PARTIES:	IN RE LEGAL PRACTITIONERS ACT AND
IN RE ASHA McLAREN

TITLE OF COURT:	FULL COURT OF THE SUPREME COURT (NT)

JURISDICTION:	ORIGINAL

FILE NO:	SC No. 102 of 1991

DELIVERED:	Darwin 10 June 1992

HEARING DATES:	6 August 1991

JUDGMENT OF:	Asche CJ, Kearney & Angel JJ

CATCHWORDS:

Legal Practitioners - Qualifications and admission -
Overseas practitioner - Role of Admissions Board as to educational requirements - Desirability that certain subjects be studied.

Legal Practitioners Act (NT), ss11(1)(c)

Legal Practitioners - Qualifications and admission - Overseas practitioner with experience in India - condition for dispensing with statutory requirement to serve articles of clerkship.

Legal Practitioners Act (NT), ss11(2)(b)(i), 11(5)

In re De Souza [1985] 39 SASR 316

REPRESENTATION:

Counsel:

Applicant:	G.E. Hiley QC

Solicitors:

Applicant:	Philip & Mitaros Law Society of the N.T.:	I.D.L. Briggs

Judgment category classification:	CAT B Court Computer Code:
Judgment ID Number:	92075
Number of pages:	19

IN THE FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
OF AUSTRALIA

SC No 102 of 1991

IN THE MATTER OF THE LEGAL PRACTITIONERS ACT

AND IN THE MATTER of an application by Asha McLaren for admission as a legal practitioner of the Supreme Court

CORAM: ASCHE CJ, KEARNEY AND ANGEL JJ

REASONS FOR DECISION

(Delivered 10 June 1992)

BY THE COURT:

The application

By originating motion filed 20 March 1991 the applicant sought the following relief:-

A declaratory order that she is a person entitled to apply under s11(5) of the Legal Practitioners Act to be admitted to practise as a legal practitioner of the Supreme Court; and

A consequential order that she be admitted to practise.

The application came on before a Full Court on 5 April. The hearing was adjourned at the request of the Law Society. It was re-argued on 6 August before this Court, which reserved its decision. Meanwhile, the Law Society was directed to file an affidavit relating to various matters. This was attended to on 15 August; we rule on the application today.

The applicant's overseas background

In her supporting affidavit of 20 March 1991 the applicant deposed as follows.   She graduated as a Bachelor of Science from the University of Madras on 21 March 1980. She then embarked upon the Bachelor of Law course at that University, as a post graduate degree. It required three years of full time study. She completed this course of study, graduating as the top student. The results she obtained in each semester are annexed to her affidavit; they reveal a general pattern of moderate examination marks and excellent internal assessment marks. The marking regime allocated seventy-five marks for the university examination and twenty-five marks for internal assessment, in each of the twenty subjects studied. The applicant passed all subjects. Her average examination mark was 52.3 per cent and her average internal assessment mark was 93.2 per cent, yielding an overall average of 64.7 per cent

against a pass requirement of 40 per cent. The subjects studied included Family Law I, Family Law II and Taxation, subjects which are largely statute-based in Australia and different to the law in India; as will be seen, the applicant subsequently studied Taxation law in Australia.

On 9 March 1983 the applicant was admitted as an Advocate on the Roll of the Bar Council of Tamil Nadu.

The applicant then practised for six years at the District and Sessions Court of Coimbatore in Tamil Nadu from 1983 until her marriage in January 1989. She deposed, inter alia, as follows:-

"6	As a Junior Advocate I joined the office of one Mr M Panchapkesan a Senior and distinguished member of the Coimbatore Bar. I was trained by him to be a Barrister and Solicitor for two years. I attended courts with him and assisted in the conduct of cases.

Thereafter, I had my own private practice as a Barrister and Solicitor and was an associate of the practice of a Senior and distinguished colleague Mr C R Subramanian for about four years. - - -

I was also nominated to the panel of the Coimbatore Legal Aid Association, by the then President and District & Sessions Judge Mr Arumugham. I have served on the panel and conducted cases for many litigants. - - - "

The applicant produced references from four of her professional colleagues in Tamil Nadu, warmly testifying to her ability as a practising lawyer. The President of the Coimbatore Bar Association noted that "she stood first in the Bar Council Examinations conducted by the University of Madras in the year 1982."

