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[2005] VSC 250
Supreme Court of Victoria
2005-07-15
HABERSBERGER J
Original judgment source is linked above.
LEGAL PRACTITIONERS - Application for admission to legal practice - Appeal from the Board of Examiners - Whether the applicant a fit and proper person - Disclosure of past history of mental illness and numerous associated criminal charges - Failure to disclose other relevant incidents - Effect of such failure - Legal Practice Act 1996 s.342 - Legal Practice (Admission) Rules 1999.
The Proceeding
1 This is an appeal by notice dated 13 March 2003, pursuant to s.342(1) of the Legal Practice Act 1996 ("the LPA"), from a decision of the Board of Examiners made on 26 February 2003 refusing the appellant's application to be admitted to legal practice. The Board, which is established by s.338 of the LPA, has the responsibility of considering all applications for admission to legal practice and certifying to the Supreme Court that an applicant for admission meets all the requirements of the admission rules (s.341(1)(a) and (b) of the LPA). An appeal from the decision of the Board of Examiners is to be conducted as a hearing de novo (s.342(3) of the LPA).
2 Because of the extremely sensitive nature of the personal information concerning the appellant which is discussed in this judgment, I refer in my reasons to the appellant as Ms XY, which is the pseudonym adopted by the parties in this proceeding. For the same reasons I have also used pseudonyms for other persons mentioned in the judgment, as naming them would make it more likely that Ms XY would be identified. I have also been deliberately non-specific in referring to some of the factual matters.
3 In its written reasons for its decision dated 14 April 2003 the Board found that in the circumstances Ms XY had failed to satisfy it that she was "of good reputation and character and a fit and proper person" to be admitted to legal practice (see r.4.01(c) of the Legal Practice (Admission) Rules 1999). Accordingly, the Board held that the appellant's "application for a certificate is therefore refused at this time."[1]
Background - The Disclosed Matters
4 In March 2002 Ms XY applied to the Board for admission to legal practice. In support of her application, apart from the standard affidavits concerning qualifications and good character, the appellant had also filed an affidavit of disclosure sworn on 20 March 2002. In that affidavit the appellant had disclosed certain mental health problems which she had experienced in the past and a number of criminal offences with which she had been charged.
5 Very briefly, what was disclosed by the appellant in this and subsequent affidavits was as follows. The appellant was born in Australia in 1972, the youngest of six children. The appellant's parents and her four brothers and her youngest sibling, a sister eleven years older than her, had migrated to Australia from overseas. Between the age of about two to eleven, the appellant was sexually abused by a brother who was 17 years older than her. Despite medical indications and complaints to the police nothing was done by her parents to protect her. From the age of about ten or twelve the appellant began drinking alcohol, in the form of cough medicine, vanilla essence and then spirits, in an attempt to numb her emotional pain.
6 Despite these difficulties the appellant performed well at high school. She believes that she immersed herself in her studies as a distraction from the ongoing trauma of the sexual abuse. After completing her VCE with above average marks the appellant enrolled in 1991 for an Arts degree at a university in Victoria. The following year, because of her good results, she was able to commence a combined Law/Arts course.
7 However, the appellant continued to be affected by her childhood trauma. She began to binge on alcohol most weekends. After withdrawing from her studies in the second half of 1992, the appellant overdosed on prescription medications. She attempted self-harm on a number of occasions between July 1992 and July 1993, usually in toilets at one or other of the court buildings in the city. In August 1992 the appellant was charged with a number of offences arising out of one of these incidents. The charges of refusing to provide information, resisting arrest, assaulting protective services officers and assaulting police were struck out at the Magistrates' Court in November 1992 because of her state of mental health. During this period the appellant, who had been diagnosed with borderline personality disorder with impulsive disruptive behaviour and self-mutilation risk, spent some time in psychiatric institutions. Following a meeting with a substance abuse counsellor, who introduced the appellant to the Twelve Step program espoused by Alcoholics Anonymous, her mental health improved and her drinking reduced.
8 In August 1994, however, the appellant's mental health again deteriorated when the brother who had sexually abused her married a Filipino woman who had a seven year old son. The appellant was terrified that her brother would abuse the child. She again began to drink heavily - approximately half a bottle of whisky, one to two litres of wine and one to two cans of beer a day. As her complaints to the police were not being acted upon, the appellant repeatedly telephoned the police in the period between August and November 1994. The abusive calls included several in which she threatened to kill a female police officer and said that she hoped the police officer died.
9 As a result of this and other related incidents, in late 1994 the appellant was charged with making a threat to kill, criminal damage to property, two counts of resisting police, four counts of using a telecommunications service to menace, harass or offend, failing to state her name and address, littering and traffic offences. When the appellant pleaded guilty to the above charges, the following charges were struck out - fourteen counts of using a telecommunications service to menace, eleven counts of using a telecommunications service to harass, eleven counts of using a telecommunications service to offend, two counts of making a threat to kill, and one count each of threatening to inflict serious injury, using insulting words in a public place, assaulting police and assaulting persons assisting police. After being charged with all of these offences, the appellant was admitted to the Larundel Psychiatric Hospital for three weeks as an involuntary patient. Other like incidents followed her release and she was then admitted to Royal Park Psychiatric Hospital.
10 In October 1995, the appellant was convicted in the Magistrates' Court of all of the charges to which she had pleaded guilty and sentenced to a short term of imprisonment which was suspended. Ms XY appealed to the County Court. In February 1996 her appeal was allowed in respect of all convictions, the order of the Magistrates' Court was set aside and she was placed, without conviction, on an 18 month Good Behaviour Bond and an 18 month Recognisance Order.
11 Following the appellant's release from Larundel, she met an older man, ST, at a self help group. He described himself on his business cards as a "counsellor". Shortly thereafter, they began a relationship which soon resulted in the appellant suffering physical and sexual abuse. At this time she was drinking two to three litres of wine a day. Despite this, Ms XY continued her university studies in 1995 and 1996. She completed her Arts Degree in 1996. In August 1996, the appellant obtained an intervention order against Mr ST. In January 1997, Mr ST obtained an intervention order against the appellant.
12 In January 1997, the appellant was charged with numerous offences involving Mr ST. The appellant was then admitted to the Heatherton Psychiatric Hospital for approximately two weeks as an involuntary patient. Further similar offences occurred in September 1997 when she became dissatisfied with the progress of the police investigation of her complaints against Mr ST. She was again admitted to the Heatherton Psychiatric Hospital. In December 1998 the appellant pleaded guilty in the Magistrates' Court to stalking Mr ST and two counts of intentionally damaging property. The stalking consisted of telephone calls to Mr ST and the property damage was spray painting the word "rapist" on his front and side fence. Ms XY was convicted of all charges and placed on a Community Based Order for two years. As a result of her pleading guilty, the following charges were subsequently struck out - nine counts of intentionally damaging property, eighty-five counts of breaching an intervention order and one count of using a telecommunications service to menace, harass or offend.
