Heffernan v Law Society Northern Territory [2023] NTCA 10

217AHeffernan v Law Society Northern Territory [2023] NTCA 10 | Case summary | Zoe

[11]

[2] The following facts are not in dispute.
[3] Between 16 January 2016 and 4 July 2018, Heffernan was employed by the Department of Primary Industries and Regional Development of Western Australia ('the Department') as the Director, Legal and Commercial, Agriculture and Food Division. She did not practise as a lawyer in that role.
[4] On 19 July 2017, the Director-General of the Department ('Addis') notified the Corruption and Crime Commission of Western Australia ('the CCC') of 'suspected serious misconduct' by Heffernan.
[5] The CCC referred the notification to the Public Sector Commission, which referred the notification back to the Department. The result was that Addis was to deal with the matter.
[6] On 28 August 2017, Addis wrote to Heffernan stating she may have committed acts constituting a breach of discipline under s 80 of the Public Sector Management Act 1994 (WA) ('the PSMA'). Five allegations were made, namely that: (1) she failed to comply with policies and procedures for entry into a contract for services arrangement with Peter Evans (for example, she lacked delegated authority to enter the contract, the contract terms were non-compliant, she intended to pay Mr Evans in full before his services were rendered, and the reasons given for urgently procuring the services were not valid); (2) she offered a transfer to the Department to Amber Russell for which Heffernan lacked delegated authority; (3) she committed funds for the engagement of Mr Evans and Ms Russell without appropriate authorisation and in breach of a Department decision; (4) she circumvented and misused a memorandum of understanding with the University of Western Australia for unpaid work experience by engaging interns as paid casual employees, one of whom did not meet the criteria for engagement; and (5) she provided misleading information and/or responses about the Potato Marketing Corporation to the Minister's office, Departmental officers and the State Solicitor's Office. Addis invited Heffernan to provide a written response which would be taken into consideration in determining what, if any, further action would be taken. Addis said that if she was found to be in breach of discipline, she may be subject to disciplinary action, ranging from a reprimand to termination of her employment.
[7] On 21 September 2017, Addis emailed Heffernan because she had approached other parties seeking copies of correspondence between the Department and the CCC. He told her that he had notified the CCC of her suspected misconduct and provided Heffernan with a copy of his notification. He refused to provide her with the correspondence to him from the CCC (stating it was the CCC's preference that such correspondence not be shared). Addis informed Heffernan that:

[13]

[8] On 3 October 2017, Addis wrote to Heffernan in response to her solicitor's request for further particulars about allegations (4) and (5) and an extension of time to provide a written response. Addis provided further particulars and granted an extension of time to 31 October 2017.
[9] On 8 November 2017, Addis wrote to Heffernan noting that no response had been received to the allegations in his letter of 28 August 2017, and informing Heffernan that he had determined there was sufficient evidence to 'treat this as a disciplinary matter' under s 81(1)(a) of the PSMA. He stated he would now initiate a 'discipline investigation' pursuant to s 82A of the PSMA. He also proposed that Heffernan be suspended from duty on full pay under s 82(1)(a) of the PSMA, commencing from 15 November 2017 until she was further advised. Heffernan was given the opportunity to comment on the proposal to suspend her. She was again informed of the possible action that may be taken, including adverse findings against her and disciplinary action. Addis stated he would appoint an independent investigator to undertake the investigation.
[10] On 17 November 2017, the acting Deputy Director-General wrote to Heffernan noting that no comment had been received from her regarding the proposal to suspend her, and advising that the suspension was confirmed with effect from 15 November 2017.
[11] On 1 December 2017, Addis wrote to Heffernan confirming the appointment of an investigator to undertake the investigation.
[12] On 12 January 2018, Heffernan was interviewed by the investigator and sought to provide information and documents that she contended answered the allegations against her and vindicated her of any wrongdoing.
[13] On 23 April 2018, Addis wrote to Heffernan informing her that the independent investigation had concluded, he had reviewed the investigator's report and all available information, including Heffernan's responses to the allegations, and had found the allegations to be substantiated. Addis informed Heffernan, pursuant to s 82A(3)(b) of the PSMA, that based on those findings, he proposed to terminate her employment with notice. He stated as follows:

[39]

[41] On 5 July 2019, Heffernan notified the Western Australian Parliamentary Inspector of errors and omissions in the final CCC report and instructed her lawyers to seek a review of the final CCC report. She also issued a press release to the media denying the findings in the final CCC report. She also notified her employer of the final CCC report and her views on it.
[42] On 27 July 2021, the CCC informed Heffernan that she was no longer bound by the non-disclosure requirement in the CCC summonses.
[43] Heffernan did not at any time disclose to the Law Society the Department's disciplinary process and adverse findings, the CCC summonses or examination, the CCC draft report or the CCC final report. The Law Society became aware of the contents of the final CCC report from another source. On 1 October 2019, the Law Society gave Heffernan notice that it believed she was no longer a fit and proper person to hold a practising certificate, and that it proposed to take action to cancel her unrestricted practising certificate. Reference was made to Heffernan's failures to disclose either the Department's investigation, or the final CCC report, either in her applications for a practising certificate or its renewal, or at any time. Heffernan was given 21 days to provide a written response. Despite a letter from Heffernan's solicitor saying a response would be provided within that timeframe, none was.
[44] On 23 October 2019, the Law Society wrote to Heffernan informing her that the Council of the Law Society would be considering the matter on 31 October 2019. Again, despite a letter from Heffernan's solicitor saying a response would be provided before that time, none was.
[45] On 31 October 2019, the Law Society decided to cancel Heffernan's practising certificate pursuant to s 57(2)(c) of the Act on the ground in s 56(a) that she was no longer a fit and proper person to hold an unrestricted practising certificate. That decision took effect from 5 November 2019.
[46] On 2 December 2019, Heffernan filed in the Supreme Court an appeal from the Law Society's decision pursuant to s 89(1)(c) of the Act.

[58]

(1) Each of the following is a suitability matter in relation to an individual:

(a) whether the person is currently of good fame and character;

(b) whether the person is or has been an insolvent under administration;

(c) whether the person has been convicted of an offence in Australia or a foreign country, and if so:

(i) the nature of the offence; and

(ii) how long ago the offence was committed; and

(iii) the person's age when the offence was committed;

(d) whether the person engaged in legal practice in Australia:

(i) when not admitted, or not holding a practising certificate, as required under this Act or a previous law of this jurisdiction that corresponds to this Act or under a corresponding law; or

(ii) if admitted, in contravention of a condition on which admission was granted; or

(iii) if holding an Australian practising certificate, in contravention of a condition of the certificate or while the certificate was suspended;

(e) whether the person has practised law in a foreign country:

(i) when not permitted by or under a law of that country to do so; or

(ii) if permitted to do so, in contravention of a condition of the permission;

(f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:

(i) this Act or a previous law of this jurisdiction that corresponds to this Act;

(ii) a corresponding law or corresponding foreign law;

(g) whether the person:

(i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or

(ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt.

