In the matter of an application by Micah Kickett

[2018] NTSC 26

CITATION:In the matter of an application by Micah Kickett [2018] NTSC 26

PARTIES:IN THE MATTER OF THE LEGAL PROFESSION ACT 2006

AND

IN THE MATTER OF AN APPLICATION BY

KICKETT, Micah Raymond

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:LP 26 of 2017 (21753999)

DELIVERED:  18 April 2018

DELIVERED AT:  Darwin

HEARING DATE:  18 April 2018

JUDGMENT OF:  Graham AJ

CATCHWORDS:

LEGAL PRACTITIONERS (NORTHERN TERRITORY) – application for admission to practice – Admission Board referred the question of the applicant’s fitness to the Court for decision – suitability matters – academic dishonesty – failure to initially disclose details of academic dishonesty – credibility of applicant – applicant established that he is a fit and proper person.

Legal Profession Act, s 4(2), s 11, s 11(1)(ga), s 25(2)(a)(1), s 25(2)(b), s 29, s 32(1).

In the matter of an application by Andrew Hewitt Giles [2014] NTSC 30, Re Deo (2005) NTLR 102, Re Sutton [2016] NTSC 9, Wentworth v New South Wales Bar Association [1992] 176 CLR 239, referred to.

M. Wyburn, Disclosure of Prior Student Academic Misconduct in Admission to Legal Practice QULTJ Volume 8 No 2 Page 314.

REPRESENTATION:

Counsel:

Applicant:D McConnel

Law Society:  JW Roper

Solicitors:

Applicant:

Law Society:  L Powderly

Judgment category classification:    B

Judgment ID Number:  GRAH1801

Number of pages:  10

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

In the matter of an application by Micah Kickett [2018] NTSC 26

No. LP 26 of 2017 (21753999)

IN THE MATTER OF:

THE LEGAL PROFESSION ACT 2006

AND:

IN THE MATTER OF AN APPLICATION BY

MICAH RAYMOND KICKETT

CORAM:    GRAHAM AJ

REASONS FOR JUDGMENT

(Delivered 18 April 2018)

Introduction

1. Micah Raymond Kickett made application for admission to the legal profession on 17 November 2017. The Legal Practitioners Admission Board considered the application on 28 November 2017. It deferred the application to its next meeting which was to be on 20 February 2018. The Board required a certificate from Edith Cowan University. This was a minor scholastic requirement. A supplementary affidavit had to address the issue.

2. Subsequently Mr Kickett wrote a letter to the Legal Practitioners Admission Board prior to their determination. In that letter, he referred to his original application and noted that in the affidavit in support he had stated, ‘I have not been found to have engaged in academic dishonesty’. Mr Kickett went on to say that he had obtained a document from the University of Western Australia regarding an allegation of academic misconduct made in 2012 which was determined to be an instance of academic misconduct. He enclosed a copy of the document. Mr Kickett then said that he intended to file further affidavits to explain the situation.

3. The Admission Board dealt with the application on 21 of February 2018. The Board resolved to refer determination of whether the applicant is a fit and proper person to be admitted to the Supreme Court pursuant to s 32(1) of the Legal Profession Act 2006.

4. It is this application that comes before me.

5. The Law Society of the Northern Territory (LSNT) appeared at the hearing, not as a contradictor but rather in the role of an amicus curiae. Counsel for the LSNT noted that the applicant carries the burden of establishing that he is a fit and proper person for admission under the act. The LSNT noted that counsel was not going to cross examine the applicant, nevertheless it was submitted that he ought to give oral evidence explaining his position. I agreed with this approach.

6. The legislative background is that an order for admission is made by the Supreme Court if it is satisfied in respect of two matters. The first matter is that the applicant ‘is eligible for admission to the legal profession’. This is pursuant to s 25(2)(a)(1) of the Act. The second criterion is that the applicant is a fit and proper person to be admitted to the legal profession pursuant to s 25(2)(b) of the Act.

7. The actual eligibility requirements for admission are essentially educational requirements. These are set out in s 29 of the Act. It seems that the Board had no issue in respect to the applicant’s eligibility and its concern was in respect of the suitability requirements.

