Re Shepherd Summary | CaseChat AU

[2007] QCA 83

SUPREME COURT OF QUEENSLAND

de JERSEY CJ
MUIR J

DOUGLAS J

IN THE MATTER OF AN
APPLICATION FOR ADMISSION
AS LEGAL PRACTITIONER BY:

Applicant

BRISBANE

DATE 19/03/2007

ORDER

THE CHIEF JUSTICE: The focus of the Board's position in opposing this application for

admission is the instances of offences of fraud committed against the Commonwealth in respect

of the receipt of Centrelink benefits to which the applicant was not entitled.

There were some 44 submissions of forms, over a two and a half year period up to February

2004, in which the applicant understated the income she was receiving from situations of part-

time employment. The amount of the defalcation was of the order of seven to $8,000 and that

amount was in the end repaid by the applicant's parents to the Commonwealth, they having

entered into an arrangement with her in relation to repayment.

The misleading of Centrelink involved serious deception, and a level of dishonestly which

would ordinarily be considered glaringly inimical to the honesty integral to fitness to practise

as a legal practitioner.

The explanation which is offered revolves about the personal circumstances of the applicant;

an abusive relationship; alleged instances of rape within that relationship; termination of pregnancies, disastrous circumstances which had led to her voluntarily undergoing psychological and

psychiatric treatment which is continuing.

The current position is usefully set out in the psychologist's report from which I read in the

course of argument. . I will

have to repeat that:

" is not currently suffering with a pervasive clinically significant psychological disorder. She does, however, experience periods of feeling overwhelmed by the raft of the implications arising from her offending behaviour. This distress manifests as acute anxiety, low mood and self- deprecatory thoughts. Fortunately, however, applies techniques acquired during counselling and is able to regain emotional equilibrium relatively quickly."

The psychologist's expectation is that the favourable resolution of the present application would

do much to relieve her potential for distress; a potential which is highly relevant, of course, in

the area in which she has been working,

Her application today is supported by comprehensive affidavits from persons in the firm

and a consultant to that firm, .

There is no doubt that constitutes strongly persuasive support for her present application.

The position taken by the Board is that the application should await the effluxation of the two

year bond period imposed on the 8th of September 2006 following the applicant's pleas of guilty

to the fraud offences. She was released upon entering into a recognizance in the sum of $2,000

on condition she be of good behaviour for a period of two years. That period of two years

expires on the 8th of September 2008.

senior counsel, for the applicant, refers to the statutory provisions under which

that order was made and characterises it as nominal punishment. That may be so, but as he also

rightly acknowledged, this Court now is embarking upon a rather different enquiry, that is the

holding out of the applicant to the public as fit to practise as a legal practitioner.

In my opinion, notwithstanding the circumstances which surrounded her during the period of

the offending, and notwithstanding the substantial support given her by her seniors within the firm, and the level of assurance which is afforded by the continuing psychiatric and

psychological counselling and support, the problem in the end, from our point of view, does

remain, and that is the inordinate difficulty of holding out, at this stage, as fit to practise as

a lawyer, a person who, in comparatively recent years, has committed serious offences involving

deception, for her own financial benefit, and in circumstances where it was only on the 8th of

September last year that she was dealt with for that offending in the Magistrates Court.

It does seem to me that the application should be adjourned to a date to be fixed, not to be re-

listed before the 8th of September 2008, and I can say in conclusion, that the reasons which in

combination lead me to that position, are conveniently summarised in the reasons assigned by

the Board in paragraph 11 of its outline dated the 16th of March, 2007.

MUIR J: I agree with the reasons of the Chief Justice and with the order he proposes.

I consider the Board's approach to the application to be a sensible one, namely that final

determination should await the expiration of the bond.

DOUGLAS J: I agree with the reasons of the Chief Justice and of Justice Muir.

THE CHIEF JUSTICE: Those are the orders made by the Court.

CaseChat Overview and Summary

The case of Re Shepherd involved an application for admission as a legal practitioner by the applicant, who had previously committed offences of fraud against the Commonwealth, specifically related to the underreporting of income for Centrelink benefits. The Queensland Court of Appeal considered the application in light of the applicant's personal circumstances and the recommendations of her psychologist, who indicated that she did not suffer from a pervasive psychological disorder and was capable of regaining emotional equilibrium relatively quickly. The applicant's support from her employer and her ongoing psychological treatment were noted by the court. However, the court focused on the recent nature of the fraud offences and the importance of holding out individuals as fit to practise as legal practitioners. The court concluded that the application should be adjourned until after the expiration of the two-year bond imposed on the applicant, which ends on 8th September 2008.

The primary legal issue before the court was whether the applicant, given her recent history of fraud, was fit to be admitted as a legal practitioner. This involved balancing the personal circumstances that led to her offending against the necessity of maintaining public confidence in the legal profession. The court had to consider the statutory requirements and the guidelines set by the Board regarding the admission of legal practitioners. The court was also required to evaluate the applicant's current psychological state and the support she had from her employer and ongoing counselling, and how these factors impacted her fitness to practise law.

The court, led by de JERSEY CJ, concluded that despite the applicant's personal circumstances and the support she had received, the recent nature of her fraud offences made it difficult to hold her out as fit to practise law at that time. The court emphasized the importance of maintaining public confidence in the legal profession and noted that the applicant's fitness to practise should be re-evaluated after the two-year bond period had elapsed. The court decided to adjourn the application until after the bond period ended on 8th September 2008, aligning with the Board's recommendation. Justices MUIR and DOUGLAS concurred with the Chief Justice's reasoning and the proposed order.

The Supreme Court of Queensland ordered that the application for admission as a legal practitioner by the applicant be adjourned until after the expiration of the two-year bond period, which ends on 8th September 2008. The court's decision was based on the need to maintain public confidence in the legal profession and the recent nature of the applicant's fraud offences. The court acknowledged the applicant's personal circumstances, ongoing psychological support, and the recommendation of her psychologist but concluded that these factors did not outweigh the need to wait until the bond period had fully elapsed before making a final determination on her fitness to practise as a legal practitioner.

Re Shepherd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established