In the matter of an application by Anthea Cartwright

Case •

[2021] NTSC 39

•

28 April 2021

CITATION:In the matter of an application by Anthea Cartwright [2021] NTSC 39

PARTIES:IN THE MATTER OF THE LEGAL PROFESSION ACT 2006

AND

IN THE MATTER OF AN APPLICATION BY

CARTWRIGHT, Anthea

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction

FILE NO:2020-02254-SC

DELIVERED:  28 April 2021

HEARING DATE:  13 April 2021

JUDGMENT OF:  Brownhill J

Criminal Code 1983 (NT) s 297A.

Legal Profession Act 2006 (NT) s 11, 25, 30, 31, 42.

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; Frugniet v Board of

Examiners [2002] VSC 140; In re Deo (2005) 16 NTLR 102; In re Gadd [2013]

NTSC 13; In re Hampton [2002] QCA 129; In re Kickett [2018] NTSC 26; In re OG

(A Lawyer) (2007) 18 VR 164; In re Onyeledo [2015] NTSC 60; In re Saunders

[2011] NTSC 63; In re Shepherd [2007] QCA 83; In re Sutton [2016] NTSC 9; In re

Thomas [2005] 1 Qd R 331; Incorporated Law Institute (NSW) v Meagher (1909) 9

CLR 655, referred to.

REPRESENTATION:

Counsel:

Applicant:J Lawrence SC

Respondent:  F Kepert

Solicitors:

Applicant:North Australian Aboriginal Family Legal Service

Respondent:  Law Society Northern Territory

Judgment category classification:    C

Judgment ID Number:  Bro2110

Number of pages:  25

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

In the matter of an application by Anthea Cartwright [2021] NTSC 39

No. 2020-02254-SC

IN THE MATTER OF:

THE LEGAL PROFESSION ACT 2006

AND:

IN THE MATTER OF AN APPLICATION BY

ANTHEA CARTWRIGHT

CORAM:    BROWNHILL J

REASONS FOR DECISION

(Delivered 28 April 2021)

  1. Anthea Cartwright (‘the applicant’) applied to be admitted as a local lawyer pursuant to s 25 of the Legal Profession Act 2006 (NT) (‘the Act’). Her application was accompanied by an affidavit made by her on 10 June 2020 (‘the first affidavit’). Her application was considered by the Legal Practitioners’ Admission Board (‘the Board’). The Board asked her to provide more information by way of a further affidavit in relation to two criminal offences and seven Centrelink overpayments totalling almost $10,000 disclosed by the applicant in the first affidavit. The Board asked the applicant to provide her Centrelink file in relation to the overpayments. The applicant made a third affidavit on 10 November 2020 (‘the third affidavit’).[1] The third affidavit revealed more detail about the nature of the criminal conduct, contained a copy of the applicant’s Centrelink file, and (relevantly) provided explanations for two of the overpayments.

  2. Pursuant to s 32(1) of the Act, the Board referred to the Court the issue of whether or not the applicant is a fit and proper person to be admitted to the legal profession. The Chairperson of the Board sent a memorandum to the Chief Justice on 20 November 2020 making that referral. The memorandum stated the Board’s concern was that the applicant’s affidavits demonstrated the applicant ‘had not been fully candid in her initial affidavit’ regarding the criminal conduct, ‘had not been honest with Centrelink officers’ and ‘had not been fully candid’ to the Board in relation to the Centrelink debts. In particular, the Board considered the applicant’s explanation of one of the overpayments (‘the Bonya overpayment’) to lack credibility and the applicant’s explanation of another of the overpayments (‘the Kawungan overpayment’) to be inconsistent with the Centrelink records.

  3. Prior to the hearing of the application, the applicant made a fourth affidavit on 9 March 2021 (‘fourth affidavit’), which provides further explanation as to the applicant’s disclosures to the Board about the criminal conduct and the two relevant Centrelink overpayments. In the fourth affidavit, the applicant also disclosed that she had been charged with a further criminal offence that had not been proceeded with.