8. The Court must be satisfied that the applicant is suitable to be admitted. This involves the Court considering each of the suitability matters referred to in s 11. These are an omnibus of suitability matters, including in particular the character of the applicant and his right to practice.

9. However, more particularly in this case the issue is contained in s 11(1)(ga) and that is whether the person has been found to engage in academic dishonesty (including, for example, plagiarism).

10. The applicant had filed a number of affidavits in support of his application for admission but it is the third affidavit (sworn 14 February 2018) which is the matter of concern. The Board did not consider that the applicant was being frank in his application and resolved to refer determination of whether the applicant is a ‘fit and proper person’ to the Supreme Court.

11. In his first affidavit, the applicant claimed that he had been not found to engage in academic dishonesty. However, in his third affidavit (the affidavit of 14 February 2018) it is evident that he had been alert to a finding of plagiarism but decided not to disclose it.

12. The applicant said as follows:

    During the drafting process, I highlighted paragraph 23 in red on my draft affidavit as I recall an incident that occurred in 2012 where I received a zero grade for an assignment for failing to attribute sources of the words used (referred to in this affidavit as the ‘the 2012 incident’). I highlighted the paragraph red as a reminder to investigate if this applied to me, that is, if the 2012 incident amounted to academic dishonesty and hence needed to be disclosed.

13. In fact, the applicant was the subject of an allegation of academic misconduct in a unit of study for his arts degree. The nature of the misconduct was plagiarism. The applicant failed to attribute words from source articles by the use of quotation marks in an essay. It is to be noted that the actual sources were attributed. Subsequently, he attended a meeting with the Associate Dean. The allegation of plagiarism was upheld and the applicant received a zero mark for the essay. The consequence was that he failed that subject.

14. It is submitted on his behalf that he did not contest the allegation. He accepted that he had not properly referenced sources and he acknowledged he had made a stupid mistake. He also did not appeal the penalty.

15. The Board’s specific concerns were that in paragraph 8 of the same affidavit to which I have previously referred, the applicant did not associate the finding of plagiarism against him with the requirement to disclose any academic misconduct. In fact, Mr Kickett went on to say in that same affidavit that at that time he felt satisfied the matter was not something that amounted to academic dishonesty and that it was not sufficiently serious that disclosure was necessary. It is an understatement to say that was simply wrong.

16. It almost goes without saying that the Board was well entitled to accept that the applicant’s claim, that it was not sufficiently serious to warrant disclosure, was unreasonable. The applicant had gone on to say in this lengthy affidavit of 14 February that in determining whether the 2012 incident was something that required disclosure, his motivation was not to try and hide it, but to not inundate the Board with irrelevant or trivial matters. This could well be viewed as disingenuous. In fact, the finding of academic misconduct itself refers to plagiarism. In addition, there was a chain of emails which has been also annexed to the third affidavit of the applicant which makes it clear that the misconduct alleged plagiarism

17. The Board, having not been satisfied of the applicant’s credibility and not being content to accept his explanation, quite properly in my view, thought it preferable that his credibility be tested through the court process and referred the matter to the Supreme Court.

18. The matter came before me for a pre-trial hearing on 28 March 2018 and the LSNT was joined as a respondent to the proceedings. The Court had the opportunity to appoint counsel assisting. However if the LSNT was joined this would be unnecessary. The LSNT has filed no material opposing the application.

19. The applicant is represented by counsel who has made careful and skilful submissions on his client’s behalf. In addition, there is affidavit material. He has filed an affidavit from Gabrielle Garrett who is an academic coordinator at the University of Western Australia. Ms Garrett says that she had a conversation with the applicant in late 2017 and he asked her about the plagiarism incident. She told him that she did not think it was recorded because it was a first offence. This hardly seems to me to be of much assistance to the applicant, as whether it was recorded or not is not the point. The point is whether it was plagiarism.

20. Counsel for the LSNT helpfully points out the method of determination by the Board and makes certain criticisms of its reasoning. In the end, any misconceptions of evidence by the Board, albeit minor, make no difference. The fact is the applicant should have disclosed the plagiarism irrespective of whether there was any formal finding or not. Plagiarism is clearly academic dishonesty and the applicant should have, in the first place, disclosed it. Justice Hiley in Re Sutton[1] said ‘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 or her ethical obligations and is a fit and proper person to practice as a lawyer’.

