McGirr & Anor v The Council of the Law Society of NSW

NCAT Occupational|2014-08-01

Introduction 1These proceedings concern an application by Matthew Thomas McGirr to be approved a lay associate of law practice Gilbert & Tobin under s 17(1) of the Legal Profession Act 2004 (NSW). For the reasons which follow that application is allowed. At the commencement of the hearing, Mr McGirr made an additional application for orders under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) that publication or broadcasting of any report of these proceedings be prohibited and that the publication of evidence or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal be prohibited. After we had reserved, Mr McGirr withdrew his application for those orders.

Procedural history of the matter before the Tribunal 2Mr McGirr's application was dated 27 June 2014 and filed in the Tribunal on that day. The application came before the Tribunal on 1 August 2014. At the commencement of the hearing, Mr Pierotti on behalf of the Council of the Law Society moved on an application filed by the Council on 21 July 2014 for an order that the Council be made a party to the proceedings. The basis of the application was that the Council was the appropriate body to assist the Tribunal on the application. 3In support of the application the Council relied on the affidavit of Anne-Marie Foord sworn 18 July 2014 which was admitted into evidence without objection. Ms Foord was not required for cross examination. Her evidence was that the Council had resolved on 17 July 2014 to bring the application under s 44(4) of the Civil and Administrative Tribunal Act for it to be made a party to the proceedings. There was no objection by Mr McGirr and we made the order sought. 4Mr Glass, appearing for Mr McGirr, then moved on an application filed with the Tribunal on 30 July 2014 for an order that the law practice Gilbert & Tobin be made a party to the proceedings. The ground for the application was that Gilbert & Tobin, being a law practice, sought to employ Mr McGirr as a lay associate. There being no objection by the Council we made that order. 5Mr Glass then sought to file in the Tribunal an application dated 31 July 2014 seeking orders: (1)That the publication or broadcasting of any report of these proceedings be prohibited; and (2)That the publication of evidence or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal be prohibited. 6There was no objection by the Council and leave was granted for the application to be filed. Mr McGirr's application was made under s 64 of the Civil and Administrative Tribunal Act. That section provides: "64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b)an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person." 7The grounds set out in the application were fourfold, namely: (1)That the evidence and documents lodged with the Tribunal or received in evidence by the Tribunal and any report of the proceedings are confidential in nature; (2)That the materials would become publicly available in circumstances where Mr McGirr is not obliged to disclose them to certain persons under the Criminal Records Act 1991 (NSW); (3)That public availability of the materials may cause prejudice to Mr McGirr's future employment prospects, even outside legal practice; (4)That public availability of the materials will cause Mr McGirr embarrassment and distress. 8There was no objection on behalf of the Council to the proposed orders. However, we were concerned to be informed of factors relevant to the exercise of the discretion on considering an application under s 64. This was particularly so in light of the operation of s 49(1) of the Civil and Administrative Tribunal Act which provides: "Hearings to be open to public (1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise." 9Mr Glass was not in a position at the time to assist the Tribunal with references to the relevant authorities going to the exercise of the discretion under s 64. Accordingly, directions were made: (1)That the Applicant file and serve any submissions on which he wished to rely on the application under s 64 of the Civil and Administrative Tribunal Act 2013 on or before 8 August 2014; (2)The Council of the Law Society of New South Wales file and serve any submissions in reply on or before 15 August 2014. 10At Mr McGirr's request, to prevent him from suffering any detriment pending final determination of the matter and there being no objection by the Council, we made an interim order under s 64(1) that: (1)Until further order (a)The publication or broadcasting of any report of these proceedings be prohibited; (b)The publication of evidence or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal be prohibited. 11At the conclusion of his case, the parties were not in a position to assist us with references to authorities relevant to our consideration of Mr McGirr's substantive application. We made orders that Mr McGirr file and serve his submissions on the substantive application on or before 8 August 2014 and the Council file and serve any submissions in reply on or before 15 August 2014. 12Submissions were received in the Registry from Mr McGirr on 8 August 2014 and the Council on 15 August 2014. 13After the receipt of submissions and whilst our decision was reserved the New South Wales Court of Appeal published its decision in Kocic v Commissioner of Police NSW Police Force [2014] NSWCA 368 (29 October 2014). By letter dated 17 November 2014, the Divisional Registrar directed the parties to file and serve any further submissions concerning the Applicant's application for an order under s 64 of the Civil and Administrative Tribunal Act within 14 days. 14On 26 November 2014 Mr McGirr wrote to the Registry saying as follows: "I refer to your letter of 17 November 2014 in relation to the Court of Appeal decision in Kocic v Commissioner of Police NSW Police Force ... After having considered the Court of Appeal decision, I withdraw my application for suppression and non-publication under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW)." 15Accordingly, the matter remaining for determination is Mr McGirr's substantive application under s 17 of the Legal Profession Act.

