[2025] NSWCATOD 165
General information, not legal advice.
NCAT Occupational
2025-12-17
Original judgment source is linked above.
(1) Pursuant to s 121(2) of the Uniform Law the Applicant is approved to be a lay associate of any NSW law practice, either generally or with such conditions as the Tribunal sees fit, with permission to include employment as a graduate lawyer.
(2) The application be expedited to enable the Applicant to commence his mandatory professional legal training.
(3) Confidentiality orders.
(1) The affidavit of the Applicant sworn on 2 September 2025 - Exhibit A.
(2) The affidavit of BBB affirmed on 8 October 2025 - Exhibit B.
(3) The affidavit of CCC affirmed on 9 October 2025 - Exhibit C.
(4) The affidavit of DDD affirmed on 7 October 2025 - Exhibit D.
(5) The affidavit of EEE affirmed on 8 October 2025 - Exhibit E.
(6) The affidavit of FFF affirmed on 8 October 2025 - Exhibit F.
Facts concerning the criminal conviction and other evidence
(1) The Applicant wishes to engage in a graduate law program with a large law firm so as to undertake practical legal training in order to qualify for admission as a solicitor of the Supreme Court of New South Wales.
(2) The Applicant is in his late 20s. He left school in 2015 and the offence for which he was convicted occurred in 2017. He was charged with the offence of having sexual intercourse with a person aged 14 years and older and under 16 years pursuant to s 66(3) of the Crimes Act 1900 (NSW). He was then 19 years of age and the victim was 10 days short of turning 16. The Applicant understands that the mother of a friend of the victim reported his conduct to the police around October 2017 and he was subsequently charged.
(3) The Applicant pleaded guilty to the offence and was sentenced in mid-2018 to a two-year suspended sentence, which was completed on in mid-2020. It is relevant to record some of the comments made by the sentencing Magistrate and we will do that subsequently in these reasons. The transcript of the proceedings before the Magistrate is attached to the Applicant's affidavit.
(4) The affidavit states that the Applicant acknowledged then (i.e., at the time of being sentenced) and now, the seriousness of his offence and that he continues to have deep regret in respect of his actions.
(5) The affidavit attaches a letter to the Magistrate prior to sentencing, including a letter addressed to the victim. Further, the affidavit attaches character references provided by a number of individuals known to the Applicant, including his father.
(6) There are further attachments to the affidavit and we will mention those later.
(7) The Applicant had had an approval to work with children but that was revoked as a result of the sentence. In addition, the Applicant became a registrable person on the Child Protection Register. The affidavit states that he will be registered on that register for 15 years.
(8) The affidavit states that the Applicant pleaded guilty "in the immediate aftermath" of his arrest "in order to take responsibility for my actions and to also avoid unnecessary stress on the victim due to the proceedings". He also undertook and completed the "Positive Lifestyle Program" at an office of the Salvation Army in early 2018.
(9) The Applicant deposes that the Positive Lifestyle Program provided by the Salvation Army gave the Applicant "further insight into my behaviour, including my immaturity and the lack of foresight into the consequences of my actions at that time, both for the victim and for myself and those close to me". The affidavit further states that the Applicant understands the "seriousness of my offending" and that he has "learned to be wholly accountable for my actions and take well considered steps to build a constructive future".
(10) The Applicant commenced an Arts degree in in 2019 and completed a Bachelor of Laws degree in early 2025. The Applicant worked for a short period with a law firm as an administrative assistant during the course of his studies in 2022.
(11) In mid-2024 the Applicant was offered a place in the 2025 graduate program of a law firm. The proposed employer undertook a criminal history check which caused the employer to become aware of the Applicant's criminal record. The Applicant had not previously disclosed his record to the employer.
(12) As a result, the offer of graduate employment was withdrawn but the Applicant has received an offer to join the employer's 2026 graduate program, subject to the Tribunal's approval.
(13) The affidavit states that the Applicant was not aware that he was required to disclose his criminal conviction to the proposed employer or required to make an application to the Tribunal for approval.