Relevant provisions of the Act

  1. The Court may admit the applicant if satisfied that: (a) the applicant is eligible for admission; and (b) the applicant is a fit and proper person to be admitted to the legal profession (s 25(2)). There is no issue about the applicant’s eligibility for admission. The Court is to take into account a recommendation of the Board and any representations made by the Law Society (s 25(2)). However, it is for the Court to determine for itself whether the applicant is a fit and proper person to be admitted.[2]

  2. The term ‘fit and proper person’ is not defined in the Act. The Court must, in deciding if a person is a fit and proper person to be admitted to the legal profession, consider each of the suitability matters listed in s 11 of the Act in relation to the person to the extent it is appropriate and any other matter it considers relevant (s 30(1)). Included in the list of suitability matters is whether the person is of good fame and character (s 11(1)(a)). The term ‘good fame and character’ is also undefined in the Act.

Fit and proper person and the obligation of candour

  1. The expression ‘fit and proper person’ takes its meaning from its context, particularly the activities in which the person will be engaged and the ends to be served by those activities.[3] In determining whether a person is a fit and proper person to be admitted to the legal profession, the obligation on the Court is to ensure, so far as possible, the protection of the public from persons who are not suitable for admission.[4] The relevant context for the term ‘fit and proper person’ is members of the legal profession, who ‘the Courts trust to prepare the essential materials for doing justice’, and who must be worthy of public confidence.[5]

  2. The burden rests upon the applicant to satisfy the Court that she is, at this time, of good fame and character and a fit and proper person to be admitted.[6] Where the Law Society opposes the application and asserts the existence of matters adverse to the applicant, the burden rests on the Law Society to establish those matters.[7]

  3. In making the affidavit in support of an application for admission to the legal profession, the applicant is obliged to approach the Board and later the Court with the utmost good faith and candour, comprehensively disclosing any matter that may reasonably be taken to bear on an assessment of fitness for legal practice.[8] The obligation is on the applicant to make candid and comprehensive disclosure regarding anything that may reflect adversely on the fitness and propriety of the applicant to be admitted to practice, which obligation does not permit deliberate or reckless misrepresentation pretending to be disclosure.[9] Full and accurate information must be provided to the Board and the Court by the applicant and it is not sufficient if such information is incomplete, or if the whole of the relevant information only emerges in response to inquiries from the Board.[10] It is for the applicant to disclose every matter that might fairly assist in deciding whether they are a fit and proper person, and revealing less than may be necessary distorts the proper assessment of the applicant and may itself show an inappropriate desire to distort by selection and screening of relevant facts.[11]

  4. The candour of an applicant in the disclosure process is important not only to ensure that all relevant material is before the Court, but also to demonstrate that the applicant has a proper perception of her ethical obligations and is a fit and proper person to practice as a lawyer.[12]

  5. Honesty is a key requirement for admission to the legal profession, which has been described as a profession ‘in which absolute trust must be of the essence’.[13] However, it is not only dishonesty, or deliberate misleading, which affects the assessment of suitability to practice, so will a ‘reckless laxity of attention to necessary principles of honesty’.[14] It has been held that it goes without saying that before one makes a statement that may be misleading, one should check the relevant facts, and to make a misleading statement without doing that is very careless at the least and possibly reckless, even if not wilfully so.[15]

  6. The obligation of candid disclosure is a stringent one,[16] but 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.[17] Of particular importance is the applicant’s motivation for not making the disclosure.[18]

  7. While ultimately it is the responsibility of the applicant to determine the content of their affidavits, it is appropriate and reasonable for applicants to seek the guidance of experienced legal practitioners.[19]

  8. Courts have recognised and taken into account the development of awareness of the need for full and frank disclosure, particularly to the Court, the need to avoid statements that may be misleading, and the need to act honestly and carefully at all times when dealing with others, which occurs over the course of the process of an applicant making an application for admission and having it determined by the Court.[20]

Criminal charges and disclosure issues

  1. Two issues may arise in relation to criminal charges.[21] The first is the fact of the criminal conduct itself – certain criminal conduct may be inimical to fitness to practice as a legal practitioner. The second is the failure to comply with the obligation of candour in relation to the criminal conduct.

