Hocking v The Law Society of New South Wales

In *Hocking v The Law Society of New South Wales* [1994] NSWCA 136, the New South Wales Court of Appeal considered an appeal by Mr Hocking against a decision of the Supreme Court of New South Wales. The dispute concerned the Law Society's refusal to grant Mr Hocking a fidelity fund certificate, which is a prerequisite for a solicitor to practice. Mr Hocking had been convicted of certain offences, and the Law Society had formed the view that he was not a "fit and proper person" to hold such a certificate.

The primary legal issue before the Court of Appeal was whether the Law Society had erred in its assessment of Mr Hocking's fitness and propriety to hold a fidelity fund certificate, given his prior convictions. This involved determining the correct approach to be taken by the Law Society when considering an application for a certificate by a solicitor with a criminal record, and the weight to be given to the nature of the offences, the time elapsed since conviction, and evidence of rehabilitation.

The Court of Appeal affirmed the principles that the Law Society's discretion must be exercised judicially and that the paramount consideration is the protection of the public. It held that while past convictions are relevant, they are not necessarily determinative. The Court emphasised the need for the Law Society to consider all relevant circumstances, including the applicant's conduct since the conviction, evidence of remorse, and any steps taken towards rehabilitation. In this instance, the Court found that the Law Society had not given sufficient weight to the evidence of Mr Hocking's rehabilitation and his subsequent conduct, and therefore had not exercised its discretion properly.

The Court of Appeal allowed Mr Hocking's appeal, set aside the decision of the Supreme Court, and remitted the matter to the Law Society with a direction to reconsider Mr Hocking's application in accordance with the principles articulated by the Court.