Professions and Trades - Lawyers, misconduct, unfitness and discipline - Disciplinary proceedings - Statutory proceedings - Tasmania - Professional misconduct - Unprofessional conduct - What constitutes - Lack of candour.

Legal Profession Act 1993 (Tas), ss56, 76(1), 80 and 81.

Lawyers' Professional Responsibility, Professor G E Dal Pont, referred to.

Judgment Number: [2007] TASSC 72

THE LAW SOCIETY OF TASMANIA v JANET MARGARET SCOTT

1 The Law Society of Tasmania ("the applicant") asked the Court to deal with a complaint against the respondent, Janet Margaret Scott, pursuant to the provisions of the Legal Profession Act 1993, s80. A hearing was held on 30 April 2007 ("the initial proceedings") and reasons published on 25 May 2007 ([2007] TASSC 30). As a consequence of the findings and what the Court proposed by way of orders, the matter was adjourned to allow the parties an opportunity to look into the most appropriate way of implementing the Court's findings. On 1 June 2007, before any orders were made, the applicant sought leave to re-open its case. After hearing argument, the Court gave that leave.

2 The conduct of the initial proceedings is relevant to how this matter unfolded. The respondent has, at all relevant times, been represented by counsel, although counsel has changed during the course of the matter. In the initial proceedings, no oral evidence was taken. The applicant read a number of affidavits and tendered a statement of agreed facts. The respondent neither read any affidavit material nor tendered any documents. Counsel for both parties made submissions as to the findings the Court should make based on the documents before it.

3 Counsel for the respondent, both in his oral and written submissions, accepted the matters contained in the statement of facts tendered by the applicant were agreed by his client. He did not seek to cross-examine any deponent of any affidavit relied on by the applicant, nor dispute any part of the agreed facts. Counsel for the respondent also stated a number of matters from the bar table about which no evidence was led. The applicant took no objection to this being done. In the reasons handed down on 25 May 2007, I said in pars2 and 3 in relation to the evidence and the respondent's position at the hearing:

"The complaint has been made by the applicant in the context of numerous client complaints made against the respondent in respect of her conduct in 2004. The issue in this matter is not whether the matters which gave rise to those client complaints have been substantiated, but whether the conduct of the respondent amounted to professional misconduct or unprofessional conduct, and what the appropriate order should be in respect of the conduct so found. That the respondent is guilty of, at the very least, unprofessional conduct is not disputed by her counsel. What is in dispute is that the conduct could be categorised as professional misconduct and that, in any event, the conduct of the respondent should warrant an order striking her name from the roll.

The evidence before the Court consisted of a statement of agreed facts and a number of affidavits read by the applicant. The applicant categorised the conduct of the respondent under the following headings, namely breaches of the Rules of Practice 1994 ('the Rules'), lack of candour, neglect and/or delay, failure to supervise employees, overcharging and general matters."

The respondent was present in Court throughout the proceedings, and in particular when her counsel stated the written facts were agreed. She did not dispute what he said.

4 The application for leave to re-open arose out of a matter put specifically by counsel for the respondent in his submissions in the initial proceedings. He said:

"My instructions also are that - and - that they have not been - this is the first time in which Ms Scott has been subject to Law Society or regulatory investigation and complaint. I asked her this question specifically and she instructs me that in Queensland there were a couple of occasions when clients wrote letters, or where she got letters from the Law Society. She instructs me they were dealt with at that level. So my instructions are, and I don't think it's - I don't think my colleagues put it on any other basis - this is not a case where, if I can put it in the vernacular, or the criminal vernacular, there are prior convictions."

5 On the resumed hearing, the applicant read an affidavit of Josephine Gabriella Stone, the Director of Professional Standards of the Law Society of the Northern Territory ("LSNT"), sworn 27 June 2007. The respondent did not seek to cross-examine Ms Stone. The respondent read an affidavit she swore on 20 July 2007. The applicant gave notice it wished to cross-examine her upon that affidavit and this took place.

