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). The applicant, who was born in 1956, is a Hong Kong solicitor. He has law degrees from the University of London. He was admitted as a solicitor of the Supreme Court of Hong Kong in 1983, and the evidence shows that since that time he has had substantial and impressive experience in practice in Hong Kong. He is resident in Hong Kong, but his parents live in Australia, and he plans to move to Sydney to live within the next couple of years. He wishes to practice here as a solicitor. As at the time of the commencement of these proceedings in September 1991, and at present, the rule which governs the eligibility for admission of persons such as the applicant is R105(h). In September 1991 that rule was in the following terms: 2 UNREPORTED JUDGMENTS "105 The following persons only shall be eligible for admission as solicitors: (h) persons who have been admitted as solicitors or the local equivalent outside Australia or New Zealand or have qualified for admission as such and who have satisfactorily completed examinations in New South Wales in such subjects as may be nominated by the Credits Sub-Committee and who: (1) have satisfactorily completed the Practical Legal Training Course; (2) have satisfied the Board that, by satisfactorily completing a course substantially equivalent to the Practical Legal Training Course, or the Australian National University Workshop course or otherwise, they have had adequate practical legal experience. " The applicant has never made an application to the Board under para(h). He acknowledged in his evidence that one reason for that was that he did not wish to have to sit for examinations that may be nominated by the SubCommittee referred to in the rule. Whilst there is nothing in the rules which specifies or limits the examinations that might be nominated in a case such as the present, R70, which operates in a somewhat different context, but which is of some relevance, refers to examinations in the subjects of Real Property, Australian Constitutional Law, and Legal Ethics. The applicant has never studied those subjects in relation to the law of New South Wales. R105(h) is the rule that applies, and was originally intended to apply, to applications for admission by foreign solicitors, that is to say, persons previously admitted as solicitors outside Australia or New Zealand. It may be observed in passing that the requirements of that rule are by no means as stringent as the requirements that would operate, for example, in the case of a New South Wales solicitor seeking to be admitted as a solicitor in Hong Kong. We were informed, and the evidence shows, that in such a case the New South Wales solicitor would be required to undertake, in Hong Kong, a full-time course extending over the whole of an academic year for the purpose of obtaining what is called a Postgraduate Certificate in Laws. The evidence before us as to that course includes the following statement: "The P.C.LL. is a unique combination of an academic and practical skills course. Some of the subjects, such as revenue law, are taught in the traditional manner for a LLB course, but aspects of revenue law are dealt with in a practical manner where appropriate, eg, stamp duty implications on the sale of a business, estate duty implications in will drafting. Even such apparently practical subjects as Practice and Procedure are lectured on in a traditional and academic way and then aspects of the subject are covered in small group sessions in a practical way involving drafting and other skills. Over all the subjects the skills of interviewing, drafting, problem solving, advising, etc, are taught and practised." It seems that a New South Wales solicitor seeking admission in Hong Kong would also be required to serve a substantial period of articles of clerkship. The barriers to the entry of Hong Kong solicitors into New South Wales are at present no higher than those to the entry of New South Wales solicitors into Hong Kong, and, indeed, seem to be a good deal lower. At the present time there is a good deal of interest in the subject of the arrangements for the admission to practice in Australia of foreign lawyers, and of corresponding arrangements overseas. This is a matter of potential importance for Australia's role in the region. Considerations of reciprocity may be of significance in that context. However, as senior counsel for the applicant observed, they are not relevant to the outcome of the present application, which is to be dealt with on its individual merits in the light of the evidence, the Act and the rules. URJ Re CHEUNG and the LEGAL PROFESSION ACT 1987 (Gleeson CJ) 3 Although he has never made an application to the Board under para(h), the applicant sought, prior to October 1990, to take advantage of another of the Board's rules relating to eligibility for admission. Until 12 October 1990 the applicant also fell within the provisions of R105(b). On that date R105(b) was amended, but up until then it provided, so far as presently relevant, that persons were eligible for admission as solicitors whose names were on the roll of solicitors