  2. The Law Society does not suggest that the applicant’s criminal matters of themselves prevent the applicant from being determined to be a fit and proper person for admission. What is in issue is the applicant’s disclosure about the criminal conduct. The Law Society submitted that the applicant’s description of the assault on her father in her first affidavit differed significantly, and in her third affidavit differed slightly, from the account in the court brief. The Law Society also draws attention to the applicant’s failure to disclose, until recently, that she was charged with an aggravated assault that had not been proceeded with.

    The assault against her father

  3. In the first affidavit, the applicant stated that she had previously been found guilty of two criminal offences in Queensland (first affidavit, [9]). Neither the first offence nor the applicant’s disclosure about it is in issue. As to the second offence, the applicant stated that she pleaded guilty to ‘serious assault person over 60’ committed on 3 February 2017, that she was not convicted and received a community work order of 50 hours and that she was required to be under the supervision of a Correctional Services Officer for 12 months (first affidavit, [10]). The applicant stated:

    This was an assault in which I grabbed the shirt of my father and ripped it, as he was recording me. At the time we were having a family court case regarding custody of my oldest son… I deeply regret what occurred and complied fully with the obligations of my court orders. I also attended counselling to assist me with my anger and the estrangement between my father and I, as he was my primary parent growing up.

  4. In the third affidavit, the applicant provided a copy of the court brief in relation to this offending (third affidavit, Annexure D). This was obtained after the first affidavit was prepared. The court brief includes the facts of the charge, which provide as follows:

    The defendant attended the victim’s residence to collect her children who were their [sic] visiting. During this time the defendant and victim engaged in a verbal altercation over her children visiting the victim.

    During the verbal altercation the victim picked up a video camera in an attempt to record the altercation. The defendant saw this and attempted to grab the camera off the victim. The defendant was unable to grab the camera due to a wooden fence between her and the victim. Instead the defendant grabbed the victim’s singlet he was wearing and started pulling the victim towards her. The defendant pulled with such force she ripped the victim’s singlet and caused him to stumble forward and strike his knee on the fence. The defendant continued to try and take the camera off the victim, eventually causing the camera to fall to the ground.

    The defendant began verbally abusing the victim again before walking around the wooden fence and approaching the victim. The defendant lashed out at the victim slapping and punching him numerous times in the head and chest area and kicking him once in the leg. As this occurred the victim attempted to block the punches before pushing the defendant away.

    The defendant continued to verbally abuse the victim prior to leaving the address.

    …

    As a result of the assault the victim sustained pain to his chest and a minor graze to his knee.

  5. In the third affidavit, the applicant stated (third affidavit, [19]):

    I tried to get the camera off him to stop him from videotaping me. My father moved away in which I grabbed his singlet to pull him towards me to try and get the camera. I had no intention of hitting him, I just wanted the camera. The moment escalated and I pushed my father down, I hit him several times and kicked him as I was not able to get the camera. I then marched back home.

  6. In the third affidavit, the applicant explained the background to the incident, including her difficult relationship with her father, her mental and emotional state prior to and during the incident, and her subsequent efforts to address the underlying causes of her offending behaviour (third affidavit, [12]-[23]).

  7. In the fourth affidavit, the applicant stated that the details she provided about the offending in the first affidavit were based on her memory of the incident, and that she does not recall the specific details of it (fourth affidavit, [23]). The applicant admitted the accuracy of the court brief. The applicant stated that she has trouble recalling the incident because it was an incredibly difficult and traumatic time in her life, which led her to reflect deeply on the relationship she had with her father. She considered the relationship was not healthy or constructive, causing her to cease contact with him in 2017 (fourth affidavit, [24]). The applicant stated it was never her intention to minimise her behaviour or provide the Board with vague, inadequate or misleading information (fourth affidavit, [25]).