6 Dealing firstly with the affidavit material without reference to that cross-examination, the affidavit material showed that the respondent commenced employment as an articled clerk with a Darwin legal firm about November 1989. She remained as an articled clerk for six months, but then suspended her articles to accommodate the birth and care of her daughter. She resumed her articles about May 1991 and was admitted to practice in the Northern Territory on 2 December 1991 (the Court's reasons of 25 May 2007 show the date of admission as 4 November 1990 based on material supplied by the applicant with which the respondent then agreed). She was issued with a restricted practising certificate in January 1992, which was renewed on 1 October 1992.

7 In about April 1992, the respondent's marriage broke down and she moved from the family home. She moved on two further occasions prior to moving to Tasmania in late 1993. At some stage towards the end of 1992, the firm by whom the respondent was employed ceased its operations and the respondent did not then obtain alternative employment.

8 The respondent made application to be admitted to practice in Tasmania. Material before the Court in the initial proceedings disclosed the respondent was admitted to practice in Tasmania on 7 February 1994. The respondent was obliged to obtain what is called a Certificate of Fitness from the LSNT for the purpose of her admission in this State. The respondent telephoned the LSNT and spoke to the then executive officer, Mr Campbell, in either December 1993 or January 1994 to request the requisite certificate. The respondent's recollection was that Mr Campbell told her her request would need to be in writing, accompanied by the appropriate fee, and that he made no mention of any complaint against her.

9 The minutes of a meeting of the Council of the LSNT held 27 January 1994 contained an entry under the heading "Executive Officer's Report", and a written report with the same heading was attached to the minutes. The separate but attached report of the executive officer contained an entry in the following terms under the heading "Complaints":

Ms Janet Scott, an ex-employee of Andrew Rogerson, recently telephone me requesting a Certificate of Fitness as she wished to be admitted in Tasmania.

I refused as there was an outstanding complaint which we could not follow up as Ms Scott had left the Territory and failed to advise the Society of her new address.

The complaint was referred to the President as Mr Gardner is currently on leave."

Mr Henwood referred the complaint to Council for a decision. Mr Henwood explained circumstances of the complaint against Ms Scott which involved significant incompetence and recommended that there be a finding of unprofessional conduct and the practitioner be admonished under Section 47 2(c)."

10 That recommendation was accepted by the Council. As a consequence of that meeting, Mr Campbell wrote to the respondent by letter dated 28 Janury1994 addressed to her at the Hobart legal firm at which she was then working. The terms of the letter were as follows:

"28 January 1994

CONFIDENTIAL

Ms J M Scott

C/- Ms Anita Betts

77 Collins Street

HOBART TAS 7000

Dear Ms Scott,

Re: Complaint by B F Miller

The Council of the Law Society considered the above complaint against you at its meeting on 28 January 1994.

Council found the complaint proven and pursuant to Section 47 (1) (c) decided that the matter could be adequately dealt with by admonishing you.

Yours faithfully,

(signed)

JIM F CAMPBELL

Executive Officer"

11 The respondent said in her affidavit that at the time she instructed her counsel prior to his statements to the Court on 30 April 2007, she had no recollection of any disciplinary complaint against her in the Northern Territory. However, after being told late on 31 May 2007 of the information which was ultimately to be put in Ms Stone's affidavit, she recalled receiving a letter from the Society in that State "in terms of Annexure 'A' to the affidavit of Josephine Gabriella Stone sworn 27 June 2007". She said she also had a vague memory of receiving that letter at the office of Anita Betts. She said:

"I can only conclude that at the time I assumed the conduct alleged was on the lower end of the scale and that as I was busy working with a young child, and the matter appeared finalised I made no further enquiry."

The respondent said she did not receive a copy of the complaint or any notice of it prior to the January 1994 letter.

12 It is regrettable that the cross-examination of the respondent produced responses which did not assist her in any way, and demonstrated to the Court that she has little, or no, insight into her responsibilities as an officer of this Court, and generally as a practitioner. This view is all the more regrettable because the respondent had already had findings of unprofessional conduct and professional misconduct against her in these proceedings where one of the issues was lack of candour, and yet her approach to the issue of candour remained what I can perhaps only describe as cavalier.

