MLJ 701-Case Analysis Of Re-Saunders Essay

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Write a Case analysis of Re : Saunders.

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Procedural history

This case had been brought before the Supreme Court of Northern territory by the applicant against the decision of the Law Society to not grant him right to practice as a local lawyer in the Supreme Court. The student had been prosecuted before the Court of Summary Jurisdiction in relation to the offence of not disclosing his income to Centrelink which would have reduced the amount of money which was to be received by him. The application has been made by the applicant to the Supreme Court with respect to the provisions of the Legal Profession Act to be admitted as a local lawyer. Upon the consideration of the application under the provisions of Section 32 the admission board referred the matter to be resolved before the court in relation to whether the applicant is a ‘fit proper person who can be admitted [at 1].

Facts

The applicant was a student of Charles Darwin University and had been receiving benefits under Austudy from Centralink which were provided to him due to his course of study at the University.

During the period of study the applicant had worked as a casual employee and had not disclosed his income arising out of the job to Centrelink. Therefore the applicant was provided with more money than what he was actually entitled to receive.


Full-time employment had been commenced by the applicant after the completion of his study period. The applicant was aware of the fact that he has incurred a debt of $9,236 to Centrelink as he had received money which he was not entitled to receive. The amount was paid in full by the applicant subsequently.

It has been claimed by the applicant that he did not know that a failure to make a proper disclosure of income would constitute a criminal offence.

It was further provided by the applicant that he made several attempts to disclose the income to Centrelink however due to the failure on the part of Centrelink to provide him with relevant forms on various occasions he was not able to disclose the income. He had approached the relevant officer and informed him that he has initiated employment and also made a request to him in relation to providing him with the relevant forms to make appropriate disclosure. He had been further advice by the officer to complete the disclosure through the website of Centrelink which he was unable to do.

On the other hand the Law Society of National Territory had opposed the application of the applicant for the admission on three specific grounds.

Firstly, the applicant have been found to have committed an offence of dishonesty and such offence has been committed recently which signifies that the applicant should not be considered as a proper and fit person for the purpose of admission.


Secondly, it had been provided by the Law Society that misleading accounts of facts along with the circumstances which surrounded the commission of the offence had been provided by the applicant to the court of summary jurisdiction in order to obtain a lesser penalty. This action on the part of the applicant clearly signifies a lack of candour which is although not considered in relation to this application, but demonstrates that the applicant is not a fit and proper person in relation to the admission.

Thirdly, an affidavit had been sworn by the applicant in relation to stating that he has provided full disclosures in relation to the circumstances in which the offence had been committed to the admission board. A further affidavit had also been sworn by the applicant which promised to provide additional disclosures in relation to the circumstances in which the offence had been committed. However in relation to both the affidavit the applicant had failed to give a candid account in relation to the circumstances in which the offence had been carried out and therefore the applicant should not be regarded as a fit and proper person for admission at this time [at 2].

Issue

The issue before the court in this case was to determine whether the applicant was a ‘fit and proper person presently to be provided with an admission as a local lawyer’ to the Supreme Court under the provisions of the Legal Profession Act [at 5].

Reasons for the decision by the court

In relation to the issue the court had an obligation to ensure that the protection of public from any person who is not suitable for an admission is carried out as far as possible.

According to the provisions of s. 25 of the Act an applicant is only entitled to be successful for admission in case where the court is satisfied that the eligibility requirements have been met by the person for admission and the court is also content in relation to the fact that the person is a fit and proper person for admission to the legal profession. Although that term 'fit and proper person' has not been expressly defined by the legislation, reference has been made in s. 11 with respect to the sustainability matters according to which the court has to take into consideration whether the person presently is of good fame and character and whether he has been found guilty of an offence in Australia. In case where a conviction has been identified by the court, it has to take into account the time which has elapsed after the conviction and the nature of the offence along with the age of the applicant while committing the offence.

In this case it had been disclosed by the applicant that he has been found guilty on 5 occasions for engaging in a act of obtaining financial advantage where he had the knowledge that he was not eligible to receive such advantage against the provisions of criminal Code section 135(2)(1). It was also provided by the applicant that he had been convicted on each of the 5 occasions by the court of summary jurisdiction and have been imposed with a bond of $2,000 to behave in an ethical manner for a 12 months period.

