Wentworth v NSW Bar Association

[19] Counsel for the Applicant submitted that she had not intended to pass off other people's work as her own. He relied on Re: Humzy-Hancock.[10] In that case, Philip McMurdo J considered that plagiarism required an intention on the part of the Applicant "to represent that the work of others was his own work".[11] Counsel submitted that no such intention could be discerned on the part of the Applicant. The plagiarism evident in her Trusts assignment was due to a misunderstanding amounting to an honest error which did not call for disciplinary action; and her Indigenous Peoples and the Legal System assignment was inadequately referenced because she ran out of time. Her counsel submitted that her misconduct was the result of poor work rather than deliberate intent.

[20] Counsel for the Applicant further submitted that the three affidavits[12] satisfied her obligation of full and frank disclosure of her academic misconduct. Her description of the Trusts assignment as an honest mistake was confirmed by the File Note, and her initial explanation of her Indigenous Peoples and the Legal System assignment was elaborated upon to make her assertions clearer yet remained consistent with her initial disclosure. Ultimately, counsel submitted that, in light of her study and work since her academic misconduct, the Applicant is currently a fit and proper person to be admitted and a declaration should be made to that effect.

[21] The Law Society accepted the Applicant's initial account of the Trusts assignment as being an honest mistake in light of the File Note annexed to Professor McCrimmon's affidavit[13] and did not seek to be heard in relation to this first instance of academic misconduct.

[22] In relation to the Indigenous Peoples and the Legal System assignment, the Law Society drew the Court's attention to a number of factors.

• (a) The Applicant had been undertaking a Bachelor of Laws for two and a half years at the time the assignment was submitted, and she had been required to understand and use correct legal citation in this period.

(b) The Applicant initially attributed the academic misconduct to her "problem with referencing"; her being "under pressure"; and her unfamiliarity with correct legal citation;[14] and said that, as a consequence, she had made a "big mistake" that was "not intentional".[15] In the 18 February Affidavit, however, the Applicant said that she had copied material "with the intention of then paraphrasing the content into [her] own words" but ran out of time and was not proficient with paraphrasing; and that she "quickly added references which [she] thought would be adequate" and thought she had "referenced all materials used". The Law Society submitted that these two explanations were not reconcilable.

(c) In response to Mr Danial Kelly's email regarding the Indigenous Peoples and the Legal System assignment, the Applicant said that she had "referenced every material that [she] used", but in the 18 February Affidavit she said she "thought [she] had referenced all materials used". The Law Society submitted that these two statements were likewise irreconcilable.

(d) The Law Society contended that Professor McCrimmon's Confidential Memorandum, indicating that the Applicant initially admitted that she was pressed for time and simply copied and pasted information, is inconsistent with her later explanation that she had the intention of "paraphrasing the content into [her] own words" and "was not very proficient with paraphrasing" and accordingly "quickly added references which [she] thought would be adequate".

(e) The Applicant did not initially explain that she had intended to paraphrase the quotes. The reasons the Applicant gave in the 8 July Affidavit that the Board of Inquiry awarded her zero marks because her assignment was "based on the original Author's work, incorrect paraphrasing, use of long quotation and failure to use quotation marks" is not a full and frank disclosure, given that Professor McCrimmon in his Confidential Memorandum commented that there had been "deceptive conduct".

[23] The Law Society relied on Re: AJG,[16] in which the court stated that it would be inappropriate to "accept as fit to practise an applicant who responds to stress by acting dishonestly to ensure [their] personal advancement". The Law Society submitted that the Applicant had engaged in cutting and pasting on two occasions and had not learnt from her experience in Trusts.

[24] The Law Society also drew the Court's attention to Re Liveri,[17] where it was stated that an "applicant's subsequent attitude to the established misconduct" is relevant to determining whether they are a fit and proper person. The Law Society again highlighted that the Applicant had not been full and frank in her initial disclosure.

[25] The Law Society agreed with counsel for the Applicant that the necessary test when determining whether plagiarism had occurred was one of intent,[18] but submitted that, in relation to the Indigenous Peoples and the Legal System assignment, the Applicant had the requisite intent. On her own admission she made the decision not to credit the original author's work because she had run out of time.