(ga) whether the person has been found to have engaged in academic dishonesty (including, for example, plagiarism);

(h) whether the person's name has been removed from:

(i) a local roll, and has not since been restored to or entered on a local roll; or

(ii) an interstate roll, and has not since been restored to or entered on an interstate roll; or

(iii) a foreign roll;

(i) whether the person's right to engage in legal practice has been suspended or cancelled in Australia or a foreign country;

(j) whether the person has contravened, in Australia or a foreign country, a law about trust money or trust accounts;

(k) whether, under this Act, a law of the Commonwealth or a corresponding law, a supervisor, manager or receiver, however described, is or has been appointed in relation to any legal practice engaged in by the person;

(l) whether the person is or has been subject to an order, under this Act, a law of the Commonwealth or a corresponding law, disqualifying the person from being employed by, or a partner of, an Australian legal practitioner or from managing a corporation that is an incorporated legal practice;

(m) whether the person currently has a material inability to engage in legal practice.

[62]

[69] This involves the construction of the relevant provisions of s 11(1) and the making of findings of fact on the evidence before the Court. The facts that must be determined in any particular case will depend on the particular suitability matter or matters in issue and the circumstances of the case. For example, if the particular suitability matter is whether the person is of good fame and character within s 11(1)(a), the Court may, if the practitioner disputes it, be required to determine whether the practitioner has engaged in dishonest, improper or other conduct which renders them not of good character. On the other hand, if the particular suitability matter is whether the person has been convicted of an offence within s 11(1)(c), the Court need only make findings about whether the practitioner has been convicted, and need not make any findings about whether the practitioner committed a criminal offence. The determination also requires an assessment of the nature of the matter and its degree of connection to one of the suitability matters and/or its capacity to reflect adversely on an assessment of that fitness.
[70] If the Court is satisfied (on the balance of probabilities to the Briginshaw standard) that a suitability matter in s 11(1) applies to the practitioner, or could reasonably be taken to apply, or that a matter could otherwise reasonably be taken to bear on the assessment of the person's fitness, then the practitioner was obliged to disclose the matter to the Law Society.
[71] If the Court is satisfied the practitioner was obliged to disclose the matter but failed to do so, the Court must then determine whether the applicant is not a fit and proper person to hold a practising certificate by reason of that non-disclosure. This determination must take into account the findings already made concerning the materiality of the information. It must also take into account the practitioner's evidence in explanation for the non-disclosure, which will raise credibility issues. The Court will need to consider the practitioner's motivation for the non-disclosure, such as whether the non-disclosure was an innocent error of judgement, a deliberate effort to conceal the truth or an attempt to minimise information adverse to the assessment of fitness. The Court will also need to consider, if relevant, the other matters in s 47(2) of the Act, such as whether the person obtained an Australian practising certificate because of incorrect or misleading information.
[72] Contrary to the submissions made by counsel for Heffernan, we consider that the Supreme Court took the proper approach as described above. We reject the submission that, by doing so, the Supreme Court made findings about honesty and candour which amounted to the exercise of a general, unstructured discretion. The reasons for that conclusion are addressed further in the following paragraphs.

[63]

[73] In written submissions, counsel for Heffernan submitted that an assessment of compliance with the duty of candour requires a two-step process in which the first step is to determine whether the undisclosed matter goes to the question of fitness and propriety, and that this involves an assessment of 'proven improper conduct'. That is, it is a 'necessary element to ascertain whether the conduct actually occurred'. In writing at least, counsel for Heffernan appeared to submit that the Supreme Court, and this Court, were required to determine whether or not the Department's allegations and findings, and the CCC's findings, were true and correct.
[74] Reliance was placed on the decision of Re Joy Onyeledo [2015] NTSC 60 ('Re Joy Onyeledo'), in which an applicant for admission to legal practice had disclosed to the Admissions Board that she had been found on two occasions to have engaged in academic dishonesty whilst a student. She initially disclosed that, on one occasion, she had been found by the academic disciplinary board to have made an honest mistake and, on the other occasion, she was awarded a mark of zero for an assignment because she had extensively taken directly from an author's work without using quotation marks and without properly referencing the work. After documents were provided by the academic institution, she disclosed that the first occasion was not a finding by the academic disciplinary board, but a meeting with lecturers which concluded she had made an error. Before the Supreme Court, the applicant argued that she had not engaged in plagiarism. It was not disputed that the first occasion was not plagiarism, but the Law Society argued that the second occasion was. The Court held (at [30]) that there were two issues to be determined: first, whether the applicant intended to pass off the work of others as her own (that being the legal test for plagiarism); and second, whether she made full and frank disclosure to the Board of the circumstances surrounding the finding of academic misconduct made against her. Properly understood, the central issue in the case was not whether the applicant should have disclosed that she had been found to have engaged in academic dishonesty (the suitability matter in s 11(1)(ga)), but whether she had so engaged (a matter falling within the suitability matter in s 11(1)(a)). The other issue in the case was whether the disclosure she had made about being found to have engaged in academic dishonesty complied with her duty of candour. Those two issues then fed into the determination of whether she was a fit and proper person. The decision does not stand for the proposition that, in all cases raising suitability matters, particularly cases involving non-disclosure of a relevant matter, the Court must determine whether improper conduct occurred.
[75] In the present case, Heffernan did not make any disclosure to the Law Society of allegations or findings having been made against her (either in the Department disciplinary process or the CCC processes). Unlike the case of Re Joy Onyeledo, the question here is not whether disclosed adverse findings bearing on fitness were established or true. The question here is whether the making of the Department's or the CCC's allegations or findings meant Heffernan fell within a suitability matter in s 11(1), or constituted circumstances which might reasonably be considered to bring her within one of those suitability matters, or otherwise bore or reflected adversely on an assessment of her fitness to hold a practising certificate, such that they should have been disclosed.
[76] The relevant facts for that determination are not whether the allegations made or found against Heffernan are true and correct. The relevant facts are whether adverse allegations or findings were made which brought Heffernan within a suitability matter in s 11(1) or could reasonably be taken to do so or otherwise bore or reflected adversely on an assessment of her fitness to hold a practising certificate, such that they should have been disclosed.
[77] That explains why, at the hearing below, Heffernan did not press many of hundreds of paragraphs of affidavits and many hundreds of pages of documents going to what she said in response to the Department's allegations and the findings in the draft CCC report. That position was adopted on the understanding that the Law Society did not rely on the truth of those allegations and adverse findings as any basis for a finding that Heffernan was not a fit and proper person to hold a practising certificate. The only issue was whether the allegations or findings should have been disclosed, and whether the failure to disclose them, and her explanations therefor, demonstrated she was not a fit and proper person.
[78] In the Supreme Court, when Heffernan was cross-examined about why she did not disclose the draft CCC report, the primary Judge received the draft CCC report and the final CCC report only for the purpose of assisting the Court to understand Heffernan's cross-examination. There was no suggestion that the primary Judge was receiving those reports for any other purpose, and certainly not for the purpose of accepting or otherwise determining the truth of what they contained.
[79] However, on this appeal, counsel for Heffernan applied pursuant to s 54 of the Supreme Court Act 1979 (NT) for this Court to receive, initially, some 513 pages of further evidence, essentially comprising Heffernan's responses to the allegations the subject of the Department's investigation and the draft CCC report. The purpose of the further evidence was to establish that Heffernan had 'a clear counter case' to the allegations, which should be considered when assessing the Supreme Court's findings about her credibility (specifically, her explanations for not disclosing the findings made in the Department's investigation, or having been summoned to give, and having given, evidence before the CCC).
[80] Counsel for Heffernan also made some criticism that the Supreme Court had quoted the allegations or findings at length in the reasons, and had been influenced by the seriousness of the allegations and findings to make adverse findings against Heffernan's credibility. By consent, this Court determined to consider the application on a 'document by document' basis to the extent that reliance was placed on any particular document in the course of Heffernan's oral submissions. Ultimately, Heffernan's tender was confined to 14 documents (plus attachments) comprising some 276 pages. Those documents were received provisionally pursuant to s 57 of the Evidence (National Uniform Legislation) Act 2011 (NT), with relevance to be determined.
[81] We have determined that the documents are not relevant and will not be received because this Court is also not determining the truth of the allegations or findings in the Department's investigation or the CCC reports, for the reasons set out above. To the extent necessary, when considering Heffernan's evidence explaining her failures to disclose, this Court is prepared to accept that, in her mind, she had a credible counter-case to those allegations and findings. For the reasons already stated, there is no need to assess the strength of that counter-case.
[82] Even allowing for the limited scope of the inquiry on appeal, the nature and seriousness of the allegations and findings against Heffernan are relevant to both whether they should have been disclosed and the assessment of Heffernan's evidence explaining why she did not disclose them. That relevance runs counter to the submission made by Heffernan's counsel, which we reject, that setting out the allegations or findings in the decision below is indicative of the Supreme Court proceeding, to Heffernan's detriment, on the basis that 'where there is smoke, there is fire'.

