Heffernan v Law Society Northern Territory - [2023] NTCA 10

CITATION:Heffernan v Law Society Northern Territory [2023] NTCA 10
PARTIES:HEFFERNAN, Felicity Ellen

v
LAW SOCIETY NORTHERN TERRITORY

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from SUPREME COURT exercising Territory jurisdiction
FILE NO:AP 14 of 2022 (22300348)
DELIVERED:  2 November 2023
HEARING DATE:  24 May 2023
JUDGMENT OF:  Grant CJ, Blokland & Brownhill JJ
CATCHWORDS:

APPEALS – Legal practitioners – Cancellation of unrestricted practising certificate – Whether appellant fit and proper person – Where appellant subject of disciplinary process and adverse findings – Failure to disclose suitability matters – Subject of disciplinary action – Good fame and character – Where no necessity to find improper conduct – Where findings raise issues of honesty and integrity – Not a fit and proper person to hold a practising certificate – No failure to consider other possible orders – Appeal dismissed

Corruption, Crime and Misconduct Act 2003 (WA) ss 96, 137, 142-145, 160, 217A
Evidence (National Uniform Legislation) Act 2011 (NT) s 57
Legal Profession Act 2006 (NT) ss 3, 11, 47, 54, 56, 57, 89, 540
Public Sector Management Act 1994 (WA) ss 80, 80A, 81, 82, 82A
Sentencing Act 1995 (NT) s 7
Supreme Court Act 1979 (NT) ss 51, 54, 55

Bara v Blackwell (2022) 374 FLR 150; Briginshaw v Briginshaw (1938) 60 CLR 336; Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75; Connop v Law Society Northern Territory [2016] NTSC 38; Heffernan v Law Society Northern Territory [2022] NTSC 90; Hilton v Legal Profession Admission Board [2017] NSWCA 232; Murphy v Bar Association of New South Wales [2001] NSWSC 1191; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151; Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409; Re Application by Saunders (2011) 29 NTLR 204; Re Deo (2005) 16 NTLR 102; Re Joy Onyeledo [2015] NTSC 60; Singer v Berghouse (1994) 181 CLR 201; Stanford v Stanford (2012) 247 CLR 108; Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93; Warren v Coombes (1978-79) 142 CLR 531, referred to

REPRESENTATION:
Counsel:
Appellant:D Stewart with A Flick
Respondent: T Liveris
Solicitors:
Appellant:Long Saad Woodbridge Lawyers
Respondent: Law Society Northern Territory

Judgment category classification: B
Number of pages: 80

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Heffernan v Law Society Northern Territory [2023] NTCA 10

No. AP 14 of 2022 (22300348)

BETWEEN:
FELICITY ELLEN HEFFERNAN
Appellant

AND:
LAW SOCIETY NORTHERN TERRITORY
Respondent

CORAM: GRANT CJ, BLOKLAND and BROWNHILL JJ
REASONS FOR JUDGMENT
(Delivered 2 November 2023)

This is an appeal against a decision of the Supreme Court to affirm the decision of the respondent (‘Law Society’) of 31 October 2019 to cancel the unrestricted practising certificate granted to the appellant (‘Heffernan’) under s 54 of the Legal Profession Act 2006 (NT) (‘the Act’).[1]
Background
The following facts are not in dispute.
Between 16 January 2016 and 4 July 2018, Heffernan was employed by the Department of Primary Industries and Regional Development of Western Australia (‘the Department’) as the Director, Legal and Commercial, Agriculture and Food Division. She did not practise as a lawyer in that role.
On 19 July 2017, the Director-General of the Department (‘Addis’) notified the Corruption and Crime Commission of Western Australia (‘the CCC’) of ‘suspected serious misconduct’ by Heffernan.
The CCC referred the notification to the Public Sector Commission, which referred the notification back to the Department. The result was that Addis was to deal with the matter.
On 28 August 2017, Addis wrote to Heffernan stating she may have committed acts constituting a breach of discipline under s 80 of the Public Sector Management Act 1994 (WA) (‘the PSMA’). Five allegations were made, namely that: (1) she failed to comply with policies and procedures for entry into a contract for services arrangement with Peter Evans (for example, she lacked delegated authority to enter the contract, the contract terms were non-compliant, she intended to pay Mr Evans in full before his services were rendered, and the reasons given for urgently procuring the services were not valid); (2) she offered a transfer to the Department to Amber Russell for which Heffernan lacked delegated authority; (3) she committed funds for the engagement of Mr Evans and Ms Russell without appropriate authorisation and in breach of a Department decision; (4) she circumvented and misused a memorandum of understanding with the University of Western Australia for unpaid work experience by engaging interns as paid casual employees, one of whom did not meet the criteria for engagement; and (5) she provided misleading information and/or responses about the Potato Marketing Corporation to the Minister’s office, Departmental officers and the State Solicitor’s Office. Addis invited Heffernan to provide a written response which would be taken into consideration in determining what, if any, further action would be taken. Addis said that if she was found to be in breach of discipline, she may be subject to disciplinary action, ranging from a reprimand to termination of her employment.
On 21 September 2017, Addis emailed Heffernan because she had approached other parties seeking copies of correspondence between the Department and the CCC. He told her that he had notified the CCC of her suspected misconduct and provided Heffernan with a copy of his notification. He refused to provide her with the correspondence to him from the CCC (stating it was the CCC’s preference that such correspondence not be shared). Addis informed Heffernan that:
…the CCC considered the matter falls outside its jurisdiction, and accordingly the CCC referred the matter to the Public Sector Commission (PSC). The CCC did not, to my knowledge, conduct any further investigation and I have received no further correspondence from the CCC on this matter. The PSC subsequently responded on 22 August 2017 by referring the matter to this Department for my attention and appropriate action. Accordingly, I initiated the current process with my letter to you on 28 August 2017.
On 3 October 2017, Addis wrote to Heffernan in response to her solicitor’s request for further particulars about allegations (4) and (5) and an extension of time to provide a written response. Addis provided further particulars and granted an extension of time to 31 October 2017.
On 8 November 2017, Addis wrote to Heffernan noting that no response had been received to the allegations in his letter of 28 August 2017, and informing Heffernan that he had determined there was sufficient evidence to ‘treat this as a disciplinary matter’ under s 81(1)(a) of the PSMA. He stated he would now initiate a ‘discipline investigation’ pursuant to s 82A of the PSMA. He also proposed that Heffernan be suspended from duty on full pay under s 82(1)(a) of the PSMA, commencing from 15 November 2017 until she was further advised. Heffernan was given the opportunity to comment on the proposal to suspend her. She was again informed of the possible action that may be taken, including adverse findings against her and disciplinary action. Addis stated he would appoint an independent investigator to undertake the investigation.
On 17 November 2017, the acting Deputy Director-General wrote to Heffernan noting that no comment had been received from her regarding the proposal to suspend her, and advising that the suspension was confirmed with effect from 15 November 2017.
On 1 December 2017, Addis wrote to Heffernan confirming the appointment of an investigator to undertake the investigation.
On 12 January 2018, Heffernan was interviewed by the investigator and sought to provide information and documents that she contended answered the allegations against her and vindicated her of any wrongdoing.
On 23 April 2018, Addis wrote to Heffernan informing her that the independent investigation had concluded, he had reviewed the investigator’s report and all available information, including Heffernan’s responses to the allegations, and had found the allegations to be substantiated. Addis informed Heffernan, pursuant to s 82A(3)(b) of the PSMA, that based on those findings, he proposed to terminate her employment with notice. He stated as follows:
As a senior officer within the legal area, who can and is expected to act autonomously for the most part, I need to have total trust in you to do so. This involves recognition on the limits of your authority and compliance with those instruments that regulate the Public Sector. I am not satisfied that you are prepared to do either. The findings reflect more than a momentary lapse.
…
My proposal to terminate your contract of employment has not been taken lightly. In your role as the Director Legal & Commercial, a senior leadership position within the department, it is incumbent on you to have the highest standards of probity, and a responsibility to be familiar with and observe relevant process requirements and standards of conduct. … I consider the pattern of behaviour reflected in the five allegations to be very concerning. It is also noted that in your responses to the allegations you appear to have not taken responsibility or accountability for your decisions and actions, which is also of concern. I have lost confidence in you and I do not feel I will be able to regain it.
Heffernan was provided the opportunity to respond to the proposed termination by 7 May 2018. Her suspension from duty on full pay was confirmed until further advised. Heffernan’s solicitor subsequently sought an extension of time within which to provide a response, citing medical reasons.
On 22 May 2018, Addis wrote to Heffernan’s solicitor advising that her suspension was lifted with immediate effect in order to accommodate her ill-health and enable her to access sick leave entitlements. Addis advised further that Heffernan was required to apply for sick leave up to 1 June 2018 (the date her GP had certified she was unfit for work), and informed her she would be required to attend a medical examination if she sought sick leave beyond that period. Addis also granted Heffernan an extension to 18 June 2018 to respond to the proposal that she be dismissed.
On 4 July 2018, Heffernan tendered her resignation from her employment effective from 4 August 2018. She sought a waiver of the Department’s entitlement to notice. That waiver was ultimately granted, and Heffernan’s employment was considered by the Department to have terminated on 4 July 2018.
On 25 July 2018, the Department emailed Heffernan’s solicitor stating that the Department would continue to handle the disciplinary matter pending further information from Heffernan.
On 25 July 2018, Heffernan’s solicitor emailed the Department as follows:
You can continue with the disciplinary process as you see fit. Felicity is not well enough to participate in it.
On 7 August 2018, Heffernan signed an application to the Law Society for an unrestricted practising certificate. Section 8.3 of the application form read as follows:
8.3 Fit and proper person, suitability matters
I understand that the Society must not grant a PC unless satisfied that I am a ‘fit and proper person’ to hold the PC.
I understand that I must disclose to the Society any matter which is material to the question of whether I am a fit and proper person including ‘suitability matters’. Section 47 lists matters that can be taken into account in determining if an applicant is a ‘fit and proper person’. Suitability matters are defined in s 11. By way of example, suitability matters include unresolved complaints or investigations in this or other jurisdictions, insolvency, or a material inability to practice, such as ill health.
There is further information relevant to the question of whether I am a fit and proper person:
o
NO o YES – If yes o Details previously provided to the Society, or

