In the matter of an application by Joelon Alex Fincher

Case •

[2021] NTSC 22

•

26 February 2021

CITATION:In the matter of an application by Joelon Alex Fincher [2021] NTSC 22

PARTIES:IN THE MATTER OF THE LEGAL PROFESSION ACT 2006

AND

IN THE MATTER OF AN APPLICATION BY

FINCHER, Joelon Alex

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory Jurisdiction

FILE NO:2020-02312-SC

DELIVERED ON:  26 February 2021

HEARING DATE:  10 February 2021

JUDGMENT OF:  Brownhill J

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 32; In re Deo (2005) 16

NTLR 102; 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; Thomas v Legal Practitioners Admission Board (2005) 1 Qd R 331,

considered.

REPRESENTATION:

Counsel:

Applicant:M Littlejohn

Respondent:  F Kepert

Solicitors:

Applicant:Cozens Johansen Lawyers

Respondent:  Law Society Northern Territory

Judgment category classification:    C

Judgment ID Number:  Bro2106

Number of pages:  28

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

In the matter of an application by Joelon Alex Fincher [2021] NTSC 22

No. 2020-02312-SC

IN THE MATTER OF:

THE LEGAL PROFESSION ACT 2006

AND:

IN THE MATTER OF AN APPLICATION BY

JOELON ALEX FINCHER

CORAM:    Brownhill J

REASONS FOR DECISION

(Delivered 26 February 2021)

  1. Joelon Alex Fincher (‘the applicant’) applied to be admitted as a local lawyer pursuant to s 25 of the Legal Profession Act 2006 (NT) (‘the Act’). His application was accompanied by an affidavit made by him on 16 June 2020 (‘the first affidavit’). His application was considered by the Legal Practitioners’ Admission Board (‘the Board’). The Board asked him to provide more information by way of a further affidavit in relation to, relevantly, the Centrelink overpayment disclosed by the applicant in the first affidavit. The applicant made a second affidavit on 12 August 2020 (‘the second affidavit’). The second affidavit revealed that the applicant had actually incurred four Centrelink overpayments between 2009 and 2014.[1]

  2. The Board then asked the applicant to provide his entire Centrelink file and to make specific reference to the relevant parts of it to explain the four Centrelink overpayments. The applicant made a fourth affidavit on 10 November 2020 (‘fourth affidavit’) which contained a copy of the Centrelink file and provided further information about the overpayments.

  3. 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 that the affidavits demonstrated the applicant “had been initially evasive in respect of Centrelink overpayments in his initial affidavit and was therefore not fully candid” and that “this was perpetuated in various parts of his explanations in subsequent affidavits”.

  4. Prior to the hearing of the application, the applicant made a fifth affidavit on 20 January 2021 (‘fifth affidavit’), which provides further explanation as to the applicant’s disclosures to the Board about the Centrelink overpayments.

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 he 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 which 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 which 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]

  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 his ethical obligations and is a fit and proper person to practice as a lawyer.[11]

  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”.[12] 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”.[13] It has been held that it goes without saying that before one makes a statement which 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.[14]

  6. The obligation of candid disclosure is a stringent one,[15] 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.[16] Of particular importance is the applicant’s motivation for not making the disclosure.[17]

  7. 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, as it has occurred over the course of the process of making an application for admission and having it determined by the Court.[18]

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.[19] The second is the failure to comply with the obligation of candour in relation to the Centrelink overpayments.

  2. As to the fact of the overpayments (which are referred to in greater detail below), the applicant’s evidence is to the effect that the overpayments occurred because he did not pay sufficient attention to his reporting obligations at the time, did not take his obligations as seriously as he should have, did not appreciate the level of responsibility he had, and failed to display attention to detail in complying with those obligations (fifth affidavit, [18]). He also attested that he did not attempt to deliberately mislead Centrelink or claim benefits he knew he was not entitled to; rather, he made immature and careless mistakes and failed, over a number of years, to learn from those mistakes (fifth affidavit, [19]). I note there is no evidence of any prosecution for social security fraud. Indeed, on at least one occasion, Centrelink desisted from imposing any “recovery fee” in relation to the debts because there was a “[r]easonable excuse for misdeclaration”.[20]