21. Counsel for the Society fairly points to the fact that the present case can be contrasted with Re Sutton and a number of other cases that have come before this Court in recent years in that this applicant has made his disclosures voluntarily rather than in response to queries from the Board and in advance of the decision. At the heart of the LSNT’s submission is that this is a case where the failure to disclose ought to be considered an erroneous but understandable error of judgement.[2]

22. Robert Stanley Anderson Pocock has filed an affidavit of 9 April 2018. Mr Pocock refers to a conversation on 28 November 2017.[3] It was he who told the applicant that he ought to have disclosed the finding of academic misconduct. Subsequently, Mr Pocock indicates that the applicant found the email trail which was later annexed to his lengthy affidavit.

23. Counsel for the LSNT pointed to the fact that the email chain appearing as an annexure to the applicant’s lengthy affidavit was located readily on his mobile phone, in answer to queries raised by Mr Pocock. This raises the question as to why the applicant had not cause to consider this chain at some earlier time.

24. In my view, the most supportive and helpful affidavit that has been filed on behalf of the applicant is that of Craig Anthony Smyth who is the Director of the litigation division within the Solicitor for the Northern Territory. He has employed the applicant as a graduate clerk since early 2017 and has found him to be likeable and open. Mr Smyth noted that the applicant had won the Young Lawyers National Golden Gavel competition. He said he was a proud indigenous man and the Department seeks to provide opportunities for indigenous graduates and notes that the Department has offered the applicant employment as a graduate solicitor. He is of the view that the decision not to disclose the incident came from a misguided belief that the matter was not sufficiently serious to warrant disclosure. Most saliently, Mr Smyth says that the Solicitor for the Northern Territory is willing to keep his position open for him, notwithstanding the delay in his admission to practice.

25. Whatever the situation was in the past, it seems to me that the applicant now understands the precarious position that he is in. I do not agree with his counsel that one can characterize Mr Kickett’s conduct as simply an innocent mistake. I would prefer to describe it as an error of judgement.

26. I do conclude that he certainly now appreciates the error of his ways and recognises that admission to practice in this profession is not simply a rubber stamp but a decision that bears with it all the responsibilities and burdens required of a lawyer.

27. I have read the article by M. Wyburn, Disclosure of Prior Student Academic Misconduct in Admission to Legal Practice, reported at QUTLJJ Volume 8 No 2 p 314 at [316], and I would accept the submission of counsel for the applicant that the particular plagiarism which he has been found guilty of was at the lower end of the spectrum. This is so because it did not involve passing off work as his own. It did not involve any improper collaboration. Rather, it involved a failure to adequately attribute. It is also significant that he did not appeal the conclusion and accepted the nil mark that led to the failure in the subject. As is often the case, the cover up was worse than the crime. It is this aspect of his conduct that I have found most troubling.

28. The question for the Court is, whether the circumstances of the misconduct and the subsequent non-disclosure raise such concerns about the applicant’s candour and honesty so that the Court cannot be satisfied that the applicant is a fit and proper person for admission.[4]

29. I conclude that whatever deception – half-baked as it was – was exercised by the applicant in the first place, he has clearly learned through the trauma of this application and through a more rigorous enquiry into his personal obligations as to how a lawyer should conduct himself.

30. The High Court in Wentworth v New South Wales Bar Association[5] said ‘the right to practice in the courts is such that, on application for admission, the court concerned must ensure, so far as possible, that the public is protected from those who are not properly qualified’, and use the language of s 4(2) of the Act from those who are not persons ‘suitable … for admission’. One can see the standards are kept high and the testing is rigorous.

31. Whatever the circumstances in the past, I am satisfied now that the applicant is aware of the need for full and frank disclosure and the need to avoid making statements that may be misleading. I’m satisfied that he is now a fit and proper person to be admitted as a lawyer.

-----------------------------------------------

[1][2016] NTSC 9.

[2]For example, Re Deo (2005) NTLR 102.

[3]Mr Pocock wrongly describes this as 2018 in his affidavit.

[4]In the matter of an application by Andrew Hewitt Giles [2014] NTSC 30 at [5].

[5][1992] 176 CLR 239 at 251.