Professions and Trades - Lawyers - Misconduct, unfitness and discipline - Grounds for disciplinary orders - Misleading court and perverting course of justice - Application for admission as a practitioner - Failure of applicant to disclose to court finding of academic misconduct by university committee - Failure of applicant's counsel to ensure disclosure - Whether unfit to remain on the roll.

Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279; Re Evatt (1987) 92 FLR 380; Re Del Castillo [1998] ACTSC 131; (1998) 136 ACTR 1; In re Davis [1947] HCA 53; (1947) 75 CLR 409, referred to.

In r_e a Solicitor_ [1912] 1 KB 302; Grahame v Attorney-General of Fiji [1936] 2 All ER 992; Myers v Elman [1940] AC 282; Re Thom; ex parte The Prothonotory (1962) 80 WN (Pt 1) (NSW) 968; In re Three Solicitors [1949] VicLawRp 13; [1949] VLR 72; Re a Solicitor [1960] VicRp 96; [1960] VR 617; In re a Legal Practitioner 105/1982; Law Society of Tasmania v Walker 56/1988; Law Society of Tasmania v Turner [2001] TASSC 129, applied.

Respondents: Scott Jason Richardson: K B Procter SC

Respondents: Scott Jason Richardson: Murdoch Clarke

Judgment Number: [2003] TASSC 9

THE LAW SOCIETY OF TASMANIA v SCOTT JASON ARNOLD RICHARDSON

THE LAW SOCIETY OF TASMANIA v GREGORY ARNOLD RICHARDSON

1 What is often described as the Court's inherent jurisdiction has been invoked and not its jurisdiction to deal with disciplinary matters under the Legal Profession Act 1993 ("the Act"). By originating applications filed on 14 March 2002, the Law Society of Tasmania sought orders that the names of each of the respondents be removed from the roll of legal practitioners of the Court. In her opening address, senior counsel for the Society informed the Court that she was in fact instructed to seek those orders. The Society's attitude appeared to have weakened by the time of her closing address, for she did not then submit that the Court should make any particular order. Nevertheless, she maintained that the conduct was capable of supporting orders removing the respondents' names from the roll.

2 Anita Betts and Gregory Richardson are the parents of the other respondent, Scott Richardson. On 18 August 2000, upon his application, the Court ordered that he be admitted as a legal practitioner. His parents appeared as his counsel at the hearing of the application, Gregory Richardson as senior counsel and Anita Betts as junior counsel. The gravamen of the Society's complaints is that all of the respondents failed to ensure that there was disclosed to the Court the fact, and its circumstances, that whilst Scott Richardson was a law student in 1999, an academic misconduct committee of the University of Tasmania found an allegation of academic misconduct to have been proved against him.

3 Many affidavits were read at the hearing of the originating applications. A considerable number of those attested to the good qualities, reputations and characters of the respondents. Some attested to the relevant events and to material beliefs and opinions held by the deponents. Cross-examined were the respondents, the Society's Executive Director, Mrs Janine Martin, and two staff members at the Law School at the University, Associate Professor Dal Pont (he was not an Associate Professor in 1999) and Professor Chalmers, who was the Head of School. I found all of the witnesses who were cross-examined to be honest. Some, such as the University staff members, had difficulty remembering events because of the passage of time. The respondents Scott Richardson and Anita Betts may have placed more favourable slants on what was said to them by Associate Professor Dal Pont and Professor Chalmers than may strictly have been justified. But I found all witnesses to be doing their best to give accurate and truthful evidence, and except where I state otherwise, I accept their evidence.

4 I made it clear at the conclusion of the hearing that no order would be made removing any of the respondents from the roll or suspending them from practice, and that no finding of professional misconduct would be made against any of them, but I reserved my formal decision pending the preparation of these reasons.

The University's Ordinance of Student Discipline

5 The Ordinance of Student Discipline was made by the council of the University under the University of Tasmania Act 1992, Pt3. It provided (inter alia) for the making and handling of allegations of academic misconduct against students. The expression "academic misconduct" was defined by cl 1.2.1 to include:

"cheating, plagiarism and any other conduct by which a student -

(a) seeks to gain, for themselves or any other person, any academic advantage or advancement to which they or that other person are not entitled; or

6 A deficiency in the Ordinance which has been rectified since the events of this case, was that whenever an allegation of academic misconduct was notified to the relevant Head of School, it could not be resolved by the head, not even if it was only a relatively minor matter. Instead a meeting of a formally established academic misconduct committee of the University had to be convened to deal with every allegation and to determine whether it had been made out and if so, the penalty that should be imposed. The available penalties ranged from the least serious reprimand, through academic grade or credit penalties and fines not exceeding $500, to the most serious penalties of exclusion from the University and permanent or temporary suspension of enrolment. The Ordinance has now been amended to permit less serious allegations of academic misconduct to be dealt with and determined by the relevant head of school instead of an academic misconduct committee. It was an option that would have been exercised by Professor Chalmers, the Head of the Law School, in Scott Richardson's case, if the amendments to the Ordinance had been made. The range of penalties open to a head of school under the amended Ordinance are a reprimand, a reduction or cancellation of the student's marks for the particular component of assessment to which the academic misconduct relates, and a requirement that the student satisfactorily complete additional work or alternative assessment tasks. Professor Chalmers' evidence was that he would have preferred to deal in-house with the allegations against Scott Richardson and four of the other seven students against whom similar allegations were made. The allegations against the three remaining were sufficiently serious to warrant a hearing before the committee, Professor Chalmers said. One of the three was alleged to have stolen a fellow student's assignment and plagiarised it, a very serious matter within the academic community.

7 Under the Ordinance, cl 3.3.1, a student may appeal against a decision of an academic misconduct committee. Such an appeal is heard by the Discipline Appeals Committee. By cl 4.2, the grounds of appeal are limited and under cl 4.3.2, the notice of appeal must be lodged within 14 days after receipt of the relevant decision.

8 The assessment for Unit BLA 401 Equity and Trusts, one of the units being studied by Scott Richardson for the degree of Bachelor of Laws, was by completion of a drafting assignment and of a three hour closed book examination. No marks were awarded for the drafting assignment, which was due on 28 May 1999. It was assessed merely on a pass or fail basis. However, the rule was that if it was not passed, the student could not sit for the examination scheduled for 9 June 1999.

9 The assignment concerned a superannuation trust deed. The students were required to draft three amending clauses for it, upon the basis of certain instructions. They were also required to answer three or four explanatory problems.

10 On 3 June 1999, two lecturers in the unit, Ms Lisa Butler and Associate Professor Gino Dal Pont, wrote to the Head of the Law School, Professor Chalmers, with allegations of academic misconduct on the part of eight students arising out of their assignments. With respect to Scott Richardson, the lecturers advised that his answers and the answers of another student, to whom I will refer as student X, were "near identical". Students were permitted to use precedents for the purpose of completing the drafting sections of the assignment, but the lecturers did not believe that the similarities were explainable by the use of the same precedents. It was not expected that precedents could be found that would adequately satisfy what was required to be drafted by the students.

11 Because of mounting concerns about plagiarism and the like within the University, a policy had recently been introduced in the Law School that when submitting assignments, students should attach a signed cover sheet that included (inter alia) disclaimers in terms that "this assignment, to the best of my knowledge, contains no material previously published or written by another person except where due reference is made in the text" and "I am aware that plagiarism is serious academic misconduct". The lecturers reported to Professor Chalmers that Scott Richardson had submitted a cover sheet and had signed the disclaimer section of it, but student X had not submitted a cover sheet (and had not signed the disclaimer section).

12 The lecturers expressed their belief that "the similarities constitute academic misconduct for the purpose of Ordinance 58" (the Ordinance of Student Discipline).