  3. The applicant also attested that, during 2008-2012 (the period in which three of the four Centrelink overpayments were incurred), his life was very unsettled and unstable and he suffered a serious knee injury in a motor bike accident which ultimately required surgery (fifth affidavit, [26]-[28]). These matters were put, not to minimise his reporting failures or to avoid responsibility, but in partial explanation of why the failures occurred (fifth affidavit, [30]). I accept the evidence as a partial explanation, along with his youth and immaturity, of his failure to appreciate and take seriously his Centrelink reporting obligations.

  4. I note that the four overpayments occurred when the applicant was aged 22, 23, 24 and 27-28 respectively. It is more difficult to accept the explanation of youth and immaturity for the fourth overpayment, and it did not occur in the period of 2008-2012 referred to above. Nevertheless, I accept the applicant’s evidence that there was no deliberate attempt to mislead Centrelink or claim benefits he was not entitled to, and that the overpayment was the consequence of another careless mistake and a failure to take the reporting obligations sufficiently seriously. The fourth overpayment is addressed further below.

  5. Each of the four overpayment debts has been repaid in full (fifth affidavit, [7], [11], [13], [17]).

  6. The applicant attested that he now has a much greater understanding of his errors and is deeply embarrassed about the conduct (fifth affidavit, [19]). I accept that evidence. Ultimately, I do not consider that the fact that the applicant incurred the four Centrelink debts, between 6 and 11 years ago, renders him not a fit and proper person to be admitted to legal practice.

  7. As to the requirement of disclosure, the Law Admissions Consultative Committee publishes “Disclosure Guidelines for Applicants for Admission to the Legal Profession”, which describe in detail the obligation of candour and 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. In accordance with the form of the affidavit in support of applications for admission, the applicant attested that he had read and understood the Disclosure Guidelines (first affidavit, [24]).

The first disclosure about the Centrelink overpayments

  1. The applicant’s initial disclosure about any Centrelink overpayment was to the effect that, around 2010, he was studying, working and receiving Austudy payments and he was overpaid by Centrelink for about three months (first affidavit, [11(f)]).

  2. It was not until the Board sought further information regarding the circumstances of the overpayment that the applicant made a phone inquiry of Centrelink and was told that he had been overpaid four times across 2009-2014 (second affidavit, [3(a)]).

  3. The applicant’s evidence was that, in preparing the first affidavit, he relied on his own recall of events rather than making inquiries of Centrelink (fifth affidavit, [22]). He attested that, for the reasons set out in paragraph [15] above, he had forgotten about the details of the Centrelink overpayments (fifth affidavit, [25], [29]). He also attested that he was not attempting to deliberately conceal the Centrelink debts from the Board, and honestly did not recall them, other than the one he disclosed (fifth affidavit, [24]). He characterised his failure to obtain the Centrelink file and fully inform himself about the Centrelink debts and their circumstances as a mistake and an oversight on his part, and acknowledged that he should have taken proper steps to verify his recall and belief (fifth affidavit, [24]).

  4. The various disclosures made by the applicant about each Centrelink debt are considered below.

The first Centrelink overpayment

  1. This debt was raised by Centrelink on 5 January 2009 for $4,031.87 because the applicant was overpaid by Centrelink from 17 July 2008 to 4 December 2008. The overpayment occurred because he had enrolled to study and was receiving benefits as a student in 2008, but he ceased the studies during 2008 due to his knee injury, which meant he was not entitled to the benefits. He had not informed Centrelink that he had ceased studying and being enrolled, so he continued to receive the benefits for that period.

  2. The Centrelink records show that the applicant had received the Centrelink benefit known as Youth Allowance on a number of occasions prior to 2008 because he was, on those occasions, a full time student, and that, on more than one occasion, payment of the benefit had ceased after he or his parent had notified Centrelink that he had stopped studying.[21] The applicant agreed that he would have been provided, on more than one occasion, with information from Centrelink to the effect that, if his circumstances change, he must tell them about the change, and that this included if he stopped studying. I note that those records were from 2004-2006, when the applicant was 18 and 19 years old.

