Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board - [2006] NSWSC 1338

CITATION: Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338

HEARING DATE(S): 24 October 2006, 25 October 2006, 26 October 2006, 8 November 2006

JUDGMENT DATE :
5 December 2006

JUDGMENT OF: Johnson J at 1

DECISION: Amended Summons dismissed.

CATCHWORDS: LEGAL PRACTITIONERS - appeal to Supreme Court from refusal by Legal Practitioners Admission Board to declare Plaintiff to be of good fame and character and otherwise suitable for admission as a legal practitioner - appeal by way of de novo hearing - role of Board on hearing of appeal - earlier criminal proceedings against Plaintiff for two alleged offences of perverting the course of justice contrary to s.319 Crimes Act 1900 - Plaintiff acquitted on one count and (following appeal) Crown determines not to proceed further on second count - approach to resolution of disputed factual issues on appeal - onus and standard of proof - whether Plaintiff made false statutory declaration and gave false evidence in 1996 wrongly claiming that she was driver of motor vehicle at time of red-light traffic offence - meaning of "good fame and character" - duty of candour on application for admission - finding on appeal that Plaintiff gave glaringly improbable evidence - held Plaintiff not of good fame and character and otherwise suitable for admission as legal practitioner

LEGISLATION CITED: Legal Profession Act 1987
Legal Profession Act 2004
Evidence Act 1995
Crimes Act 1900
Mental Health (Criminal Procedure) Act 1990
Crimes (Sentencing Procedure) Act 1999
Listening Devices Act 1984
Justices Act 1902
Criminal Appeal Act 1912

CASES CITED: Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51
Re B (1981) 2 NSWLR 372
A Solicitor v Council of Law Society of NSW [2004] 216 CLR 253
Morrissey v The New South Wales Bar Association [2006] NSWSC 323
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616
Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669
Doherty v Law Society of NSW [2003] NSWSC 105
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Frugtniet v Board of Examiners (No. 2) [2005] VSC 332
Board of Examiners v XY [2006] VSCA 190
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
Wentworth v NSW Bar Association (1992) 176 CLR 239
Gersten v Law Society of NSW (2002) 56 NSWLR 16
Skerritt v Legal Practice Board of WA [2004] WASCA 28
Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported, BC9402256)
Helton v Allen (1940) 63 CLR 691
Rejfek v McElroy (1965) 112 CLR 517
Bannister v Walton (1993) 30 NSWLR 699
Kriss v Legal Practitioners Admission Board [2002] NSWSC 967
Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82
Briginshaw v Briginshaw (1938) 60 CLR 336
B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440
Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170
Stanoevski v Council of the Law Society of NSW [2005] NSWCA 428
In Re Davis (1947) 75 CLR 409
Melbourne v The Queen (1999) 198 CLR 1
Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25
Law Society of NSW v Foreman (1994) 34 NSWLR 408
Barristers Board v Khan [2001] QCA 92
Re Hampton [2002] QCA 129
Thomas v Legal Practitioners Admission Board [2004] QCA 407
Re Bell [2005] QCA 151
Legal Practitioners Complaints Committee v Palumbo [2005] WASC 129
Barristers’ Board v Darveniza (2000) 112 A Crim R 438
Frugtniet v Board of Examiners (No. 1) [2002] VSC 140
Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470
R v Subramaniam [2000] NSWCCA 441
R v Subramaniam [2002] NSWCCA 372
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Prothonotary of the Supreme Court of NSW v Del Castillo [2001] NSWCA 75
Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77
R v Murphy (1985) 4 NSWLR 42
R v Drummond and Domican (No. 2) (1990) 46 A Crim R 408
Prothonotary of the Supreme Court of NSW v Helen Maria Coughlan (Dowd J, 21 April 1998, unreported)
R v Smith [2000] NSWCCA 202
Burns v The Queen (1975) 132 CLR 258
R v Green (2002) 4 VR 471
R v Pederick (NSW Court of Criminal Appeal, 21 May 1997, unreported, BC9701982)
Mallard v The Queen (2005) 80 ALJR 160; [2005] HCA 68
Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187
Smith v NSW Bar Association (1992) 176 CLR 256
Thomas v Legal Practitioners Admission Board (2005) 1 QdR 331
Smith v NSW Bar Association (1992) 176 CLR 256

PARTIES: Kala Jackson (previously known as Kala Subramaniam) (Plaintiff)
Legal Practitioners Admission Board (Defendant)

FILE NUMBER(S): SC 12670/2003

COUNSEL: Mr T Hall, Solicitor (Plaintiff)
Ms TJ Anderson (Defendant)

SOLICITORS: Hal Lawyers (Plaintiff)
IV Knight, Crown Solicitor's Office (Defendant)

LOWER COURT DATE OF DECISION: ---

LOWER COURT MEDIUM NEUTRAL CITATION: ---

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Johnson J

5 December 2006

12670/2003 Kala Jackson (previously known as Kala Subramaniam) v Legal Practitioners Admission Board
JUDGMENT

1 JOHNSON J: The Plaintiff, Kala Jackson (previously known as Kala Subramaniam), appeals to this Court under s.14 Legal Profession Act 1987 (“the 1987 Act”) against the refusal by the Defendant, the Legal Practitioners Admission Board (“the Board”), to declare that it was satisfied that she was of good fame and character and otherwise suitable for admission as a legal practitioner.

2 A number of the factual questions falling for determination in the present appeal have been considered in earlier criminal proceedings which reached the High Court of Australia: Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51. The Plaintiff does not stand convicted of any criminal offence. However, consideration of the question whether the Plaintiff is now of good fame and character and otherwise suitable for admission as a legal practitioner will involve a determination as to whether, in February 1996, she knowingly made a false statutory declaration and whether, in August 1996, she knowingly gave false evidence in related District Court proceedings concerning the identity of the driver of a motor vehicle which passed through a red traffic light in August 1995.

The Board’s Decision under the 1987 Act

3 On 19 August 2003, the Board resolved to refuse the Plaintiff’s application for admission. In circumstances that will be explained later in this judgment, the Board was requested to consider further material in support of the Plaintiff’s application. On 8 February 2005, the Board resolved not to alter its decision to refuse to the Plaintiff a declaration that she is of good fame and character and otherwise suitable for admission.

4 The present proceedings were commenced by Summons filed on 13 October 2003. By her Amended Summons filed 17 February 2004, the Plaintiff claims, inter alia, a declaration that she is of good fame and character and is otherwise suitable for admission as a legal practitioner to the Supreme Court of New South Wales.

5 The Legal Profession Act 2004 (“the 2004 Act”) commenced on 1 October 2005. Clause 22 of Schedule 9 to the 2004 Act provides that an appeal that was pending under or in relation to any matter under the 1987 Act immediately before 1 October 2005 is to be dealt with as if the 2004 Act had not been enacted, except insofar as a direction of the Supreme Court under Clause 22 otherwise provides. It was common ground before me that the present appeal ought be determined under the 1987 Act.

6 With the commencement of the 2004 Act, the Board is now entitled the Legal Profession Admission Board: s.679(1); Clause 19(1) of Schedule 9, 2004 Act.

Relevant Provisions in the 1987 Act

7 It is appropriate to refer to several provisions in the 1987 Act. Section 4 provides for admission by the Supreme Court of persons approved by the Board as suitable candidates for admission as legal practitioners. Section 4 provides:

“4 Admission of legal practitioners

(1) The Supreme Court may admit and enrol natural persons as legal practitioners in accordance with subsection (2).

(2) The Supreme Court is, on any day appointed by the Supreme Court for the purpose, to hear and determine any application made for the admission as a legal practitioner of a person approved by the Admission Board as a suitable candidate for admission.”

8 Section 17 revokes the inherent power or jurisdiction of the Supreme Court to admit barristers, solicitors or legal practitioners. Section 17 provides:

“17 Miscellaneous provisions respecting admission

(1) Persons cannot be admitted or enrolled as barristers or solicitors.

(2) Any inherent power or jurisdiction of the Supreme Court to admit barristers and solicitors (or legal practitioners) is revoked.

(3) The Supreme Court Charter remains revoked in New South Wales in so far as it relates to the admission of barristers, advocates, proctors, solicitors and attorneys.”

9 The effect of s.17 of the 1987 Act was to remove the inherent power or jurisdiction of the Supreme Court to admit (or not admit) a person as a barrister, this power or jurisdiction having been considered and exercised in Re B (1981) 2 NSWLR 372; cf A Solicitor v Council of Law Society of NSW [2004] 216 CLR 253 at 260-261 [2]-[3].

10 Division 2 of Part 2 of the 1987 Act provides for the constitution and membership of the Board (ss.9-10) and provides for the Board to make rules for or with respect to a number of matters, including the qualifications for admission as a legal practitioner (s.6).

11 Division 3 of Part 2 of the 1987 Act (ss.11-16) relates to the suitability of candidates for admission. As the provisions in this Division set out the functions of the Board exercised in this case and allow for appeal to this Court, it is appropriate to set them out:

“ Division 3 Suitability of candidate for admission

Character and suitability of candidates

A candidate, however qualified in other respects, must not be admitted as a legal practitioner unless the Admission Board is satisfied that the candidate is of good fame and character and is otherwise suitable for admission.

12 Declaration on character and suitability

(1) When the Admission Board considers an application for admission as a legal practitioner, it must consider whether it is satisfied that the candidate is of good fame and character and is otherwise suitable for admission.

(2) Unless the Admission Board declares that it is satisfied that the candidate is of good fame and character and is otherwise suitable for admission, it must refuse to approve of the application for admission.

(3) The Admission Board must notify the Bar Council and the Law Society Council in accordance with the admission rules of any application for admission (unless a declaration has been made under section 13 with respect to the applicant).

13 Early consideration of character and suitability

(1) A person may apply to the Admission Board for a declaration that matters disclosed by the person will not, without more, adversely affect an assessment by the Board of his or her good fame or character or suitability for admission.

(2) (Repealed)

(3) The applicant must serve a copy of the application on the Bar Council and the Law Society Council in accordance with the admission rules.

(4) The Admission Board is to consider each application under this section and make the declaration sought or refuse to do so.

13A Admission Board may refer certain matters to Supreme Court

(1) The Admission Board may refer to the Supreme Court any application for admission as a legal practitioner if, in the opinion of the Admission Board, it would be more practical in the circumstances of the case for the Supreme Court to consider whether or not the candidate is of good fame and character or is otherwise suitable for admission.

(2) The Supreme Court has the same powers as the Admission Board to deal with an application and its decision on an application is taken to be a decision of the Admission Board.

(3) On a referral under this section, the Supreme Court may make such order or declaration as it thinks fit.

(4) Nothing in this section affects the operation of section 17.

14 Appeals

(1) If approval of an application for admission as a legal practitioner is refused by the Admission Board under section 12, the applicant may appeal to the Supreme Court against the refusal.

(2) If a declaration sought under section 13 is refused, the applicant may appeal to the Supreme Court against the refusal of the declaration.