In a draft affidavit annexed to her affidavit of 20 March 1991 the applicant spelled out her professional experience in Tamil Nadu in more detail, viz:-

"9	As a Junior Advocate, I joined the office of Mr M Panchapakesan, a senior and distinguished member of the Coimbatore Bar. I was trained by him for two years which is similar to articles of clerkship.

During these initial years, I was trained to draft plaints, written- statements, affidavits, petitions, counter-statements, grounds of appeal etc. As a Lawyer practising in the originating jurisdiction of the District Munsif (or lower court) the Court of the Subordinate Judge (or the next court) and the District and Sessions Court of Coimbatore, I was trained in the art of examination-in-chief, cross-examination and re-examination, and to frame the relevant issues pertaining to the case. I was also trained to prepare my case thoroughly by mastering the facts ie pleadings, documents, and the evidence.

I was trained to support the facts of a case with appropriate and most recent rulings of the Supreme Court of India, the High Court of Judicature Madras and the other High Courts in India.

My training included stating my client's case in the course of arguments chronologically, positively and in the most convincing and persuasive manner, to always remember my duty to Court, to my client and to my colleagues, and never to mislead the Court on points of law or fact and never to over state my case.

I was also trained to draft commercial documents such as agreements, deeds of lease, sale, mortgage, partnership, etc.

Above all I was taught to be a client's confidante, never let him down in any way and have his interests upper most in my mind.

The Coimbatore Bar Association like all other Bar Associations in India follows the high traditions of legal ethics and Anglo- Saxon jurisprudence as followed in England and other Commonwealth countries.

I have in the course of six years of practice, conducted cases individually and assisted in a wide range of civil cases. The areas of my practice included: contract, transfer of property, (including leases, sales, mortgages, gifts, exchanges, etc.), law of easements, law of partnerships, family law (including the laws of marriage, divorce, maintenance, minority, and guardianship Acts of Hindus, Christians and Muslims), the laws of succession (probate of wills, succession certificates, etc.), motor accident claims, the Tamil Nadu Buildings (Lease And Rent Control) Act, company law (certain areas), sales of goods, negotiable instruments, arbitration, law of trusts, partition, land acquisition, insolvency.

I have practised in the Courts of the District Munsif, Subordinate Judge, and District Judge of Coimbatore. I have argued interlocutory applications, conducted trials and have argued appeals.

I had my own private practice and was an associate of the practice of a Senior and distinguished colleague Mr C R Subramaniam for four years. I therefore conducted my own cases and some of my senior colleague's cases.

I am confident of my ability to receive instructions from a client, give him the right advice and to conduct cases on his behalf having the considerations of my client paramount at all times.

I was nominated to the panel of the Coimbatore Legal Aid Association as early as June 1983, by the then President and District Judge Mr Arumugham. I have since served on the panel and rendered service to many litigants."

The applicant's educational qualifications for admission

The applicant migrated to Australia in February 1989. She then sought to have her Madras Law degree "assessed for purposes of continuing my profession here in Darwin." The Northern Territory University sent copies of her degrees and academic record to the University of Queensland for consideration. In response, on 21 March 1989, the Administrative Officer of the University of Queensland Law School informed the Northern Territory University as follows:-

"I refer to our telephone conversation and confirm that the University's Overseas Officer has advised as follows with respect to a law degree from Madras Law School:

"A three-year Bachelor of Laws degree, following another Bachelor's degree, and awarded with overall average marks of at least 55% is assessed as comparable to a three-year Bachelor's degree. [It can be seen that the applicant fell within this category]. The professional standing of the qualifications remains a matter for the appropriate admissions board to determine."

Mr Herd, a lecturer in law from the Northern Territory University, then wrote to the applicant on 6 April 1989 as follows:-

"- - - The Northern Territory University accepts this advice [of 21 March 1989] as a statement of the academic comparability of your Law Degree with that being offered in the Law School. It is to be noted that, as in

Queensland, the Law Degree requires four years full-time study and the assessment makes no comment on the issue of the content of individual subjects. As the advice quoted states, admission to the legal profession remains a matter exclusively within the jurisdiction of the appropriate Admissions Board."

It may be noted that the applicant's Madras Law degree was assessed as comparable to a 3-year Australian degree, whereas the Northern Territory University degree in law is a 4-year degree. The two degrees are not equivalent. The applicant appears not to have fully understood this aspect when she wrote to the Law Society on 11 April 1989 requesting its "endorsement and support" for her application for admission and stating that the University had advised "that my degree is comparable to an Australian law degree."