Evidence 16The evidence for Mr McGirr was comprised in the following affidavits: Affidavit of Isabelle Creagh sworn 14 July 2014; Affidavit of Peter Gregory Williams sworn 15 July 2014; Affidavit of Matthew Thomas McGirr sworn 16 July 2014; Affidavit of Stephen Daniel Glass sworn 16 July 2014. 17These affidavits were admitted into evidence without objection. The deponents were not required for cross examination. Upon the filing of written submissions, Mr McGirr sought to introduce a further affidavit sworn 8 August 2014 clarifying a relevant order of the District Court and correcting an error in his earlier affidavit. There was no objection by the Council to the filing of this affidavit which was also accepted into evidence. 18The evidence for the Council was comprised in the affidavit of Ms Foord sworn 18 July 2014 referred to above.

Relevant legislation 19Section 17 of the Legal Profession Act provides: 17 Associates who are disqualified or convicted persons (1) A law practice must not have a lay associate whom any principal or legal practitioner associate of the law practice knows to be: (a) a disqualified person, or (b) a person who has been convicted of a serious offence, unless the associate is approved by the relevant authority under subsection (3). (2) A contravention by a law practice of subsection (1) is capable of being unsatisfactory professional conduct or professional misconduct on the part of a principal or legal practitioner associate of the law practice involved in the contravention. (3) The "relevant authority" to approve a person for the purposes of subsection (1) is: (a) in the case of a disqualified person who is an associate of a barrister-the Bar Council, or (b)in the case of a disqualified person who is an associate of a solicitor-the Law Society Council, or (c) in the case of a person who has been convicted of a serious offence-the Tribunal. (4) If a Council decides to refuse an application by a person for approval under subsection (3) (a) or (b) or to grant the approval subject to conditions, the person may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision. (5) An approval under this section may be subject to specified conditions. (6) A disqualified person, or a person convicted of a serious offence, must not seek to become a lay associate of a law practice unless the person first informs the law practice of the disqualification or conviction. Maximum penalty: 100 penalty units. (7) Proceedings for an offence under subsection (6) may only be brought within 6 months after discovery of the offence by the law practice. (8) This section does not apply in circumstances prescribed by the regulations. (9) In this section: "lay associate" of a law practice has the same meaning as in section 7 (Terms relating to associates and principals of law practices), and includes a consultant to the law practice (however described) who: (a) is not an Australian legal practitioner, and (b) provides legal or related services to the law practice, other than services of a kind prescribed by the regulations." 20Relevantly, s 4 of the Legal Profession Act provides that; "... "serious offence" means an offence whether committed in or outside this jurisdiction that is: (a) an indictable offence against a law of the Commonwealth or any jurisdiction (whether or not the offence is or may be dealt with summarily), ..." 21Section 7 of the Legal Profession Act provides: "7 Terms relating to associates and principals of law practices (1) For the purposes of this Act, an "associate" of a law practice is: ... (c) an employee of, or person paid in connection with, the law practice who is not an Australian legal practitioner, or ... (2) For the purposes of this Act: ... (b) a "lay associate" of a law practice means an associate of the practice who is not an Australian legal practitioner." 22Section 11 of the Legal Profession Act provides: "11 References to convictions for offences (1) A reference in this Act to a conviction includes a finding of guilt, or the acceptance of a guilty plea, whether or not a conviction is recorded. (2) Without limiting subsection (1), a reference in this Act to the quashing of conviction for an offence includes a reference to the quashing of: (a) a finding of guilt in relation to the offence; or (b) the acceptance of a guilty plea in relation to the offence. (3) However, a reference in this Act to the quashing of a conviction for an offence does not include a reference to the quashing of a conviction where: (a) a finding of guilt in relation to the offence, or (b) the acceptance of a guilty plea in relation to the offence, remains unaffected."