(3) If a declaration is made under section 12 or 13, a Council may appeal to the Supreme Court against the making of the declaration. The applicant is entitled to be represented and to be heard on the appeal.

(4) An appeal under this section is to be by way of rehearing and fresh evidence, or evidence in addition to or substitution for the evidence before the Admission Board, may be given on the appeal.

(5) A Judge is disqualified from hearing an appeal under this section if the Judge was a member of the Admission Board when it made the decision to which the appeal relates.

(6) On an appeal under this section, the Supreme Court may make such order or declaration as it thinks fit.

Binding effect of declaration

A declaration made under section 13, or an order or declaration of the Supreme Court under section 13A or 14, is binding on the Admission Board unless the applicant failed to make a full and fair disclosure of all matters relevant to the declaration sought on the application or appeal.

16 Representation by Councils

(1) A Council is entitled to be represented before, and to be heard by, the Supreme Court at an inquiry under section 13A or on an appeal under section 14.

(2) A Council is entitled to be represented before, and to be heard by, the Admission Board at an inquiry into a matter under this Division. A Council may make representations in writing to the Admission Board on any such matter.

(3) The applicant concerned in the matter before the Admission Board, or before the Supreme Court under section 13A, is also entitled to be represented and heard at the inquiry and to make representations.”

12 It is clear from ss.11 and 12 that the Board must not approve an application for admission unless it declares that the candidate is of good fame and character and is otherwise suitable for admission. Section 13A of the 1987 Act provided a mechanism whereby the Board could refer to the Supreme Court an application for admission if the Board was of the opinion that it would be more practical in the circumstances of the case for the Court to consider whether or not the candidate is of good fame and character or is otherwise suitable for admission. I note that, in another case, the Board has utilised this referral power under s.27(1) of the 2004 Act, the equivalent to s.13A of the 1987 Act: Morrissey v The New South Wales Bar Association [2006] NSWSC 323. However, in the present case, the Board determined the Plaintiff’s application by refusing it upon the basis that it was not satisfied of the Plaintiff’s good fame and character and that she was otherwise suitable for admission.

Nature of Appeal

13 An appeal under s.14(1) is an appeal from the decision of an administrative body to the Court. It is common ground before me that an appeal to this Court under s.14 of the 1987 Act proceeds by way of hearing de novo: s.14(4); Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621; cf Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 at 673-674; Doherty v Law Society of NSW [2003] NSWSC 105 at [4]. On a s.14 appeal, the Court may make such order or declaration as it thinks fit: s.14(6). The power to make such order or declaration as the Court thinks fit indicates that the Court’s appellate powers are not constrained by the need to find error on the part of the primary decision maker but, rather, that the Court is obliged to give its own decision on the evidence before it: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 204 [15]. The statutory scheme enacted by the 1987 Act created an avenue of appeal against a refusal of admission, such an appeal not having been open in earlier times: Re B at 396, 403.

14 On this appeal, the Court is not concerned with the question whether the Board has made any error of fact or law and the appeal does not depend upon showing any error at first instance: Frugtniet v Board of Examiners (No. 2) [2005] VSC 332 at [8].

15 The issue on this appeal is whether, having regard to the evidence adduced at the hearing of the appeal, I am satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission as a legal practitioner.

The Role of the Board on Appeal

16 The Plaintiff has commenced proceedings nominating the Board as the sole Defendant. The Council of the New South Wales Bar Association and the Council of the Law Society of New South Wales have a statutory entitlement to be represented before this Court on a s.14 appeal: s.16(1). The Plaintiff did not join either Council as a party to the proceedings and neither Council has sought to be added as a party.

17 At the commencement of the hearing before me, Ms Anderson, counsel for the Board, submitted that the Board’s appearance in the appeal would be limited to assisting the Court in determining the question whether the Plaintiff is of good fame and character and is otherwise suitable for admission. The Board did not oppose the orders sought by the Plaintiff and it did not seek to participate in the proceedings as an ordinary litigant with a vested interest. In this respect, Ms Anderson relied upon the decision of the Victorian Court of Appeal in Board of Examiners v XY [2006] VSCA 190 and, in particular, the statements of Chernov JA (Nettle and Neave JJA agreeing) at [18]-[20] and [25].

18 In Board of Examiners v XY, Chernov JA observed, at [25], that the Board of Examiners is a statutory body that performs a quasi-judicial function in the public interest and appears on an appeal brought against its decision, not as a protagonist, but only for the purpose of assisting the Court. I accept that the function of the Board in the present appeal is similar to that of the Board of Examiners in Victoria as characterised by Chernov JA in Board of Examiners v XY.

19 This is not a claim for prerogative relief where a possible outcome is that the matter may be remitted to the original decision maker for reconsideration. It is the Court which will now exercise its original jurisdiction, by way of de novo hearing, and determine for itself the question whether the Plaintiff is of good fame and character and is otherwise suitable for admission. Considerations of the type mentioned in The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-36 do not arise in this case.

20 In Re B, Moffitt P observed at 374-375, that where the ultimate decision as to whether a person is of good character depends upon a determination of disputed factual questions, including questions of credit, the Court is better equipped to deal with those issues than a body constituted such as the Board. A Court is in a position to decide matters of fact which are open to question, and the consequential question of good fame and character, aided as it can be by the presentation of evidence, and cross-examination upon it by counsel, and by hearing their submissions.

21 In circumstances where the Plaintiff did not join the Council of the Bar Association or the Council of the Law Society and neither Council has sought to be added as a party to the proceedings, it is, in my view, appropriate for the Board to fulfil the function exercised by counsel appearing for it on this appeal. It is necessary that evidence adduced by the Plaintiff bearing upon her good fame and character be tested by cross-examination, and that other evidence bearing upon the same issue be adduced before this Court to enable it to fulfil the statutory function under a s.14 appeal.

22 If the Board had not taken the approach which it has, I would, in any event, have requested the Council of the Bar Association or the Council of the Law Society to participate in the hearing or, alternatively, requested the Attorney-General to appoint counsel to act as amicus curiae on the hearing of the appeal. In the result, this is the function which Ms Anderson has fulfilled on behalf of the Board at the hearing of the appeal. The involvement of the Board at the hearing has assisted the Court in the determination of the matters falling for determination which, as will be seen, involve the public interest and the protection of the public.

Proceedings for Admission to the Legal Profession

23 The present proceedings seek the Plaintiff’s admission to the legal profession. It has been said that admission proceedings are not ordinary legal proceedings directed to the resolution of a contest as to the private rights of the disputing parties. Admission proceedings are “sui generis”. Protection of the public is a significant feature of admission proceedings. In Wentworth v NSW Bar Association (1992) 176 CLR 239, Deane, Dawson, Toohey and Gaudron JJ said at 250-251:

“The nature of proceedings concerned with the admission and discipline of barristers tells decisively against the construction of s.51(b) advanced on behalf of Ms Wentworth. There are, of course, differences between admission and disciplinary proceedings. Those differences flow from the different issues involved. However, disciplinary and admission proceedings are alike in that they are not ordinary legal proceedings. Admission proceedings are not directed to the resolution of some contest as to the private rights of disputing parties, as is usually the case with civil proceedings. And as has often been said, disciplinary proceedings are not criminal proceedings

Weaver v. Law Society of New South Wales

Veron; Ex parte Law Society of N.S.W

Attorney-General of the Gambia v. N'Jie

Disciplinary proceedings and admission proceedings are ‘sui generis’

[Weaver v. Law Society of New South Wales

, a case concerned with disciplinary proceedings. Disciplinary proceedings have been described as proceedings concerned with the protection of the public

Clyne v. N.S.W. Bar Association

New South Wales Bar Association v. Evatt

Weaver v. Law Society of New South Wales

Walter v. Council of Qld Law Society

. And it has been said that, because they have the protection of the public as one of their primary objects, they cannot necessarily be determined on the same basis as adversarial proceedings

Walter v. Council of Qld Law Society

That is also true of admission proceedings, although that may be more obvious in cases concerned with readmission. In any event, the right to practise in the courts is such that, on an application for admission, the court concerned must ensure, so far as possible, that the public is protected

Re B

Incorporated Law Institute of New South Wales v. Meagher

from those who are not properly qualified and, to use the language of s.4(2) of the Act, from those who are not ‘suitable ... for admission’.”

24 The exercise of the power of the Supreme Court on appeal under s.14 of the 1987 Act to admit or not admit a person as a legal practitioner does not involve punishment, but a determination whether the Court is justified in holding out the person as a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner: A Solicitor v Council of the Law Society of NSW at 264 [12].

25 The jurisdiction of the Court to admit legal practitioners, and to discipline them once admitted, is exercisable in the public interest and for the protection of the public: Gersten v Law Society of NSW (2002) 56 NSWLR 16 at 24 [53].

26 Matters relevant to a person’s fitness for admission include matters which might, as a matter of ordinary experience, put the Court or any interested person on notice that further enquiry as to the applicant’s fitness to practice may be prudent: Skerritt v Legal Practice Board of WA [2004] WASCA 28 at [48].

Onus and Standard of Proof

27 It was common ground that, on the hearing of this appeal, the onus lies on the Plaintiff to satisfy the Court that she is of good fame and character and is otherwise suitable for admission as a legal practitioner: cf Re B at 403; Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported, BC9402256 at page 5).

28 The evidence reveals that the Plaintiff has satisfied the academic requirements for admission. Although, as will be seen, real issues arose concerning the Plaintiff’s mental condition between 2001 and 2003, it appears that there is no current issue with respect to the Plaintiff’s mental fitness. Through Ms Anderson, the Board has indicated that it has no present concern in this regard. The central factual issues in the appeal relate to the circumstances in which the Plaintiff made a statutory declaration and gave evidence in 1996, where a body of disputed evidence indicates that the Plaintiff did so falsely.

29 There has been debate as to the applicable standard of proof and the manner in which I should approach the task of fact finding in the proceedings.

Does s.140

Evidence Act 1995

Apply

30 Admission proceedings are not automatically determined in accordance with rules and procedures applied in ordinary adversarial proceedings. In Wentworth v NSW Bar Association, Deane, Dawson, Toohey and Gaudron JJ observed (at 251) that this was a consequence of the protective nature of the jurisdiction:

“And the consequence is that, as with disciplinary proceedings, admission proceedings are not automatically determined in accordance with rules and procedures applied in ordinary adversarial proceedings.

Both the nature and purpose of admission and disciplinary proceedings indicate that, unless and save to the extent that specific procedures are laid down by statute or by rules of court, and subject, of course, to the requirements of procedural fairness, they may be conducted in whatever manner the court considers appropriate to the matter before it.”

31 The Board is not appearing as an ordinary litigant on this appeal with a case to advance in the usual way in contested adversarial litigation. Rather, counsel for the Board is fulfilling the function of counsel assisting in placing relevant evidence before the Court and testing evidence adduced by the Plaintiff.

