Liveri, Re [2006] QCA 152 (12 May 2006)

[2] This application, filed on 11 April 2006, is the second such application brought by the applicant. She filed the first on 14 October 2005. The Board resolved to oppose that application. When it came on for hearing before the Court of Appeal, the Court remitted determination of questions of fact to a Judge of the Trial Division. When the remitted hearing came on before Atkinson J on 25 November 2005, and after the applicant had given some evidence in chief (and following the applicant's responses to some questions from the Judge), Her Honour administered a warning in relation to self-incrimination. The matter was stood down at 10.29am so that the applicant might take advice, and the applicant later, at 10.53am that day, withdrew the application. Her Honour then informed the applicant she might renew her application, while saying that in that event, she would have to be "absolutely candid".

[3] At a yet earlier stage, the applicant had on 29 November 2004 applied to the Board, under s 36 of the Legal Profession Act 2004 (Qld), for a declaration of her suitability for admission. When making that application, she disclosed to the Board the matter of present focus, findings of academic misconduct made against her by James Cook University, communicated on 16 December 2002 and 23 March 2003. While the Board initially referred that application to the Court of Appeal for direction, the Board subsequently resolved not to proceed with the referral, and itself determined to refuse the declaration sought. The applicant did not appeal against that refusal.

[4] The applicant's then Counsel, in his submission to the Board of 11 April 2005, said that the applicant "accepts the findings of academic misconduct made against her by James Cook University", and that is her present position. It is necessary to examine those findings in some detail.

[5] The first finding was communicated to the applicant by letter of 16 December 2002. It concerned an assignment submitted by the applicant in the second semester, that year, in relation to the subject the Law of Trusts. The allegation was that the applicant submitted, as her own work, with only minor adjustment, an article published by Professor Derek Davies of St Catherine's College, Oxford, an Adjunct Professor of Law at Bond University. The article had been published on the Internet.

[6] As found by the University's delegate, the only differences between the article and the assignment were "the omission of two paragraphs and a heading, and the alteration of the first sentence of the next paragraph following the omission, the effect of which was to make the paragraph appear to flow on from the previous included paragraph. The other obvious difference was the title and ascription of authorship."

[7] The applicant had claimed, indeed had sworn on oath, that the submission of the article as the assignment was inadvertent. The University's delegate rejected that claim, saying:

"I find it difficult to believe that at no time between completing the assignment and finally posting it, did Ms Liveri even glance at the printed assignment. I also find it difficult to believe that over the course of a weekend, including repeated attempts to fax the assignment, that she did not notice her mistake."

[8] The delegate made the following additional findings:

"I do not believe that Ms Liveri did not intend to submit Professor Davies' article as her own. The fact that the document was a single word document (and not an html file), containing as page one a cover sheet specifically created for the purpose and containing her own name as author, the fact that where a couple of paragraphs had been omitted the sentence immediately following the omitted passage had been altered so that it now appeared to flow on from the previous paragraph, and the fact that all references to its original authorship and publication had been removed, point to the conclusion that Ms Liveri's assertions are false."

[9] Another finding comes close to a finding of further dishonesty on the part of the applicant. That emerges from the following passage:

"On Tuesday 10th December, four days after notification of the allegation, Ms Liveri requested that she be allowed to submit her 'original' assignment, as proof of her claim that she had inadvertently submitted the wrong document as her assignment. I indicated on that day that I would not accept this as proof of the claim because she could have written it in the four days since learning of the allegation. I did, however, indicate that Ms Liveri could email it to me and that I would take it into account. Ms Liveri emailed that 'assignment' to me on 10th December 2002. I requested Ms Lisa Westcott to examine the 'assignment'. Ms Westcott shared the teaching of LA3014 Law of Trusts with Mr Middleton. Ms Westcott found that this 'assignment' was of very poor standard. I believe that this 'assignment' could easily have been written by Ms Liveri after she had been notified of the allegation of misconduct. I do not believe that Ms Liveri would have submitted that assignment for assessment in her Law of Trusts subject, given its poor standard, and particularly given that the assignment was optional and that students had had the entire semester to work on it."

[10] The delegate characterized the submission of the article as the assignment as "a blatant case of Academic Misconduct". That seems amply warranted.

[11] Following that finding, James Cook University reviewed other assignment work submitted by the applicant. That led to two further findings of academic misconduct, communicated to the applicant by letter of 23 March 2003. They concerned an Administrative Law assignment submitted in the year 2000 and a Law of the Sea assignment submitted in 2002.

[12] As to the former, the finding was that the applicant quoted substantial commentary by Professor Sykes without attribution; and as to the latter, that she quoted verbatim from a governmental publication without acknowledgement. For the Law of the Sea assignment, she was denied all marks, and because of the Administrative Law plagiarism, her overall result in that subject was downgraded from a credit to a pass.

[13] The findings had substantial adverse consequence for the applicant. Because of a view that she had misled them over the issue of academic misconduct, the law firm in Townsville which had employed her suspended her services. Then on 28 September 2004, the Legal Practitioners Admissions Board in New South Wales refused her application for admission, on the basis that it could not be satisfied of her fitness for practice. That Board provided these particulars:

"(i) plagiarism as disclosed in the first and second allegations [referring to the Administrative Law and Law of the Sea assignments];

(ii) lack of insight into the nature and gravity of the findings against her in relation to the first and second allegation;

(iii) insufficient explanation for the third incident [the Law of Trusts assignment];

(iv) concerns as to the conduct of the Applicant in relation to the third incident;

(v) concerns as to the frankness of the disclosure of the Applicant in relation to the third incident."