o
Details: …………………………………………
In response, Heffernan ticked the ‘NO’ box.
In Section 11 of the application form, Heffernan signed the declaration that the information contained in the application was true and correct, and there was no further information relevant to the consideration of the application which had not previously been disclosed to the Law Society.
On 13 August 2018, Heffernan lodged the application form and supporting documents with the Law Society.
On 4 September 2018, the Law Society granted Heffernan an unrestricted practising certificate pursuant to s 54 of the Act.
On 24 October 2018, the CCC issued to Heffernan a witness summons to give oral evidence (No S 02121/2017 04483) pursuant to s 96 of the Corruption, Crime and Misconduct Act 2003 (WA) (‘CCMA’). The summons required Heffernan to attend in Perth to give evidence in an examination before the CCC at 9.30am on 5 December 2018. The summons stated as follows:
The scope and purpose of these examinations is to determine whether any public officers at the [Department] engaged in … serious misconduct by corruptly using their position, between December 2015 to June 2018, to benefit others.
The CCC summons prohibited Heffernan from disclosing any information about the summons or any official matter connected with it to any person, except: (i) to a legal practitioner for the purpose of obtaining legal advice or representation relating to the summons; (ii) to a person for the purpose of obtaining legal aid in relation to the summons; or (iii) if there were special circumstances that supported disclosure about it, she made a request to the CCC officer for variation of the non-disclosure notation, and that request was granted. The CCC summons was served on Heffernan on 8 November 2018 in Alice Springs.
On 15 November 2018, the CCC issued to Heffernan a second witness summons to give oral evidence (No S 02121/2017 04507) in the same terms as the first summons. This second summons was served on Heffernan on 5 December 2018 in Perth.
On 5 and 6 December 2018, Heffernan attended the examination and gave evidence. The transcript of that evidence was not available at the hearing before the Supreme Court because the CCC refused to release it.
On 17 December 2018, Heffernan sought permission from the CCC to share information with a counsellor about ‘her experiences and circumstances arising during her employment at [the Department], including information about her recent appearance in the [CCC]’.
On 19 December 2018, the CCC granted Heffernan permission to disclose a restricted matter arising from her examination before the CCC to a counsellor for the purpose of receiving counselling.
On 4 April 2019, Heffernan signed an application to the Law Society for renewal of her practising certificate for the practice year 1 July 2019 to 30 June 2020. Section 4.3 of the application form read as follows:
4.3 FIT AND PROPER PERSON, SUITABILITY MATTERS
I understand that the Society must not grant a PC unless satisfied that I am a ‘fit and proper person’ to hold the PC.
I understand that I must disclose to the Society any matter which is material to the question of whether I am a fit and proper person including ‘suitability matters’. Section 47 lists matters that can be taken into account in determining if an applicant is a ‘fit and proper person’. Suitability matters are defined in s 11.
There is further information relevant to the question of whether I am a fit and proper person:
o No
o
Yes – If yes o Details previously provided to the Society

o
Details attached – see note 3
In response, Heffernan crossed the ‘No’ box.
In Section 8 of the application form, Heffernan signed the declaration that the information contained in the application was true and correct, and there was no further information relevant to the consideration of the application which had not previously been disclosed to the Law Society.
On 4 April 2019, Heffernan lodged the application form with the Law Society.
On about 20 May 2019, Heffernan received a letter from the CCC dated 10 May 2019 informing her that the CCC had prepared a draft report about its investigation into whether public officers engaged in serious misconduct by corruptly using their position, that the final report may include comments or evidence that she may consider reflects adversely on her, and that she was invited to make representations about such matters by 24 May 2019. The draft report referred to ‘sham arrangements’ entered into by Heffernan to pay Howard Carr and Peter Evans for services. The draft report contained the following proposed findings:
·     [Heffernan] was afforded great discretion in view of her legal experience but she abused the trust placed in her on at least two matters.
In relation to Dr Carr
·     Ms Heffernan entered into an arrangement with a partner at Herbert Smith Freehills solicitors to circumvent the requirements of a government ordered public sector recruitment freeze in order to allow Dr Carr, whose employment contract had expired, to continue to benefit by doing work for [the Department]. Thereafter to facilitate payment to Dr Carr, she falsified a letter of engagement.
·     Dr Carr was a public officer who knowingly participated in a scheme to continue his employment in contravention of the recruitment freeze. The participation included backdating a crucial engagement letter which effectively misled auditors and senior members of [the Department].
·     What is clear is that Ms Heffernan implemented a dishonest solution to resolve the issue of Dr Carr’s non-payment.
·     Ms Heffernan drafted a new engagement letter for Dr Carr. [She] signed the engagement letter on or shortly before 13 December 2016 … She directed Dr Carr to sign the document and to falsely backdate it to 9 June 2016. He acquiesced.
·     Ms Heffernan used the engagement letter as the basis to authorise payments to Dr Carr totalling approximately $106,000.
·     In the [CCC’s] opinion, both Ms Heffernan and Dr Carr engaged in serious misconduct by falsifying the engagement letter of 9 June 2016.
In relation to Mr Evans
·     Between them, Ms Heffernan and Mr Evans brought about a situation where Mr Evans was, in effect, paid a full redundancy (close to $400,000) then immediately hired as a consultant to assist in the ongoing litigation … (at a cost of just under $100,000).
·     Ms Heffernan was bound by professional rules of conduct as well as her obligations as a public servant. She breached these in a manner that transcends mere carelessness.
·     A carefully worded closeout note was signed by Mr Evans on 15 May 2017 stating that he had carried out 400 hours work at $200 per hour, plus GST. Mr Evans was however paid for 432 hours, the original amount he was to be prepaid. The discrepancy was picked up by internal auditors. Ms Heffernan was under pressure to explain matters.
·     Both Mr Evans and Ms Heffernan misled internal auditors about the additional 32 hours.
·     The explanations provided by Ms Heffernan and Mr Evans in the context of the evidence about the additional hours are implausible. In the [CCC’s] opinion, Ms Heffernan and Mr Evans engaged in serious misconduct by misleading internal auditors and corruptly preparing false records to justify payment for a portion of hours Mr Evans never worked.
·     In the [CCC’s] opinion, both Ms Heffernan and Mr Evans intentionally misled auditors. They did so for an ulterior purpose, to justify the previous expenditure of public money in May 2017 for work which had never been carried out, nor could be supported by contemporaneous records or other evidence.
·     Mr Evans used his position as a senior public officer to enrich himself at the State’s expense.
·     The [CCC] has formed an opinion of serious misconduct over the actions of each of them.
·     [Heffernan] ought to have epitomised honesty and integrity and acted in [the Department’s] best interests, not least because she was in a position of trust and given greater autonomy. Instead, she dishonestly put the interests of others ahead of [the Department] and the State.

