulations as a precondition to becoming a barrister."

As the appellant has never engaged in any sort of legal practice, it can be seen that, unless the Society decided to grant an exemption pursuant to s59(3) or s59(5), any practising certificate would have to contain a condition under s59(1) requiring the appellant to "engage in supervised legal practice only" for a period of time. In the appellant's case, the requisite period would have to be two years, pursuant to s59(1)(b). Section 4(1) of the Act contains the following definition:

"supervised legal practice means legal practice by a person who is an Australian legal practitioner —

(a) as an employee of a law practice, where —

(i) at least one partner, legal practitioner director or other employee of the law practice is an Australian legal practitioner who holds an unrestricted practising certificate; and

(ii) the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i); or

(b) as a partner in a law firm, where —

(i) at least one other partner is an Australian legal practitioner who holds an unrestricted practising certificate; and

(ii) the person engages in legal practice under the supervision of an Australian legal practitioner referred to in subparagraph (i); or

(c) in a capacity approved under a legal profession rule."