  8. In the fourth affidavit, the applicant provided a copy of an affidavit from Tania Collins (fourth affidavit, Annexure H). The applicant worked with Ms Collins during her College of Law placement at the office of the North Australian Aboriginal Justice Agency in Alice Springs. Ms Collins’s affidavit provides information about her discussions with the applicant about the assault against her father. Ms Collins’s affidavit confirms the matters in the fourth affidavit set out in paragraph [20] above.

  9. The applicant gave oral evidence before the Court and was cross-examined by counsel on behalf of the Law Society. In her oral evidence, the applicant accepted that there was significant difference between the description of the offending conduct she had given in her first affidavit and as set out in the court brief, particularly failing to mention that she had punched, slapped and kicked her father in the first affidavit. The applicant agreed that, when preparing her first affidavit, she was aware that it was difficult for her to recall the details of the incident with her father. She explained that she did not then seek the court brief because she did not then understand the level of detail required to be disclosed, and thought that the verdict and judgment record she provided would be sufficient.

  10. There is clearly, as the applicant accepted, significant difference between the applicant’s description of the conduct in the first affidavit and the facts in the court brief. There is also some difference between the applicant’s description of the conduct in the third affidavit and the facts in the court brief. In that regard, the court brief was annexed to the affidavit, which, as the Law Society accepted, rendered the relatively minor difference in the applicant’s description immaterial.

  11. Ultimately, I characterise the applicant’s failure to fully disclose the facts of the offending as an erroneous but understandable error of judgement. It was not a reckless laxity of attention to necessary principles of honesty.

    The aggravated assault charge

  12. In the fourth affidavit, the applicant disclosed that on 8 August 2007, she was charged with aggravated assault against her former partner (fourth affidavit, [62]). The applicant stated that this charge was withdrawn on 11 March 2009, and provided a copy of a certificate issued by the Director of Public Prosecutions pursuant to s 297A of the Criminal Code 1983 (NT) (fourth affidavit, [62], Annexure G).

  13. In the context of criminal charges for which an applicant was acquitted, it has been held that, while full respect must be given to the acquittals and an application for admission as a lawyer is not an occasion to revisit those verdicts, both the applicant’s level of frankness and honesty towards the Board and the Court in relation to the acquitted charges and the applicant’s current character must be considered in light of the acquitted charges.[22]

  14. As to the requirement of disclosure, the Law Society publishes the ‘Legal Profession Admission Guidelines’ (‘Admission Guidelines’) and the ‘Law Admissions Consultative Committee Disclosure Guidelines for Applicants for Admission to the Legal Profession’ (‘Disclosure Guidelines’). The Admission Guidelines make reference to the Disclosure Guidelines and applicants are required to acknowledge that they have read, understood and have had regard to the Disclosure Guidelines in their affidavit in support of their application for admission (Admission Guidelines, [2.1]).

  15. The Admission Guidelines specifically state that the Board considers that any criminal offending, whether resulting in a conviction or a finding of guilt or otherwise, is a relevant matter for the purposes of s 30(1)(b) of the Act (Admission Guidelines, [2.1]).

  16. The Disclosure Guidelines specifically state that applicants may need to disclose any criminal charge, as distinct from a criminal conviction, even if the charge was subsequently withdrawn or the applicant was acquitted (Disclosure Guidelines, [5(c)]). They state that this will depend on the circumstances. They state that if the charge did not proceed for a technical reason, such as the expiration of a time limit, an applicant should disclose it but, on the other hand, if the charge was denied and the matter did not proceed because of an acknowledged lack of evidence, an applicant need not disclose it unless the underlying conduct itself warrants disclosure. They state that applicants should carefully consider whether the facts giving rise to a criminal charge might reasonably be regarded as relevant when assessing the applicant’s suitability for admission.