13 Cross-examination revealed that the respondent received a Certificate of Fitness from the LSNT some time after she received the letter from Mr Campbell of 28 January. She was subsequently admitted and did not disclose, for the purpose of her admission, anything about the Northern Territory complaint. The following exchange occurred between counsel and the respondent on 20 August 2007 about this:

"Did you tell the Court that you'd been admonished? ... Which Court?

This Court, on your admission, did you disclose to the Court that you'd recently been admonished by the Northern Territory Law Society? ... No, I just handed my certificate of fitness before the Court and applied for admission.

Does that fulfil your obligation of candour, Ms Scott? ... Well as far as I know.

What, you don't tell - ... I - I've never been advised that I have a duty to the Court to advise of any previous complaints where I've been discharged or admonished.

No, no, Ms Scott, you're a practitioner of this Court - ... Mm.

- you've told the Court this morning that you understand the obligation of candour? ... Mm.

Did you disclose to the Court, on your admission, that you had recently been admonished by the Northern Territory Law Society? ... No, and I wasn't required to either.

And you consider that fulfilled your obligation of candour? ... Totally.

Is that what you think? ... Pardon?

Is that what you think? ... Are you trying to tell me that every practitioner that applies for admission in a jurisdiction has to disclose to the Court every single complaint he's had against him which has been dismissed.

I'm not trying to tell you - ... That's what you're saying.

This wasn't dismissed, Ms Scott, you were admonished? ... Or admonishment, dismissed, admonished.

So it doesn't matter that - an admonition - ... No, it doesn't matter because it's not a matter that's going to prevent my admission.

An admonition is not something that is of the least bit important to you, is that - ... Pardon?

Admonition, which is disciplinary action against you - ... Admonished?

Yeah ... Well my interpretation of that's discharged.

I see. Now you say in paragraph 17 of your affidavit:

When I provided instructions to Mr Barnes of any previous disciplinary investigations I had completely forgotten about the Northern Territory admonishment. I did remember the Queensland complaint because I had notice of it and responded to it.

... That's right.

The fact of the matter is, isn't it, that in terms of the Queensland matter the complaint against you was dismissed? ... That's right.

Yes, so that's not a matter in respect of which any disciplinary action was taken against you? ... Nor is as far - no, it's my understanding of complaints, they're sent to the Law Society, the practitioner has an opportunity to respond, the complainant has an opportunity to respond to the practitioner's response and then it's dealt with.

Mm. ... I wouldn't consider that to be disciplinary action.

I see. ... It's an internal investigation by the Law Society.

That's correct. ... And they then decide whether disciplinary action should be taken.

And in terms of the Queensland - the complaints in Queensland against you were dismissed or not proceeded with after the - ... The complaint, yes.

After the investigation? ... Yes.

Mm. But not so the Northern Territory matter? ... How not?

You were admonished? ... Yes.

Yes. ... It was an internal investigation by the Law Society.

Yes. ... There were no disciplinary proceedings.

And they admonished you? ... Yes.

And that's disciplinary action, you agree with that, don't you, admonishing someone is discipline, it's telling you not to do it again? ... Yes, I - yeah, I suppose so.

Yes. Now when you got this letter the 28th of January, it said that the Council of the Law Society considered the above complaint against you, so you knew that there was - ... Right.

- there'd been a complaint from a person, B F Miller - do you remember B F Miller? ... When - no, no, memory at all, have no idea who it is, no idea what the complaint was about -

Okay. ... - never seen it.

But somebody had complained against you, you got this letter on - ... Apparently.

- the 28th of - or soon after the 28th -... Yes, that's the first -

- of January. ... - knowledge I had of that complaint.

Yeah, and that was before your admission to the Court because you got it at about the time of your certificate of fitness arriving? ... Well shortly before, probably.

Yeah. ... Yeah.

Yeah. So you found out that there was a complaint? ... When I received that letter, yes.

And it was by a person called Miller?... Mm hm.

Yes. And you don't remember who Mr Miller or Mrs Miller was, or Ms Miller? ... No, no.