  3. The Centrelink records show that the applicant applied for Youth Allowance on 5 March 2008.[22] On that date, he informed Centrelink by phone that he intended to study a Bachelor of International Studies.[23] On 15 April 2008, his application for Youth Allowance was approved on the basis that he was a full time student at Flinders University.[24] The applicant’s evidence was that his knee injury occurred in first semester 2008 which meant he could not complete first semester and was unable to attend to study in second semester (second affidavit, [3(a)(i)]).

  4. The Centrelink records show that, on 29 August 2008, the applicant’s enrolment in the second semester of that course was discontinued.[25] The applicant’s oral evidence was that he obtained a medical certificate to allow him to “backdate” his withdrawal from his first semester subjects without fail. His academic transcript confirms withdrawal from those first semester subjects (first affidavit, p 12). Given the commencement date of the overpayment of 17 July 2008, the applicant’s withdrawal must have been backdated to that date. It therefore is appropriate to infer that the applicant both withdrew from his first semester subjects and discontinued his enrolment from his second semester subjects on 29 August 2008.

  5. The Centrelink records show that, on 9 October 2008, the applicant contacted Centrelink and the following communication is recorded:[26]

    cus[27] has started work but has stated that he has an agreement with his uni that as he has an injury he won’t be able to attend uni but will take on extra study load when fit to return. cus stated they’re still classed as a full time student as per uni. put cus on 2 we reporting and entered cus’s earnings that he had to declare. adv cus that if it turns out that he’s not classed as a full time student then he may incur a debt. set cus up with self service to help with reporting.

  6. The applicant attested that, during this time, he believed, albeit erroneously, he was entitled to continue receiving Centrelink benefits while his studies were “deferred” because he would be continuing his studies in second semester (fifth affidavit, [5]).

  7. The Law Society submits that the applicant’s positive statement about his past belief is “problematic” because the past belief cannot be accepted as being genuinely held, given what the Centrelink records show. It submits that the applicant must have known he was obliged to tell Centrelink when he stopped studying (which occurred in first semester), and when he withdrew from his first semester subjects and discontinued his enrolment in his second semester subjects (which occurred on 29 August 2008), at which point he stopped being a full time student, and could not plausibly have held the belief that he was still classed as a full time student.

  8. The Centrelink record in paragraph [29] above confirms that the applicant posited this belief at the time. The applicant’s evidence, which was not challenged, was that, during the aftermath of his accident and injury (which coincides with this period), he was suffering considerable pain, was heavily medicated, was struggling to work to sustain himself financially, and was awaiting surgery to repair the injury to his knee (fifth affidavit, [27]). Further, as set out in paragraph [15] above, the applicant was 22 years old and did not take as seriously as he should have his reporting obligations to Centrelink. I find that such an attitude would be quite common amongst young people in their late teens and early 20s. Such a person’s understanding of, and beliefs about, their Centrelink entitlements and their obligations are likely to be vague, patchy, shallow and, given the hubris and self-righteousness exhibited from time to time by some young people, slanted in favour of entitlement rather than obligation. It is not, to my mind, implausible that such a person, in the applicant’s particular personal situation, who had been studying, wanted to keep studying, was unable to do so because of an injury, and intended to re-commence their studies as soon as they were physically able, could understand the concepts of “withdrawal” and “discontinuance” as “deferral” such that they understood their status continued to be that of a full time student. That the applicant’s understandings and beliefs were so is, to my mind, confirmed by the fact that he persisted with his position despite being warned on 9 October 2008 that, if he turned out not to be a full time student, he would incur a Centrelink debt for overpayment.

  9. Given the overarching context I have described, I do not think it implausible that the applicant genuinely held the belief and I accept that he did so. It follows that the applicant’s ongoing disclosure of the belief he held in 2008 (which he acknowledged was erroneous) did not misrepresent the position or disclose a lack of candour.