  17. In accordance with the form of the affidavit in support of applications for admission, the applicant attested that she had read and understood the Disclosure Guidelines (first affidavit, [29]).

  18. In the fourth affidavit, the applicant disclosed that the conduct the subject of the charge that was not proceeded with involved an incident between her and the biological father of her eldest son, with whom she had had a brief relationship (fourth affidavit, [73]-[80]). The conduct comprised the applicant slapping him in the face and biting his hand. The charge was laid after he filed a complaint about that conduct. The charge was not proceeded with.

  19. In light of the conduct the subject of the charge, and given the previous conviction for violent conduct, the applicant should have disclosed the charge.

  20. The applicant’s explanation for her failure to disclose the charge was that Ms Collins advised her that she did not have to disclose it because the matter did not proceed due to a lack of evidence, rather than a mere technicality (fourth affidavit, [62]-[63]). The applicant stated that she mistook Ms Collins’ opinion and guidance as legal advice and acted upon it (fourth affidavit, [65]). The applicant stated that she did not intend to shift responsibility or blame to Ms Collins for her own failure to disclose, but intended to provide context for the court (fourth affidavit, [66]).

  1. Ms Collins’s affidavit confirms her advice to the applicant that she need not disclose the criminal charge and states that the applicant’s ‘failure to disclose or be candid is completely of my doing and influence’ (fourth affidavit, Annexure H, [26]).

  2. The applicant stated she has since gained an understanding of what it means to make candid and comprehensive disclosure regarding anything that may reflect adversely on her application for admission (fourth affidavit, [67]). In her oral evidence, the applicant said she read the Disclosure Guidelines before making the first affidavit and brought them to Ms Collins’s attention, but took Ms Collins’s advice that the charge need not be disclosed. When asked by counsel for the Law Society what she would do in the future if a senior lawyer gave her advice about disclosure, the applicant said she would disclose everything and let the Board decide whether or not something was relevant, rather than decide herself what should or should not be disclosed.

Centrelink overpayments and disclosure issues

  1. Two issues may arise in relation to Centrelink overpayments. The first is the fact of the overpayment itself – obtaining Centrelink overpayments by serious deception and patent dishonesty may be inimical to fitness to practice as a legal practitioner.[23] The second is the failure to comply with the obligation of candour in relation to the Centrelink overpayments.

  2. As to the requirement of disclosure, the Disclosure Guidelines specifically state that an applicant should disclose any overpayment of any kind of Centrelink or social security entitlements at any time, or for any reason, whether or not the applicant has repaid the relevant amount, or whether or not the applicant has been prosecuted in relation to the overpayment (Disclosure Guidelines, [5(a)]).

The applicant’s Centrelink overpayments

  1. The applicant disclosed seven Centrelink overpayments in all, which totalled $9,940.77 (first affidavit, [13]). The Law Society made no submission that the applicant’s explanation for the debts indicated a lack of candour or honesty inconsistent with suitability for admission.

  2. As mentioned above, the Board raised issues with the applicant’s disclosure in relation to two of those overpayments. Those are addressed below. In preparing the first affidavit, the applicant had obtained documents from Centrelink relating to those overpayments and had attached to the affidavit the pages she thought were relevant. She had also contacted Centrelink by phone to have an explanation of the overpayments (first affidavit, [12]). In the third affidavit, the applicant annexed the entirety of the documents obtained from Centrelink relating to the overpayments, comprising 233 pages in total.

The Bonya overpayment

  1. This debt was raised by Centrelink on 27 May 2016 for $3,659.11 because the applicant was overpaid by Centrelink from 12 February to 3 June 2011. The overpayment occurred because her partner’s earnings from Arramwelke Aboriginal Community were not taken into account in the payments.

  2. In the first affidavit, the applicant stated that ‘my partner’s earnings from Arramwelke Aboriginal Community were not correctly recorded to Centrelink’ (first affidavit, [13(a)]).

