Queensland Law Society

In the matter of an application for admission as a legal practitioner by JY [2016] QCA 324

In the matter of an application for admission as a legal practitioner by JY [2016] QCA 324

Catchwords

PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSONS

Executive Summary   

JY (‘the Applicant’) filed an application for admission to the legal profession in accordance with the Legal Profession Act 2007 (Qld) (‘the Act’).[1]

The Legal Practitioners Admissions Board (‘the Board’) opposed the Applicant’s application for admission on the basis that:

  1. the Applicant committed criminal offences in 2000 and 2005, of which involved elements of dishonesty;
  2. the Applicant committed military offences while serving in the Australian Defence Force in 2005, also involving elements of dishonesty;
  3. the Applicant failed to disclose to the Board all matters relating to his suitability for admission until the provision of his third supplementary affidavit; and
  4. in January 2015, the Applicant made statements in an affidavit that were inconsistent with those provided in subsequent affidavits in July and August of that year.[2]

The Court of Appeal refused the Applicant’s application for admission to the legal profession.[3]

Background

In October 2014, the Applicant filed an affidavit in support of his application for admission whereby he disclosed two criminal offences that could bear adversely on his suitability for admission.

The circumstances surrounding the first disclosed offence involved two offences of larceny, both committed in 2000 and dealt with in the Magistrates Court in another state. No convictions were recorded.[4]

The second disclosed offence involved contraventions of the Police Powers and Responsibilities Act 2000 (‘PPRA’), in circumstances where the Applicant:

  • failed to stop a vehicle;
  • obstructed a police officer;
  • committed two offences of trespass;
  • committed one offence of unlawful use of a motor vehicle;
  • committed one offence of dangerous operation of a vehicle; and
  • operated a vehicle under the influence of liquor.

After the initial affidavit was filed, the Board advised the Applicant that he was required to elaborate on the circumstances surrounding the two criminal offences deposed. As a result, the Applicant filed a supplementary affidavit concerning the offences that occurred in 2000.

In November 2014, the Board made a further request for the Applicant to provide more detailed information relating to the 2005 offences.

At that point in time, the Board opposed the Applicant’s admission on the basis that the Applicant had not provided full and frank disclosure.

The Applicant then filed a further affidavit in January 2015, outlining his dealings with the Board and explaining that on two occasions the Board requested further information. The Applicant deposed that after the requests were made he complied promptly and denied any inconsistency between affidavits.[5]

In response to the Board’s finding that the offences of the Applicant committed involved dishonesty, the Applicant provided a copy of the Magistrate’s sentencing remarks in 2006 which recorded his remorse.

In January 2015, the Board resolved again to oppose the Applicant’s admissions on the basis that he had not disclosed all suitability matters until the recent affidavit following the Board’s further enquiries.

In August 2015, the Applicant filed a further application for admission after undertaking five months of work experience with a community legal service. The affidavit in support deposed particulars concerning the military and criminal offences. The Applicant indicated remorse for his “…serious and reckless lack of attention to [his] duties of honesty and candour”.[6]

The Applicant also provided two affidavits from senior lawyers working at the community legal service, both of which spoke to the Applicant’s fitness to practice.

The Board refused to make the declaration that the Applicant was a fit and proper person for admission as a legal practitioner in September 2015, and the Applicant appealed this decision.

Issue

In June 2016, the appeal came before the Court, and the application for admission was adjourned to August 2016.

The Applicant filed an affidavit in July 2016, deposing that:

  • he was forced to give up his volunteer position for the community legal service to care for his terminally ill mother in November 2015;
  • since that time, her worked in non-legal roles in Townsville and New Zealand;
  • his intention was to move to Townsville and to marry his fiancé; and
  • he was confused about the remarks of the Board in describing his previous affidavits and detail as to the disclosed offences as being “more than what was required”.

One of the senior legal practitioners filed an affidavit stating that he was willing to continue to provide guidance to the Applicant on legal and ethical issues, particularly if he were admitted as a legal practitioner.

A senior barrister provided an affidavit stating that he was prepared to mentor the Applicant for as long as needed.

Issue Considered

The Board opposed the Applicant’s third application for admission, for the following reasons:

  1. all three sets of offences contained elements of dishonesty;
  2. although the Applicant disclosed the April 2005 offences in his affidavit of October 2014, he failed to provide any detail of them;
  3. in the second affidavit filed in November 2014, he deposed only limited information and it was not until the third affidavit that he made proper disclosure;
  4. in his affidavit of November 2014, the Applicant deposed that he had been a law abiding citizen since the April 2005 offending. The Board found this to be untruthful due to the military offences that the Applicant committed in September 2005, which were post-dated by the Applicant;
  5. the Applicant deliberately failed to disclose the military offences due to an appreciated risk that in doing so he would not be admitted;
  6. in his affidavit filed January 2015, the Applicant claimed to have desisted from disclosing his military file because he was confused by the Board’s representative’s advice that he had provided “more than what was required”. This was inconsistent with his acknowledgment that he was concerned that he would be denied admission should the relevant military offences and documents be disclosed; and
  7. it could not be said that the Applicant demonstrated a change of character.[7]

The Court considered the relevant suitability matters under section 9 of the Act, specifically whether the Applicant was of good fame and character. In its deliberation, the Court considered:

(a)   the Applicant’s lack of candour in the affidavits he provided in support of his application for admission; and

(b)   the Court’s role in protecting the interests of the public and the profession.

The Court found that the offences that occurred in 2000 were the product of immaturity and resolved that it was unlikely that the conduct would be repeated, but the way in which the offences were dealt with in the first two affidavits indicated a failure to meet the requisite duty of candour.

The Court concluded that due to the seriousness of the Applicant’s past conduct in withholding information about his record of dishonesty and the recent recognition of the candour owed to the Court, the Court could not be satisfied that the Applicant was a fit and proper person for admission as a legal practitioner.

 

Adriana Tate

Ethics Clerk

As approved by Stafford Shepherd, Director, QLS Ethics Centre

 



[1] Legal Profession Act 2007 (Qld), s34.

[2] In the matter of an application for admission as a legal practitioner by JY [2016] QCA 324, [2].

[3] Ibid [28].

[4] Ibid [3].

[5] Ibid [7].

[6] Ibid [11].

[7] Ibid [16]-[17].