Kennedy v Legal Profession Admission Board of NSW

Supreme Court of NSW|2012-02-10|Before: Garling J

Judgment 1At its meeting on 23 November 2010, the Legal Profession Admission Board ("the Board"), which is the first defendant in these proceedings, resolved to refuse the application for readmission as a lawyer made by Rodney James Kennedy, the plaintiff in these proceedings. 2It did so by refusing to give a compliance certificate to Mr Kennedy in accordance with s 36(1) of the Legal Profession Act 2004 ("the Act"). 3Mr Kennedy has pursuant to s 28(1) of the Act appealed to this Court against the refusal of the Board to give him a compliance certificate. 4An appeal to this Court under s 28 of the Act is to be by way of rehearing, and fresh evidence or evidence in addition to or in substitution for the evidence which has been placed before the Board, may be given on appeal. 5The Law Society of NSW ("the Society"), the second defendant, notified the Board that it opposed Mr Kennedy's application for readmission, and, it has been joined to these proceedings. It maintains in these proceedings its opposition to Mr Kennedy's application for readmission. 6In accordance with the Act, this Court may make any order or declaration that it thinks fit and the decision of this Court is taken to be a decision of the Board: s 28(5) and s 28(6) of the Act. 7Although the role of the Board in considering applications for admission is a statutory one, in particular s 25 of the Act provides for the Board's consideration of suitability for admission, the power of this Court to hear an appeal from the refusal of the Board to give a compliance certificate is one granted by statute, to which I have referred above, the principles to be applied are those gathered by the common law over many years.

Chronology of Significant Factual Events 8Mr Kennedy was born at the start of 1950. He was educated to intermediate certificate level and, in late 1965, commenced as a cadet in the NSW Police Force. 9He remained in the Police Force until ceasing work as a police officer in September 1997 and officially retired on 3 December 1999. Prior to his official retirement, he commenced full time study for a Bachelor of Laws degree at the University of New England, at Armidale. 10Mr Kennedy graduated with a Bachelor of Laws in March 2002. During his time as a student, he had undertaken part time work as a cook at a hotel and restaurant in Armidale, and had undertaken unpaid work experience as a law clerk. 11Having completed his Graduate Diploma in Legal Studies on a full time basis at the College of Law at St Leonards, on 12 July 2002 Mr Kennedy was admitted as a legal practitioner of this Court. 12He commenced work as a solicitor in the Armidale firm of A W Simpson & Co, with which he had done some work as a law clerk prior to graduation. At that firm, he practised predominantly in litigation matters mainly in the local courts throughout northwest NSW. 13On 22 May 2004 he was elected as President of the North and North West Law Society. Mr Damien Ryall, a solicitor of Armidale, was elected as secretary/treasurer. 14In that position, he was entrusted with the control, jointly with Mr Ryall, of monies in a credit union account. He and Mr Ryall were provided with ATM cards which enabled either of them to withdraw money electronically from automatic teller machines. 15Mr Kennedy was only entitled to access those monies for the purpose of the affairs of the North and North West Law Society. 16In the period from 22-27 July 2004, by using his ATM card, Mr Kennedy withdrew a total of $2,000 from the North and North West Law Society account, and used it for his own purposes. 17Mr Ryall discovered this misappropriation on 30 July 2004. He discussed the matter with Mr Kennedy and indicated to him that he had reported the matter to the Society. 18On 4 August 2004, Mr Kennedy repaid the sum of $2,000 from his own funds to the North and North West Law Society. He resigned as President of the North and North West Law Society and took no further part in its business. 19The Society appointed investigators who spoke to Mr Kennedy in late 2004, and it concluded that proceedings should be commenced in the Administrative Decisions Tribunal ("the Tribunal") alleging that Mr Kennedy was guilty of professional misconduct. 20On 15 August 2005, the Society filed an Information in the Tribunal alleging that Mr Kennedy was guilty of professional misconduct on the grounds that he had misappropriated funds of the North and North West Law Society. 21In a decision delivered on 3 May 2006, the detail of which it will be necessary to consider in due course, the Tribunal made orders that Mr Kennedy's name be removed from the Roll of Legal Practitioners in NSW. 22In 2007, Mr Selwyn Eric Hegney, known as Sam Hegney, a solicitor with his principal office at Armidale and other offices through the northwest of NSW, applied to the Society for permission to employ Mr Kennedy as a clerk. 23On 13 April 2007, the Society declined to provide its permission and Mr Hegney commenced proceedings in the Tribunal by way of an application for review of a decision pursuant to s 17 of the Act. 24After hearings in December 2007 and April 2008, the Tribunal delivered a decision on 23 May 2008 in which it approved of Mr Kennedy's employment as a clerk in Mr Hegney's practice. A significant number of conditions were attached to that approval. 25After this decision of the Tribunal, Mr Kennedy commenced employment with Mr Hegney as a clerk and has continued in that employment since that time. 26One of the conditions imposed by the Tribunal upon Mr Hegney was that he was to report on a quarterly basis, in writing, to the Society on "... Mr Kennedy's standard of work, behaviour and application to his duties ". Mr Hegney has complied with this condition and those reports are before the Court. 27On 8 May 2010, Mr Kennedy applied to the Board for readmission as a lawyer. The Society opposed Mr Kennedy's readmission, as did the NSW Bar Association. 28As indicated earlier, on 23 November 2010, the Board refused to give a compliance certificate to Mr Kennedy. It notified that refusal to him by letter of 2 December 2010, which included the following reasons: "Having considered your application for re-admission, the Board resolved: to refuse to issue a compliance certificate for the following reasons: The context of your misconduct (aggravated by your subsequent dishonesty), the limited period during which you have worked as a legal clerk since being conditionally permitted to do so and the opposition of the professional bodies to your re-admission, are destructive of the present satisfaction of the Board that you are a fit and proper person for admission a legal practitioner. to advise you that you may appeal to the Supreme Court against the Board's decision within 28 days of the date of this letter." 29As this chronology demonstrates, in order to consider this appeal, and Mr Kennedy's application for readmission, it is necessary to understand in a little more detail the events of the original misappropriation, Mr Kennedy's conduct towards the Society in the course of its investigation and his conduct before the Tribunal leading up to its decision to remove him from its Roll. 30It is then necessary to consider Mr Kennedy's conduct leading up to the later Tribunal decision on the application of Mr Sam Hegney, and lastly to consider his conduct since that time.