13 Ms XY again appealed to the County Court. In April 1999, her appeal was allowed in respect of all convictions, the order of the Magistrates' Court was set aside and she was released without conviction on an undertaking as to good behaviour for three years. She was also ordered to pay $110 compensation.
14 The appellant continued with her law degree in 1997. She enrolled in five subjects, intending to study full time. However, due to her psychiatric problems she discontinued her course at the end of the first semester. The appellant later resumed her legal studies and in 2000 she qualified for the degree of Bachelor of Law with Third Class Honours. This was a remarkable achievement given her troubled life up to then.
15 On 23 December 1998, Ms XY ceased drinking. She has become a regular and frequent attendant at Alcoholic Anonymous meetings. In her principal affidavit in support of the appeal, Ms XY stated that she believed that her attendance at Alcoholics Anonymous had been "instrumental" in her overall rehabilitation. She said that the Twelve Steps program was primarily about confronting herself and that it took "a great deal of strength" to follow the program. In February 2002 she became involved in the Women's Circus. According to the appellant, it was set up largely for survivors of sexual assault. It has enabled her to do things which she thought were impossible.
16 Apart from two traffic infringements in March 2001 and July 2002, the appellant has not been charged with any criminal offences since September 1997.
17 The last two paragraphs of the appellant's affidavit of disclosure were as follows:
"6. I have no intention of ever engaging in conduct which would bring me before the Criminal Justice System nor any conduct which would be inappropriate for a legal practitioner. I regret my past inappropriate conduct and I am determined not to repeat the same. I am certain that as I am committed to abstinence from alcohol that I will never, ever appear before the Courts charged with any offence ever again.
7. I have made full disclosure in writing above to the Board of Examiners of every matter which is relevant of my fitness for admission to legal practice."
The Non-Disclosed Matters
18 Despite what was said by the appellant about full disclosure, other relevant information subsequently came to the attention of the Board regarding essentially four incidents which the appellant had not disclosed in her first affidavit.
19 The first matter arose as a result of two of the appellant's co-volunteers at a suburban legal service (Mr CD and Mr EF) providing affidavits to the Board raising concerns about Ms XY's fitness to be admitted to practice. The appellant responded to these concerns in further affidavits by her.
20 The appellant had worked as a volunteer at the legal service from time to time since 1997. In May 2001, Mr CD, a federal policeman studying law, commenced working at the legal service. The appellant had great difficulty getting on with Mr CD. It was a matter of dispute whether this was a result simply of personal problems between them because, for example, the appellant felt that Mr CD was always intruding into her personal space or as a result of the appellant's view that it was inappropriate to have a serving police officer acting as a volunteer at the legal service without revealing that fact to clients or whether it was a result of the appellant's general hostility to police officers. A supervisor at the legal service, Mr EF, deposed that Ms XY had told him that she passionately disliked the police. The appellant denied this, although she agreed that she had told him that she had difficulty relating to police and that it was a problem she was endeavouring to overcome. Whatever the case, the appellant's attitude to Mr CD led to the volunteer program co-ordinator speaking to her about these difficulties in October 2001. The appellant was upset by this and when she passed Mr CD in the car park that night, she said to him something like: "I hope they kill you. I hope they kill you before you retire. I hope they kill you." Following a complaint by Mr CD about this exchange, the appellant's position as a volunteer worker was terminated by the legal service. I refer hereafter to these events as "the legal service incident."
21 The second matter which was not initially disclosed by the appellant to the Board was that between 29 December 1994 and 2 January 1995 she had made numerous calls to police stations threatening suicide. It was alleged that the appellant had used an alias to conceal her identity when making those calls. The appellant believed that she may have used her middle name or her mother's name. These calls formed the basis of some of the charges against the appellant heard by the Magistrates' Court in October 1995. I refer hereafter to these events as "the telephone calls incident." They were disclosed by the appellant in an affidavit by her sworn on 31 August 2002.
22 That affidavit also disclosed a third new matter. This was that in August 2000 the appellant had accidentally broken her neighbour's window when knocking on it at about 2.00am, in an attempt to attract his attention to ask him to turn down the loud music he was playing. The appellant subsequently attended a hospital emergency department to request medication to assist her to get to sleep. She later paid the cost of repairing the window. I refer hereafter to these events as "the broken window incident."
23 The fourth matter not initially disclosed was brought to the attention of the Board by an affidavit sworn by Ms XY on 16 September 2002. In that affidavit, she revealed that in 1999 she had become involved with a non-mainstream religious group which she believed had a philosophy similar to Alcoholics Anonymous. The appellant visited the group's meditation retreat centre at Wilton in New South Wales. In March 2000, she was sexually assaulted by one of the residents. She was told by other members of the sect that this was a direct result of her bad behaviour in a past life. In July 2000, the appellant went back to the meditation retreat. She felt, however, that she was being constantly watched and her activities monitored. She was repeatedly told that she was impure. As a result, she obtained Serapax tablets from a doctor and took the tablets. Shortly afterwards, the appellant ripped a mattress in her room at the meditation retreat with a knife, broke a mirror and wrote on the wardrobe that it was the other residents who were impure. The next day, one of the residents tried to stop the appellant from leaving. She told him that if he did not let her go she would stab herself with a pocket knife which she had taken out of her backpack. The police were called and the appellant was admitted to the emergency department of the Campbelltown Hospital in New South Wales. The appellant was not charged over those events and she sent $1000 to pay for the damage she had caused. I refer hereafter to these events as "the meditation retreat incident."
The Board's Decision
24 The Board held a hearing in June 2002 at which the appellant represented herself. She cross-examined the two witnesses (Mr CD and Mr EF) called by counsel assisting the Board. The hearing was adjourned to enable the appellant to "procure and provide to the Board the files relating to her admissions to psychiatric facilities."[2] Those files were in due course obtained by the appellant and made available to the Board. At a further hearing on 26 February 2003, Ms XY was cross-examined by senior counsel assisting the Board. By this time she had filed a total of nine affidavits concerning the disclosure issues. Ms XY also called a consultant psychiatrist Dr Sandra Hacker, who was cross-examined on the reports she had prepared.
25 Although this is a hearing de novo, it is relevant to note, in my opinion, the Board's reasons for refusing the application. The Board plays an important part in the governance of the legal profession and its views, derived from the accumulated lengthy experience of its members, deserve consideration.[3] There were two grounds stated by the Board for its refusal of the appellant's application. The first was that:
"Notwithstanding evidence of improvement in the Applicant's ability to control her stress levels, with the consequent lessening of the risk of her engaging in inappropriate or criminal behaviour, the evidence of continuing acts of inappropriate behaviour attributed to her mental disorder as late as 2001 give this Board grave concerns as to the fitness of the Applicant to engage in legal practice at this time."[4]
This conclusion was hardly surprising given that Dr Hacker had given evidence that:
"... it was her opinion that the Applicant continued to be dissociative and affected by post traumatic stress disorder and long standing borderline personality disorder."[5]
26 The second ground for refusal[6] was that the Board was concerned by the conceded failure of the appellant to have disclosed at the time of lodging her application the four matters referred to above, namely the legal service incident, the meditation retreat incident, the telephone calls incident and the broken window incident.[7] The Board also drew attention to the fact that the first two of these matters had not been disclosed to Dr Hacker at the time at which she wrote her 12 March 2002 report addressed to the Board.[8]
The Appeal
27 In support of her appeal the appellant filed a further three affidavits by herself. The principal affidavit, which was sworn on 26 June 2003, sought to bring all of the information together. It was 61 pages long. In addition, the appellant filed seven affidavits from people attesting to her good character, her satisfactory work with voluntary legal services or her involvement with some of her support groups. The appellant also filed affidavits by Dr Hacker, by a second consultant psychiatrist, Dr Josephine Beatson, and by a psychologist, Ms Jill Mancini.