13 On 3 June 1999, Professor Chalmers wrote to each of the students concerned. In a letter to Scott Richardson he stated that he had been advised by the lecturers about a matter of academic misconduct. He said that the drafting assignment submitted by Scott Richardson had been compared with the assignment submitted by student X, and there were substantial similarities between them, suggesting that Scott Richardson's assignment had not been independently prepared. Professor Chalmers then stated the definition of academic misconduct in the Ordinance of Student Discipline and referred to the allegation as being one of copying and therefore of academic misconduct because it involved the seeking to obtain for oneself an academic advantage to which he was not entitled: "On the advice presented by the lecturers in this unit, their allegation of copying can amount to academic misconduct as you sought to gain an advantage for yourself in a prescribed assessment", Professor Chalmers wrote. He explained that an academic misconduct committee would be convened to deal with the allegation and that in due course there would be notification of the time and place of the committee's meeting. Scott Richardson was informed that he should sit the forthcoming examination in the unit on 9 June 1999, as the committee's meeting would not be held until after that date.

The determination of the academic misconduct committee that the allegation of academic misconduct had been proved

14 The University's academic misconduct committee formally published its determination on 29 June 1999 in a one and a half page document. It noted that an allegation of academic misconduct had been made against Scott Richardson who was a fifth year BA, LLB student enrolled in the Law School in the unit BLA401 Equity and Trusts. It cited the definition of academic misconduct in cl 1.2.1 of the Ordinance, but did not identify what aspect of that definition it had been alleged the student had breached. It noted that it was alleged that there were substantial similarities between an assignment submitted for assessment in the unit by Scott Richardson and an assignment submitted by another student, and that the two assignments had not been independently prepared. It recorded (inter alia) that Scott Richardson had made written and oral submissions to the committee, tendered a statement written by Anita Betts, and admitted to working on the assignment with student X, but stated that he had not intended to obtain an academic advantage.

15 The committee held that the allegation of academic misconduct by Scott Richardson had been proved and determined "that he be reprimanded for his actions" and "that he receive no credit for the Equity and Trusts assignment". The only reasons the committee gave for its decision were the following:

"In reviewing the evidence before it, the Committee formed the view that Mr Richardson was in error. He had approached this assignment in a way which did not meet the expectations of the School of Law. The Committee has accepted that it is possible that Mr Richardson's actions did arise out of the cooperative approach to study Mr Richardson described. He believed this to be acceptable to the School of Law. The Committee has decided that working cooperatively does not absolve a student from taking individual responsibility for the originality of his or her work."

16 It is difficult to understand just what the academic misconduct committee determined the facts to be and the respects in which Scott Richardson's conduct was thought to amount to academic misconduct. The committee did not specify whether it amounted to cheating or plagiarism, or whether it was conduct by which Scott Richardson had sought to gain for himself an academic advantage or advancement to which he was not entitled or conduct by which he had sought to obtain for student X an academic advantage or advancement to which student X was not entitled. However, by referring earlier to Scott Richardson's statement that he had not intended to obtain an academic advantage, and having regard to Professor Chalmer's reference to the allegation of academic misconduct in his letter to Scott Richardson of 3 June 1999, it may be that the committee was of the opinion that Scott Richardson had sought to gain for himself an academic advantage to which he was not entitled and therefore, that he was guilty of academic misconduct.

17 In finding that Scott Richardson was "in error" the committee did not identify in what way. In determining that his approach to the assignment "did not meet the expectations of the School of Law", the committee did not identify what those expectations were, nor why they were material to the determination of academic misconduct. It should be noted that the committee made a finding that was significantly in Scott Richardson's favour by acknowledging that he believed that what he had done was acceptable to the Law School. By inference that also amounts to a finding that he had not deliberately misconducted himself academically because he was unaware that what he was doing amounted to academic misconduct.

18 Senior counsel for the Society said that the Society's understanding of the committee's determination was that the gist of the committee's view was that the assignment submitted by Scott Richardson was not his own work, but the product of co-operation between him and student X when preparing their assignments. Counsel said that the committee's statement that it had decided "that working cooperatively does not absolve a student from taking individual responsibility for the originality of his or her work", showed that the committee had found Scott Richardson to be guilty of plagiarism, because he had passed off student X's work as his own, in the sense that his assignment was the product of the work of both students and not, as it should have been, so it was claimed, the product only of his own work. The evidence before me did not raise plagiarism by Scott Richardson, although it revealed plagiarism by student X. (I emphasise that I have no information concerning student X's version of the events and make no findings that should be interpreted adversely to him.) Counsel for the Society submitted that the committee's view was that students were not permitted to work cooperatively. However, the statement that "the Committee has decided that working cooperatively does not absolve a student from taking individual responsibility for the originality of his or her work", suggests that the committee was not critical of students working cooperatively on an assignment, provided that the content of each student's assignment was the student's own work. That view accords with evidence of Associate Professor Dal Pont that there was no prohibition of students working together.

19 With reference to its determination of the penalty, the committee had this to say:

"In determining the penalty the Committee is mindful, that in the future event that Mr Richardson seeks admission and enrolment as a legal practitioner, there would be an expectation that he disclose to the court that he was reprimanded by this Committee (see: The New South Wales Bar Association v Davis [1963] HCA 31; (1963) 109 CLR 428) in order to fulfil the obligation of complete candour required by those seeking the court's authority and approval to practise."

20 Once again, it is difficult to understand what the committee meant, particularly by the opening four words, which suggest that the obligation of candour influenced the determination of the penalty. I suspect that all the committee intended was to inform Scott Richardson that it was the opinion of the committee that he would have a duty to inform the Court of the outcome of the proceedings before the committee. However, I note that its reference to The New South Wales Bar Association v Davis (supra) was erroneous, for that case is not an authority for such a proposition.

21 The effect of the decision of the academic misconduct committee that Scott Richardson receive no credit for the assignment was difficult for the Law School to understand and apply. Satisfactory completion of the assignment had been a prerequisite for sitting the examination but Scott Richardson, along with all other students, sat for the Equity and Trust examination on 9 June. He could not be prevented from doing so. The academic misconduct committee had not made its decision by that date. It did not meet and consider the allegations of academic misconduct against him and the other seven students until later that month. It published its determination on 29 June. It also found six of the other students guilty of academic misconduct and I understand that the same penalty was decided upon for them.

22 On 12 July 1999 Professor Chalmers wrote to the University's Academic Registrar seeking advice on the effect of the committee's decision that the students "receive no credit" for the assignment. In light of the School's requirement that satisfactory completion of the assignment was a prerequisite for entry to the examination, he raised the question whether it meant that the students were (retrospectively) ineligible to sit for the examination or to receive a result for the Equity and Trusts unit, as a consequence of which their examination results, which were being withheld, should be recorded as Fail grades.

23 The matter was referred back to the academic misconduct committee. On 16 August 1999 it determined that the awarding of Fail grades in the unit would be an excessive response to the level of misconduct of the students and recommended that the Law School give them the opportunity to submit additional work. However, the eventual outcome as determined by the School, was that the committee's penalty was ignored. Students who passed the examination received the appropriate award for the unit, regardless of the penalty and the requirement that the assignment be satisfactorily completed.

24 It so happened that Scott Richardson failed the examination. By mid-October 1999 he was informed that he had been granted the right to sit a supplementary examination later in the year. He knew by then that so long as he passed that examination and his scheduled final examinations in other units shortly before, he would graduate at the end of the year and would not have to repeat the Equity and Trusts unit in the following year. The gaining of that knowledge was a great relief for him and his parents. He duly passed his remaining examinations and graduated. Early in 2000 he commenced a legal practice course, satisfactory completion of which was the only remaining requirement before he could apply for admission as a legal practitioner.

25 Under the Ordinance of Student Discipline, Scott Richardson lodged an appeal against the determination on 13 July 1999. The grounds of the appeal included a failure on the part of the academic misconduct committee to comply with the rules of natural justice. The Ordinance required the Academic Registrar to make sure that the Discipline Appeals Committee was convened within 21 days after the lodging of the appeal. For reasons that were not explained by the evidence, the appeal was not heard at that time. By mid-October 1999 Scott Richardson had decided that there was no need to press for a hearing, because in the light of events that had occurred, the determination would not affect him in his pursuit of a university degree, and because he had formed the opinion that he would not be obliged to disclose the determination of the academic misconduct committee to the Court when he subsequently applied for admission as a legal practitioner. I will consider that question and his opinion with regard to it, later in these reasons.

