Baker & Ors, Re; Re Farnell [1991] QSCFC 2

IN THE SUPREME COURT OF QUEENSLAND FULL COURT MOTION 110 Of 1991 & ORS MOTION 141 OF 1991 BETWEEN: IN THE MATTER OF "THE SOLICITORS ADMISSION RULES 1968 - 1986" AND : IN THE MATTER OF AN APPLICATION FOR ADMISSION AS THE SOLICITOR OF THE SUPREME COURT BY ELIZABETH MICHEL BAKER AND OTHERS AND: IN THE MATTER OF AN APPLICATION FOR ADMISSION AS A SOLICITOR OF THE SUPREME COURT BY BERNADETTE MAREE FARNELL MCPHERSON SPJ DERRINGTON J MOYNIHAN J REASONS FOR JUDGMENT DELIVERED BY MCPHERSON SPJ ON 1 5TH FEBRUARY, 1991. DERRINGTON J AND MOYNIHAN J CONCURRING WITH THE REASONS OF MCPHERSON SPJ ORDER OF THE FULL COURT MADE ON 2 2ND FEBRUARY, 1991: LET THE APPLICANTS BE ADMITTED AS SOLICITORS OF THE SUPREME COURT OF QUEENSLAND. ORDER THAT UPON HER ADMISSION AS A SOLICITOR OF THE SUPREME COURT OF QUEENSLAND THE NAME OF BERNADETTE MAREE FARNELL BE REMOVED FROM THE ROLL OF BARRISTERS. [1991] QSCFC 2 -- 1 of 9 -- IN THE SUPREME COURT OF QUEENSLAND FULL COURT Before the Full Court Mr. Justice McPherson S.P.J. Mr. Justice Derrington Mr. Justice Moynihan IN THE MATTER of "The Solicitors Admission Rules 1968-1986". - and - IN THE MATTER of an Application for Admission as a Solicitor of the Supreme Court by ELIZABETH MICHEL BAKER AND OTHERS - and - IN THE MATTER of an Application for Admission as a Solicitor of the Supreme Court by BERNADETTE MAREE FARNELL JUDGMENT - MCPHERSON S.P.J. Delivered the Fifteenth day of February, 1991. CATCHWORDS Legal Practitioners - Solicitors - Service in articles of clerkship - Consent of Board - Consent deferred owing to Board workload - Whether Court should abridge period of service in articles - Rules relating to Admission of Solicitors, r. Counsel: P.A. Keane Q.C. for the Applicants M. Burnett for the Applicant Farnell Atkinson (solicitor) for the Board. Hearing Date: 11th February, 1991. -- 2 of 9 -- IN THE SUPREME COURT OF QUEENSLAND IN THE MATTER of "The Solicitors Admission Rules 1968-1986". - and - IN THE MATTER of an Application for Admission as a Solicitor of the Supreme Court by ELIZABETH MICHEL BAKER AND OTHERS - and - IN THE MATTER of an Application for Admission as a Solicitor of the Supreme Court by BERNADETTE MAREE FARNELL JUDGMENT - MCPHERSON S.P.J. Delivered the Fifteenth day of February, 1991. These are motions for admission as solicitors by 18 articled clerks in the employ of a particular city firm. The obstacle to their admission lies in r .17(1) (c)( i ) of the Solicitors Admission Rules 1968 which requires as a condition precedent to admission in cases like these service for a period of two years subject to the conditions prescribed under articles of clerkship. Rule 29(1 ) provides that a person desiring to enter into articles of clerkship shall before entering into such articles obtain the consent of the Solicitors' Board to his doing so. By r.29(2) the Board may not give its consent unless satisfied that the applicant is of good character and possesses certain specified qualifications. A person seeking such consent is by r.30(1) bound to submit with his application information to satisfy the Board concerning any matter mentioned in r.29. If the Board is so satisfied it is required by r.31 to give its consent to the applicant entering the relevant articles, and by its Secretary -- 3 of 9 -- 2 to issue a certificate of its consent. Rule 34(3) has the effect of providing that ordinarily articles of clerkship are to commence "not earlier than the date consented to by the Board". In the case of the present 18 applicants the policy followed in 1989 by members of the city firm to whom the applicants were to be articled was that all the documents required under r.30 should be submitted simultaneously. The reason for adopting this course was, accordingly to Mr Hassall, the solicitor of that firm charged with superintendence of the matter, a wish to avoid inconveniencing the Board by submitting large numbers of documents "piecemeal". Unfortunately, in the case of the present applicants this meant that the documents required under r.30 were submitted to the Board only on 14 February 1989 in anticipation of its meeting on the following day, 15 February 1989. None of these applications for consent to enter articles was considered at the Board meeting held on 15 February 1989, and none was granted until the occasion of the next meeting of the Board, which was not held until 8 March 1989. As a result the consent of the Board was not given until that date. Pursuant to r.34(3) the articles in the case