[65]

[83] The Law Society contends that Heffernan was obliged to disclose the findings made by Addis on 23 April 2018 in the Department's disciplinary process, as they fell within s 11(1) of the Act.
[84] Heffernan contends that these were 'proposed findings' or 'possible findings' and were not 'concluded or formal findings' made against Heffernan by the Department. That submission is rejected. Addis's letter states that he had considered the investigator's report and the response provided by Heffernan, and found that the allegations were substantiated. He set out the substantiated findings. It is clear from his letter that the only question remaining was whether Heffernan's employment should be terminated. There was no expressed intention that his finding that the allegations were substantiated would or could be revisited, or that they were proposed or possible findings. Such a characterisation is inconsistent with his letters of 28 August and 8 November 2017. It is also inconsistent with the disciplinary process in ss 81-82A of the PSMA, which provide that an employer aware that an employee may have committed a breach of discipline may decide to deal with the matter as a disciplinary matter (s 81(1)) and that after dealing with a matter as a disciplinary matter, if the employer finds the employee has committed a breach of discipline, they must decide to take disciplinary action, improvement action or no further action (s 82A(3)).
[85] Addis's letter of 23 April 2018 clearly notified his finding that Heffernan had committed a breach of discipline, and all that remained was the decision to take disciplinary action (and if so, what disciplinary action), improvement action or no further action. Before that decision was to be made, Addis provided Heffernan with an opportunity to be heard about it, not about the finding that the allegations were substantiated. The findings set out in Addis's letter of 23 April 2018 were findings that had been made in the course of a formal disciplinary process. They were not proposed or possible findings.
[86] Counsel for Heffernan contended that when Heffernan applied for an unrestricted practising certificate on 7 August 2018, she was not the subject of 'current disciplinary action' and had not 'been the subject of disciplinary action' within s 11(1)(g) of the Act, because the Department's investigation and Addis's findings that the allegations had been substantiated did not constitute 'disciplinary action'. Essentially, the argument was that the phrase 'disciplinary action' refers only to a sanction or penalty imposed at the end of a finalised disciplinary process in which adverse allegations have been found substantiated. Reliance was placed in that respect on the definition of the term 'disciplinary action' in s 80A of the PSMA. There, the term is defined, in relation to a breach of discipline by an employee, to mean any one or more of a reprimand, the imposition of a fine, transfer, reduction in remuneration, reduction in level of classification or dismissal. In that definition, 'disciplinary action' is the sanction or consequence that may be imposed in response to a finding of a breach of discipline following an investigation.
[87] The definition of the same term in a different Act with a different purpose in a different jurisdiction says virtually nothing about the meaning properly attributed to the term as it appears in the Act. This is particularly so where s 11(1)(g) refers to 'disciplinary action, however expressed'. Those words make it clear that s 11(1)(g) is not concerned with the labels or definitions adopted in the specific context or statute in or under which the 'disciplinary action' is taken. Rather, the term 'disciplinary action' in the Act takes its ordinary meaning. In their ordinary sense, the words 'disciplinary action' are apt to encompass a disciplinary process that begins with formal notification of adverse allegations of a breach of discipline.
[88] Counsel for Heffernan also placed reliance on the definition of the term 'disciplinary action' in s 540 of the Act. The argument was that this definition, albeit in a different context in the Act, was informative because it shows that the term, as used in the Act, means the action taken as a result of an adverse finding, and not the investigation which may lead to a finding.
[89] Section 540 defines 'disciplinary action' as: (a) the making of an order by a court or tribunal for or following a finding of professional misconduct by a legal practitioner under the Act or a corresponding law; or (b) any of a number of listed actions taken under the Act or a corresponding law following a finding of professional misconduct by a legal practitioner. That definition of 'disciplinary action' clearly extends in its terms to include the adverse finding of professional misconduct. So understood, this definition of 'disciplinary action' does not assist Heffernan's argument. Rather, it supports the conclusion that a process in which there was both an investigation and adverse findings made against Heffernan, with the only remaining step being the sanction which was to be imposed, falls within the term 'disciplinary action'.
[90] Counsel for Heffernan also placed reliance on the definition of 'disciplinary action' in the Butterworths Australian Legal Dictionary, which is as follows:

[67]