Law Society of NSW v Kennedy [2006] NSWADT 132 31This decision of the Tribunal on 3 May 2006 is a convenient source of the facts and circumstances leading up to that hearing, what occurred during that hearing and the Tribunal's decision including its reasons. 32As I have earlier noted, the information filed by the Society in the Tribunal alleged that Mr Kennedy was guilty of professional misconduct on the grounds that he had misappropriated funds from the North and North West Law Society. 33In his reply filed on 30 September 2005, Mr Kennedy stated he was: "Not guilty, but concede my conduct has been unsatisfactory professional conduct." 34Mr Kennedy admitted to making five withdrawals of money from automatic teller machines. The details of those withdrawals are: (a) 22 July 2004 10.40pm $300 81-87 Byron St, Inverell (b) 23 July 2004 3.21pm $700 204 Beardy St, Armidale (c) 25 July 2004 5.41pm $400 Armidale Ex-Services Club (d) 25 July 2004 7.27pm $400 Armidale Ex-Services Club (e) 27 July 2004 8.55pm $200 Civic Hotel, Sydney

35The statement of the relevant North and North West Law Society account recorded two further attempts to withdraw funds on 29 July 2004 which were unsuccessful due to insufficient funds. Mr Kennedy denied making these attempts. 36When questioned by the Society's investigators, Mr Kennedy said that the withdrawals had been made in order to pay a company called Boise for stationery that had been ordered for the purposes of the North and North West Law Society and for petty cash, postage and handling. He told the investigators that he had intended to pay an account owing to Boise from the "working account" of Simpsons (his employer), and then to reimburse Simpsons from the cash that he had withdrawn. 37In a statutory declaration dated 2 June 2005, Mr Kennedy gave a further version to the Law Society of the reason for the withdrawal of the money, maintaining that it had been withdrawn to pay to Boise, but the further version differed in some of the detail that had been earlier provided. 38In an affidavit filed in the proceedings before the Tribunal, Mr Kennedy made no mention of any dealings with Boise. By way of an explanation of the withdrawals, he simply said: "It was not my intention to misappropriate the money or to utilise same for my own purposes. $250.00 of it was used to reimburse A W Simpson & Co for the petty cash float". 39He was cross-examined during the Tribunal proceedings by the solicitor appearing for the Society. On several occasions during the cross-examination it was put to him that he had withdrawn the funds entirely for his own purposes. He categorically denied each of their suggestions. 40The Tribunal rejected the solicitor's various explanations in his evidence. At [49] it made this finding: "The finding of cardinal importance that we make is that the Solicitor effected the five withdrawals of cash between 22 and 27 July 2004 from the Society's account at the Credit Union in order to use the money withdrawn, at least in the short term, for his own purposes. He did not intend to use the money wholly for the purposes of the Society, in accordance with his obligations as President of the Society". 41Having disbelieved the solicitor's explanation, the Tribunal went on to make a finding that at least two statements made by him in giving sworn evidence to the Tribunal were false to his knowledge. 42The Tribunal concluded that it was satisfied that the misappropriation of the funds by Mr Kennedy constituted professional misconduct. 43It went on to consider what order ought be made. 44The Tribunal expressed its decision, which was a majority one, as to what order should be made in these terms in [112]: "In the opinion of the majority of this Panel ... the Solicitor's 'infringement of the fundamental standards of his profession'... coupled with his refusal or failure, both before and during the Tribunal hearing, to admit to his serious breaches of well-established fiduciary duties, lead to the conclusion that he 'must be regarded at the present time as permanently unfit to practise' (to quote the test formulated by Spigelman CJ in NSW Bar Association v Cummins [2001] NSWCA 284 at [26]). It follows that the Tribunal's order in these proceedings must be that his name be removed from the Roll of legal practitioners ..." 45The third member of the Panel would have ordered that Mr Kennedy be suspended from practice for a period of two years, together with further conditions.