28 On behalf of the Board fresh affidavits by Mr CD and Mr EF were filed. Further, as part of the Board's preparation for the appeal its solicitors proposed to the appellant, and she agreed, that she should submit to an examination by an independent psychiatrist. That proposal resulted in a report dated 30 August 2004 being prepared by Dr Shirley Prager, following three two hour interviews with the appellant on 2 April, 28 April and 25 June 2004. The report was exhibited to an affidavit sworn by Dr Prager.
29 At the hearing before me, the appellant was represented by Dr I. Freckelton of counsel. Mr Kirkham QC, who appeared with Mr I. Miller of counsel for the Board, informed me that they were present to assist the Court by highlighting certain factors which it was submitted I should take into account in reaching my decision, but not to oppose the appeal outright. The appellant was cross-examined, as were Dr Hacker, Dr Beatson, Ms Mancini and Dr Prager. There was no cross-examination of any of the other deponents, including neither Mr CD nor Mr EF.
30 Like the Board, I consider that there are two issues which govern the outcome of Ms XY's application for admission to legal practice. They are:
(a) whether the appellant's past conduct and mental health were such that she should not be regarded as a fit and proper person to be admitted to practice, and
(b) whether the appellant's failure to disclose the four matters referred to in the Board's reasons disqualified her from being found to be a fit and proper person to be admitted to practice.
The Appellant's Past Conduct
31 I turn then to the first issue. Although some of the criminal offences committed by the appellant were undoubtedly serious, there was no suggestion that they were a permanent impediment to the appellant being admitted to legal practice.[9] This is particularly the case where the offences in question do not show dishonesty.[10] I do not consider that any of the offences committed by the appellant, including the telephone calls threatening suicide in which the appellant used a false name, are evidence of dishonesty in the relevant sense. Furthermore, I accept Dr Freckleton's submission that the appellant's moral culpability was less given her poor mental health at the time she committed the offences.[11] Therefore, I am quite satisfied, in all the circumstances, that these past offences should not prevent the appellant's admission.
The Appellant's Mental Health
32 What was of more relevance was whether the appellant's mental health was such that she could be considered a fit and proper person to be admitted to legal practice. The protection of members of the public from the damage that could be caused by an unsuitable person, for example by a possibly mentally unstable legal practitioner, handling their affairs is one of the main purposes of this part of the LPA.[12] It was here that the unexplained lengthy delay in the hearing of this appeal has worked in the appellant's favour because all of the psychiatric evidence before me was to the effect that the appellant was no longer suffering from mental illness.
33 Dr Sandra Hacker AO has been a registered psychiatrist since 1974 and a Fellow of the Royal Australian and New Zealand College of Psychiatrists ("the RANZCP") since 1978. She prepared a report dated 16 June 2003 for use by the appellant in this appeal. By this time Dr Hacker was aware of all of the past events. The opinion expressed by Dr Hacker in her report was that:
"Diagnostically [Ms XY] now demonstrates few features of borderline personality disorder or post-traumatic stress disorder (PTSD) and has not consumed alcohol for some years. In particular there have been no episodes of dissociation noted by [Ms XY] for some time. It is in fact unlikely that a formal diagnosis of either borderline personality disorder or post-traumatic stress disorder could now be made insofar as these conditions are significantly resolved. As previously stated generally symptoms of borderline personality disorder improve with age and the association with alcohol dependence is no longer an issue.
I have now seen [Ms XY] intermittently since 1998. When first seen she was extremely disturbed with clear evidence of borderline and PTSD features. Over the years she has improved and appears now to be able to cope with a range of situations with little difficulty. In particular [Ms XY] has been able to function within the community, and work within a legal setting without drawing any particular negative attention to herself for some time."
34 Dr Hacker, who had seen the appellant again in December 2004, said in evidence that as a result of that interview she formed the view that the appellant was no longer suffering from any psychiatric disorders. She said that she went through the list of criteria for the previously existing post-traumatic stress disorder, borderline personality disorder and substance abuse disorder and was unable to reach a diagnosis for any of those conditions. She said that she was unable to discern any relevant features or symptoms. Dr Hacker also said that she did not at this time have any anxiety about the appellant's likely response to stress or issues to do with the police.
35 In cross-examination Dr Hacker repeated that in her opinion the appellant no longer met the criteria for the three previously existing disorders. She agreed, however, that the appellant's explanation for her failure to tell Dr Hacker in March 2002 and February 2003 about the meditation retreat incident in 2000 and the legal service incident in 2001 could be evidence of dissociation whereby what was remembered was suppressed because it was too painful to be dealt with and was therefore not disclosed or that it could simply be the result of a deliberate decision not to tell all that should have been told. Dr Hacker agreed that she was in no position to say which was the correct analysis. Dr Hacker also agreed that if this failure was evidence of dissociation then it meant that dissociation was still present much later than previously stated by Dr Hacker, but she did point out that a single criterion did not of itself enable one to make a diagnosis of either a borderline personality disorder or a post-traumatic stress disorder which required "a whole range of other phenomena."
36 Dr Josephine Beatson has been a registered psychiatrist in Victoria and a Fellow of the RANZCP since 1983. She interviewed the appellant on 14 June and 7 July 2004 and prepared a report dated 23 August 2004. Dr Beatson expressed the opinion in her report that:
"[Ms XY] does not suffer from any psychiatric illness at this time. In particular, she does not meet the criteria for Borderline Personality Disorder, nor does she meet criteria for Posttraumatric [sic] Stress Disorder."
37 In evidence Dr Beatson stated that in the two interviews with the appellant she did not find that the appellant displayed any symptoms of borderline personality disorder nor any symptoms of post-traumatic stress disorder, apart from occasional sleep disturbance. Dr Beatson said that she had observed that the appellant had now developed a "capacity for reflective function." Clinical work and research had shown that this function was lacking in many patients with borderline personality disorder. Dr Beatson said that she had been "extremely impressed" by the appellant's capacity to reflect on the state of mind of her parents and even of her abusive brother, for whom she now expressed compassion.