But you certainly had written confirmation of a complaint. And then they said, Council, that's Council of the Northern Territory Law Society, found the complaint proven. ... Right.

So you'd found - you'd then found out by this letter, not only had there been a complaint against you but it had been proved, it had been found to be proved. ... Mm hm.

So that it was correct, so far as the Northern Territory Law Society were concerned? ... Yeah, and because they'd admonished me I didn't think of taking it any further because -

Yes, we'll come to that. ... I didn't know anything about it.

So we knew at the time we got this letter that there'd been a complaint and that it had been proved - it had been found proved - yes? ... Mm.

Yes. Now it's fundamental, isn't it -... Presume so.

- that before a complaint is proved that a person should be given notice? ... Myself you mean?

Yes. ... Yes, that's right, that's why I'm in absolute -

And an opportunity to be heard? ... That's right.

Yes. ... And that never happened.

No. But did you make any -... That's why I hadn't -

Did you make any protest to the Northern Territory Law Society about this? ... No, because I received the letter saying there was a complaint, you've been admonished, and I thought oh, oh well, it doesn't matter because it's not going to affect my admission, so I just didn't - didn't think of it any further."

14 There followed after that exchange some questioning about the nature of the complaint made against the respondent in the Northern Territory and why the respondent did not disclose it upon admission in this State. The respondent said she did not know the nature of the complaint and it appears at no stage made any enquiry after receiving the Society's letter late in January 1994 about the details. She denied she did not disclose it because she knew it might have affected her admission.

15 Other issues were raised in cross-examination. The first related to the manner in which the respondent had conducted her case. She told the Court she did not rely on any affidavit material "to avoid a full blown hearing." It was put to her that she did so to avoid being cross-examined and she said, no, that it was to avoid bringing all the complainants before the Court and putting them into the witness box. It was also because financially she could not afford it. The following exchange then occurred between the respondent and counsel:

"Those are the reasons why you elected not to make any personal explanation to -... No, I wanted my material to be read and put before the Court, but it - in the situation it was - it seemed to be the best way to deal with it.

...

You didn't have to - I'm sorry, I'll put this a different way. There wasn't need for any of the Law Society's witnesses to be called to give evidence to Court, you could have allowed their affidavit material in, as you did -... Yes.

- and then put in affidavit material yourself and taken the witness box - that could have happened, couldn't it? ... I suppose it could have, yes.

Yes. ... But I was following advice from a counsel.

Yes. ... In relation to that.

And the net effect of it, Ms Scott, not - that is making any explanation to the Court, as one of its officers, not making any explanation, was that you didn't have to get into the witness box? ... I wanted to get into the witness box -

I see. ...- but I was advised not to.

And that would have exposed you to significant cross examination -... Mm.

- particularly about your lack of probity towards your clients, wouldn't it? ... It would have exposed me to significant cross examination but I would have been quite happy for that."

16 The next issue raised by counsel with the respondent related to one of the client complaints dealt with in the initial proceedings. The following exchange occurred:

"Yes. You'll recall that I put to you that her Honour found that in the Ford matter you had represented to your client that transfer documents were with the Land Titles Office when they were not, do you recall that finding? ... That's not my position, that may be the finding of the Court but the Court only read the papers from the Law Society. If my material had been put been put before the Court I had an - I don't - didn't agree, that's not true, I didn't do that. She misunderstood me, that client.

Oh did she? ... Yes

So - ... Se confused a transfer document with a priority notice.

I see. So that's an explanation you could've put to the Court on the last occasion? ... Yes, I could have.

But you chose not to? ... Well I believed in the first instance that my affidavit material would be put before the Court and I agreed - we chose the path of me not giving evidence following advice from my lawyer and - to expedite the matter in the quickest way possible, so I put my faith basically in the Court without having any of my material placed before the Court, that's right.

I see. So as result of that the Court didn't hear an explanation - ... That's right.

- from one of its officers. You're an Officer of the Court? ... That's right.

...

In a disciplinary action? ... Yeah, that's right.

The Court didn't hear from you? ... That's right.

