The Application of FXI under s 121 of the Legal Profession Uniform Law (NSW) (No 2) [2025] NSWCATOD 108; (15 August 2025)

1. In my view, these alterations do not lessen the obligations imposed upon FXI and indeed add to those obligations by specifically requiring appropriate conditions and disclosures where FXI is engaged by a barrister as opposed to a solicitor.
2. Subject to being satisfied that I have jurisdiction to make the proposed orders, I am of the view that it is appropriate to do so having regard to the Tribunal's obligations to protect the interests of the public, the integrity of the legal profession and the maintenance of public confidence in the legal profession.

Power to make the amendments to the current orders

1. I am satisfied that there are two sources of jurisdiction authorising the Tribunal to make the variations proposed by FXI. The first source is contained in s121 of the Uniform Law. Section 121(2) provides that approval of a person to be a lay associate may be given "for a particular position or category of positions or with a particular law practice, or for a particular category of positions with any law practice." In my view, it follows that where approval has been given under s 121 and the lay associate later seeks a variation by reason of a change in proposed positions or categories of positions or otherwise where the previous conditions no longer meet the changes in the circumstances of the lay associate then the Tribunal has, on application, jurisdiction to alter the conditions.
2. A further source of the Tribunal's jurisdiction to amend the existing conditions, is contained in ss 36 and 38 of the NCAT Act. In the Court of Appeal judgment in Sunaust Properties Pty Ltd t/as Central Sydney Realty v the Owners Strata Plan no 64807 [2023] NSWCA 188 the court dealt with these two sections at [160]-[162]. The court there was dealing with the power of the Tribunal to reopen a decision once pronounced and held that there will be circumstances in which it may do so, and indeed circumstances where it should do so. The court held that such a power falls within the breadth of the procedural powers conferred on it under s 38 of the NCAT Act and by doing so the Tribunal gives effect to the guiding principles set out in s 36. The guiding principle stated in s 36 is that the Tribunal is to act in a way which facilitates the just, quick and cheap resolution of the real issues in proceedings. Section 38 provides that the Tribunal may determine its own procedure in relation to any matter for which the NCAT Act or the procedural rules do not otherwise make provision. Further, s 38(4) provides that the Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
3. I am satisfied that the Tribunal has jurisdiction to make the amendments proposed by the application and further that it is appropriate to do so having regard to the considerations expressed earlier in this decision. It is not necessary to determine whether cl l9 of the NCAT Regulation could provide an additional source of jurisdiction.
4. The Applicant has provided a form of the amended orders approved by the Law Society and the Bar Association and I will make the orders as proposed. Order 1 below is a new order and therefore orders 2 to 5 below correspond to the previous orders numbered 1 to 4.
5. I make the following orders:

(1) A hearing of the application of FXI is dispensed with.

(2) Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the name of the Applicant, or any information tending to reveal his identity, is prohibited until further order. The Applicant is to be referred to as FXI for so long as the disclosure of his name is prohibited.

(3) Pursuant to s 121(2) of the Legal Profession Uniform Law 2014 (NSW) (Uniform Law), FXI is approved to be a lay associate of any New South Wales law practice on the conditions set out below with such permission to include employment in the following roles: paralegal, legal clerk, legal secretary and research assistant.

(4) The following conditions are attached to this approval:

(a) The Applicant must not work on legal matters that concern children (defined as any person under the age of 18), and must not have any contact with children in the course of his work as a lay associate.

(b) Whilst acting as a lay associate, the Applicant:

(i) must be supervised by an Australian lawyer who holds a current practising certificate; and

(ii) if the supervising Australian lawyer is a solicitor, may be supervised by that solicitor only if the solicitor holds a current practising certificate which authorises the holder to supervise the work of others.

(c) In addition to his obligations under s 122(1) of the Uniform Law (to inform any law practice of his convictions prior to becoming a lay associate), the Applicant must inform both the principal of any law practice in which he works and any legal practitioner directly responsible for his supervision, of the following matters prior to becoming a lay associate:

(i) any conditions imposed on his approval under s 121 by the Tribunal; and

(ii) his status as a "registrable person" pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW).

(d) Prior to becoming a lay associate, the Applicant must make the written reasons of the Tribunal available to both the principal of any law practice in which he works, and any legal practitioner directly responsible for his supervision.

(e) The Applicant must provide proof of compliance with conditions (b) to (d) to:

(i) in the case of a lay associate engagement with a solicitor, the Director, Legal Regulation of the Law Society of New South Wales;

(ii) in the case of a lay associate engagement with a barrister, the Director, Professional Conduct of the New South Wales Bar Association;

within seven days of becoming a lay associate of any New South Wales law practice and, in relation to any lay associate engagement with a barrister that commenced before the date of these orders, within seven days of the date of these orders.

(f) The Applicant must notify the Director, Legal Regulation, of the Law Society of New South Wales, and the Director, Professional Conduct of the New South Wales Bar Association, of the occurrence of any future matter or event which might adversely affect his suitability to be a lay associate (including any criminal charges brought against him) within seven days of its occurrence.

(5) The Applicant is exempt from Order 2 for the purposes of:

(a) making the disclosures required of him by the conditions placed upon him by the Tribunal pursuant to s 121(4) of the Uniform Law; and

(b) making a disclosure to any 'designated local regulatory authority' as defined in the Legal Profession Uniform Law (NSW) and the Legal Profession Uniform Law Application Act 2014 (NSW), for the purposes of exercising any regulatory function or power bestowed on the relevant authority.

I hereby certify that this is a true and accurate record of the reasons for Decision of the New South Wales Civil and Administrative Tribunal.

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.