38 In cross-examination Dr Beatson expressed the view that the borderline personality disorder previously experienced by the appellant had been extingushed and was not merely latent so that it might flare up if the wrong circumstances were to occur. Dr Beatson further said that she considered that the appellant would be able to deal with the stress involved in practising as a lawyer "in a manner within the normal range." She said that because everyone was vulnerable to excessive stress she could not say that the appellant would never react to stress. Nevertheless, on the basis of her experience Dr Beatson thought that the appellant was "in a very good situation" to handle future stress. Dr Beatson agreed that the circumstances of the meditation retreat incident (the threat of self-destructive behaviour, the damage to other persons' property, the resistance to medical treatment) was a return to "certain behaviours that would be consistent with borderline personality disorder", but that such conduct was four years before she saw the appellant and that when Dr Beatson saw the appellant in mid 2004 "she was free of such symptoms."
39 The third expert witness called by the appellant was Ms Jill Mancini, who is qualified as both a social worker and psychologist. Between August and October 2002 and between April 2003 and December 2004 the appellant had attended a total of 34 counselling sessions with Ms Mancini each lasting 50 minutes. This relationship had been brought to an end by a change in Ms Mancini's employment.
40 Ms Mancini said in evidence that the appellant had made "considerable progress throughout the counselling." She said that during the two and half year period she had seen "an increasing development of insight" by the appellant and "an increased understanding of what works for her and what doesn't." Ms Mancini's impression at the conclusion of her counselling was that the appellant "was becoming increasingly resourceful and quite aware of when she needed assistance or not." She thought that Alcoholics Anonymous had probably been of greater value to the appellant than her counselling had been, as that body had "provided a far more ongoing and regular support" than Ms Mancini had.
41 In cross-examination Ms Mancini was asked about how she thought the appellant would cope with the significant stress of full time legal practice bearing in mind her statement in her affidavits that the appellant had in April 2003 sought to resume the counselling sessions with Ms Mancini to provide her with "support during the period leading up to the hearing of her Appeal" to this Court. Ms Mancini said that she thought that the appellant's "coping skills have increased significantly" and that she could cope with the stress of full time legal practice without any support. In Ms Mancini's discussions with the appellant, she was able to nominate her own "plans and strategies" and how she was going to tackle "this particular stress" and what things she was going to find helpful. Ms Mancini nevertheless said that she thought it desirable for the appellant to continue with her support groups, particularly Alcoholics Anonymous. At one stage Ms Mancini seemed to accept that the appellant was vulnerable to stress but later she asserted that she did not think that the appellant was now more vulnerable to stress than anyone else.
42 Dr Shirley Prager has been a practising psychiatrist since 1970 and a Fellow of the RANZCP since 1983. She was called by counsel for the Board as its witness. In her report Dr Prager set out her concluded opinion about the appellant:
"[Ms XY] is a 31-year old woman who is currently working in customer services but has completed a law degree. In the past she has suffered from post-traumatic stress disorder, substance use disorder, in particular alcohol abuse, and some symptoms of borderline personality disorder.
In my opinion her past history of amnesic episodes was related to the substance use disorder and excessive use of alcohol; I do not consider that in the past she suffered from a dissociative disorder, though she may have suffered dissociative episodes that are symptomatic of borderline personality disorder.
In my opinion the aetiology of the three psychiatric disorders is the history of severe childhood sexual and emotional abuse endured in the family of origin.
In my opinion these disorders are all resolved and [Ms XY] no longer suffers from these disorders. I believe that the prognosis for future stable mental health and non-recurrence of the above disorders is very good. The treatment [Ms XY] has undertaken is not traditional but nonetheless has been effective. Her participation in Alcoholics Anonymous has been particularly beneficial in preventing a recurrence of the substance use disorder.
The conduct, which led to [Ms XY's] being involved with the police and in other court proceedings and her detention in psychiatric facilities is highly unlikely to recur. This is as a result of the development of mature coping mechanisms, including a sense of humour. She has also gained insight into her behaviour and the origins of her psychiatric disorders. Her thinking patterns have changed from a black-and-white type of thinking to being able to perceive shades of grey."
43 Like Dr Beatson, Dr Prager was also asked whether the appellant's conditions were extinguished or latent. Her response was:
"I don't over use the word 'extinguished' ... At present she doesn't meet any of the criteria for diagnosing any of these conditions. But she does have a vulnerability in terms of say substance abuse ... Alcohol would be a vulnerability and I would recommend she continue with the membership of Alcoholics Anonymous and regular attendance there."
"I think the greatest risk ... is resorting to alcohol if she is under considerable stress ... [and] if she doesn't have the support groups. ... I think she does need the ongoing benefit of the support groups to cope with legal practice. ... I think the AA group would be the minimum necessary. I think where there has been an alcoholic problem of this degree, you need the AA group to maintain help ... indefinitely."
44 In cross-examination Dr Prager was asked why she had stated with such confidence her opinion that the appellant was free of the symptoms of the previously existing disorders. Part of her response was that the appellant had:
"put a lot of effort in trying to understand herself and ... she has accomplished a different way of thinking so that she no longer blames others but takes responsibility for her own actions and has moved from a more paranoid way of thinking to a more mature way of thinking. ... She's been able to achieve forgiveness which a lot of people do not achieve ... in that situation so that is reassuring in terms of reducing risk of relapse."
45 In answer to questions from me, Dr Prager said that she did not feel more time was necessary before expressing her conclusion about the appellant's likely future conduct. She said that she had spent a lot of time with the appellant over the three interviews and that by the end she was "confident that [Ms XY] would be okay." Dr Prager stated that she thought that the appellant was now in a position where if admitted to practice she could cope with the stresses and strains of legal life "if she had a support network in place." The "minimum" safety mechanism would be Alcoholics Anonymous.
46 On the basis of this strong and virtually unanimous expression of opinion from the medical experts I am satisfied that Ms XY's mental health is such that I should conclude that from this aspect she is now fit to engage in legal practice. Five years have elapsed since the meditation retreat incident and nearly four years since the legal service episode and no other like event has occurred since then. The appellant's recent conduct thus supports the psychiatrists' various opinions that she was not displaying any relevant features or symptoms of the previously existing post-traumatic stress disorder, borderline personality disorder and substance abuse disorder (Dr Hacker); or that she did not suffer from any psychiatric illness at this time because her previously existing disorders had been extinguished (Dr Beatson); or that she no longer suffered from any of her previously existing disorders as they had all been resolved (Dr Prager).
47 Whilst I do not underestimate the pressures which the appellant may be exposed to in the course of legal practice and the consequent risk that she may be unable adequately to control her stress level, I am prepared to act on the experts' unanimous opinion that she now has mechanisms in place to assist her in coping with stressful situations. In considering this issue I have assumed that the appellant will at some time engage in full time legal practice, which she would be able to do were she admitted to practice, even though she said in evidence, and I accept, that her current intention was that she would "never ... work full time in law." She would choose to do this, she said, not because she did not believe that she could cope with full time practice but because there were other important things in her life like the circus and further study.