32 Ms Anderson submits that there is doubt that the Evidence Act 1995 applies to this appeal, given the peculiar and non-adversarial nature of an admission application: Wentworth v NSW Bar Association at 250-251. Ms Anderson submits that the question for determination on this appeal is the statutory question under ss.11 and 12 of the 1987 Act, namely whether I am satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission.

33 I agree with Ms Anderson’s submission that the statute poses the question to be asked and answered by me on this appeal. Given that the question is being asked in curial proceedings, by way of statutory appeal, what level of satisfaction is required before an answer may be given in the Plaintiff’s favour?

34 There is no provision in the 1987 Act which excludes the Evidence Act 1995 from application to a s.14 appeal. Section 4(1) Evidence Act 1995 provides that the Act applies in relation to all proceedings in a New South Wales court. Of course, the definition of “NSW court” in the Dictionary to the Act includes the Supreme Court. The term “civil proceeding” is defined in the Dictionary as meaning a proceeding other than a criminal proceeding. Prima facie, s.140(1) Evidence Act 1995 applies to the present proceedings. The Plaintiff bears the onus of proof, on the balance of probabilities, in these civil proceedings: s.140(1) Evidence Act 1995. The Board does not bear any onus of proof.

35 If these were disciplinary proceedings seeking the removal of the Plaintiff from the roll of legal practitioners, the onus of proof would lie upon the party seeking such an order and the standard of proof to be applied would be the civil standard, proof on the balance of probabilities, being qualified having regard to the gravity of the questions to be determined. The test has been said to be whether the issue has been proved to the reasonable satisfaction of the court or tribunal, such satisfaction not being produced by inexact proofs, indefinite testimony or indirect inferences: Briginshaw v Briginshaw (1938) 60 CLR 336 at 362; Helton v Allen (1940) 63 CLR 691 at 701; Rejfek v McElroy (1965) 112 CLR 517 at 521. The court or tribunal should be comfortably satisfied, on the balance of probabilities, before such a finding is made: Bannister v Walton (1993) 30 NSWLR 699 at 711-712.

36 If the Plaintiff had been struck off and was making application for readmission as a legal practitioner, the onus would lie upon her to satisfy the Court that she is now a person of good fame and character and is fit to be admitted as a legal practitioner: Kriss v Legal Practitioners Admission Board [2002] NSWSC 967 at [71]. On such an application, it has been said that the applicant must discharge the onus of proving to the satisfaction of the relevant tribunal his or her present fitness to practice on solid and substantial grounds: Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 at 98.

37 I approach the resolution of the present proceedings upon the basis that the Plaintiff bears the ultimate onus of proving, on the balance of probabilities, that she is of good fame and character and otherwise suitable for admission as a legal practitioner.

Approach to Resolution of Disputed Factual Issues Where Impropriety Alleged Against the Plaintiff

38 There are significant areas of factual dispute to resolve on this appeal. The Plaintiff claims that she is of good fame and character. She denies that she made a false statutory declaration and gave false evidence in the District Court in 1996. There is evidence before the Court which indicates that the Plaintiff did act in this way. What approach should be taken to the resolution of these factual issues on this appeal?

39 Mr Hall, for the Plaintiff, submitted that I should not find that the Plaintiff made a false statutory declaration and/or gave false evidence in the District Court unless I was reasonably satisfied, on the balance of probabilities, that she had so acted in accordance with the Briginshaw principle.

40 In B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 at 460, McHugh JA (as his Honour then was) observed that, in Briginshaw, the High Court held that at common law only two standards of proof existed - the ordinary civil standard of proof upon a balance or preponderance of probabilities and the criminal standard of proof beyond reasonable doubt. McHugh J continued at 460:

“However, although in

Briginshaw

their Honours held that only two standards of proof existed at common law, they recognised that satisfaction as to the civil standard of proof does not involve a mechanical weighing of probabilities. Thus while Dixon J said (at 362) that, except in a trial upon a criminal issue, the affirmative of an allegation only needs to be made out ‘to the reasonable satisfaction of the tribunal’, he went on to say that reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. This led Dixon J to declare (at 362) that reasonable satisfaction ‘should not be produced by inexact proofs, indefinite testimony, or indirect inferences’. Rich J pointed out (at 350) that in a serious matter the satisfaction of ‘a just and prudent mind’ could not be produced by slender and exiguous proofs of circumstances pointing with a wavering finger to an affirmative conclusion.”

41 McHugh JA said at 461:

“ Briginshaw decided that the standard of proof in a civil case was the balance of probability but it also decided that satisfaction as to whether that balance had been established depended upon the gravity of the allegation and its consequences. This distinction between quantum of proof and satisfaction as to proof may seem unsatisfactory to many minds. But it is a distinction which the law has long recognised.”

42 The rationale for this approach was explained in Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 where Mason CJ, Brennan, Deane and Gaudron JJ said at 170-171 (footnotes excluded):

“The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involved criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary ‘where so serious a matter as fraud is to be found’. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.”

43 In Stanoevski v Council of the Law Society of NSW [2005] NSWCA 428, Mason P at [49] observed that the Briginshaw principle is a guide as to judicial method in resolving factual issues in professional disciplinary proceedings.

44 In The Matter of An Application by Deo [2005] NTSC 58, BR Martin CJ considered the approach to determination of an application for admission which was objected to by the Northern Territory Law Society, which participated at the hearing. The Chief Justice said at [4]:

“The only questions in issue are whether the court should be satisfied that the application is of good fame and character and a fit and proper person to be admitted to practise. While the applicant’s past conduct is relevant to a determination of these critical issues, and for that reason evidence as to past conduct is admissible, the question is not whether the applicant was in the past a fit and proper person to be admitted to practise but whether he is, today, of good fame and character and a fit and proper person to be admitted. The burden rests on the applicant to satisfy the Court of those matters, but where the Law Society has objected to the application and, in support of the objection, asserts the existence of facts adverse to the application, the burden rests upon the Law Society to satisfy the Court of the existence of those adverse facts.”

45 It is accepted by the Plaintiff and the Board that the Plaintiff carries the onus of proof in these proceedings. In practical terms, what does that mean in the circumstances of this case?

46 The jurisdiction which I am exercising is not a punitive one. It is exercisable in the public interest and for the protection of the public: Wentworth v NSW Bar Association at 251. Subject to the requirements of procedural fairness, the proceedings may be conducted in whatever manner the court considers appropriate to the matter before it: Wentworth v NSW Bar Association at 251.

47 Where serious allegations of improper conduct are raised on an application for admission, and are disputed by the applicant, it is necessary to devise a mechanism for resolution of those disputed matters. The approach of BR Martin CJ in Deo (see paragraph 44 above) is of assistance to the present case.

48 The Board has tendered evidence, called witnesses and cross-examined the Plaintiff’s witnesses on topics which bear upon the issues to be determined. Given the approach which I have allowed the Board to adopt on this appeal, the function performed by counsel for the Board is analogous to that of counsel assisting a Royal Commission or investigative tribunal. In the Final Report of the Royal Commission into the Building and Construction Industry, (Volume 2, February 2003, page 49), Commissioner Cole QC observed:

“I do not regard the concept of the onus of proof as applicable in the context of a Royal Commission. That is because, in leading evidence during hearings of the Commission, Counsel Assisting were not putting a case. They were participants in an investigation. If, in accordance with the approach I have just outlined, I was reasonably satisfied that certain events had occurred, then I found that they had occurred. If I did not reach that level of satisfaction, I did not make that finding. That was, however, as a result of the application of the relevant standard of proof. It was not because Counsel Assisting had failed to discharge any onus.”

Briginshaw

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd

49 Given the nature of the alleged misconduct raised in the evidence adduced by counsel for the Board, I will approach the fact-finding process on this appeal upon the basis that I should not find as a fact that the Plaintiff made a false statutory declaration in February 1996, or gave false evidence in the District Court in August 1996, unless I am reasonably satisfied, on the balance of probabilities, that the Plaintiff did act in such a way. If such findings of fact are made, they will bear directly upon the ultimate issue, namely whether the Plaintiff has satisfied me that she is of good fame and character and is otherwise suitable for admission as a legal practitioner. I am satisfied that this approach will accord with the requirements of procedural fairness (Wentworth v NSW Bar Association at 251) in the circumstances of this case.

The Meaning of

“Good Fame and Character”

in the 1987 Act

50 It is a requirement for admission as a legal practitioner under the 1987 Act (ss.11-12), and the 2004 Act (s.9(1)(a)), that the Board be satisfied that a candidate is of good fame and character. This condition precedent is a long-standing and well-recognised one (s.9 Legal Practitioners Act 1898; Re B at 376).

Fame and Character

51 The phrase “good fame and character” in ss.11-12 of the 1987 Act must be examined in the context of a statute concerned with the admission of candidates as member of the legal profession. A person may be of good fame (good reputation amongst those who then knew him or her), but intrinsic character is a different matter: InRe Davis (1947) 75 CLR 409 at 416 (Latham CJ). The phrase “good fame and character” describes the test of ethical fitness for admission to the legal profession: In Re Davis at 420 (Dixon J).

52 The distinction between fame (or reputation) and character was emphasised by Dixon J in In Re Davis at 426:

“The second contention depends in part on the facts of the case and in part upon an argument that whether a man is of good fame and character is a question of his general reputation and not of his moral standards or qualities. This latter argument is quite wrong and comes from a confusion between the rule of criminal evidence allowing an accused to prove his ‘good character’ as part of his defence, and the question whether a man is fit to enter one of the four traditional professions.

As to the facts, I hope that I have stated them in a way which brings out many considerations undeniably favourable to the appellant. He has shown industry, perseverance and courage amidst the most adverse circumstances, and has overcome many disadvantages and obstacles encountered particularly in his early years. His mental breakdown and even his descent into criminality will evoke much human sympathy. It is always so upon moral questions, particularly when a man, whose conduct or actions have been in many respects praiseworthy, mars his life by a crime.

But, though concern for an individual who is overtaken by the
consequences of past wrongdoing is a very proper human feeling, it is no reason whatever for impairing in his interests the standards of a profession which plays so indispensable a part in the administration of justice.

…

But a prerequisite, in any case, would be a complete realization by the party concerned of his obligation of candour to the court in which he desired to serve as an agent of justice. The fulfilment of that obligation of candour with its attendant risks proved too painful for the appellant, and when he applied to the Board for his certificate he withheld the fact that he had been convicted.”

53 In Melbourne v The Queen (1999) 198 CLR 1, McHugh J contrasted character and reputation at 15 [33]:

“In its strict sense, character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called ‘disposition - which is something more intrinsic to the individual in question.’

Evidence Law: Character and Credibility

It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person

Plato Films Ltd v Speidel [1961] AC 1090 at 1132, per Lord Denning

.”

54 In Melbourne, Gummow J said at 24 [64]:

“In the law, the notion of ‘character’ takes varying significance and shades of meaning from particular fields of discourse and the particular fact in issue. It may be said that ‘character’, that which marks out an individual, may not correspond with the reputation attributed to that person. However, as will appear, the law does not always clearly distinguish between the two, nor indicate the probative force to be attributed to whichever of them is to be established as a fact in issue, nor specify the evidentiary means, including permissible inference, by which that fact in issue may be proved.”