(14) The affidavit states that the Applicant is now in a "loving and stable relationship with plans to be married". The affidavit states that the Applicant's partner is aware of the Applicant's circumstances.
(15) The affidavit refers to the fact that in 2023 the Applicant saw a psychologist about his conviction for the purposes of seeking professional help in being able to "assure myself that the offending would not happen again and that the factors that led to my offending, which I believe to [be] my immaturity at the time, would not impact me again". The affidavit states that as a result of having consultations with a psychologist the Applicant feels confident that "I have addressed the issue of my conduct and it is very much in the past".
(1) The Applicant appears to have accepted full responsibility for the offending conduct. The Applicant was a young man with a "bright and promising future and ... [his] behaviour [was] out of character".
(2) The Applicant has expressed remorse to those around him and the Magistrate accepts that the remorse is genuine.
(3) The Applicant has been subjected to an assessment by a Corrective Services psychologist and the assessment concludes that the Applicant "is placed in the low to medium category of re-offending".
(4) The Applicant was "forthcoming with information and cooperative" and "has shown empathy for the victim".
(5) Whilst the offending was serious it was not premeditated or planned.
(1) The mere fact of a conviction should not prevent an application being granted. In Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 ("Parente") at [50] the Court said:
"The profession can tolerate persons of otherwise good character who have once lapsed, even gravely, where that conduct does not reflect on qualities regarded as fundamental to membership of the profession, or (even if it does) was aberrant - or, 'out of character'."
(2) The two considerations for the Tribunal to determine in an application under s 121(2) of the Uniform Law are whether the Applicant, if he were to work as a lay associate, would pose a risk to the public and whether there would be a risk to the integrity and standing of the legal profession: Application of FXI under 121 of the Legal Profession Uniform Law (NSW) [2024] NSWCATOD 6 ("Application of FXI") at [32].
(3) The Applicant has the onus of establishing that, as at the day of the hearing, the Applicant: is a fit and proper person to have further association with the profession as a lay associate; that he is of sufficient character for this purpose; that he has demonstrated insight and understanding of his wrongful actions and of how his conduct fell below the standards of behaviour expected; that he has expressed remorse for his actions; and that he has rehabilitated himself: McCowan v Council of the Law Society of NSW [2014] NSWCATOD 44 ("McCowan") at [69]. The requisite level of satisfaction is that of the test in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 ("Briginshaw").
(4) In Application of FXI at [60], the Tribunal stated that in assessing whether the application should be granted the primary issue is whether the protection of the public will be compromised and whether the integrity of the legal profession will be damaged. The Tribunal also stated that a lower standard may be applied for a person seeking to become a lay associate when compared to a person seeking admission to the profession: at [70].
(5) The offence in this case involved the Applicant having sexual intercourse with a person aged 14 years and older and under 16 years. The conduct occurred when the Applicant was 19 years old and the victim was 15 years old, 10 days prior to her 16th birthday. The Applicant pleaded guilty and was sentenced to two years with his sentence wholly suspended. The submissions then quoted aspects of the remarks made by the sentencing Magistrate. These have been set out earlier in this decision.
(6) The evidence demonstrates that the Applicant understands and acknowledges the seriousness of the offending, both at the time and now and has deep regret for his actions. He pleaded guilty so as to take responsibility for his actions and to avoid unnecessary stress on the victim.
(7) The Applicant has the support of his partner, family and friends. The deponents of the affidavits deposed to his good character and his wish to pursue a career in law. Each deponent gives evidence of the Applicant's remorse and embarrassment for his actions in 2017 and that he has taken accountability for his conduct.
(8) The Applicant has seen a psychologist who has reported that the Applicant is considered to be rehabilitated and is at low risk of reoffending.
(9) The Applicant commenced a Bachelor of Arts degree in 2019. He commenced a Bachelor of Laws degree in 2022 which he completed in early 2025.
(10) The evidence is that the Applicant obtained employment with a law firm and did not disclose his conviction but he was unaware that he should do so and additionally was unaware that he should have made an application to the Tribunal as he is now doing.