[91] This definition was adopted by the primary Judge (at [23]) as the ordinary meaning of the term. Counsel for Heffernan argued that this definition does not refer to the employer's investigation, and only refers to the sanction imposed or undertaken as a result of an adverse finding. Two things should be noted in that respect.
[92] First, the examples of disciplinary action given by the definition are not exhaustive. Second, and more importantly, the definition is drawn from the decision of the Federal Court in Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Chenhall [1992] FCA 353; (1992) 37 FCR 75 ('Chenhall'). The question in that case was whether the respondent had suffered an 'injury' which was compensable under the Commonwealth Employees' Rehabilitation and Compensation Act 1988 (Cth). That term was defined to exclude 'any such disease or injury suffered by an employee as a result of reasonable disciplinary action taken against the employee'. Justice Cooper held (at 83-84) that, in that context, 'disciplinary action' referred to action taken against an employee in the nature of or to promote discipline, and it was the disciplinary action itself, and not the steps anterior to the decision to take such action, which was covered by the definition. His Honour held that, therefore, action taken to determine whether or not disciplinary action would be taken against an employee, although it might be characterised as part of a system or process to maintain discipline, was not disciplinary action.
[93] However, Cooper J went on to consider at length (at 86-89) the disciplinary process applicable to the respondent in that case. His Honour held (at 89) that the relevant regime provided for an investigation and report, followed by the making of a decision as to whether to offer a caution or admonition or to charge the member with a breach of discipline, which charge was then heard by a disciplinary tribunal or the Commissioner to determine whether the member was guilty of a disciplinary offence, and if so, the Tribunal or Commissioner could impose prescribed penalties. Consequently, his Honour held, 'disciplinary action' is not lawfully taken against a member of the Australian Federal Police until such time as the Commissioner determines, in accordance with that regime, to take some action against a member in respect of a defined disciplinary offence and takes one of the steps outlined in the regime (such as charging the member with a breach of discipline). It is clear that his Honour rejected (at 85-86) the submission that 'disciplinary action' is confined to the imposition of a sanction. His Honour clearly accepted that 'disciplinary action' in that statute included the steps taken after an investigation, a report and a decision to charge a member with a breach of discipline. The charge, the hearing and determination of that charge, as well as the sanction, were all considered to fall within 'disciplinary action', but the interview of the respondent which occurred before any decision to charge the respondent with breaches of discipline was not within the term 'disciplinary action'.
[94] It follows that Chenhall does not stand for the proposition that the term 'disciplinary action' (in legislation relating to workplace injuries) refers only to the imposition of a sanction. Chenhall stands for the proposition that 'disciplinary action' can include adverse findings that a breach of discipline has occurred by the statutory body tasked with making those findings. That is what occurred in the Department's disciplinary process relating to Heffernan.
[95] Counsel for Heffernan argued further that investigations should not be considered to be 'disciplinary action' because such investigations may not lead to the imposition of any disciplinary sanction, and Heffernan had a clear counter-case to the allegations. Even if the existence of a counter-case were accepted, it is consistent with the Act's purposes of promoting the administration of justice and providing for the protection of consumers of legal services and the public generally (s 3(a) and (b)), that suitability matters to be taken into account in deciding whether to grant or renew, or cancel, a practising certificate include the fact that adverse findings have been made against the applicant in a disciplinary process in another profession or occupation.
[96] It is informative to consider the other suitability matters in s 11(1) when considering the scope of s 11(1)(g). By s 11(1)(c), a suitability matter is whether the person has been convicted of an offence. By s 11(1)(ga), a suitability matter is whether the person has been found to have engaged in academic dishonesty. These suitability matters do not make any reference to the imposition of a sanction or penalty. The academic dishonesty matter focuses on an adverse finding. Even though a criminal conviction is, strictly speaking, a sanction imposed after a finding of guilt, it is also the usual consequence of a finding of guilt for most adult offenders,[28] with some other penalty also usually imposed.
[97] By s 11(1)(h) and (i), a suitability matter is whether the person's right to engage in legal practice has been suspended or cancelled, or their name has been removed from the roll and not restored. By s 11(1)(f), a suitability matter is whether the person is currently subject to an unresolved complaint, investigation, charge or order under the Act or a corresponding law. These provisions disclose that suitability matters extend to both the sanction for legal disciplinary matters (paragraphs (h) and (i)) and current but unresolved allegations or investigations of legal disciplinary matters (paragraph (f)).
[98] The Law Society argued that the same approach is reflected in s 11(1)(g) in relation to disciplinary matters in non-legal professions or occupations, where paragraph (i) is intended to capture 'current' (ie ongoing and incomplete) disciplinary processes, and paragraph (ii) is intended to capture completed disciplinary processes in which the adverse allegations were found to have been established (as captured by the phrase 'that involved a finding of guilt'). Conversely, counsel for Heffernan argued that the word 'current' in s 11(1)(g)(i) refers to a disciplinary sanction which is operative at the relevant time, such as a demotion or a suspension from duty. The submission followed that the distinction between legal disciplinary matters (where both ongoing and incomplete, and completed, matters are a suitability matter) and non-legal disciplinary matters (where only completed matters where a sanction has been imposed are a suitability matter) is intentional because legal disciplinary matters are far more significant for a person seeking to practise as a lawyer.
[99] We do not accept that submission. First, it is inconsistent with the use of the word 'currently' in s 11(1)(f) in relation to an unresolved complaint, investigation, charge or other order in the legal profession context. Second, an allegation in some formal process which is being investigated or is otherwise unresolved in a non-legal professional or occupational context is no less important per se for suitability than an allegation in some formal process which is being investigated or is otherwise unresolved in a legal profession context. Complaints, investigations, charges or orders in a legal professional context may be found unsubstantiated, or may be trivial, or may lead to a very minor sanction. Allegations in a formal process in a non-legal professional or occupational context may be very serious, may involve issues of dishonesty, breach of trust or breach of duty, and may lead to serious sanctions. There is no purposive basis for a legislative approach which would distinguish between the two in the manner contended.