55 Later in Melbourne, Gummow J at 25 [66] distinguished the use of the term “character” with respect to admission to a profession with the term as used in the criminal law and the law of defamation:

“The issue in a proceeding may be whether an individual has the good character required for admission to pursue a particular profession or calling. Here the concern is not with disposition to perform particular acts with a requisite intention. Nor is the question simply one of the opinion others may have of the individual in question. In

Ex parte Tziniolis

;

Re The Medical Practitioners Act

, Holmes JA said:

‘The Act provides for the circumstances in which the name of a registered medical practitioner may be removed from the register and the expression 'infamous conduct in a professional respect' has been used to define such conduct. 'Good character' is not a summation of acts alone, but relates rather to the quality of a person. The quality is to be judged by acts and motives, that is to say, behaviour and the mental and emotional situations accompanying that behaviour. However, character cannot always be estimated by one act or one class of act. As much about a person as is known will form the evidence from which the inference of good character or not of good character is drawn.’

His Honour emphasised that the court was not there dealing with good character in some particular sense developed by the criminal law or by the law of defamation.”

56 Whilst there is a certain overlapping of the two terms “fame” and “character”, there is a distinction. Fame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks: Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 at 29 (Miles CJ).

Candour, Honesty and Integrity

57 High standards are expected of legal practitioners, so that members of the public, litigants, other practitioners and the courts themselves can have confidence in the integrity of those who enjoy special privileges as legal practitioners: Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 412C. This Court is the guardian of the maintenance of those standards: Law Society of NSW v Foreman at 412D.

58 Honesty and integrity are central prerequisites to a right to practice law: Legal Practitioners Complaints Committee v Palumbo [2005] WASC 129 at [23]-[24]. It has been observed, in the context of striking off proceedings, that the quality most likely to result in striking off is conduct which undermines the trustworthiness of a practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system in which he or she practices: Barristers’ Board v Darveniza (2000) 112 A Crim R 438 at 445 [33].

59 An applicant for admission as a legal practitioner must be candid and act with utmost good faith in making comprehensive disclosure of issues relevant to any matter which might reasonably be regarded as touching on the applicant’s fitness to become a legal practitioner: Barristers Board v Khan [2001] QCA 92 at page 5; Re Hampton [2002] QCA 129 at [14], [26]-[29], [36]-[37]; Thomas v Legal Practitioners Admission Board [2004] QCA 407 at pages 8-10; Re Bell [2005] QCA 151. The obligation is closely related to the ethical duty of a legal practitioner, as an officer of the Court, not to mislead the Court: Re Bell at [5].

60 The obligation of candour requires disclosure of convictions, even if the applicant believes in his or her own innocence and regards them as unjust, and hopes (or even expects) that they would be overturned on appeal: A Solicitor v Council of Law Society of NSW at 272 [30]. The obligation is not confined to disclosure of convictions for criminal offences, but requires the provision of information concerning criminal charges: Frugtniet v Board of Examiners (No. 2) at [14]. The obligation of candour requires disclosure irrespective of self interest or embarrassment: Frugtniet v Board of Examiners (No. 1) [2002] VSC 140 at [10], where Pagone J said at [11]:

“His obligation was to disclose matters that could inform a judgment about whether he was a fit and proper person for admission to practice. It was not an obligation merely to list convictions or charges, but was an obligation to inform the decision maker of everything that could bear upon the judgment that needed to be made about him and his character. His task was not to select or edit from his life's experiences only some events that might be relevant to the question, but to disclose every matter that might fairly assist in deciding whether the applicant was a fit and proper person at the time of admission. Revealing more than might strictly be necessary counts in favour of an applicant; especially where the disclosure still carries embarrassment or discomfort. 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.”

61 The duty of an applicant for admission is one of full and frank disclosure. It is not for an applicant to decide what is or is not relevant to place before the Board or the Court. The duty is to put forward any matter that might reasonably be regarded by the Board or the Court as touching on the question of fitness to practice. However, in appropriate circumstances, an initial failure to make full disclosure may be remedied by the later provision of material: Morrissey v NSW Bar Association at [137].

62 In Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470, McColl JA (Sheller and Beazley JJA agreeing) said at [50]-[51]:

“Legal practitioners are under an obligation of candour to the Court: In re Davis [1947] HCA 53; (1947) 75 CLR 409 at 417 and 426. Lack of candour by a practitioner may lead to the conclusion that a practitioner is not a fit and proper person to remain on the roll. That obligation is essential to ensure that counsel may ‘command the personal confidence ... of other members of the Bar and of judges’: In re Davis , above, at 420 and so that the Court may hold out legal practitioners to members of the public as fit and proper persons to act for them: Ziems v Prothonotary of the Supreme Court of New South Wales , above, at 290; see also Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 625. The confidence a legal practitioner commands in judges and other members of the profession must be such that they can rely implicitly on the practitioner’s word and behaviour: Barristers’ Board v Young [2001] QCA 556 at [42] per Mackenzie J.

The Court must be careful not to accredit as legal practitioners those in whom the public cannot have confidence that they will discharge the obligation of candour the Court requires of them, whether because of ‘deliberate misleading or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice’:

Incorporated Law Institute of New South Wales v Meagher

, above, at 681 per Isaacs J; see also

Southern Law Society v Westbrook

, above, at 625 cited in

Law Society of NSW v Foreman (No 2

) (1994) 34 NSWLR 408 by Kirby P at 412B-E and by Mahoney JA at 442E-G.”

63 In Frugtniet v Board of Examiners (No. 2), Gillard J, at [27]-[28], emphasised the importance of honesty to membership of the legal profession:

“All true professions are built on a solid foundation of honesty. The legal profession is no exception. Indeed, the demands of honesty and fair dealing are probably greater in the legal profession than any other profession. There must be honesty and fair dealing between lawyer and client, between lawyers when conducting litigation on behalf of a client, and dealings with any of the courts or tribunals in this State. There must be no hesitation on the part of any member of the legal profession when confronted with a situation which could involve dishonesty to immediately desist from any dishonest conduct.

Indeed, the courts and tribunals in this State would not be able to function properly unless the presiding officer was able to rely upon the honesty and reputation of the persons appearing before them or who as solicitors are involved in conducting litigation.”

64 These statements of principle concerning fame, character, candour, honesty and integrity shed light upon the requirements that an applicant for admission to the legal profession must satisfy, in order to demonstrate that he or she is of “good fame and character” and otherwise suitable for admission to the profession.

Central Issues in Proceedings

65 The central issues in these proceedings concern the circumstances in which the Plaintiff is said to have made a false statutory declaration, and given false evidence before the District Court in 1996, with respect to the identity of the driver of a motor vehicle which disobeyed a red traffic light in August 1995. At her first criminal trial, in 1999, the Plaintiff denied on oath that she had made a false statutory declaration or given false evidence in the District Court. She maintained that position in evidence before me in these proceedings. She called evidence from other witnesses to support her case.

66 The Board placed before the Court evidence adverse to the Plaintiff on these issues, and called witnesses who were cross-examined by Mr Hall on behalf of the Plaintiff.

The Plaintiff and the Criminal Proceedings Brought Against Her

67 The Plaintiff was born in Sydney in 1972. She completed a Bachelor of Science degree (majoring in psychology) at the University of New South Wales graduating in 1993. She commenced studying law at Macquarie University in 1994 with the degree of Bachelor of Legal Studies being conferred in 2002.

68 Over a period between 1993 and 1997, the Plaintiff was employed as a legal clerk with Leigh Johnson, solicitor, practising as Leigh Johnson Lawyers at 155A Palmer Street, East Sydney. Ms Johnson conducted a practice specialising in criminal law.

69 On or about 15 December 1996, summonses were served upon the Plaintiff, alleging two offences of perverting the course of justice under s.319 Crimes Act 1900. The first charge was that the Plaintiff “On 29 February 1996, made a statutory declaration knowing it to be false with intent to pervert the course of justice”. The second charge was that “On 5 August 1996, [the Plaintiff] gave false evidence to the District Court with intent to pervert the course of justice”.

70 Following committal proceedings extending over 15 days, the Plaintiff was committed for trial in the District Court on these charges by Dr E Elms, Magistrate, on 31 October 1997.

71 On 23 August 1999, the trial of the Plaintiff commenced before his Honour Judge Shillington QC and a jury in the Sydney District Court. The Plaintiff gave evidence at the trial. On 3 September 1999, the jury was discharged because it was unable to reach a verdict.

72 Thereafter, the Plaintiff’s mental health deteriorated. On 11 April 2000, the Plaintiff applied for a permanent stay of the criminal proceedings. His Honour Judge Gibson QC refused the application. The Court of Criminal Appeal rejected an interlocutory appeal against the refusal of the stay of those proceedings: R v Subramaniam [2000] NSWCCA 441.

73 On 16 March 2001, following a hearing under s.11A Mental Health (Criminal Procedure) Act 1990, his Honour Acting Judge Stewart found the Plaintiff unfit to be tried. On 25 September 2001, the Mental Health Review Tribunal, acting pursuant to s.16 Mental Health (Criminal Procedure) Act 1990, formed the view that, because of the Plaintiff’s moderate intellectual disability, she would not meet the criteria for fitness to be tried and that, on the balance of probabilities, this situation would continue and the Plaintiff would not become fit during the period of 12 months after the finding of unfitness.

74 On 28 November 2001, the Attorney General for New South Wales directed that a special hearing be conducted of the charges against the Plaintiff under s.19 Mental Health (Criminal Procedure) Act 1990.

75 On 24 April 2002, the special hearing under s.21 Mental Health (Criminal Procedure) Act 1990 commenced before his Honour Judge Luland QC and a jury. Before then, a further application for a permanent stay was made and refused. On 1 May 2002, the jury returned a verdict of not guilty on the second count (giving false evidence). On the first count (making a false statutory declaration), the jury was satisfied that, on the limited evidence available, the Plaintiff committed the offence charged: s.22(1)(c) Mental Health (Criminal Procedure) Act 1990. Such a verdict is a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the findings relates: s.22(3)(a). The verdict constitutes subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings: s.22(3)(c). Pursuant to s.9 Crimes (Sentencing Procedure) Act 1999, the trial judge directed that the Plaintiff enter into a good behaviour bond for a period of three years: s.23(2) Mental Health (Criminal Procedure) Act 1990.

76 On 25 November 2002, the Court of Criminal Appeal dismissed an appeal against the verdict returned on the first count at the special hearing: R v Subramaniam [2002] NSWCCA 372.

