Benchemam, Re [2018] QCA 65

SUPREME COURT OF QUEENSLAND CITATION: Re Benchemam [2018] QCA 65 PARTIES: IN THE MATTER OF THE LEGAL PROFESSION ACT 2007 (QLD) AND THE SUPREME COURT (ADMISSION) RULES 2004 (QLD) IN THE MATTER OF AN APPLICATION BY KARA KELTHAUN BENCHEMAM FILE NO/S: Appeal No 61 of 2018 DIVISION: Court of Appeal PROCEEDING: Application for Admission ORIGINATING COURT: Court of Appeal at Brisbane DELIVERED EX TEMPORE ON: 9 April 2018 DELIVERED AT: Brisbane HEARING DATE: 9 April 2018 JUDGES: Sofronoff P and Bond and Davis JJ ORDER: Let Ms Benchemam be admitted. CATCHWORDS: PROFESSIONS AND TRADES – LAWYERS – QUALIFICATIONS AND ADMISSION – FIT AND PROPER PERSON – where the applicant applies for admission as a legal practitioner – where the Legal Practitioners Admissions Board opposes the applicant’s application – where the applicant had received an overpayment from Centrelink – whether the applicant is a fit and proper person for admission to the legal profession Legal Profession Act 2007 (Qld), s 9, s 31, s 39 Legal Services Commissioner v Hewlett [2008] LPT 3, cited Legal Services Commissioner v Madden [2009] 1 Qd R 149; [2008] QCA 301, cited New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284, cited New South Wales Bar Association v Stevens [2003] NSWCA 261, cited COUNSEL: P A Hastie for the applicant M Timmins (a solicitor) appeared for the Legal Practitioners Admissions Board -- 1 of 9 -- 2 DAVIS J: The applicant applies for admission as a legal practitioner under the provisions of the Legal Profession Act 2007 (Qld), which I shall refer to as “the Act”. I would allow the application and admit the applicant for the following reasons. The Board’s role upon such an application is, by force of s 39 of the Act, to make a recommendation to the Court as to various issues including: firstly, whether the applicant is eligible for admission in the sense that the applicant has or has not complied with necessary requirements; and secondly whether the applicant is a fit and proper person for admission. The applicant has complied with all required study and training and she has complied with all formal requirements of an application for admission. In determining fitness, the Court must have regard to the suitability matters as defined by the Act and to any other relevant matters. That is by force of s 31. It is s 9 of the Act which identifies suitability matters. The Board’s opposition to the applicant’s application focuses on the suitability matter identified in s 9(1)(a) of the Act, namely, whether the applicant is of good fame and character. Concepts of “good fame and character” and “being a fit and proper person” in the context of the regulation of a profession or other occupation are well established. It is not necessary today to analyse the jurisprudence which has grown around those concepts. The Board submits that the applicant is not of good fame and character and not a fit and proper person to be admitted as a legal practitioner for a total of seven reasons which are spelt out in a letter to the applicant dated 19 March 2018. Those seven reasons one way or another concern the following: 1. The applicant’s dealings with Centrelink. 2. The applicant’s late lodgement of income tax returns. 3. The applicant’s dealings with the board. In particular, so submits the Board, the applicant has failed to make full and frank disclosure of suitability matters, which, in context here, is an alleged failure to disclose to the Board in a timely way her dealings with Centrelink and the late lodgement of the income tax returns. -- 2 of 9 -- 3 Before turning to the details of the Board’s concerns, it is appropriate to record some information about the applicant. The applicant was born in Townsville on 2 April 1993. Last Monday, she turned 25 years of age. Since 2014, the applicant has been employed as a law clerk by a set of barristers practising in Northern Circuit Chambers in Townsville. One of those barristers, Mr Geeves of counsel, has provided an affidavit to the Court. His affidavit is important and I mention some aspects of it now. Mr Geeves swears that he and his colleagues have employed the applicant since 2014. Mr Geeves is obviously impressed by her. He says at paragraph 4 of his affidavit: “A more loyal, discreet, mature and trustworthy young lady you would not meet.” Importantly, he says that he has discussed with the applicant the concerns of the Board as it expressed them in their letter of 19 March 2018. He says that the applicant is clearly remorseful and says that he is, and I quote from his affidavit: “Certain that such errors will not be repeated.” Mr Geeves is convinced that the applicant understands that she