Re Wong
[2006] VSC 471
•29 November 2006
SUPREME COURT OF VICTORIA
FULL COURT
No. 9872 of 2006
IN THE MATTER OF FLORENCE HEUNG YUN WONG
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JUDGES: | WARREN, C.J., CHERNOV, J.A. and CUMMINS, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 November 2006 | |
DATE OF JUDGMENT: | 29 November 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 471 | |
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Admission to the legal profession – Articles of clerkship – Principal not an “eligible legal practitioner” for the required period of time – Legal Practice (Admission) Rules 1999 r.3.11- Bona fide error – Re Warren [1976] VR 406, applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Board of Examiners | Mr R. Meldrum, QC | |
| For Ms Wong | Mr N. Mukhtar, QC | Russell Kennedy |
WARREN, C.J.,
CHERNOV, J.A.,
CUMMINS, J.:
The Court has before it a notice of originating motion pursuant to which the Board of Examiners moves the Court to consider its report of 21 November 2006 in which it identifies an irregularity in the admission of Florence Heung Yun Wong, who was admitted to the legal profession by this Court on 26 April 2006. The irregularity is constituted by a technical deficiency in the qualifications of the principal under whom Ms Wong served her articles of clerkship contrary to r.3.11 of the Legal Practice Admission Rules 1999 (“the Rules”). Notwithstanding that the principal swore in her affidavit in support of Ms Wong’s application for admission that she was relevantly qualified, she did not manage a trust account for the whole of the two year period prescribed by the Rules and, thus, was not relevantly qualified. Upon becoming aware of this irregularity, the principal immediately notified the Board.
So far as is relevant, the report of the Board states as follows. On 8 March 2005, Ms Wong entered into Articles of Clerkship between herself as clerk and Rosemary Barbara Southgate as principal. Ms Southgate was then, and is now, a partner in the law firm of Russell Kennedy and has been in practice as an “eligible legal practitioner”[1] since 9 July 2004. She deposed in her affidavit of 8 March 2005 that verified the Articles of Clerkship in question that she was competent pursuant to the Rules to have a clerk articled to her. In the circumstances and relying, in part, on the affidavit of Ms Southgate the Board approved the Articles of Clerkship on
9 May 2005.
[1]“Eligible legal practitioner” was relevantly defined by r.1.05 of the Legal Practice (Admission) Rules 1999.
So far as is relevant, r.3.11 prohibits an eligible legal practitioner entering into articles as a principal unless he or she has been in private practice for a continuous period of not less than five years, during at least two years of which the legal practitioner has been in practice as an eligible legal practitioner. In March 2005
Ms Southgate swore a further affidavit in conformity with Schedule 7 of the Rules in which she again incorrectly stated that she was relevantly qualified. That affidavit was sworn in support of Ms Wong’s application to the Board for a certificate that she was qualified to be admitted to the legal profession by this Court. In the event, in reliance on, amongst other matters, the two affidavits of Ms Southgate, the Board issued the certificate sought by Ms Wong and, on the basis of that certificate, she was admitted to the legal profession by this Court on 26 April 2006 as has been noted.
Given that Ms Southgate has been an eligible legal practitioner only since
9 July 2004, she was not entitled to have Ms Wong articled to her. The Board said in its report that at the time of swearing the affidavits Ms Southgate did not appreciate that she lacked the necessary qualification to enter into articles in Victoria as a principal. She became aware of her lack of qualification in May 2006 and brought the matter to the attention of the Secretary of the Board by a letter dated 8 May 2006. At its meeting of 31 July 2006 in which it considered the matter, the Board resolved that it was functus officio in respect of Ms Wong’s admission and that it bring the matter to the attention of the Court.
This Court has the power in its inherent jurisdiction to revoke the order admitting a candidate to the legal profession if it becomes aware of a defect or non-compliance with the Rules.[2] This order is an incident of its inherent power to review ex parte proceedings,[3] an order admitting a candidate to the legal profession being an ex parte order. But as Re Warren makes clear, the Court also has a discretion whether or not to revoke such an order in the circumstances of the case. The importance of the requirement that a candidate for admission to the legal profession is properly trained in relation to the management of trust accounts cannot be overstated. Nevertheless, there is no suggestion by the Board or otherwise that Ms Wong’s training in this important area has been deficient by reason of her principal’s technical lack of relevant qualifications. And it is not in issue that Ms Wong has satisfied the primary criteria for admission – that she is properly qualified and a fit and proper person to be admitted. The material before the Court makes this plain. The non-compliance with the Rules constituting the defect was not the fault of Ms Wong but the bona fide error of the principal. There is no question, therefore, of any concealment by Ms Wong of any relevant fact from the Board, and the principal brought the matter to its immediate attention upon discovery. Importantly, the public interest, to which reference has been made, has not been jeopardised by the technical error. In the circumstances, there are no compelling reasons to make an order revoking the admission and we consider it would be unjust and unnecessary in the public interest to do so.
[2]Re Warren [1976] VR 406 at 408 per Young, C.J., Gillard and Anderson, JJ. We note that, at the time when Re Warren was decided, the relevant terminology was “admitted to practice as a barrister and solicitor”. However, as a consequence of the Legal Profession Act 2004, each candidate is now “admitted to the legal profession as an Australian lawyer”.
[3]Re Warren at 408 citing Re Reid Murray Acceptance Ltd [1964] VR 82 and the cases there cited.
The Court is grateful to the Board for bringing the matter to its attention and doing so in proper form. In the circumstances, the Court will receive the Board’s report but make no further order in relation to Ms Wong’s admission.
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