[100] In support of this argument, counsel for Heffernan also pointed to the different language used in s 11(1)(f) and s 11(1)(g) of the Act. An examination of that language is informative. If the words 'disciplinary action' were confined to a sanction imposed at the end of a disciplinary process, the words 'that involved a finding of guilt' in s 11(1)(g)(ii) would be otiose, because a sanction would only be imposed if there was a finding of guilt. The presence of those words is a further indication that the words 'disciplinary action' in s 11(1)(g)(ii) are not limited to the sanction imposed, but refer to a disciplinary process. That understanding of the words 'disciplinary action' then explains the reference to 'current disciplinary action' in s 11(1)(g)(i) and the distinction in paragraphs (i) and (ii) between a current disciplinary process and a concluded disciplinary process. So understood, those paragraphs are consistent with the approach to 'currently' 'unresolved' complaints, investigations, etc in relation to the legal profession, and other professions or occupations.
[101] In our opinion, the proper construction is that 'disciplinary action' in s 11(1)(g) refers to a formal disciplinary process taken in relation to another profession or occupation. Accordingly, the primary Judge's conclusion on this point (at [57]) was correct.
[102] The primary Judge held (at [25]) that the Department's investigation remained open on 7 August 2018, as Heffernan 'now concedes'. That concession was contained in closing written submissions, where it was put as a relevant fact that, on 4 July 2018, Heffernan resigned without responding to the notice of intention to terminate her employment, 'leaving the investigation open'.
[103] In any event, the Supreme Court did not make a finding that the Department's investigation and adverse findings were 'current disciplinary action' within s 11(1)(g)(i) of the Act. The Supreme Court held (at [25]) that the adverse findings made by Addis should have been disclosed by Heffernan because they were matters material to the question of whether she was a fit and proper person, and (at [26]) that the finding that the alleged breaches of discipline were substantiated was, 'for practical purposes', a finding of guilt within the meaning of s 11(1)(g)(ii) of the Act.
[104] Even if the Department's disciplinary process (the 'disciplinary action') relating to Heffernan had ceased sometime after 25 July 2018 (when the Department informed her solicitor that it was ongoing), and was not 'current' on 7 August 2018 because she had resigned with effect from 4 July 2018, such that s 11(1)(g)(i) was not applicable (as the Supreme Court effectively found), it is clear that, as at 7 August 2018, she had been the subject of a disciplinary action 'that involved a finding of guilt' within s 11(1)(g)(ii). That is because on 23 April 2018, Addis had found the allegations against Heffernan substantiated.
[105] The fact that Heffernan disputed that finding and considered herself to have a clear counter-case is irrelevant to the application of s 11(1)(g)(ii). The relevant facts are that the Department had undertaken a disciplinary process in relation to Heffernan's employment in an occupation that did not involve the practise of law comprising an investigation into allegations of possible breaches of discipline (ie, a 'disciplinary action'), and had made findings against her that the allegations were substantiated (ie, the disciplinary action 'involved a finding of guilt').
[106] Similarly, it is irrelevant to the application of s 11(1)(g)(ii) that: (i) Heffernan had resigned before any termination of her employment; (ii) the Department waived the notice period; (iii) she was paid overtime or back pay to which she was entitled before her resignation took effect; and (iv) to the extent such a finding of fact might be made, that Addis had offered her another job (a fact disputed by the Law Society). Heffernan was obliged to have disclosed the relevant facts in her application of 7 August 2018 because they constituted a suitability matter within the meaning of s 11(1)(g)(ii) of the Act, and she failed to do so. Again, the Supreme Court was correct.
[107] We reject the submission by counsel for Heffernan that the Supreme Court adopted an 'inapt analogy' by equating the Department's findings to a criminal finding of guilt. As we have found, the Supreme Court correctly held that the Department's findings fell within s 11(1)(g)(ii) of the Act, which uses the term 'finding of guilt'. The Supreme Court's observation that, 'In crude terms, she had been found guilty and was awaiting sentence at the time she resigned', does no more than convey that at the time she resigned, Heffernan had been the subject of disciplinary action that 'involved a finding of guilt' within s 11(1)(g)(ii) and had not, at the time she tendered her resignation, been punished or sanctioned for that breach. We do not accept that the analogy was 'inapt' given that it reflects the wording of s 11(1)(g)(ii) of the Act, nor that it 'renders the decision unsafe' because it equates 'draft findings of an internal civil investigation' with a criminal finding of guilt.
[108] Before the Supreme Court, Heffernan conceded that she was obliged to disclose to the Law Society the facts that the CCC had prepared its draft report containing adverse findings against her and that the CCC had released its final report containing adverse findings against her. These were submitted to be the only failures to disclose suitability matters which should have been found by the Supreme Court. The concession was maintained in this Court, on the basis that the adverse findings in the CCC's two reports fell within s 11(1)(a) of the Act. In our view, the adverse findings made by Addis that the allegations in the Department's disciplinary process were substantiated equally fell within s 11(1)(a), for similar reasons. Namely, they were findings made in a formal process relating to her employment that seriously impugned her honesty and integrity. The application of s 11(1)(a) to the Department's disciplinary process is addressed further in the following paragraphs.
[109] Counsel for Heffernan argued that the Supreme Court found (at [57]), without giving reasons for that finding, that Heffernan's suspension from duty on full pay pending the investigation into the allegations comprised 'disciplinary action' within s 11(1)(g) of the Act. The Supreme Court made no such finding. The Supreme Court referred (at [57]) to Heffernan's contention that she had no legal obligation to disclose to the Law Society the findings of the Department's investigation or her suspension because neither was a 'current disciplinary action'. The Supreme Court rejected Heffernan's argument that the term 'disciplinary action' refers only to the final stage or act, or the ultimate outcome, and held that the institution of an investigation is 'disciplinary action' and that 'current disciplinary action' refers to an ongoing process which has not been finalised. There was no finding that the suspension was a current disciplinary action. Given that the suspension ended with effect from 22 May 2018 and Heffernan's employment ceased with effect from 4 July 2018, it is unsurprising that there was no finding below that, on 7 August 2018, the suspension was 'current'.
[110] The foregoing conclusions regarding the application of s 11(1)(g)(ii) and s 11(1)(a) to the Department's disciplinary process and findings on 7 August 2018 apply equally to Heffernan's application for renewal of her practising certificate on 4 April 2019. Again, she was obliged to disclose the process and the findings in that application and she did not do so.
[111] Ground 1 of the appeal is not made out.