The period between the Tribunal's decisions 46Although the direct evidence of what Mr Kennedy did after the first decision of the Tribunal, and before the application was made by Mr Hegney is almost non-existent, the Tribunal's second decision, on the application of Mr Sam Hegney to employ Mr Kennedy as a clerk, contained some outline of what Mr Kennedy did after the Tribunal's initial decision. He apparently did some travelling with his wife and was unemployed for a period and in receipt of Social Security benefits. He then secured work, firstly at a roadhouse on night duty as a counter operator/cook and in due course, became a cook at a new child daycare and preschool centre in Armidale. He had previously undertaken some trade qualifications at TAFE as a cook. 47He told the second Tribunal hearing, in an affidavit, that since the first decision, he had successfully taken steps to improve his health and mental outlook on life, had settled his financial problems, had ceased drinking alcohol as a method of settling his problems and was no longer under any stress or pressure.

Hegney v Law Society of NSW [2008] NSWADT 150 48This decision of the Tribunal was made in response to an application by Mr Sam Hegney to employ Mr Kennedy as a clerk. 49The hearing of the application occurred on two quite separate days. The first of these was 10 December 2007, and the second on 14 April 2008. There is some significance in the fact of these two dates and the separation in time between them. 50It would appear that when the matter first came on for hearing there was little evidence led from the applicant Mr Hegney or from Mr Kennedy, which addressed any of the matters necessary, as a matter of principle, for the Tribunal to consider when dealing with an application for employment as a clerk. 51At the first hearing the Tribunal apparently indicated that absent evidence regarded as necessary by the relevant authorities, the application would more than likely fail. Hence, an adjournment was granted to enable Mr Hegney (and Mr Kennedy) to file additional material. 52In his initial affidavit, Mr Kennedy said that he accepted the decision of the Tribunal (referring to the first decision) and submitted he would never place himself in a like position again. 53His second affidavit contained these statements: "Almost four years have now passed since that most disgraceful time in my life which eventuated in my being struck off as a Solicitor within New South Wales. Sorry, I am as sorry as hell about the events that caused me to be placed before the Tribunal. The unprofessional manner in which I mishandled monies that were entrusted to me in my role as President of the North and North West Regional Law Society in 2004 was nothing short of stupidity. My handling of the funds was totally unprofessional and I say this with the wisdom of hindsight. Not only did I lose my employment in the practice of law which meant everything to me, but I levelled great discredit upon myself and more particularly, my family." 54At [58] of its decision, the Tribunal, contrary to the submissions of the Society, concluded that the material to which I have just made reference: "... demonstrate[d] contrition and understanding of the gravity and unprofessional conduct that he engaged in [in] 2004". 55It went on to say: "It may well be that the statements made do not have the finesse of finely crafted drafting but we accept, unreservedly, that Mr Kennedy has made it plain, in his fashion, that he totally and absolutely regrets his conduct, recognises the gravity of it, recognises that it was professional misconduct and that it will not happen again." 56The members of the Tribunal made it plain that they accepted Mr Kennedy as a forthright witness who was honest and whom the Tribunal found had clearly suffered considerably. It was influenced in part by his demeanour whilst giving evidence. It said this at [60]: "He made it plain that he had no difficulties in accepting the findings of the 2006 Tribunal - any difficulties were with himself. He accepted that he took moneys that he was not entitled to take and he accepted honestly (in our opinion) that in giving that oral evidence on 14 April 2008 was the first time he had admitted this to the Law Society and to the Tribunal. He accepted uncategorically his breach of trust and his breach of fundamental obligations as a practitioner. He accepted that the 2006 Tribunal was correct in its findings, including its conclusion that he had attempted to mislead it." 57The Tribunal expressed this view about Mr Kennedy at [63]: "In our view Mr Kennedy showed contrition. He was a forthright witness, honest and has clearly suffered considerably". As I read the Tribunal's judgment, its description of Mr Kennedy as forthright and honest involved the conclusion that it accepted that his contrition was genuine, and that the words he used were not merely hollow ones. 58It concluded of Mr Kennedy at [73] this: "In our view, taking into account all of the evidence and having regard to the appropriate conditions that should be imposed, Mr Kennedy is a person about whom we are comfortably satisfied can be employed as a clerk in the offices of the Applicant. We have formed the clear opinion that such employment would not pose a risk to the public nor a risk to the profession ..." 59Ultimately, the Tribunal made orders which permitted the employment of Mr Kennedy by Mr Hegney as a clerk. It imposed quite stringent conditions on that employment. It is unnecessary to set out the terms of those conditions here, because it is accepted by the Law Society that it does not suggest any breach of them.