26 However, because the Society asserted in late 2001 that he should have disclosed the committee's determination to the Court and the present proceedings were threatened, he sought to have the appeal heard. On 29 November 2001 the Discipline Appeals Committee, having conducted a hearing, allowed the appeal and set aside the determination, including the penalty. Its reason for doing so was that the academic misconduct committee had failed to comply with the rules of natural justice by failing to give Scott Richardson an opportunity to respond to statements and comments received by the committee from three witnesses, being the lecturers in the Equity and Trusts unit and student X. Thereafter no attempt was made within the University to have an academic misconduct committee conduct a fresh hearing of the allegation of academic misconduct.

27 Accordingly, by the time the Society filed its applications to remove the respondents from the roll for not disclosing that the academic misconduct committee had found that the allegation of academic misconduct had been proved against Scott Richardson, that finding had been set aside and had no force or effect under the Ordinance of Student Discipline or otherwise. The Society was aware of those matters, but determined nevertheless to make the applications.

28 On 19 July 2000 Scott Richardson filed his application for admission as a legal practitioner, having satisfactorily completed the legal practice course. He filed a number of affidavits in support of the application, most of which were of a formal nature. They proved that the application had been advertised in newspapers as required by the Act, s30, and the Legal Profession (Board of Legal Education) Rules 1994, r17; that notice of it had been served on the Registrar of the Court and the Executive Director of the Law Society as required by that section and rule; and that he had passed the necessary examinations and requirements of subjects and completed, to the satisfaction of the Board of Legal Education, an approved course of practical instruction on the duties of a legal practitioner, as required by the Act, s23. The only other matter he needed to address arose under s31(1) which provided that an application for admission must not be granted unless the Court was satisfied that the applicant was of good fame and character and a fit and proper person to be admitted. In order to satisfy the Court of those matters, he filed only an affidavit sworn by his father, Gregory Richardson, on 4 August 2000. The affidavit attested merely to the fact that the applicant "is my son and has been personally known to me for 23 years" and to the deponent's opinion that the applicant "is of good fame and character and is a fit and proper person to be admitted as a Practitioner of the Supreme Court". There was no evidence that it or any of the other filed affidavits were read at the hearing, but they were all included by Scott Richardson in the copy of the papers prepared by him for the use of the judge who heard the application and they were plainly intended to be relied upon in support of the application. Based on my experience of such an application, the judge would have read the papers before the hearing and determined to grant the application before the hearing commenced.

29 With respect to the learned judge who heard Scott Richardson's application, I express my disapproval of the making of a finding by the Court that an applicant is of good fame and character and a fit and proper person to be admitted as a practitioner, based only upon the expression of an opinion about those matters by a parent of the applicant. The evidence should come from an appropriately impartial observer, and if necessary from more than one, and not one wearing rose-coloured spectacles.

30 The application was listed for hearing before the judge on 18 August 2000 at 4pm. Gregory Richardson appeared with Anita Betts as counsel for the applicant. I have almost no evidence of what was said at the hearing. Gregory Richardson moved Scott Richardson's admission. An order was made admitting the applicant as a practitioner of the Court. The hearing lasted only a few minutes. No mention was made, in supporting affidavits or at the hearing, of the determination of academic misconduct that was made by the academic misconduct committee over 13 months earlier.

Evidence of the preparation of the assignment by Scott Richardson and student X

31 I heard no evidence concerning student X's version of the events. The evidence about the work done in preparing the assignment came largely from Scott Richardson, with a little evidence from Anita Betts. The academic misconduct committee apparently had written and oral evidence from student X, but I was provided with no evidence concerning it. Scott Richardson was not present when student X gave oral evidence to the committee.

32 The evidence of Scott Richardson was as follows. The assignment was handed out to the students on 16 May 1999. He discussed with his mother the requirements of the drafting exercise. She produced to him a copy of a discretionary unit trust deed and between them they identified relevant sections of the deed. She then read those sections out as he wrote them down. She also went with him to the Law School's library and introduced him to, and showed him how to use, the Australian Encyclopaedia of Forms and Precedents, in which he might be able to find other precedents. He prepared a seven page handwritten draft of his response to the assignment. The first page was prepared prior to his discussions with his mother. Most of the balance was prepared in his mother's presence at her house, where he was living. The evidence did not establish the extent to which his mother contributed to the contents of the draft. He disclosed to the committee the assistance given to him by his mother, but it made no criticism of him about that in its determination.

33 Student X then approached him seeking help with regard to the assignment, saying that he had not attended the lecture at which the assignment had been handed out and he had also failed to attend some other relevant lectures. They arranged to meet at the library on the Friday after Scott Richardson's discussions with his mother, by which time he had substantially completed the draft of his assignment. At the library he explained to student X what the assignment was about and showed him the draft he had prepared in response to it. Student X obtained a text book from somewhere in the library and Scott Richardson retrieved the Australian Encyclopaedia of Forms and Precedents text previously identified by his mother. They went into a discussion room, and according to a written submission he subsequently made to the academic misconduct committee: "Going through each question individually, [student X] and I discussed possible answers using the materials described, in addition to my lecture notes and the notes made by me during my discussions with my mother. During this process I took extensive notes."

34 His evidence was that his use of the word "extensive" was mistaken and what he meant was that he had made notes that extended what he had previously drafted. He said that he made the notes directly onto his existing draft. He added about five lines of notes to the third page and the equivalent of about seven or eight lines to the sixth page. He pointed out on the draft, that was in evidence, where the notes were added. He said that when he appeared before the academic misconduct committee he explained the matter in the same way. The evidence does not persuade me to disbelieve his explanation of what he meant when he used the word "extensive" in his written submissions to the committee.

35 He said that student X made no notes. When the discussion concluded, student X asked if he could have a copy of the notes that had been made. As a result, Scott Richardson photocopied his draft of the assignment containing the additional notes, and provided student X with the copy. They then parted company. At his home, Scott Richardson typed out the final form of his assignment from his draft with the additional notes. He completed the cover sheet with its disclosure section. He took his final version of the assignment to the University to hand in. Student X read the final version immediately prior to it being handed in, but only had it long enough to quickly do so. In his evidence to the Court, Scott Richardson was adamant that his assignment was written only by him and that while his discussion with student X may have aided him, the answers to the problems and questions came from his own mind.

36 I have perused the assignments of both students. There are obvious similarities. Upon the evidence, limited as it was, I can only conclude that student X committed an act of "academic misconduct" under the Ordinance of Student Discipline in the form of plagiarism, by substantially copying the work of Scott Richardson. It is arguable that Scott Richardson did not commit "academic misconduct", for I heard no evidence that he copied or used the thoughts or writings of student X, nor was it suggested to me that when he gave a copy of his notes to student X he was committing an act of "academic misconduct".

Evidence of the hearing before the academic misconduct committee

37 There was little evidence about the hearing. The committee's determination recited that it was alleged that there were substantial similarities between the assignments submitted by Scott Richardson and student X and that the two assignments had not been independently prepared, but the only references it made to the evidence before it were that the two lecturers, Associate Professor Dal Pont and Ms Butler, spoke to the allegations, and that Scott Richardson attended the hearing and made both written and verbal submissions to the committee, tendered a statement written by his mother, admitted that he had worked on the assignment with student X and stated that he had not intended to obtain an academic advantage. The subsequent determination of the Discipline Appeals Committee of 29 November 2001, accepted that the academic misconduct committee also relied on written statements from the two lecturers, and written and oral statements from student X.

38 Scott Richardson's evidence to the Court was that most of the other students were accompanied by one or both of their parents before the committee. He was not allowed to do so, because the Ordinance of Student Discipline prohibited a legal practitioner from appearing. He therefore arranged for a fellow law student to attend with him. For a good part of the hearing they were both excluded from the room in which it was being conducted. He tendered a written submission and supplemented it orally. During the course of his evidence, he sought clarification from the committee concerning what it was that he was alleged to have done, and it was made clear to him, he said, that it was that he had sought to gain for himself an advantage to which he was not entitled.

Scott Richardson's reasons for not disclosing the determination

39 Some of the evidence to which I will refer under this heading did not constitute part of his reasons for not disclosing the determination to the Court, but I have included it here because it concerned events that occurred at the relevant time and makes the history of events easier to understand.