And you were prepared on advice or not, you were prepared to make an admission to facts which were contained in the originating application? ... Yes, the statement of agreed facts.

...

And you say that they were false? ... No.

You say that the statement of agreed facts was not correct? ... No, I'm not saying that.

Well let me read to you paragraph 70, which you admitted:

On or about the 3rd of August 2004 the respondent represented to Mrs Forward to the effect that the necessary documentation in respect to the purchase was at the Lands Title's Office, when the respondent knew or ought to have known that the documents were not at that office.

You made that admission? ... I don't remember making that admission because -

Oh come on Ms Scott - ... I don't, to be honest -

- no - ... - I haven't even seen the -

No, no - ... - the statement of agreed facts before the Court.

I beg your pardon? ... I haven't seen the final document that was placed before the Court.

So is the position this, that - ... I provided a statement of agreed facts - gave it to my lawyer and subsequently they liaised with you and I assume it's been before - put before the Court in the material.

So you're putting to this Court today that you made admissions of fact in a disciplinary proceeding against you - ... Mm.

- an officer of the Court - ... Mm.

- when you didn't know whether or not - well you didn't know what those admissions were? ... No, that's not true.

Is that what you're saying? ... No, that's not what I'm saying, not at all.

Let me read this to you again, paragraph 70 - ... Can you show me - would you mind showing me the statement of agreed facts and I may be able to -

...

MR O'FARRELL: (Resuming) Paragraph 70. ... That's the Law Society's material, where is my statement to the admissions in relation to that, there's - I didn't agree to all of this.

Just look at paragraph 70, will you - ... Yes.

- and just listen to the questions that are being put to you. Have you got paragraph 70? ... Mm hm.

Have you read that? ... Mm hm.

Now that was an admission of fact that was made by your lawyer in the proceedings when they were last before her Honour? ... Is it?

Are you saying you don't know? ... I totally am, because it's not true. If I - I wouldn't have agreed to that.

Paragraph 71? ... Because if - you're testing my memory now but I do remember my affidavit material and Mrs Ford and the circumstances of the case and she was totally confused with what I was saying, she misunderstood.

No, no, no, no. ... I didn't lie to the client.

No, no, no, no, no, Ms Scott, just listen to the question. Did you make those admissions to this Court on the last occasion? ... In relation to paragraph 70?

Yes, and 71? ... Not that I'm aware of, no.

I see. So if Mr Barnes had made those admissions what are you saying, that he was entirely mistaken and ought not to have made them? ... Well from my memory he didn't even mention the statement of agreed facts in Court so when you're saying if Mr Barnes made those admissions in what respect are you saying that?

Well -... Because I don't remember him even referring to that at the hearing.

I don't have a transcript - ... He didn't.

- of the proceedings, your Honour, but I suggest to you, Ms Scott, that the proceedings were properly referred to in her Honour's decision of the 25th May 2007 when her Honour says at paragraph 3:

The evidence before the Court consisted of a statement of agreed facts and a number of affidavits read by the applicant. The applicant categorised the conduct of the respondents under the following headings, namely the breach of practice, etcetera.

So these were - that originating application that's before you with the annexure to it were the agreed facts that were before the Court? ... Right, do you have a document saying that I've agreed to paragraph 70, do you?

Well it's got - you were in Court and you'll recall the way the case was put before the Court by Mr Barnes and it was on the basis that those facts were agreed? ... And there was no discussion of the fact - no, not all the facts were agreed. No, we exchanged a document of agreed facts, I agreed, disagreed with each matter in your material and to my memory I don't remember agreeing to that because from my memory that's not the case. I did not tell my client the documents were at the Land Titles Office when they weren't.

I see. And you'll say the same to the Court about paragraph 71 then? ... 71?

...

Yes. ... I would, she was totally - totally didn't understand the process and she was confused. I didn't misrepresent anything to my clients, they had - she had trouble - difficulty understanding the procedure and the documents.

