Re CHEUNG and the LEGAL PROFESSION ACT 1987 [1992] NSWCA 204

Re CHEUNG and the LEGAL PROFESSION ACT 1987

SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

GLEESON CJ, MAHONEY and CLARKE JJA 28 February 1992, 15 May 1992

[1992] NSWCA 204

Legal Practitioners — Qualifications and Admission — Legal Profession Act 1987 s4(1), s11(1) — R105(b), R105(h) — question of adequate practical legal training relevant to New South Wales — Court's independent power to admit persons as solicitors

LEGAL PRACTITIONERS — QUALIFICATIONS AND ADMISSION — Application by Hong Kong lawyer for admission as a solicitor — Solicitors Admission Board declines to certify fitness on ground of inadequate practical legal training relevant to New South Wales — application to Court — HELD — the Board had not misconceived its function or applied a wrong test and the case was not one in which the Court should exercise its overriding power to admit the applicant.

Gleeson CJ In September 1991 Mr JWN Cheung, the applicant, commenced proceedings in this Court seeking an order that he be admitted as a solicitor. S11(2) of the legal Profession Act 1987 empowers the Court to deal with an application for admission as a solicitor by a person approved by the Solicitors Admission Board as a suitable candidate for admission. For reasons that will appear below, the applicant does not have such approval. However, s11(1) of the Act provides that the Court may admit persons as solicitors whether or not the case falls within s11(2). The history of the Court's "overriding and independent power" in that respect is set out in Re B (1981) 2 NSWLR 372. The power is clearly preserved by the provisions of the Act, especially s4(1) and s11(1).

Applications for admission as a solicitor, although ultimately all dealt with by the Court, are ordinarily processed by the Board. The Board is constituted pursuant to s12 of the Act and it is empowered, by s14, to make rules with respect to the qualifications for admission as a solicitor. Those rules do not limit the powers of the Court to admit any person as a solicitor (s14(3)), but it was common ground in these proceedings that, even in a case where the overriding and independent power of the Court is invoked, the Court would ordinarily have regard to the provisions of the rules (cf Re Malik and the Legal Practitioners Act 1973 1 NSWLR 609).