This is an application brought by Joshua David Gale (the Applicant) to be approved as a lay associate for the purposes of s 121 of the Legal Profession Uniform Law (NSW), 2014 ("the Law") at the law practice Fourtree Lawyers.
The reason that the application has been brought arises from the provisions of s 121 of the Law, the terms of which are:
Contravention by law practice - disqualified or convicted person as lay associate
(1) A law practice contravenes this subsection if the law practice has a lay associate whom any principal or other legal practitioner associate of the law practice knows to be -
(a) a disqualified person; or
(b) a person who has been convicted of a serious offence -
unless the lay associate is approved by the designated local regulatory authority under subsection (2).
Penalty: 100 penalty units.
(2) The designated local regulatory authority may, on application, approve a person as a lay associate for the purposes of this section. An approval may be given generally, or for a particular position or category of positions with a particular law practice, or for a particular category of positions with any law practice.
(3) In dealing with an application for approval of a person as a lay associate, the designated local regulatory authority may consider any relevant matters and must consider the following matters so far as they are relevant -
(a) the nature and circumstances of the person's disqualification or conviction;
(b) the requirements and responsibilities of the arrangement or kind of arrangement under which the person is seeking to be employed or otherwise involved;
(c) the degree of connection between the person's disqualification or conviction and the requirements and responsibilities of the arrangement or kind of arrangement.
(4) An approval may be granted unconditionally or subject to specified conditions.
The Applicant has been convicted of a serious offence and therefore a law practice would contravene s 121 if it employed the Applicant as a lay associate without approval. Section 121(2) provides that the designated local regulatory authority may, on application, approve a person as a lay associate for the purposes of the section. Section 121(3) provides that in considering an application for approval of a person as a lay associate, the designated local regulatory authority may consider any relevant matters and must consider the matters set out in subsections (a), (b) and (c) of s 121(3).
Briginshaw v Briginshaw [2023] NSWCATOD 125 | Case summary | Zoe
This Tribunal is the designated local regulatory authority for the purposes of considering the application: see Table 1 in s 11(1) of the Legal Profession Uniform Law Application Act 2014 (NSW) (the Application Act).
Originally the application lodged in the Tribunal was brought in the name of the Applicant's proposed employer but at a directions hearing on 3 May 2023, the following relevant orders were made:
1. The Applicant is substituted for Kevin Vierboom as the applicant (order 1).
2. The Council of the Law Society of New South Wales is removed as a Respondent and is granted leave to participate in the matter by the filing of evidence and the making of submissions (order 2).
In support of the Applicant's application the Applicant relied upon the following evidence:
1. The statutory declaration of the Applicant dated 20 April 2023 (a copy of which was attached to the application).
2. The affidavit of the Applicant dated 11 May 2023.
3. The affidavit of Kevin William Vierboom dated 12 May 2023.
4. The reference of Charlotte Rae dated 11 May 2023.
5. The reference of Conrad Nicholls dated 11 May 2023.
The Applicant's counsel acknowledged that the rules of evidence apply to these proceedings and that the Tribunal must be satisfied to the standard prescribed in Briginshaw v Briginshaw (1938) 60 CLR 336.
The representative of the Council of the Law Society (the Law Society) informed the Tribunal that the Law Society appeared as "amicus" and did not object to any part of the evidence tendered by the Applicant. The statutory basis for the presence of the Law Society is cl 21(3) of sch 5 of the Civil & Administrative Tribunal Act, 2015 (NSW) (the NCAT Act). That schedule includes provisions dealing with hearings concerning the Law and that clause provides that the Tribunal may grant leave to "any other person to appear at the hearing if satisfied that it is appropriate for that person to appear". We are so satisfied.
The Law Society's written submissions concerning the application may be described as "neutral" neither making submissions for or against the application but rather identifying matters to be taken into account by the Tribunal in determining the application.
[2]
The Evidence
The factual background relevant to the application is set out in the following paragraphs and is derived from the evidence tendered for the Applicant.
The Applicant is 29 years of age, having been born in May 1994. In 2013, he joined the Australian Army and was discharged in 2019.
Around Christmas time in 2015 he found at the home of his late grandfather (who died in 2012) two rifles contained in a box storing a Christmas tree. In 2016 he acquired two pistols which were given to him by a friend. During this period he spent periods overseas and the two rifles and two pistols were in the possession of a friend.