(11) The Applicant's submissions state that the Tribunal should have regard to the Applicant's present circumstances where he has taken the opportunity to improve, through his studies, that he has the support of family and friends who have given evidence of his good character and that he has sought professional help as part of his rehabilitation.
(12) The submissions state that the Applicant accepts that he erred in not disclosing his conviction to his previous employer and as soon as he became aware of his obligation to make an application to work as a lay associate, he ceased working with that law firm and made an application to the Tribunal.
(13) The Applicant poses minimal risk to the public were he to work as a lay associate. However, the Applicant accepts that should the Tribunal grant approval appropriate conditions may be imposed.
(1) If the conviction is a spent conviction under the Criminal Records Act 1991 (NSW) (the Criminal Records Act) then an application pursuant to s 121(2) of the Uniform Law would not be necessary. However, during the hearing, and after consideration following a short adjournment, Mr Chan made the submission that the conviction in this case cannot become a spent conviction. The conviction in this case was one involving a sexual offence and it resulted in a prison sentence of more than six months (albeit suspended). Such convictions are excluded from those convictions which may become spent: see s 7(1)(a) and (b) of the Criminal Records Act). We agree with this submission, namely that the conviction in this case cannot become a spent conviction.
(2) In relation to whether the Tribunal should make a confidentiality order anonymising the name of the Applicant and other information likely to enable the Applicant to be identified, the Council's position is again neutral.
(3) The Council identified a number of conditions which the Tribunal might consider in connection with the approval of the application. These are discussed in further detail in subsequent paragraphs.
"1. The approval as a lay associate has effect from 1 February 2026 for a period of 18 months from that date.
2. The approval authorises the Applicant to be a lay associate of solicitors, barristers or both solicitors and barristers.
3. Whilst working as a lay associate the Applicant must not work on legal matters that are primarily concerned with the rights of a child/children or which directly involves a child/children (defined as any person under the age of 18) and must not have contact with children in the course of their work as a lay associate.
4. Whilst working as a lay associate, the Applicant must be supervised by an Australian legal practitioner who holds an Australian practising certificate that authorises the holder to supervise legal practice by others.
5. In addition to their obligations under section 122(1) of the Uniform Law to inform any law practice of their convictions prior to becoming a lay associate, the Applicant must inform the managing partner and the senior partner that is principally responsible for their supervision (for example, the supervising partner of a graduate law program) of any conditions imposed on their approval under section 121 by the Tribunal.
6. The Applicant must provide proof of compliance with condition 5 above to:
(a) in the case of a lay associate's engagement with solicitors, the Director, Legal Regulation of the Law Society of New South Wales; and
(b) in the case of a lay associate's engagement with barristers, the Director Professional Conduct of the New South Wales Bar Association;
within seven days of becoming a lay associate of a law practice.
7. The Applicant must inform the Council of the Law Society of New South Wales within 7 days of them being charged with or convicted of a serious offence, as defined in section 6 of the Uniform Law."
"1. Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the Applicant, or any information tending to reveal their identity is prohibited. The Applicant is to be referred to as HHP.
2. To give effect to the order set out at 1 above, the names of any persons who gave evidence in support of the Applicant's application will not be published.
3. Pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name, or any information tending to reveal their identity, of the person referred to at line 36 (and elsewhere) of Annexure A to the affidavit of the Applicant dated 2 September 2025 is prohibited.
4. The Applicant is exempt from order 1 for the purposes of making the disclosures required of them by these conditions placed upon them by the Tribunal pursuant to section 121(4) of the Uniform Law.
5. The Applicant is exempt from order 1 above to the extent that may be required for the purposes of making appropriate disclosures to the Legal Practitioners Admission Board should the Applicant decide to apply for admission as a lawyer in NSW."