should have taken more care with her obligations to the Commonwealth and with her disclosure obligations to the board. At paragraph 10 of his affidavit, Mr Geeves says that he wholeheartedly endorses the applicant’s application for admission as a legal practitioner. There has been no challenge to Mr Geeves’ affidavit. Before commencing work with Mr Geeves and his colleagues in Northern Circuit Chambers, the applicant enrolled in the Bachelor of Business/Bachelor of Laws dual degree course at James Cook University in 2011. The applicant completed all academic requirements of the dual degree in July 2017. She then commenced the practical training necessary for admission at the College of Law Queensland. In late October 2017, she obtained her Graduate Diploma of Legal Practice from the College of Law. By doing so, the applicant completed all necessary study and training required for admission. The applicant has affirmed a total six affidavits. The first was affirmed on 29 January 2018 and was filed with her application. She then made five further affidavits in response to various -- 3 of 9 -- 4 matters raised by the Board. Nothing sworn by the applicant has been the subject of any challenge. Nothing which the applicant swears in her material appears to me to be such that I ought not accept it as true, so I accept it. For reasons which will become apparent, the applicant’s mother, Ms Adele Videtta has provided the Court with an affidavit. Again, there is no challenge by the board to the contents of that affidavit. Again, I accept what Mrs Videtta has sworn. In the Board’s written submissions the board says amongst other things: “She [a reference to the applicant] has been seriously careless, at best, in discharging her suitability matters to the Board and the Supreme Court.” The reference to “careless, at best” is troubling. It suggests that the Board holds the view that some inference worse than carelessness is open and the obvious worse position for the applicant is a finding of dishonesty. If the Board considers that a finding of dishonesty is open, then it should have said so forthrightly and explained with full particularity why that is so. It is well established that if a party alleges dishonesty, then it should do so expressly and with full particularity. That was held to be necessary, for instance, by this Court in disciplinary proceedings under the Act in Legal Services Commissioner v Madden [2009] 1 Qd R 149 and that principle applies to reports to the Court made by the board under s 39 of the Act. Conversely, if no inference of dishonesty is open, the board should say so. Oblique hints at dishonesty are not appropriate. The Board today, through Ms Timmins, was unable to explain the submission and had to be pressed before ultimately abandoning any suggestion of dishonesty. For reasons which appear below, I categorise the applicant’s conduct as careless but not dishonest. The applicant applied last year for admission. In her first affidavit, affirmed on 29 January 2018, she refers to under a particular heading matters of eligibility and suitability at paragraphs 27 to 29 of her affidavit. There she says this, at paragraph 27: “I have considered each of the matters of eligibility and suitability pursuant to section 9, section 30 and section 31 of the Act and I am aware of the Centrelink overpayments that may bear adversely on my eligibility and suitability.” -- 4 of 9 -- 5 At Paragraph 28: “A copy of disclosure of the details outlining the overpayments is provided in Exhibit KKB-15 to this affidavit.” And at paragraph 29: “A copy of supporting documents of disclosure is provided in Exhibit KKB-16 to this affidavit.” As can be seen, the paragraphs of the affidavit refer to two exhibits. Exhibit KKB-15 is a document headed “Form 7 – Suitability Matter, Disclosure Attachment”. There, the applicant says that she was receiving Youth Allowance benefits from Centrelink in 2009 when she was employed by Friendlies Chemist. In 2009, the applicant was only 16 years of age. In 2014, she secured a second job at Northern Circuit Chambers and she explains that she mistakenly overlooked the requirements to notify Centrelink of this change of additional employment. That resulted in an overpayment by Centrelink of $9,622.96 which she repaid upon notification of the error. Exhibit KKB-16 to the affidavit is an extract from the records of the Department of Human Services which records both the overpayment and the repayment. The applicant was to be admitted on 2 February 2018, but she was contacted by the Board and asked to further explain the Centrelink overpayment. That led to her second affidavit. There, she explained that she was working