Relevant background 23The background is set out in the application filed on 27 June 2014, as follows: "1.On or around 31 July 2004, around my 18th birthday, I was involved in an incident involving a shopping trolley belonging to IGA Shopping Centre, Blaxland, NSW. I understood the trolley valued at approximately $500. 2. The shopping trolley was taken by me and others from IGA Blaxland and used as a 'go-kart' to ride in. 3. The Police attended the scene and I provided a statement to them. 4. I was then charged with larceny for less than $2,000 and issued with a Court Attendance Notice to attend Penrith Local Court on 23 August 2004. 5. On 23 August 2004 attended (sic) Penrith Local Court and pleaded guilty to the charge, and I was convicted by the Magistrate of larceny and issued with a fine. 6. On 23 August 2004 I appealed to the District Court of NSW under s 11(1) Crimes (Appeal and Review) Act on the grounds of severity of the punishment. 7. On 16 September 2004 the District Court upheld the appeal and dismissed the charge under s 10(1)(a) of the Criminal Procedure Act 1999 (NSW) [sic]." 24This background was confirmed in Mr McGirr's affidavit of 16 July 2014. In response to an inquiry by the Tribunal about whether the charge against him had been dismissed as set out in the grounds for application, Mr McGirr in his affidavit of 8 August 2014 provided a copy of the orders of the District Court of 23 August 2004. These state: "The appeal is allowed, the conviction and sentence and other orders imposed by the learned magistrate are set aside. Pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 the offence is found proved but without proceeding to a conviction the charge is dismissed." 25The finding of guilt gives rise to a conviction within the meaning of s 11 of the Legal Profession Act. The parties raised no issue about whether the conviction was for a serious offence within the meaning of s 4 of the Legal Profession Act and the matter proceeded on the basis that it was.

Findings on the evidence 26In light of the matters of which we must be satisfied in an application such as this, and with which we deal below, it is appropriate to set out the evidence before us in some detail. The deponents other than Mr McGirr were aware of the nature of his application and gave evidence in support. We accept the evidence of all witnesses except where stated. 27Mr McGirr gave evidence that at the time of the offence and in the subsequent court proceedings he did not seek to deny the offence. He admitted the wrongfulness of his actions and expressed his regret and remorse to the Court. His evidence was that he believed then and has always believed that it is important to face the consequences of any wrongdoing with honesty. 28Mr McGirr gave further evidence that he did not profit or seek to profit from the offence at the time. The shopping trolley was used to play games and was not damaged. He did not know what happened to it. He speculated that if the Police had notified IGA Springwood that the trolley had been taken and it was recovered it was in good condition and could continue to be used. He gave evidence that he recognised that IGA Springwood had been wronged by his actions. Soon after the date of the offence he visited IGA Springwood sought out the manager and apologised to him in person. 29There is a discrepancy between Mr McGirr's evidence which refers to IGA Springwood and the application which refers to IGA Blaxland. In his affidavit of 8 August 2014, Mr McGirr confirmed that the relevant shopping centre was IGA Supermarket in Hope Street, Blaxland and that his reference to IGA Supermarket Springwood in his earlier affidavit was incorrect. 30Mr McGirr also set out in his application a history of his university studies and employment with Gilbert & Tobin. Having been awarded a Juris Doctor (Honours) degree from the University of New South Wales in around June 2013 he was employed as a graduate lay associate of Gilbert & Tobin. He did not at that time make any disclosure of the circumstances surrounding his conviction and the subsequent dismissal of the charge. 31He gave evidence that as part of the graduate legal program at Gilbert & Tobin he was required to complete a practical legal training course at the College of Law which included a course called "Professional Responsibility" which involves examining and studying the Legal Profession Act and the Solicitor's Rules. On around 19 June 2014 he became aware in the course of undertaking that study that he was obliged to disclose his criminal conviction to Gilbert & Tobin. He made this disclosure to his supervising partner, Stephen Glass, on that day. He was not aware of the prohibition on seeking employment in a law practice until he became aware of the relevant provisions as part of his College of Law study. 32Mr Glass gave evidence in support of Mr McGirr's application. He is a partner in Gilbert & Tobin's dispute resolution group. He was admitted as a solicitor in 1987 and has been a partner since 1997. Since 12 August 2013, Mr McGirr has worked mainly under Mr Glass' supervision. 33Mr Glass' evidence was that as a graduate Mr McGirr is expected to acquire the necessary practical legal experience and training to be eligible for admission as a lawyer in New South Wales. In addition, he is expected to develop a high standard of competency in the following areas: (a)Gathering relevant information from a variety of legal and other sources and identifying key legal and forensic issues; (b)Expressing information in a clear and client focused manner; (c)Working as part of a team; (d)Understanding and applying the law and procedure; and (e)Keeping up to date with changes in the law and commercial practice. 