Council of the Law Society of the Act v Wearne (Occupational Discipline)
[2015] ACAT 27
•26 August 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE ACT v WEARNE (Occupational Discipline) [2015] ACAT 27
OR 14/30
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – unsatisfactory professional conduct - consent orders – purporting to witness statutory declaration when not done so
Legislation cited: Legal Profession (Solicitors) Rules 2007
List of
Texts/Papers cited: Legal Aid Commissioner (ACT) Enterprise Agreement 2011-2013
Tribunal: Mr G. Lunney SC – Senior Member
Date of Orders: 26 August 2014
Date of Publication of orders: 31 March 2015
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/30
RE:COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant
AND:NECIA WEARNE
Respondent
ORDERS
Tribunal: Mr G Lunney SC – Senior Member
Date of Order: 26 August 2014
By consent, the Tribunal orders that:
A finding that the respondent has been guilty of unsatisfactory professional conduct.
An order publicly reprimanding the respondent.
An order that the respondent pay the applicant’s costs on the Supreme Court scale on a party/party basis as agreed or as assessed.
Particulars:
(i)The respondent, in breach of Rule 1.2 of the Legal Profession (Solicitors) Rules 2007, failed to act with competence and diligence in the service of her client, by recklessly apply her signature in the place for a prescribed person to witness a statutory declaration, in circumstances where her client had not sighted, approved or signed the declaration as more particularly detailed in paragraphs 2 to 4 in the Agreed Statement of Facts, and by so doing engaged in conduct that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner.
Agreed statement of Facts:
The Respondent was at all material times, including on 30 July 2013, a local legal practitioner employed by the Legal Aid Commission (Commission) and the holder of a restricted practising certificate.
On or about 30 July 2013, the Respondent at about 5:00 pm on the afternoon immediately before she was to embark upon nine (9) weeks recreation leave, applied her signature to a Form 1410 Statutory Declaration in preparation for lodgement with the Department of Immigration and Citizenship (Department) on behalf of a client, [name redacted] which form was completed in accordance with instructions provided by the client at an earlier conference.
The Client had not sighted, approved nor signed the declaration and was not present when it was signed by the Respondent.
The Respondent provided oral and handwritten instructions to an administrative officer to progress the matter. The Form 1410 was provided by an unknown employee of the Commission to the Client who, between 30 July 2013 and 6 August 2013, signed and returned it to the Commission, although the form was not further actioned and, in particular, was not submitted to the Department.
The Commission appointed Clayton Utz to investigate the matter and provide a report which found on the balance of probabilities the Respondent was guilty of misconduct as defined by the Legal Aid Commissioner (ACT) Enterprise Agreement 2011-2013.
On 17 December 2013, the Respondent resigned her employment at the Commission with effect from 29 January 2014.
The matter was referred to the Society by the Commission on 28 January 2014.
Signed ........................................
Mr G Lunney SC
Senior Member
HEARING DETAILS
FILE NUMBER: | OR 14/30 |
PARTIES, APPLICANT: | Council of the Law Society of the ACT |
PARTIES, RESPONDENT: | Necia Wearne |
COUNSEL APPEARING, APPLICANT | |
COUNSEL APPEARING, RESPONDENT | Ms T Warwick |
SOLICITORS FOR APPLICANT | Phelps Reid Lawyers |
TRIBUNAL MEMBERS: | Mr G. Lunney SC – Senior Member |
DATES OF HEARING: | 26 August 2014 |
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