On 16 May 1989 the Administrative Officer of the Faculty of Law of the University of Queensland wrote to the applicant as follows:-

"I understand the Solicitors' Board in Darwin has recommended that your Madras law degree should be assessed in the same way as applicants for admission in Queensland have their degrees assessed by this Law Faculty and that of the Queensland University of Technology.

I set out below the information which I would provide to Mr Kent of the Queensland Solicitors' Board if he had sought advice on your degree from Madras, with respect to admission as a solicitor in Queensland.

"If Mrs McLaren had sought credit towards the LL.B. degree at the University of Queensland, then, subject to any rule as to the minimum number of passes required to be obtained at this

University, credit would be likely to be given in respect of passes in the following subjects -

Subject	Credit Point Value

Non-Law electives	30		
LA102-Criminal Law		20	
LA103-Contract		20	
LA104-Introduction to Law	10		
LA202-Torts	20		
LA204-Constitutional Law	20		
LA304-Company Law		20	
LA307-Moots I		05	
LA308-Administrative Law		20	
LA418-Evidence		10	
LA424-Moots II		05	
LA425-International Law	10		
LA406-Industrial Law	10		
LA503-Civil Procedure	20		
LA431-Comparative Law	20		

240

This means that Mrs McLaren would still be required to complete the following subjects at the University of Queensland to satisfy the LL.B. requirements -

Subjects	Credit Point Value

LA207-Equity		20	
LA208-Land Law		20	
LA301-Commercial Law	20		
LA309-Jurisprudence		10	
& fourth level electives	50		
120"

I hope this information has been of assistance. You should also contact the Queensland University of Technology Law School for their assessment of your degree. [There is no evidence that this suggestion was complied with]. I must also stress, that admission as a solicitor is purely an issue for the Solicitors' Board involved and my advice can only be a guide."	[Emphasis as in original].

The applicant then wrote to the Legal Practitioners' Admissions Board stating, inter alia:-

"- - -
In view of my experience of six years as a practising lawyer and the similarity in systems and jurisprudence between the two countries viz. India and Australia, I request you consider my qualifications for admission to practise in the Supreme Court of the Northern Territory."

Not surprisingly, in light of the contents of the letter of 16 May 1989, the Board replied to the applicant on 10 July 1989 stating, inter alia:-

"- - -
The Board considered the material and information supplied by you on 27 June 1989 and rejected your request for failing to meet the educational requirements specified in s.11 of the Legal Practitioners Act.

The Law degree offered at the Northern Territory University is currently that of the University of Queensland. To satisfy that University LLB requirements (and therefore the Northern Territory University) it is necessary that you complete the subjects listed by the Administrative Officer, Faculty Law, Queensland [in the letter of 16 May]."

The educational requirements in s11 of the Legal Practitioners Act relevant to the applicant's position are as follows:-

"(i) - - - a person has the educational qualifications prescribed for admission as a legal practitioner of the Court if -
- - -

(c)	he has attained such other level of education in law which the Admission Board is satisfied is recognised by, under or pursuant to a law in force in the Commonwealth or in a State or Territory of the Commonwealth as a sufficient level of education, not counting articles of clerkship, for the purpose of gaining admission as a barrister or solicitor of the High Court of Australia or the Supreme Court of a State or Territory - - - "

It can be seen that the Admissions Board considered that the applicant should seek to obtain a Law degree from the Northern Territory University by obtaining credit from that University for the legal subjects she had studied in Madras and then studying and passing the additional subjects listed in the letter of 16 May 1989.

The applicant worked for the Department of Law during the summer vacation November 1989-March 1990.

The applicant deposed in pars11 and 12 of her affidavit of 20 March 1991 as follows:-

"11.	- - - During the last one and a half years I have been studying at the Northern Territory University completing those subjects

stipulated by the University of Queensland to satisfy admission requirements.

12.	I have now acquired all the necessary credit points as stipulated by the Administrative Officer, Faculty of Law, University of Queensland and as recommended by the Secretary, Legal Practitioners Admissions Board, Supreme Court of the Northern Territory of Australia. Annexed to this my affidavit and marked with the letter "O" is a certified copy of a certificate setting out my grades from the Northern Territory University."