48 I am strengthened in this conclusion by the appellant's repeated expressions of remorse for her past conduct and her clearly expressed appreciation of the seriousness of the offending conduct and of the impact which her offences would have had on the victims. In Skerritt v The Legal Practice Board of Western Australia, the Full Court of the Supreme Court of Western Australia stated that:
"There is, in many of the reported decisions concerning the question of fitness to practice, a concern demonstrated by the courts to ascertain the extent to which the person whose conduct is in question appreciates the seriousness of that conduct, and has insight into its relevance for the person's fitness to practice and insight into its effect on others."[13]
49 One of the decisions cited by the Full Court was Victorian Lawyers RPA Ltd v X[14] in which Harper J held that an applicant was not a fit and proper person to be admitted because she had not "properly taken into her conscious mind, let alone adequately there confronted and dealt with, the nature of the false allegations made by her" and that she had "little, if any, insight into the impact which those allegations may have had on innocent persons accused of crimes of a particularly repellent nature".[15] As Harper J said:
"One who is not capable of dealing appropriately with awkward facts of this kind in one's own life (that is, that she has or may have caused great harm to others) cannot be entrusted appropriately to advise clients who are similarly placed."[16]
I am satisfied that these concerns are not present in this case.
50 Counsel for the Board submitted, however, that there was evidence that the appellant lacked insight into the significance of her failure to disclose the two more important matters. It was common ground that before the Board the appellant had denied that she had deliberately concealed these matters and that she had gone on to say that as the Board was now aware of the matters, that should be the end of it. In cross-examination Ms XY was asked whether that was still her attitude. She answered:
"My limited understanding from the Frugtniet decision was as long as the Board had it [the details of the non-disclosed matter] before it made its decision, that that was sufficient. I acknowledge that I made a mistake and that I should have mentioned those earlier."
Whilst the reference to Frugtniet v Board of Examiners[17] was puzzling because there is nothing in that judgment to that effect, it would appear that the appellant was probably intending to refer to the following passage from the judgment of the Full Court of the Supreme Court of Western Australia in Skerritt v The Legal Practice Board of Western Australia:
"In our view, it was open to the Board to reach the view that the appellant had been, deliberately, less than frank in his disclosure of the circumstances in which he came to leave the Australian Army. That lack of candour was a factor relevant to his fitness to be admitted, notwithstanding that the circumstances as the Board ultimately found them to be did not have a bearing on his fitness to practice. The weight to be attached to that lack of candour is a matter for the Board. It would take into account a number of things. One is that practitioners owe a duty of candour to the courts and to others, notwithstanding that at times it may be personally embarrassing or inconvenient to perform that duty, so that there may be cause for concern if an applicant has been less than candid with the Board. However, it would also take into account the sensitivity and the distressing nature of the incident involved, the fact that the appellant did eventually authorise disclosure of his army records to the Board, and the fact that, as we have said, the circumstances ultimately disclosed were not capable of leading to a finding of unfitness for admission."[18] [Emphasis added].
51 If the reference by the Full Court to the Board taking into account that the appellant had eventually authorised disclosure of his army records was meant to suggest that this excused the earlier failure to disclose relevant matters, then I respectfully cannot agree with the proposition. However, it is not clear to me whether this was what the Full Court was trying to say and I can therefore see how Ms XY came to make the statement which she did. Accordingly, I reject the submission that the appellant lacked insight into the significance of the two failures to disclose.
52 The only qualification to the favourable opinions expressed by the four expert witnesses was that Ms XY remained vulnerable to alcohol and that her continued regular attendance at Alcoholics Anonymous was desirable. On behalf of the appellant Dr Freckelton indicated that she would be prepared to give an undertaking to the Court that as long as she holds a practising certificate she will maintain her involvement and participation in the Twelve Step Program and Alcoholics Anonymous. In my opinion, although it might be unusual, the proffering of such an undertaking is an appropriate safeguard in the circumstances. The undertaking, together with the statement in evidence by Ms XY that she would not drink alcohol again, give me the required satisfaction that Ms XY will be able to practise as a lawyer without suffering from further mental health problems. Also, counsel for the Board informed me that the Board considered that an undertaking would be appropriate if I were otherwise prepared to grant the application.
The Failure to Disclose
53 I turn then to the second and more difficult issue, namely the failure to disclose certain matters to the Board at the time of lodging her application. Sometimes it is the failure to disclose some past events which is the basis of a finding that an applicant is not a fit and proper person to be admitted rather than the past event itself. Such a matter weighed heavily against the appellant in In Re Davis. Latham CJ said:
"In this case, however, the applicant was not only guilty of a grave criminal offence in 1934, but in 1944, and again as recently as 1946, he induced two solicitors to give him certificates of character without disclosing to them that he had been convicted of that criminal offence, and he presented to the Board certificates so obtained. It would not be reasonable to require a candidate to disclose to the Board, or even to persons whom he approached with a request for certificates, every wrongdoing of his life. But a conviction for housebreaking is so obviously a relevant matter when character is under consideration that there can be no room for doubt in the present case as to the duty to disclose it both to the Board and to the persons from whom he obtained certificates of character.
It was submitted that the appellant, by his good behaviour since 1934, had redeemed himself, and that it was not unreasonable for him to take the view in 1944 and 1946 that he was then a person of good fame and character. It may be that he had by that time become a person of good fame, i.e., of good reputation among those who then knew him. But intrinsic character is a different matter. A man may be guilty of grave wrongdoing and may subsequently become a man of good character. If the appellant had frankly disclosed to the Board and to the two solicitors the fact of his conviction, that disclosure would have greatly assisted him in an endeavour to show that he had retrieved his character. But his failure to make such disclosure in itself, apart from the conviction, excludes any possibility of holding that he was in 1946, or had become in 1947, a man of good character."[19]
"Housebreaking for the purpose of theft is not a crime the effect of which as a disclosure of character can be considered equivocal. It is not so easy to imagine explanation, extenuation or reformation sufficiently convincing or persuasive to satisfy a court that a person guilty of such a crime should take his place as counsel at the Bar.
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.
In those circumstances the conclusion that he is not a fit and proper person to be made a member of the Bar is confirmed."[20]
54 More recently, in Frugtniet v Board of Examiners Pagone J set out why so much emphasis is placed on the duty of candour:
"The requirement for admission to practice law that the applicant be a fit and proper person, means that the applicant must have the personal qualities of character which are necessary to discharge the important and grave responsibilities of being a barrister and solicitor. A legal practitioner, upon being admitted to practice, assumes duties to the courts, to fellow practitioners as well as to clients. At the heart of all of those duties is a commitment to honesty and, in those circumstances when it is required, to open candour and frankness, irrespective of self interest or embarrassment. The entire administration of justice in any community which is governed by law depends upon the honest working of legal practitioners who can be relied upon to meet high standards of honesty and ethical behaviour. It is the legal practitioner who is effectively the daily minister and executor in the administration of justice when advising clients, acting for clients, certifying documents, and making presentations to courts, governments, other professionals, and so on. The level and extent of trust placed in what legal practitioners say or do is necessarily high and the need for honesty is self evident and essential."[21]
Speaking of the unsuccessful applicant in the case before him, Pagone J said:
"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."[22]
55 Two of the disclosed matters, the broken window incident and the telephone calls incident, do not warrant further consideration in my opinion. I accept Ms XY's explanation that the broken window was accidental and that it was therefore an incident which she believed was not relevant to her application. I also accept Ms XY's explanation that she had been confused about what activities had occurred during the time she was drinking heavily and that she temporarily overlooked that in December 1994 and January 1995 she had also made these telephone calls threatening suicide in which she had used a false name. The Disclosable Court Outcomes Recorded by Australian Police Forces document which was exhibited to Ms XY's first affidavit of disclosure did not assist her memory because it only recorded the date of the court appearance in October 1995, not the dates of the various offences. I accept her evidence that, at the time of swearing her initial affidavit of disclosure, she believed that all of the telecommunications charges related to the calls she made between August and November 1994. Counsel for the Board did not submit that either of these omissions should be seen as disqualifying the appellant from admission to practice.