[26] Ultimately, the Law Society submitted that the Applicant's conduct was indicative of "reckless laxity of attention to necessary principles of honesty"[19] militating against a finding that she was a fit and proper person to be admitted as a local lawyer.

[27] The Court must be satisfied that an applicant is a fit and proper person to be admitted to the legal profession.[20] The role of the Board is to advise the Court (inter alia) whether or not the Board considers an applicant for admission to the legal profession is a fit and proper person to be admitted.[21] In considering whether an applicant for admission is a fit and proper person, the Board is to have regard to the "suitability matters" set out in s 11. These include whether the person has been found to have engaged in academic dishonesty (including plagiarism).[22] If the Board finds that an applicant is a fit and proper person to be admitted (and is eligible for admission and the application complies with the rules), it issues a compliance certificate to that effect.[23]

[28] As was stated in Re: Hampton:

An applicant for admission is obliged to approach the Board, and later the court, with the utmost good faith and candour, comprehensively disclosing any matter which may reasonably be taken to bear on an assessment of fitness for practice.[24]

The obligation of candour "does not permit deliberate or reckless misrepresentation pretending to be disclosure".[25]

[29] In this case, the Board has not issued a compliance certificate, but has referred the question of whether the Applicant is a fit and proper person to this Court under s 32.[26] In dealing with this application, the Court has the same powers as the Board, and its decision is considered to be that of the Board.[27] On a referral under s 32, the Court may make the order or declaration it considers appropriate.[28]

[30] There are two issues that need to be determined: first, whether the Applicant intended to pass off the work of others as her own; and second, whether she made full and frank disclosure to the Board of the circumstances surrounding the finding of academic misconduct made against her for her Indigenous Peoples and the Legal System assignment.[29] The first matter affects the nature of the disclosure that needs to be made. The second matter concerns whether the Applicant fulfilled her obligations to the Board and the Court.

Did the Applicant intend to pass off the work of others as her own?

[31] I do not think the Applicant intended to pass off the work of others as her own.[30] Upon inspection of the Applicant's Indigenous Peoples and the Legal System assignment, it became apparent that most of her paper was copied directly from Megan Davis's article 'Indigenous Struggles in Standard-Setting: The United Nations Declaration on the Rights of Indigenous Peoples'[31] without any modification. Paragraphs were also copied directly from a number of other sources, including a United Nations General Assembly press release[32] and an Australian Human Rights Commission FAQ website.[33] There was little, if any, of the Applicant's own work in the assignment, save for the fact she assembled various sources into a single document. Nevertheless, the Applicant's assignment did contain references to the multiple sources she had directly copied from, albeit woefully inadequate ones.

[32] I consider it more likely than not that the Applicant's academic misconduct is attributable to her poor grasp of essay writing and referencing skills and, as she deposed, to her running out of time and submitting an assignment that was essentially incomplete. It is unlikely that the Applicant would have intended to pass off the work of others as her own while citing (albeit poorly and inadequately) the sources from which she was directly copying.

Did the Applicant make full and frank disclosure to the Board of the circumstances surrounding the finding of academic misconduct made against her?

[33] I am not convinced, however, that the Applicant was full and frank in her disclosures to the Board and the Court in her 8 July Affidavit, 10 July Affidavit and 6 October Affidavit. While I do not agree with the contention of the Law Society that her explanations are inconsistent with each other, they were initially incomplete and, as a result, misrepresented the nature of her conduct.