34In his time at Gilbert & Tobin, Mr McGirr has been entrusted with a variety of specific tasks including legal research and analysis, meeting with clients and witnesses, drafting affidavits and witness statements, drafting pleadings, drafting correspondence to clients and others and liaising with Counsel. Mr Glass has observed and supervised Mr McGirr in the performance of these tasks. 35Mr Glass' evidence was that in his observation Mr McGirr had performed all the tasks and responsibilities entrusted to him with diligence, honesty and integrity. His dealings with clients and witnesses have always been respectful, courteous, responsive and helpful. His dealings with Mr Glass and other solicitors in his team have always been characterised by openness and frankness. Whenever issues have arisen that had the potential to adversely affect a client whether resulting from external factors or from things occurring internally within the firm, Mr McGirr has been attentive and diligent in ensuring that the clients' interests are prioritised, sometimes working very long hours into the night to achieve this. Mr Glass said that he has at all times found Mr McGirr to be a trustworthy and honest person with the skills and character to be an excellent solicitor. 36Mr Glass confirmed that on 19 June 2014 Mr McGirr disclosed to him the matters outlined in his application to the Tribunal. 37The nature of the future employment was deposed to by Mr Glass being that of a graduate undertaking practical legal experience and training to be eligible for admission as a legal practitioner in New South Wales. 38Evidence was also given in support of Mr McGirr's application in her personal capacity by Isabelle Creagh. Ms Creagh is the director of the Residential Communities Office and the Head of Kensington Colleges at the University of New South Wales. The Kensington Colleges are residential colleges which provide accommodation for students at UNSW and are owned and managed by the University. They sit within the colleges' structure and comprise six colleges: Basser College, Goldstein College, Philip Baxter College, Colombo House, Fig Tree Hall and UNSW Hall. The Kensington Colleges provide a supportive community for students to study and socialise in. Ms Creagh was appointed as Head of Colleges in 2010. She has been responsible for the management and operation of all residential colleges owned and operated by UNSW and supervision of staff and students. 39In 2012 Ms Creagh also became Director of UNSW Residential Communities. She assisted with the planning and execution of an expansion of the Kensington Colleges to the six current colleges now housing over 1,100 students. The UNSW Residential Communities Office is part of the University Services Division of UNSW. The office is responsible for the management and operation of all UNSW owned and operated student accommodation. In her current role, Ms Creagh reports directly to the Vice President, University Services at UNSW. 40Ms Creagh has remained Head of the Kensington Colleges and continues to supervise staff within each College and assist with issues as they arise including disciplinary and pastoral care matters. 41Ms Creagh met Mr McGirr in 2011 when he was appointed to the role of resident fellow at Basser College. Resident fellows perform an important role within the Kensington Colleges and are required to perform a number of functions including: (a)Living within the Kensington Colleges community and providing pastoral and academic assistance to students, including building relationships of trust, confidence and friendship; (b)Attending various Kensington Colleges sporting, cultural and social events and participating in various activities to engender a healthy, supportive culture within the Colleges; (c)Attending weekly student meetings and formal occasions to maintain a sense of community and collegiality; (d)Assisting students who are experiencing difficulties, particularly if students are experiencing homesickness or other mental health issues; and (e)Enforcing UNSW policies and procedures within the Kensington Colleges including enforcing policies in relation to appropriate behaviour within the community, alcohol consumption and other social issues. 42Ms Creagh gave evidence that during his time as a resident fellow in 2011 and 2012, Mr McGirr performed each of these functions with honesty, integrity, competence and diligence. She said that in particular Mr McGirr built relationships of trust and confidence with students under his care and with staff who worked with him. He also demonstrated his capacity to enforce University policies and procedures even where enforcing these policies was unpopular with students. 43In 2013 Mr McGirr was appointed Deputy Head of the Kensington Colleges. Ms Creagh worked closely with Mr McGirr throughout 2013 to ensure the safety and wellbeing of all residents of the Kensington Colleges. Under her supervision, Mr McGirr was responsible for: (a)Supervision of resident fellows; (b)Implementation of UNSW policies and procedures in the Kensington Colleges; (c)The development of new Kensington College policies and procedures; (d)The management of student disciplinary issues; and (e)The supervision of the Kensington College student committees and activities. 44In addition to these responsibilities Mr McGirr was entrusted with specific responsibilities including: (a)Management of student elections; (b)Supervision of student finances and expenditure including student committee bank accounts; (c)Resolution of student disciplinary issues; (d)Resolution of student health issues; (e)Supervision of major student events including formal dinners and other social occasions; (f)The monitoring of student committee decisions particularly in relation to expenditure and alcohol related social activities; and (g)Informing Ms Creagh about any incidents and problems within the Kensington Colleges as and when required including disciplinary issues, pastoral care difficulties and all other matters that required her attention. 