Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hill v Council of the Law Society on New South Wales [2017] NSWCATOD 164 Hearing dates: 22 September 2017 Date of orders: 16 November 2017 Decision date: 16 November 2017 Jurisdiction: Occupational Division Before: S Westgarth, Deputy President M Sindler, Senior Member B Thomson, General Member Decision: Pursuant to section 121 of the Legal Profession Uniform Law (NSW) Steven James Barnett is approved as a lay associate of the law practice Tarella Law Pty Ltd. Catchwords: Approval under section 121 Legal Profession Uniform Law (NSW) – relevant matters under section 121 Legislation Cited: Crimes Act 1900 Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 Cases Cited: Briginshaw v Briginshaw [1938] 60 CLR 336 McGirr & Anor v The Council of the Law Society of NSW [2014] NSWCATOD 154 Michael John Charles Caiger (1994) 1 LPDR 32 Miedzinski v Council of the Law Society of NSW [2007] NSWADT 268 Category: Principal judgment Parties: Emma Kate Hill (Applicant) Council of the Law Society on New South Wales (Respondent) Representation: Counsel: A Isaacs (Applicant) Solicitors: Mr L Pierotti (Respondent) File Number(s): 2017/00119743 Publication restriction: Unrestricted reasons for decision Introduction 1. By this application, the applicant seeks the following order: That Steven James Barnett be approved as a lay associate to the law practice Tarella Law Pty Ltd. 1. The circumstances requiring the applicant to seek the above order may be summarised as follows: 1. On 4 November 2016 Steven James Barnett (Mr Barnett) was convicted of an offence under s 52A(1)(c) of the Crimes Act 1900 being an offence of driving a vehicle in a manner dangerous occasioning death. That offence is an indictable offence against the law of New South Wales; and 2. Mr Barnett is a "lay associate" of the applicant's legal practice. A law practice contravenes s 121 of the Legal Profession Uniform Law (NSW) (the Uniform Law) if the law practice has a lay associate whom any principal or other legal practitioner associate of the law practice knows to be a person who has been convicted of a serious offence. However, under s 121(2) the relevant designated local regulatory authority (in this case this Tribunal) may approve a person as a lay associate for the purposes of s 121. 1. Accordingly, it is necessary for the applicant to seek the approval of the Tribunal in order for Mr Barnett to continue as a lay associate of the law practice. Grounds for Application 1. The application sets out the grounds for the order which the applicant seeks. Mr Barnett is the spouse of the applicant who is the principal solicitor of the incorporated legal practice, Tarella Law. That practice is operated by a trust called the Barnett Family Trust and the trustee is Tarella Law Pty Ltd. Mr Barnett and the applicant are the beneficiaries of the trust, the directors of the trustee and its shareholders. The application states that Mr Barnett is a lay associate of the practice because he is a person who "shares receipts, revenue, or other income arising from the law practice". 2. The words in quotations come from the definition of "lay associate" contained in s 6 of the Uniform Law. The full text of the definition of lay associate is: lay associate of a law practice means a person who is not an Australian legal practitioner and who is— (a) an associate of the law practice; or (b) a consultant to the law practice (however described) who provides services related to legal services to the law practice, other than services of a kind specified in the Uniform Rules for the purposes of this definition; or (c) a person who shares the receipts, revenue or other income arising from the law practice 1. In addition, Mr Barnett works in the legal practice. The details of that work will be set out subsequently in these reasons. Applicant's Evidence and the position of the Respondent 1. The applicant tendered two affidavits: 1. Affidavit of the applicant dated 19 April 2017 (marked Exhibit A); and 2. Affidavit of the applicant dated 16 August 2017 (marked Exhibit B). 1. Mr Pierotti for the Law Society submitted that the Law Society was, strictly speaking, not a respondent to the application but rather, was present to assist the Tribunal. He indicated that the Law Society raised no objections to the tendered affidavits. 2. He also stated that the Law Society did not oppose the application and nor did the Law Society seek to impose any conditions on the approval which the application sought. Summary of Applicant's Evidence 1. The ownership structure of the applicant's law firm, Tarella Law Pty Ltd has already been set out. In addition, Mr Barnett has a further role in the day to day operation of the applicant's practice and that role is explained in Exhibit A. Essentially, Mr Barnet attends the office one day a week and performs administrative tasks like photocopying, scanning, taking telephone messages, attending the post office and court registry. 2. Exhibits A and B also provide some detail of the circumstances leading to Mr Barnett's conviction on the charge of dangerous driving occasioning death. He was formally convicted and sentenced in the District Court on 4 November 2016. Exhibit B contains a transcript of the remarks made by the District Court Judge upon sentencing Mr Barnett. It is relevant to summarise the points of her honour's judgment relevant to this application as follows: 1. Mr Barnett was driving a prime mover across the Hawkesbury Bridge when he collided with a stationary vehicle which had broken down. A passenger in the vehicle was killed; 2. An extract from the judgment reads: "The offender's conduct did not involve excessive speed, affectation by alcohol or drugs, erratic driving, fatigue or any degree of abandonment of responsibility"; 3. A further extract reads: "To be clear, the offender's inattention was extremely serious particularly in view of the fact that he was driving a heavy vehicle at speed. However, I am of the view that his conduct constitutes momentary inattention"; 4. The judgment contains references to the offender's good character and states: I am satisfied that the offender is rehabilitated and has been profoundly affected by the consequences of his actions. I am also satisfied that he is unlikely to reoffend. 