77 On 10 November 2004, the High Court of Australia allowed an appeal against the verdict on the first count of the special hearing, quashed the finding and directed that a new trial be held: Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51. The appeal was allowed upon the ground that the presiding Judge at the special hearing had failed to give the jury a sufficient direction to satisfy the mandatory requirements in s.21(4) Mental Health (Criminal Procedure) Act 1990 to explain the process and consequences of the special hearing( see 13-15 [42]-[48], 17 [61]). Other grounds of appeal against the verdict were rejected by the Court.

78 On 23 December 2004, the Director of Public Prosecutions informed the Plaintiff that no further proceedings were to be taken against her in relation to the s.319 Crimes Act 1900 count alleging the making of a false statutory declaration.

The Plaintiff Applies to the Board for Admission

79 On 6 June 2003, the Plaintiff made application to the Board for admission as a legal practitioner expressing a preference, in the application form, for inclusion in the admission ceremony on 11 July 2003. The application was made after the Court of Criminal Appeal had dismissed the appeal (on 25 November 2002) and before special leave to appeal was granted by the High Court of Australia (on 14 November 2003). Following a query concerning an aspect of the application form, the Plaintiff lodged a further application with the Board on 16 June 2003. Included in the application was a declaration in paragraph 7.4 to the following effect:

“I have not done anything likely to affect adversely my good fame and character, and am not aware of any circumstance that might affect my fitness to be admitted as a legal practitioner (

CROSS OUT the following words if you do not have anything to disclose

) unless the Board considers that my good name and character or my fitness may be affected adversely by the circumstances in the attached ‘Disclosure’ signed by me.”

80 Attached to the application form was a document addressed to the Board which contained the following:

“I was a victim of a horrendous unjustified District Court matter over a ‘red light traffic offence’.

It ran over many years, for political reasons, at the expense of my health and career. Despite this, I managed to complete my law degree.

I have no conviction in law against me

Mr Charles Waterstreet, of Counsel will speak with you in relation to this issue if needed. He is my barrister and is available on 02 9267 4955.

I am also available on the details provided.

I very much look forward to practising within the profession.

[Plaintiff’s signature]

I have NEVER been bankrupt or committed an act of bankruptcy or tax offence.

[Plaintiff’s signature]

Stewart J 19/3/01-21/3/01

Luland J 22/4/02 - Special Hearing.

”

81 It is not clear, on the evidence, whether the Plaintiff provided the Board, at that time, with a copy of the judgment of the Court of Criminal Appeal of 25 November 2002.

82 By letter dated 2 July 2003, the Executive Officer of the Board informed the Plaintiff that her application had been considered at a meeting of the Board on 1 July 2003. It was stated that the Board had had an opportunity to consider the judgment of the Court of Criminal Appeal “but has not had any other material”. It stated that “at the present time, the Board does not consider itself able to properly determine your application”. The Plaintiff’s attention was drawn to ss.11 and 12 of the 1987 Act. The letter continued:

“While it may be correct that you have not been convicted of an offence, it would appear that after trial, a jury has found you guilty of certain conduct, which might be considered sufficient to throw doubt on your good fame and character and your suitability to practice. The Board has neither made nor refused a declaration of the type required by section 11. It does not consider that it has sufficient information from you about the matters you have disclosed and which are contained in the Court of Criminal Appeal judgment.

You may wish to seek advice or assistance, but any evidence or submissions you wish to make should, at least, address the conduct that led to the charge, which was found proven. You may also wish to consider obtaining a psychiatric or other medical report dealing with the question of your fitness to practice as a legal practitioner having regard to the fact that there was evidence finding you unfit to stand trial at the time of the Special Hearing.”

83 By letter dated 21 July 2003, the Plaintiff replied to the Board’s letter. She stressed that the finding of the jury at the special hearing was not a conviction and pointed to the medical evidence. Further, she emphasised that she was not guilty of the charge and had not made a false statutory declaration. The Plaintiff provided medical reports to the Board.

84 On 20 August 2003, the Executive Officer of the Board informed the Plaintiff that, following consideration of the material supplied by her, the Board had resolved to refuse her application at a meeting on 19 August 2003. The Plaintiff’s attention was drawn to the appeal provision contained in s.14 of the 1987 Act.

85 By Summons filed on 13 October 2003, the Plaintiff commenced the present proceedings.

86 By letter dated 3 February 2005, the Plaintiff’s then solicitors informed the Board of the decision of the Director of Public Prosecutions not to proceed further in relation to the false statutory declaration count. At a meeting on 8 February 2005, the Board resolved not to alter its decision to refuse to the Plaintiff a declaration that she is of good fame and character and otherwise suitable for admission.

The Present Proceedings

87 On 21 June 2005, the present proceedings were called on for hearing before Buddin J. It became apparent that the Plaintiff’s case was not ready to proceed. Following submissions, his Honour granted the Plaintiff’s application to adjourn the proceedings and ordered that the Plaintiff pay the Board’s costs thrown away by reason of the adjournment.

88 The hearing of the appeal commenced before me on 24 October 2006. Mr Trevor Hall, solicitor, appeared for the Plaintiff. Mr Hall had been instructed only a week prior to the hearing. Ms Teresa Anderson, of counsel, appeared, instructed by the Crown Solicitor, for the Board.

89 A number of affidavits were read at the hearing and a range of documents were tendered. The Board tendered several documents which were exhibits in the criminal proceedings, together with parts of the transcripts of the committal proceedings, the first trial and the special hearing in the District Court. The judgments of the Court of Criminal Appeal and the High Court of Australia were provided to me by the Board. The following witnesses were cross-examined at the hearing:

(i) Nicky Simone Halls;

(i) the Plaintiff;

(ii) Leigh Diane Johnson;

90 I will return to the factual matters which were the subject of evidence shortly.

Relevance of the Plaintiff’s Acquittal on the Second Count and Discontinuance by the Crown of the First Count

91 It was accepted by the parties that the acquittal of the Plaintiff on the second count and the Crown’s decision not to proceed with the first count had no effect on the ventilation of the factual matters underlying those prosecutions, for the purpose of my determining whether the Plaintiff is of good fame and character for the purposes of s.14 of the 1987 Act.

92 An acquittal by a jury turns upon failure to establish guilt beyond reasonable doubt, whereas the civil standard applies in the present proceedings: Zaidi v Health Care Complaints Commission at 86. There is no principle of double jeopardy applicable in professional disciplinary proceedings, or proceedings for admission as a legal practitioner, consequent upon an acquittal in criminal proceedings based on the same facts: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 636; Prothonotary of the Supreme Court of NSW v Del Castillo [2001] NSWCA 75 at [32]; Frugtniet v Board of Examiners (No. 2) at [20]-[22].

93 If the Plaintiff had been convicted of either offence, public policy suggests that so long as the conviction stands, the facts necessarily established ought to be regarded as proved for the purpose of any civil proceedings: Zaidi v Health Care Complaints Commission at 86. A collateral attack upon a conviction in subsequent civil (disciplinary) proceedings ought not be allowed: Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77. Of course, the Plaintiff was acquitted on the second count and the adverse finding at the special hearing on the first count was quashed by the High Court of Australia. The Director of Public Prosecutions then determined not to proceed further on that count. Accordingly, no criminal finding adverse to the Plaintiff remains.

94 Although the criminal proceedings against the Plaintiff, and the evidence adduced at those proceedings, represent an important part of the history of the present application, and provide the source of substantial documentary evidence which is before the Court, the various findings made in those proceedings have no legal effect for the purpose of the issues to be determined by me.

Factual Background to Present Proceedings

95 The factual background to the present proceedings may be obtained sufficiently, at least by way of introduction, from the judgment of Beazley JA in R v Subramaniam [2002] NSWCCA 372 at [5]-[15]:

“The charges against the appellant had their genesis in a traffic breach on 21 August 1995, when a vehicle registered to a Ms Leigh Johnson was photographed by a red-light camera proceeding through a red traffic light.

Ms Johnson is a solicitor practising as Leigh Johnson Lawyers at East Sydney. The appellant was her employee.

A traffic infringement notice was issued to Ms Johnson on 31 August 1995. The traffic infringement notice advised Ms Johnson that under the Traffic Act (NSW), responsibility for the offence was placed on the registered owner. The notice also advised that there were three options available under the notice. First, if she was not the driver or the owner of the vehicle at the time of the offence she could fill in and return the statutory declaration which appeared on the reverse side of the notice, prior to the due date, which was nominated to be 28 September 1995. Secondly, she could pay the fine prior to the due date. Her third option was that if she wished to contest the matter before a magistrate, she was to complete the court election form on the reverse side of the form and a hearing would be arranged. Ms Johnson completed the court election form, signed it, dated it 8 September 1995 and returned it to the NSW Police Service.

A hearing date was appointed for 10 January 1996.

On 21 November 1995, Ms Johnson wrote a letter on her firm's letterhead directed to the Local Court advising that she would not be in Sydney on 10 January 1996 and requested an adjournment of the matter to a date after May 1996. It appears, however, that the matter remained listed for 10 January 1996, Ms Johnson did not appear and the court set the matter down for a defended hearing on 29 May 1996. The court by letter of the same date, that is 10 January 1996, wrote to Ms Johnson advising her the matter had been in the list on that day. Ms Johnson wrote to the Local Court advising that she did not receive any notification that the matter was listed and therefore had not attended the court. She advised that she had been informed by the Infringement Processing Bureau that she needed to lodge a s 100A [Justices Act 1902 (NSW)] application and requested that the court fax a copy of that application to her. Also on 10 January 1996, the clerk of the Local Court wrote to Ms Johnson advising that the matter had been adjourned until 29 May 1996 for plea. It is not apparent from the material available to the Court whether Ms Johnson received the court's letter prior to sending her letter of the same date, although nothing turns upon that for the purposes of the matters relevant to the appeal.

On 29 February 1996, the appellant made a statutory declaration in the following terms:

‘Re: Infringement Y 429792O

I refer to the above infringement and confirm that after having viewed the photographs of the incident, I was driving the vehicle AAV 31Q at this time.

Accordingly, I will take responsibility and finalise the amount outstanding.’

The infringement notice referred to is the one issued to Ms Johnson in respect of the traffic light offence. The declaration was signed before a Mr Oliveri, a solicitor in Ms Johnson's office. Prior to that, on 30 January 1996, Ms Johnson's office had requested from the Camera Detection Unit of the Infringement Processing Bureau a copy of the photographs taken by the red-light camera. The photographs, although showing Ms Johnson's car clearly, were quite dark and no driver is visible.

On 5 March 1996, Ms Johnson under cover of a letter on her firm's letterhead, forwarded the statutory declaration to the Infringement Processing Bureau. She requested that having regard to the contents of the statutory declaration ‘this matter [be] withdrawn from the court list of 29 May 1996 and forward the notice to Ms Subramaniam’. It appears that the matter was listed in the Local Court on 1 May 1996. On that day, a Mr Sukkar, who was a legal clerk employed by Ms Johnson, was requested by Ms Johnson to attend court for the purposes of having the matter listed as a defended matter. On that day he also handed to the court the statutory declaration.