[14] Notwithstanding the findings, and their apparently strong foundation, the applicant for a long time rejected them. The applicant supported her application to the Board for a declaration with a statement dated 2 December 2004, in which she maintained the contention that she submitted the Trusts article as the result of inadvertence. Nowhere in that seven page, 47 paragraph, statement is there any admission of her misconduct, or acknowledgement of its significance. In an affidavit sworn the same day, she maintained the claim that the Trusts article was submitted by mistake. Again, while the findings were disclosed, there was no acceptance of them or of their significance. Acceptance of the findings did not come until her Counsel's submission to the Board of 11 April 2005.

[15] With her current application filed on 11 April 2006, the applicant said, in part of her accompanying "statement of suitability":

"In December 2002 while a student at JCU studying my Undergraduate Degree in Law and Commerce, the JCU Law School found me guilty of three counts of academic misconduct in respect of essays I submitted in the following subjects: Law of Trusts, Administrative Law and Law of the Sea.

I admit that I copied portions of the work and that I submitted those portions of the work as my own and I take full responsibility for those actions.

While I was under external pressures at the time, I fully realise that these personal circumstances neither justify nor excuse this dishonest behaviour.

I realise that these acts of dishonesty bear upon my fitness to be admitted as a legal practitioner."

[16] Mr Daubney SC, who appeared for the Board, contrasted that appropriate acknowledgement with the sparseness of what the applicant said in her statement of suitability filed in support of the first application of 14 October 2005:

"In December 2002 I was a student at JCU studying my Undergraduate Degree in Law and Commerce. At this time the JCU Law School leveled [sic] three instances of academic misconduct against me as a result of essays I submitted in the following subjects: Law of Trusts, Administrative Law and Law of the Sea."

It is significant to note that in April 2005, her Counsel had confirmed to the Board her acceptance of the findings, yet in October that year, one sees the applicant speaking in terms of the university "levelling" charges against her. It is also of some significance that when giving evidence on that issue, the applicant had to be warned by Atkinson J as recently as November 2005.

[17] Mr Daubney submitted the Court should conclude the applicant lacked insight into the unacceptability of her conduct and its serious consequences. He pointed among other things to the lack of explanation for her spare approach in the first application, in which her disclosure was completely inadequate.

[18] On the other hand, Mr Morris QC, who appeared for the applicant, pointed to the age of the instances of misconduct (committed in the years 2000 and 2002), the circumstance that the applicant has since completed two legal practice training courses, her current legally oriented employment, and the circumstance that she has the benefit of favourable references.

[19] Mr Morris also emphasized the fact that the misconduct occurred before this Court first drew attention in plain terms to the potential impact upon applications for admission of established academic dishonesty, though it should go without saying that an applicant seeking admission to the legal profession should not have to be warned about the unacceptability of cheating in the course of securing the pre-requisite academic qualification. It is the gravity of this misconduct, in the context of subsequent events, which means the Court cannot be satisfied now of the applicant's fitness for admission.

[20] There is no need to deal with other submissions made by Mr Morris. As the prime concern is with the fitness of the applicant, comparison with other persons and other situations is not particularly helpful.

[21] The findings against the respondent involve serious plagiarism, committed more than once. At relevant times, she was a person of mature years - 25 and 27 years old. Her unwillingness, subsequently, to acknowledge that misconduct, establishes a lack of genuine insight into its gravity and significance: for present purposes, where the Court is concerned with fitness to practise, that aspect is at least as significant as the academic dishonesty itself. It could not presently be concluded the applicant is fit for admission as a legal practitioner.

[22] What was said in Re AJG [2004] QCA 88; SC No 2015 of 2004, 15 March 2004 - which concerned a one-off incident of plagiarism - bears repetition, especially the last paragraph of the following extract:

"The Solicitors Board has not opposed his admission because the incident appeared to be a one-off aberration and, significantly, because 'the applicant was clearly experiencing significant external stressors of a financial and domestic nature at the time of the incident'.

He had lost his employment...and was experiencing stress and financial hardship. But as the Dean pointed out, his rational course was to seek an extension of time for the submission of the course work.

It is inappropriate that we should, without pause, accept as fit to practise an applicant who responds to stress by acting dishonestly to ensure his personal advancement...

Legal practitioners must exhibit a degree of integrity which engenders in the Court and in clients unquestioning confidence in the completely honest discharge of their professional commitments. Cheating in the academic course which leads to the qualification central to practice and at a time so close to the application for admission must preclude our presently being satisfied of this applicant's fitness."

[23] It may be that the applicant will be able subsequently to demonstrate fitness for admission. She may be well advised to seek counselling from senior practitioners, who may eventually find themselves able to confirm to the Court their conclusion that the applicant genuinely accepts the inappropriateness of her relevant conduct to date, and her true understanding and acceptance of the large ethical commitment to which she would, if admitted, be subject.

[24] If and when the application does again come before the Court, the Court will need to be persuaded on appropriately cogent material that a finding of fitness is warranted. The mere lapse of time would not, without more, in a case of this overall concern, warrant the Court's concluding that fitness has been demonstrated. It is especially the applicant's subsequent attitude to the established misconduct which warrants a circumspect approach.

[25] The appropriate order at this stage is that the application be adjourned to a date to be fixed, not to be re-listed for at least six months from today. There should be no dispensation with a need for re-advertisement.