of each applicant therefore did not commence until 8 March 1989. As a further consequence the required term of two years of articles will not have been fully served out until 8 March 1991 or thereabouts. The applicants therefore at present fall short by a period of some 25 days of the term of service in articles required by r .17(1)(c)(i) of the Rules. By virtue of r.94(1) this Court or the Board may abridge the time for the doing of any act or matter under the Rules. There is, however, an express proviso to that sub-rule limiting the power of the Board of abridging the -- 4 of 9 -- 3 prescribed time for service as an articled clerk to doing so by no more than 14 days, which would not suffice to eliminate the obstacle to admission of the applicants in the present case. The applicants accordingly invoke the power of the Court under r.94(1) to carry through the necessary abridgment. The Board, which was represented before us, opposes their applications in that behalf. The resulting state of affairs cannot be described as satisfactory. The Rules disclose a clear intention that a clerk shall serve under articles for a period of at least two years counting that time as commencing from the date of the Board's consent under r.34(3). One solution to the problem would be to require the applicants to serve out their two year term before moving their applications for admission on or after 11 March 1991. If they do so they will not succeed in having their applications heard until the sitting of this Court appointed to commence on 8 April 1991. The reason for that is that by r. 67(a) a person may be admitted to practise as a solicitor only at sittings of the Full Court designated for that purpose by the Honourable The Chief Justice. The sittings of 8 April are so designated; those of 11 March are not. The result is that the applicants will, if not admitted in the present sittings, be compelled to wait until 8 April before their applications can be granted and they can be admitted. It is impossible to acquit the Board of a measure of responsibility for the state of affairs that has thus developed. According to the affidavit of Mr Hassall read before us, the failure of the Board to consider the applicants' documents at its meeting on 15 February 1989 was due to the fact that the documents were not lodged until 14 February, and that it was "the -- 5 of 9 -- 4 Board's policy that all consent documentation should be delivered at least seven days prior to its meeting". As I understand his affidavit, Mr Hassall deposes that he was not aware of that requirement until informed of it by the Secretary to the Board by telephone on 17 February, 1989, which was two days after the Board held its meeting. He further deposes that based on his experience of preparing and submitting documents to the Board in 1988 and 1990, as well as 1989, the requirement that documents be submitted at least 7 days before the relevant meeting is not one that has been strictly adhered to. These statements by Mr Hassall were not contradicted by the Board, which was represented before us at the hearing. On that material, there was before 17 February 1989 no reason for anyone in the profession other than members of the Board to suspect that the Board would suddenly impose such a requirement . In attempting to reduce inconvenience to the Board by not submitting documents "piecemeal" for its consideration, the firm of solicitors in question has thus unwittingly achieved little but inconvenience to that firm, to the applicants, and, it may be added, to this Court and to litigants kept waiting while matters of this kind are debated. The reason offered to Mr Hassall for the Board's change of policy in February 1989 was that it was "due to the Board's workload". One may in that feel some sympathy for members of the Board; but they are not the only persons or tribunal with a heavy workload. It should not be beyond the ingenuity of a Board, having a membership consisting of experienced solicitors and a competent staff, to devise means of resolving problems of this nature without imposing on others to the extent that has taken place here. At the very least, one would not expect that it would, without adequate warning, proceed -- 6 of 9 -- 5 to change its requirements so as to defeat the legitimate expectations of those who applied to it to perform its statutory function. In saying this, I should not be taken to imply that the Board either has, or does not have, a power under the Rules to impose a requirement of the kind in