The annexure shows that the applicant attended lectures and passed in the following eight subjects:-

Jurisprudence 1 Securities Equity
Land Law Commercial law Taxation Law Trade Practices Conflict of Laws

She thereby gained 120 credit points. She did not, however, formally study these subjects as part of the LL.B. requirements of the Northern Territory University; she has no Australian degree. She studied as a miscellaneous student, for the purpose of fulfilling admission requirements. The lack of an Australian degree makes no difference, in the particular circumstances.

Against this background the Admissions Board, which had to be satisfied as to the applicant's educational qualifications in terms of par11(1)(c) of the Act, certified in August 1991 that "the applicant has the educational qualifications prescribed for admission to practise as a legal practitioner". We consider that it was open to the Board to be so satisfied. The Board added:-

"- - - by reason only that she does not have the qualifications required by section 11(2)(b)(i) of the Legal Practitioners Act, she is therefore not a person entitled to apply to be admitted to practice as a legal practitioner."

S11(2)(b)(i) provides that a person with the prescribed educational qualifications may apply for admission to practise if he also has -

"rendered satisfactory service under articles of clerkship entered into by him in accordance with the [Act] for the period that those articles require him to render service".

The applicant deposed in her affidavit of 1 August that she had now "successfully attended the Legal Ethics and Trust Accounts Course conducted by the Law Society in July 1991."

It can be seen that the applicant has met the educational requirements of s11(1)(c) of the Act. We observe in passing that included amongst the additional subjects which the applicant should have been required to study, are Australian

constitutional law, Administrative Law, and Property including Torrens System land. The last-mentioned may be covered by Land law. These are in our view essential subjects in which a graduate from a university in India must establish a proved Australian competence. It is important that the Admissions Board decides the subjects required; see, for example, the requirements of R7 of the Rules of Court regulating the admission of practitioners, 1987 (SA).

The requirements of par11(2)(b)(i) of the Act

Until a person has obtained the necessary educational qualifications, articles of clerkship cannot be entered into; see s36(4) of the Act. The applicant did not approach the Admissions Board for its approval to enter into articles, after she obtained its certification in August 1991 that she now had the necessary educational qualifications. Instead, she applied to the court for an order under s11(5), in essence seeking that she be exempted from complying with the requirements of par11(2)(b)(i) of the Act. S11(5) provides that if a person satisfies all the requirement for admission except (inter alia) the requirements of articles under par11(2)(b)(i), the Court may order that that person nevertheless be regarded as a person entitled to apply for admission "if it is of the opinion that - - - special circumstances exist that justify" the making of such an order. It was clear, as Mr Hiley QC for the applicant submitted,

that this was the main point for consideration by the Court in considering the relief sought by the applicant.

The question is: has the applicant established special circumstances which warrant the waiving in her case of the statutory requirement in par11(2)(b)(i) that she render "satisfactory service under articles of clerkship" for the prescribed 12 month period? In her letter to the Admissions Board, the applicant appeared generally to rely in this regard on "my experience of six years as a practising lawyer and the similarity in systems and jurisprudence between the two countries viz India and Australia."

In support of the application Mr Hiley noted that s13 of the Act enabled legal practitioners from certain countries - the United Kingdom, New Zealand, and the "common law" provinces or territories of Canada - to be admitted to practise without undergoing articles of clerkship in the Territory, even though that person may not have undergone articles, or practised as a lawyer, in that country. There were similar empowering provisions in s12 relating to legal practitioners of other States and Territories of Australia. Mr Hiley also submitted that even if the applicant were admitted to practise, she would not be able immediately to practise on her own account or in partnership, because she would not be immediately granted an unrestricted practising certificate; see s25 of the Act. She would be able to work only as an

employed legal practitioner during that time. Mr Hiley submitted that she would thereby gain the necessary knowledge of Territory law.