The second Centrelink overpayment

  1. This debt was raised by Centrelink on 21 September 2010 for $2,795.55 because the applicant was overpaid by Centrelink from 25 March to 14 July 2010. The overpayment occurred because he had incorrectly reported his earnings for the period.

  2. The Law Society submitted that there is variation between the applicant’s explanation of how this occurred as between his second, fourth and fifth affidavits. In his second affidavit ([3(a)(ii)]), the applicant attested that he set up “automatic payments”[28] and was mistakenly underreporting his earnings, which “may have occurred from recording the weekly amounts and not fortnightly amounts”. In his fourth affidavit ([2(c)(ii)]), the applicant attested that, as outlined in his second affidavit, he “reported the weekly amount and not the fortnightly amount”. In his fifth affidavit ([9]), the applicant attested that when he set up the automated reporting function to report his fortnightly earnings his hours were consistent, but after a few months they began to change and increase, and he failed to update the reporting function to reflect these changes.

    Explanation that mistakenly reporting weekly as opposed to fortnightly income led to under reporting

  1. As to the explanation that the overpayment “may” have occurred because the applicant was reporting his weekly income as his fortnightly income, the Centrelink records show that this was not the case. Rather, they show substantial discrepancies between the reported income earned for the period and what it actually was. For example, for the five fortnights between 6 May 2010 and 14 July 2010, the applicant reported earned income of $320, $150, $200, $122 and $200 whereas he actually earned $954, $647, $977, $1160 and $807.[29]

  2. The applicant’s evidence was that the explanation (reporting weekly income as fortnightly) was suggested to him by the Centrelink officer he spoke to on the phone before preparing his second affidavit. I think it unlikely that, in providing the information by phone referred to in the second affidavit, the officer would have interrogated the Centrelink records to the extent to which counsel for the Law Society, Ms Kepert, did to identify the reporting differences referred to in paragraph [36] above. I therefore accept that this explanation for how the overpayments arose was proffered to the applicant by the Centrelink officer.

  3. This explanation was also given in the fourth affidavit, which was drafted after the applicant had obtained and reviewed the Centrelink file. The explanation is not borne out by the records. The applicant conceded this in cross-examination. I deal with the applicant’s consideration and use of the Centrelink records in paragraph [63] below.

    Explanation that fluctuation or increase of working hours contributed to under reporting

  4. The explanation in the second affidavit that the applicant’s working hours, and therefore his income, fluctuated, and that this contributed to the under-reporting of income, is not borne out by the Centrelink records. The applicant conceded this in cross-examination. The explanation was given on the basis of the applicant’s memory, not by reference to the records which (as set out in paragraph [23] above) he now accepts was a mistake, and was not persisted with thereafter.

  5. Similarly, the explanation in the fifth affidavit that the applicant’s hours had been initially consistent but after a few months began to increase is, again, not borne out by the Centrelink records. The applicant conceded this in cross-examination. The applicant’s evidence was that, in making this statement, he was relying on his memory of what he had done which (as set out in paragraph [23] above) he now accepts was a mistake. I deal with the applicant’s consideration and use of the Centrelink records in paragraph [63] below.

Explanation that use of automatic reporting function led to under reporting

  1. The explanation in the second, fourth and fifth affidavits about reliance on the automatic reporting function is not borne out by the Centrelink records. Those records show that the applicant was, at the relevant time, reporting his income to Centrelink by phone or in person.[30] The applicant conceded this in cross-examination. The applicant’s evidence was that, in making this statement, he was relying on his memory of what he had done which (as set out in paragraph [23] above) he now accepts was a mistake. I deal with the applicant’s consideration and use of the Centrelink records in paragraph [63] below.

  2. Taking into account the matters addressed in paragraph [63] below, while the above variations in explanation indicate a lack of care and attention to detail in the preparation of the second and fourth affidavits, they do not provide any sufficient basis for a finding that the applicant was dishonest, disingenuous or set out to mislead in his disclosures.

