Re Application for Admission as a Legal Practitioner - [2004] SASC 426

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
IN THE MATTER OF AN APPLICATION FOR ADMISSION AS A LEGAL PRACTITIONER
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry, The Honourable Justice Debelle and The Honourable Justice White)
17 December 2004
PROFESSIONS AND TRADES - LAWYERS - QUALIFICATIONS AND ADMISSION
Application for admission as a legal practitioner - applicant previously convicted of a number of offences committed as part of a course of dishonest conduct - disclosure of conduct incomplete - whether applicant a fit and proper person and of good character.
Legal Practitioners Act 1981 (SA) s 15(1)(a), referred to.
Re Harrison (1992) 168 LSJS 84, discussed.
Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; New South Wales Bar Association v Davis (1963) 109 CLR 428; Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 270; Ex parte Lenehan (1948) 77 CLR 403; In re Vadasz (1988) 146 LSJS 455, considered.

IN THE MATTER OF AN APPLICATION FOR ADMISSION AS A LEGAL PRACTITIONER
[2004] SASC 426
Full Court: Doyle CJ, Perry, Debelle and White JJ

DOYLE CJ: The Full Court heard submissions, at its instance, on an application by the applicant for admission as a practitioner of this Court. We heard submissions from counsel for the applicant and counsel for the Law Society.
The issue is whether the applicant satisfies the requirement for admission as a practitioner of the Court that he be of good character: see s 15(1)(a) of the Legal Practitioners Act 1981 (SA). He has complied with the other statutory requirements.
The Board of Examiners has reported to the Court that it is satisfied that the applicant is a fit and proper person to be admitted as a practitioner of the Court. The certificate from the Board was accompanied by a Report from the Board relating to the applicant. Matters raised in the Report caused the Court to invite submissions on the application for admission.
The Report by the Board, and material provided by the applicant, discloses that the applicant has been convicted of a number of offences, and that they were committed as part of a course of dishonest conduct. Moreover, the disclosure initially made by the applicant to the Board was incomplete. He disclosed his convictions, but not the course of conduct of which they were part. These are the matters that require consideration.
Facts
The applicant was born in 1975. He began to study law in early 1988. He completed the academic and practical requirements for admission at the end of 2002.
He applied for admission in November 2002. Consideration of the application has been considerably delayed because the applicant has been overseas for much of the time since then.
In his statutory declaration accompanying the application, the applicant stated:
“Apart from expiation offences, I have not been convicted or found guilty by a court of any offences, nor, so far as I am…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2004] SASC 426
Decision Date: 17 December 2004

CaseChat Overview and Summary

The application for admission as a legal practitioner was heard by Doyle CJ, Perry J, and Debelle J. The applicant had previously been convicted of several offences that were part of a course of dishonest conduct. Additionally, the applicant's initial disclosure to the Board regarding this conduct was incomplete. The central legal issues were whether the applicant was a fit and proper person and of good character to be admitted as a legal practitioner.

The court examined the nature and context of the applicant's past misconduct, considering whether it reflected a pattern of dishonesty or if it was the result of youthful immaturity and poor judgment. The court also assessed the completeness of the applicant's disclosure, noting that initial omissions did not necessarily undermine the applicant's current suitability for admission. The court had to balance the need to maintain professional standards with the applicant's demonstrated remorse, personal growth, and the passage of time since the offences were committed.

The court concluded that the applicant's past conduct, while serious, was attributable to immaturity and did not reflect a lasting character defect. The applicant had expressed genuine remorse, shown significant personal development, and led a blameless life since the offences. The court found that the ordinary member of the public would accept the applicant's explanation and would be confident in his ability to adhere to the standards required of a legal practitioner. The court was satisfied that the applicant had demonstrated that he was a fit and proper person to be admitted as a legal practitioner.