It was the Crown case, accepted by the jury, that Ms Subramaniam was not the driver of the vehicle on the occasion in question but had agreed with Ms Johnson to make the false declaration that she was. The Crown case was based essentially upon the evidence of a Ms Coughlan, who at the time, had been a legal clerk in Ms Johnson's employ. Ms Coughlan alleged that she was present at a conversation between Ms Johnson and the appellant when this was agreed. She was subsequently ‘wired’ with a tape recorder and recorded a conversation with the appellant which, the Crown alleges, contains an admission by the appellant that this was the case.

There was other evidence in the case which was corroborative of Ms Coughlan's evidence. In particular, there was the evidence of Ms Halls, who had been an office assistant employed by Ms Johnson at the time and the evidence of a Mr Dib, who was employed by Ms Johnson as a legal clerk.

Notwithstanding the statutory declaration, Ms Johnson was convicted and fined in her absence by a magistrate on 2 July 1996. Ms Johnson appealed to the District Court against that conviction on 5 August 1996. Subject to one matter, the appellant gave sworn evidence on that day consistent with her statement in the statutory declaration. The ‘matter’ to which I have referred was that at the District Court hearing, the trial judge conducted the examination of the appellant without objection from the Crown or from Ms Johnson. In doing so he asked questions on the basis that the offence had occurred on the night of 29 February 1996

. In fact, the incident recorded by the red light camera occurred at 8.20am.”

Direct Evidence Adverse to the Plaintiff Admitted in the Present Proceedings

96 The evidence adverse to the Plaintiff in the present proceedings falls into four categories:

(a) the evidence of Nicky Simone Halls of a conversation with the Plaintiff on about 7 September 1995 concerning the arrival of the camera infringement notice, in Ms Johnson’s name, at Ms Johnson’s office;

(b) the evidence of Ghassan Dib concerning a conversation with the Plaintiff on 14 October 1996 in which he alleged that the Plaintiff made an admission that she had not been driving the vehicle when it passed through a red light on 21 August 1995;

(c) evidence of a conversation covertly recorded under the Listening Devices Act 1984 , on 6 December 1996, between Maria Coughlan and the Plaintiff during which the Plaintiff makes a number of admissions that she was not the driver of Ms Johnson’s motor vehicle at the time of the red-light camera offence, but had claimed that she was;

(d) documentary evidence, including correspondence signed by the Plaintiff on Ms Johnson’s letterhead, the statutory declaration signed by the Plaintiff on 29 February 1996 and the transcript of proceedings before his Honour Judge PJ Phelan in the Sydney District Court on 5 August 1996.

The Evidence of Ms Halls

97 Ms Halls was employed in Ms Johnson’s office as the officer junior and then as a legal secretary. She knew the Plaintiff who was, at relevant times in 1995 and 1996, Ms Johnson’s personal assistant.

98 Ms Halls gave evidence of an occasion in 1995 when an infringement notice for Ms Johnson arrived in the mail. Ms Halls gave evidence to the following effect at the Plaintiff’s first trial on 31 August 1999, and adhered to this evidence before me (T411, 31 August 1999):

“Q. What was happening, what was she doing and what were you doing?

A. Well I was coming up the stairs, I handed the mail to Kala

, she’d been sitting down on the computer and I sat behind her because there was four desks in the accounts room. She was sitting at the front left and I actually sat on the back left, not on a chair on the table and she was proceeding to open up the mail and she turned round and she said look what Leigh’s got. I said what and she showed me the infringement notice and when we both had a look at it I said where would she be coming from, Harry’s or John’s because they live out that way, Maroubra, Botany way and Kala said I think she might be coming from John’s. And then where’s she going to get the money for this and what about the points she’ll lose. I said I don’t know and then I heard nothing about it. Kala said I’ll get a photo to see where it was and then I didn’t hear another thing about it until the police contacted me.”

99 Ms Halls gave evidence to a similar effect at the special hearing on 30 April 2002 (Exhibit 1, Tab SS9, T45-46).

100 Ms Halls was cross-examined before me and it was suggested to her that no such conversation had taken place with the Plaintiff. Ms Halls maintained that such a conversation had taken place and that she had a good recollection of it (T40-42, 24 October 2006). When challenged in cross-examination about that part of the conversation concerning “where’s she [Ms Johnson] going to get the money” ($184.00), Ms Halls said “there was a time when our wages were in question, so financial situations did come up” (T41.13).

The Evidence of Mr Dib

101 Mr Dib worked as a legal clerk in Ms Johnson’s office from about 25 September to 22 October 1996. He gave evidence in the criminal proceedings against the Plaintiff on 27 June 1997 (committal proceedings), 3 August 1999 (first trial) and 11 May 2002 (special hearing) and again in the present proceedings before me.

102 Mr Dib stated that, on 14 October 1996, he was giving the Plaintiff a lift home and they stopped at McDonalds in Oxford Street, Sydney to get a meal. Mr Dib gave evidence to the following effect at committal proceedings on 27 June 1997, to which he adhered in evidence before me (T12, 27 June 1997):

“HOWARD: Q. Yes?

A. Kala went inside the McDonald’s restaurant and she got a meal for me and then she hopped in the car and I proceeded to driver

her home. The lights went yellow.

Q. Where were you travelling at this stage?

A. Down at Oxford Street.

Q. Continue?

A. The lights went yellow and I braked and she said, ‘Go, go, go’, and I just looked at her and said, ‘No, it’s not worth it’. Then she looked at me and said to me, ‘Leigh went through a red light once and there was some sort of investigation’, and I asked her, ‘What happened?’ and she said, ‘We denied it and we got away with it’.

Q. And did she do anything after she said that?

A. She just put on a laugh.

Q. She put on a laugh?

A. Yes, she laughed.

Q. And did you then drive her home?

A. Yeah, I dropped her off at Potts Point.”

103 A strong challenge was made in cross-examination before me to the veracity and reliability of Mr Dib’s evidence. It was suggested in cross-examination that he bore a grievance towards Ms Johnson. Mr Dib said that he complained to the Law Society about Ms Johnson’s “abuse between employer and employee” which involved “shouting and screaming and intimidation” (T139, 25 October 2006). It was suggested to Mr Dib that he falsely alleged that the conversation with the Plaintiff had taken place on 14 October 2006 as a means of harming Ms Johnson (T143, T155-156). Mr Dib denied this and maintained that the conversation with the Plaintiff had, in fact, taken place.

The Listening Device Conversation between Ms Coughlan and the Plaintiff

104 By 6 December 1996, it appears that a police investigation was on foot. A covert listening device was placed upon Ms Coughlan who then met the Plaintiff and had a conversation with her. The device was used pursuant to a warrant issued under the Listening Devices Act 1984. The complete conversation extends for just over an hour, the transcript of which occupies some 132 pages (Exhibit 1, Tab SS4).

105 A variety of topics are discussed during the conversation between Ms Coughlan and the Plaintiff. I extract below portions of the conversation which appear to relate to the red-light camera offence, the Plaintiff’s statutory declaration, her evidence in the District Court concerning that matter and the driving records of the Plaintiff and Ms Johnson (Exhibit 1, Tab SS4, pages 45ff) (my emphasis):

“[Coughlan]: Your name was in the paper ...

...

[Plaintiff]: That was over her parking ticket, her what do you call it.

[Coughlan]: I know, I know.

[Plaintiff]: Red light camera .

[Coughlan]: Yeah. Yeah. So were you scared?

[Plaintiff] No.

[Coughlan]: Have no problem?

[Plaintiff]: No. How did you know?

[Coughlan]: Well I was there. Do you, do you remember when the, the thing came in.

[Plaintiff]: Yeah.

[Coughlan]: Remember I was working there then, when it all happened.

[Plaintiff]: You were working here?

[Coughlan]: Yeah.

[Plaintiff]: Oh, yeah.

[Coughlan]: It happened last year. Remember it took it so long to get to court?

[Plaintiff]: Yeah, so long.

[Coughlan]: Yeah.

[Plaintiff]: I didn't remember anything.

[Coughlan]: Yeah. Well do you remember I was in the, I was in the, do you remember, you know when we were in the room and she asked which one of us, you know, was going to take it. And I couldn't because of all my ...

[Plaintiff]: Oh, I'd take it .

[Coughlan]: … now. And you said you could, because of your perfect driving record.

[Plaintiff]: Not that I could, but that ...

[Coughlan]: You didn't want to..

[Plaintiff]: Yeah, I could ...

[Coughlan]: .. because of your..

[Plaintiff]: .. not that I wanted to .

[Coughlan]: Yeah, yeah.

[Plaintiff]: But the thing is that they were out of time: they can't strip, they couldn't take any points off my licence anyway. So I've still got a clean record .

[Coughlan]: Really?

[Plaintiff]:

Mm, they were out of time

[Coughlan]: So you, so you, so you were able to do that. Fantastic.

[Plaintiff]: Yeah, so she didn't lose any points, neither did I .

[Coughlan]: Yeah.

[Plaintiff]: And no one got fined either .

[Coughlan]: Yeah.

[Plaintiff]: Yeah.

[Coughlan]: Well that works out right then. So how did you manage that? Or did you just stall it?

[Plaintiff]: I just said - well we didn't stall it. What happened was, they didn't inform us the first day. Right? By the time they had to re-list it, we had no documentation saying it was listed on that day. So no one turned up .

[Coughlan]: Yeah.

Evidence of Ms Johnson

228 I have given careful consideration to the evidence of Ms Johnson and the submissions made concerning her evidence. It is true that her evidence adds a new dimension to the evidence given in earlier criminal proceedings against the Plaintiff.

229 Ms Johnson’s demeanour and manner of giving evidence were not impressive. At times, she was more of an advocate than a witness. At times, she used her answers as a vehicle for a submission or argument which she wished to make, rather than an answer to the question.

230 As I have mentioned, care must be taken in making demeanour findings: Goodrich Aerospace Pty Limited v Arsic at [16]ff. I have attempted to focus upon the content of Ms Johnson’s evidence. It must be said, however, that the presentation of her evidence was unhelpful to the Plaintiff’s case. In written submissions (page 22), Mr Hall acknowledged the “argumentative and troublesome way in which certain aspects” of Ms Johnson’s evidence were “delivered”, but submitted that her evidence was given in “a forthright manner”.

231 Ms Johnson’s evidence displayed a tendency to move from dogmatic statements concerning relevant events which, upon closer examination, appear to be based upon reconstruction and not recollection, mixed with non-responsive answers and the making of strong allegations against a range of persons.

232 There is a fundamental inconsistency between her account, and that of Ms Halls and the Plaintiff, as to when the obtaining of a photograph of the red-light camera offence of 21 August 1995 was first discussed. On this point, I accept the evidence of Ms Halls, supported as it is by the Plaintiff and do not accept the evidence of Ms Johnson.

233 Ms Johnson was not an impressive witness on this appeal. I have already made mention of her argumentative and non-responsive approach to the giving of evidence. More importantly, Ms Johnson’s evidence is inconsistent in certain critical respects, with other evidence. Ms Johnson’s account that she did not know of the ability to obtain photographs of red-light camera offences until January 1996 simply cannot stand with the evidence of Ms Halls and the Plaintiff.

