Council of the Law Society of the Act v Necia Gai Wearne (Occupational Discipline)

[2024] ACAT 59

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v NECIA GAI WEARNE (Occupational Discipline) [2024] ACAT 59

OR 1/2023

Catchwords:               OCCUPATIONAL DISCIPLINE – legal practitioner regulation – withdrawal of trust money for legal costs – cost agreement – breach of s 223 and s 269 of the Legal Profession Act 2006 – characterised as professional misconduct - sanction

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 55

Legal Profession Act 2006 ss 425, 433

Tribunal:  Senior Member Prof T Foley

Member W Hawkins

Date of Orders:  10 July 2024

Date of Publication:  23 August 2024

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          OR 1/2023

BETWEEN:

COUNCIL OF THE LAW SOCIETY OF THE ACT

Applicant

AND:

NECIA GAI WEARNE

Respondent

TRIBUNAL:Senior Member Prof T Foley

Member W Hawkins

DATE:10 July 2024

ORDER

CONSENT DECISION PURSUANT TO SECTION 55 OF THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL 2008 (ACT)

The parties have reached agreement about the terms of the sanction finding in respect of the application.

The terms of the agreement have been lodged with the Tribunal.

The Tribunal is satisfied that an order within the agreed terms is within the power of the Tribunal and appropriate for the Tribunal to make.

By consent, the Tribunal makes orders in terms of the agreed proposed orders as follows:

1.Pursuant to subsection 425(3)(e) of the Legal Profession Act 2006 (the Act) the Respondent is publicly reprimanded.

2.Pursuant to section 425(3)(c) of the Act, a local practising certificate is not to be granted to the Respondent during the period commencing on 1 August 2024 and concluding on 31 July 2025.

3.Pursuant to sections 425(3)(d) and 425(5)(c) of the Act, a local practising certificate can be granted to the Respondent from 31 July 2025 provided that:

(a)the application is for a grant of:

(i)      a restricted practising certificate only; or

(ii)     an unrestricted practising certificate and the respondent has held a restricted practising certificate for a period of 12 months after 31 July 2025; and

(b)in relation to the Respondent's applications for the initial grant of a restricted practising certificate and the initial grant of an unrestricted practising certificate:

(i)      the Respondent has consulted a registered psychologist or psychiatrist for the purposes of treatment for the conditions described in the report of Greg Aldridge dated 27 June 2024;

(ii) the person treating the Respondent pursuant to 3(b)(i) has been given a copy of the reasons in Council of the Law Society of the ACT v Legal Practitioner 012023 (Occupational Discipline) and a copy of the report of Greg Aldridge dated 27 June 2024;

(iii)   the Respondent complies with any treatment proposed by the treating mental health practitioner;

(iv)   the treating mental health practitioner provides a report that the Respondent has complied with the treatment that he or she advised and that the Respondent has now recovered from the condition described by Greg Aldridge so that from a psychological perspective there is no reason to expect that the Respondent's conduct will be affected by any psychological condition either at all or provided she continue with treatment as set out;

(v)     the report in 3(b)(iv) accompanies any application for a practising certificate; and

(c)further, in relation to the Respondent's application for the initial grant of a restricted practising certificate:

(i)     she accepts a condition of the restricted practising certificate that she be supervised by a senior legal practitioner in any legal work she undertakes and that she arrange for a senior legal practitioner to provide her with mentoring and that she continue to comply with any ongoing treatment plan as described in the report; and

(d)further, in relation to the Respondent's application for the initial grant of an unrestricted practising certificate:

(i)     an unrestricted certificate may be issued by the Council if, having regard to the Respondent's conduct after the grant of a restricted practising certificate, it receives a report from a senior legal practitioner who is the holder of an unrestricted practising certificate that he or she has provided mentoring to the Respondent in the intervening period and in his or her view the Respondent is now fit to hold such a certificate.

4.Pursuant to subsection 433(1) of the Act, the Respondent pay the Applicant's costs of the proceedings calculated on a party and party basis as agreed or as assessed by the Registrar.

………………………………..

Senior Member Prof T Foley

For and on behalf of the Tribunal

Date(s) of hearing:	10 July 2024
Counsel for the Applicant:	Mr D Moujalli
Solicitors for the Applicant:	Thomson Geer Lawyers
Counsel for the Respondent:	Mr R Thomas
Solicitors for the Respondent:	Fitzgerald Naylor Lawyers