Re Jenkins[2021] QSC 246

SUPREME COURT OF QUEENSLAND

1. [1]
   This matter was set down before me as a one-day hearing in the civil list on 2 September 2021.  Kristee Victoria Jenkins had applied for admission to the legal profession by an application dated 12 March 2021.  The Court of Appeal made an order on 7 June 2021 on the papers.  It read:

“THE COURT DIRECTS THAT:

1. Applicant to file and serve further material on or before 21 June 2021;

2. Objectors, Jeremy James Worcester and Jessica Marguerite Vakina Davis, to file and serve any further material on or before 5 July 2021;

3. Applicant to file and serve any response on or before 10 July 2021;

4. The matter be listed for hearing in the civil list of the trial division on a date to be fixed;

5. The requirements for further advertising by the Applicant are dispensed with.”

2. [2]
   On 3 June 2021 the Legal Practitioners Admissions Board (the Board) wrote a letter to the Registrar of the Supreme Court (ex 1) saying that it had resolved to oppose the applicant’s admission on the basis that it was “not satisfied presently” with the applicant’s explanation in relation to various matters raised in objections to the Board; sought “clarification and/or documentation” as to various other matters raised by those objections, and “held concerns” relating to yet further of the allegations.  The allegations are of a serious type.
3. [3]
   The hearing on 2 September 2021 did not proceed and instead I made directions.  There were several difficulties with the hearing proceeding.  First, the Court of Appeal’s order of 7 June 2021 did not define a particular subject matter for decision in the Trial Division.  It would have been better had it done so.  A judge of the Trial Division has no power to admit a legal practitioner (except in Cairns, Townsville and Rockhampton in an admissions sittings).  Thus, clearly enough, “the matter” which the order of 7 June 2021 directed be heard in the Trial Division was not the ultimate application.  Presumably, I am to hear factual allegations and make factual findings but, I would assume, not come to any view as to the applicant’s suitability for admission. 
4. [4]
   It may be that in some cases the question requiring factual determination in the Trial Division is clearly drawn on the material before the Court of Appeal.  It was not in this case.  Eight affidavits had been filed.  They raised a myriad of issues, none of them in a particularly clear or organised way.  The Court of Appeal gave leave to file further affidavits and a further nine were filed after that leave was granted.  The Board’s letter of 3 June 2021 expressed concerns and referred to the need for clarification but, perhaps because of the amorphous nature of the objectors’ material, the Board itself had not come to any clearly enunciated view which might help give further definition to the matter which I was to hear.  In fact, so diffident was the Board about its position, that counsel for the Board commenced the hearing before me by expressing reservations about reading the affidavit material which had been filed in the proceeding to that point.
5. [5]
   A second issue which emerged on 2 September 2021 was that the objectors had not understood that they had a right to appear before me.  They were present, initially outside the Court as witnesses, but then, as matters were explored, inside the Court. 
6. [6]
   In those circumstances, I made directions on 2 September 2021 to the effect that the Board was to file a document called “Points of Objection” which made it clear what grounds it relied upon in the hearing before me to sustain its objection to Ms Jenkins’ admission.  Further, that the matter would be returnable before me on 23 September 2021 at which time I would hear the objectors as to whether or not they wished to be heard on the fact-finding exercise I was to carry out, and if they did wish to be heard, what legal and factual bases supported their being heard. 
7. [7]
   On 23 September 2021 it was clear from the Board’s having filed a document headed Points of Objection that it did not wish to make positive contentions, even about all the matters in its letter of 3 June 2021, let alone the additional matters raised in affidavits filed after the date of that letter.
8. [8]
   Ms Davis did not appear on 23 September 2021, so that in terms of the orders I made on 2 September 2021, I regard her as having no further active interest in that part of the proceeding which is to be heard before me.
9. [9]
   Mr Worcester did appear.  He wished to be heard as an objector on the part of the proceeding which is to be heard before me.  He made written submissions as to the legal basis for that, and as to the factual matters which he wished to raise.  Counsel for Ms Jenkins submitted that I had no power to allow Mr Worcester to appear on the part of this proceeding which I am to hear.  He also submitted that the matters which Mr Worcester wished to raise were beyond the matters in the Board’s letter of 3 June 2021, and for this reason even if he was allowed to appear as an objector, Mr Worcester ought to be limited to the contentions or concerns which were raised in that letter.
10. [10]
    The Legal Profession Act 2007 (the Act) provides at s 35(1) that, “The Supreme Court must hear and decide each application for admission in the way the court considers appropriate.”  The Supreme Court is defined, for the purpose of the part of the Act which contains s 35, as the Court of Appeal, unless the Admission Rules provide that the power may be exercised by a single Supreme Court Judge.  The Admission Rules do provide that power to admit a practitioner may be exercised by a single Supreme Court Judge, but only in Rockhampton, Townsville or Cairns, see Supreme Court (Admission) Rules 2004 (the Rules), r 10(1)(b).  As Ms Jenkins applies for admission in Brisbane, the definition of “Supreme Court” in the Act means that under s 35(1) it is the Court of Appeal which must hear and decide each application for admission in the way it considers appropriate.  It is well accepted that the Court of Appeal is able to delegate part of its jurisdiction to hear an application for admission to a Trial Division Judge where there are contested facts.^[1] 
11. [11]
    Rule 14(1) of the Rules gives a person, the objector, the right to object to the admission to the legal profession of someone who has given notice of an intention to apply for admission.  The objector does not give an objection directly to the Court.  Rule 14(2) provides that the objector is to make the objection by giving the Board a notice of objection which the Board is to consider as part of its own consideration of the applicant’s eligibility and suitability – r 14(4).  It is only if the Board considers that the objection affects the applicant’s eligibility or suitability for admission that the Board must given the applicant a copy of the objection and an opportunity to respond to it – r 14(5).  The Board has a statutory obligation to give the objector notice of its decision about the objection before the relevant admission sittings – r 14(7).
12. [12]
    Against that statutory context, r 14 then provides:

“(9) At an admission sittings of a court, an objector may object to an admission only with the leave of the court.

3. (10)
   If the court grants leave under subrule (9), the admission application must be heard by the Court of Appeal.”

13. [13]
    It can be seen that the statutory mechanism is for the objector to deal with the Board, and for the Board to deal with the Court, unless the Court grants leave.  I think r 14(9) makes it clear that it is the Court of Appeal (or a single judge conducting an admission sittings in Rockhampton, Townsville or Cairns) which has the power to give an objector leave to object to an admission.
14. [14]
    I think it is implicit in paragraph 2 of the Court of Appeal’s order of 7 June 2021 that it has granted leave to Mr Worcester and Ms Davis to object.  It would be better if the order had expressly granted leave. 
15. [15]
    One interpretation of r 14(10) is that, having granted leave to Mr Worcester and Ms Davis to object, the Court of Appeal was compelled to hear the entirety of the proceeding itself, rather than delegate part of it to the Trial Division.  However, I have rejected that interpretation in favour of one which allows the Court of Appeal to hear the admission application itself after receiving factual findings made by a Trial Division Judge after a delegation of the sort which has been commonly made in the past.  Perhaps the real aim of r 14(10) is to prevent a Northern Judge hearing and determining an application for admission over objection.
16. [16]
    It follows that in my view the Court of Appeal has given leave to Mr Worcester to appear as an objector, including in the part of the proceeding which I am to hear, and he therefore has a right to do so.
17. [17]
    That leaves for determination the question of whether or not Mr Worcester ought to be able to raise matters other than those which were originally raised in the Board’s letter of 3 June 2021.  In my view, in giving Mr Worcester leave to make objection to the Court, separately from any submissions made on behalf of the Board, it was implicit that he have liberty to raise matters other than those in the Board’s letter of 3 June 2021.  There would be little point in granting him leave to appear separately otherwise. 
18. [18]
    The Court of Appeal order of 7 June 2021 allowed the objectors a month to file further affidavit material.  No material was filed in the month.  Considerable material was filed after the month had expired, and in that respect it must be noted that that included an affidavit filed by the applicant outside the time limited by paragraph 3 of the Court of Appeal’s order.  Despite the disorganisation evidenced by (in the main) Mr Worcester, in filing his affidavit material piecemeal, and outside the time limited by the Court of Appeal’s order, it seems to me that the public interest is better served by allowing a full ventilation of all matters said to be relevant on this application for admission.  Obviously it is in the public interest that legal practitioners be fit and proper people to practise their profession, and the allegations which Mr Worcester seeks to ventilate are serious enough.  I will extend the time limited for the filing of affidavits by both Mr Worcester and the applicant to 2 September 2021, the date when this matter was originally set for hearing in the Trial Division. 
19. [19]
    I will direct that Mr Worcester file a document entitled Points of Objection to be no more than three pages long which is to be a definitive outline of his objections to Ms Jenkins’ admission.  I will further direct that each point of objection is to contain a definitive reference to the paragraphs of affidavit material filed in the proceeding which are relied upon to support that particular objection.
20. [20]
    I will hear the parties further as to a trial plan and a hearing date.