45Ms Creagh gave evidence that from her experience Mr McGirr performed all the tasks and responsibilities entrusted to him with honesty and integrity and that she had found him, in the performance of these duties and in all other requirements of his position, to be a trustworthy and honest person. Mr McGirr ended his time at the Kensington Colleges after the completion of his law degree at UNSW at the end of 2013. 46Evidence was also given in support of Mr McGirr's application by the Very Reverend Peter Williams, a Catholic priest in the Diocese of Parramatta, who currently holds the position of Vicar General and Moderator of the Curia. Reverend Williams is a personal friend of Mr McGirr and has known him since 2002. In preparing his affidavit he has been shown a copy of Mr McGirr's application to the Tribunal. 47During his time in the Ministry in the Diocese of Parramatta, Reverend Williams has held various leadership positions within and outside the Catholic church including: (a)Director of Liturgy for World Youth Day 2008 in Sydney and for the visit of Pope Benedict XVI, (b)Executive Secretary of the National Liturgical Commission, (c)Director of Liturgy of the Diocese of Parramatta, (d)Episcopal Vicar for Social Welfare, (e)Dean of St Patrick's Cathedral, Parramatta, (f)Fellow of St John's College Sydney, and (g)periodically as Administrator of the Diocese of Parramatta during the absence of the Bishop. 48Reverend Williams first met Mr McGirr at his local parish of St Finbar's Glenbrook in the Blue Mountains and has remained in contact with him and watched him progress in his career and personal life since that time. 49From 2002 to 2004, Mr McGirr assisted Reverend Williams in a variety of large ceremonies and functions within the diocese including the official dedication of the newly rebuilt St Patrick's Cathedral in Parramatta. This event involved several rehearsals and several months of planning. Mr McGirr assisted Reverend Williams with diligence and competence during this time. 50When Reverend Williams took up the role of Director of Liturgy for World Youth Day in 2008 Mr McGirr also acted as a volunteer assistant to the Liturgy Team. Mr McGirr dedicated a number of hours in ensuring that all major events were successful. In these matters, Mr McGirr assisted Reverend Williams with a number of tasks including liaising with senior members of staff and clergy, managing, handling and securing valuable items, attending and assisting at rehearsals, attending and assisting at planning meetings and attending and assisting at ceremonies. In Reverend Williams' opinion Mr McGirr demonstrated his diligence and competence during this time. 51Reverend Williams gave evidence that from his experience Mr McGirr performed all the tasks and responsibilities entrusted to him with honesty, integrity and diligence and that he found him to be a trustworthy and honest person. 52Reverend Williams was aware that, in addition to holding positions as Resident Fellow and Deputy Head of the Kensington Colleges from 2010 to 2013, Mr McGirr had been organ scholar and assistant organist at St Paul's Anglican Church, Burwood from 2008 to 2012, chapel of organist at St John's College, University of Sydney in 2012 and personal assistant to the CEO of Ars Musica Australis from 2008 to 2010. He gave evidence that he was aware that Mr McGirr had discharged those roles with honesty, competence and diligence. Reverend Williams said that on the basis of his experience with Mr McGirr since 2002 and on the basis of his knowledge of Mr McGirr's dedication to work and study he was able to commend him as a person of honesty and integrity. 53There was evidence from Ms Foord of a resolution by the Council that on the material presently before it, it would not oppose the application by Mr McGirr for permission to be employed as a lay associate.

Relevant principles 54The relevant principles attendant upon an application under s 17 of the Legal Profession Act were not the subject of any disagreement between the parties in their written submissions. 55The nature of the inquiry to be undertaken by the Tribunal was considered by the Tribunal in Michael John Charles Caiger (1994) 1 LPDR 32 by reference to an application in Re Clayton [1962] SR (NSW) 132. This was an application under the then Rule 19 of the Solicitors' Practices Rules which had similar effect to s 17 of the Legal Profession Act. The Tribunal in Caiger held: "As stated by the Court [in Re Clayton], the restriction was very broad and it involved an enquiry into the fitness of the person who has been convicted of such offence. Rule 19 had a similar effect to section 121 of the Act when it comes to the consideration of such persons. This Tribunal has a responsibility to thoroughly investigate an application such as this and has therefore proceeded on the basis of the principles expressed in that case by Herron J at 134 as follows: 'Rule 19 of the Special Rules relating to solicitors was passed in order to safeguard both the legal profession and the public ... The whole picture of the ethical fitness of Mr Cowley-Cooper generally has to be considered in the light of all the evidence. The Court is interposed by the Rule between the solicitor employer and the proposed employee in order to allay the fears that must arise in the minds of the public and the profession alike of the destruction of public confidence in the law and the lowering of its high standard usually associated with solicitors' offices." 56The primary principle which the Tribunal must consider is the protection of the public; Hegney v Law Society of New South Wales [2008] NSWADT 150 at [19]; Re Clayton at 133. 