40 It was his evidence that upon reading the determination, he could not understand what he had been found guilty of doing. I find that to be understandable. I explained earlier in these reasons difficulties I have interpreting the determination. It expressed inadequate findings of fact. It is impossible to know whether the committee accepted his version of the events, as I have related, but nevertheless condemned his actions, or whether, for example, it found that he had committed plagiarism based on the thoughts and writings of student X.

41 It was also his evidence that he could not understand the effect of the penalty that he receive no credit for the assignment. Academic staff of the Law School had the same difficulty, as I have explained. He had hoped and planned to pass all remaining units and graduate at the end of 1999, to attend the six month legal practice course for 2000 (that was due to commence in about February 2000) and to seek admission as a legal practitioner at its conclusion. If he had to repeat the Equity and Trusts unit, he would only be able to do so when it was next offered in the first half of 2000, leaving him with nothing to do for the following six months and delaying his graduation, attendance at the legal practice course and application for admission for 12 months. He described it as a worrying and distressing time for him. His mother gave evidence that he was having emotional difficulties to the extent that "he was in a really bad emotional state". It was the possible effect of the penalty that was his main concern at the time. However, he was also concerned about the expression by the committee of an expectation that he would disclose to the Court that he had been reprimanded by the committee. He had not previously been aware of any obligation of candour that would be owed to the Court upon the making of an application for admission. He had been made aware that the adverse determination of the committee might affect the question whether he was a fit and proper person to be admitted as a legal practitioner, and he sought advice from persons he believed would know of any obligation to disclose, concerning whether he would need to do so, and he also sought advice about other aspects arising out of the determination that had been made against him. At the time he was 22 years of age.

42 On 3 July he faxed a copy of the determination to each of his parents and subsequently spoke to them by telephone. They both said to him that they did not understand the determination either. Anita Betts, who lived in Sydney but visited her son in Hobart from time to time, said that she would fly to Hobart to take steps to find out what it all meant. Gregory Richardson said at that time that he would leave it to them to pursue the matter, but he expressed strongly his view, that was to be later upheld by the Discipline Appeals Committee, that the hearing of the academic misconduct committee had been conducted in breach of the rules of natural justice. He urged that rather than appeal under the Ordinance, Scott Richardson should take the matter to this Court.

43 Anita Betts had personal knowledge of much of the work her son had undertaken in drafting his assignment. She had assisted him in the way described by him in evidence. She had been informed of the allegation of academic misconduct when it was made and was aware from her son of the substance of what he said he had done with student X in relation to the assignment. It had been planned that she would appear for him as a witness before the academic misconduct committee, but she was unable to do so because she was in the United States of America from 6 to 27 June and the committee refused Scott Richardson's application to adjourn the hearing until after her return. Her written statement was tendered to the committee.

44 She arrived in Hobart on 6 or 7 July, one of her intentions being to help her son prepare an appeal to the Discipline Appeals Committee. He told her that at the hearing he was not permitted to be present when the lecturers and student X gave evidence or made submissions and as a consequence he was unable to respond. He also told her that he had been given student X's written statement to the committee towards the end of his submissions and did not have enough time to peruse it to make submissions in response. On the basis of what he told her, Mrs Betts concluded that the hearing had been unfair and that in all likelihood there had been a breach of the rules of natural justice. At that time, Scott Richardson's parents gave him conflicting advice about what to do as a consequence. His father urged him to apply to have the determination quashed by way of an application to the Court, whereas his mother recommended that he appeal to the Discipline Appeals Committee, because she was concerned about potential adverse publicity for him.

45 It was Scott Richardson's evidence that early in July 1999 he raised his concerns about the effect the determination might have on the completion of his degree with Associate Professor Dal Pont. He was informed that within the Law School there was difficulty understanding its effect and it had been resolved that a letter seeking clarification be sent, Scott Richardson understood to the committee, but Professor Chalmers in fact wrote the letter to the Academic Registrar.

46 Anita Betts spoke to Gregory Richardson on or about 8 and 12 July concerning the course their son should take. She believed that the time limit for lodging an appeal to the Discipline Appeals Committee would expire on 12 July and resolved to speak to Professor Chalmers that day. I accept her evidence that she spoke to him in his office at the Law School. Professor Chalmers has no specific memory of the occasion but agrees that it may have taken place. I will relate some of her evidence of their conversation. It was also her evidence that straight after it, she told Scott Richardson of what she had discussed with Professor Chalmers.

47 She told Professor Chalmers of the family debate about whether her son should appeal or apply to the Supreme Court. They discussed what the academic misconduct committee had found her son's misconduct to be. He expressed the opinion that it was about students gaining an advantage and he commented that students were meant to do their assignments on their own and not with each other. She explained to Professor Chalmers what had happened between her son and student X concerning preparation of the assignment. She said that Professor Chalmers at one point commented that it would have been better if the allegation of misconduct had been "kept in house" rather than go to the committee, but nothing could be done about that because of the perceived deficiency in the Ordinance of Student Discipline to which I referred earlier in these reasons. Professor Chalmers indicated in evidence that he did not believe that he would have said that it would have been better if the matter "be kept in house", but I find that he said something along those lines, consistent with his evidence that he would have preferred to have dealt with the allegation himself if the Ordinance had permitted him to do so. Anita Betts said that they briefly discussed the potential ground for her son's appeal based on a denial of natural justice.

48 Her evidence was that she asked what was meant by the committee's expression of an expectation that Scott Richardson would disclose that he had been reprimanded by the committee when he applied to the Court for admission. She said that Professor Chalmers told her that it was an expectation only and that there was no legal duty to disclose it and that neither the University nor the committee could force Scott Richardson to do so. Professor Chalmers has no recollection of saying that there was no obligation to disclose and does not accept that he did so, but he accepts that he said that the Law School would not release the information as it arose out of a determination of a university committee of which the Academic Registrar was the delegated officer under the terms of the relevant Ordinance. It is not unusual that parties to a conversation will subsequently put different slants upon it. I find it unlikely in any event that Professor Chalmers would have told Mrs Betts that Scott Richardson had no legal duty to disclose the determination, for that would have flown in the face of the opinion of the academic misconduct committee. However, I believe he may well have said words to the effect that it would be a matter for Scott Richardson to decide whether he should make the disclosure and no one else could or would make him do so.

49 I accept Mrs Betts' evidence that she discussed with Professor Chalmers that an effect of the committee's penalty might be that Scott Richardson would have to repeat the Equity and Trusts unit. She was told that a letter had been written seeking clarification of the effect of the determination. She told Professor Chalmers that her son would have to lodge an appeal.

50 I also accept Anita Betts' evidence that at that time the question of her son's eventual admission as a legal practitioner was not a matter that was particularly troubling her. She was more concerned about him clearing his name. She knew of the circumstances of the preparation of the assignment and did not believe that what he had done amounted to academic misconduct. Further, she was quite convinced that he had been denied natural justice by the academic misconduct committee and that the determination that he was guilty of academic misconduct should not stand. After speaking with Professor Chalmers she returned to her Hobart home where she spoke with Scott Richardson and, by telephone, to Gregory Richardson. They worked on the preparation of an appeal to the Discipline Appeals Committee which was then lodged. She returned to Sydney. Scott Richardson's evidence was that his mother told him that she had asked Professor Chalmers whether the determination was something that would affect his admission to practice and the response was that it was not something that needed to be disclosed. Having lodged his appeal on 13 July 1999, he decided to do nothing further until the Law School had received from the academic misconduct committee clarification of the effect of the penalty. In August he was informed that a reply had been received and that he should see Associate Professor Dal Pont about it. He did so in late August. His evidence was that at the time he doubted that he would be obliged to disclose the determination and his doubt was increased by what his mother had told him of her conversation with Professor Chalmers.

