The work of a NSW licensed conveyancer is not, nor can it be made substantially the same as that of a Queensland solicitor, the Administrative Appeals Tribunal (AAT) said in a 10 September decision. The finding knocks back the efforts of NSW conveyancer Dale Turner to be admitted as a solicitor in Queensland, but with conditions limiting the work he is authorised to undertake.
The Turner case has been followed with considerable interest both in NSW and also in Queensland, where solicitors fear the effects on the state’s smaller practices of interstate conveyancers making inroads into the conveyancing monopoly that solicitors currently enjoy.
Turner sought admission in March 2002 under provisions of the Commonwealth Mutual Recognition Act 1992. The Queensland Supreme Court’s Registrar, however, determined that a Queensland solicitor and a NSW licensed conveyancer were not equivalent occupations for the purposes of the Act and denied the application.
Turner identified activities that he could “lawfully perform” under the NSW Conveyancers Licensing Act 1995. He accepted that unless the activity was associated with a transaction then he was precluded from acting, nor was he authorised to advise in a whole range of areas, including criminal or family law, intellectual property, trusts or provide financial or investment advice unrelated to a real or property transaction.
Queensland solicitor Peter Leigh Cooper, in an affidavit submitted to the AAT hearing, pointed out that conveyancing work frequently requires more extensive legal knowledge than that required to practise as a NSW licensed conveyancer. Activities authorised by the NSW Conveyancers Licensing Act “are significantly limited in their scope when compared with the activities implicitly authorised and generally expected, to be carried out by a Queensland solicitor”, Cooper said.
He added that it is not uncommon for a Queensland solicitor engaged in a transaction to have to deal with matters a NSW conveyancer is not authorised to address, such as large conveyances of non-residential property with a mortgage exceeding $7 million or the establishment of a trust or corporation.
The AAT decision noted that, according to Cooper, it is important “to be able to appreciate the laws of civil and criminal procedure, the costs and time, and the rules of evidence involved in legal proceedings, which may become relevant to the transaction or matter even if legal proceedings do not ultimately eventuate. The ability to understand and if necessary to undertake enforcement rights and advise thereon is very important.
“Limited or inadequate knowledge of court procedure, rules of evidence, equity and the litigation system itself adversely impact on the ability of a conveyancer in certain circumstances to fully protect the clients’ interests in the documentation or execution of those transactions or matters.”
Margaret Hole, a solicitor and property law specialist, compared the activities of NSW solicitors and NSW licensed conveyancers, reflecting a similar opinion in her affidavit to Cooper’s. “In my opinion in more complex transactions involving activities proscribed by . . . the Conveyancers Licensing Act 1995 it would be a very significant disadvantage to a client to be represented by a conveyancer who is only lawfully permitted to carry out the activities [authorised by the Act],” Hole wrote. “Clients run the risk that not all the relevant legal issues are identified in a timely and efficient manner or at all, meaning that there may be considerable scope for duplication, inefficiency and mistakes in more complex transactions.”
Conveyancers are not trained or expected to be competent in legal work outside the scope of the work they are authorised to undertake, she added. “In my opinion, they lack the education experience and skill to practice outside those areas.”
The AAT found the activities of a licensed conveyancer and a Queensland solicitor are not “substantially the same”, not only because the solicitor performs a much wider range of activities but also because he or she has a duty to the court, which is not reflected in the conveyancer’s role.
Turner had asked for conditions to be imposed to meet the requirements of the Mutual Recognition Act. The AAT, however, did not accept this as a satisfactory route to admission: “[The Act] was not intended to enable one occupation to be with or without the imposition of conditions translated into another occupation by avoiding the prerequisites for admission by way of education, training and experience,” the decision noted. “If a solicitor’s activities were to be restricted by conditions as is suggested . . . the result would be so extreme as to render that person something other than a solicitor.”
With the Australian Institute of Conveyancers now set to take the matter to the Commonwealth Productivity Commission, an appeal looked unlikely as Lawyers Weekly went to press.