57In Caiger at p. 38 referred to in Hegney at [28], the Tribunal said: "... Anything, which places or is indeed likely to place any member of the public in a situation of risk, must be avoided. The need to protect the public falls squarely on the shoulders of all legal practitioners and through them this includes their employees. This is a heavy and onerous responsibility cast upon each practitioner and any proposed employer supporting an application of this nature is charged with a responsibility to ensure actively that if such an application is granted the public is put to no risk whatsoever. This particular limb of consideration is consistent with the duties of the Tribunal in exercising its discretion under the Section. The Tribunal has to make a calculated assessment as to the probability of such risk occurring or not occurring. Indeed, the Tribunal is of the view that it has to be satisfied to a degree beyond the test of satisfaction on the balance of probabilities and into being comfortably satisfied pursuant to the principles enunciated in Briginshaw v. Briginshaw 60 CLR 366. The Tribunal's view is that the burden of proving comfortable satisfaction lies with the Applicant and the prospective employer." 58The integrity of the legal profession is also a relevant consideration. The Tribunal said in Miedzinski v Council of the Law Society of NSW [2007] NSWADT 268 at [45]: "Protection of the public is paramount in such an application. It is also essential to take into account the necessity to maintain the integrity and standing of the profession. Although Mr Barwick does not seek reinstatement to the role, it is proposed that he be employed in the legal profession. Accordingly, the Tribunal must be satisfied that neither the public nor the integrity of the profession will be damaged by granting him the right to assume a recognised position in the legal profession, albeit at the lower end of the scale." 59As to the status of the legal profession, in In the matter of Iverson (unreported 26 July 1996, No 30 of 1995) the Tribunal said the following: "It is important that persons be employed in solicitors' offices who are of appropriate standing in the community, so that the status of the profession is not lowered. Persons who have been convicted of indictable offences are entitled to be employed, provided they obtain the approval of this Tribunal. The concept of such convicted persons being so employed is contemplated by the legislation. Clearly the intent is that the Tribunal be satisfied that the person seeking employment demonstrates that they have seen the error of their ways and are on the road to rehabilitation. The Tribunal should not stand in the way of rehabilitation of criminals, provided that approval under s 48K(2)(c) does not negatively affect the good standing of the solicitor in whose office the applicant seeks employment, and provided that the proposed employment does not, on the evidence, appear to interfere with the course of justice, or the proper charge of the professional duties of the solicitor in whose office the applicant seeks to be employed." 60The Tribunal in Hegney at [20] - [34] undertook a lengthy analysis of a number of decisions on the principles to be applied on an application of this nature. In Double Bay Law Pty Ltd t/a & Legal v Council of the Law Society of NSW [2013] NSWADT 182 at [45] - [47] the Tribunal accepted those authorities and the principles arising from them as being applicable to the exercise of its discretion on the application before it. In doing so, it referred at [46] to the summary of the principles set out in La Fontaine v Law Society [2006] NSWADT 244 by reference to the decision of Acting Justice Spender in Camille Eduoard Dezarnaulds and Stephen Wawn v The Law Society of New South Wales (unreported Supreme Court 27 June 1995). The relevant principles are as follows: "46.1 The discretion is entirely general. No attempt has been made to circumscribe it by reference to particular matters, or to impose any particular threshold test which must be satisfied; 46.2 There are no time limits. Theoretically, the practitioner who was struck off could apply the next day to become an associate of a legal firm; 46.3 Those guilty of indictable offences, or have been guilty of the most extreme offences against the proper conduct of their profession and have been disqualified for such reasons, are equally able to make an application to become an associate; 46.4 There are three levels of associateship. This is important, as it is apparent that the legislature had clearly in mind that a person who might be appropriate for one level of associateship, might not be appropriately permitted to occupy another level of associateship; 46.5 There are obvious public interests which are to be served, and which must be taken account of. These interests include: (i) the protection of the public. (ii) the standing of the legal profession and the standards that are required of it. 46.6 Affording those who were disqualified, or who have been found guilty of indictable offences, the chance of rehabilitation and getting paid work in the profession. 46.7 Whilst the standing of the profession in the public eye is of great importance, and the need to maintain the integrity of the profession is of equal importance, as has been emphasised time and again by the courts (and recently by the Court of Appeal in Law Society of New South Wales v Bannister (1993) 4 LPDR 24) and must be taken account of, it is necessary to bear in mind that an associate is not a legal practitioner, and depending on the particular level of associateship, may be in a position which is really no more than that of a clerk to or employee of a legal firm. One does not, as it were, translate the requirements demanded of practising members of the profession, to those who are applying to become associates. This is of course perfectly plain as the statute is dealing with situations where, a person has been disqualified from legal practice, or may never have been qualified but would otherwise be debarred from acting as an associate because of conviction for an indictable offence." 