51 Associate Professor Dal Pont has no recollection of the meeting. Scott Richardson's evidence of it was as follows. He raised three concerns he had. The first was how the penalty would affect the completion of his course. Associate Professor Dal Pont informed him, no doubt to his considerable relief, that the penalty would have no effect and the assignment would not be taken into account. The examination result alone would determine whether he had passed the unit. His second concern was whether the finding of misconduct would appear on his academic record. He was informed that it would not. His third concern was whether he was obliged to disclose the finding when applying for admission as a legal practitioner. He can no longer remember the precise words used by Associate Professor Dal Pont, but he said that whatever they were he was reassured by them that the committee's determination did not need to be disclosed. The evidence of the Associate Professor was that he would not have told Scott Richardson that he had no obligation to disclose the matter to the Court, but he may have told him that neither he, nor the University, had any power to force a student to make the disclosure. Scott Richardson accepts that he may have been told that, but whatever the precise words were, he left having formed a clear understanding in his own mind that the Associate Professor's view was that he had no obligation to make the disclosure.

52 At about that time, Scott Richardson learned that he had failed the Equity and Trusts examination. He was informed that he could sit a supplementary examination, but he was not told when he would be able to do so. The usual time for sitting a supplementary examination for a first semester unit had past. He spoke to his mother by telephone. She discerned that he was quite stressed about having to face a supplementary examination along with the examinations for his second semester units that were coming up. She came to Hobart and after a discussion with her son, made an appointment to see Professor Chalmers on 29 September 1999, to clarify for her son matters concerning the sitting of the supplementary examination. The appointment was made through another staff member. Both she and Professor Chalmers agreed as to that. However, Professor Chalmers no longer has any recollection of their conversation at that meeting.

53 Mrs Betts' evidence was that she asked Professor Chalmers why her son had been granted a supplementary examination, and it was explained to her that Scott had failed by only a few marks, but by more than would have justified a verbal test. She asked what had resulted concerning the assignment and the determination of the academic misconduct committee, and Professor Chalmers explained that although the committee had recommended that the students be given additional work, it had been decided not to adopt that recommendation and instead, the assignment would not count nor be further considered. Her evidence was that it therefore appeared to her that the assignment was no longer of consequence and was regarded as irrelevant. She said that she explained to Professor Chalmers that Scott Richardson had been really stressed about everything that had happened, and seeing that he had examinations to sit in October and November, she asked if it was possible for the supplementary examination to be conducted after them, in December or January.

54 As a result of being told by his mother of that conversation, Scott Richardson went to see Professor Chalmers to discuss the matter of the supplementary examination. Professor Chalmers no longer has any recollection of their conversation, but according to a diary note made by him, it is likely that it occurred on 19 October 1999. Scott Richardson said that Professor Chalmers explained the procedure that would be followed with respect to the supplementary examination. Scott Richardson was therefore satisfied that he would be able to finish his university course that year and the determination of the academic misconduct committee would not appear on his academic record. The only outstanding issue in his mind was whether it would affect his admission as a legal practitioner. His evidence was that he told Professor Chalmers that Associate Professor Dal Pont had advised him that the determination did not need to be disclosed and he asked whether that was right. Professor Chalmers' reply was that he had already spoken to Anita Betts about it and his opinion was the same as Associate Professor Dal Pont's.

55 I am unable to make a finding of the precise words spoken by Professor Chalmers to Scott Richardson about the matter of disclosure. As I said earlier, when referring to a conversation between Anita Betts and Professor Chalmers, Professor Chalmers may merely have said that it was a matter for Scott Richardson to decide whether he should make the disclosure and no-one else could or would make him do so.

56 Scott Richardson's evidence was that he told his father that all his concerns about the determination had been removed and that he had decided not to pursue the appeal, because there was no need to do so. He also told Gregory Richardson that Professor Chalmers had advised him that the determination did not need to be disclosed. Gregory Richardson replied that it had been his view all along that what the committee had said about the matter was "bullshit" anyhow. His father had made similar statements on a number of occasions. Anita Betts' evidence was that Scott Richardson reported to her about his conversation with Professor Chalmers, including that the Professor had said that the so-called academic misconduct did not have to be disclosed. She responded that he had said something similar to her. Scott Richardson added that Associate Professor Dal Pont had given him similar advice. As a consequence of their conversations, Scott Richardson believed that Gregory Richardson knew that he would not disclose the determination. He told Anita Betts that he had decided not to go on with the appeal, because there would be no point in doing so, but he does not believe that he told her he would not disclose the determination when he applied for admission.

57 It was Scott Richardson's evidence that by about October 1999, all his concerns about the determination of the academic misconduct committee had in fact been removed. The Law School had determined to ignore the penalty. There was to be no record of the matter on his academic record. He had at no time read The New South Wales Bar Association v Davis (supra) that had been erroneously cited by the committee, nor researched the law concerning the need for disclosure to the Court. Nevertheless, he had firmly resolved in his own mind that the determination would not affect his future and, in particular, that he would have no need to disclose it when he applied for admission. For all those reasons, he decided that there was no need to pursue his appeal. He did not turn his mind again to the question of disclosure of the determination to the Court until after the Law Society raised the issue following his admission. At the end of 1999, he graduated and early in 2000 commenced the legal practice course.

58 In May 2000 precedents of documents for admission applications were distributed to legal practice course students. The Deputy Registrar of the Court attended the course and led a discussion about the documents that needed to be filed. Scott Richardson recalls that they were told that an affidavit attesting to their character and fitness should be sworn by a legal practitioner. Nothing was said that brought to his mind the possibility that the determination needed to be disclosed. He expressed as a certainty that at no time was he lectured about, nor referred to, an obligation resting on an applicant for admission to disclose evidence of bad character to the Court. He prepared and subsequently filed the documents for his admission. By the day of the admission ceremony, 18 August 2000, when his parents appeared as his counsel, there had been no further mention of disclosure.

59 There was a suggestion in the evidence that the judge who heard the application had learned privately, sometime before, of the determination of the committee that Scott Richardson was guilty of academic misconduct. Scott Richardson's evidence was that he had been told that some mention of the matter had been made to his Honour. However, the evidence fell short of establishing it and in any event, whether or not his Honour did have knowledge of the matter is irrelevant to the issues raised by the present applications, which concern the failure of the respondents to disclose the committee's determination to the Court. Scott Richardson did not rely on it as in any way persuading him not to make a disclosure.

Anita Betts' reasons for not disclosing the determination

60 Much of the evidence I have related concerns Anita Betts and I will repeat little of it. Scott Richardson was born on 23 December 1976. His parents were divorced in 1981. In 1984, Anita Betts graduated at the University of Tasmania with a Bachelor of Arts degree and in 1986 with a Bachelor of Laws degree. She was admitted as a practitioner of this Court in 1987. After a period of employment as a solicitor, she conducted her own legal practice in Hobart until 1998, when she moved to Sydney to live. She was admitted as a practitioner in New South Wales and was employed as a solicitor for a time and then practised on her own account until 2001, when she was admitted as a barrister by the Supreme Court of New South Wales. Therefore, by the time of Scott Richardson's admission, she had been admitted as a practitioner by the supreme courts of two States. On both occasions she had arranged for the provision to the courts of affidavits attesting to her character. She was well aware at the material time that Scott Richardson's good fame and character and the question whether he was a fit and proper person to be admitted, were matters about which the Court had to be informed.

61 She had assisted her son with some of his preparation of the assignment, as described by him in evidence. Having done so, and prior to his meeting with student X, she left Tasmania for Melbourne, and then Sydney, believing that his assignment was either in its final draft form or he had completed it. Once the allegation of academic misconduct had been made, he informed her of it and of the part student X had played in the events. I have related the evidence of her participation in discussions with him, Gregory Richardson and Professor Chalmers. Early on in the course of events, she concluded that the determination of the academic misconduct committee was erroneous. She had difficulty understanding what the committee's findings were and could not understand how they had been reached. She also concluded that the proceedings before the committee were unfair and that in all likelihood it had breached the rules of natural justice. She said so to those to whom she spoke.

62 The main concerns of Mrs Betts were clearing her son's name, dealing with his stress caused by the determination and impending examinations and seeing him through to graduation by the end of 1999. The question of whether he should disclose the determination to the Court at the time of his eventual application for admission was not a pressing question for her at that time, although she did raise the expression of the committee's expectation with Professor Chalmers for his comment. At all times prior to the admission ceremony she was fulfilling the role of a mother and not that of a legal practitioner acting for a client. At no time did she encourage or counsel Scott Richardson not to disclose the determination. She did advise him of her conversation with Professor Chalmers. Like her son, at no time did she consider the case of The New South Wales Bar Association v Davis (supra) that had been erroneously cited by the committee, nor did she research the law concerning the need for disclosure to the Court. I emphasise that, certainly at all times prior to the afternoon of her son's admission hearing, she had breached no duty she owed to the public or to the Court. Prior to the hearing she was not relevantly acting as a legal practitioner.