Events since Mr Kennedy was permitted to work as a clerk 60There was a significant amount of evidence before the Court as to what Mr Kennedy had been doing since he had been permitted to work as a clerk for Mr Hegney. 61Mr Kennedy told the Court that he had worked on a daily basis as a clerk predominantly for legally aided clients in the areas of criminal law, care and protection law, family law and with those who were victims of crime. He described his work in this way in his affidavit, affirmed 11 May 2011: "I assist Mr Hegney's employed Solicitors wherever I can. I assist briefed Counsel. I assist and give of my knowledge in areas where I have expertise with fellow Solicitor's in the areas where we practice. I have been actively involved where I can whilst working for Mr Hegney assisting with clients who are disadvantaged and who have great difficulty relating to their legal representatives or who just cannot obtain legal help because of their circumstances. ... I have, with the permission of the Presiding Magistrate, on occasions mentioned matters before the Court. I interview witnesses, victims and accused persons on behalf of Mr Hegney. I research matters and cases on behalf of our employed Solicitor's and briefed Counsel. I prepare a vast amount of correspondence on behalf of Mr Hegney at his direction and under his supervision or that of his employed Solicitor's." 62It is also apparent that Mr Kennedy has been undertaking Continuing Legal Education. 63A contemporaneous source of Mr Kennedy's activities is to be found in Mr Hegney's quarterly reports to the Society. 64The first of these is dated 5 September 2008. The first two paragraphs of that report are in the following terms: "I can report without hesitation the standard of the work performed by Mr Kennedy since commencing his employment with myself is of the highest quality. He is engaged primarily in the areas of taking instructions from legally aided clients in Criminal and DOC's Care related matters. He is also involved in taking instructions and assisting Victims of Crime applicants. He assists in preparing letters and other communications on my behalf in draft form. He performs data entry onto the Legal Aid system in draft form. He assists my other employed Solicitors in areas which he has expertise. He is also invaluable as an investigator of facts in relation to matters where the police have been less than thorough, particularly in the location and interview of witnesses. He speaks to Legal Aid Commission Officers on my behalf in relation to the specific requirements of client files, particularly in District Court seriously indictable matters. He has appeared by leave of the local Magistrate in several mentions before the local Court and in District Court has participated in the Chief Judge's telephone call-overs." 65In the December 2008 report, Mr Hegney reported on Mr Kennedy's work, in particular two matters that ended successfully for clients of the firm. In one matter in particular, Mr Hegney noted that counsel who had been instructed " expressed their high regard of the work done by Mr Kennedy which will greatly assist the defence cases ". 66Mr Hegney reported that Mr Kennedy's standard of behaviour with both the public and practitioners had been of the highest order and could not be faulted. 67In March 2009, Mr Hegney reported that, consistent with past reports, Mr Kennedy's work had continued to be of an excellent and unfailing quality. 68In July 2009, Mr Kennedy included this statement in his report: "The high standard of the work of Mr Kennedy as reported previously continues unabated. His diligence and capabilities working with the disadvantaged members of the communities with which our firm has contact have proven to be invaluable. As you are aware our firm operates throughout North Western New South Wales working amongst some of the most disadvantaged and socially challenged individuals to come in contact with the judicial system within our State. Mr Kennedy's empathy with these persons enables him to extract from them information of key importance to their cases which he in turn passes on to our employed solicitors and instructed counsel so as to be of maximum benefit." 69Mr Hegney reported that Mr Kennedy had been actively involved in a large number of matters, mainly of the criminal kind, and also civil actions arising from poor behaviour on behalf of the NSW police. The report included this: "His outstanding work on a file involving the false imprisonment of an Armidale man has resulted in a very good outcome to our client by way of compensation from the State Crown Solicitor's Office with several other matters of a similar nature in train." 70In this report Mr Hegney recorded that Mr Kennedy had attended three days of Continuing Legal Education. 71On 22 December 2009, Mr Hegney noted the ongoing standard of Mr Kennedy's work, and in particular his work on two matters with counsel that had resulted in successful outcomes. He noted this, which I regard as of importance: "Mr Kennedy has been mindful and diligent in his attention and adherence to the conditions imposed by the Tribunal and his dealings with clients have been exemplary." 72On 24 April 2010, Mr Hegney recorded the involvement of Mr Kennedy in a particularly complex criminal matter involving an indictment for murder before the ACT Supreme Court, which ended in an acquittal for Mr Hegney's client. The case was said to be particularly complex and had apparently been both to the Court of Appeal of the ACT Supreme Court and to the High Court of Australia. Mr Hegney also reported that Mr Kennedy's work, whilst continuing in the area of criminal proceedings and care proceedings, had also involved a range of civil claims against the State of NSW and its responsibility for actions of members of the NSW Police Force. Mr Hegney recorded that Mr Kennedy had attended three more days of Continuing Legal Education. 73The reports of 27 August 2010, 22 November 2010 and 19 February 2011 contain comments and remarks which are similar to those to which I have just made reference. 74Of particular note in the final report of 19 February 2011, is the recording by Mr Hegney of a criminal matter involving an Aboriginal woman charged with serious drug supply offences. Mr Hegney noted: "She came to our firm on recommendation of family who had dealt with Mr Kennedy in the past and are aware of his abilities and genuineness to assist. The same can be said for another client at Glen Innes facing very serious allegations of Grievous Bodily Harm. He likewise came to our firm through recommendation of persons with past dealings and interaction with Mr Kennedy." 75In this report Mr Hegney recorded, as he had done from time to time in past reports, that Mr Kennedy also provided assistance to other members of the legal profession where he could. 76From these contemporaneous reports I draw the following conclusions: (a)Mr Kennedy had been diligent in and about the conduct of his work; (b)His work, which was principally in the criminal law area, but included other areas of law, had included matters across the spectrum of difficulty, both in dealing with clients and in dealing with complex factual matters; (c)Mr Kennedy's work had been of a high quality; (d)Mr Kennedy through his work and interaction with various members of the legal profession, both within Mr Hegney's firm and external to it, had been well received and was well regarded by other members of the profession; and (e)Mr Kennedy had complied with the conditions placed upon his employment by the Administrative Decisions Tribunal. 77In his evidence to this Court, Mr Hegney confirmed these impressions and findings. In addition he said the following in his affidavit, sworn 12 May 2011: "He has discussed openly with me the details of the taking of the money from the North and North West Regional Law Society. He has now openly admitted how stupid and wrong his actions and previous position were and how untenable his evidence to the 2006 Tribunal was. He has admitted to me that he could not initially come to grips with admitting that he wrongly took the monies and he now has a clear view of just how much damage his dishonesty has caused him and his profession. I have spent hundreds of hours in the sole company of the applicant since my employment of him in 2008 up until now. I believe him to be honest, compassionate, altruistic, dedicated and good in his true nature. I do not believe that, after the many hours, miles and work stressors through which we have accompanied each other that he could hide his true nature from me. I believe he is very determined that he will never again bring himself or the profession into disrepute." 78I accept that this is Mr Hegney's genuine and considered opinion of the applicant, and I accept that he is in a very good position having closely observed Mr Kennedy over time, to reach the conclusions that he has expressed. 79In addition to Mr Hegney's evidence, there were a number of other supportive affidavits from various members of the legal profession. Only one of these deponents was required for cross-examination. That was Ms Evers, a barrister-at-law. She gave evidence, which I accept, that Mr Kennedy's quality of work was of a very high standard, and his empathy and relationship with clients and his professionalism were all exceptional. She also gave evidence, which I accept, that to her observation, which included seeing Mr Kennedy on social occasions, he had considerably reduced his alcohol intake. She recorded the fact that on many social occasions Mr Kennedy did not drink alcohol at all. 80Ms Kluss, a barrister, records in her affidavit that she had been instructed by Mr Kennedy on a number of occasions, primarily in the area of criminal law in the Local and District Courts. She records this opinion, which was not challenged in cross-examination: "In the work he has performed in the preparation of briefs and the undertaking of administrative work and research for Mr Hegney, he has worked tirelessly and often outside of regular working hours. I have seen the same level of quality and professionalism in the work he has performed as a I experienced when he was a solicitor." She further recorded: "Mr Kennedy is highly regarded in the community in Armidale; it is difficult to walk down the street with him without being stopped to speak to various members of the public; particularly the old and the young. He has a particularly good understanding and empathy of the issues pertaining to cultural diversity, social and economic disadvantage in country areas. ... In my opinion, he displays a competence and a commitment to his work that is rare and born of a desire not for financial recompense or acclimation but rather the firm belief that appearing for the disadvantaged and disenfranchised can make a difference." 81In addition, there are affidavits from six other practitioners practising in the northwestern area of NSW, who have encountered Mr Kennedy in the course of their practice. They all support his application for readmission. 82From these expressions of support, I infer that none of these practitioners would feel any discomfort whatsoever in engaging in any aspect of legal practice with (or against) Mr Kennedy and accepting him as a fellow member of the legal profession.

