Fox v Law Society of New South Wales

NCAT Occupational|2018-09-07|Before: Mr J

Introduction

Danielle Lee Fox (the Applicant) has filed an application seeking approval to be employed as a lay associate of a law practice pursuant to s 121 of the Legal Profession Uniform Law (NSW).

Jurisdiction

Pursuant to Table 1, to s 11 of the Legal Profession Uniform Law Application Act 2014 (the Uniform Law), the NSW Civil and Administrative Tribunal is the Designated Local Regulatory Authority (DLRA) for granting approval to be employed as a lay associate.
The Law Society of New South Wales (the Respondent) did not adopt an adversarial role, but Mr Flax appeared on its behalf to assist the Tribunal in the exercise of its function as the DRLA.

The Evidence

The Applicant relied upon the following evidence, which was admitted without objection: (a) Affidavit of Danielle Lee Fox dated 22 August 2018; (b) Affidavit of Greg Schumer dated 21 August 2018; (c) Affidavit of Meredith Phelps dated 21 August 2018; (d) Affidavit of Peter Givorshiner dated 21 August 2018; (e) Affidavit of John Lesley Stonham dated 21 August 2018; and (f) Affidavit of Jeffrey Clarke dated 21 August 2018.
The Applicant also gave sworn oral evidence at the Tribunal's request, which elicited the following further information: (1) In her dealings with the Police she gave an undertaking to give evidence in any criminal proceedings; (2) She gave sworn evidence in criminal proceedings in the Supreme Court (which she believed was before a jury); (3) She participated in conferences with the DPP and Prosecutors in relation to those criminal proceedings; (4) She provided practical assistance in doing a "walk through" of events; (5) She appreciated that her actions were both serious and wrong; (6) She appreciated that in a profession, such as the legal profession, a paramount responsibility is to be honest and to tell the truth; (7) The legal practitioner's duty to the Court to be honest and to tell the truth is most important; (8) She appreciates the distinction between an industry (she used the expression "the legal industry" in more than one of her answers) and a profession and the high demands and duties that a profession, such as the legal profession, demands of its members; (9) She did not witness the actual stabbing incident; (10) She considers that she is a different person now to the person she was when the stabbing incident occurred, as she now appreciates the fact that it is vital to be honest; (11) She appreciates that what she did was wrong; and (12) Each time she disclosed her conviction to an employer she felt ashamed and hoped that one day she could put it all behind her.

The Legislation

Section 121 of the Uniform Law provides: 121 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. Note: The designated local regulatory authority could consider a person's application for approval as a lay associate at the same time as it decides not to grant or renew, or decides to suspend or cancel, the person's Australian practising certificate.
The Uniform Law provides that the Tribunal may consider any relevant matter, but it 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 responsibility of the arrangement or kind of arrangement under which the person is seeking to be employed or otherwise involved; and (c)The degree of connection between the person's disqualification or conviction and the requirements and responsibilities of the arrangement or kind of arrangement. It also provides that an approval may be granted unconditionally or subject to specified conditions.
The Applicant bears the onus of proof and the relevant standard of proof is the balance of probabilities.

The nature and circumstances of the disqualification or conviction.

The Transcript of the sentencing decision of the Magistrate indicates that the Applicant's offence was at the lower end of the scale in relation to objective criminality for the offence of hinder investigation. Further, she offered real assistance to Police within forty-eight (48) hours of providing her first statement and her evidence did not play a major role in the investigation (which involved up to 50 other witnesses). She was eighteen (18) years old at the time of the offence and she had not commenced her legal studies or been employed by a Law Practice in any capacity when she was convicted.
Anna Robillard, Psychologist, provided a report that is annexed to the Applicant's Affidavit. She expressed the view that the Applicant was taken by surprise by the stabbing incident and she had not had an opportunity to talk to her parents about it before she provided her first statement. Without the benefit of their advice and support, she misled the Police about her whereabouts at the time of the offence.

The requirements and responsibilities of the arrangement under which the person is seeking to be employed.

The Applicant's proposed role is described in the Affidavit of Mr Stonham as an administrative role under his direct supervision. In the proposed role, the Applicant will not have any autonomy and will not undertake any unsupervised work of a legal nature.

The degree of connection between the conviction and the requirements and responsibilities of the arrangement.

The conviction arose out of a criminal investigation. While the Law Practice accepts instructions in the field of criminal law, the degree of connection between the proposed role of an administrative assistant and the practice of criminal law is not significant.

Any other matters

The deponents of all other Affidavits relied upon by the Applicant depose to her current general good character and her desire to pursue a career in law. Each deponent swore that they have known and observed the Applicant in their professional capacities and recommended that approval be granted for her to be employed as a lay associate of a Law Practice.
The Tribunal has had the benefit of written submissions prepared by Mr Wong, in which he drew our attention to ss 8 and 9 of the Criminal Records Act, 1991, which provides to the effect that a conviction becomes "spent" ten (10) years after it occurred. When it becomes "spent", a record of the conviction is kept under s 12 of the Criminal Records Act, 1991, but it need not be disclosed (for example, to an employer). He argued that s 121 is subject to s 125 of the Uniform Law, which provides that Part 3.9 is subject to any applicable jurisdictional legislation relating to spent convictions. He submitted that the Applicant's conviction will become spent in two years' time.
Mr Wong also drew our attention to the decision of Hill v The Council of the Law Society of New South Wales [2017] NSW CATOD164, in which the Tribunal considered the matters specified in s 121 (3) of the Uniform Law and held that it is was relevant to consider the following further matters: (a) Whether the integrity of the legal profession would be damaged by granting the application; and (b) Whether there would be any risk occasioned to the public by granting the approval.
22 Mr Flax referred the Tribunal to several authorities, to which we have not referred in detail in these reasons, but which are listed on the cover page.

Consideration

It is trite law that each application must be determined based on its own merits and facts. In determining this matter, we have carefully considered all available evidence, the relevant legislation and the relevant authorities and we have also had the opportunity of hearing the Applicant's sworn oral evidence and the benefit of observing her demeanour while giving that evidence.
Having done so, we are satisfied that the integrity of the legal profession would not be damaged by granting approval for the Applicant to be employed as a Lay Associate by a Law Practice. We are also satisfied that there is no risk to the public by our granting such approval.
We have decided that it is appropriate for the Tribunal to provide a general approval under s 121 of the Uniform Law, such that the Applicant may be employed by any Law Practice within New South Wales, subject to the condition that she is only to be employed in the role of an Administrative Assistant.

Order

We make the following order: 1. Approval is issued for Danielle Lee Fox to be employed in the role of an Administrative Assistant by any Law Practice in New South Wales pursuant to s 121 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. Registrar

Amendments 28 September 2018 - Case title corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 September 2018

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