In the present proceedings the applicant had relied on information which has been provided through the affidavit and the disclosure statement. It has been confirmed by the applicant in the affidavit that he had received a financial advantage which he was not entitled to receive even after having knowledge about such facts. He also provided that he was aware of the fact that he had to complete the disclosure forms so that correct entitlement of income is provided to him. It was further claimed by the applicant that he had no idea that he had been involved in a criminal matter. However this submission made by the applicant was rejected by the court based on the following reasoning. It had been claimed by the applicant that he knew that his actions was criminal in nature only “in an abstract sense”[at 19]. He had further believed that a criminal act would not take place if he repaid the money owed by him. The applicant had also admitted that he had knowledge of the wording on the form that a failure to make disclosure results in a criminal offence. The court took into consideration the fact that the applicant was in his mid twenties and was an intelligent person who had been associated with the social security system over a 6 year period. He had also made an acknowledgement that he was fully aware about his obligations to make that disclosure. Several letters have been provided to the applicant during this time which reminded him about his obligations. There was also an acknowledgement made by him that he knew in an ‘abstract sense’ that the failure to make disclosure was a criminal offence.


The judge in this case found that at all times the applicant was aware of the fact that not making a disclosure accounts to a criminal offence and the submissions which have been made by him subsequently are nearly fanciful and show that he has made an effort to reduce his culpability. This further signifies that when the evidence was provided in this proceeding the applicant failed to take full responsibility of the criminal conduct which had been undertaken by him. The true state of mind of the applicant was not acknowledged by him while making the application for the admission as a local lawyer which existed when the offence was committed. Therefore the judge found a strong reason to state that the person is presently not a fit and proper person who could be admitted as a local lawyer. In addition it was held by the judge that the claim made by the applicant that he did not reveal his income due to the failure on the part of the officers of Centrelink is not acceptable. This is because the applicant had been in a situation where he needed money and deliberately took a decision of not making the disclosure for the purpose of obtaining the additional funds. This decision on the part of the applicant was a conscious decision which had been taken to mislead Centrelink by not filing the required documents and obtaining the payment in which he thought he could repay when he was financially stable. It was a duty on the part of the applicant with respect to showing complete candour and making comprehensive disclosure. It was found by the court that no effort has been made by the applicant to ensure that the false impression provided by him were corrected

In relation to the conviction it was held by the court that there is no dispute that ‘an offence has been made by the applicant’ [at 39]. There was a deliberate delay on the part of the applicant to make an application in relation to the admission after he had been convicted by the court of summary jurisdiction. He had made the application 15 months after the date on which he had been convicted by the court. This signifies the shrewd nature of the applicant. The fact that the offence committed by the applicant was of a serious nature according to which he should not be provided admission was not disputed before the court. However the court had to consider that whether the applicant is a fit and proper person at the present time. Upon the examination of the other evidence in relation to the case the court was not able to come to a conclusion that the applicant can be regarded as a fit and proper person at the present time and therefore his application had been dismissed by the court.

Opinion

In my opinion I would suggest that a person should not be prevented from practicing just for the reason that he has committed and academic misconduct. Every person makes some kind of mistakes in life and they should be provided with a reasonable opportunity to rectify the mistake. However I am not having an opinion that a person who has failed to rectify his mistake in relation to an academic misconduct should be allowed to practice. If it is identified by the court that the person has not been able to rectify his mistake or have learnt from his past conduct he should not be provided a right to admission because he cannot be considered as a fit and proper person in such circumstances which is not at all in favour of public interest. I feel that the court had made an in-depth analysis of the facts and the provision surrounding it in relation to this case and come to an appropriate decision. This is because the court even after taking into consideration that there was no dispute that the applicant had made a serious offence examined whether the person is presently fit and proper for the purpose of being provided an admission. However as it was identified by the court that the person was still involved in manipulating submissions in order to minimise his culpability he cannot be regarded as a proper and fit person and should not be provided admission.

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