  3. In the third affidavit, the applicant stated that, in February 2011, she and her husband and children moved to Bonya, an isolated Aboriginal community about four and a half hours from Alice Springs, where her husband obtained work with the Arramwelke Aboriginal Community, and they lived for about three and a half months (third affidavit, [28]-[30]). She stated that she and her husband went to the Centrelink office in Alice Springs in late February 2011 to report his income and their changed circumstances and were advised that Centrelink officers would attend Bonya once a month to take information from residents there and that they should see the officers on their next visit (third affidavit, [30]). She stated that she missed the next visit and saw them the month after, which was mid-April, and that her husband had ‘spent some time with one of the Centrelink staff who visited Bonya’ and they made plans to visit the Centrelink office when they were next in Alice Springs (third affidavit, [30]). The applicant stated they left Bonya and moved to Hervey Bay after about three months, and when they arrived in Hervey Bay, they went to the Centrelink office and ‘corrected all our information’ (third affidavit, [31]). It was then the applicant was told she had incurred an overpayment debt (third affidavit, [31]). The applicant stated (third affidavit, [32]-[33]):

    I can see that this is my word against Centrelink as Centrelink have no record of me or Justin visiting the Alice Springs office or we attending the office at Bonya when Centrelink travelled there…

    From hindsight, I can see I could have been more proactive, by putting in more effort into notifying Centrelink of my changed circumstances. I could have made more phone calls until I reached a service officer to record these changes instead of relying on Centrelink to contact me. I made a mistake. My intention was never to scheme the system or to have financial gain from Centrelink.

  4. In the fourth affidavit, the applicant stated that when making the first affidavit, she genuinely believed she had recalled the events about the Bonya overpayment accurately (fourth affidavit, [28]). After referring to the Centrelink records, the applicant stated that she acknowledged and accepted that her recollection of events does not align with Centrelink’s records (fourth affidavit, [36]). She said it was not her intention to provide misleading or inaccurate information, and that her memory of that time was incorrect (fourth affidavit, [37]).

  5. In her oral evidence, the applicant said that her memory and recollection, even today, is that she did attend the Alice Springs office as she described, and that she and her husband told Centrelink staff at Bonya about her husband’s work. She said that she now accepted that, based on Centrelink’s records, her recollections about that must be wrong.

  6. The Centrelink records show that, in late 2016, the applicant sought a review of Centrelink’s decision regarding the Bonya overpayment.[24] On that review, the applicant had put the position that she put in the third affidavit about attending at the Alice Springs office and then telling a Centrelink officer at Bonya about her husband’s earnings. The Centrelink review concluded that a review of the applicant’s and her husband’s records revealed no evidence to support her claims, and that the overpayment occurred as a result of the applicant not declaring her husband’s employment with Arramwelke Aboriginal Corporation to Centrelink. In her oral evidence, the applicant agreed that, in 2016, she was aware of the outcome of the review and the absence of any Centrelink records supporting her position.

  7. The Centrelink records show that in January 2017, the applicant sought a further review of the Bonya overpayment, again putting her position about having attended at Alice Springs and advising Centrelink staff at Bonya about her husband’s work.[25] The records state that the applicant was given an explanation of Centrelink’s position. In her oral evidence, the applicant agreed that, in 2016, she was aware of the outcome of the review and the absence of any Centrelink records supporting her position.

  8. The applicant agreed that, at the time she prepared the first affidavit, she had the Centrelink records, her knowledge in 2016 and 2017 that there were no records supporting her position about the Bonya overpayment, and that she had received an explanation by phone of the overpayments. She agreed that, in her first affidavit, she had not disclosed to the Board that there were no Centrelink records that supported her position. The applicant accepted that the statement she made in the first affidavit was potentially misleading, and accepted that what she should have done was disclose the fact that there were no Centrelink records that supported her belief that she had told Centrelink about her husband’s work at Bonya. She stated that, if she were to prepare that affidavit again, she would have disclosed that she did not tell Centrelink about her husband’s work at Bonya. She added that she did not mean to mislead but can now see that she had done the wrong thing.