Alcohol 83The evidence discloses that at the time when Mr Kennedy misappropriated the funds of the North and North West Law Society, he was drinking alcohol to excess. In his evidence, Mr Kennedy told the Court that in 2004, together with one other individual, he would regularly consume between 3.5 and 5 bottles of wine in an evening, and do so on a number of days of the week. 84In November 2005, Mr Kennedy was assessed by Dr Christopher Lennings, a clinical psychologist, who reported with respect to his alcohol consumption: "he does report a considerable history of alcohol use, beginning to drink alcohol at the age of 16. He tells me from that time on his use was both regular and heavy and has more or less been sustained across his lifespan. ... His current use of alcohol is assessed using the Alcohol Use Disorders Identification Test (AUDIT)... A score of between 8 and 10 indicates the emergence of problems with alcohol and a score in excess of 19 suggests alcohol dependence. Mr Kennedy's score on the AUDIT of 25 indicates quite severe and probably dependent alcohol use. Currently Mr Kennedy drinks the equivalent of about two bottles of wine a day. He tells me that he thinks his alcohol use is in some ways fuelled by the stress of the current matter, by general work stress factors, and also by problems within his relationship although it seems to me that the alcohol probably contributes to these problems as well as being a product of them." 85He was seen again by Dr Lennings on 20 May 2011. Dr Lennings reported on 30 May 2011 in the following terms: "Mr Kennedy says he is continuing to drink but says it 'was down' from his previous consumption. He reports a period of abstinence lasting four months from January to April 2011, and then when he does drink only drinks a couple of glasses of wine. He says he has not been going to the pub, other than for special dinners such as the recent Judge's Dinner. That was the first time in a pub in a couple of years. He tells me that he drinks up to half a bottle of wine when he does drink (the equivalent of 3 to 4 standard drinks). However, sometimes he will drink up to a bottle of wine. But I have reiterated to him the need to maintain consumption of no more than 3 to 4 standard drinks and at least some days alcohol free." 86The observation of Mr Kennedy's consumption of alcohol recorded by both Ms Evers and Ms Kluss in their affidavits corroborated this history of drinking given to Mr Lennings also, and importantly, included observations that on some social occasions, Mr Kennedy did not drink at all. 87It does not appear from the evidence that Mr Kennedy has engaged in any counselling or treatment for what was clearly significant alcohol abuse, which was in part causative of his earlier problems. 88Although the evidence satisfies me that Mr Kennedy has considerably reduced his alcohol intake, it remains a matter of some concern that he has not undertaken any formal treatment or counselling with respect to his alcohol intake. Notwithstanding this concern, the evidence that I have accepted does not prove that Mr Kennedy's alcohol intake is presently having any adverse effect on his work performance.