61As to the discretion the Tribunal found in its decision in Caiger at pp. 38-39 that the relevant section: "gives the Tribunal discretion and it is not necessarily bound by the strict doctrine of precedent concerning applications disclosing similar facts. Each application must still be determined on its own merits (or lack thereof) to enable proper exercise of this discretion." 62As the Tribunal remarked in Double Bay Law at [47] by reference to the decision of the Court of Appeal in Dawson v Law Society (No 590 of 1988) 21/12/89 that: "each case depends upon its own particular facts as adduced by the parties and the impression that the Tribunal forms of the person who seeks to employ the struck off practitioner, and the struck off practitioner and there is no presumption of permanent removal if the facts point to rehabilitation." 63Further factors have also been held to be relevant considerations: (a)The circumstances of the relevant conviction; see Hegney at [24]; (b)The present circumstances of the applicant; see Hegney at [60]; (c)The evidence given supporting the Applicant; see Hegney at [64 - 69] and McCowan v Council of the Law Society of NSW [2014] NSWCATOD 44 at [72]. 64In McCowan at [16] to [25] the Tribunal considered that: "16.There are two separate but related stages involved in determining an application such as this. (i) 'Fit and proper person' and related tests 17. The first stage involves an enquiry by the Tribunal as to whether the person the subject of the application, in this case Mr Brawn, is in the words of the Court of Appeal of New South Wales in Dawson v Law Society of NSW [1989] NSWCA 58, at 12: '...now a fit and proper person to join other members of an honourable profession in the responsible and trusted activities which are involved in the work of the legal profession.' 18.In using that formulation, we think that at least some allowance must be made for the fact distinguishing fact that Dawson involved an application by a struck off solicitor to be re-admitted to practice as a solicitor. It was not a lay associate application. 19. In this regard it is also relevant that section 7 of the Legal Profession Act 2004 recognises and distinguishes between three levels of "associate" of a law practice. Firstly the definition recognises as an associate an Australian legal practitioner who is a sole practitioner, partner, legal partnership director, consultant or employee of practice. Secondly it includes an agent (not being an Australian legal practitioner), and thirdly 'an employee, or person paid in connection with, the law practice, who is not an Australian legal practitioner'. Is the third category only which covers a lay associate as that term is defined in section 7. 20. Be that as it may, this initial threshold issue in the circumstances of this case involves the Tribunal determining whether Mr Brawn is a fit and proper person to participate in the responsible and trusted activities which are involved in conducting legal practice. 21.That clearly must involve an enquiry as to whether Mr Brawn is a man of sufficient good character to be such a fit and proper person and in this regard the Tribunal is guided by the useful observations as to the nature of 'character' made by His Honour Justice Mahoney in the leading Court of Appealed [sic] decision of Law Society of New South Wales v Foreman, No.2 (1994) 34 NSWLR 408 at 449B, when His Honour analysed character as involving, inter alia two things: the acceptance of high standards of conduct; and acting in accordance with those standards under pressure. In His Honour's words: 'Character is tested not by what one does in good times but in bad.' 22. In this regard, we also accept what was put to us by Mr Pierotti on behalf of the Law Society to the effect that as part of this first enquiry, the onus is on Mr Brawn (or perhaps on both Mr Brawn and Mr McCowan as the applicant) to demonstrate that Mr Brawn has effectively rehabilitated himself. 23. We also accept that a most important part of this enquiry is examining whether Mr Brawn has demonstrated an insight into and an understanding of the seriousness of the professional misconduct which led to his name being removed from the Roll and his conviction on the criminal charges, in terms of the deviation of his conduct from the standard expected from those involved in the profession. We must also gain an understanding as to whether Mr Brawn has expressed genuine contrition for what he had done. (i) The conditions to be imposed upon any employment of Mr Brawn in the law practice. 24. Importantly, it is only if the Tribunal is satisfied that Mr Brawn is a fit and proper person to be a lay associate within the designated law practice that it must then turn its mind to the conditions under which he will be permitted to act. The Tribunal usually requires the imposition of appropriate restrictions on the scope of the lay associate's duties and responsibilities within the law practice. 25.Clearly however, these 2 issues are separate. There will be no benefit in the Tribunal considering the appropriateness or otherwise of proposed conditions of employment of the proposed lay associate and unless and until it is satisfied that he or she is a fit and proper person to be engaged in the law practice." 65On the question of the onus, Mr McGirr must establish, as it was put in McCowan at [69], that he: "... is at the day of hearing a fit and proper person to have further association with the profession as a lay associate, that he is of sufficient character for this purpose, that he has demonstrated insight and understanding of his wrongful actions and of how his misconduct fell below the standards of behaviour expected; that he has expressed remorse for his actions and that he has rehabilitated himself."