in the Supreme Court of another State or of the Australian Capital Territory, and who satisfied the Board that, by satisfactorily completing a course substantially equivalent to the Practical Legal Training Course, or the Australian National University Legal Workshop course or otherwise, they had adequate legal experience. The reference to the Practical Legal Training Course is a reference to the course conducted at the College of Law in Sydney. It has similarities to the P.C.LL. course conducted in Hong Kong, although it extends only over a period of six months. In 1989 the applicant became admitted as a barrister and solicitor of the Supreme Court of the Australian Capital Territory. He never practised there or undertook any course of practical legal training either there or in New South Wales. In June 1990 he gave notice of intended application for admission as a solicitor, and sought from the Board approval as a suitable candidate for admission, relying on the provisions of R105(b). On 25 September 1990 the Secretary of the Board wrote to the applicant in the following terms: "Your application was considered by the Board on 18 and 21 September 1990. It was resolved by the Board that your application be refused. The Board was not satisfied that the applicant, on the material presented, had adequate practical legal experience for the purpose of admission to practice in New South Wales." The applicant sought reconsideration of the matter, and on 26 October 1990 the Board wrote to him as follows: "The Board, although recognising your legal experience in Hong Kong and elsewhere, was not satisfied, on considering both the requirements of R105(b) and that you have no legal experience in New South Wales, that you have adequate practical legal experience, for purposes of admission to practice in New South Wales." In the meantime, on 12 October 1990, R105(b) had been amended in a manner which produced the practical consequence that thereafter foreign solicitors, even though their names might be on a roll of practitioners in another State or Territory, were to be dealt with under para(h) and not para(b). (For reasons that are not presently relevant, New Zealand solicitors are dealt with separately). As I have said, the applicant has never sought to have his case considered under par(h) because, if he were to do so, he would be at risk of being required to do certain examinations. His record suggests that he would not be likely to have difficulty, after some study, in passing such examinations, but it would evidently be inconvenient for him to undertake them. There is one additional matter of history that should be mentioned. Although the evidence does not go into any detail on the subject, it shows that, prior to September 1990, some other Hong Kong solicitors, whose legal training and experience was similar to that of the applicant, were approved by the Board under R105(b). On the other hand, from what was said to us from the bar table during the course of argument, I gather that a number of other practitioners were dealt with in the same way as the applicant. It seems that this has engendered in the applicant a sense of grievance, and he apparently considers that if he had moved 4 UNREPORTED JUDGMENTS earlier he would have received more favourable treatment from the Board. However, we are in no position to consider the individual merits of the various other applications that were made to the Board and, as has been observed, the application that has been made to us is to deal with the applicant's case on its own particular merits. Senior counsel for the applicant put his argument in two ways. First, it was submitted that, on the facts that were before it in September 1990, the Board should have been satisfied that the applicant had adequate legal experience and, therefore, should have approved him pursuant to R105(b) as it then stood. Coupled with this submission is the argument that, if the first submission is made good, then the circumstance that R105(b) was amended on 12 October 1990 should not prevent this Court from dealing with the applicant as a person who, in fairness, should have received the Board's approval in September 1990. Secondly, it was submitted that, in the light of the evidence before the Court and the Court's view of the applicant's legal qualifications and experience, the Court should admit him as a solicitor without any need for further compliance with the rules. As to the first submission, the undeniable fact is that the applicant did not, in September 1990, satisfy the Board that he had adequate legal experience. It was accepted on behalf of the applicant that nothing turns upon the use of the Board, in its correspondence, of the expression "adequate practical legal experience", which is an expression taken from para(h), as distinct from "adequate legal experience" which is the expression which appears in para(b). The latter, whatever its precise extent, clearly comprehends the former. Nor does the evidence show that the Board reached this conclusion on the basis of any erroneous or inadmissible consideration, or as a result of any error of law or discretion. Senior