Legal Principles to be applied 89An applicant for readmission must show that he is again a fit and proper person to engage in practice: Incorporated Law Institute of NSW v Meagher [1909] HCA 87; 9 CLR 655 per Griffith CJ at 665; Ex parte Lenehan [1948] HCA 45; 77 CLR 403 at 422 per Latham CJ, Dickson and Williams JJ; Kotowicz v Law Society of NSW (Court of Appeal, 7 August 1987, unreported) per Kirby P at [20], Samuels JA at [3] and Mahoney JA at [1]. 90The burden which rests upon an applicant: (a)is a heavy one: Evatt v NSW Bar Association (Court of Appeal, 15 December 1981, unreported) per Street CJ at 7; and (b)which requires the displacement of the original removal decision that the applicant is " probably permanently " unfit to be on the Role of Lawyers: Ex parte Lenehan at 422; In re Dennis (Court of Appeal, 23 December 1988, unreported) per Samuels JA at 1. 91In reaching its decision, the Court is exercising a protective role, the primary purpose of which is the protection of the public interest, which includes the protection of the interests of the profession. No element of punishment is involved: Clyne v NSW Bar Association [1960] HCA 40; 104 CLR 186 at 201-202; NSW Bar Association v Evatt [1968] HCA 20; 117 CLR 177 at 183; Kotowicz per Kirby P at 19. 92The ultimate issue for decision by the Court is for it to determine, by making an assessment of an applicant's character, uprightness, honour and trustworthiness, whether the applicant is now a fit and proper person to rejoin other members of the legal profession in the responsible activities of the law, and that the applicant will act as a solicitor should in the future: Meagher at 664 and 692; Kotowicz per Kirby P at 20; Dennis per Samuels JA at 1-2; Dawson v Law Society of NSW (Court of Appeal, 21 December 1989, unreported) per Mahoney JA at 5-6; Re S (a Solicitor) [1985] VR 343 at 347. 93In undertaking this assessment and determination, there is no simple formula which can be applied by reference to the seriousness of the offences and the passage of time. Nor is there any sure path to restoration to the Roll by engaging in particular activities, whether of employment or of service to the community: Dawson per Kirby P at p12. 94In coming to a decision, I will need to apply these principles to the facts that I have earlier found.