for Friendlies Chemist. At that stage, her mother, Ms Videtta, was receiving family benefits payments and some of those payments related to her daughter, the applicant, as the applicant was under 16. Then, when the applicant turned 16, the benefit changed to Youth Allowance, but the benefit was in fact received by Ms Videtta. At that point, the applicant was working at Friendlies Chemist. In August 2014, she took over from her mother the duties of reporting income to Centrelink. She obtained employment with the barristers at Northern Circuit Chambers. Centrelink payments stopped. She told Centrelink that the Friendlies Chemist job was only casual, which it was, and so payments recommenced. However, then she did obtain some work from Friendlies Chemist on a casual basis and that placed her over the threshold. -- 5 of 9 -- 6 The applicant received an email from the Board asking her to adjourn her application for admission to 23 March 2018 and advising her that she would have to readvertise her application, which she did. On 1 March 2018, she made her third affidavit. That exhibited an itemised account from the Australian Taxation Office of her history with that office. On 6 March 2018, she was contacted again by the Board and told that she ought explain late lodgement of income tax returns. The fact of the late lodgement was evident from documents she had produced. The Board also told the applicant that they required an affidavit from her mother. The fourth affidavit made by the applicant and an affidavit of Ms Videtta were produced on 12 March 2018. In her affidavit, the applicant says that, firstly, she did not at the time realise there was a consequence of late lodgement of tax returns; and secondly, she advised that she was not penalised by the Australian Taxation Office for the late lodgement because, in fact, the Taxation Office owed her a refund; and, thirdly, she did not declare the late lodgement as a suitability matter because it seems she was preoccupied with the Centrelink issue. Ms Videtta’s affidavit corroborates the applicant’s version of events. As I said earlier, neither affidavit was the subject of challenge. On 19 March 2018, the Board advised its opposition to the present application and set out seven matters which were of concern to the Board. In her fifth affidavit the applicant answered the seven concerns. The Board’s issues and the applicant’s responses are as follows. Matter 1: The Board complains that the applicant provided disclosure in a piecemeal fashion. The applicant says in answer to this that she now sees that she should have identified the various matters and disclosed them all when filing her application. She says she now understands the breadth of her disclosure obligations. Matter 2: The Board’s concern is a failure to disclose income to Centrelink. The applicant accepts that she did not properly make disclosure to Centrelink. However, she explains this, at least in part, by reference to confusion between herself and her mother who was the substantial beneficiary of the payment. -- 6 of 9 -- 7 Matter 3: The complaint of the Board is that instead of reporting income fortnightly to Centrelink she provided income tax reconciliations. She accepts this, but of course, she did in fact disclose all income to Centrelink. Matter 4: The Board complains that no information has been provided by the applicant as to the review of her earnings conducted by Centrelink around November 2015. The applicant accepts that this ought to have been disclosed but explains the situation at paragraph 38 of her fifth affidavit. She says that a review was completed and the notice of the results was posted on her Centrelink account. She did not read that posting immediately, but as soon as she did, repayment was made. Matter 5: The complaint of the Board is that the applicant did not explain to the board why she failed to declare any income at Centrelink. The applicant admits, very frankly in the fifth affidavit, that she originally did not disclose to the board why she failed to declare income to Centrelink. She has, though, explained that there was some confusion between her and another and she accepts that, ultimately, she has been careless in her dealings with Centrelink. Matter 6: The Board says that the applicant has “potentially” not disclosed her income to Centrelink for the 2015–2016 and 2016–2017 financial years, which might, so says the Board, lead to a finding by Centrelink of overpayment. The applicant explains in some detail in her affidavit, which is unchallenged, that she has made enquiries with Centrelink, lodged various documents and no moneys are owing. Finally, matter 7: the Board points to the late