(1) The application is for the limited purpose of completing mandatory legal training obligations and thereafter, the Applicant will presumably seek admission to become a legal practitioner. Were we to disclose his identity now he would be prejudiced in making a confidentiality application, should he make such an application to the Supreme Court. The Court may decline to make a nonpublication order if identification of the Applicant has already occurred, and thus the name of the Applicant is in the public domain.
(2) Whilst we note that the Applicant would presumably be embarrassed if this decision were published and his name was not anonymised, embarrassment alone is, in our opinion, not sufficient to justify a confidentiality order. However, at a practical level, his prospects for advancement might be "blighted" if his name were to be widely known within the legal profession. This, and the fact the applicant was registered on the Queensland child protection register, were matters considered in the judgment of the Court of Appeal in Queensland in the case bearing the name In the matter of an application for admission as a legal practitioner by MCF [2015] QCA 154. At [24] the Court noted that that access to the register was controlled and that the general public did not have access. The Court was of the view that identifying the applicant would be inconsistent with the confidentiality of the legislative regime regulating access to the register. We are of the same view having regard to the Applicant's registration on the NSW Child Protection Register.
(3) Anonymising the name of the Applicant provides an extra layer of protection against disclosure of the victim's identity.
(4) The witnesses in this application are all related to, or close associates of, the Applicant and disclosure of their names would tend to reveal the identity of the Applicant.
(1) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the Applicant, or any information tending to reveal their identity is prohibited. The Applicant is to be referred to as HHP.
(2) To give effect to order 1 above, the names of any persons who gave evidence in support of the Applicant's application will not be published.
(3) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name, or any information tending to reveal their identity, of any person or institution referred to in these proceedings including in the evidence lodged in relation to these proceedings, is prohibited.
(4) The Applicant is exempt from order 1 for the purposes of making the disclosures required of them by these conditions placed upon them by the Tribunal pursuant to s 121(4) of the Legal Profession Uniform Law (NSW) (Uniform Law).
(5) The Applicant is exempt from order 1 above to the extent that may be required for the purposes of making appropriate disclosures to the Legal Practitioners Admission Board should the Applicant decide to apply for admission as a lawyer in NSW.
(6) Pursuant to s 121(2) of the Uniform Law, HHP is approved to be a lay associate of any New South Wales law practice on the conditions set out below.
(7) The following conditions are attached to this approval:
(a) The approval as a lay associate has effect from 1 February 2026 for a period of 18 months from that date.
(b) The approval authorises the Applicant to be a lay associate of solicitors, barristers or both solicitors and barristers.
(c) Whilst working as a lay associate the Applicant must not work on legal matters that are primarily concerned with the rights of a child/children or which directly involves a child/children (defined as any person under the age of 18) and must not have contact with children in the course of their work as a lay associate.
(d) Whilst working as a lay associate, the Applicant must be supervised by an Australian legal practitioner who holds an Australian practising certificate that authorises the holder to supervise legal practice by others.
(e) In addition to their obligations under s 122(1) of the Uniform Law to inform any law practice of their convictions prior to becoming a lay associate, the Applicant must inform the managing partner and the senior partner that is principally responsible for their supervision (for example, the supervising partner of a graduate law program) of any conditions imposed on their approval under s 121 by the Tribunal, and provide a copy of this decision.
(f) The Applicant must provide proof of compliance with condition (e) above to:
(i) in the case of a lay associate's engagement with solicitors, the Director, Legal Regulation of the Law Society of New South Wales; and
(ii) in the case of a lay associate's engagement with barristers, the Director Professional Conduct of the New South Wales Bar Association;
within seven days of becoming a lay associate of a law practice.
(g) The Applicant must inform the Council of the Law Society of New South Wales within 7 days of them being charged with or convicted of a serious offence, as defined in s 6 of the Uniform Law.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Application of FXI under 121 of the Legal Profession Uniform Law [2024] NSWCATOD 6
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Council of the Law Society of New South Wales v Parente [2019] NSWCA 33
In the matter of an application for admission as a legal practitioner by MCF [2015] QCA 154
McCowan v Council of Law Society of NSW [2014] NSWCATAD 44
(1938) 60 CLR 336