Although the Applicant held licences for firearms he did not have the two rifles and two pistols registered. His evidence was that he knew that possession of unregistered firearms was illegal and was of the opinion that he would be in "legal trouble" if he attempted to bring the firearms to the attention of authorities outside any designated amnesty period.
The police became aware of the firearms and the Applicant was subsequently charged. He pleaded guilty to being in possession of four firearms and on 22 March 2019, he was sentenced. Annexed to the affidavit of the Applicant is a transcript of the sentencing remarks of His Honour Judge Ellis of the District Court. We will refer to these remarks in greater detail subsequently.
On 31 January 2023 the Applicant was engaged by Mr Vierboom, solicitor as a lay associate in the position of "legal secretary" at Mr Vierboom's firm. The Applicant did not disclose his prior conviction and therefore Mr Vierboom was unaware of it. There is no suggestion that Mr Vierboom or anyone in his firm breached the provisions of the Law.
On 2 April 2023 the Applicant became aware during the course of his studies as a law student that s 122 of the Law provides that he, as a person convicted of a serious offence, must not seek to become an associate of a law practice, unless he first informs the law practice of the disqualification or conviction. He immediately rang Mr Vierboom and informed him of the fact of his conviction. On the following day (3 April 2023) Mr Vierboom suspended the Applicant from his position, pending approval by the Tribunal of the present application.
The Applicant's current position is that he is in his final year of studies for a Bachelor of Laws (Honours) with combined Diploma of Legal Practice at the University of Newcastle with expectations of finishing this calendar year or within a month or two of next year.
The purpose of the application is to enable the Applicant to be reemployed by Mr Vierboom in the position of legal secretary. The evidence discloses that in that role, he will assist in the drafting of documents and letters, the compilation and review of brief material, correspondence with clients and other administrative duties. He will be supervised in his employment by Mr Vierboom being the principal solicitor at the law practice as well as other solicitors employed at that practice.
We now turn to the sentencing remarks of his Honour Judge Ellis. Those remarks may be summarised as follows:
1. The Applicant pleaded guilty to one count of possessing more than three firearms, one of which was a pistol or prohibited firearm contrary to the s 51D(2) of the Firearms Act. The maximum penalty is 20 years imprisonment with a standard non-parole period of 10 years. The Applicant pleaded guilty to being in possession of four firearms.
2. The Applicant was a licensed firearm holder. The background to the charges is that the police attended the Applicant's residence within which was a safe where the police located one pistol and one firearm (a rifle). The Applicant was present. A further pistol and a rifle were located on a table. Although they were not secured, the Applicant was present. His Honour said that it was a reasonable assumption that normally those two firearms found on a table would have been stored within the safe.
3. At the time of the offending the Applicant was 23 years of age and a member of the Australian Army. The four firearms in question were not registered as part of the licenses held by the Applicant. There was no apparent reason why he would not have been able to register the firearms. Two rifles came from his deceased grandfather and the two pistols came to the Applicant from an associate who was suffering an illness.
4. The Crown did not suggest that the Applicant had any criminal intent. He has no prior criminal history and, on the material before the court, it was clearly established that he was a young man of good character.
5. His Honour stated that it seems that the only reason the Applicant did not take appropriate action in relation to the firearms, is that of "slackness on his part". He left the country for an overseas destination for a period of about seven months and the evidence suggested that the person who occupied the Applicant's house had been asked to surrender the rifles during an amnesty. His Honour stated that, given that there was no criminal intent, and that there was at least a safe available for the storage of the firearms "albeit that two were not in the safe at the time the police arrived", it does "seem to me that the level of criminality is at the lower end of the range". Nevertheless, his Honour described the matter as a "serious criminal offence".
6. His Honour went on to say that, given that the Applicant has no prior criminal history, is a person of good character, that he is "clearly, having regard to all of the times he has spoken about this, contrite and remorseful and unlikely to reoffend, it is difficult to say that a sentence of full-time imprisonment is mandated". In addition, his Honour noted that the Applicant had already served nearly six months full-time imprisonment. We divert to comment that during the hearing we were informed that this arose because the initial description of the charge was such as to preclude bail. The description of the charge contained an error and a successful bail application was later made. In the meantime, the Applicant had served six months in gaol.
7. His Honour referred to a sentencing assessment report by an officer of the Community Corrections Service which stated that the Applicant "demonstrate prosocial attitudes and behaviour in general". It also stated that the Applicant has been assessed as having a low risk of reoffending and as suitable to perform community service work.