Should Mr Kennedy be readmitted? 95The Society continues to oppose Mr Kennedy's application for readmission. 96The Society submitted that Mr Kennedy had not discharged the high onus which rested upon him because: (a)he has not displayed, and did not in his evidence display, an adequate degree of contrition for what occurred and as well, showed no real understanding of the seriousness of the entirety of his misconduct between 2004 and 2008; (b)the Court could not be satisfied that he could be relied upon to act honestly in the future; and (c)his evidence to the Court: (i)supported the conclusions in (a) and (b) above; and (ii)was not frank in a particular respect.

Contrition 97Contrition is relevant to consider in cases such as the present, because at its base is a recognition by an applicant for readmission of the wrongfulness of the earlier conduct which led to the striking off order, and an outward expression of renunciation of that conduct. In exploring this concept a distinction must be drawn between the person's expression of contrition because of the position in which they now find themselves, or relevantly, an expression of contrition which recognises what occurred, that it was wrong and why that was so. 98It would be unlikely the Court in considering issues of fitness would be satisfied that past conduct would not be repeated in the absence of a genuine recognition of, and acceptance of, the wrongfulness of the earlier acts. That is, an expression of contrition of the second kind to which I have referred above. 99In 2008 Mr Kennedy gave evidence that acknowledged the wrongdoing in, what seems to me to be, a reasonable and adequate manner. 100In his evidence to the Court on this application, he also acknowledged clearly, and so it seemed to me, without any hesitation, that his actions had been wrong, that he was ashamed of what he had done and he thoroughly regretted that. I accept this evidence. 101Mr Hegney gave evidence on this application that, from the lengthy discussions he had had with Mr Kennedy, it was clear to him that Mr Kennedy was deeply ashamed of his earlier conduct because it was wrong. 102I observed Mr Hegney closely whilst giving evidence and I have read his affidavit and annexures carefully. Mr Hegney impressed me as a witness who was giving an accurate and forthright answer to the difficult questions he was asked. I accept his evidence. 103The evidence of other witnesses, although not as thorough or detailed as that of Mr Hegney, support the conclusions to which I have come, that there has been an adequate display of contrition. 104I do not accept the Law Society's submission that Mr Kennedy has not shown an adequate degree of contrition nor any real understanding of the gravamen of his earlier misconduct. 105In my view, both in his written and oral evidence to this Court, I am satisfied that Mr Kennedy has displayed a proper and adequate understanding of the wrongfulness of his earlier misconduct.