So Ms Scott, if it's the case that when Mr Barnes was before the Court last time that he made those admissions on your behalf are you saying that he was not authorised to do so? ... No, I do not remember Mr Barnes referring to the factual issues in this case at all at the hearing. I do recall giving him a statement of agreed facts in relation to each of these allegations that were handed to you by him, some of them were agreed, I think it was roughly half or a little bit over half of the allegations, probably less actually, and some weren't agreed. Now I can't - if you show me the document, and maybe you could refer to it yourself, and you will be able to tell whether I agreed or disagreed to paragraphs 70 and 71.

Ms Scott - ... From my memory I didn't.

So if - just listen to the question, please. If Mr Barnes had made those admissions on your behalf at the hearing before her Honour then they're not admissions that you understood him to be authorised to make? ... He didn't make those admissions.

And he didn't come back to you after he had met with Mr McKee and myself to talk to you about what admissions had been agreed to and what had not? ... No.

And you allowed the proceedings, you sat here in Court and allowed the proceedings, including all of the affidavit material against you filed by the Law Society to go into evidence? ... Yes.

Without objection? ... Yes.

So that that was the only evidence before the Court? ... Well I was of the opinion that the statement of agreed facts was -

It was the only evidence before the Court? ... Including the statement of agreed facts?

Yes. ... I believe so, yes.

Yes. And notwithstanding that that there was affidavit material from Mrs Ford, amongst others, who you now say you would've contradicted but - ... Yes, yes.

- but you didn't instruct your counsel to file any - or read into evidence any of the contradictory material? ... Well it was agreed that none of my affidavits in response would be put into evidence, so nothing - none of it came before the Court.

...

Do you say, as an officer of the Court, that that - ... No, I would very much -

- fulfils your obligation of candour? ... Well it was a tactical manoeuvre instructed by counsel, this is how we're going to handle the matter, none of your material is going to be put before the Court so we don't have to lead any evidence.

Well didn't you say to your counsel, hang on a second, I have an obligation of candour, I have to put this material to you - to the Court? ... It was filed with the Court, okay, but whether it was read into evidence at a hearing is another matter, and that's totally my - my discretion whether I choose to do that or not, and -

Oh I, see. ... - I was -

Is that at your discretion in disciplinary action when you're before the Court, is that - ... Pardon?

- position? ... Well apparently, otherwise I would have been ordered into the witness box to explain myself, wouldn't I, but I elected not to."

17 There can be no doubt on the evidence now before the Court that the respondent misled the Court on 30 April 2007 as a consequence of her instructions to her counsel about her status in relation to disciplinary matters in other States. As at 30 April 2007, when counsel's statement was made to this Court, the respondent had been the subject of a complaint to the LSNT in 1993, that complaint involved "significant incompetence", the Society had found the complaint proved, the Society had made a finding of unprofessional conduct and agreed to admonish the respondent, and the respondent had received a letter from the Society advising her of that.

18 The issue is the circumstances which led to the Court being misled in the manner it was and the respondent's role in them. The respondent's position is that, at the time she gave her instructions to her counsel, she had no memory of the matters which occurred in 1994 and that hence her misleading of the Court was, in effect, accidental. There was no active dishonesty, no recklessness or carelessness, simply a lack of memory. The respondent has denied lying to the Court. In those circumstances this matter is not such as to warrant a reconsideration of the Court's position as to penalty beyond that indicated by reasons published 25 May 2007.

19 What therefore were the circumstances in which the Court was misled? The starting point, in a sense, is the respondent's failure to disclose the admonishment by the LSNT when she was admitted to practice in Tasmania. In his text Lawyers' Professional Responsibility, Professor G E Dal Pont says under the heading "Non-disclosure of prior impropriety upon admission" at 32:

"In any case, whether or not specified by admission rules, or contained in an affidavit or declaration, courts in recent times have emphasised on more than one occasion the requirement at general law that an applicant for admission be entirely candid with the court regarding anything in her or his prior behaviour or experience that could impact negatively on her or his good fame and character. This candour is crucial because of the heavy reliance the court places on an applicant's assertions, and explains why applicants should err on the side of 'excessive disclosure'. In Re Del Castillo the Australian Capital Territory Full Court made the point as follows [1998] ACTSC 131; (1998) 136 ACTR 1 at 7):

[A]pplicants have a duty of frankness. An attitude that begrudges information which may raise eyebrows, whether logically it ought to raise them, is not consistent with such an attitude. It is common throughout Australia for applicants for admission to legal practice to disclose quite minor charges. Those standards are to be encouraged. Applicants need not fear that the court will seek to substitute a demand for perfection for the requirement that fitness to practise be demonstrated by showing good fame and character.