lodgement of income tax returns. The applicant explains that she did not file the income tax returns because she was not sure about her obligations and certainly no money was owing by her to the Australian Taxation Office when the returns were lodged. There is no doubt that the applicant has failed to comply with all of her obligations to Centrelink in a timely way. However, she was very young when this default occurred. I accept that the failure to report the extra income to Centrelink was caused, at least to some extent, by confusion between the applicant and her mother. Importantly, there is no suggestion that Centrelink -- 7 of 9 -- 8 regarded the default as dishonest. If Centrelink concluded that dishonesty was involved, then the applicant could have been prosecuted. That is not suggested anywhere in the material. Centrelink has obviously accepted that the defaults were through simple error and I accept that. It should also be acknowledged that these failures occurred because the applicant was very, very young when she began to work for a living. The failure to lodge tax returns, in some circumstances, can be a very serious matter. In this respect, see New South Wales Bar Association v Cummins (2001) 52 NSWLR 279, New South Wales Bar Association v Stevens [2003] NSWCA 261 and Legal Services Commissioner v Hewlett [2008] 2 Qd R 292. However, this is an example of a young person on a limited income misunderstanding her obligations. When the income tax returns were lodged, the applicant, in fact, received a refund. The Australian Taxation Office did not impose any penalties. It is obviously important for applicants to make proper disclosure of suitability matters when applying for admission. However, the applicant here did identify her dealings with Centrelink as a suitability matter and did disclose it. The Board required further information and that was provided by the applicant promptly. The issue concerning the late lodgement of the income tax return should have been disclosed, but that was identified through material which the applicant freely provided to the board. Of particular importance here is the affidavit of Mr Geeves. As a barrister, he is obviously aware that supporting an applicant’s admission as a legal practitioner is a serious matter. After speaking to the applicant, he offers the assessment to the court that she clearly understands her shortcoming in her dealings with the Commonwealth and the Board. There are statements in the applicant’s fifth affidavit which support Mr Geeves’ view as to the applicant’s insight into those shortcomings. Insight and appreciation of past errors is a mark of maturity. The issues raised by the board have, in my judgment, been satisfactorily explained. The applicant is shown on the material to be a person of good fame and character and a person who is fit and proper to be admitted as a legal practitioner. As mentioned earlier, I would allow the application. -- 8 of 9 -- 9 BOND J: I agree with Justice Davis that the applicant should be admitted as a legal practitioner. I also agree with his Honour’s reasons for that conclusion. SOFRONOFF P: I agree. Let Ms Benchemam be admitted, Registrar. Ms Benchemam, will you come to the bar table? OATH OF ALLEGIANCE AND OF OFFICE ADMINISTERED SOFRONOFF P: Ms Benchemam, Justice Bond, Justice Davis and I congratulate you on your achievement. You are entitled to feel very, very proud of your efforts. Let me repeat to you alone what I have said to 100 or so applicants for admission who have been admitted before you today. We are assembled here in court for this ceremony for two reasons. First, today is the culmination of the process by which the Supreme Court satisfies itself that each applicant for admission today should be admitted. As you now know, the court has not the slightest doubt about your character. Indeed, the evidence that you have had to generate shows you to be a determined young woman who has achieved much under difficult circumstances. Second, and as a reciprocal of the first purpose, as a condition of admission, you and the other candidates have declared in public your undertaking that you will uphold the standards of our profession. I say our profession because, as of a few moments ago, you and I are colleagues in the same profession. So you can see that this ceremony is not a mere formality. By our joint actions, our public approval of you and your public undertaking to us, you now join me as a colleague in our profession. I say to you, then, what I have said to every applicant today. The public trust in the legal profession is now personally in your hands. The three of us wish you good luck and good fortune. -- 9 of 9 --