On 20 May 2019, Heffernan sought permission from the CCC to inform her professional indemnity insurer about the substance of the draft CCC report that impacted on her and was relevant to determining whether the insurance policy would respond to those matters.
On 21 May 2019, the CCC granted Heffernan permission to disclose the CCC’s letter dated 10 May 2019 and the draft CCC report to her professional insurer for the purpose of ascertaining to what extent a policy may respond to matters concerning her that arose from the CCC’s investigation and draft report.
On around 30 May 2019, Heffernan informed her professional indemnity insurer of the substance of the draft CCC report, saying that she disputed the draft findings and had documents that proved the draft findings were wrong.
On 14 and 20 June 2019, Heffernan provided her extensive responses to the CCC’s draft report, putting her position that the draft findings were wrong.
On 25 June 2019, the Law Society granted Heffernan an unrestricted practising certificate pursuant to s 54 of the Act.
On 5 July 2019, the CCC released its final report. The final report contained the same adverse findings regarding Heffernan as the draft report, and added that:
Ms Heffernan made extensive submissions regarding all matters, with detailed reference to many documents. She did not however address the behaviour which forms the basis of the [CCC’s] opinion of serious misconduct. That is the creation of the purported letters of engagement for Dr Carr and Mr Evans when each was false. The letters were used as authority to expend State funds.
…
The CCC’s investigation revealed that Ms Heffernan demonstrated reckless non-compliance with procedure resulting in significant unauthorised expenditure of public funds in defiance of Cabinet decisions.
In doing so, she showed a preparedness to act dishonestly by falsifying records and deceit. In the [CCC’s] opinion, Ms Heffernan engaged in serious misconduct.
…
The [CCC] recommends that an appropriate authority or independent agency gives consideration to prosecuting Ms Heffernan for her conduct in preparing false letters of engagement of Dr Carr and Mr Evans and for her conduct misleading internal auditors.
On 5 July 2019, Heffernan notified the Western Australian Parliamentary Inspector of errors and omissions in the final CCC report and instructed her lawyers to seek a review of the final CCC report. She also issued a press release to the media denying the findings in the final CCC report. She also notified her employer of the final CCC report and her views on it.
On 27 July 2021, the CCC informed Heffernan that she was no longer bound by the non-disclosure requirement in the CCC summonses.
Heffernan did not at any time disclose to the Law Society the Department’s disciplinary process and adverse findings, the CCC summonses or examination, the CCC draft report or the CCC final report. The Law Society became aware of the contents of the final CCC report from another source. On 1 October 2019, the Law Society gave Heffernan notice that it believed she was no longer a fit and proper person to hold a practising certificate, and that it proposed to take action to cancel her unrestricted practising certificate. Reference was made to Heffernan’s failures to disclose either the Department’s investigation, or the final CCC report, either in her applications for a practising certificate or its renewal, or at any time. Heffernan was given 21 days to provide a written response. Despite a letter from Heffernan’s solicitor saying a response would be provided within that timeframe, none was.
On 23 October 2019, the Law Society wrote to Heffernan informing her that the Council of the Law Society would be considering the matter on 31 October 2019. Again, despite a letter from Heffernan’s solicitor saying a response would be provided before that time, none was.
On 31 October 2019, the Law Society decided to cancel Heffernan’s practising certificate pursuant to s 57(2)(c) of the Act on the ground in s 56(a) that she was no longer a fit and proper person to hold an unrestricted practising certificate. That decision took effect from 5 November 2019.
On 2 December 2019, Heffernan filed in the Supreme Court an appeal from the Law Society’s decision pursuant to s 89(1)(c) of the Act.
Nature of the appeal to the Supreme Court
The appeal from the Law Society’s decision was an appeal de novo. The Supreme Court ‘stands in the shoes of’ the Law Society, exercising original jurisdiction, and was required to determine itself whether Heffernan’s practising certificate should have been cancelled.[2] The Law Society bore the onus of establishing the ultimate issue in the proceedings, namely that Heffernan is not a fit and proper person to hold or continue to hold a practising certificate.[3] The standard of proof was on the balance of probabilities and the Briginshaw test[4] had application to the proof of allegations about Heffernan’s alleged misconduct.[5]
Pursuant to s 89(5) of the Act, the Supreme Court was able to make the order it considered appropriate. The dispositions available to the Law Society pursuant to s 57(2)(c) of the Act were: (i) to cancel the practising certificate; (ii) to suspend the practising certificate for a period; or (iii) to amend the practising certificate as the Law Society considered appropriate. The grounds for amending, suspending or cancelling a practising certificate are set out in s 56 of the Act. The ground relied on by the Law Society to cancel Heffernan’s practising certificate was that she was no longer a fit and proper person to hold the practising certificate within the meaning of s 56(a) of the Act.
The decision of the Supreme Court
The Supreme Court held (at [70]) that, from 7 August 2018 to 31 October 2019, Heffernan was not a fit and proper person to hold an unrestricted practising certificate. The Court was satisfied (at [55]), on the balance of probabilities, that Heffernan had engaged in a series of serious non-disclosures, namely:
(a) failing to disclose the Department’s investigation and the adverse findings made by Addis when she made her application for an unrestricted practising certificate on 7 August 2018;[6]
(b) failing to disclose the Department’s investigation and the adverse findings made by Addis, the summons to appear and be examined at the CCC, and the examination at the CCC when she made her application for the renewal of her practising certificate on 4 April 2019;[7]
(c) failing to disclose that she had been provided with the draft CCC report on or about 20 May 2019; [8] and
(d)failing to disclose the release of the final CCC report on 5 July 2019.[9]
The Court held (at [66]) that the Law Society had established that the cancellation of Heffernan’s practising certificate was justified, both at the time and viewed in retrospect, and Heffernan had failed to persuade the Court that the proven non-disclosures should not have resulted in the cancellation of her unrestricted practising certificate.
The Supreme Court ordered (at [71]) that the decision of the Law Society made on 31 October 2019 to cancel Heffernan’s unrestricted practising certificate was affirmed, the appeal was otherwise dismissed and costs were reserved.
The nature of this appeal
This is an appeal pursuant to s 51 of the Supreme Court Act 1979 (NT). By s 55(1)(b) and (2) of that Act, the Court may affirm, reverse or vary the judgment appealed from in whole or part, set aside the judgment and substitute its own judgment, remit the proceeding or order a new trial. Such appeals are by way of rehearing, which means the appeal is a general appeal conducted on the transcript of the evidence taken at the trial rather than calling witnesses to give their evidence afresh, and this Court has the powers and duties of the Supreme Court, including those of drawing inferences and making findings of fact.[10] The powers of the Court are exercisable only where the appellant can demonstrate that, having regard to all the evidence before the Court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.[11]
In Hilton v Legal Profession Admission Board [2017] NSWCA 232, the New South Wales Court of Appeal held (at [49]) that the principles in Warren v Coombes set out immediately above applied to an appeal against a decision of the Supreme Court to affirm a determination that the appellant was not a fit and proper person to be re-admitted as a lawyer. The Court added (at [49]) the following related considerations which combined to constrain the exercise of appellate jurisdiction:
(a)The test posited by the statute of whether the appellant is a ‘fit and proper person’ is one which is ‘peculiarly evaluative and which accordingly warrants a measure of deference to the trial judge’.[12] The expression ‘fit and proper’ is ‘a qualitative description of a conclusion reached after examination of a range of potentially competing considerations’.
(b)When dealing with questions such as the weight to be given to the testimonial evidence from the appellant as to why he engaged in the relevant conduct and to what extent there is any likelihood of further reprehensible conduct in the future, the primary judge enjoyed a considerable advantage in appreciating the tone, nuances, pauses and other aspects of his demeanour, which cannot be discerned from the transcript alone. Seeing the appellant give that explanation was described as a ‘very considerable advantage’.
(c)Specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon them by the primary evidence. The expressed findings are always surrounded by a penumbra of imprecision as to emphasis, relative weight, minor qualification and nuance of which time and language do not permit exact expression, but which may play an important part in the judge’s overall evaluation.
The grounds of this appeal and relief sought
The grounds of this appeal are as follows:
(a)The primary Judge erred in the interpretation and application of s 11(1)(g) of the Act by failing to interpret s 11 as a whole and in accordance with the main purposes of the Act, and approaching the question as one of general discretion, rather than confining s 11(1)(g) to suitability matters as to good fame and character by reference to: (i) what facts existed at each relevant time in the inquiry; and (ii) whether Heffernan was subject to disciplinary action in another profession or occupation at those relevant times (Ground 1).
(b)The primary Judge erred in finding that Heffernan’s explanations were contrived to explain the inexplicable where s 11 permits such an explanation (Ground 2).
(c)The primary Judge erred in treating the CCC findings inconsistently with s 217A(3) of the CCMA, which provides that a finding or opinion that misconduct has occurred is not, and is not to be taken as, a finding or opinion that a person is guilty of or has committed a criminal offence or a disciplinary offence (Ground 3).
(d)The primary Judge erred in interpreting and applying s 47(2) of the Act by finding Heffernan had obtained a practising certificate because of incorrect or misleading information (Ground 4).
(e)The primary Judge erred in failing to consider a sanction less than the cancellation of Heffernan’s practising certificate, thereby resulting in manifest injustice to Heffernan (Ground 5).
In oral submissions, the relief sought by Heffernan was amended to: (a) an order that the orders of the Supreme Court and the decision of the Law Society be set aside; (b) a declaration that Heffernan was, at the time of the hearing before the Supreme Court: (i) a fit and proper person to hold an unrestricted practising certificate; or (ii) alternatively, a fit and proper person to hold an unrestricted practising certificate subject to such conditions as this Court thinks fit; or (iii) alternatively, a fit and proper person to hold a restricted practising certificate, subject to such conditions and restrictions as this Court thinks fit; and (c) orders for costs of the appeal and the proceedings in the Supreme Court.
The assessment of fitness and propriety
Relevant provisions of the Act
Section 54(4)(b) of the Act provides that the Law Society must not grant a local practising certificate unless it is satisfied the applicant is a fit and proper person to hold the certificate. Section 54(5)(b) of the Act provides that the Law Society must not renew a local practising certificate if it is satisfied the applicant is not a fit and proper person to continue to hold the certificate.
Section 47(2) of the Act provides that in determining whether or not a person is a fit and proper person to hold a local practising certificate for the purposes of s 54 of the Act, the Law Society may take into account any suitability matter relating to the person and (relevantly) whether the person obtained an Australian practising certificate because of incorrect or misleading information (s 47(2)(a)).
The overarching question for the Court below was whether Heffernan was a fit and proper person to hold an unrestricted practising certificate. Having regard to the nature of the appeal, that required an assessment of her fitness and propriety both at the time the Law Society cancelled her practising certificate and at the time of the appeal, taking into account events occurring or not occurring between the time of cancellation and the hearing of the appeal, including her evidence and submissions made on her behalf in the appeal.[13] Consideration of this question required taking into account relevant matters in s 47 of the Act, which include the suitability matters in s 11.
Honesty, integrity and the duty of candour
Refusal, cancellation or suspension of a practising certificate upon determination of unfitness to hold a practising certificate is not punitive of the legal practitioner. Rather, it is protective of the public.[14] Fitness and propriety are to be assessed having in mind the high standards required of legal practitioners in the practice of their profession. Those standards are required because the relationships between legal practitioner and client, between legal practitioners, and between legal practitioner and the Court, are ones of trust in the performance of professional functions, and because there must be confidence in the public and those engaged in the administration of justice that legal practitioners will properly perform those functions.[15] To be a fit and proper person to hold a practising certificate requires demonstrated honesty and competence in dealing with clients, other practitioners and the Court. The determination of fitness and propriety extends to the assessment of a practitioner’s character in order to maintain the continuing confidence of the public in the performance of the duties of legal practitioners, given the central role the profession plays in the administration of justice.[16]
A member of the legal profession is required to be honest and frank in their relations with the Court, and otherwise in their professional conduct and in representations made by them before the Court, so that the Court and other members of the profession can deal with them with confidence relying on their integrity.[17] Qualities of honesty and integrity and a preparedness to comply with the law are essential requirements for being a fit and proper person.[18] The importance of these qualities has been explained as follows:[19]
Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
The above principles give rise to a requirement, described as ‘the duty of candour’, of proper disclosure of matters which may relate to the fitness and propriety of a legal practitioner to practice.[20] A practitioner’s duty of candour necessarily requires that an applicant for admission to legal practice or a practising certificate comprehensively discloses any matter which may reasonably be taken to bear on an assessment of fitness for practice.[21] The obligation is to make candid and comprehensive disclosure regarding anything which may reflect adversely on the fitness and propriety of the applicant to be admitted to practice or granted a practising certificate.[22] A practitioner is not excused from their obligations of disclosure and candour merely because the information that should have been disclosed is ultimately determined by the relevant tribunal not to be such as to render the person unfit to practice – that is a matter for the tribunal to determine, having been provided with all the relevant information.[23]
In some circumstances, the failure of an applicant to disclose relevant material might be excused on the basis of an erroneous but understandable error of judgement.[24] In other circumstances, it may be assessed that, strictly speaking, disclosure of the particular information was not required. In those situations, of particular importance is the applicant’s motivation for not making the disclosure, and particularly whether or not they were motivated by a desire or intention to conceal or minimise adverse information which may bear on the grant of their application.[25]
The duty of candour – when does the obligation to disclose arise and end?
Counsel for Heffernan submitted that the relevant times at which obligations to disclose the relevant matters to the Law Society may have arisen were: (a) on 7 August 2018, when she applied for an unrestricted practising certificate; (b) on 4 April 2019, when she applied for a renewal of her practising certificate; and (c) any time between 7 August 2018 and 31 October 2019, when her practising certificate was determined to be cancelled. So much may be accepted.
The application for a local practising certificate in the Northern Territory gave rise to the duty of candour. That duty subsists from the time an application for a practising certificate is provided to the Law Society and for the duration of the time that practising certificate is held. Heffernan’s application for renewal of the practising certificate was an obvious juncture at which relevant matters were required to be disclosed, but the duty of candour was continuous. In fact, the duty of candour continued beyond the date the Law Society cancelled her practising certificate, and into the Supreme Court proceedings, including when giving evidence by affidavit and orally.[26]
We reject Heffernan’s submission that the Supreme Court did not consider Heffernan’s obligations to make disclosures at those relevant times. The reasons below (at [55]) identified the ‘series of serious non-disclosures’ found by reference to earlier paragraphs in the reasons which in turn identified the points in time at which the non-disclosures found took place.[27]
Suitability matters: s 11(1) of the Act
Section 11 is relevantly in the following terms:
11 Suitability matters
(1) Each of the following is a suitability matter in relation to an individual:
(a)whether the person is currently of good fame and character;
(b)whether the person is or has been an insolvent under administration;
(c)whether the person has been convicted of an offence in Australia or a foreign country, and if so:
(i)the nature of the offence; and
(ii)how long ago the offence was committed; and
(iii)the person’s age when the offence was committed;
(d)whether the person engaged in legal practice in Australia:
(i)when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law; or
(ii)if admitted, in contravention of a condition on which admission was granted; or
(iii)if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended;
(e)whether the person has practised law in a foreign country:
(i)when not permitted by or under a law of that country to do so; or
(ii)if permitted to do so, in contravention of a condition of the permission;
(f)whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:
(i)this Act or a previous law of this jurisdiction that corresponds to this Act;
(ii)a corresponding law or corresponding foreign law;
(g)whether the person:
(i)is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or
(ii)has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt.
(ga)whether the person has been found to have engaged in academic dishonesty (including, for example, plagiarism);
(h)whether the person’s name has been removed from:
(i)a local roll, and has not since been restored to or entered on a local roll; or
(ii)an interstate roll, and has not since been restored to or entered on an interstate roll; or
(iii)a foreign roll;
(i)whether the person’s right to engage in legal practice has been suspended or cancelled in Australia or a foreign country;
(j)whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts;
(k)whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person;
(l)whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice;
(m)whether the person currently has a material inability to engage in legal practice.