1. The judgment reveals that the offender was sentenced to a period of imprisonment of two years to be served by way of an intensive corrections order. Applicant's Submissions 1. The applicant has provided the Tribunal with written submissions prepared by Mr Isaacs and these may be summarised as follows: 1. The Tribunal is the prescribed designated local authority vested with jurisdiction to decide an application of this kind (see s 121 of the Uniform Law) and s 11 of the Legal Profession Uniform Law Application Act 2014 (the Application Act); 2. Section 121 of the Uniform Law provides: 121 Contravention by law practice—disqualified or convicted person as lay associate (1) A law practice contravenes this subsection if the law practice has a lay associate whom any principal or other 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 lay associate is approved by the designated local regulatory authority under subsection (2). Penalty: 100 penalty units. (2) The designated local regulatory authority may, on application, approve a person as a lay associate for the purposes of this section. An approval may be given generally, or for a particular position or category of positions with a particular law practice, or for a particular category of positions with any law practice. (3) In dealing with an application for approval of a person as a lay associate, the designated local regulatory authority may consider any relevant matters and must consider the following matters so far as they are relevant— (a) the nature and circumstances of the person's disqualification or conviction; (b) the requirements and responsibilities of the arrangement or kind of arrangement under which the person is seeking to be employed or otherwise involved; (c) the degree of connection between the person's disqualification or conviction and the requirements and responsibilities of the arrangement or kind of arrangement. (4) An approval may be granted unconditionally or subject to specified conditions. Note The designated local regulatory authority could consider a person's application for approval as a lay associate at the same time as it decides not to grant or renew, or decides to suspend or cancel, the person's Australian practising certificate. 1. The expression "serious offence" is defined in the Uniform Law as: Serious offence means an offence that is— (a) an indictable offence against a law of the Commonwealth, a State or a Territory (whether or not the offence is or may be dealt with summarily); or (b) an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth, a State or a Territory if committed in Australia (whether or not the offence could be dealt with summarily if committed in Australia) 1. By operation of s 121 of the Uniform Law, Mr Barnett is unable to work as a law associate of Tarella Law Pty Ltd unless he is granted approval by the Tribunal; 2. Given Mr Barnett's role in the ownership structure of the practice, it is clear that he is a person who would share in the revenue or other income arising from the law practice. Therefore, a consequence of Mr Barnett remaining a beneficiary of the trust as well as a director and shareholder of Tarella Law Pty Ltd is that he can only do so if approved as a lay associate; 3. The Tribunal is free to consider any relevant matter in deciding whether or not to grant an application for an individual to be an approved lay associate (see s 121(3) of the Uniform Law); 4. While the Tribunal is permitted to have regard to any relevant matter when determining whether or not to grant an application for a person to be a lay associate, the Tribunal is required to have regard to the matters prescribed by s 121(3) of the Uniform Law; 5. Mr Barnett was convicted of a serious offence relating to his driving of a heavy vehicle on the road. Mr Barnett's conduct led to the death of the passenger of the car that Mr Barnett collided with. The focus of the case before the District Court was whether Mr Barnett's momentary inattention from the road was sufficient to warrant the characterisation that the driving was in a manner dangerous in all the circumstances; 6. An assessment of the nature and the circumstances of the offence militate in favour of the Tribunal approving Mr Barnett as a lay associate for the following reasons: 1. The offence in question does not involve conduct as a legal practitioner or any involvement in the legal practice; 2. The offence does not involve any breach of trust or related consideration; 3. The offence is established by proof of an objective standard which does not include any consideration of the intent or other possible state of mind of the accused which may concern the Tribunal; 4. The sentence imposed on Mr Barnett of an intensive corrections order is an alternative to a full time custodial sentence which imposes a series of strict conditions during the currency of that sentence. The nature of the sentence and the content of the sentencing remarks by the trial Judge would give the Tribunal confidence that Mr Barnett accepted responsibility for his offending conduct, showed remorse and insight into his offending conduct and reflected the fact that the commission of this offence was truly out of character for a man whose character is otherwise exemplary; 5. The nature and circumstance of the offending which lead to the conviction would not concern the Tribunal about Mr Barnett's fitness to be a lay associate; 6. Mr Barnett's involvement in the practice is of a limited nature being restricted to administrative tasks. This and his involvement in the ownership structure are arrangments that would not trouble the Tribunal in