By making candid and comprehensive disclosure of relevant information an applicant demonstrates a proper perception of her or his duty, and thereby seeks to demonstrate good character (Thomas v Legal Practitioners Admission Board [2004] QCA 407; [2005] 1 Qd R 331 at 334 per de Jersey CJ).

It follows that a failure to disclose certain conduct that should have been disclosed has the capacity to prevent admission even though the conduct, had it been fully and candidly disclosed, would not necessarily have prevented admission. In such a case, the non-disclosure is the main basis for substantiating a lack of good fame and character, for it evidences a lack of the candour and honesty the court expects of a practising lawyer (Re Davis [1947] HCA 53; (1947) 75 CLR 409 at 426 per Dixon J). It serves to belie an applicant's assertion that he or she has restored good fame and character by subsequent meritorious behaviour, especially given that candour to the court is an essential characteristic of all lawyers: see [17.10]. For example, in Thomas v Legal Practitioners Admission Board [2004] QCA 407; [2005] 1 Qd R 331 the appellant had not fully disclosed his misappropriation of funds from an employer. That the offences occurred seven years earlier when the appellant was 20 years old and were explainable in part by financial pressure, that the applicant had pleaded guilty and repaid the monies stolen, and that he had since been gainfully employed in a business involving the handling of money, did not, according to the court, outweigh his lack of candour in disclosure. In finding that appellant not fit and proper to be in practice, de Jersey CJ reasoned as follows ([2005] 1 Qd R 331 at 335):

Although the criminal offences were committed some years ago, the manner of the applicant's disclosure of them constitutes very recent evidence of his unsuitability to practise, for want of appreciation of the need to arm the Board with all the information relevant to the performance of its publicly important role. Unless some further significant feature intrudes, that the appellant committed those offences should not forever bar him from taking steps prerequisite to admission to the legal profession. He was on the way to demonstrating fitness, nevertheless. It is, however, the intervention of this new feature, the absence of candid and forthright disclosure, which has set back that progression. High standards of probity and openness are expected of practitioners and those who seek to be practitioners ... In this case those standards were not met.

The court will, though, investigate the reason(s) for the lack of full disclosure. If convinced that the applicant's motivation was not one of secrecy, but an oversight or genuine mistake, the court may be more inclined to downplay its seriousness. That the applicant has acted in accordance with advice from an informed person on not making a particular disclosure may be relevant, but it is unlikely to be decisive in this regard (see XY v Board of Examiners [2005] VSC 250)."

He also says at 30 under the heading "Previous improper conduct in the course of a profession or employment":

"That an applicant has previously been disciplined whilst practising law in another jurisdiction is highly relevant to her or his good fame and character in an application for admission in a new jurisdiction (Re Evatt (1987) 92 FLR 380)."

There can, in my view, be no doubt that the respondent had an obligation to disclose to this Court in the course of her application for admission, her admonishment by the LSNT. That obligation was not overtaken, as counsel for the respondent seemed to suggest by the Certificate of Fitness the LSNT issued. The respondent cannot be excused for this failure by the suggestion that she was young, inexperienced and a busy working mother. She had already been admitted to practice in other courts and her training should already have instilled in her the knowledge that as an admitted practitioner she had duties as an officer of the court in which she was admitted. To suggest that duty was less because she was seeking admission in another State and she was busy and inexperienced is not acceptable.

20 It may very well have been, as the respondent's counsel suggested, that this Court would have admitted the respondent in any event. That, with respect, is not the point. The issue in these proceedings is the respondent's lack of candour. There is no doubt she demonstrated that in 1994 in failing to disclose to this Court the complaint in the Northern Territory and its aftermath which had to have been known to her at the time of her application for admission.