[72]

[117] From the expressed scope and purpose of the CCC summonses and the findings made in the CCC's draft report and the CCC's final report, the clear inference is that the CCC were investigating, amongst other matters, Heffernan's misconduct in her employment with the Department related to her engagement of Peter Evans and Howard Carr. The only available inference from those findings is that the examination of Heffernan before the CCC was directed, to some degree, to that investigation. The primary Judge correctly drew that inference. As his Honour held (at [39]), support for it was found in Heffernan's evidence that she was questioned at the CCC examination about 'commercialisation matters, including Dr Carr' and 'commercialisation and procurement' in the Department, and that documents were shown to her including some she had signed. Heffernan accepted (in written submissions to this Court) that she was asked questions about the matters Addis had raised in his 'report' (ie his letter of 23 April 2018). That also supports the inference just referred to.
[118] Counsel for Heffernan argued that the draft CCC report contained adverse findings against her 'without any warning or any such allegations being put to her during her attendance as a witness'. Given the only inference reasonably available, this submission is rejected.
[119] Counsel for Heffernan argued further that she was summoned as a witness for an examination under s 137 of the CCMA, which provides that an examination is for the purposes of an investigation. As a consequence, Heffernan was not necessarily being investigated for, let alone charged with, criminal conduct, corrupt conduct or misconduct. It was submitted that the protections to witnesses given by ss 142 to 145 of the CCMA show that the examination process is a fact-finding exercise which may culminate in a report by the CCC. All of that may be accepted, but it ignores the readily available inference referred to above that Heffernan was, as a matter of fact, being investigated by the CCC for serious misconduct in her employment with the Department.
[120] It follows from that inference that the CCC summonses and the CCC examination of Heffernan raised serious issues about Heffernan's honesty and integrity in the context of her employment with the Department. As a result, s 11(1)(a) applied, or could reasonably be taken to apply, to Heffernan, or the CCC summonses and examination could otherwise reasonably be taken to bear or reflect adversely on an assessment of her fitness to hold a practising certificate. Again, it is irrelevant here that Heffernan asserts a clear counter-case because the relevant facts are the CCC's investigation into Heffernan's serious misconduct and the scope and content of that investigation, not the truth of the allegations made against her. Heffernan was obliged to have disclosed the relevant facts in her application of 4 April 2019, and she failed to do so.

[73]

[121] The relevant facts are the findings made against Heffernan in the CCC's draft report and final report. Those findings clearly raised serious issues about Heffernan's honesty and integrity in the context of her employment with the Department. As a result, s 11(1)(a) applied, or could reasonably be taken to apply, to Heffernan, or the proposed or final findings in both reports could otherwise reasonably be taken to bear or reflect adversely on an assessment of her fitness to hold a practising certificate. Again, it is irrelevant here that Heffernan asserts a clear counter-case. That is because the relevant facts are the findings made against Heffernan in the CCC's reports, not the truth or correctness thereof. As part of her ongoing duty of candour Heffernan was obliged to have disclosed the relevant facts to the Law Society, and she failed to do so. In the Court below, as in this Court, she accepts that.
[122] Counsel for Heffernan argued that the Supreme Court relied on the findings in the CCC's reports as proof of improper conduct without 'performing the necessary task of enquiring into the basis of those findings', contrary to s 217A(3) of the CCMA, which provides that a finding or opinion that misconduct has occurred is not, and is not to be taken as, a finding or opinion that a person is guilty of or has committed, a criminal offence or a disciplinary offence.
[123] We reject the submission that the primary Judge relied on the findings in the CCC's reports as proof of improper conduct. There is no express finding in the reasons below that Heffernan committed the things attributed to her by the CCC. His Honour's acknowledgement (at [69]) that a proper consideration of Heffernan's current fitness could not take place without a court or tribunal inquiring into the basis for the adverse findings made against her in the CCC's final report supports the conclusion that no such finding was made. As referred to above, it was necessary to understand and set out in the reasons the nature and content of the findings made by the CCC because that bears on the determination of whether or not they are findings which brought Heffernan, or could reasonably be taken to have brought Heffernan, within s 11(1)(a) of the Act, or otherwise bear or reflect adversely on an assessment of her fitness to hold a practising certificate. That preliminary determination is required in order to determine in turn whether or not the findings should have been disclosed. That is all the Supreme Court did. In particular, the Supreme Court did not, at [38], [40] and [69] of the reasons below, rely on the findings in the CCC's draft or final reports as proof Heffernan had committed the improper conduct there found. Ground 3 is not made out.

[78]

[128] In an affidavit, Heffernan deposed that on 7 August 2018 it did not occur to her that her disclosure obligations included an obligation to disclose anything that arose out of her employment with the Department. She said she was not subject to any ongoing disciplinary sanctions (such as suspension), her resignation and payment of unpaid entitlements concluded all matters relating to her employment, on her resignation it could not be said to mean that the disciplinary action remained current, no disciplinary action was continued against her after her resignation, and if the disciplinary action was not finalised or appealed from, she would forever be considered to be subject to current disciplinary action.
[129] In cross-examination, Heffernan said that when she was completing her application for a practising certificate around 7 August 2018, she read ss 11 and 47 of the Act, she believed that the Department's disciplinary process 'was resolved', she read in s 11 that there had to be a finding of guilt 'which is a criminal court' and it was her understanding that the Department's process 'was finished'. She said, 'I've never been disciplined. I've never been sacked and I understood my face didn't fit and it was finished'. She said she did reflect back on the Departmental matters and decided they did not need to be disclosed. She said she understood that when she resigned on 4 July 2018, that was the end of all matters with the Department. She denied that she did not disclose information about the Department's disciplinary process in her application form because she knew it might bear against her application.
[130] The Supreme Court found (at [25]) that Heffernan's assessment that the suitability ground in s 11(1)(g)(i) of the Act did not apply to her 'may have been reasonable' based on a belief that her resignation, submitted before Addis made good the foreshadowed dismissal, had brought the disciplinary process to an end and Addis had taken no further steps after her resignation was accepted, giving her reason to believe that the disciplinary action was no longer current.
[131] The primary Judge found (at [26]) that Heffernan's belief that the suitability ground in s 11(1)(g)(ii) did not apply to her was 'questionable' because the fact that the breaches were found proven was, for practical purposes, a 'finding of guilt', and Heffernan's belief that the finding of guilt in that context had to be made by a criminal court was 'doubly questionable' because the reference to 'disciplinary action' in another profession or occupation was clearly a reference to proceedings which were civil in nature. His Honour said 'it beggars belief' that an experienced lawyer truly believed that s 11(1)(g)(ii) did not apply to her because she had not been found guilty by a criminal court, and the finding that the allegations were substantiated was not a 'finding of guilt' within the meaning of the paragraph.
[132] The primary Judge rejected (at [60]) Heffernan's alternative submission that, if she was required to disclose the Department's disciplinary action when she applied for a practising certificate and its renewal, her failure to make the relevant disclosures was on the basis of an erroneous but understandable error of judgement. The Supreme Court found that Heffernan's explanations 'were contrived in order to explain the inexplicable', namely that it did not occur to a lawyer of her standing and experience to make full disclosure of adverse matters in relation to her suitability: as to whether she was currently of good fame and character, and as to whether she was a fit and proper person to hold an unrestricted practising certificate.
[133] Counsel for Heffernan criticised these findings on a number of bases, each of which we reject. It was argued that the Supreme Court had concluded that Heffernan made a conscious decision not to disclose the Department's disciplinary action to the Law Society on the basis of a question to her in cross-examination about the part of the application form that refers to 'unresolved complaints or investigations in this or other jurisdictions', which was a question that did not arise in relation to a suitability matter in s 11(1)(g). We reject that submission because the conclusion about Heffernan's conscious decision is entirely consistent with, and was therefore clearly founded on, Heffernan's evidence that she did reflect back on the disciplinary action and decide that it did not need to be disclosed.
[134] Counsel for Heffernan argued that she was 'criticised' for her evidence that she did not think about the disciplinary action beyond that it was not a finding of guilt. The submission was that Heffernan was criticised because the investigation remained open. We reject that submission because there was no 'criticism' of Heffernan related to the investigation being open. The primary Judge simply recorded the fact that the investigation did remain open, a matter Heffernan conceded in the Supreme Court. The Supreme Court found that, in the circumstances of Heffernan's resignation, her belief that the suitability ground in s 11(1)(g)(i) did not apply to her may have been reasonable.
[135] Counsel for Heffernan argued that the Supreme Court erred in finding that Heffernan was 'very aware' that she had been the subject of the Department's investigation and findings because that awareness does not 'translate into a finding that she was very aware that the investigation was a matter that was required to be disclosed'. We reject that submission. The primary Judge did not make any such finding. As already stated, his Honour found that her belief that the suitability ground in s 11(1)(g)(i) did not apply to her may have been reasonable.
[136] Counsel for Heffernan argued that the Supreme Court's criticism of Heffernan's belief that the words 'finding of guilt' in s 11(1)(g)(ii) only applied to a finding made by a criminal court was unsustainable given that the Department's process 'was only at the stage of an investigation with possible findings'. We have already rejected that characterisation of Addis's letter of 23 April 2018.
[137] Counsel for Heffernan argued that the Supreme Court erred in not making any finding that the Department's allegations were substantiated on the balance of probabilities, which was a necessary precursor to a finding that the Department's disciplinary action should have been disclosed. We have already rejected that submission.
[138] Counsel for Heffernan argued that her construction of s 11(1)(g) was either correct or 'more than sensibly arguable'. We have already rejected the argument that s 11(1)(g)(ii) did not apply to Heffernan. We also reject the submission that her view was 'more than sensibly arguable', specifically in relation to s 11(1)(g)(ii), as it is founded on the proposition (which we have rejected) that the Department's findings in Addis's letter of 23 April 2018 were merely 'proposed findings'.
[139] We therefore reject the submission that the primary Judge erred in finding that Heffernan's explanations were contrived in order to explain the inexplicable. None of the asserted errors in the primary Judge's rejection of Heffernan's explanations for her failure to disclose the Department's disciplinary action have been established, and Ground 2 is not made out.