The duty of candour applies to each of the suitability matters in s 11(1). If one of those suitability matters applies to an applicant for a practising certificate, or the holder of a practising certificate, the duty of candour obliges them to disclose it to the Law Society in comprehensive fashion. That, however, is not the limit of the duty of candour. It also obliges such a person to disclose to the Law Society any circumstances which might reasonably be considered to bring such a person within one of those suitability matters or otherwise to bear or reflect adversely on an assessment of fitness. It is then for the Law Society to determine, with all of the relevant information, whether the person is a fit and proper person to hold a practising certificate.
The proper approach in cases of non-disclosure
It follows from all of the above that, in an appeal from a decision of the Law Society cancelling a practising certificate for failure to disclose relevant matters, the Supreme Court will need to consider and determine whether:
(a)one or more of the suitability matters in s 11(1) applies to the practitioner;
(b)there were at the material times any circumstances which might reasonably be considered to bring the practitioner within one of those suitability matters in s 11(1); or
(c)there were at the material times any circumstances which could otherwise reasonably be taken to bear or reflect adversely on an assessment of the practitioner’s fitness to hold a practising certificate.
This involves the construction of the relevant provisions of s 11(1) and the making of findings of fact on the evidence before the Court. The facts that must be determined in any particular case will depend on the particular suitability matter or matters in issue and the circumstances of the case. For example, if the particular suitability matter is whether the person is of good fame and character within s 11(1)(a), the Court may, if the practitioner disputes it, be required to determine whether the practitioner has engaged in dishonest, improper or other conduct which renders them not of good character. On the other hand, if the particular suitability matter is whether the person has been convicted of an offence within s 11(1)(c), the Court need only make findings about whether the practitioner has been convicted, and need not make any findings about whether the practitioner committed a criminal offence. The determination also requires an assessment of the nature of the matter and its degree of connection to one of the suitability matters and/or its capacity to reflect adversely on an assessment of that fitness.
If the Court is satisfied (on the balance of probabilities to the Briginshaw standard) that a suitability matter in s 11(1) applies to the practitioner, or could reasonably be taken to apply, or that a matter could otherwise reasonably be taken to bear on the assessment of the person’s fitness, then the practitioner was obliged to disclose the matter to the Law Society.
If the Court is satisfied the practitioner was obliged to disclose the matter but failed to do so, the Court must then determine whether the applicant is not a fit and proper person to hold a practising certificate by reason of that non-disclosure. This determination must take into account the findings already made concerning the materiality of the information. It must also take into account the practitioner’s evidence in explanation for the non-disclosure, which will raise credibility issues. The Court will need to consider the practitioner’s motivation for the non-disclosure, such as whether the non-disclosure was an innocent error of judgement, a deliberate effort to conceal the truth or an attempt to minimise information adverse to the assessment of fitness. The Court will also need to consider, if relevant, the other matters in s 47(2) of the Act, such as whether the person obtained an Australian practising certificate because of incorrect or misleading information.
Contrary to the submissions made by counsel for Heffernan, we consider that the Supreme Court took the proper approach as described above. We reject the submission that, by doing so, the Supreme Court made findings about honesty and candour which amounted to the exercise of a general, unstructured discretion. The reasons for that conclusion are addressed further in the following paragraphs.
No necessity to find improper conduct
In written submissions, counsel for Heffernan submitted that an assessment of compliance with the duty of candour requires a two-step process in which the first step is to determine whether the undisclosed matter goes to the question of fitness and propriety, and that this involves an assessment of ‘proven improper conduct’. That is, it is a ‘necessary element to ascertain whether the conduct actually occurred’. In writing at least, counsel for Heffernan appeared to submit that the Supreme Court, and this Court, were required to determine whether or not the Department’s allegations and findings, and the CCC’s findings, were true and correct.
Reliance was placed on the decision of Re Joy Onyeledo [2015] NTSC 60 (‘Re Joy Onyeledo’), in which an applicant for admission to legal practice had disclosed to the Admissions Board that she had been found on two occasions to have engaged in academic dishonesty whilst a student. She initially disclosed that, on one occasion, she had been found by the academic disciplinary board to have made an honest mistake and, on the other occasion, she was awarded a mark of zero for an assignment because she had extensively taken directly from an author’s work without using quotation marks and without properly referencing the work. After documents were provided by the academic institution, she disclosed that the first occasion was not a finding by the academic disciplinary board, but a meeting with lecturers which concluded she had made an error. Before the Supreme Court, the applicant argued that she had not engaged in plagiarism. It was not disputed that the first occasion was not plagiarism, but the Law Society argued that the second occasion was. The Court held (at [30]) that there were two issues to be determined: first, whether the applicant intended to pass off the work of others as her own (that being the legal test for plagiarism); and second, whether she made full and frank disclosure to the Board of the circumstances surrounding the finding of academic misconduct made against her. Properly understood, the central issue in the case was not whether the applicant should have disclosed that she had been found to have engaged in academic dishonesty (the suitability matter in s 11(1)(ga)), but whether she had so engaged (a matter falling within the suitability matter in s 11(1)(a)). The other issue in the case was whether the disclosure she had made about being found to have engaged in academic dishonesty complied with her duty of candour. Those two issues then fed into the determination of whether she was a fit and proper person. The decision does not stand for the proposition that, in all cases raising suitability matters, particularly cases involving non-disclosure of a relevant matter, the Court must determine whether improper conduct occurred.
In the present case, Heffernan did not make any disclosure to the Law Society of allegations or findings having been made against her (either in the Department disciplinary process or the CCC processes). Unlike the case of Re Joy Onyeledo, the question here is not whether disclosed adverse findings bearing on fitness were established or true. The question here is whether the making of the Department’s or the CCC’s allegations or findings meant Heffernan fell within a suitability matter in s 11(1), or constituted circumstances which might reasonably be considered to bring her within one of those suitability matters, or otherwise bore or reflected adversely on an assessment of her fitness to hold a practising certificate, such that they should have been disclosed.
The relevant facts for that determination are not whether the allegations made or found against Heffernan are true and correct. The relevant facts are whether adverse allegations or findings were made which brought Heffernan within a suitability matter in s 11(1) or could reasonably be taken to do so or otherwise bore or reflected adversely on an assessment of her fitness to hold a practising certificate, such that they should have been disclosed.
That explains why, at the hearing below, Heffernan did not press many of hundreds of paragraphs of affidavits and many hundreds of pages of documents going to what she said in response to the Department’s allegations and the findings in the draft CCC report. That position was adopted on the understanding that the Law Society did not rely on the truth of those allegations and adverse findings as any basis for a finding that Heffernan was not a fit and proper person to hold a practising certificate. The only issue was whether the allegations or findings should have been disclosed, and whether the failure to disclose them, and her explanations therefor, demonstrated she was not a fit and proper person.
In the Supreme Court, when Heffernan was cross-examined about why she did not disclose the draft CCC report, the primary Judge received the draft CCC report and the final CCC report only for the purpose of assisting the Court to understand Heffernan’s cross-examination. There was no suggestion that the primary Judge was receiving those reports for any other purpose, and certainly not for the purpose of accepting or otherwise determining the truth of what they contained.
However, on this appeal, counsel for Heffernan applied pursuant to s 54 of the Supreme Court Act 1979 (NT) for this Court to receive, initially, some 513 pages of further evidence, essentially comprising Heffernan’s responses to the allegations the subject of the Department’s investigation and the draft CCC report. The purpose of the further evidence was to establish that Heffernan had ‘a clear counter case’ to the allegations, which should be considered when assessing the Supreme Court’s findings about her credibility (specifically, her explanations for not disclosing the findings made in the Department’s investigation, or having been summoned to give, and having given, evidence before the CCC).
Counsel for Heffernan also made some criticism that the Supreme Court had quoted the allegations or findings at length in the reasons, and had been influenced by the seriousness of the allegations and findings to make adverse findings against Heffernan’s credibility. By consent, this Court determined to consider the application on a ‘document by document’ basis to the extent that reliance was placed on any particular document in the course of Heffernan’s oral submissions. Ultimately, Heffernan’s tender was confined to 14 documents (plus attachments) comprising some 276 pages. Those documents were received provisionally pursuant to s 57 of the Evidence (National Uniform Legislation) Act 2011 (NT), with relevance to be determined.
We have determined that the documents are not relevant and will not be received because this Court is also not determining the truth of the allegations or findings in the Department’s investigation or the CCC reports, for the reasons set out above. To the extent necessary, when considering Heffernan’s evidence explaining her failures to disclose, this Court is prepared to accept that, in her mind, she had a credible counter-case to those allegations and findings. For the reasons already stated, there is no need to assess the strength of that counter-case.
Even allowing for the limited scope of the inquiry on appeal, the nature and seriousness of the allegations and findings against Heffernan are relevant to both whether they should have been disclosed and the assessment of Heffernan’s evidence explaining why she did not disclose them. That relevance runs counter to the submission made by Heffernan’s counsel, which we reject, that setting out the allegations or findings in the decision below is indicative of the Supreme Court proceeding, to Heffernan’s detriment, on the basis that ‘where there is smoke, there is fire’.
‘Disciplinary action’: s 11(1)(g)
The Department’s disciplinary process
The Law Society contends that Heffernan was obliged to disclose the findings made by Addis on 23 April 2018 in the Department’s disciplinary process, as they fell within s 11(1) of the Act.
Heffernan contends that these were ‘proposed findings’ or ‘possible findings’ and were not ‘concluded or formal findings’ made against Heffernan by the Department. That submission is rejected. Addis’s letter states that he had considered the investigator’s report and the response provided by Heffernan, and found that the allegations were substantiated. He set out the substantiated findings. It is clear from his letter that the only question remaining was whether Heffernan’s employment should be terminated. There was no expressed intention that his finding that the allegations were substantiated would or could be revisited, or that they were proposed or possible findings. Such a characterisation is inconsistent with his letters of 28 August and 8 November 2017. It is also inconsistent with the disciplinary process in ss 81-82A of the PSMA, which provide that an employer aware that an employee may have committed a breach of discipline may decide to deal with the matter as a disciplinary matter (s 81(1)) and that after dealing with a matter as a disciplinary matter, if the employer finds the employee has committed a breach of discipline, they must decide to take disciplinary action, improvement action or no further action (s 82A(3)).
Addis’s letter of 23 April 2018 clearly notified his finding that Heffernan had committed a breach of discipline, and all that remained was the decision to take disciplinary action (and if so, what disciplinary action), improvement action or no further action. Before that decision was to be made, Addis provided Heffernan with an opportunity to be heard about it, not about the finding that the allegations were substantiated. The findings set out in Addis’s letter of 23 April 2018 were findings that had been made in the course of a formal disciplinary process. They were not proposed or possible findings.
Counsel for Heffernan contended that when Heffernan applied for an unrestricted practising certificate on 7 August 2018, she was not the subject of ‘current disciplinary action’ and had not ‘been the subject of disciplinary action’ within s 11(1)(g) of the Act, because the Department’s investigation and Addis’s findings that the allegations had been substantiated did not constitute ‘disciplinary action’. Essentially, the argument was that the phrase ‘disciplinary action’ refers only to a sanction or penalty imposed at the end of a finalised disciplinary process in which adverse allegations have been found substantiated. Reliance was placed in that respect on the definition of the term ‘disciplinary action’ in s 80A of the PSMA. There, the term is defined, in relation to a breach of discipline by an employee, to mean any one or more of a reprimand, the imposition of a fine, transfer, reduction in remuneration, reduction in level of classification or dismissal. In that definition, ‘disciplinary action’ is the sanction or consequence that may be imposed in response to a finding of a breach of discipline following an investigation.
The definition of the same term in a different Act with a different purpose in a different jurisdiction says virtually nothing about the meaning properly attributed to the term as it appears in the Act. This is particularly so where s 11(1)(g) refers to ‘disciplinary action, however expressed’. Those words make it clear that s 11(1)(g) is not concerned with the labels or definitions adopted in the specific context or statute in or under which the ‘disciplinary action’ is taken. Rather, the term ‘disciplinary action’ in the Act takes its ordinary meaning. In their ordinary sense, the words ‘disciplinary action’ are apt to encompass a disciplinary process that begins with formal notification of adverse allegations of a breach of discipline.
Counsel for Heffernan also placed reliance on the definition of the term ‘disciplinary action’ in s 540 of the Act. The argument was that this definition, albeit in a different context in the Act, was informative because it shows that the term, as used in the Act, means the action taken as a result of an adverse finding, and not the investigation which may lead to a finding.
Section 540 defines ‘disciplinary action’ as: (a) the making of an order by a court or tribunal for or following a finding of professional misconduct by a legal practitioner under the Act or a corresponding law; or (b) any of a number of listed actions taken under the Act or a corresponding law following a finding of professional misconduct by a legal practitioner. That definition of ‘disciplinary action’ clearly extends in its terms to include the adverse finding of professional misconduct. So understood, this definition of ‘disciplinary action’ does not assist Heffernan’s argument. Rather, it supports the conclusion that a process in which there was both an investigation and adverse findings made against Heffernan, with the only remaining step being the sanction which was to be imposed, falls within the term ‘disciplinary action’.
Counsel for Heffernan also placed reliance on the definition of ‘disciplinary action’ in the Butterworths Australian Legal Dictionary, which is as follows:
Reasonable lawful action taken against an employee in the nature of, or promoting, discipline … Generally, disciplinary action includes a decision by an employer to defer paying an increment to the employee, or to reduce the rank, classification, position, grade, or pay of the employee; to impose a fine or forfeit pay; to annul the appointment of an employee on probation; or to suspend or dismiss an employee …
This definition was adopted by the primary Judge (at [23]) as the ordinary meaning of the term. Counsel for Heffernan argued that this definition does not refer to the employer’s investigation, and only refers to the sanction imposed or undertaken as a result of an adverse finding. Two things should be noted in that respect.
First, the examples of disciplinary action given by the definition are not exhaustive. Second, and more importantly, the definition is drawn from the decision of the Federal Court in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 (‘Chenhall’). The question in that case was whether the respondent had suffered an ‘injury’ which was compensable under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 (Cth). That term was defined to exclude ‘any such disease or injury suffered by an employee as a result of reasonable disciplinary action taken against the employee’. Justice Cooper held (at 83-84) that, in that context, ‘disciplinary action’ referred to action taken against an employee in the nature of or to promote discipline, and it was the disciplinary action itself, and not the steps anterior to the decision to take such action, which was covered by the definition. His Honour held that, therefore, action taken to determine whether or not disciplinary action would be taken against an employee, although it might be characterised as part of a system or process to maintain discipline, was not disciplinary action.
However, Cooper J went on to consider at length (at 86-89) the disciplinary process applicable to the respondent in that case. His Honour held (at 89) that the relevant regime provided for an investigation and report, followed by the making of a decision as to whether to offer a caution or admonition or to charge the member with a breach of discipline, which charge was then heard by a disciplinary tribunal or the Commissioner to determine whether the member was guilty of a disciplinary offence, and if so, the Tribunal or Commissioner could impose prescribed penalties. Consequently, his Honour held, ‘disciplinary action’ is not lawfully taken against a member of the Australian Federal Police until such time as the Commissioner determines, in accordance with that regime, to take some action against a member in respect of a defined disciplinary offence and takes one of the steps outlined in the regime (such as charging the member with a breach of discipline). It is clear that his Honour rejected (at 85-86) the submission that ‘disciplinary action’ is confined to the imposition of a sanction. His Honour clearly accepted that ‘disciplinary action’ in that statute included the steps taken after an investigation, a report and a decision to charge a member with a breach of discipline. The charge, the hearing and determination of that charge, as well as the sanction, were all considered to fall within ‘disciplinary action’, but the interview of the respondent which occurred before any decision to charge the respondent with breaches of discipline was not within the term ‘disciplinary action’.