234 There are troubling features about the evidence of Ms Johnson touching both the content of her evidence and her demeanour as a witness. I am left with the definite impression that Ms Johnson, as a witness, was an advocate in the Plaintiff’s (and her own) cause. I am not assisted by the observations of Ms Johnson as a witness in other proceedings, and in an entirely different context, in R v Drummond and Domican (No. 2). All of these matters touch the reliability and credibility of her evidence in such a way that it is appropriate to look for corroboration before acting upon her evidence.

235 I accept that Ms Johnson proposed that photographs of the 21 August 1995 red-light camera offence be obtained as early as September 1995, when the camera infringement notice had been received in her office, and that the Plaintiff knew at that time that the photographs could and should be obtained.

236 It may be that Ms Johnson’s conduct, including her recollection of events, is affected by personal pressure she was experiencing in and after July 1995. Such a conclusion, however, does not assist the Plaintiff with respect to any relevant fact finding in these proceedings.

237 I do not consider that Ms Johnson’s denial that she was driving her motor vehicle at 8.20 am on 21 August 1995 ought be given any real weight on this appeal, having regard to the totality of evidence that is before the Court.

Evidence of Mr Light

238 Ms Anderson submits that Mr Light’s evidence should be approached with some caution. His association with Ms Johnson, including his contacts with her which served to explain how he came to be called as a witness in the Plaintiff’s case emerged, in a developing way, in cross-examination. It was submitted that he is not a witness who is at arm’s length from Ms Johnson and there is force in this submission.

239 I do not consider that Mr Light’s late arrival to the case as a witness assists the Plaintiff. It may well be that there was a conversation between Ms Johnson and Mr Light concerning the facility of obtaining photographs of a red-light camera offence. At its highest, Mr Light’s evidence points to a conversation with Ms Johnson concerning a traffic camera offence many years before October 2006. I do not accept that this conversation occurred in January 1996.

A Finding of Conspiracy

240 Mr Hall submits strongly that findings adverse to the Plaintiff on these issues would involve a finding of a conspiracy between the Plaintiff and Ms Johnson to engage in an elaborate subterfuge for the purpose of defeating the prosecution of Ms Johnson (and saving her the loss of demerit points).

241 It is appropriate to observe that Ms Johnson’s driving record revealed speeding offences committed on 14 January 1994 (Court determination on 2 August 1994 - four demerit points) and 29 April 1994 (Court determination on 10 February 1995 - three demerit points). The offence of 21 August 1995 would not have led directly to the cancellation of Ms Johnson’s licence. However, a further traffic offence could place her licence in jeopardy, as demonstrated by the issue to Ms Johnson of a demerit points warning letter on 20 July 1996 by reference to the two 1994 speeding offences and the red-light camera offence of 21 August 1995 (Exhibit 1, Tab SS22).

242 It is also noteworthy that Ms Johnson’s driving record reveals fine default cancellations of her licence on 3 April 1989, 25 March 1993 and 19 July 1994. Ms Johnson’s reaction to fine default cancellation was a topic touched upon by the Plaintiff in the recorded conversation with Ms Coughlan on 6 December 1996. This is a further indication that the conversation, insofar as it related to driving offences and driver licence issues, related to actual events.

243 The Plaintiff’s driving record discloses that an unrestricted licence issued to her on 12 July 1991 with no traffic offences recorded against her as at February 1997 (Exhibit 1, Tab SS21). Accordingly, the traffic records of the Plaintiff and Ms Johnson provide broad support for the admissions made by the Plaintiff to Ms Coughlan on 6 December 1996.

244 Although Ms Johnson has given evidence before me and I have made findings critical of her as a witness , she is not a party to the present proceedings. It is the Plaintiff who applies to this Court, seeking a finding that she is of good fame and character and is otherwise suitable for admission as a legal practitioner. For the purpose of this appeal, it is not necessary that I make a finding as to whether a conspiracy existed between the Plaintiff and Ms Johnson in 1995 and 1996.

245 What is necessary to be determined is whether, in 1996, the Plaintiff falsely stated in a statutory declaration, and in evidence before the District Court, that she was the driver of Ms Johnson’s motor vehicle at 8.20 am on 21 August 1995 when, in fact, she was not. As in the criminal proceedings, there is a body of admissible evidence against the Plaintiff in support of a conclusion that the Plaintiff made false statements to that effect to assist Ms Johnson.

246 The criminal proceedings brought against Ms Johnson culminated in her discharge at committal proceedings in 1997. There is no more admissible evidence against Ms Johnson now than there was in 1997.

247 I approach my findings on this appeal upon the basis of admissible evidence against the Plaintiff which is capable of supporting, and does support, a finding to the relevant standard that she engaged in misconduct.

Findings of Fact

248 I turn now to the findings of fact to be made having regard to the totality of evidence before the Court.

The Plaintiff’s False Statutory Declaration and False Evidence

249 With respect to the disputed issues concerning alleged impropriety on the Plaintiff’s part, I record that I am reasonably satisfied, on the balance of probabilities (in accordance with the Briginshaw principle) of the following facts:

(a) the Plaintiff was not the driver of Ms Johnson’s BMW motor vehicle registered number AAV 31Q at 8.20 am on 21 August 1995, when that vehicle passed through a red traffic light at the intersection of Crown Street and Albion Street, Surry Hills;

(b) the Plaintiff made a statutory declaration on 29 February 1996 in which she claimed, falsely and to her knowledge, that she had been the driver of this motor vehicle at that time and place;

(c) the Plaintiff gave evidence before his Honour Judge PJ Phelan in the District Court on 5 August 1996 in which she again claimed, falsely and to her knowledge, that she had been the driver of this motor vehicle at that time and place;

(d) the Plaintiff falsely stated that she had been the driver of Ms Johnson’s motor vehicle on 21 August 1995 for the purpose of assisting Ms Johnson;

(e) the Plaintiff delayed making her false admission that she was the driver of the motor vehicle until more than six months had passed from the date of the offence - in this way, the Plaintiff avoided prosecution for the offence and any loss of demerit points - at the time of making her statutory declaration, the Plaintiff was aware that it was too late for the Police or the Roads and Traffic Authority to proceed against her for the offence;

(f) the Plaintiff made a credible and reliable admission with respect to this conduct in a conversation with Mr Dib on about 14 October 1996;

(g) the Plaintiff made credible and reliable admissions concerning this conduct during a conversation with Ms Coughlan on 6 December 1996;

(h) the Plaintiff’s evidence in this Court on 24 and 25 October 2006, in an effort to explain away the admissions made by her in the conversation with Ms Coughlan on 6 December 1996, was glaringly improbable and did not constitute credible and reliable evidence.

The Plaintiff’s Disclosure to the Board

250 The Plaintiff continues to harbour a view, confirmed in her evidence in this Court on 24 October 2006, that she is a victim with respect to past proceedings brought against her concerning this subject matter. Having regard to the evidence against her and, in particular, her own admissions to Ms Coughlan on 6 December 1996, this stance is unrealistic and unhelpful to the Plaintiff in the present proceedings.

251 A number of observations are appropriate with respect to the nature and extent of disclosure by the Plaintiff in her application to the Board of June 2003. There are troubling features concerning the manner in which the Plaintiff purported to satisfy her duty of disclosure at that time, and to explain her approach in evidence on the present appeal.

252 The matters disclosed by the Plaintiff to the Board were set out earlier in this judgment (at paragraph 80). It is clear that a document, partly typed and partly written, was prepared by the Plaintiff for the express purpose of disclosure to the Board.

253 There is no evidence before me that the Plaintiff provided the Board with a copy of the judgment of the Court of Criminal Appeal delivered on 25 November 2002 in R v Subramaniam [2002] NSWCCA 372. Certainly, there is no reference to the judgment of the Court of Criminal Appeal in the typed and handwritten sheet prepared by the Plaintiff for provision to the Board. The evidence reveals that, by 1 July 2003, the Board had obtained and considered a copy of the judgment of the Court of Criminal Appeal, but the source of the judgment is not disclosed in the evidence.

254 The judgment of the Court of Criminal Appeal represented the latest and most complete statement of the findings made against the Plaintiff in criminal proceedings at the time of her application to the Board. Appropriate disclosure in accordance with the Plaintiff’s obligations required, as a minimum, provision of this judgment to the Board.

255 The Plaintiff used the occasion of her application to the Board to advance a self-serving argument that she had been “a victim of a horrendous unjustified District Court matter over a ‘red traffic light offence’” which “ran over many years, for political reasons, at the expense of my health and career”. The Plaintiff stated “I have no conviction in law against me”.

256 The finding which had been made against the Plaintiff, and upheld by the Court of Criminal Appeal, involved a verdict under s.22(1)(c) Mental Health (Criminal Procedure) Act 1990 that she had committed an offence under s.319 Crimes Act 1900 of making a statutory declaration, knowing it to be false, with intent to pervert the course of justice. It was technically correct that there was “no conviction in law” against the Plaintiff for this offence: s.22(3)(a) Mental Health (Criminal Procedure) Act 1990. However, such a finding constituted a “conviction” for the purpose of s.2(1) Criminal Appeal Act 1912. The Plaintiff had appealed under that Act to the Court of Criminal Appeal with respect to that finding.

257 Further, to characterise the prosecution of the Plaintiff for public justice offences under s.319 Crimes Act 1900 as being a “matter over a ‘red traffic light offence’” tends to understate significantly the nature and seriousness of the charges which had been brought against her, one of which remained proved at the time of the Plaintiff’s application to the Board. In the Court of Criminal Appeal, Simpson J (who dissented solely with respect to the refusal of a stay of proceedings in the District Court) said at [83]:

“Here, it cannot be gainsaid that the crimes with which the appellant was charged were very serious ones, concerned with the administration of justice. There is a significant public interest in the finalisation of allegations such as were levelled against the appellant. In the ordinary course, a failed trial would not be a reason precluding the further prosecution of such allegations.”

258 The provision of Mr Waterstreet’s contact details as part of the disclosure was not a satisfactory procedure for the Plaintiff to discharge her obligation.

259 The making of incomplete and self-serving disclosures by an applicant has been the subject of critical comment, and has been found to be conduct capable of reflecting adversely upon fitness for admission. In Thomas v Legal Practitioners Admission Board (2005) 1 QdR 331, an applicant for admission provided an incomplete and self-serving statement with respect to a criminal offence. De Jersey CJ said at 334:

“By making candid and comprehensive disclosure of relevant information an applicant demonstrates a proper perception of his or her duty and will thereby seek to demonstrate his or her good character. It is not a sufficient answer to say, as was said, that the Board ended up with all relevant information. The significant feature is that it was furnished only gradually and then only in response to express and repeated requests from the Board.”