21 That then leads to the manner in which the initial proceedings in this matter were conducted. This may not have carried a great deal of weight, save for the manner in which the respondent conducted herself under cross-examination on 20 August 2007. In the initial proceedings, the respondent read no affidavit and gave no evidence. As a consequence she did not put before the Court any explanation for the behaviour the subject of a number of client complaints, nor was she able to be questioned about any aspect of the matters by counsel for the applicant. Her evidence was that, while she wished to tell the Court matters, she had been advised not to. She described this as a "tactical manoeuvre".

22 The respondent's counsel, in the absence of any evidence on behalf of the respondent, stated both orally and in writing that the statement of agreed facts put forward by the applicant was accepted by the respondent. His submissions, while containing some limited factual material not the subject of evidence, did not extend to any comment to the effect that the respondent did not accept any part of the agreed facts. The respondent was present in Court throughout counsel's submissions. She made no attempt to contradict him or cavil with the position as he put it. In her evidence on 20 August 2007, however, the respondent said she did not accept all of the facts in the statement of agreed facts and she did not hear her counsel agree to them. She agreed that the Court had made findings based on them, but said that the Court only heard what the applicant put before it. Her evidence about that and the evidence she then gave in an attempt to refute one of the client complaints against her, in the context that she had taken no step to refute the allegation initially, and findings had already been made as to her conduct in relation to the complaint, can only be described as surreal. It was indeed difficult to understand the thought processes of the respondent such that prompted her to give the evidence she did.

23 The respondent's behaviour demonstrated a complete lack of understanding of the process which the Court was undertaking, the issues it was determining, and perhaps how serious her position was. I find it impossible, in light of the respondent's answers under cross-examination, to accept that she had no memory at all of the Northern Territory complaint when she instructed Mr Barns. She was specifically asked by him about any relevant matters in other States. She was able to recall a client complaint in Queensland which she was required to respond to in writing to the relevant Law Society and which was dismissed, and yet was unable to remember one which resulted in an investigation by the LSNT, which was found proved by that Society and which resulted in a formal letter in which she was admonished.

24 I am satisfied, in the circumstances, that the respondent deliberately misled the Court in failing to disclose the Northern Territory matter. That the complaint may have been relatively minor and resulted in an admonishment and no more significant penalty is irrelevant. That 13 years has passed since the matter was dealt with is irrelevant. It is the attitude which the respondent has demonstrated by her actions towards her role as an officer of this Court in 2007 which is relevant. I used the word "cavalier" earlier in these reasons and it is apposite here.

25 In my reasons published 25 May 2007, I set out the law relating to this Court's role in dealing with a complaint pursuant to the Legal Profession Act 1993, and in particular the nature of conduct which might constitute professional misconduct and unprofessional conduct and the purpose of any orders of the Court. I do not seek to repeat that material. The question which now arises is, how the conduct of the respondent, in misleading the Court, should be characterised and what order, if it is to be different from those proposed in my reasons in May 2007, should be made?

26 The conduct of the respondent in misleading the Court, in my view, amounts to professional misconduct. I have reached that conclusion that the respondent's conduct falls within the more serious category of conduct principally because of the circumstances in which the respondent acted, namely in the context of disciplinary proceedings.

27 What then is the appropriate order? The respondent has demonstrated by her conduct since the proceedings on 30 April 2007, most particularly before the Court on 20 August 2007, a complete lack of insight into what is expected of a practitioner of this Court and what constitutes candour as far as the Court is concerned. It would have been expected, given the nature of the proceedings up to 20 August, that the respondent would appreciate what had been happening and would have sought and followed advice. Her statements in evidence showed a lack of understanding as to what had occurred and a lack of appreciation of the stage proceedings had reached. The Court can have absolutely no confidence in the circumstances that, were the respondent permitted to practice on any basis, she would appreciate her obligations as a practitioner such that members of the public with whom she would deal would be protected from any wrongdoing.

28 In the circumstances, the order of the Court is that the name of the respondent be removed from the roll of legal practitioners.