  9. The Bonya overpayment related to a period in 2011. The reviews of the Bonya overpayment were in late 2016 and early 2017. The first affidavit was provided in June 2020 after the applicant had obtained the relevant Centrelink records, and contained an ambiguous and potentially misleading statement about the cause of the Bonya overpayment. The third affidavit was provided in November 2020 and the applicant persisted with her recollection of what occurred. She did, however, acknowledge that there were no Centrelink records to support her position.

The Kawungan overpayment

  1. This debt was raised by Centrelink on 30 May 2016 for $658.85 because the applicant was overpaid by Centrelink from 31 August 2013 to 13 June 2014. The overpayment occurred because she had incorrectly reported her earnings for the period.

  2. In the first affidavit, the applicant stated that ‘my earnings from Kawungan State School was [sic] not correctly recorded by Centrelink despite my fortnightly reporting of my earnings’ (first affidavit, [13(b)]).

  3. In the third affidavit, the applicant stated that each fortnight, when she received her payslip from working at the Kawungan State School, she would take it to the Centrelink office in Hervey Bay to report her earnings (third affidavit, [37]). She stated she did not believe she missed any fortnights because she knew if she missed a fortnight, she would incur a debt (third affidavit, [37]). She stated that subsequently she was asked by Centrelink to provide all her payslips from the School and, after she did so, she was notified that she had a debt (third affidavit, [38]). She stated that she is not sure how the debt was incurred, but there is a possibility she may have missed a fortnight, and, if so, this was purely a mistake and she had no intention to mislead or fail to report earnings (third affidavit, [38]).

  4. In her fourth affidavit, the applicant stated that when she made her first affidavit, it was her genuine recollection of events that she reported her earnings by taking her payslips into the Centrelink office (fourth affidavit, [52]). The Centrelink records show that the applicant sometimes reported her earnings during this period online. The applicant stated she found the Centrelink records difficult to comprehend and she did not recognise or remember that she had reported earnings online (fourth affidavit, [52]). She stated she now accepts that, on the basis of the records, her recollection is not correct (fourth affidavit, [53]). She stated she did not intend to provide inaccurate or misleading information to the Board, nor intend to gain Centrelink benefits to which she was not entitled (fourth affidavit, [51], [54]).

  5. In her oral evidence, the applicant agreed that what she had said in the first affidavit about the Kawungan overpayment was potentially misleading because it suggests that the error was Centrelink’s, rather than a failure on her part to report earnings. Asked what she would say if she had to do it again, the applicant said she would disclose that she did not tell Centrelink of all her earnings during that period.

  6. The Kawungan overpayment related to a period in 2013-2014. The first affidavit was provided in June 2020 and the third affidavit was provided in November 2020. Despite having the Centrelink records, the applicant relied on her memory and potentially implied that the failure was Centrelink’s rather than her own.

Conclusions as to the Centrelink overpayments disclosures

  1. The Centrelink records on the applicant’s file run to 233 pages. Almost all of the relevant records are in the form of computer entries, screen dumps and merge data records and they contain many abbreviations, codes and fields. On balance, the applicant’s failures (as identified in paragraphs [48] and [54] above) to have unearthed the relevant facts from the mass of records, and her mistaken reliance on her memory as a consequence, comprise erroneous but understandable errors of judgement. They do not provide any sufficient basis for a finding that the applicant was dishonest, disingenuous or set out to mislead in her disclosures.

Current understanding of obligation of candour

  1. The applicant attested that since the preparation of the first affidavit, she has gained a genuine understanding of what it means to make candid and comprehensive disclosure regarding anything that may reflect adversely on her application for admission, and to demonstrate that, sought and obtained various documents or histories that she then provided and made further disclosure about those matters (fourth affidavit, [67]-[108]).