63 From about October 1999 until after the admission ceremony on 18 August 2000, the question of whether the determination should be disclosed to the Court was not discussed by Mrs Betts with anyone else, nor did she turn her mind to it. She played no role in the preparation of papers for Scott Richardson's application for admission. At the time of their preparation she lived in Sydney. In about May 2000 she was informed by him that he intended to work in Devonport for 12 months for Gregory Richardson, who would be moving his application to be admitted as a practitioner. On 3 August 2000, Scott Richardson informed her that the admission hearing was due to take place in two weeks' time and he asked if she could travel to Hobart for it and stay for the weekend. She stated that she would do so. He told her that the application was due to be heard on Friday, 18 August at 4pm and that the hearing would be followed by a celebratory function. She spoke to him about the people he had invited to it and said that she could arrange for food and drinks.

64 Mrs Betts arrived in Hobart from Sydney late on the night before the hearing of the application. Next day she arranged to pick up food. She also arranged to take her mother to the Court for the hearing. Early in the afternoon, Gregory Richardson telephoned her. They discussed the drinks to be provided at the function and agreed to share the cost. During the course of that conversation he invited her to join him in Court as junior counsel when he moved their son's admission. When she left Sydney the previous day she had only expected to be a spectator. No doubt she was pleased to receive the offer and proud when she took advantage of it. She had left a set of barrister's robes in Hobart. She picked them up and then her mother, and drove to the Court. She changed into the robes and sat at the bar table with Gregory Richardson while he moved their son's admission. She at no time saw the documents supporting the application for admission, nor were they provided for her. The question of disclosing the determination of the academic misconduct committee to the Court at no time crossed her mind. The hearing lasted only a few minutes. She said nothing during it.

Gregory Richardson's reasons for not disclosing the determination

65 I will not repeat evidence to which I have already referred. Gregory Richardson graduated at the University of Tasmania in 1972 with a Bachelor of Laws degree. He was admitted as a practitioner of this Court in 1974. He has practised on his own account at Devonport since 1978, primarily in the area of criminal law. He had moved three admissions before he moved the admission of Scott Richardson. He was well aware at the material time that good fame and character and the question whether the applicant was a fit and proper person to be admitted, were matters about which the Court had to be informed.

66 Gregory Richardson had no personal knowledge of his son's preparation of the assignment. Upon being informed of the allegation of academic misconduct, he demanded of Scott Richardson that he "lay it on the line" and tell him exactly what had happened. Scott Richardson explained how he had prepared the assignment and what had occurred between him and student X, producing his draft assignment and using it to explain what had happened. Gregory Richardson also spoke to Anita Betts, who told him of the assistance she had given their son. She asserted that she knew he had done nothing wrong and that he had drafted his own assignment. Gregory Richardson formed the belief that his son had completed the drafting of most of the assignment before speaking to student X and that in its final form it was all his own work. Gregory helped Scott prepare written submissions to present to the academic misconduct committee. It was originally proposed that he would appear for his son before the committee, until they learned that the Ordinance of Student Discipline prohibited legal practitioners appearing.

67 Like the other members of the family, he had difficulty understanding the committee's determination. It was not apparent to him whether it had been found that Scott Richardson had given student X an advantage to which he was not entitled, or that Scott Richardson had gained such an advantage for himself. The committee had referred to the fact that the two students had worked cooperatively and had expressed its acceptance, at least as a possibility, of Scott Richardson's version of the events. Gregory Richardson believed that he knew what his son's version was and in that light attempted to interpret the committee's expression of its determination. He was satisfied that what Scott Richardson had done did not amount to plagiarism, because he had not copied any work of student X.

68 Very early on, Gregory Richardson formed the opinion that an appeal from the determination would have to succeed for failure on the part of the committee to comply with the rules of natural justice, because it had received virtually all of the evidence, other than Scott Richardson's evidence, in his absence. He also believed that the committee had breached the Ordinance under which it operated. However, he urged Scott Richardson to take the matter to this Court and not to the University's Discipline Appeals Committee. He had far greater trust in the Court's ability to conduct a fair hearing than in another university committee's ability in that regard. Anita Betts and Scott Richardson wanted to appeal to the Discipline Appeals Committee, and their view eventually prevailed.

69 Gregory Richardson had no doubt in his mind that Scott Richardson had not cheated, committed plagiarism, been dishonest or broken any law. Those remain his views. It was, and still is, his opinion that an applicant for admission has an obligation to disclose to the Court any prior criminal conduct or misconduct which involved dishonesty or which in any way adversely affected that person's good name and character or reasonably suggested that the person was not a fit and proper person to be admitted to practice. He held that opinion by virtue of his general expectations of the legal profession and of what a court expects of legal practitioners. For similar reasons, it was and still is his belief that the duty of counsel moving an admission is to disclose to the Court any such information concerning the applicant that is known to counsel.

70 Shortly after the publication of the committee's determination, Gregory Richardson formed a belief that there would be no obligation on Scott Richardson to disclose the determination to the Court. As with the other respondents, he did not consider The New South Wales Bar Association v Davis (supra) or any other authorities. He was strongly of the opinion, no doubt based on his understanding of the facts and his consequent interpretation of the determination, and his difficulty in arriving at it, that there was nothing in it that might reflect upon the honesty and integrity of Scott Richardson and that required disclosure to the Court. The committee had not found that his son had lied. He believed, on the contrary, that it had accepted that his son's version of the events may well have been correct. Based on his understanding of that version, Gregory Richardson had no doubt that there had been no dishonesty or conduct that reflected adversely on his character. When he read the expression by the academic misconduct committee of its expectation that the reprimand be disclosed, he reflected on the information the Court would want to have concerning an applicant. He considered that it would need to be satisfied that the applicant was an honest person, one who could be trusted, and a person of integrity. In his words: "He's worked with another kid on an assignment, he's done most of the work, the other kid copied his assignment, for myself I couldn't see any reflection on his character out of that." As far as he was concerned, his son remained an honest person, one who the Court would be able to trust.

71 He was also encouraged in his views concerning disclosure because he was informed by Scott Richardson that Associate Professor Dal Pont and Professor Chalmers had told him that he had no obligation to disclose the determination and by Anita Betts that Professor Chalmers was of the same view.

72 Before the end of 1999, Gregory Richardson had concluded that the committee's expectation about disclosure was plainly wrong and that in all the circumstances, there would be no need for Scott Richardson to make such a disclosure at the time of his application for admission. In reaching that conclusion and advising his son of it in 1999, he breached no duty he owed to the public or to the Court. Like Anita Betts, he was not relevantly acting as a legal practitioner. He was fulfilling the role of a parent who was a legal practitioner and who, as a result, was more likely to be better qualified to express an opinion about the subject than most parents of students.

73 By the time of the preparation of Scott Richardson's application for admission and the hearing, disclosure of the determination was a dead issue in Gregory Richardson's mind. He did not turn his mind to it when he swore his affidavit attesting to his son's qualities and fitness, nor when he appeared as his counsel at the hearing on 18 August 2000.

74 In particulars delivered to Scott Richardson, the Society's case was that he was not a fit and proper person to be a practitioner and should be struck off because:

1 in preparing his papers for admission, he failed to disclose to the Court the facts and circumstances of the determination of the academic misconduct committee;

2 he failed to make any or any sufficient enquiries as to whether or not he ought to make that disclosure;

3 he failed to instruct counsel appearing on his behalf to make that disclosure.

75 There was little dispute between the parties about the principles and rules that apply to the question of disclosure by an applicant for admission. An applicant who is not a fit and proper person to be admitted is ineligible for admission. The duty and function of the Court is to only admit as a practitioner a person who "is a fit and proper person to be admitted". The Act, s33(1). Although it is a requirement in every case, the subsection particularly emphasises it in cases where the applicant has been convicted anywhere of a crime; has been declared bankrupt, or has applied to take advantage of a law relating to bankruptcy; or has anywhere ceased to be a barrister, solicitor or barrister and solicitor, or has been suspended from practice. "There is therefore a serious responsibility on the Court - a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential." Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1909) 9 CLR 655 at 681.

