PQ (a pseudonym) v The Law Society of New South Wales (No 3) [2021] NSWSC 420

PQ (a pseudonym) v The Law Society of New South Wales (No 3) [2021] NSWSC 420

Section 100(1)(b) expressly covers a decision to vary an Australian practising certificate but does not cover a decision to refuse to vary one. The Court declined to read words into the provision because the distinction between decisions that change the status quo or deny a right to practise and decisions that merely preserve the status quo was consistent with the statutory text and scheme. As a refusal to vary is not amenable to appeal or review under s 100, s 464(3) does not apply, and the Council was not taken to have refused the plaintiff's application after 90 days.

Jurisdiction
Australia
Judgment Date
26 April 2021
Procedural Posture
Determination of Separate Question / Procedural Ruling
Outcome
The separate question was answered No, and no order was made as to costs.
Legal Topics
['legal Practitioners' 'practising Certificates' 'variation of Practising Certificate' 'constructive Refusal' 'appeal or Review Under the Legal Profession Uniform Law (nsw)' 'statutory Interpretation']
['occupations' 'civil Procedure' 'administrative Law'] ['legal Practitioners' 'practising Certificates' 'variation of Practising Certificate' 'constructive Refusal' 'appeal or Review Under the Legal Profession Uniform Law (nsw)' 'statutory Interpretation']

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Procedural Posture

Determination of Separate Question / Procedural Ruling

Legal Issues

  1. 1 ["Whether s 464(3) of the Legal Profession Uniform Law (NSW) caused the Council to be taken to have refused the plaintiff's application to vary his Australian practising certificate by not determining it within 90 days." 'Whether a decision to refuse to vary an Australian practising certificate is a decision that can be the subject of appeal or review under s 100 of the Legal Profession Uniform Law (NSW).' 'Whether s 100(1)(b) should be construed as including a decision to refuse to vary a practising certificate.']

Ratio Decidendi

Section 100(1)(b) expressly covers a decision to vary an Australian practising certificate but does not cover a decision to refuse to vary one. The Court declined to read words into the provision because the distinction between decisions that change the status quo or deny a right to practise and decisions that merely preserve the status quo was consistent with the statutory text and scheme. As a refusal to vary is not amenable to appeal or review under s 100, s 464(3) does not apply, and the Council was not taken to have refused the plaintiff's application after 90 days.

Court Disposition

The separate question was answered No, and no order was made as to costs.

Orders

  • ['The separate question ordered on 19 March 2021 is answered: No.' 'Make no order as to costs.']