    Applicant’s statements regarding reporting overpayment

  3. In his initial disclosure (first affidavit, [11(f)]), the applicant stated as follows:

    For close to 3 months I was being over paid by Centrelink. I took it upon myself to inform Centrelink and after disclosing to Centrelink my current income through my part time work it was determined I had received overpayment of my Austudy payments. I immediately entered into a repayment plan with Centrelink and repaid the amount owing. I took it upon myself to disclose to Centrelink and rectify the overpayment. I was 23 years of age at this time and I understood the severity of being overpaid social security benefits which is why I rectified the situation as quickly as possible. [emphasis added]

  4. In response to this, the Board asked the applicant to address why it took him three months to report the overpayment. The applicant’s response was the information in the second affidavit referred to in paragraph [35] above, and the statement that “I did not disclose to Centrelink earlier because I was young and immature”. I do not accept that this is an admission that the applicant was aware of the overpayment for the period of three months and failed to disclose it. Rather, the applicant identifies the period of overpayment, and the statement that he took it upon himself to inform Centrelink is a reference to what follows, not what precedes, the statement, ie he took it upon himself to inform Centrelink of his income, not the fact of overpayment.

  5. The applicant’s statements that he “took it upon himself” to report or rectify the overpayment are not borne out by the Centrelink records, which show that, on 22 April 2010, the applicant was sent a letter from Centrelink headed “Cancellation of your youth allowance”, which stated that “[y]our youth allowance has been cancelled from 25 March 2010 because you have not reported”.[31] There is also a record of the applicant’s attendance at a Centrelink office on 28 July 2010, where he discussed the cancellation of the youth allowance with a Centrelink officer.[32] The record states:

    Payment had been cancelled NRV and appeared to be related to a review issued in March. Cust had provided payslips for employer Dangerous Goods International. These payslips show gross fortnightly income which does not correspond to income declared. Updated EANS based on payslips provided. Cust has been advised of potential debt. Payslips batched at BRU 28/7/10

  6. The applicant conceded in cross-examination that his statements were not borne out by the Centrelink records. He also conceded that he had made the statements because he thought it was important that it was he who had reported the matter to Centrelink rather than it being Centrelink who had raised the issue with him. When the statements were made, the applicant was relying on his memory of what occurred.

  7. Notwithstanding the admitted motivation for the statements, they were made on the basis of the applicant’s memory, not by reference to the records which (as set out in paragraph [23] above) he now accepts was a mistake, and were not persisted with thereafter. They do not provide any sufficient basis for a finding that the applicant was dishonest, disingenuous or set out to mislead in his disclosures.

The third Centrelink overpayment

  1. This debt was raised by Centrelink on 8 July 2011 for $379.80 because the applicant was overpaid by Centrelink for a week after ceasing studies on 28 August 2010. The overpayment occurred because the applicant did not inform Centrelink that he had ceased studying.

  2. About this payment, the applicant initially attested that “I assume this went undetected by both myself and Centrelink for a long time which explains the 3 year gap before I repaid the amount” (second affidavit, [3(a)(iii)]). That assumption is not borne out by the Centrelink records, which show that the debt was raised on 8 July 2011 and Centrelink wrote to the applicant notifying him of it on the same day.[33] The debt came due on 8 August 2011 and a reminder was sent on 12 August 2011. The applicant did not commence repayments until 30 April 2013.

  3. When preparing the second affidavit, the applicant had not then sought or obtained his Centrelink file. He was relying on information provided to him by Centrelink by phone and upon his memory. As set out in paragraph [23] above, he now accepts that this was a mistake.

  4. In his second affidavit ([3(a)(iii)]), the applicant attested that the overpayment was due to “discontinuing study and not informing Centrelink immediately after” doing so. In his fifth affidavit ([12]), the applicant attested that the overpayment occurred because he had “ceased studying and had failed to inform Centrelink before the payment was made”. The applicant gave similar evidence in his evidence in chief. The Law Society put to him that these statements imply that the applicant did inform Centrelink that he ceased studying, but simply did not do so soon enough. The applicant conceded this in cross-examination.