8. The sentencing remarks include reference to a report from a forensic psychologist which his Honour described as a positive report and that the Applicant has no notable mental health issues and does not present with any psychiatric or personality-based concerns nor does the Applicant have a history of drug or alcohol misuse.
9. His Honour stated that the evidence reflects that the Applicant, although of good character, did the wrong thing through being slack.
10. In the result, the court imposed an intensive corrections order requiring the Applicant to perform 200 hours of community service (which has since been performed).
The affidavit of Mr Vierboom stated that during the two month period in which the Applicant worked for his firm, he found the Applicant to be "honest, dependable, reliable and trustworthy". He performed all tasks assigned to him with diligence and repeatedly exceeded expectations. Mr Vierboom said that the Applicant had done nothing that "would even remotely point me to questioning his integrity, and I have absolutely no concerns regarding his continued association with Fourtree Lawyers, or the wider profession".
The Applicant also relied upon two unsworn statements, one from Charlotte Rae and the other from Conrad Nicholls. Ms Rae is a final year law student and legal clerk and has known the Applicant for the past three years. She describes herself as a close friend of the Applicant. Her statement includes the fact that the Applicant has made her aware of his conviction under the Firearms Act. She describes the Applicant as a person of integrity and with a determined moral compass in all areas of his life. Her statement gives further detail of the circumstances in which she has come to know the Applicant.
Mr Nicholls also attended the University of Newcastle Law School and met the Applicant in 2020. Mr Nichols has since graduated and is now an admitted solicitor in New South Wales. His statement says that he and the Applicant remain friends and that the Applicant has made known to him that he was convicted in the District Court of contravention of s 51D(2) of the Firearms Act. He describes the Applicant as intelligent, mature and a good friend and that his opinion of the Applicant has not changed since he became aware of the conviction.
[3]
Applicant's Submissions
The Applicant's counsel submitted that it was a relevant consideration that Mr Vierboom supported the Applicant's application for approval as a lay associate and to be an employee of his law firm. Counsel submitted that this was a case which involved no issue of fraud or violence or any other issue which would be of community concern. Counsel further submitted that the facts relevant to the application should not give the Tribunal concern in giving approval for the Applicant to be a lay associate.
[4]
Law Society Submissions
The substance of the Law Society's submissions was to provide the Tribunal with information to assist the Tribunal in its determination.
The Law Society's submissions referred to the following relevant cases:
1. McGirr v The Council of the Law Society of New South Wales [2014] NSWCATOD 154. There it was held that the public interest in the protection of the public and the standing of the legal profession is paramount.
2. Fox v Law Society of New South Wales [2018] NSWCATOD 164. In this case Ms Fox was required to make an application to the Tribunal because she had been convicted of a serious offence, namely an offence of hindering a criminal investigation under s 315 of the Crimes Act 1900 (NSW). The Tribunal held that it was satisfied that the integrity of the legal profession would not be damaged by granting approval for Ms Fox to be employed as a lay associate by a law practice and that there was no risk to the public by granting such approval. The Tribunal dealt with evidentiary matters in support of this conclusion, such as that Ms Fox's offence was at the lower end of objective criminality, she offered real assistance to the police, she did not play a major role in the relevant investigation and was 18 years old at the time of the offence. The decision in that case also referred to the fact that Ms Fox would not have any autonomy and would not undertake unsupervised work and further that there was no significant degree of connection between Ms Fox's conviction and her proposed role as an administrative assistant.
The Law Society's submissions state that the Tribunal must consider the nature and circumstances of the Applicant's conviction. This is set out in the sentencing remarks of his Honour Judge Ellis. The Tribunal must also consider the requirements and responsibility of the arrangement or kind of arrangement under which the Applicant is seeking to be employed or otherwise involved. It is also necessary to consider the degree of connection between the Applicant's conviction and requirements and responsibilities of the arrangement or kind of arrangement. The Law Society submitted that the offence committed by Mr Gale bears little, if any, connection to the arrangement under which the Applicant seeks to be employed, particularly as there is no suggestion that the Applicant acted dishonestly.
The Law Society's submissions also referred to other matters that the Tribunal may consider. This included the fact that the Applicant showed insight and contrition into the wrongfulness of his conduct. We note that there is no evidence that his post-conviction conduct has involved any unlawful conduct. The Applicant gave oral evidence that he has no criminal record apart from the offence dealt with by His Honour Judge Ellis.