76 By admitting an applicant, the Court is holding out that person to members of the public as a fit and proper person to act for them. The protection of the public is therefore a major consideration together with the standing of the profession. A member of the profession must command the personal confidence and respect of clients and fellow members of the profession. Those who practice at the Bar must also command the respect and trust of the judiciary. When dealing with the case of a barrister in Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 298, Kitto J spoke in these terms:

"It has been said before, and in this case the Chief Justice of the Supreme Court has said again, that the Bar is no ordinary profession or occupation. These are not empty words, nor is it their purpose to express or encourage professional pretensions. They should be understood as a reminder that a barrister is more than his client's confidant, adviser and advocate, and must therefore possess more than honesty, learning and forensic ability. He is, by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community. That is a delicate relationship, and it carries exceptional privileges and exceptional obligations. If a barrister is found to be, for any reason, an unsuitable person to share in the enjoyment of those privileges and in the effective discharge of those responsibilities, he is not a fit and proper person to remain at the Bar."

See also In re Davis [1947] HCA 53; (1947) 75 CLR 409 per Dixon J at 420.

77 It is incumbent on an applicant for admission to satisfy the Court that he or she is a fit and proper person to be admitted. Although s29A, which was inserted into the Act in 2001, empowers the Court to make rules regulating the procedure and practice relating to the admission of legal practitioners, they have not been made. For a number of years at least, applicants have almost invariably persuaded the Court that they are fit and proper persons to be admitted by filing an affidavit from legal practitioners, usually only one, formally attesting to that issue, without providing the Court with any other relevant evidence. Based on my experience, it is likely that the practice in this State does not fall within what the Full Court in Re Del Castillo [1998] ACTSC 131; (1998) 136 ACTR 1 at 7 referred to as "common throughout Australia for applicants for admission to legal practice to disclose quite minor charges". At least some other jurisdictions in this country have made rules specifying what must be revealed by an applicant. For example, the Supreme Court Admission Rules 1999 of South Australia require an applicant to disclose whether he or she has been convicted or found guilty by a court of any offences or whether any charges or proceedings for any offences are outstanding against the applicant; whether the applicant has ever been bankrupt; whether the applicant suffers any illness or condition which would affect his or her ability to perform all the duties and responsibilities of a legal practitioner adequately or safely; and particularly relevant to the circumstances of this case, whether the applicant has been found to have engaged in academic dishonesty such as plagiarism. The Society might think it appropriate to formally request the Court to make admission rules and to make submissions as to their content.

78 There is authority for the proposition that an "applicant's duty is to place before the Court any matter that might reasonably be regarded by the Court as touching on the question of fitness to practise." Re Evatt (1987) 92 FLR 380 at 383. See also Re Del Castillo [1998] ACTSC 131; (1998) 136 ACTR 1 at 5. In case it might be argued that the validity of the proposition in those two cases depended on rules of court that obliged an applicant to bring to the attention of the Court any matter that was relevant to the applicant's fitness for admission (see respectively Australian Capital Territory Supreme Court (Admission of Practitioners) Rules 1981 (Cth), r13, and Supreme Court (Admission of Legal Practitioners) Rules 1998 (ACT), r15), the duty was recognised much earlier and in a case, I think, where there was no such express rule. See In re Davis (supra). Counsel for the respondents accepted that Scott Richardson owed the duty and I will determine the applications on that basis.

79 It is obvious that not every wrongful act or omission committed by an applicant in his or her past life will prevent the success of an application for admission. "It cannot be that every proof which he may give of human frailty so disqualifies him. The ends which he has to serve are lofty indeed, but it is with man and not with paragons that he is required to pursue them." Ziems v The Prothonotary of the Supreme Court of New South Wales (supra) per Kitto J at 298. Even convictions for crime will not automatically bar an application for admission. The age and seriousness of the crime, and the circumstances in which it was committed, along with all other relevant facts, will usually need to be considered by the Court before it determines whether or not to make an admission order. Dixon CJ at 283 and Fullagar J at 288. "It will be generally agreed that there are many kinds of conduct deserving of disapproval and many kinds of convictions of breach of the law, which do not spell unfitness for the Bar; and to draw the dividing line is by no means always an easy task." Kitto J at 298. "The quality of his conduct is observed". Taylor J at 301. "The vital question ... is whether the conduct of the person concerned, whether it constitutes an offence against the law or not, has been such as to show that he is unfit. ... The fact that his conduct may have amounted to an offence against the law is of course a matter for consideration but for the reasons given it is by no means the end of the inquiry." Taylor J at 303.

80 It is clear that an applicant is not obliged to disclose to the Court all aspects of his or her past life that might be open to criticism or arguably amount to examples of imperfections of character or performance. The statement of the Full Court in Re Evatt (supra) at 383, expressed as being made unequivocally, "that it is not for an applicant to decide what is or is not relevant to place before the Court on the question whether that person is a fit and proper person to be admitted to practise", could not, with respect, be right, for it is obvious that applicants must in fact make such a decision when considering the extent of their duty of disclosure to the Court. The dicta is better understood in the light of what next fell from the Full Court, that "the applicant's duty is to place before the Court any matter that might reasonably be regarded by the Court as touching on the question of fitness to practice". That is the extent of the duty and as I have said, the respondents accept that.

81 In Re Davis (supra), Latham CJ at 416 said that it would not be reasonable to require disclosure of every wrongdoing in an applicant's life and in Barristers' Board v Darveniza (2000) 112 A Crim R 438, Thomas JA, at 447, acknowledged that there may be marginal cases where it is difficult to know whether to disclose a matter. The issue was also addressed in Re Del Castillo (supra), although in the course of considering the requirements of the Supreme Court (Admission of Legal Practitioners) Rules (ACT), r15, that an applicant for admission shall bring to the attention of the court any matter that is relevant to his or her fitness for admission as a legal practitioner. The Full Court said, at 7, that the requirement of r15 "should be construed as including matters which might, as a matter of ordinary experience, put the court or any interested person on notice that further inquiry as to the applicant's fitness may be prudent. That is what was meant by the court in Re Evatt."

82 The Society does not seek to have the name of Scott Richardson removed from the roll relying in part on an assertion that he committed an act of academic misconduct. It does not ask the Court to make a finding that he committed such an act. It bases its case against him solely on his failure to disclose the determination of the University's committee to the Court when he applied for admission. The case can therefore be contrasted with In re Davis (supra) in which a barrister was disbarred because of both a crime committed by him prior to admission and his failure to disclose that crime at the time his application for admission was considered. An example of a somewhat similar case to Davis is Barristers' Board v Darveniza (supra).

83 The issue for the determination of the Court on the application to strike off Scott Richardson is whether the Society has discharged the onus of proving that he is not a fit and proper person to remain a member of the profession. In re Davis (supra) per Latham CJ at 416; Ziems v The Prothonotary of the Supreme Court of New South Wales (supra) per Fullagar J at 288 and Kitto J at 299; In re Weare [1893] 2 QB 439 at 448; Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 per Griffith CJ at 612.

84 It is my considered but doubt free view that the Society has failed to discharge that onus. The mere fact of the committee's determination could not possibly have amounted to justification for refusing Scott Richardson's application for admission. The facts and circumstances leading up to the making of the determination would have needed to be investigated and determined before such a decision could properly have been reached. Scott Richardson had first hand knowledge of those facts and circumstances. He knew that he had drafted all of his assignment. He knew that he had discussed the requirements of the assignment with student X and to a limited extent had worked cooperatively on it, but he had no reason to think that merely working cooperatively with a fellow student was not permitted conduct. The academic misconduct committee's determination did not express disapproval of working cooperatively, so long as the student could take individual responsibility for the originality of his or her own work. It was Associate Professor Dal Pont's evidence that there was no prohibition of students merely working together. I must conclude from the evidence presented to the Court that Scott Richardson could only be properly criticised, from the University's stand point, for providing student X with a copy of his draft assignment when requested to do so. It was not suggested to him in cross-examination that he did so for the purpose of assisting student X to plagiarise his assignment. He was not asked for his reasons. They may have been merely to provide student X with a copy of a few notes that had been made on the draft in the course of their cooperative research. He also knew that the committee had found that he had believed that what he had done was acceptable to the Law School. He further knew that the committee had made its determination after having received statements and evidence from student X and the two lecturers in Equity and Trusts without him being given an opportunity to respond.