  5. The implication is not borne out by the Centrelink records. Again, the applicant conceded this in cross-examination. They show that the applicant ceased studies on 28 August 2010, had failed to inform Centrelink of that fact, and was paid up to 8 September 2010.[34] They also show Centrelink became aware of the fact because of notification from the educational institution, not the applicant.[35] I deal with the applicant’s consideration and use of the Centrelink records in paragraph [63] below.

  6. In my view, taking into account the matters addressed in paragraph [63] below, these matters do not provide any sufficient basis for a finding that the applicant was dishonest, disingenuous or set out to mislead in his disclosures.

The fourth Centrelink overpayment

  1. This debt was raised by Centrelink on 10 September 2014 for $1,500.56 because the applicant was overpaid by Centrelink for the period 14 September 2013 to 29 August 2014. The overpayment occurred because his earnings from a second casual job had not been reported for that period.

  2. The applicant attested that he “failed to correctly report to Centrelink that he had earned income from a second casual job”, that he accepted that his “failure to report [his] income properly and accurately from this employment” caused him to receive benefits to which he was not entitled, and that he “had informed Centrelink that [he] had two employers and did not attempt to conceal this fact”, but “simply failed to report the income properly, accurately, and consistently from [his] second employer” (fifth affidavit, [14]-[16]).

  3. The Centrelink records show that the applicant did inform Centrelink that he had two employers, the second being an employer called “The Tasting Team”.[36] That record shows that, on 10 September 2014, the applicant contacted Centrelink, and that the applicant “forgot to report earnings” for The Tasting Team. The record includes the notations “New Employer Recorded” and “Earnings Commenced for Customer”. The record shows the applicant disclosed earnings of $200 gross per fortnight commencing on 29 August 2013. The records show that, for the duration of the period 14 September 2013 to 29 August 2014, the applicant had not disclosed to Centrelink any of the income he received from The Tasting Team.[37] The applicant conceded this in cross-examination.

  4. The Law Society submitted that the applicant’s statement in the fifth affidavit implies that he had properly disclosed to Centrelink (at the relevant times) some of his earnings from that employer, but that he had failed to disclose all of them. The applicant conceded this in cross-examination.

  5. Despite the concession, what the applicant said in his fifth affidavit was consistent with the fact that he did inform Centrelink that he had a second job, and he did report the income from this job to Centrelink, albeit a substantial period after the income was earned. His very late reporting of the fact and the income can, reasonably, be described as a failure to report the income “properly, accurately and consistently”, ie as and when it was earned and required to be disclosed.

  6. The Law Society also argued that the applicant’s explanation in his fourth affidavit ([2(c)(iv)]) about working irregular hours with a two hour shift every few weeks and the overpayment amount equating to one shift per month was similar to the implication referred to in paragraph [57] above, ie misleading as suggesting there was proper disclosure about some of the income from those shifts, but not all. However, the explanation is, as is consistent with what I have said in paragraph [58] above, not misleading. It explains that the applicant failed to report the income as and when it was earned.

  7. In my view, these matters do not provide any sufficient basis for a finding that the applicant was dishonest, disingenuous or set out to mislead in his disclosures.

Current understanding of obligation of candour

  1. The applicant attested that his application for admission has taught him that his past conduct, comprising lack of attention to detail and poor reporting, has created a situation where his character and fitness to practise law has come under scrutiny (fifth affidavit, [31]). He attested that he now understands the importance of attention to detail and his moral obligations as a person and a future practising lawyer (fifth affidavit, [31]). He attested that through the admission process he now has a deeper understanding of the importance of the obligation to be candid and frank, irrespective of self-interest or embarrassment, and has learnt much more about his duty to the Court (fifth affidavit, [32]).

  2. The Law Society argued that care should be exercised in accepting these statements, given the many statements in the fifth affidavit which were not borne out by the Centrelink records, and the applicant’s tendency to “over egg the pudding”, that is, to place a gloss on the facts to shed a better light on his conduct.