[34] The Applicant's initial disclosures in the 8 July Affidavit and 10 July Affidavit focused on her "problem with referencing" and the pressure she was under. These explanations are not inconsistent with her disclosure in the 18 February Affidavit that she had the intention to paraphrase the quotes and she thought the citations she provided would be adequate, and I am therefore of the view that the Applicant's initial declaration was not intended to be misleading. Nevertheless, it is apparent that her initial explanation was incomplete when considered in light of the explanation provided in her 18 February Affidavit:

... As a first draft of this assignment, I cut and pasted material from various sources, with the intention of then paraphrasing the content into my own words. However, I ran out of time, and was not very proficient with paraphrasing. Accordingly, I quickly added references which I thought would be adequate. It was never my intention to claim the work of the sources as my own. It was in that context that my plagiarism was unintentional. As was pointed out to me at the May 2012 meeting, and I can see now, it was wholly inadequate and I was wrong to have submitted an assignment in that form;

[35] The Applicant's 8 July Affidavit, 10 July Affidavit and 6 October Affidavit do not refer to the Applicant copying multiple sources. The impression they give is the opposite. To some degree, this can be attributed to the Applicant simply recalling that Mr Kelly had told her the assignment was "based on the original Author's work", an impression seemingly shared by Professor McCrimmon in his Confidential Memorandum. Nevertheless, the Applicant did not take the opportunity to clarify that her Indigenous Peoples and the Legal System assignment was cut and pasted from multiple sources until the 18 February Affidavit.

[36] In both the 8 July Affidavit and 10 July Affidavit, the Applicant deposed that she purchased a copy of the Australian Guide to Legal Citation, as advised by Mr Kelly. In the 18 February Affidavit, however, she clarified that she merely borrowed a copy from a friend, because she had previously purchased a copy, but lost it before reading it and had not replaced it. While her initial and later declarations are consistent in that she did purchase the Australian Guide to Legal Citation, her initial declaration was misleading in that it gave the impression she purchased it after Mr Kelly advised her to.

[37] In my opinion, the Applicant has not made a deliberate attempt to conceal the specifics of her academic misconduct from the Board or the Court. Nonetheless, I do not think that the Applicant has satisfied the onus, which rests on her, to demonstrate that she is a fit and proper person to be admitted to the legal profession. The Applicant's initial disclosures, while consistent with her later disclosures, were incomplete and, as a consequence, misrepresented the nature of her conduct. In this respect, the Applicant did not initially give full and frank disclosure of her academic misconduct and the surrounding circumstances. The Applicant's initial disclosures were not comprehensive and lacked the candour required of applicants to this Court.[34] The Applicant's disclosures in the 18 February Affidavit were far more satisfactory but they came over seven months after the Applicant had filed her first affidavit on 8 July 2014. I consider it likely that the initial inadequacies in disclosure were not, as the Law Society submitted, indicative of "reckless laxity of attention to necessary principles of honesty", but rather reflect a lack of understanding of the stringent nature of her obligation of disclosure to the Board and to the Court.

[38] Further, the Applicant has not sufficiently demonstrated that she has gained the requisite insight into legal citation, referencing, and plagiarism. Her explanation for the lack of proper referencing in the Indigenous Peoples and the Law assignment seems to make the erroneous assumption that it would not have been academically dishonest to copy the work of the authors of the sources she used, provided she "paraphrased" them in her own words. The Applicant has attended two appointments with the University's Academic Language and Learning Success Program and consulted the Australian Guide to Legal Citation, but I am not convinced she has demonstrated the necessary insight into her academic misconduct,[35] and, accordingly, I am not convinced that the Applicant is presently a fit and proper person to be admitted to the legal profession.

[39] Academic misconduct is a serious matter. As was stated in Wentworth v NSW Bar Association:

... the right to practice in the courts is such that, on application for admission, the court concerned must ensure, so far as possible, that the public is protected from those who are not properly qualified ...[36]

Correct referencing is essential to the ability of courts and academic institutions to test arguments and verify sources, as well as demonstrate that people have honestly declared work that is not their own and attributed it to the original source. Students must familiarise themselves with, and utilise, appropriate referencing to demonstrate their qualifications and understanding of topics. If applicants were not required to demonstrate these skills, the ability of courts and academic institutions to function would be severely hindered. As such, the courts must guard against those who do not demonstrate that they can appropriately and honestly reference their sources.

[40] It would be advisable that the Applicant undertake a further course in legal ethics, or other suitable course of study (or perhaps prepare a written dissertation), to demonstrate that she has acquired the requisite understanding of her ethical obligations in relation to plagiarism and in relation to making full and frank disclosure of relevant matters to the Court.