It follows that Chenhall does not stand for the proposition that the term ‘disciplinary action’ (in legislation relating to workplace injuries) refers only to the imposition of a sanction. Chenhall stands for the proposition that ‘disciplinary action’ can include adverse findings that a breach of discipline has occurred by the statutory body tasked with making those findings. That is what occurred in the Department’s disciplinary process relating to Heffernan.
Counsel for Heffernan argued further that investigations should not be considered to be ‘disciplinary action’ because such investigations may not lead to the imposition of any disciplinary sanction, and Heffernan had a clear counter-case to the allegations. Even if the existence of a counter-case were accepted, it is consistent with the Act’s purposes of promoting the administration of justice and providing for the protection of consumers of legal services and the public generally (s 3(a) and (b)), that suitability matters to be taken into account in deciding whether to grant or renew, or cancel, a practising certificate include the fact that adverse findings have been made against the applicant in a disciplinary process in another profession or occupation.
It is informative to consider the other suitability matters in s 11(1) when considering the scope of s 11(1)(g). By s 11(1)(c), a suitability matter is whether the person has been convicted of an offence. By s 11(1)(ga), a suitability matter is whether the person has been found to have engaged in academic dishonesty. These suitability matters do not make any reference to the imposition of a sanction or penalty. The academic dishonesty matter focuses on an adverse finding. Even though a criminal conviction is, strictly speaking, a sanction imposed after a finding of guilt, it is also the usual consequence of a finding of guilt for most adult offenders,[28] with some other penalty also usually imposed.
By s 11(1)(h) and (i), a suitability matter is whether the person’s right to engage in legal practice has been suspended or cancelled, or their name has been removed from the roll and not restored. By s 11(1)(f), a suitability matter is whether the person is currently subject to an unresolved complaint, investigation, charge or order under the Act or a corresponding law. These provisions disclose that suitability matters extend to both the sanction for legal disciplinary matters (paragraphs (h) and (i)) and current but unresolved allegations or investigations of legal disciplinary matters (paragraph (f)).
The Law Society argued that the same approach is reflected in s 11(1)(g) in relation to disciplinary matters in non-legal professions or occupations, where paragraph (i) is intended to capture ‘current’ (ie ongoing and incomplete) disciplinary processes, and paragraph (ii) is intended to capture completed disciplinary processes in which the adverse allegations were found to have been established (as captured by the phrase ‘that involved a finding of guilt’). Conversely, counsel for Heffernan argued that the word ‘current’ in s 11(1)(g)(i) refers to a disciplinary sanction which is operative at the relevant time, such as a demotion or a suspension from duty. The submission followed that the distinction between legal disciplinary matters (where both ongoing and incomplete, and completed, matters are a suitability matter) and non-legal disciplinary matters (where only completed matters where a sanction has been imposed are a suitability matter) is intentional because legal disciplinary matters are far more significant for a person seeking to practise as a lawyer.
We do not accept that submission. First, it is inconsistent with the use of the word ‘currently’ in s 11(1)(f) in relation to an unresolved complaint, investigation, charge or other order in the legal profession context. Second, an allegation in some formal process which is being investigated or is otherwise unresolved in a non-legal professional or occupational context is no less important per se for suitability than an allegation in some formal process which is being investigated or is otherwise unresolved in a legal profession context. Complaints, investigations, charges or orders in a legal professional context may be found unsubstantiated, or may be trivial, or may lead to a very minor sanction. Allegations in a formal process in a non-legal professional or occupational context may be very serious, may involve issues of dishonesty, breach of trust or breach of duty, and may lead to serious sanctions. There is no purposive basis for a legislative approach which would distinguish between the two in the manner contended.
In support of this argument, counsel for Heffernan also pointed to the different language used in s 11(1)(f) and s 11(1)(g) of the Act. An examination of that language is informative. If the words ‘disciplinary action’ were confined to a sanction imposed at the end of a disciplinary process, the words ‘that involved a finding of guilt’ in s 11(1)(g)(ii) would be otiose, because a sanction would only be imposed if there was a finding of guilt. The presence of those words is a further indication that the words ‘disciplinary action’ in s 11(1)(g)(ii) are not limited to the sanction imposed, but refer to a disciplinary process. That understanding of the words ‘disciplinary action’ then explains the reference to ‘current disciplinary action’ in s 11(1)(g)(i) and the distinction in paragraphs (i) and (ii) between a current disciplinary process and a concluded disciplinary process. So understood, those paragraphs are consistent with the approach to ‘currently’ ‘unresolved’ complaints, investigations, etc in relation to the legal profession, and other professions or occupations.
In our opinion, the proper construction is that ‘disciplinary action’ in s 11(1)(g) refers to a formal disciplinary process taken in relation to another profession or occupation. Accordingly, the primary Judge’s conclusion on this point (at [57]) was correct.
The primary Judge held (at [25]) that the Department’s investigation remained open on 7 August 2018, as Heffernan ‘now concedes’. That concession was contained in closing written submissions, where it was put as a relevant fact that, on 4 July 2018, Heffernan resigned without responding to the notice of intention to terminate her employment, ‘leaving the investigation open’.
In any event, the Supreme Court did not make a finding that the Department’s investigation and adverse findings were ‘current disciplinary action’ within s 11(1)(g)(i) of the Act. The Supreme Court held (at [25]) that the adverse findings made by Addis should have been disclosed by Heffernan because they were matters material to the question of whether she was a fit and proper person, and (at [26]) that the finding that the alleged breaches of discipline were substantiated was, ‘for practical purposes’, a finding of guilt within the meaning of s 11(1)(g)(ii) of the Act.
Even if the Department’s disciplinary process (the ‘disciplinary action’) relating to Heffernan had ceased sometime after 25 July 2018 (when the Department informed her solicitor that it was ongoing), and was not ‘current’ on 7 August 2018 because she had resigned with effect from 4 July 2018, such that s 11(1)(g)(i) was not applicable (as the Supreme Court effectively found), it is clear that, as at 7 August 2018, she had been the subject of a disciplinary action ‘that involved a finding of guilt’ within s 11(1)(g)(ii). That is because on 23 April 2018, Addis had found the allegations against Heffernan substantiated.
The fact that Heffernan disputed that finding and considered herself to have a clear counter-case is irrelevant to the application of s 11(1)(g)(ii). The relevant facts are that the Department had undertaken a disciplinary process in relation to Heffernan’s employment in an occupation that did not involve the practise of law comprising an investigation into allegations of possible breaches of discipline (ie, a ‘disciplinary action’), and had made findings against her that the allegations were substantiated (ie, the disciplinary action ‘involved a finding of guilt’).
Similarly, it is irrelevant to the application of s 11(1)(g)(ii) that: (i) Heffernan had resigned before any termination of her employment; (ii) the Department waived the notice period; (iii) she was paid overtime or back pay to which she was entitled before her resignation took effect; and (iv) to the extent such a finding of fact might be made, that Addis had offered her another job (a fact disputed by the Law Society). Heffernan was obliged to have disclosed the relevant facts in her application of 7 August 2018 because they constituted a suitability matter within the meaning of s 11(1)(g)(ii) of the Act, and she failed to do so. Again, the Supreme Court was correct.
We reject the submission by counsel for Heffernan that the Supreme Court adopted an ‘inapt analogy’ by equating the Department’s findings to a criminal finding of guilt. As we have found, the Supreme Court correctly held that the Department’s findings fell within s 11(1)(g)(ii) of the Act, which uses the term ‘finding of guilt’. The Supreme Court’s observation that, ‘In crude terms, she had been found guilty and was awaiting sentence at the time she resigned’, does no more than convey that at the time she resigned, Heffernan had been the subject of disciplinary action that ‘involved a finding of guilt’ within s 11(1)(g)(ii) and had not, at the time she tendered her resignation, been punished or sanctioned for that breach. We do not accept that the analogy was ‘inapt’ given that it reflects the wording of s 11(1)(g)(ii) of the Act, nor that it ‘renders the decision unsafe’ because it equates ‘draft findings of an internal civil investigation’ with a criminal finding of guilt.
Before the Supreme Court, Heffernan conceded that she was obliged to disclose to the Law Society the facts that the CCC had prepared its draft report containing adverse findings against her and that the CCC had released its final report containing adverse findings against her. These were submitted to be the only failures to disclose suitability matters which should have been found by the Supreme Court. The concession was maintained in this Court, on the basis that the adverse findings in the CCC’s two reports fell within s 11(1)(a) of the Act. In our view, the adverse findings made by Addis that the allegations in the Department’s disciplinary process were substantiated equally fell within s 11(1)(a), for similar reasons. Namely, they were findings made in a formal process relating to her employment that seriously impugned her honesty and integrity. The application of s 11(1)(a) to the Department’s disciplinary process is addressed further in the following paragraphs.
Counsel for Heffernan argued that the Supreme Court found (at [57]), without giving reasons for that finding, that Heffernan’s suspension from duty on full pay pending the investigation into the allegations comprised ‘disciplinary action’ within s 11(1)(g) of the Act. The Supreme Court made no such finding. The Supreme Court referred (at [57]) to Heffernan’s contention that she had no legal obligation to disclose to the Law Society the findings of the Department’s investigation or her suspension because neither was a ‘current disciplinary action’. The Supreme Court rejected Heffernan’s argument that the term ‘disciplinary action’ refers only to the final stage or act, or the ultimate outcome, and held that the institution of an investigation is ‘disciplinary action’ and that ‘current disciplinary action’ refers to an ongoing process which has not been finalised. There was no finding that the suspension was a current disciplinary action. Given that the suspension ended with effect from 22 May 2018 and Heffernan’s employment ceased with effect from 4 July 2018, it is unsurprising that there was no finding below that, on 7 August 2018, the suspension was ‘current’.
The foregoing conclusions regarding the application of s 11(1)(g)(ii) and s 11(1)(a) to the Department’s disciplinary process and findings on 7 August 2018 apply equally to Heffernan’s application for renewal of her practising certificate on 4 April 2019. Again, she was obliged to disclose the process and the findings in that application and she did not do so.
Ground 1 of the appeal is not made out.
‘Good fame and character’: s 11(1)(a) and/or the duty of candour
The expression ‘good fame and character’ in s 11(1)(a) of the Act is not defined. The word ‘fame’ refers to a person’s reputation in the relevant community and the word ‘character’ refers to a person’s actual nature.[29] Determining whether a person is of good fame and character requires consideration of matters affecting the moral standards, attitudes and qualities of the person, not merely their general reputation, relevant to the person’s practice as a legal practitioner.[30] For the purposes of this case, it is unnecessary to consider the meaning of the term ‘good fame and character’ further than to state that it encapsulates the legal practitioner’s attributes of honesty and integrity which form the foundation for the duty of candour, and which have already been described above.
Department’s disciplinary process
Given the conclusion reached above, it is strictly unnecessary to consider the Department’s disciplinary process under s 11(1)(a) and/or the general duty of candour. Nevertheless, we will deal with the matter briefly.
The allegations against Heffernan contained in Addis’s letter of 28 August 2017 clearly raised serious issues about Heffernan’s honesty and integrity in the context of her employment with the Department, including a breach of trust, failure to comply with the Department’s authorisations, policies or decisions, and misleading government officers or officials. The finding contained in Addis’s letter of 23 April 2018 that those allegations had been substantiated also clearly raised serious issues about Heffernan’s honesty and integrity. As a result of those findings, s 11(1)(a) applied, or could reasonably be taken to apply, to Heffernan, or they could otherwise reasonably be taken to bear or reflect adversely on an assessment of her fitness to hold a practising certificate. Again, it is irrelevant here that Heffernan asserts she had a clear counter-case because the relevant facts are the making of the allegations and the making of the findings and their content, not the truth or correctness thereof.
Heffernan was obliged to have disclosed, in her application of 7 August 2018 and in her application of 4 April 2019, the relevant facts, and she failed to do so. The Supreme Court’s findings (at [25] and [26]) that the Department’s investigation and the findings made by Addis should have been disclosed were correct.
CCC summonses and examination
The relevant facts are that:
(a)On 8 November 2018, Heffernan was served with the first CCC summons to attend personally and give evidence in examination before the CCC. On its face, the summons stated that failure to attend could result in the issue of a warrant for her apprehension.
(b)On 5 December 2018, Heffernan was served with the second CCC summons in the same terms as the first summons.
(b)The CCC summonses stated that the scope and purpose of the examination was to determine whether any public officers at the Department engaged in serious misconduct by corruptly using their position between December 2015 and June 2018 to benefit others.
(c)Heffernan had been a public officer at the Department between January 2016 and 4 July 2018, and was suspended from duty from May 2018.
(d)On 5 and 6 December 2018, Heffernan attended the CCC examination and was examined by the CCC.
(e)On around 20 May 2019, the CCC provided its draft report to Heffernan, which made adverse findings against Heffernan regarding serious misconduct in her position as a public officer with the Department, including in relation to her engagement of Peter Evans and Howard Carr.
From the expressed scope and purpose of the CCC summonses and the findings made in the CCC’s draft report and the CCC’s final report, the clear inference is that the CCC were investigating, amongst other matters, Heffernan’s misconduct in her employment with the Department related to her engagement of Peter Evans and Howard Carr. The only available inference from those findings is that the examination of Heffernan before the CCC was directed, to some degree, to that investigation. The primary Judge correctly drew that inference. As his Honour held (at [39]), support for it was found in Heffernan’s evidence that she was questioned at the CCC examination about ‘commercialisation matters, including Dr Carr’ and ‘commercialisation and procurement’ in the Department, and that documents were shown to her including some she had signed. Heffernan accepted (in written submissions to this Court) that she was asked questions about the matters Addis had raised in his ‘report’ (ie his letter of 23 April 2018). That also supports the inference just referred to.
Counsel for Heffernan argued that the draft CCC report contained adverse findings against her ‘without any warning or any such allegations being put to her during her attendance as a witness’. Given the only inference reasonably available, this submission is rejected.
Counsel for Heffernan argued further that she was summoned as a witness for an examination under s 137 of the CCMA, which provides that an examination is for the purposes of an investigation. As a consequence, Heffernan was not necessarily being investigated for, let alone charged with, criminal conduct, corrupt conduct or misconduct. It was submitted that the protections to witnesses given by ss 142 to 145 of the CCMA show that the examination process is a fact-finding exercise which may culminate in a report by the CCC. All of that may be accepted, but it ignores the readily available inference referred to above that Heffernan was, as a matter of fact, being investigated by the CCC for serious misconduct in her employment with the Department.
It follows from that inference that the CCC summonses and the CCC examination of Heffernan raised serious issues about Heffernan’s honesty and integrity in the context of her employment with the Department. As a result, s 11(1)(a) applied, or could reasonably be taken to apply, to Heffernan, or the CCC summonses and examination could otherwise reasonably be taken to bear or reflect adversely on an assessment of her fitness to hold a practising certificate. Again, it is irrelevant here that Heffernan asserts a clear counter-case because the relevant facts are the CCC’s investigation into Heffernan’s serious misconduct and the scope and content of that investigation, not the truth of the allegations made against her. Heffernan was obliged to have disclosed the relevant facts in her application of 4 April 2019, and she failed to do so.
CCC’s draft report and CCC’s final report
The relevant facts are the findings made against Heffernan in the CCC’s draft report and final report. Those findings clearly raised serious issues about Heffernan’s honesty and integrity in the context of her employment with the Department. As a result, s 11(1)(a) applied, or could reasonably be taken to apply, to Heffernan, or the proposed or final findings in both reports could otherwise reasonably be taken to bear or reflect adversely on an assessment of her fitness to hold a practising certificate. Again, it is irrelevant here that Heffernan asserts a clear counter-case. That is because the relevant facts are the findings made against Heffernan in the CCC’s reports, not the truth or correctness thereof. As part of her ongoing duty of candour Heffernan was obliged to have disclosed the relevant facts to the Law Society, and she failed to do so. In the Court below, as in this Court, she accepts that.
Counsel for Heffernan argued that the Supreme Court relied on the findings in the CCC’s reports as proof of improper conduct without ‘performing the necessary task of enquiring into the basis of those findings’, contrary to s 217A(3) of the CCMA, which provides that a finding or opinion that misconduct has occurred is not, and is not to be taken as, a finding or opinion that a person is guilty of or has committed, a criminal offence or a disciplinary offence.