[113]

[143] The primary Judge held (at [30]) that Heffernan's evidence as extracted above 'raises significant concerns' about Heffernan's credit, character and fitness, both in the past and currently. She did not answer the question about her understanding of 'between dates' in the CCC summons, instead 'obstinately replying' that she was summoned as a witness. Her asserted understanding that the summons did not apply to her because she had not started work at the Department in December 2015 was found to be inconsistent not only with her many years of experience in the law but also the fact that she is 'an educated adult of presumably normal or above normal intelligence'.
[144] The primary Judge found (at [31]) that Heffernan's evidence about Addis telling her the CCC had 'no interest' in her was a reference to the email from Addis of 21 September 2017, in which Addis told Heffernan that the CCC considered the matter to fall outside its jurisdiction. The primary Judge found that, while that reason was not 'as fanciful' as the first reason Heffernan gave for her belief that the scope and purpose of the summons did not apply to her, he did not accept that Addis' email of 21 September 2017 was still operating on Heffernan's mind to cause her to believe that her conduct was not of interest to the CCC after the adverse findings which had subsequently been made by Addis. The primary Judge found that Heffernan's evidence to the effect that she did not make any connection between the subject matter of the CCC summons and the subject matter of the Department's disciplinary action was not credible. The primary Judge rejected Heffernan's evidence that, when she received the CCC summons, she thought her conduct was not within the scope of the CCC investigation.
[145] The primary Judge ultimately rejected (at [62]) Heffernan's submission that, on 4 April 2019, she was entitled to believe, on reasonable grounds, that she was not the target of the CCC investigation, and rejected that she had that belief. The Supreme Court described her explanations for her claimed beliefs as 'spurious' and her affidavit evidence about the subject matter of the CCC examination as 'vague'.
[146] Counsel for Heffernan criticised these findings on a number of bases. It was argued that the erroneous credibility findings regarding Heffernan's evidence about the Department's disciplinary action were 'inextricably intertwined' with the primary Judge's assessment of Heffernan's credibility on other matters, making the entire credibility assessment 'fatally flawed'. We have rejected that there were erroneous credibility findings about Heffernan's evidence about the Department's disciplinary action, and so reject this submission as well.
[147] Counsel for Heffernan argued that the Supreme Court's finding at [30] that her evidence in cross-examination raised significant concerns about her credit, character and fitness was 'without explanation'. We reject that submission. The explanation is plainly set out in the remainder of that paragraph of the reasons.
[148] Counsel for Heffernan argued that the findings in the draft CCC report were used as a basis for disbelieving Heffernan's evidence about the CCC summons even though the latter was first in time. We reject that submission. The primary Judge did not refer to the findings in the draft CCC report in making the findings about Heffernan's beliefs about the CCC summons. The findings in the draft CCC report were only used (at [39]) to draw the inference that the CCC examination of Heffernan was directed at her conduct.
[149] Counsel for Heffernan argued that the fact that she did not, during the CCC examination, seek to exercise her right to silence on the ground of self-incrimination was a fact that supported her claim that she did not consider herself to be a target of the CCC investigation. We reject that submission. First, s 160(2) of the CCMA provides that a person required by the CCC to answer a question relevant to an investigation is not excused from the requirement to answer on the ground that the answer might incriminate or tend to incriminate them or render them liable to a penalty. Second, Heffernan's evidence was that she tendered in the CCC a large number of documents that substantiated her answers to questioning. That act supports the inference that she was a target of the CCC's investigation and, at least by the second day of the examination, if not before, she knew it.