Future honest behaviour 106The Law Society submits that the Court could not be satisfied that Mr Kennedy would behave honestly in the future. I recognise that the standard of conduct required of a solicitor is high. It is not merely that the solicitor will obey the law, but it is that the solicitor will engage in honourable conduct because, as Mahoney JA said in Dawson at 3-4: "The law cannot function - at least, it will not function as it is required to do in this country - if the court and his fellow practitioners cannot act upon the basis that a solicitor will honour his word, that he will not abuse confidence reposed in him, that property entrusted to his care will be safe." 107It is obvious that it is a difficult task for the Court to judge how a person will act in the future. In particular, the Court must be satisfied that the person will act differently from the way they have done in the past. This is not a matter of psychological theory or analysis, but is a judgment of a kind which is made by the courts from time to time: Dawson per Mahoney JA at 5; Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 223-4. 108The appropriate approach in this case to this question is to decide whether the Court is satisfied having regard to the events which resulted in Mr Kennedy's removal from the Roll, that Mr Kennedy will act properly in the future by taking into account the standards of conduct that he has exhibited since being removed from the Roll and his understanding of what conduct is required of a solicitor. 109There is no doubt that his misconduct in 2004 and following was entirely unacceptable. However, it needs to be recognised that the misappropriation was of a relatively small sum of money for a relatively short period of time. The total was $2,000, was repaid within a few weeks and, as is apparent from earlier decisions, the plaintiff intended to repay it. 110His misleading of the Law Society and its investigators was clear. The Tribunal in its first decision found that he had told lies to it. Each of these matters would cause the Court to have doubts about the honesty and adherence to that level of honesty in the future. 111I proceed to a consideration of this from a position of having accepted Mr Kennedy's evidence, and the evidence about him, in particular, that he has demonstrated an adequate level of contrition. 112I have also taken into consideration the content and manner of the evidence which Mr Kennedy gave to me, and his reactions, and replies to the cross-examination to which he was subjected. 113This is necessarily an evaluative judgment. I am satisfied that based on the matters to which I have referred, the conduct which he has displayed whilst working as a legal clerk, the present stability of his personal relationship and the reduction of his drinking of alcohol, that Mr Kennedy can be relied upon to behave honestly, and to fulfil the confidence reposed in him as a solicitor.

Mr Kennedy's evidence to the Court 114The Law Society submitted that Mr Kennedy's evidence to the Court had been less than frank. This contention was based upon the fact that in giving evidence before me, Mr Kennedy falsely asserted that he had made an unqualified and frank admission in his affidavit dated 15 March 2008, which was placed before the Tribunal at that time. 115In evidence before me, Mr Kennedy, when cross-examined, expressed the view that in giving the affidavit he had been frank and that his admission was unqualified. Counsel for the Law Society contended to the contrary and put such a suggestion to Mr Kennedy in cross-examination, before me. 116I have carefully read the contents of that affidavit, and the particular part to which Mr Kennedy was taken. I have attended carefully to his answers in Court. I have reached the same conclusion as that reached by the Tribunal in its second hearing, namely that the admission was a frank one of his wrongdoing and it was unqualified. 117Others may have expressed that admission in different terms, but I am satisfied that the way in which Mr Kennedy uses language, there is no reason to find, as submitted by the Law Society, that he has been less than frank in that affidavit. Consequently, I reject the submission that in giving evidence before me, Mr Kennedy was not truthful or frank. On the contrary, I accept that he was giving truthful evidence to me.

Conclusion 118I have reached the conclusion that Mr Kennedy is a fit and proper person to be admitted as a lawyer. 119This necessarily means that I have concluded that the first defendant, the Board, ought to have issued a Certificate of Compliance. 120It is appropriate that the parties have a short time to consider these reasons and prepare short minutes of order, including any proposed orders for costs. 121Accordingly I will make orders which give effect to that result.

Orders 122I make the following orders: (a)Plaintiff to provide to the Court within 3 days Short Minutes of Order, which he submits it is appropriate for the Court to make. (b)Within a further 3 days, the Law Society of NSW is to provide a note to the Court indicating its agreement with those Short Minutes of Order, or alternatively, Short Minutes of Order for which it contends. (c)Stand proceedings over to 9.30am on Friday 17 February.

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: 13 February 2012

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