85 He did not understand from reading the determination precisely what it was that had been found that he had done wrong. His difficulty in that regard was justified. At that time, in 1999, he was a 22 year old student and not a legal practitioner. He owed none of the duties of a practitioner and he had no experience as a practitioner. His knowledge of the law was limited. His appropriate response to the determination was to seek advice from those he thought would know and whose advice would readily be forthcoming. His father had 25 years' experience as a legal practitioner and his mother had 12 years' experience. They advised him (inter alia) that he had not been accorded natural justice by the committee and as a result he should take steps to have the determination quashed. As events have turned out, that advice was sound. His mother helped him prepare his appeal. His father advised him on more than one occasion, in robust terms, that he would not be obliged to disclose the determination to the Court when he eventually applied for admission as a legal practitioner. Associate Professor Dal Pont and Professor Chalmers had also given him advice on the issue, which I find may merely have been to the effect that he would have to decide for himself whether he should disclose the determination, but which he interpreted as meaning that they did not regard him as being under an obligation to do so. His mother told him that Professor Chalmers had expressed that view to her.

86 By about October 1999, all his concerns about the determination of the academic misconduct committee had been removed. He had been informed that the Law School had decided that it would ignore the academic penalty imposed by the committee and that there would be no record of the matter made on his academic record, and he believed that he would have no need to disclose the determination to the Court at the time of his eventual application for admission. The Society has not established to my satisfaction that in forming that belief in 1999, a belief that was not shaken until after his admission, he demonstrated that he was not a fit and proper person to be admitted and that he should be removed from the roll. His failure to conduct research on the law concerning disclosure, does not affect my conclusion.

87 In May 2000, Scott Richardson, along with his fellow students, received instructions from the Deputy Registrar of the Court about the documents he would need to file in support of his application for admission. He was told that he would need an affidavit of a legal practitioner attesting to his character and fitness. He was told nothing that brought to his mind the possibility that the determination should be disclosed. The contrary may have been the case if there had existed rules of court prescribing matters to be disclosed, such as the rules applying in South Australia and some other jurisdictions. When he prepared his papers in support of his application for admission, the issue of disclosure was not raised. He does not deserve to be condemned for not acting contrary to the advice and indications he had received about the issue.

88 The most severe criticism that arguably may be made against Scott Richardson is that he made an error of judgment, a mistake, based largely on the advice of two experienced practitioners who were also his parents. Even if it is valid, it is no justification for removing his name from the roll. His fitness to practice, his honesty, character and trustworthiness have not been adversely affected by his failure to make the relevant disclosure. I am satisfied that at no time did he intend to mislead the Court.

89 For the reasons I have expressed, the application against Scott Richardson will be dismissed.

90 In particulars delivered to Gregory Richardson, the Society's case was that he was not a fit and proper person to be a practitioner and should be struck off because he failed to draw to the attention of the Judge who heard Scott Richardson's application for admission, the determination of the academic misconduct committee and his failure to do so was either advertent, reckless or made with wilful blindness to the issue of disclosure. The Society asserted that the failure amounted to professional misconduct on the part of Gregory Richardson. However, it disavowed the making of any suggestion that he had been dishonest in anything he had done.

91 As in the cases against the other respondents, the issue for the determination of the Court when considering whether to grant the Society's application to remove Gregory Richardson's name from the roll, is whether the Society has discharged the onus of proving that he is not a fit and proper person to remain a member of the profession. On the issue of whether his failure, or the failure of Anita Betts, for similar allegations were made by the Society against her, amounted to professional misconduct, the question to be determined is essentially one of whether the behaviour would reasonably be regarded by legal practitioners of good repute and competency, as disgraceful or dishonourable. In r_e a Solicitor_ [1912] 1 KB 302 at 311, 312; Grahame v Attorney-General of Fiji [1936] 2 All ER 992 at 1002; Myers v Elman [1940] AC 282 at 288, 289; Re Thom; ex parte The Prothonotory (1962) 80 WN (Pt 1) (NSW) 968 at 969; In re Three Solicitors [1949] VicLawRp 13; [1949] VLR 72 at 73; Re a Solicitor [1960] VicRp 96; [1960] VR 617 at 620; and in this State In re a Legal Practitioner 105/1982 at 9; Law Society of Tasmania v Walker 56/1988 per Cox J at 22; Law Society of Tasmania v Turner [2001] TASSC 129 at par44.

92 I find that the Society has failed to prove that Gregory Richardson is not a fit and proper person to remain a member of the legal profession. I also find that his failure to draw the determination to the attention of the Judge who heard his son's application for admission, did not amount to professional misconduct. I have no doubt that his failure in that regard would not reasonably be regarded by legal practitioners of good repute and competency as disgraceful or dishonourable.

93 It was in 1999 that he decided there was no need for disclosure, when as a parent of Scott Richardson, who was also a legal practitioner of considerable experience, he concluded, reasonably in my view, because of his knowledge of his son's version of the events, that whatever the academic misconduct committee may have found in the course of making its determination, it had accepted that Scott's version of the events may well have been true. Consequently, in the light of that version, he concluded that there was nothing about the determination that was capable of adversely reflecting on Scott's good name or character or of reasonably suggesting that he was not a fit and proper person to be a member of the legal profession. He had no doubt that his son had not cheated, committed plagiarism, been dishonest or broken any law. He may well have judged his son's conduct with the bias of a parent, when he made that decision in 1999, but he does not deserve condemnation. His affection for his son was only natural and I reject the endeavours of the Society's counsel to persuade me that it is irrelevant to the outcome of the case against him.

94 If Gregory Richardson made a wrong decision in 1999, it amounted to no more than that, and certainly did not amount to professional misconduct. I accept his evidence that by the time he came to act as his son's counsel to move his admission in August 2000, he did not turn his mind once again to the issue of disclosure. His failure to ensure disclosure then cannot be categorised as advertent, reckless or a product of wilful blindness. I agree with his counsel's submissions that even if he ought to have ensured disclosure, his failure to do so was at worst an error of judgment and not capable of amounting to professional misconduct or deserving of discipline by the Court.

95 The application against Gregory Richardson will be dismissed.

96 Having particular regard to the fact that by the time the Society filed its applications it was aware that the determination of the academic misconduct committee had been set aside by the Discipline Appeals Committee for failure to comply with the rules of natural justice, it has surprised me that the Society determined nevertheless to seek to have the names of Gregory and Scott Richardson removed from the roll. In the case of Anita Betts it has shocked me.

97 Particulars delivered to Anita Betts of the Society's case that she was not a fit and proper person to be a practitioner and should be struck off, were similar to those delivered to Gregory Richardson. Her failure to disclose the determination to the judge who heard the application for admission was described as advertent, reckless or made with wilful blindness. The Society also asserted that the failure amounted to professional misconduct.

98 I repeat my finding that at no time did Anita Betts encourage or counsel Scott Richardson not to disclose the determination. Prior to the date of the hearing of the application for admission on 18 August 2000, she had performed no function as a legal practitioner deserving of examination by this Court. It was not until only the last two or three hours, or thereabouts, prior to the hearing that she was first invited to appear alongside Gregory Richardson when their son's admission was moved. She accepted the invitation and later that afternoon sat robed at the bar table. Her principal role was as proud parent. She performed no function as counsel other than to sit there. She did not turn her mind to the issue of disclosure and does not deserve to be disciplined for not doing so. I have found it impossible to understand why the Society has actively sought to have her name removed from the roll for what she did or failed to do. The evidence falls far short of establishing that she is not a fit and proper person to continue to be a legal practitioner. There is no suggestion in the evidence that she professionally misconducted herself.

99 The application against Anita Betts will be dismissed.