The primary Judge ultimately rejected (at [62]) Heffernan’s submission that, on 4 April 2019, she was entitled to believe, on reasonable grounds, that she was not the target of the CCC investigation, and rejected that she had that belief. The Supreme Court described her explanations for her claimed beliefs as ‘spurious’ and her affidavit evidence about the subject matter of the CCC examination as ‘vague’.
Counsel for Heffernan criticised these findings on a number of bases. It was argued that the erroneous credibility findings regarding Heffernan’s evidence about the Department’s disciplinary action were ‘inextricably intertwined’ with the primary Judge’s assessment of Heffernan’s credibility on other matters, making the entire credibility assessment ‘fatally flawed’. We have rejected that there were erroneous credibility findings about Heffernan’s evidence about the Department’s disciplinary action, and so reject this submission as well.
Counsel for Heffernan argued that the Supreme Court’s finding at [30] that her evidence in cross-examination raised significant concerns about her credit, character and fitness was ‘without explanation’. We reject that submission. The explanation is plainly set out in the remainder of that paragraph of the reasons.
Counsel for Heffernan argued that the findings in the draft CCC report were used as a basis for disbelieving Heffernan’s evidence about the CCC summons even though the latter was first in time. We reject that submission. The primary Judge did not refer to the findings in the draft CCC report in making the findings about Heffernan’s beliefs about the CCC summons. The findings in the draft CCC report were only used (at [39]) to draw the inference that the CCC examination of Heffernan was directed at her conduct.
Counsel for Heffernan argued that the fact that she did not, during the CCC examination, seek to exercise her right to silence on the ground of self-incrimination was a fact that supported her claim that she did not consider herself to be a target of the CCC investigation. We reject that submission. First, s 160(2) of the CCMA provides that a person required by the CCC to answer a question relevant to an investigation is not excused from the requirement to answer on the ground that the answer might incriminate or tend to incriminate them or render them liable to a penalty. Second, Heffernan’s evidence was that she tendered in the CCC a large number of documents that substantiated her answers to questioning. That act supports the inference that she was a target of the CCC’s investigation and, at least by the second day of the examination, if not before, she knew it.
CCC draft report and CCC final report
In an affidavit, Heffernan deposed that, after receiving the draft CCC report, her genuinely held belief was that her responses to the draft report proved that what the CCC was claiming was incorrect. She believed her responses addressed the ‘significant inaccuracies and errors’ in the draft CCC report which resulted in her ‘being seen in a negative and inaccurate light’.
Heffernan’s evidence in cross-examination was as follows:
Did you turn your mind to whether you might need to alert the Law Society to the draft report that you had received from the CCC?---I didn’t, but I now know, in 2022, that it doesn’t matter what you get, you should give it to the Law Society, err on the side of caution. So, at the time in 2019, I didn’t have that knowledge.
HIS HONOUR: And so, did you or did you not turn your mind to it? I assume you’re saying, no I didn’t turn my mind?---No, because I didn’t have the paperwork in front of me. I wasn’t filling it out.
Yes?---And I didn’t know there was any ongoing requirement, and I now do know that in 2022.
…
MR LIVERIS: You have not given evidence in your affidavit to the effect that you’ve just given now. Why?---I disagree. I stated in my second affidavit that had I known I was required to state about the final report, which would be the same as the draft or the summons, I would have done so. I did state that. And that’s my lack of knowledge and I apologise for that.
…
I just – I want to understand, when you said to us now, that had you … known about the requirement to disclose, you would have disclosed them. Why – why do you hold that view now?---Because when I read the paperwork in 2018 and 2019, I looked at the matters that were documented. It didn’t cover matters that were outside of that. I didn’t know I had an obligation to disclose. Had I known I had an obligation to disclose the summons, the draft report, or that I had attended an examination as a witness, I would have disclosed. And in my second affidavit, I made it clear, had I known, when I got the final report that I should have again, communicated with the Law Society, that I would have. But at that time in 2018 and 2019, I did not know that that was a requirement. Now I do know in 2022, that is a requirement.
The primary Judge held (at [40]) that whether or not Heffernan truly believed that she had not been a subject or target of the CCC investigation, she must have realised that she was a target as soon as she read the draft CCC report in late May 2019. She must have realised that the CCC was intending to make a finding of serious misconduct concerning her dishonesty in the creation of false documents. The primary Judge held (at [64]) that, although her evidence as to lack of awareness that her obligations of disclosure were ongoing is not inherently improbable, it was ‘damning in terms of lack of understanding of the professional ethical obligations of disclosure and candour’, and Heffernan’s evidence generally was so unsatisfactory that the Supreme Court did not accept her evidence on this issue.
Counsel for Heffernan criticised these findings on a number of bases. It was argued that the Supreme Court’s rejection of Heffernan’s evidence on this point was infected by the other errors made in assessing her credibility. We have rejected the submissions about other errors, so we reject this submission as well.
Counsel for Heffernan argued that the Supreme Court’s findings were ‘severe’ and ‘emphatic’ by virtue of the use of descriptors such as ‘fanciful’ and ‘spurious’. Such descriptors do not, of themselves, bespeak error. In the absence of any demonstrated error in the primary Judge’s assessment of Heffernan’s credibility, and bearing in mind the primary Judge’s considerable advantages in seeing Heffernan give her evidence, no error is shown. We accept that such findings were warranted, noting also:
(a)the inconsistency between Heffernan’s evidence that she read ss 47 and 11 of the Act before completing her application forms and her evidence that she did not know that it was a requirement for things not listed on the application forms to be disclosed;
(b)the latter evidence given in the face of the forms expressly stating that ss 47 and 11 list matters that can be taken into account, and expressly stating that the things referred to in the forms are by way of example; and
(c)Heffernan’s consistent failures to disclose any of the Department’s disciplinary process and findings, the CCC summonses, the CCC examination, the CCC draft report and, quite incredibly, the CCC final report.
Obtained a practising certificate because of incorrect or misleading information
The primary Judge held (at [25]) that Heffernan’s negative answers on the application forms to the question whether there was any further information relevant to the question of whether she was a fit and proper person, and the declaration that there was no further relevant information not previously disclosed, were untrue and (at [58]) revealed at best a lack of awareness of professional standards and at worst a deliberate false statement.
Counsel for Heffernan argued that the Supreme Court found that Heffernan’s practising certificate had been obtained as a result of incorrect or misleading information. Heffernan’s ground of appeal (Ground 4) refers to the reasons below at [62] to [64]. There is no express finding to that effect, either in those paragraphs or elsewhere in the reasons.
Counsel for Heffernan argued that the matter in s 47(2)(a) is not a matter which enlivens the Law Society’s power in s 56 to amend, suspend or cancel a practising certificate, because the only applicable ground in this matter which enlivens the power in s 56 is whether Heffernan is no longer a fit and proper person to hold a practising certificate. It was argued that s 47 only applies when the Law Society is considering whether to grant or renew a practising certificate.
We reject that argument. Section 56 of the Act sets out three grounds for amending, suspending or cancelling a practising certificate. The first is that the holder is no longer a fit and proper person to hold the certificate (s 56(a)). Section 47(1) provides that s 47 has effect for s 54 (which deals with the grant or renewal of a practising certificate) or another provision of the Act if the question of whether or not a person is a fit and proper person to hold a practising certificate is relevant. Heffernan’s argument completely ignores the italicised words, which clearly capture s 56(a). There is no doubt that s 47(2)(a) is applicable when the Law Society is exercising the power to cancel a practising certificate.
Counsel for Heffernan argued that it is a manifest error to conclude that an applicant is not a fit and proper person to hold a practising certificate and then to say that, because she considered herself fit and proper, her application involved incorrect or misleading information. It was also put that there could be no finding that the information which was not disclosed resulted in the application being incorrect or misleading without first making a positive finding that the allegations concerned were substantiated.
Both of those submissions miss the point entirely. In considering the matter in s 47(2)(a), it is patently clear that, if an applicant for a practising certificate or a renewal of a practising certificate indicates on the application form that there is no further information relevant to the question of whether they are a fit and proper person, and signs the declaration at the end of the form which says that there is no further information relevant to the consideration of this application which has not previously been disclosed to the Law Society, in circumstances where they have failed to comply with their duty of candour and not disclosed a matter required by that duty to be disclosed, it is axiomatic that their practising certificate (once granted) was obtained because of incorrect or misleading information. Such an application is, in the respects just stated, certainly incorrect or misleading. There is no necessity to make a finding that the allegations made against Heffernan were true.
Counsel for Heffernan argued that the finding that Heffernan ‘had erred in disclosure in relation’ to s 11(1)(g) could not be supported. We have already rejected the submission that s 11(1)(g) did not apply.
Counsel for Heffernan argued that the Supreme Court placed reliance on Heffernan’s failure to disclose the CCC final report in concluding the application was incorrect or misleading. No such finding was made.
Ground 4 is not made out.
‘Manifest injustice’ in failing to consider other sanctions?
Counsel for Heffernan argued that the Supreme Court failed to consider any other sanction less than the cancellation of her unrestricted practising certificate. In this regard, the determination to be made by the Supreme Court was whether, at the time the Law Society cancelled Heffernan’s practising certificate, she was no longer a fit and proper person to hold it. If so satisfied, the Supreme Court was required to determine whether to confirm the Law Society’s cancellation of the certificate or make other orders. The other options available to the Court were to suspend the certificate for a period or amend the certificate to add conditions.
The primary Judge referred (at [67]) to the wide power of the Supreme Court under s 89(5) of the Act to make any order it considers appropriate on the appeal. As set out above, that power draws in the Law Society’s dispositive powers under s 57(2)(c). The primary Judge held (at [70]) that from 7 August 2018 to 31 October 2019, Heffernan was not a fit and proper person to hold an unrestricted practising certificate. The primary Judge held (at [66]) that the Law Society’s cancellation of Heffernan’s practising certificate was ‘fully justified’ both at the time and viewed in retrospect, and that Heffernan had failed to persuade the Court that the proven non-disclosures should not have resulted in the cancellation of her practising certificate. In other words, given the finding that Heffernan was not a fit and proper person to hold a practising certificate at the time the Law Society cancelled hers, there was no need to consider the other options available to the Supreme Court under ss 89(5) and 57(2)(c) of the Act. That is because the only appropriate outcome on the basis of the findings made by the Supreme Court was that Heffernan’s practising certificate should have been cancelled as she was not a fit and proper person to hold it.
There was no ‘failure’ to consider other possible orders. The Court was clearly cognisant of the other possible dispositions available to it. Even if there was a failure to expressly address suspension or imposition of conditions, the ‘failure’ was, in the circumstances, no more than a failure to mention and then dismiss them given the finding that Heffernan was not a fit and proper person to hold a practising certificate. No error has been shown. Ground 5 is not made out.
Counsel for Heffernan also put various arguments about the Supreme Court’s refusal to make a declaration that she was, at the time of the hearing, a fit and proper person to hold a practising certificate, asserting a number of errors said to fall within Ground 5. We do not accept that those asserted errors fall within Ground 5, which related to the asserted failure of the Supreme Court to consider suspension or imposition of conditions on Heffernan’s practising certificate. Further, the relief sought by Heffernan on the appeal to the Supreme Court was a declaration that she was a fit and proper person to hold an unrestricted practising certificate for the 2019/2020 year. No declaration was sought that Heffernan was a fit and proper person at the time of the hearing of the appeal.
In any event, the primary Judge held (at [68]) that, in the circumstances of this case, where Heffernan’s 2019/2020 practising certificate would have long expired before the appeal was heard, she had not sought to have the appeal listed before its expiry or to stay the cancellation of the practising certificate, and had not applied for a practising certificate for the years after 30 June 2020, it was not appropriate to consider whether Heffernan was a fit and proper person at the time of the hearing of the appeal. We agree. The Court would not have all of the necessary information before it to make that determination, including what had happened in relation to Heffernan, if anything, since the publication of the CCC final report, and the information required to be provided to the Law Society by an applicant for a practising certificate. Moreover, as the primary Judge held (at [69]), the determination of whether Heffernan was a fit and proper person to hold a practising certificate would require determination of the truth of the adverse findings made against Heffernan in the CCC’s final report because findings by the CCC that serious misconduct has occurred is not, and is not to be taken as, a finding or opinion that a person is guilty of or has committed a criminal offence or a disciplinary offence (s 217A(3) of the CCMA). Whether or not that provision would preclude a decision by the Law Society that Heffernan had committed serious misconduct of that nature when determining whether to grant her another practising certificate is not a matter which falls within the ambit of this appeal.
Counsel for Heffernan argued that the Supreme Court’s approach was incorrect because the correct test is to consider fitness and propriety at the time of the hearing of the appeal, citing New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 at [171]. That case was an appeal to the Court of Appeal from a decision of the Supreme Court allowing an appeal from a decision of a law council to cancel the respondent’s practising certificate because he committed an act of bankruptcy in circumstances which showed he was not a fit and proper person to hold a practising certificate. The Supreme Court ordered that a practising certificate be issued for the period up to the end of the year the cancelled certificate would have run (which was shortly after the decision was handed down). The appeal to the Court of Appeal was dismissed. Counsel for Heffernan relied on the following passage from the reasons of Giles JA (Ipp AJA agreeing) (at [171]):
The determination is of fitness to hold a practising certificate at the time of the determination – s 38FC(1)(b) refers to circumstances that show that the applicant or holder is not a fit and proper person to hold a practising certificate. McClellan J accepted as genuine the respondent’s acknowledgement that he was wrong to delay lodgement of his taxation returns and that he should have addressed his problems at an earlier time. If the respondent were to be judged unfit to hold a practising certificate, it would be because his failings so reflected upon his ability to act in the affairs of his clients that protection of the public warranted cancellation of his practising certificate. [emphasis in original]
That passage does not support the proposition that, in all appeals against cancellations of practising certificates, a Supreme Court is obliged to determine a person’s fitness and propriety to hold a practising certificate at the time of the hearing of the appeal. Indeed, the editor of the law report summarises the proposition for which the case stands in the headnote (citing [28], [105], [107], [171] and [174]) as follows:
The test to be applied when determining fitness to hold a practising certificate in the context of an act of bankruptcy, is not whether the indebtedness which led to the bankruptcy was brought about or associated with dishonest conduct … but whether the circumstances in which the act of bankruptcy was committed are such as to persuade a Council that, at the time of its determination, such person is not a fit and proper person to hold a practising certificate. [emphasis added]
In any event, the Supreme Court in that case found that the respondent’s conduct was wholly different to those who have deliberately and dishonestly avoided their taxation obligations or resorted to bankruptcy in order to minimise their financial obligations to their financial benefit, and so his conduct did not disentitle him to continue to practice.[31] In that case, the practitioner’s conduct did not mean that he was not a fit and proper person to hold a practising certificate. That conclusion was upheld by the Court of Appeal.
That is not the case here. Heffernan’s conduct was such as to render her not a fit and proper person to hold a practising certificate up to the time the Law Society cancelled it, and there were valid reasons why the Supreme Court should not determine her fitness at the time the appeal was heard, including that there was no practising certificate or application therefor on foot.
Counsel for Heffernan argued that, given the primary Judge’s finding (at [64]) that Heffernan ‘now has insight’ into the need to make appropriate disclosures and as to the consequences for failing to do so, there was no protective necessity at the time of the hearing to cancel her practising certificate. We reject that argument, as it was founded on the submissions that Heffernan’s only relevant failure was her failure to disclose the CCC’s final report, and that her failure to disclose was the result of an innocent error of judgement, both of which submissions we have rejected.
Onus of proof