The Legal Service Incident
56 The failure to disclose the legal service incident does, however, raise more serious issues. In the appellant's affidavit sworn on 17 May 2002, and again in later affidavits, in particular her principal affidavit in support of the appeal, she set out at length the relevant circumstances surrounding this non-disclosure. Ms XY said that, at the time of compiling the affidavit of disclosure, she "gave consideration" to the question of whether she should mention the matter and the circumstances in which she ceased working with the legal service. She said that she was "troubled greatly" as to whether she should mention them and that she "took advice on the question."
57 Ms XY said that she prepared a draft affidavit "which contained a statement referring to the fact that [she] had been asked to discontinue volunteering at [the legal service] because of conflict with another volunteer". She said that she spoke to many people before making a decision about disclosure of the legal service incident and that "most said not to disclose it". On the other hand, the appellant had received indirect advice from a member of counsel whom she had attempted to brief to advise her about the affidavit of disclosure that he thought that the events surrounding the legal service incident should be "particularised". Further, the Secretary of the Board explained to her "what was required by way of disclosure and gave various examples similar to those listed in the admission pack". She said that the Secretary said "if in doubt put it in".
58 Ms XY said that she made an appointment to see the Reverend GH to ask him to read the draft affidavit. She knew that he was a minister of religion and that he had practised law. She said that she sought "spiritual direction" from him and that her doubts about the matter were settled by the advice she received from the Reverend GH:
"He advised me to delete reference to the [legal service] incident ....and told me as far as he was aware it was matters of a criminal nature or of a disciplinary tribunal that needed to be disclosed. I also thought that this was so. I relied on the opinion given to me by [Rev GH] .....He advised me to omit the section which related to the [legal service] incident on the basis that he did not believe that this was relevant to my character for the purposes of admission. [Rev GH's] advice seemed to coincide with information in the "admission pack" given to me by the staff of the Postgraduate Diploma in Legal Practice at Monash University which I received in January 2002 and in published cases which we studied in Professional Practice. The admission pack includes a draft affidavit in support of application for admission which refers to disclosure "of every matter which is relevant to consideration of my fitness for admission to legal practice, this disclosure (if any) including but not being confined to any formal charges of criminal offences." However page 2 of the admission pack contains information about disclosures to the Board which identifies matters which seemed more formal than the events at [the legal service.]"
59 The Reverend GH swore an affidavit on 17 May 2002 in which he confirmed that he did advise Ms XY to omit the section of her draft affidavit which related to the legal service incident and that he told her that he did not believe that it was relevant to her character for the purposes of admission. Reverend GH deposed that as well as being a minister of religion he was currently employed as a solicitor by a suburban firm. Unfortunately, it was never made clear in either Reverend GH's affidavit or any of the appellant's many affidavits or at the hearing just what Reverend GH had been told about the circumstances of the incident. Was he, for example, simply told that Ms XY's engagement as a volunteer with the legal service had been terminated because of a personal disagreement between them, or was he also told that the other person was a police officer, which may have explained the appellant's apparent hostility towards him, or was he told in addition that Ms XY had said to him that she hoped that he would be killed?
60 Although it was not identified as such, the draft affidavit in the admission pack referred to by Ms XY was a reproduction of the pro forma affidavit contained in Schedule 8 to the Legal Practice (Admission) Rules 1999, except that the paragraph relating to the affidavit of service by the articled clerk's principal had been omitted for obvious reasons. The paragraph quoted by the appellant, in fact, refers to "full disclosure of every matter" etc. There was also a final paragraph included in both the pro forma affidavit in Schedule 8 and in the draft affidavit in the admission pack. It reads:
"[Include any other information relevant to the consideration of the application by the Board of Examiners]."
I agree with the view expressed by Pagone J in Frugtniet v Board of Examiners that the words chosen in the schedule emphasise:
"both the depth of the information needed to be produced and the breadth of subject matter to be covered."[23]
61 The reference by the appellant to page 2 of the admission pack was to the following passage appearing under the heading "Disclosures":
"You are obliged to disclose to the Board any criminal charge or charges of a similar nature. Please note that "charges" can include matters before a university disciplinary tribunal. With respect to criminal or other court or tribunal matters, even if you are charged with a prosecution which is subsequently withdrawn or dismissed, or you are found not guilty, this must be disclosed. These matters are taken into account in determining if you are a fit and proper person to be admitted to practise."
In my opinion, this statement of what must be disclosed to the Board was not correct because it limited the obligation to disclosure of "any criminal charges or charges of a similar nature" such as "matters before a university disciplinary tribunal", although it correctly went on to point out that disclosure should be made even if the charges were withdrawn or dismissed or were otherwise unsuccessful. It is relevant to note, however, that this qualification was prefaced by the phrase "with respect to criminal or other court or tribunal matters" which only served to emphasise the restricted category of matters in respect of which it was suggested disclosure needed to be made. The matters which should be disclosed to the Board are not simply "criminal or other court or tribunal matters" but encompass every matter which could possibly be relevant to the Board's consideration of the applicant's fitness to be admitted to practice.
62 Ms XY said in evidence, and I accept, that although she read both of those parts of the admission pack she placed greater emphasis on the former and read the latter in that context. I can understand how the very limited description, at page 2 of the admission pack, of what must be disclosed could have misled the appellant. It is perhaps not surprising that it was not appreciated that attention should actually be given to the broader language of the draft affidavit rather than to the introductory statement.
63 It is a matter of regret, in my opinion, that the admission pack distributed to students of the Postgraduate Diploma in Legal Practice in 2002 had the potential to lead applicants into error. Of course, a careful reading of the draft affidavit should have indicated that more than "criminal or other court or tribunal matters" were required to be disclosed, but as I have said, I can understand how an inexperienced applicant could make the mistake made by Ms XY.
64 I note with some surprise that in the introduction to the admission pack given to Ms XY, it is said that:
"The 'pack' has been prepared in liaison with both the Secretary of the Board of Examiners and Leo Cussen Institute.'"