“The difficulty for the appellant is that the disclosure he made to the Board of the details of these offences was incomplete. He was, to say the least, cavalier in that disclosure, referring to having pleaded guilty to a matter in 1995/1996, instead of 1998, and dismissing it as a ‘debt charge’ when it was a significant fraud committed on his employer involving $8,640.00. He did, however, rightly disclose that ‘no conviction was recorded, no probation or community service was issued either’. He did not disclose that a significant fine was imposed. It made clear that he had been involved in criminal behaviour so that it was inevitable that the Board would investigate this matter fully before deciding whether to accede to his application to enter into Articles of Clerkship. This makes his lack of candour, though unfortunate, not nearly as serious as that in

Re Hampton

[2002] QCA 129. His lack of disclosure does, however, demonstrate a lack of insight into his serious past misconduct and a lack of understanding of his duty to make full and accurate disclosure to the Board.”

260 It may be said, on the Plaintiff's behalf, that there was some disclosure of the prior criminal proceedings, together with the provision of Mr Waterstreet’s particulars, and that this would have led to a fuller disclosure on her behalf. In my view, this is not a satisfactory answer to the criticisms which arise from the information included in, and omitted from, the Plaintiff’s disclosure to the Board in June 2003.

261 The approach taken by the Plaintiff in that disclosure, including the claim of unfounded victimisation “for political reasons”, is capable of bearing upon her current claim of fitness for admission to the legal profession. Likewise, the Plaintiff’s evidence in October 2006 maintaining the belief that she had been the victim of unfounded proceedings against her.

262 A fundamental difficulty with the Plaintiff's approach is that the principal foundation of the case against her in the criminal proceedings, and again on the present appeal, is her own confession on 6 December 1996 to Ms Coughlan.

263 I am not concluding that admission of guilt by the Plaintiff is an essential prerequisite for admission: cf Zaidi v Health Care Complaints Commission at 100. Nevertheless, the Plaintiff’s continuing vigorous claim of victimisation with respect to proceedings which were based principally upon her own confession, casts a shadow over her claim of current good fame and character and suitability for admission to the legal profession.

264 I am conscious of the consequences that flow from a finding that the Plaintiff has engaged in improper conduct, involving the making of a false statutory declaration and the giving of false evidence. A finding that the Plaintiff is not of good fame and character, and is otherwise not suitable for admission as a legal practitioner on those grounds, is capable of constituting a long-standing, if not permanent, impediment to the Plaintiff’s admission to the legal profession. It is not a finding to be made lightly. I have given careful consideration to the evidence adduced and submissions made on this appeal.

265 However, the function which I am exercising touches the public interest, and the protection of the community and the legal profession. Admission of a person as a legal practitioner reposes in that person a significant degree of trust. Courts and fellow practitioners are entitled to rely upon legal practitioners, and honesty and integrity are essential preconditions to admission to the legal profession.

266 Being reasonably satisfied, on the balance of probabilities, I have made findings of fact of substantial impropriety against the Plaintiff. These factual findings do not depend upon inexact proofs, indefinite testimony or indirect inferences. The principal basis for the findings which I have made is confessional evidence emanating from the Plaintiff herself.

Findings Concerning the Plaintiff’s Evidence

267 In a number of areas, I have rejected the evidence of the Plaintiff. In particular, I have found that her attempts to explain away her admissions to Ms Coughlan on 6 December 1996 were glaringly improbable.

268 I have had the advantage of seeing the Plaintiff give evidence and I have considered carefully her evidence. For reasons given, I do not find the Plaintiff to be a witness whose evidence was frank and who faced the facts put before her or the implications of them: cf Law Society of NSW v Foreman at 449F. I have found portions of her evidence to be not credible.

269 This assessment of the Plaintiff’s credibility bears upon two things: her character and what she is apt to do in the future. These are related issues. Findings as to credibility may be taken into account in arriving at findings as to the two other matters: Smith v NSW Bar Association (1992) 176 CLR 256 at 268-269; Bannister v Walton at 723-729; Law Society of NSW v Foreman at 450C-D.

Current Good Fame and Character?

270 I am conscious that the events which have attracted the principal attention of the Court on this appeal occurred more than a decade ago. However, the making of a false statutory declaration and the giving of false evidence in a Court are matters which strike at the heart of the processes of justice. To act in such a way is entirely inconsistent with the requirements of integrity and honesty which are essential prerequisites for admission as a legal practitioner. The Plaintiff had commenced her legal studies by the time of relevant events in 1995 and 1996. Findings that the Plaintiff has acted in this way are inconsistent with the requirement that the Plaintiff be of good character.

271 It is clear that, had the question been asked in August 1996, the Plaintiff could not have satisfied a Court that she was then of good fame and character and otherwise suitable for admission as a legal practitioner.

272 The Plaintiff is not assisted by the passage of time since the events of 1995 and 1996. I have found that she has is not a credible witness, in particular in her glaringly improbable account attempting to explain away her admissions to Ms Coughlan on 6 December 1996: Law Society of NSW v Foreman at 450C-D. This was a central feature of her evidence. The Plaintiff persists in a claim that she is the victim of processes which were based, essentially, upon her own confessions. The Plaintiff’s disclosure to the Board in June 2003 was incomplete and self-serving, and did not demonstrate a proper perception of her duty of candour. This does not assist the Plaintiff in the present application: Thomas v Legal Practitioners Admission Board at 334, 335-336.

Conclusion

273 Having regard to the findings which I have made, I am not satisfied that the Plaintiff is of good fame and character and is otherwise suitable for admission as a legal practitioner.

274 The Amended Summons is dismissed. As agreed at the conclusion of the hearing, I will give the Plaintiff and the Board an opportunity to consider whether any application for costs is to be made. I stand the matter over until 9.30 am on 13 December 2006 to allow the Plaintiff and the Board an opportunity to consider my reasons for this purpose.

********

CITATION:	Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338
HEARING DATE(S):	24 October 2006, 25 October 2006, 26 October 2006, 8 November 2006
JUDGMENT DATE :	5 December 2006
JUDGMENT OF:	Johnson J at 1
DECISION:	Amended Summons dismissed.
CATCHWORDS:	LEGAL PRACTITIONERS - appeal to Supreme Court from refusal by Legal Practitioners Admission Board to declare Plaintiff to be of good fame and character and otherwise suitable for admission as a legal practitioner - appeal by way of de novo hearing - role of Board on hearing of appeal - earlier criminal proceedings against Plaintiff for two alleged offences of perverting the course of justice contrary to s.319 Crimes Act 1900 - Plaintiff acquitted on one count and (following appeal) Crown determines not to proceed further on second count - approach to resolution of disputed factual issues on appeal - onus and standard of proof - whether Plaintiff made false statutory declaration and gave false evidence in 1996 wrongly claiming that she was driver of motor vehicle at time of red-light traffic offence - meaning of "good fame and character" - duty of candour on application for admission - finding on appeal that Plaintiff gave glaringly improbable evidence - held Plaintiff not of good fame and character and otherwise suitable for admission as legal practitioner
LEGISLATION CITED:	Legal Profession Act 1987 Legal Profession Act 2004 Evidence Act 1995 Crimes Act 1900 Mental Health (Criminal Procedure) Act 1990 Crimes (Sentencing Procedure) Act 1999 Listening Devices Act 1984 Justices Act 1902 Criminal Appeal Act 1912
CASES CITED:	Subramaniam v The Queen (2004) 79 ALJR 116; [2004] HCA 51 Re B (1981) 2 NSWLR 372 A Solicitor v Council of Law Society of NSW [2004] 216 CLR 253 Morrissey v The New South Wales Bar Association [2006] NSWSC 323 Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 Veghelyi v Council of the Law Society of NSW (1989) 17 NSWLR 669 Doherty v Law Society of NSW [2003] NSWSC 105 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Frugtniet v Board of Examiners (No. 2) [2005] VSC 332 Board of Examiners v XY [2006] VSCA 190 The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 Wentworth v NSW Bar Association (1992) 176 CLR 239 Gersten v Law Society of NSW (2002) 56 NSWLR 16 Skerritt v Legal Practice Board of WA [2004] WASCA 28 Wentworth v NSW Bar Association (Court of Appeal, 14 February 1994, unreported, BC9402256) Helton v Allen (1940) 63 CLR 691 Rejfek v McElroy (1965) 112 CLR 517 Bannister v Walton (1993) 30 NSWLR 699 Kriss v Legal Practitioners Admission Board [2002] NSWSC 967 Zaidi v Health Care Complaints Commission (1998) 44 NSWLR 82 Briginshaw v Briginshaw (1938) 60 CLR 336 B v Medical Superintendent of Macquarie Hospital (1987) 10 NSWLR 440 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 Stanoevski v Council of the Law Society of NSW [2005] NSWCA 428 In Re Davis (1947) 75 CLR 409 Melbourne v The Queen (1999) 198 CLR 1 Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 Law Society of NSW v Foreman (1994) 34 NSWLR 408 Barristers Board v Khan [2001] QCA 92 Re Hampton [2002] QCA 129 Thomas v Legal Practitioners Admission Board [2004] QCA 407 Re Bell [2005] QCA 151 Legal Practitioners Complaints Committee v Palumbo [2005] WASC 129 Barristers’ Board v Darveniza (2000) 112 A Crim R 438 Frugtniet v Board of Examiners (No. 1) [2002] VSC 140 Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470 R v Subramaniam [2000] NSWCCA 441 R v Subramaniam [2002] NSWCCA 372 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Prothonotary of the Supreme Court of NSW v Del Castillo [2001] NSWCA 75 Prothonotary of the Supreme Court of NSW v Pangallo (1993) 67 A Crim R 77 R v Murphy (1985) 4 NSWLR 42 R v Drummond and Domican (No. 2) (1990) 46 A Crim R 408 Prothonotary of the Supreme Court of NSW v Helen Maria Coughlan (Dowd J, 21 April 1998, unreported) R v Smith [2000] NSWCCA 202 Burns v The Queen (1975) 132 CLR 258 R v Green (2002) 4 VR 471 R v Pederick (NSW Court of Criminal Appeal, 21 May 1997, unreported, BC9701982) Mallard v The Queen (2005) 80 ALJR 160; [2005] HCA 68 Goodrich Aerospace Pty Limited v Arsic [2006] NSWCA 187 Smith v NSW Bar Association (1992) 176 CLR 256 Thomas v Legal Practitioners Admission Board (2005) 1 QdR 331 Smith v NSW Bar Association (1992) 176 CLR 256
PARTIES:	Kala Jackson (previously known as Kala Subramaniam) (Plaintiff) Legal Practitioners Admission Board (Defendant)
FILE NUMBER(S):	SC 12670/2003
COUNSEL:	Mr T Hall, Solicitor (Plaintiff) Ms TJ Anderson (Defendant)
SOLICITORS:	Hal Lawyers (Plaintiff) IV Knight, Crown Solicitor's Office (Defendant)
LOWER COURT DATE OF DECISION:	---
LOWER COURT MEDIUM NEUTRAL CITATION:	---