counsel for the applicant contended that the Board "should have been satisfied" that the applicant had adequate legal experience. This contention was closely related to the argument that was advanced in relation to the second of the applicant's submissions, for it was also contended that this Court, for its own part, ought now to be satisfied on the evidence before it that the applicant has had adequate legal experience, or adequate practical legal experience, whichever be the applicable test. The error into which the Board was said to have fallen, and against which the Court was warned, was the error of treating the applicant's overseas legal experience as irrelevant, and of treating the reference to experience in the rules as being a reference only to experience in Australia, or at least in New South Wales. In my view it would be an error in a case such as the present to treat overseas experience as irrelevant for the purpose of the application of the rules or, for that matter, for the purpose of an individual decision by this Court as to whether a person should be admitted as a solicitor. The applicant's overseas training and experience is clearly a matter to be taken into account, in his favour. I am, however, unable to see that the Board fell into the error attributed to it. The legal experience referred to in both para(b) and para(h) is experience of a kind that can properly be regarded as constituting, or contributing to, experience which is adequate to qualify a person to be admitted as a solicitor in New South Wales. The rules are designed to protect the public by ensuring that persons who do not go through the process of legal education and training that is established for local residents in New South Wales, but who are otherwise legally qualified, URJ Re CHEUNG and the LEGAL PROFESSION ACT 1987 (Clarke JA) 5 will not be admitted to practice in New South Wales unless they have, amongst other things, "adequate... experience". The very nature of the subject matter of the relevant rules indicates, as does commonsense, that the experience of the individuals in question may be gained, at least in large part, outside New South Wales. There may even be particular instances in which, in the opinion of the Board, or of the Court, adequate experience could be gained wholly outside New South Wales. There is, however, nothing in the evidence before us which shows that the Board took any different view when it came to consider the present application. Furthermore, whilst I for my part would readily accept as relevant and important the overseas experience of legal practice which the applicant has gained, the evidence does not satisfy me that, in the absence of any significant time spent in New South Wales, and of any personal experience in practice here, he can be said now to have adequate experience for admission. I am not persuaded that the applicant suffered any injustice when the Board dealt with his case in September 1990, and I do not consider that this is a proper case for the Court to exercise what was earlier referred to as its overriding and independent power. The proper course to be followed, in the interests of the public, is for the applicant to proceed under the provisions of R105(h). It will be for the Credits Sub-Committee, and the Board, to make a judgment as to what, if any, examinations and practical legal training should be undertaken by the applicant. He may satisfy those authorities that the requirements in that regard ought to be relatively minor. However, the case is not one in which the Court should intervene at this stage. Mahoney JA I agree with the judgment of the Chief Justice. In view of the submissions made to the Court, I shall add two things. First, on the evidence before the Court, Mr Cheung is a person having substantial academic qualifications and considerable experience in other countries. The refusal of his application should not be seen as reflecting upon him or upon the level of his qualifications. It results from the application of the Rules established for the admission of practitioners, or the considerations on which those Rules are based, to his case. Second, the essence of the submissions made for Mr Cheung is, at least on one view, that he should be dealt with, not according to the terms of the Rules, but as a special case. The suggestion is, I think, that his qualifications are higher than those of other applicants who come before the Board in the ordinary course. However, I do not think that that is a matter which warrants his application being dealt with in a way different from the way in which applications are ordinarily dealt with. If his qualifications and experience are indeed exceptional, then to the proper extent that will be taken into account by the Board. I agree with the orders proposed by the Chief Justice. Clarke JA I agree with the reasons and orders of the Chief Justice. The application should be dismissed. There should be no order as to costs. Counsel for Appellant: C Porter QC / CJ Hockey Instructed by: Gordon L Beard and McDonald Counsel for Respondent: D Cowan / DA Chaikin Instructed by: State Crown Solicitors Office