As part of the submissions about Grounds 1 and 3, counsel for Heffernan complained about the Supreme Court’s approach to the burden of proof. None of the grounds of appeal expressly raise the issue of burden of proof.
In any event, we find no error in the Supreme Court’s approach to the burden of proof. The primary Judge held (at [4] and [55]) that the Law Society was required to establish that Heffernan is not a fit and proper person to hold (or continue to hold) a practising certificate, and bore the onus of proof on the balance of probabilities in relation to that ultimate issue in the appeal. The primary Judge held (at [66]) that the Law Society had established that the cancellation of Heffernan’s practising certificate was fully justified, both at the time and in retrospect, and that Heffernan had failed to persuade the Court that the proven non-disclosures should not have resulted in the cancellation of her practising certificate. The latter point was made, to the extent that the evidentiary burden shifted to Heffernan, citing Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [59]. In that case, it was held that once the regulatory authority had established misconduct by the practitioner, the evidentiary burden of proof shifted to her to adduce evidence in relation to the ultimate issue, namely whether she was a fit and proper person (in that case, to remain on the roll of practitioners).
Counsel for Heffernan argued that reliance on that case was misplaced because there was no obligation on Heffernan to disclose the Department’s process and findings, the CCC summons and examination, or the draft CCC report, and the findings in the final CCC report could not be taken as proof of guilt of a criminal offence or a disciplinary offence. Again, that submission rested on submissions we have rejected.
Disposition
None of the grounds in the appeal have been made out. We order that the appeal be dismissed. We will hear the parties as to costs if need be.