Counsel for the Board put into evidence the guidelines for admission procedures apparently distributed by the Leo Cussen Institute to its students in 2001 which had also been prepared after consultation with the Secretary of the Board. For the purpose of illustrating what I consider to be the deficiencies in the admission pack distributed to the appellant, I set out below the following extracts from the Leo Cussen Institute document under the heading "Second Step - Disclosures":
"3.1 You are obliged to disclose to the Board all criminal charges or charges of a similar nature (eg a charge before a university disciplinary board for stealing books from the library). You must also disclose any other matter which might be relevant to the Board in assessing whether or not you are a fit and proper person to be admitted to practise.
Any disciplinary or other action taken at Leo Cussen (for example), which relates in any way to honesty or character, must be disclosed. For example any warning given for copying or behaviour should be disclosed.
3.2 In relation to criminal or other court matters, note that the word is "charges" not "convictions". Even if you have been charged but the prosecution was not proceeded with, or was withdrawn, or the court dismissed the charge or found you not guilty, you must disclose it to the Board of Examiners. Similarly you must make a disclosure even if you were given a bond.
Everything must be disclosed including minor traffic offences, but not parking fines. On-the-spot traffic fines are not strictly charges but must be disclosed ...
3.4 Make your Affidavit as full as possible, disclosing the circumstances leading up to the charge or incident or action and any other background information, so that the Board has all the available facts before it. However, before preparing the separate affidavit of disclosure, you may make an appointment and discuss the matter with the Secretary ..."
65 If the Postgraduate Diploma in Legal Practice document is still in the same form as it was in 2002, then I consider that it should be amended forthwith to alter the potentially misleading statement of what must be disclosed.[24]
66 In cross-examination, it was put to Ms XY that what Reverend GH had advised her was plainly contrary to what was stated in the draft affidavit in the admission pack. She stated that she did not believe that she appreciated that there was a conflict at the time. The statement on page 2 of the admission pack referred to criminal offences and hearings before disciplinary tribunals and that was how she read the phrase: "not being confined to any formal charges of criminal offences." She said that she did not consider that the legal service incident, which involved matters of a personal nature, namely her difficult relationship with Mr CD, needed to be disclosed. She queried whether every applicant who had had a personal disagreement with a co-worker would have to disclose that to the Board.
67 Ms XY agreed that when considering whether or not to disclose that incident she was troubled by the fact that it related to work at a legal service. Nevertheless, she agreed that she had made "a conscious decision" not to disclose this incident. She also agreed that she was aware that one aspect of the legal service incident bore some similarity to an earlier event which she had disclosed. Further, the appellant agreed that to some extent she appreciated that not disclosing the incident would have the effect of making her case for admission to practice better, and to that extent, would be misleading to the Board. She said, however, that the motivation was:
"more that I wanted to believe myself and if I'm not ready to admit it to me first, I'm not ready to admit it to ... anyone else."
68 The appellant also agreed that, as she was still considering whether she should disclose the legal service incident, she did not tell Dr Hacker about it when they met on 5 March 2002.
"I wasn't sure if it was something that needed to be disclosed and, yes, I did not want to raise any doubt in her mind that I was well."
Ms XY said, however, that when she met Reverend GH on the following day, it was her intention that if he had said that the legal service incident should be disclosed, then she would telephone Dr Hacker to tell her about it.
69 I have no doubt that Ms XY should have disclosed to the Board the legal service incident. The fact that her position as a volunteer worker at the legal service had been terminated was relevant, in my opinion, to the question of her fitness to be admitted to legal practice. Further, the fact that this had occurred not because of some personality clash with another volunteer but because of threatening statements made by Ms XY in circumstances which bore some similarity to the earlier threats to the female police officer only emphasised the importance of informing the Board of this relatively recent incident.
70 The appellant did not attempt to conceal the fact that she had considered whether she should disclose the legal service incident and had made "a conscious decision" not to do so. As she conceded, not disclosing the incident would to some extent make her case for admission better and to that extent she was misleading the Board. Nevertheless, I can understand how the appellant concluded that she was not required to disclose this incident. She relied on the advice of the highly respected Reverend GH that it could be omitted. Not only that, I accept that she was to some extent misled by the confusing statements in the admission pack.
71 Of course, the appellant must take responsibility for her actions and cannot shift the blame on to others. Not that I consider that she was trying to do this in her explanation of how the non-disclosure occurred. In my opinion, however, a careful reading of the pro forma affidavit should have indicated to her that she had to refer to the legal service incident. Moreover, the appellant agreed that she had been expressly advised by the Secretary of the Board that if she was in doubt about a matter to put it into the affidavit of disclosure, and clearly, the appellant was in doubt about whether this incident should be mentioned. It is troubling, therefore, that it was not referred to in her initial affidavit of disclosure. However, as I view this failure to disclose, for the reasons explained above, as more of an error of judgement than a deliberate attempt to mislead, I do not consider that it would be appropriate to treat it as a bar to the appellant's fitness to be admitted to legal practice.
The Meditation Retreat Incident
72 I turn then to the failure to disclose the meditation retreat incident, which also raises serious questions. In the appellant's principal affidavit sworn on 26 June 2003 in support of her appeal, she stated that this incident:
"was very painful to me and I did not want to think about it. I did not turn my mind to this incident until I read the Monash Medical Centre file in July 2002. I then referred to the incident in my Affidavit sworn 31 August 2002 at paragraph 70. I obtained the Campbelltown Hospital file in September 2002 and made a further affidavit sworn 16 September 2002. In time I am able to discuss and take inventory of all my behaviour. I was not ready to think about this incident until September 2002."
73 Dr Prager's report noted that the appellant had referred to the non-disclosure of the meditation retreat incident:
"[Ms XY] initially thought her duty of disclosure related to criminal charges and (in patient) hospitalisations. She hadn't realised that her attendance at the Campbelltown Hospital Emergency Department on 7 July 2000 required disclosure as a type of hospital admission."
The report went on to record that the appellant had told Dr Prager that:
"I didn't want to accept that I had made this mistake again. That is, putting myself in an abusive situation."
"[Ms XY] said she avoided thinking about it. She hadn't forgotten it."
74 The appellant was rigorously cross-examined about this concession that at the time she made her application she had not "forgotten" about the meditation retreat incident. She denied that she had deliberately chosen not to bring this incident to the attention of the Board. She said that, unlike the legal service incident, she did not consider whether the meditation retreat incident was something that should have been put in her initial affidavit of disclosure. It did not enter her mind at that stage. When asked whether she was saying that she had forgotten about it, Ms XY said:
"I honestly can't answer whether I deliberately forgot about it or whether I was trying to put it out of my mind. I wouldn't say that I had forgotten about it. I would probably say more that I was trying to put it out of my mind."
"I wasn't ready at that time to deal with the Campbelltown incident. As I say I was disappointed that I had put myself back in a situation like that again. I wasn't deliberately intentionally trying to mislead the Board. There was never that intention and when the Board asked for the material in June as soon as I got it the Board was given a copy of that file."
Later, Ms XY said that when something like the meditation retreat incident came to mind she "would try and stuff it down". She would "try to block it" - not with alcohol or any substance but by denying that it happened.