question after giving due notice to those persons likely to be affected by it. Nor do I wish it to be assumed that any such requirement continues to be imposed. We have before us no information enabling us to know what is the present "policy", in matters like this, of the Board as it may be now constituted. The question is, What is now to be done? One solution suggested by Mr Keane Q.C., who appears on behalf of the applicants, is to adjourn these applications to the next sittings of this Court on 11 March 1991. Those sittings have, however, not been designated under r.67(a) as sittings at which admissions may be moved. Of course, it would be possible to approach the Chief Justice with a request for such a designation. Until recently admissions could be moved on the first day of any of the three-weekly sittings of the Full Court. Ironically, it was at the specific request of the Solicitors' Board that the Rules were changed to limit the number of sittings at which admissions might be moved. The reason advanced in support of making that alteration was that the Board was having to meet too frequently, and wished to limit the number of meetings that would be held in each year. The Court was asked to restrict the number of admission days accordingly. Having acceded to that application at the Board's request, I do not consider that we should now abandon the present arrangements. Others have been obliged to submit to the new regime, and we ought not too readily depart from it in order to -- 7 of 9 -- 6 meet the needs of some and yet not of others on whom it may bear to disadvantage. On the other hand, enough has been said about the circumstances of the present matter to demonstrate that it is not of the applicants' own making, nor one for which either the city firm in question or this Court can fairly be held responsible. If anything should be made to yield ground, it is- in the circumstances the requirement of the Board's own Rules that articles of clerkship commence not earlier than the date on which the consent of the Board is given. Had the Board considered the matter at the date in February 1989 when it might reasonably have been expected to have done so, the present problem would not have arisen. Doing the best we can, we consider that the applicants should not be subjected to further anxiety or detriment on account of the course of events I have described here. It follows in my opinion that the power of the Court under r.94(1) ought to be exercised in favour of the applicants so to abridge the term of two years under which they are obliged to serve articles as to enable them to be admitted as solicitors on the day (Friday, 22 February 1991) to which these applications now stand adjourned. There remains for consideration the particular and quite distinct application for abridgment by Ms. Farnell. Like the other applicants before us, she on 8 March 1989 obtained the consent of the Board to enter into articles but with a member of a different firm of solicitors practising in the country. In this instance the Board does not oppose her application. In her case the reason evidently is that she began her service in that firm on 3 January 1989 with a view to entering into articles of clerkship, and has been in the employment of those solicitors or -- 8 of 9 -- 7 of a successor to that firm since that date. Precisely why the consent to her articles was not given or obtained before 8 March 1989 is not disclosed by the material filed in support of her application. She has, however, had extensive and varied experience in legal practise and was admitted as a barrister on 15 December 1988. That may explain why the Board does not oppose the application in her case; in other words, the Board is in this instance evidently content to read the provisions of r.17(1)(a)(i) as requiring service for two years under articles of clerkship or their practical equivalent. I am not to be taken as deciding that anything in the Rules or the course of past decisions in this Court necessarily justifies such an approach. But having regard to the attitude of the Board based in her case upon her experience in legal practice, 1 would be prepared in this instance to abridge the period of service in articles so as to enable her also to be admitted on Friday 22 February 1991. The abridgment involved of eleven days to that date would have the effect of bringing her within the Board's power of dispensation under r.94(1), which the Board has manifested a willingness to exercise in her case. -- 9 of 9 --