Findings 66After careful consideration of the evidence to which we have referred, we are satisfied that each of the relevant matters referred to in the authorities has been established. 67The Tribunal has before it uncontested evidence concerning the circumstances of Mr McGirr's conduct leading to the pressing of the criminal charge against him. It was submitted on Mr McGirr's behalf and the Tribunal accepts that the charge related to the conduct of a very young man. It involved no personal gain to Mr McGirr and probably no loss to the IGA Supermarket or the public. Although in our view the offence could not be considered trivial, we accept that the conduct can be categorised as teenage hijinks at a lesser degree of criminality. It is a reflection of Mr McGirr's character at the time that he pleaded guilty to the charge on the return of the Court Attendance Notice. We are satisfied on the evidence that Mr McGirr has demonstrated insight and understanding of his wrongful action and how his behaviour had fallen below the standard expected. He has expressed and we are satisfied of his contrition. 68Since the offence Mr McGirr has completed a university degree, worked as a senior employee of the University of New South Wales and performed charitable works for the Catholic Church. He has also undertaken practical legal training in the offices of Gilbert & Tobin. This employment has involved varying degrees of trust being placed on Mr McGirr by his employers. The work history to which we have referred displays an application and commitment on the part of Mr McGirr to the tasks before him. The evidence shows that he has carried out these tasks honestly and with integrity. 69A further relevant matter is that of Mr McGirr's character. Character is to be assessed at the time of the application; see McCowan at [69]. In our view, the evidence to which we have referred including the work which he has undertaken for the University of New South Wales and Gilbert & Tobin reflects the acceptance by Mr McGirr of high standards of conduct and acting in accordance with those standards under pressure. When he became aware of his obligation to do so, he immediately made his employer aware of the operation of s 17(1) of the Legal Profession Act. The evidence in our view establishes that Mr McGirr is of sufficient character to undertake employment in the profession. 70On the issue of rehabilitation, the Tribunal in Dawson at [10] said: "there is no public interest in denying forever the chance of redemption and rehabilitation to former practitioners. On the contrary the public is better served if, in appropriate cases, those who have offended, once they have affirmatively proved reform, are afforded a second chance, under whatever conditions and after whatever time, the court considers appropriate. This court has full power to protect the public by imposing appropriate conditions relating to such matters as limitations on practice or pre conditions to refresher legal education." 71Mr McGirr has a 10 year history of honest and responsible conduct. It has been submitted on his behalf and we accept on the basis of the evidence before us, that this history speaks powerfully of his redemption and rehabilitation and the benefit that the profession and society stand to derive from his future service. 72On the issue of protection of the public, the evidence to which we have referred including that going to Mr McGirr's character, integrity, contrition and rehabilitation and the fact of the supervision of his employment by Gilbert & Tobin establishes to our comfortable satisfaction that the public will be put to no risk by his employment as a lay associate. On the basis of the evidence, we are also satisfied that the standing of the profession and public confidence in it will not be detrimentally affected by Mr McGirr's employment. 73In such an application the views of the Council must also be given proper weight and consideration; see Hegney at [19]; Re Clayton at 134. In this instance, there is the evidence of Ms Foord to which we have referred that on the material presently before it the Council would not oppose the application for Mr McGirr to be employed as a lay associate. Additionally, the Council submitted that having regard to the nature of the offence; his early plea; the favourable character evidence including from his past employer and his future employer and his evidence of contrition, moral and social standing and academic excellence, there would be nothing served in denying Mr McGirr the opportunity to resume his employment as a lay associate for the purpose of satisfying the practical legal training requirements of admission and consistently in further allowing Gilbert & Tobin to so employ Mr McGirr. 74The Law Society also noted that the present application was limited to Mr McGirr's employment as a lay associate and that any subsequent application for admission would require further scrutiny of Mr McGirr's conduct by the Legal Profession Admission Board. 75Having considered the evidence including the circumstances of the conviction, the present circumstances of Mr McGirr, the character evidence given in his support and the parties' submissions and adopting the principles referred to above, we are satisfied that Mr McGirr is a fit and proper person to have association with the legal profession as a lay associate. We have no hesitation in approving Mr McGirr's employment as a lay associate of law practice Gilbert & Tobin. 76Being satisfied that Mr McGirr is a fit and proper person to be employed as a lay associate, the second question to be determined in the application is whether or not any conditions should be imposed. No conditions were sought by the Council. Mr McGirr's employment is to be in the nature of a graduate undertaking practical legal experience and training under supervision. In view of this and the matters which we have already detailed going to Mr McGirr's fitness, the protection of the public and the integrity and standing of the profession do not require in our view that Mr McGirr's employment be subject to any condition.

Application under s 64 of the Civil and Administrative Tribunal Act 77In light of the withdrawal of Mr McGirr's application for orders under s 64 of the Civil and Administrative Tribunal Act it is appropriate that the interim order which we made on 1 August 2014 be discharged.

Orders 78The Tribunal orders that: (1)Pursuant to s 17(1) of the Legal Profession Act 2004 (NSW) Matthew Thomas McGirr is approved to be a lay associate of law practice, Gilbert & Tobin Lawyers. (2)The order made on 1 August 2014 pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) is discharged.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 December 2014

Legal Profession Act 2004(NSW)

Criminal Procedure Act 1999(NSW)

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