[41] I order that the application be adjourned for a period of not less than six months to enable the Applicant to demonstrate to the Court, by whatever means she deems appropriate, that she has acquired the necessary understanding of her ethical obligations in relation to these matters.

[1] Legal Profession Act 2006, s 32(1)

[2] Legal Profession Act 2006, s 25

[3] The Applicant purported to attach a copy of her Graduate Diploma in Legal Practice as Annexure B to the 8 July Affidavit, yet Annexure B was instead a 'Letter of Completion' from the Australian National University certifying she had satisfied the requirements for the awarding of the Graduate Diploma. The Letter of Completion also stated that the Applicant demonstrated competency in the areas set out in Schedule 4 of the Legal Profession Admission Rules, however did not expressly state the course complied with the requirements in Rule 5 of those Rules.

[4] It also explained why she was unable to obtain a letter of completion of her degree and gave an undertaking to do so before 15 July 2014. (She had been advised that she had completed 140 credit point units at 100 level in breach of the rule which allowed only 120 100 point units and needed to apply for 20 credit points based on her GDLP studies.)

[5] The reasons of the Board are set out in the memo from Master Luppino to Riley CJ, dated 9 December 2014, tendered at the hearing of this application.

[6] SafeAssign is software that is used by some universities to prevent plagiarism. It compares submitted documents against a database of sources and highlights areas of similarity.

[7] [2008] MelbJlIntLaw 17; (2008) 9(2) Melbourne Journal of International Law 439

[8] Discussed at [17]

[10] [2007] QSC 34

[11] [2007] QSC 34, [14]

[12] While the Applicant actually filed four affidavits, the 8 July Affidavit and the 10 July Affidavit were essentially the same.

[13] The file note annexed to the affidavit of Professor McCrimmon shows that the Applicant's answer to Problem 2 is almost a direct copy of Mr James' "discussion board post - Lecturer's feedback problem 2". It is difficult to understand why there would, in effect, be a model answer posted by the lecturer before the assignment was due (as seems to have occurred here) and easy to see how this would not be conducive to the development of a proper understanding of the nature of plagiarism or an understanding of what is required academically of a student submitting an assignment. Indeed it seems to have contributed to the Applicant's continuing erroneous idea that she would not have been committing plagiarism by using someone else's work in the Indigenous Peoples and the Legal System assignment if she had completed her original intention of "paraphrasing the content into my own words".

[16] [2004] QCA 88

[17] [2006] QCA 152

[18] Re: Humzy-Hancock [2007] QSC 34

[19] Incorporated Law Institute of New South Wales v Meagher [1909] HCA 87; (1901) 9 CLR 655, 681

[20] Legal Profession Act 2006, s 25(2)(b)

[21] Legal Profession Act 2006, s 35

[22] Legal Profession Act 2006, s 11(1)(ga)

[23] Legal Profession Act 2006, s 36

[24] Re: Hampton [2002] QCA 129, [26], quoted in In the matter of an application by Thomas John Saunders [2011] NTSC 63, [6]

[25] Re OG (a Lawyer) [2007] VSC 520; (2007) 18 VR 164, 203 [123]

[26] Legal Profession Act 2006, s 32(1)

[27] Legal Profession Act 2006, s 32(3)

[28] Legal Profession Act 2006, s 32(4)

[29] The parties accept that the academic misconduct evident in the Trusts assignment can be attributed to an honest mistake.

[30] Re: Humzy-Hancock [2007] QSC 34

[31] [2008] MelbJlIntLaw 17; (2008) 9(2) Melbourne Journal of International Law 439

[32] 'General Assembly adopts Declaration on Rights of Indigenous Peoples; 'Major step forward' towards human rights for all, says President' (Press release, UN Doc GA/10612, 13 September 2007)

[33] Australian Human Rights Commission, United Nations Declaration on the Rights of Indigenous Peoples: Frequently Asked Questions,

[34] Re: Hampton [2002] QCA 129, [26], quoted in In the matter of an application by Thomas John Saunders [2011] NTSC 63, [6]

[35] Re Liveri [2006] QCA 152

[36] [1992] HCA 24; (1992) 176 CLR 239, 251