The Law Society's submissions state that if the Tribunal determines to approve the application, it may consider making the approval conditional upon only permitting the Applicant to be employed by the law practice as a legal secretary under Mr Vierboom's supervision.
[5]
Consideration
We are comfortably satisfied to the standard known as the Briginshaw standard of the following matters relevant to s 121(3):
1. As to s121(3)(a) which concerns the nature and circumstances of the conviction, there is no evidence that the Applicant had any criminal intent. He had no prior criminal history and there is no evidence of any criminal history subsequent to the conviction. The evidence demonstrates that he is a person of good character and it is relevant that when the offence occurred, he was relatively young, approximately 23 years of age.
2. The reason that the Applicant did not take appropriate action and seek to have the firearms registered or handed in was due to "slackness on his part". It is relevant that he was absent overseas for a period and that this may have contributed to his slackness in addressing his responsibility of registering the firearms or handing them in. It is relevant that His Honour Judge Ellis described the level of criminality as "at the lower end of the range".
3. It is relevant that the Applicant impressed his Honour Judge Ellis with being contrite and remorseful and that his Honour thought he was unlikely to reoffend. Before us he gave some evidence in chief and answered some questions by way of cross-examination. He appeared to us to be an honest witness who was extremely remorseful about the circumstances leading to his conviction.
4. As to s121(3)(b) which concerns the requirements and the responsibilities of the arrangements under which the Applicant is seeking to be employed, the references in the sentencing remarks to the opinion of a community corrections service officer and to the opinion of a psychologist as to the Applicant's personality are also relevant and weigh in his favour. Similarly the opinion of Mr Vierboom, Miss Rae and Mr Nicholls weigh in favour of the Applicant. In particular there is no evidence that would cause us to doubt that the Applicant would undertake his responsibilities as a lay associate honestly and with the utmost good faith.
5. Further we are satisfied, by virtue of the evidence of Mr Vierboom, that the Applicant will be both instructed by Mr Vierboom and supervised by him, and although given the wide-ranging work proposed for the Applicant and the possibility of having direct contact with clients, we remain confident that the Applicant will perform his duties appropriately.
6. As to the requirement under s121(3)(c) to consider the degree of connection between the Applicant's conviction and the requirements and responsibilities of the proposed arrangement, we are of the view that there is no substantive connection. This is because there was no dishonesty or deception on the part of the Applicant. His conviction arose through a combination of "slackness" as well as the circumstances of his work requiring him to travel overseas.
We note that the Applicant appears to have breached s122 of the Law by seeking employment with the law practice without informing the law practice of his conviction. We also note that he did inform Mr Vierboom as soon as he became aware of his obligation to do so. This initial oversight does not reflect well on the Applicant because we are of the view that independently of s122, ordinary obligations of candour and transparency would have led to the conclusion that the fact of the conviction should have been disclosed.
Notwithstanding the remarks made in the last paragraph we are comfortably satisfied that the employment of the Applicant as a lay associate will not pose a risk to the public and nor will his employment impact adversely upon the integrity of the legal profession. Accordingly we are comfortably satisfied that it is appropriate to approve the Applicant to be a lay associate in Mr Vierboom's law firm. We note that the definition of lay associate includes the possibility of such person being a consultant or agent of the law firm. We think it appropriate that in this case the Applicant be an employee of the law firm as that will carry with it the responsibility of the law firm to supervise him. The level of supervision may or may not be so strong in the case of a lay associate who is a consultant or agent.
Finally, we should state that this application is only concerned with approval for the Applicant to be a lay associate and any subsequent application for the Applicant to be admitted as a legal practitioner will necessarily have to be the subject of a separate application or approval by the appropriate authority.
Accordingly, we make the following order:
1. Pursuant to s121 of the Legal Profession Uniform Law 2014 NSW Joshua David Gale (the Applicant) is approved as a lay associate of the law practice Fourtree Lawyers under the supervision of Mr Kevin Vierboom, such approval being conditional upon the Applicant being employed by that firm.
[6]
I hereby certify that this is a true and accurate record of the reasons for Decision of the New South Wales Civil and Administrative Tribunal.
Registrar
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.
Registrar
[7]
Amendments
23 August 2023 - Coversheet - Case Name amended
Paragraph Orders - removed
Paragraph 31 & 32 - swapped around
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Decision last updated: 23 August 2023