Mr Briggs appeared for the Law Society. He informed the court that the Law Society did not object to the application under s11(5). He submitted that in view of the applicant's quite extensive legal practice in India, no practical purpose would be served by requiring her now to undergo a period of articles in the Territory, even though she had served no period of articles in Australia. The Law Society's approach was amplified in Mr Briggs' subsequent affidavit of 20 August 1991. Initially, it appeared that the Council of the Law Society considered that on the facts a complete dispensing with the service of articles of clerkship was not warranted. Later, at the request of the applicant's solicitors, the Council reconsidered the matter and at a meeting attended by the applicant she was questioned by the councillors as to the type, nature and extent of her legal experience in India and in the Department of Law in Darwin. As a result, the Council changed its view after considering the opinion of the Secretary for Law that no useful purpose would be served by requiring the applicant to undertake a period of articles. The Council's conclusion was based upon the following matters:-

"(1)  The applicant's experience over a period of 6 years, was obtained in a country with a similar system of law (common law) to that of Australia and England;

her experience was spread over a broad range of legal activities: whilst predominantly litigation, she has worked in commercial areas such as conveyancing, leasing and partnerships;

her experience was obtained in the office of a private legal firm, and consequently she is familiar with the administrative and managerial aspects of file management and office procedure, on which heavy emphasis is usually placed in articles;

although her work experience in Darwin is limited to 3 months, she has taken the opportunity during her residence in Australia, to become familiar with the Court system and Land Titles system of the Territory and satisfied the Council that her adjustment to "local factors" will be quick.

upon admission, she would only become entitled to a restricted practising certificate, and would thus be subject to supervision during her initial years of practice in Darwin."

Mr Briggs added in par16 of his affidavit of 15 August 1991:-

"16. In reaching this conclusion the Council was conscious of the wider ramifications of the Applicant's application under section 11(5). The Council is determined that its decision should not be seen as espousing policy and that each future applicant will be considered on a "case by case" basis."

Conclusions

S13 of the Act is clearly based upon an historical reciprocal recognition of legal qualifications and rights to practise as between Australia and the listed

countries. No such reciprocal recognition exists as between Australia and India. S13 deals with a special situation and provides no support for the applicant's case. This formerly common provision is now generally seen in Australia as anachronistic; in general, such a provision is limited to New Zealand. The ACT repealed the equivalent of s13 last year. Only Tasmania and the Territory now provide for the automatic admission of lawyers entitled to practise in England.

S12 reflects the fact that, in essence, Australia has a uniform legal culture; its provisions have no bearing upon the applicant's application, as her legal background is not within that culture.	Under the aegis of the Law Council of Australia, and in light of a growing conception that the legal profession in Australia is becoming a national profession, a good deal of progress has been made in the task of removing unnecessary impediments to reciprocal admission to practise as between the States and Territories of Australia. Work is well in hand towards legislation directed at uniform admission requirements for all Australian jurisdictions; reciprocal admission is likely to be implemented on 1 January 1993. This will probably entail a correlative requirement that all Australian and overseas applicants demonstrate a basic familiarity with certain areas of legal knowledge, and a further requirement that they have successfully completed a period of practical training, prior to admission. It is important, pending this legislation, in view of s12, that the requirements for the admission of overseas applicants are not reduced. The Territory's requirements for

admission are amongst the least rigorous in Australia; it is important not only for this jurisdiction, but for all the other Australian jurisdictions, that the Territory statutory requirements are normally complied with. The dispensing power in s11(5) should be exercised with the greatest caution. See, for example, the observations of the Full Court of the Supreme Court of South Australia in In re De Souza [1985] 39 SASR 316 especially at 319 per White J.

The submission based on the adequacy of a post-admission control under s25 pre-supposes that the objective sought by practical training by way of articles of clerkship, may be sufficiently met by limiting the post-admission right to practise. The Act, however, contemplates a period of service of 12 months articles prior to admission to practise, and imposes further requirements under s25 as a prerequisite to the issue of an unrestricted practising certificate. The submission does not accord with the philosophy of the Act.

It is essential, in order that the public the courts and the profession are properly protected, that the applicant show that her academic and practical training is substantially equivalent to that of a local law graduate seeking admission. The academic requirement has been met. The statutory requirement for a period of local practical training should only be dispensed with if the court is satisfied that to do so would not result in the applicant,

on admission, being less competent to practise as a local practitioner than an applicant who had fully complied with that requirement.  We are far from satisfied that that is so. We do not consider that the evidence of the applicant's practice in India shows that it was relevant to Australian circumstances. In general, in our view, an overseas practitioner should undergo some period of articles of clerkship as pre-admission practical training, so as to become sufficiently acquainted with the practice of the law in Australia. The applicant was in practice overseas for a number of years, and in recognition of that experience we consider that a period of 6 months articles of clerkship would probably prove adequate instead of the normal 12 months.

As we do not consider that special circumstances have been shown to exist we do not grant the relief sought.