[123]

[155] The primary Judge held (at [25]) that Heffernan's negative answers on the application forms to the question whether there was any further information relevant to the question of whether she was a fit and proper person, and the declaration that there was no further relevant information not previously disclosed, were untrue and (at [58]) revealed at best a lack of awareness of professional standards and at worst a deliberate false statement.
[156] Counsel for Heffernan argued that the Supreme Court found that Heffernan's practising certificate had been obtained as a result of incorrect or misleading information. Heffernan's ground of appeal (Ground 4) refers to the reasons below at [62] to [64]. There is no express finding to that effect, either in those paragraphs or elsewhere in the reasons.
[157] Counsel for Heffernan argued that the matter in s 47(2)(a) is not a matter which enlivens the Law Society's power in s 56 to amend, suspend or cancel a practising certificate, because the only applicable ground in this matter which enlivens the power in s 56 is whether Heffernan is no longer a fit and proper person to hold a practising certificate. It was argued that s 47 only applies when the Law Society is considering whether to grant or renew a practising certificate.
[158] We reject that argument. Section 56 of the Act sets out three grounds for amending, suspending or cancelling a practising certificate. The first is that the holder is no longer a fit and proper person to hold the certificate (s 56(a)). Section 47(1) provides that s 47 has effect for s 54 (which deals with the grant or renewal of a practising certificate) or another provision of the Act if the question of whether or not a person is a fit and proper person to hold a practising certificate is relevant. Heffernan's argument completely ignores the italicised words, which clearly capture s 56(a). There is no doubt that s 47(2)(a) is applicable when the Law Society is exercising the power to cancel a practising certificate.
[159] Counsel for Heffernan argued that it is a manifest error to conclude that an applicant is not a fit and proper person to hold a practising certificate and then to say that, because she considered herself fit and proper, her application involved incorrect or misleading information. It was also put that there could be no finding that the information which was not disclosed resulted in the application being incorrect or misleading without first making a positive finding that the allegations concerned were substantiated.
[160] Both of those submissions miss the point entirely. In considering the matter in s 47(2)(a), it is patently clear that, if an applicant for a practising certificate or a renewal of a practising certificate indicates on the application form that there is no further information relevant to the question of whether they are a fit and proper person, and signs the declaration at the end of the form which says that there is no further information relevant to the consideration of this application which has not previously been disclosed to the Law Society, in circumstances where they have failed to comply with their duty of candour and not disclosed a matter required by that duty to be disclosed, it is axiomatic that their practising certificate (once granted) was obtained because of incorrect or misleading information. Such an application is, in the respects just stated, certainly incorrect or misleading. There is no necessity to make a finding that the allegations made against Heffernan were true.
[161] Counsel for Heffernan argued that the finding that Heffernan 'had erred in disclosure in relation' to s 11(1)(g) could not be supported. We have already rejected the submission that s 11(1)(g) did not apply.
[162] Counsel for Heffernan argued that the Supreme Court placed reliance on Heffernan's failure to disclose the CCC final report in concluding the application was incorrect or misleading. No such finding was made.
[163] Ground 4 is not made out.

[125]

[164] Counsel for Heffernan argued that the Supreme Court failed to consider any other sanction less than the cancellation of her unrestricted practising certificate. In this regard, the determination to be made by the Supreme Court was whether, at the time the Law Society cancelled Heffernan's practising certificate, she was no longer a fit and proper person to hold it. If so satisfied, the Supreme Court was required to determine whether to confirm the Law Society's cancellation of the certificate or make other orders. The other options available to the Court were to suspend the certificate for a period or amend the certificate to add conditions.
[165] The primary Judge referred (at [67]) to the wide power of the Supreme Court under s 89(5) of the Act to make any order it considers appropriate on the appeal. As set out above, that power draws in the Law Society's dispositive powers under s 57(2)(c). The primary Judge held (at [70]) that from 7 August 2018 to 31 October 2019, Heffernan was not a fit and proper person to hold an unrestricted practising certificate. The primary Judge held (at [66]) that the Law Society's cancellation of Heffernan's practising certificate was 'fully justified' both at the time and viewed in retrospect, and that Heffernan had failed to persuade the Court that the proven non-disclosures should not have resulted in the cancellation of her practising certificate. In other words, given the finding that Heffernan was not a fit and proper person to hold a practising certificate at the time the Law Society cancelled hers, there was no need to consider the other options available to the Supreme Court under ss 89(5) and 57(2)(c) of the Act. That is because the only appropriate outcome on the basis of the findings made by the Supreme Court was that Heffernan's practising certificate should have been cancelled as she was not a fit and proper person to hold it.
[166] There was no 'failure' to consider other possible orders. The Court was clearly cognisant of the other possible dispositions available to it. Even if there was a failure to expressly address suspension or imposition of conditions, the 'failure' was, in the circumstances, no more than a failure to mention and then dismiss them given the finding that Heffernan was not a fit and proper person to hold a practising certificate. No error has been shown. Ground 5 is not made out.
[167] Counsel for Heffernan also put various arguments about the Supreme Court's refusal to make a declaration that she was, at the time of the hearing, a fit and proper person to hold a practising certificate, asserting a number of errors said to fall within Ground 5. We do not accept that those asserted errors fall within Ground 5, which related to the asserted failure of the Supreme Court to consider suspension or imposition of conditions on Heffernan's practising certificate. Further, the relief sought by Heffernan on the appeal to the Supreme Court was a declaration that she was a fit and proper person to hold an unrestricted practising certificate for the 2019/2020 year. No declaration was sought that Heffernan was a fit and proper person at the time of the hearing of the appeal.
[168] In any event, the primary Judge held (at [68]) that, in the circumstances of this case, where Heffernan's 2019/2020 practising certificate would have long expired before the appeal was heard, she had not sought to have the appeal listed before its expiry or to stay the cancellation of the practising certificate, and had not applied for a practising certificate for the years after 30 June 2020, it was not appropriate to consider whether Heffernan was a fit and proper person at the time of the hearing of the appeal. We agree. The Court would not have all of the necessary information before it to make that determination, including what had happened in relation to Heffernan, if anything, since the publication of the CCC final report, and the information required to be provided to the Law Society by an applicant for a practising certificate. Moreover, as the primary Judge held (at [69]), the determination of whether Heffernan was a fit and proper person to hold a practising certificate would require determination of the truth of the adverse findings made against Heffernan in the CCC's final report because findings by the CCC that serious misconduct has occurred is not, and is not to be taken as, a finding or opinion that a person is guilty of or has committed a criminal offence or a disciplinary offence (s 217A(3) of the CCMA). Whether or not that provision would preclude a decision by the Law Society that Heffernan had committed serious misconduct of that nature when determining whether to grant her another practising certificate is not a matter which falls within the ambit of this appeal.
[169] Counsel for Heffernan argued that the Supreme Court's approach was incorrect because the correct test is to consider fitness and propriety at the time of the hearing of the appeal, citing New South Wales Bar Association v Murphy [2002] NSWCA 138; (2002) 55 NSWLR 23 at [171]. That case was an appeal to the Court of Appeal from a decision of the Supreme Court allowing an appeal from a decision of a law council to cancel the respondent's practising certificate because he committed an act of bankruptcy in circumstances which showed he was not a fit and proper person to hold a practising certificate. The Supreme Court ordered that a practising certificate be issued for the period up to the end of the year the cancelled certificate would have run (which was shortly after the decision was handed down). The appeal to the Court of Appeal was dismissed. Counsel for Heffernan relied on the following passage from the reasons of Giles JA (Ipp AJA agreeing) (at [171]):

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