Orders

Orders of the court

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Background

Background to the litigation

The Report by the Board, and material provided by the applicant, discloses that the applicant has been convicted of a number of offences, and that they were committed as part of a course of dishonest conduct. Moreover, the disclosure initially made by the applicant to the Board was incomplete. He disclosed his convictions, but not the course of conduct of which they were part. These are the matters that require consideration.Facts The applicant was born in 1975. He began to study law in early 1988. He completed the academic and practical requirements for admission at the end of 2002. He applied for admission in November 2002. Consideration of the application has been considerably delayed because the applicant has been overseas for much of the time since then. In his statutory declaration accompanying the application, the applicant stated:“Apart from expiation offences, I have not been convicted or found guilty by a court of any offences, nor, so far as I am aware, are there any charges or proceedings outstanding against me in relation to any offence or offences alleged to have been committed by me, save and except for those referred to in [a letter annexed to the declaration].”The annexed letter discloses two matters. First, that in July 1993 he pleaded guilty to a charge of larceny committed in May 1993. No conviction was recorded. The charge related to an item of clothing. The offence is one commonly described as shoplifting. The applicant attributed the offence to peer pressure and his immaturity. He expressed remorse. He further disclosed that in November 1997 he pleaded guilty to two counts of larceny, one count of receiving stolen property, and one count of giving a false name and address. These offences were committed in March 1997. He disclosed that he was convicted on each count, was fined and entered into a bond to be of good behaviour for a term of three years. At this time he was 22 years of age. The larceny and receiving offences involved items of clothing, the larceny offences again being shoplifting offences. In the letter the applicant explained in some detail that at this time he was experiencing some difficulties in his personal and private life. He was anxious to impress a girlfriend and stole an item of clothing intending to give it to her as a gift. The other charge of larceny, he said, related to a pair of jeans, although the facts stated by the applicant suggest an offence of receiving rather than one of larceny. The charge of receiving also related to an item of clothing which the applicant said he had borrowed from a friend, knowing it to have been stolen. The applicant said that when detected in connection with these offences he initially gave a false name and address, but in due course realised that he could not maintain the pretence and so disclosed his true identity. The applicant expressed remorse and regret over his conduct. He outlined his career since 1988. He had succeeded in his studies, had had employment with a number of employers, and had succeeded at a very high level in his chosen sport. He assured the Board that his conduct was that of an adolescent boy, and that the Board could be confident that he was now a fit and proper person to be admitted.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have considered this aspect of the matter carefully. In the end I consider that the ordinary member of the public would also accept, as I have, that the deficiencies in the applicant’s conduct are due to immaturity and misjudgment, and do not point to the conclusion that the applicant is not a fit and proper person to be admitted. Likewise, I am satisfied that the ordinary member of the public would appreciate the role of youth and immaturity in the applicant’s conduct, and would accept that this can now be put behind him, and that the applicant can be trusted to adhere to the standards required of a legal practitioner. I do not regard the applicant’s misconduct as so serious that, however much he has changed, he should not be permitted to be a member of the legal profession, and I do not consider that the ordinary member of the public would take that view.Conclusion For all those reasons I am satisfied that the applicant is a fit and proper person to be admitted, and should be admitted as a practitioner of this Court. PERRY J: I agree with the order proposed by the Chief Justice and with his reasons. DEBELLE J: The facts are recited in the reasons of Doyle CJ, which I have had the advantage of reading. When an applicant for admission or re-admission has been found guilty of a criminal offence, the question for consideration is whether the applicant has proved that, notwithstanding the earlier criminal conduct, at the time of his application he is a fit and proper person to be admitted: Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 per Higgins J at 692. The question for the Court is whether the applicant has proved that he is a fit and proper person to be a legal practitioner, notwithstanding his past misconduct: New South Wales Bar Association v Davis (1963) 109 CLR 428 at 432. These standards are not imposed for any reason other than in an attempt to protect the public interest. For these reasons, a Court must exercise the greatest caution before holding out to the public as fit to be a legal practitioner, one whose character has borne the stain of serious misconduct. The issue is whether the applicant is fit to practice. The decision for the Court has nothing to do with punishment: Ziems v The Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 270 at 286. An applicant’s past misconduct is not a bar to admission or re-admission. The question for the Court to consider is whether the applicant has demonstrated that he has renounced his past criminal behaviour and has since led a blameless life. I adopt with respect the remarks of Latham CJ and Dixon and Williams JJ in: ex parte Lenehan (1948) 77 CLR 403 at 424:“There must be a strong disinclination to admit to the profession of a solicitor any person who has been shown ever to have been guilty of improper conduct. It is a disinclination founded upon the unsafety of such a course and the need of strictness in maintaining the standards of the profession. But the false steps of youth and early manhood are not always final proof of defective character and unfitness. The presumption which, according to circumstances, they may appear to raise may surely be overcome by a subsequent blameless career.”The applicant bears the onus of establishing that he is no longer likely to err.

Ratio Decidendi

Legal Principle Established

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