_____________________

[1]See Heffernan v Law Society Northern Territory [2022] NTSC 90.

[2] Connop v Law Society Northern Territory [2016] NTSC 38 at [17] per Hiley J and the authorities there cited.

[3] Ibid at [19].

[4]See Briginshaw v Briginshaw (1938) 60 CLR 336.

[5] Connop v Law Society Northern Territory [2016] NTSC 38 at [19] per Hiley J.

[6]Heffernan v Law Society Northern Territory [2022] NTSC 90 at [21], [24]-[26]. The findings made by Addis are described at [7]-[13] of the decision.

[7]Heffernan v Law Society Northern Territory [2022] NTSC 90 at [33]-[35]. The first summons to appear and be examined at the CCC is described at [28]-[32] of the decision, and the examination at the CCC is described at [28]-[32] of the decision.

[8]Heffernan v Law Society Northern Territory [2022] NTSC 90 at [40]. The provision of the draft CCC report is described at [38]-[39] of the decision.

[9]Heffernan v Law Society Northern Territory [2022] NTSC 90 at [44]. The release of the final CCC report is described at [44]-[45] of the decision.

[10] Warren v Coombes (1978-79) 142 CLR 531 (‘Warren v Coombes’) at 537 per Gibbs ACJ, Jacobs and Murphy JJ.

[11] Bara v Blackwell (2022) 374 FLR 150 at [12] per Kelly, Barr and Brownhill JJ and the authorities there cited.

[12] Citing Singer v Berghouse (1994) 181 CLR 201 at 211-212 and Stanford v Stanford (2012) 247 CLR 108 at [36].

[13] Connop v Law Society Northern Territory [2016] NTSC 38 at [18] per Hiley J.

[14] New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 at [113] per Giles JA.

[15] Ibid.

[16] Connop v Law Society Northern Territory [2016] NTSC 38 at [25] per Hiley J, and the authorities there cited.

[17] Ibid at [29].

[18] Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 at [66] per Meagher and Leeming JJA and Emmett AJA).

[19] New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [19]-[20] per Spigelman CJ (Mason P and Handley JA agreeing), cited in Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 at [66].

[20] Connop v Law Society Northern Territory [2016] NTSC 38 at [33] per Hiley J, and the authorities there cited.

[21] Ibid at [34]-[35].

[22] Ibid, citing Re Application by Saunders (2011) 29 NTLR 204 at [6] per Riley CJ.

[23] Ibid at [36].

[24] Re Deo (2005) 16 NTLR 102 at [68] per Martin (BR) CJ.

[25] Ibid.

[26] Ibid.

[27] See Footnotes 6-9 above.

[28] See, for example, Sentencing Act 1995 (NT) s 7.

[29] Prothonotary of the Supreme Court of New South Wales v Da Rocha [2013] NSWCA 151 at [17] per Basten, Meagher and Ward JJA.

[30] Ibid at [18]-[19].

[31] Murphy v Bar Association of New South Wales [2001] NSWSC 1191 at [182]-[183] per McClellan J.