  3. At the outset of his cross-examination, the applicant attested that, given what he had learned through the admission process about his obligation of candour, he was satisfied that he had given, in his fifth affidavit, full and frank disclosure of the matters relating to his Centrelink debts and, in particular, that he had checked through the Centrelink records and was satisfied that what he said in the fifth affidavit was accurate. At the end of his cross-examination, the applicant attested that he had concerns that what he had attested to in his fifth affidavit was not full and frank disclosure of the matters relating to his Centrelink debts. He attested that he had read all of the Centrelink records in the file, and attempted to bring everything relevant to the Court’s attention, but he had not seen the detailed information in the Centrelink records that Ms Kepert had taken him to, and he found the records very difficult to understand and digest. The Centrelink records on the applicant’s file run to 1,993 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. Ms Kepert accurately described the records as “overwhelming”. On balance, the applicant’s failures (as identified in paragraphs [38], [40], [41] and [52] above) to have unearthed the relevant facts from the mass of records, and his mistaken reliance on his memory as a consequence, comprise erroneous but understandable errors of judgement.

  4. The applicant’s counsel argued that the process of giving evidence in Court about his disclosures, including being cross-examined in fine detail about the Centrelink records and his conduct, will have given the applicant an even greater appreciation of his obligation of candour to the Court and as a legal practitioner. I accept that submission because the applicant made proper concessions and did not seek to minimise, or attribute blame elsewhere for, his conduct or his errors. In addition, I infer that the applicant now also has a proper understanding, having seen it firsthand in the course of these proceedings, of the degree of detail invoked by the phrase “attention to detail”.

  5. 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 was evasive in his disclosures, and any suggestion that the applicant deliberately failed in his obligation of candour, are not borne out by the evidence before the Court. The inaccuracies and glosses contained in the applicant’s disclosures to the Board 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 he perceived to be adverse to his application but which he knew would be regarded by the Court as significant, or a serious and reckless laxity in his approach to honesty in his application.[38]

  2. In particular, in regards to the initial disclosure that the applicant had received a single Centrelink overpayment, when in fact he had received four Centrelink overpayments across the period 2009 to 2014, adequate explanation has been provided both as to the applicant’s error of judgement in relying upon his memory when making the initial disclosure and as to why his memory was erroneous.

  3. I am satisfied that the applicant now understands the importance of the obligation of candour and its inherent requirements for checking the accuracy of the facts by reference to reliable evidence, for the utmost 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.

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

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[1]     The applicant made a third affidavit on 13 August 2020 which relates to a different 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 Thomas v Legal Practitioners Admission Board (2005) 1 Qd R 331.

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

[12]In re Thomas [2005] 1 Qd R 331 at 335 per de Jersey CJ (McMurdo P and Mullins J agreeing).

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

[14]     Sutton at [108] per Hiley J.

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

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

[17] Ibid.

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

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

[20]     Fourth affidavit, p 1766.

[21]Fourth affidavit, pp 1680, 1683, 1690, 1692, 1696.

[22]     Fourth affidavit, p 1669.

[23]     Fourth affidavit, p 1668.

[24]     Fourth affidavit, p 1665.

[25]     Fourth affidavit, p 1962. This record is of a notification from the educational institution to Centrelink about the applicant, not a notification from the applicant himself.

[26]Fourth affidavit, p 1662.

[27]     ‘Cus’ is taken to be short form for the word ‘customer’.

[28]     This was an erroneous reference to an automated reporting system.

[29]Fourth affidavit, pp 307, 311, 1622.

[30]     Fourth affidavit, pp 1618, 1619, 1620, 1621.

[31]     Fourth affidavit, p 346.

[32]     Fourth affidavit, p 1767.

[33]Fourth affidavit, p 1742.

[34]Fourth affidavit, p 1743.

[35]Fourth affidavit, p 1743.

[36]     Fourth affidavit, p 1728.

[37]     Fourth affidavit, pp 1727, 1795.

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

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Prantage & Prantage (Costs) [2014] FamCA 850
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Re Hampton [2002] QCA 129