  2. From the applicant’s further disclosures in the fourth affidavit and her oral evidence, it is apparent that the process of giving evidence in Court about her disclosures, including being cross-examined in some detail about the Centrelink records and her conduct, will have given the applicant an even greater appreciation of her obligation of candour to the Court and as a legal practitioner. The applicant made proper concessions and did not seek to minimise, or attribute blame elsewhere for, her conduct or her errors. As set out in paragraph [13] above, these matters are relevant to, and can be taken into account for, consideration of the question of whether the applicant is a fit and proper person for admission as a lawyer.

Conclusions

  1. The Board’s concerns that the applicant had not been honest with Centrelink officers and had failed in her obligation of candour, are not borne out by the evidence before the Court. The potentially misleading statements contained in the applicant’s disclosures are properly characterised as erroneous but understandable errors of judgement rather than a deliberate lack of candour to avoid placing before the Board or the Court material she perceived to be adverse to her application but which she knew would be regarded by the Court as significant, or a serious and reckless laxity in her approach to honesty in her application.[26]

  2. I am satisfied that the applicant now understands the importance of the obligation of candour and its inherent requirements for checking the accuracy of facts by reference to reliable evidence, for care and attention to detail, and for caution in language and expression, to ensure full and accurate disclosure of all relevant matters to avoid misleading.

  3. The applicant has established that she is a fit and proper person for admission as a local lawyer under the Act.

  4. Pursuant to s 42(2)(b) of the Act, the Law Society’s costs on this application may be paid out of the Fidelity Fund.

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[1]     The applicant made a second affidavit on 22 June 2020 which relates to a matter not presently relevant.

[2]     In re Saunders [2011] NTSC 63 (‘Saunders’) at [7] per Riley CJ.

[3]     Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 per Mason CJ.

[4]Saunders at [5].

[5]     Incorporated Law Institute (NSW) v Meagher (1909) 9 CLR 655 (‘Meagher’) at 681 per Isaacs J, cited in In re Deo (2005) 16 NTLR 102 (‘Deo’) at [6] per Martin CJ and in Saunders at [5] per Riley CJ.

[6]     Saunders at [8] per Riley CJ.

[7] Ibid.

[8]     Saunders at [6] per Riley CJ, citing In re Hampton [2002] QCA 129 at [26].

[9]     Saunders at [6], citing In re OG (A Lawyer) (2007) 18 VR 164 at [123].

[10]     Saunders at [6], citing In re Thomas [2005] 1 Qd R 331 (‘Thomas’).

[11]     Frugniet v Board of Examiners [2002] VSC 140 at [11] per Pagone J.

[12]     In re Sutton [2016] NTSC 9 (‘Sutton’) at [100] per Hiley J.

[13]Thomas at 335 per de Jersey CJ (McMurdo P and Mullins J agreeing).

[14]     Saunders at [5], citing Deo at [6], citing Meagher at 681.

[15]     Sutton at [108] per Hiley J.

[16]     In re Onyeledo [2015] NTSC 60 at [37] per Kelly J.

[17]Deo at [68] per Martin CJ, cited in Sutton at [101] per Hiley J.

[18] Ibid.

[19]     See Sutton at [60], [61], [66], [122], [127] per Hiley J.

[20]     See Sutton at [128]-[129] per Hiley J; In re Kickett [2018] NTSC 26 at [29], [31] per Graham AJ.

[21]     See In re Gadd [2013] NTSC 13 (‘Gadd’) at [24]-[25] per Blokland J.

[22] Ibid at [25] per Blokland J.

[23]     In re Shepherd [2007] QCA 83 at 1 per de Jersey CJ (Muir and Douglas JJ agreeing).

[24]     Third affidavit, pp 114-117.

[25]     Third affidavit, p 275.

[26]Contrast Deo at [131]-[133].

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Prantage & Prantage (Costs) [2014] FamCA 850
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Frugtniet v Board of Examiners [2002] VSC 140