granting him approval to act as a lay associate; and 7. There is no connection between the nature and the circumstance of Mr Barnett's conviction for a driving offence and the requirements and responsibilities of the arrangments that he would be subject to as a lay associate. The absence of any degree of connection between the reasons for his conviction and his ongoing involvement as a lay associate would give the Tribunal comfort that it could grant approval for Mr Barnett to be a lay associate. Respondent's Submissions 1. Mr Pierotti for the Law Society provided the Tribunal with some information to assist the Tribunal in its deliberations. What Mr Pierotti said may be summarised as follows: 1. The Tribunal has set out the principles relevant to an application of this kind in McGirr & Anor v The Council of the Law Society of NSW [2014] NSWCATOD 154; 2. In McGirr the Tribunal stated that the primary principle which the Tribunal must consider is the protection of the public. The Tribunal in that case relied upon earlier decisions including that of Michael John Charles Caiger (1994) 1 LPDR 32. In that case it was said that 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. The Tribunal must be satisfied on the balance of probabilities and comfortably satisfied pursuant to the principles enunciated in Briginshaw v Briginshaw [1938] 60 CLR 336 that there will be no risk occasioned by giving approval to the association with the proposed lay associate. In McGirr the Tribunal also referred to the integrity of the legal profession as a relevant consideration. The Tribunal referred to the need to be assured that the proposed approval to the engagement of the lay associate would not negatively affect the good standing of the solicitor in whose office the lay associate seeks employment; 3. Mr Pierotti also referred to par 63 of the McGirr decision in which the Tribunal referred to further factors which may be relevant. These are: 1. The circumstances of the relevant conviction; 2. The present circumstances of the applicant; and 3. The evidence given supporting the applicant. 1. Mr Pierotti submitted that these three factors in the circumstances of this case did not result in any negative conclusion about the suitability of Mr Barnett. He stated that the Law Society did not oppose the application and did not seek to argue for any conditions to be imposed upon an approval which the Tribunal might consider. Consideration 1. In our view, this application ought to be approved and we propose to make the order sought by the applicant. We see no need for any conditions to be imposed. Our reasons follow in the subsequent paragraphs. 2. The indictable offence committed by Mr Barnett does not, in our view, lead us to conclude that his presence in and association with the law practice would constitute a risk to the public or to the standing of the legal profession. Although the accident was extremely serious in its consequences, the circumstances of the accident leading to Mr Barnett's conviction do not suggest that he lacks integrity or would be a risk to the public. The sentencing Judge's remarks concerning the accident and Mr Barnett together with the character references which the sentencing Judge relied upon, lead us to the conclusion that Mr Barnett's association with the law practice would not constitute either a risk to the public or diminish the integrity of the legal profession. It is relevant to consider whether the integrity of the legal profession would be damaged by granting the application (see Miedzinski v Council of the Law Society of NSW [2007] NSWADT 268). In our view, the matters referred to in the sentencing Judge's judgment lead us to conclude that there is no risk of such damage eventuating. 3. Turning to s 121(3)(a), (b) and (c) of the Uniform Law, we find: 1. As to (a), the nature and circumstances of the conviction have been described above. There is no aspect of the circumstances of the conviction and sentence, which would cause us concern insofar as the protection of the public, the integrity of the profession or the operation of the practice are concerned; 2. As to (b), we are of the view, as stated below, that Mr Barnett's role as a director of the incorporated legal practice means the requirements and responsibilities he has in such a role are of a similar nature, to those applicable to a legal practitioner; and 3. As to (c), there is, in our view, no relevant connection between the conviction and the requirements and responsibilities applicable to Mr Barnett's position in the practice. 1. In reaching the above conclusions, we have not applied a lower standard to Mr Barnett by reason of the relatively insignificant administrative tasks he undertakes at the law practice. Rather, we have had regard to the fact that he is a director of the incorporated law practice and in that important role, could potentially make significant decisions affecting the conduct of the trustee company and of the trust. Although there is some authority for the view that one should have regard to the fact that a lay associate does not necessarily have the same level of responsibility as a legal practitioner and accordingly a lower standard might be applicable than the standard applicable to a legal practitioner, nevertheless we do not think that that consideration is relevant to this case given Mr Barnett's role as a director. 2. In addition, we acknowledge that the burden of proof which the applicant must satisfy is the Briginshaw standard referred to earlier. We are comfortably satisfied in the conclusions we have reached and find that the applicant has provided sufficient evidence to satisfy the Briginshaw standard. Orders 1. The Tribunal makes the following order: 1. Pursuant to section 121 of the Legal Profession Uniform Law (NSW) Steven James Barnett is approved as a lay associate of the law practice Tarella Law Pty Ltd. ******** 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: 16 November 2017