75 Ms XY was also cross-examined about her failure to tell Dr Hacker in March 2002 about the meditation retreat incident. In her report dated 12 March 2002 Dr Hacker had stated that:
"[Ms XY] has not carried out any destructive acts since January 1997."
Ms XY was asked whether she agreed that Dr Hacker had asked her a question about this topic. Ms XY replied:
"I honestly can't recall. She may have asked and if I wasn't ready - please let me finish. If I wasn't ready to deal with Campbelltown, I would've said no. And emotionally I wasn't ready to deal with the Campbelltown incident, so... She may have asked but I can't be a hundred per cent certain."
76 She was then asked, assuming that she had told Dr Hacker what was stated in the report, whether she did so as part of an attempt by her to indicate to the Board that she had overcome her past problems. The appellant replied:
"I didn't want to accept that I had put myself in a situation - I didn't want to accept for me. It was not that I was deliberately intending to mislead the Board. I was not emotionally ready to accept that I had put myself in this situation."
She denied any attempt to deliberately mislead either Dr Hacker or the Board:
"I honestly can't remember whether she asked me the direct question but I am supposing that she did. If I wasn't emotionally ready to deal with it, my answer would be no, not because I'm intending to mislead her, but I'm not emotionally ready to deal with it so I would believe if I'm in denial, no. I'm denying, I'm trying to deny that this situation occurred."
She resisted the suggestion that she had lied because:
"a lie is with deliberate intent and I don't believe that I had deliberate intent to lie to her, it was more not being ready to deal with my actions, my wrong actions."
77 The appellant agreed that she wanted Dr Hacker to believe that there had been no recent destructive acts. She explained that:
"certainly I did want her - she'd seen a big change in me in the way I presented and I did want her to believe that I was well because that's what I wanted to believe and I wanted to present as a well person, yes."
The appellant also agreed that she wanted Dr Hacker's report to indicate that she was well because it was going to be used in support of her application.
78 Dr Hacker was unable to recall if she asked Ms XY in March 2002 whether she had carried out any destructive acts since January 1997 and her notes of the interview did not assist. Nevertheless, Dr Hacker agreed with junior counsel for the Board that whether she asked that question or whether Ms XY volunteered the information, she was told by the appellant that there had been no destructive acts since January 1997.
79 Again, there is really no room for argument about whether the meditation retreat incident should have been disclosed. The real concern is whether the failure to do so indicates that the appellant is not a fit and proper person to be admitted to practice.
80 Counsel for the Board submitted that there had been "very significant prevarication when the applicant was taxed with the failure to disclose what happened" in the incident, and that by the end of the cross-examination it was apparent that there had been "a deliberate non-disclosure of relevant material". That is, that the appellant well remembered the incident and that she deliberately did not tell either Dr Hacker or the Board because of the potential damage it might do to her application.
81 I do not accept that this is the correct conclusion. In my opinion, it is understandable that in preparing her application the appellant could have tried to put out of her mind the particular events whilst accepting that she had not altogether forgotten them. As Ms XY said, she did not want to accept that she had once again put herself in a vulnerable situation and if she was not ready to accept that, she could not bring herself to tell Dr Hacker or the Board about these events. It is not, therefore, a case of the appellant deliberately misleading the Board, in my opinion. It must be understood that the medical evidence before the Board at the time it made its decision in February 2003 was that the appellant was still "dissociative and affected by post traumatic stress disorder and long standing borderline personality disorder".[25] The fact that the appellant was still suffering from psychiatric disorders means that the Board's refusal of her application was more than justified. But it also means, in my opinion, that her explanation for her ability to reveal all of her circumstances has to be considered in that context. Therefore, I do not consider that the appellant's failure to disclose the meditation retreat incident should be regarded as a bar to the appellant's fitness to be admitted to legal practice.
Conclusion
82 In case it might be thought that I have treated the two failures to disclose too lightly, I point out that in A Solicitor v Council of Law Society of New South Wales[26] the High Court of Australia held that, after a five year period in which he had voluntarily not practised, the solicitor in that case should not be struck off the roll despite his very serious breach of the duty of candour. It is now some 40 months since the appellant applied to be admitted to legal practice and nearly 29 months since the Board refused her application. Obviously some of the more recent delay has been brought about by the need to consider carefully the issues raised by the two failures to disclose. In my opinion, the appellant has learned, in a very hard way, the need for the utmost candour by legal practitioners. I do not believe that she will forget this lesson.
83 In my opinion, the appellant has discharged the burden upon her to show that she is now "a fit and proper person" to be admitted to legal practice.[27] Accordingly, her appeal against the Board's refusal to certify that she met the requirements for legal practice should be allowed.
[1] Reasons for Decision of the Board of Examiners dated 14 April 2003, ("Reasons of the Board") p.6
[2] Reasons of the Board, p.2
[3] See generally Re Shaw [1878] VicLawRp 199; (1878) 4 VLR (L) 509 at 511 per Stawell CJ; Re Walsh [1966] VicRp 62; [1966] VR 447 at 452 per Lush J; Re Warren [1976] VicRp 38; [1976] VR 406 per Young CJ, Gillard and Anderson JJ; Re Miller [1979] VicRp 40; [1979] VR 381 at 384 per Young CJ and Victorian Lawyers RPA Ltd v X [2001] VSC 429 at [37] per Harper J.
[4] Reasons of the Board, p.6
[5] Reasons of the Board, p.6
[6] Reasons of the Board, p.6
[7] Reasons of the Board, p.2
[8] Reasons of the Board, p.4
[9] In Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 417 per Latham CJ; Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 424 per Latham CJ, Dixon and Williams JJ; A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 at [40] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
[10] In Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 420 per Dixon J.
[11] Re B (a Solicitor) [1986] VicRp 69; [1986] VR 695 at 702 and 705 per Brooking J; In Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 421 per Dixon J.
[12] Re B (a Solicitor) [1986] VicRp 69; [1986] VR 695 at 698-699 per Brooking J; Re S (a Solicitor) [1986] VicRp 75; [1986] VR 743 at 744 per Brooking J, with whom Murray and Nathan JJ agreed.
[13] [2004] WASCA 28 at [61] per Malcolm CJ, Steytler and Wheeler JJ.
[15] [2001] VSC 429 at [34].
[16] [2001] VSC 429 at [36].
[18] [2004] WASCA 28 at [49] per Malcolm CJ, Steytler and Wheeler JJ.
[19] In Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 416-417.
[20] In Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 426.
[21] [2002] VSC 140 at [10].
[22] [2002] VSC 140 at [11].
[23] [2002] VSC 140 at [2].
[24] Subsequent inquiry has revealed that the wording of the document has been substantially changed.
[25] Reasons of the Board, p.6.
[26] [2004] HCA 1; (2004) 216 CLR 253 at [38-40] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
[27] Re S (a Solicitor) [1986] VicRp 75; [1986] VR 743 at 744 per Brooking J; Frugtniet v Board of Examiners [2002] VSC 140 at [9] per Pagone J.
XY
Board of Examiners [2005] VSC 250
(1947) 75 CLR 409
(1948) 77 CLR 403
(2004) 216 CLR 253