LEGAL PRACTITIONER’S ADMISSION BOARD DETERMINES WHETHER THE APPLICANT MAY BE ADMITTED AS A LOCAL LAWYER DESPITE FAILURE TO SETTLE FINANCIAL OBLIGATIONS
In the matter of an application by Joelon Alex Fincher [2021] NTSC 22 (26 February 2021)
This case involves an application by Mr Fincher to be admitted as a local lawyer despite the failure to comply with the obligation in relation to the Centrelink overpayments.
Facts:
Joelon Alex Fincher (‘the applicant’) applied to be admitted as a local lawyer. His application was considered by the Legal Practitioners’ Admission Board (‘the Board’). The Board asked him to provide more information by way of a further affidavit in relation to, relevantly, the Centrelink overpayment disclosed by the applicant in the first affidavit. The applicant made a second affidavit on. The second affidavit revealed that the applicant had actually incurred four Centrelink overpayments between 2009 and 2014.
Two issues may arise in relation to Centrelink overpayments. The first is the fact of the overpayment itself – obtaining Centrelink overpayments by serious deception and patent dishonesty may be inimical to fitness to practice as a legal practitioner. The second is the failure to comply with the obligation of candour in relation to the Centrelink overpayments.
The applicant’s evidence is to the effect that the overpayments occurred because he did not pay sufficient attention to his reporting obligations at the time, did not take his obligations as seriously as he should have, did not appreciate the level of responsibility he had, and failed to display attention to detail in complying with those obligations. He also attested that he did not attempt to deliberately mislead Centrelink or claim benefits he knew he was not entitled to; rather, he made immature and careless mistakes and failed, over a number of years, to learn from those mistakes.
The applicant also attested that, during 2008-2012 (the period in which three of the four Centrelink overpayments were incurred), his life was very unsettled and unstable and he suffered a serious knee injury in a motor bike accident which ultimately required surgery.
Issue: Is the applicant fit and proper to be admitted as a local lawyer?
Law:
- Legal Profession Act 2006 S.11, 25, 30, 31
Analysis:
The Board’s concerns that the applicant was evasive in his disclosures, and any suggestion that the applicant deliberately failed in his obligation of candour, are not borne out by the evidence before the Court. The inaccuracies and glosses contained in the applicant’s disclosures to the Board are properly characterised as erroneous but understandable errors of judgement rather than a deliberate lack of candour to avoid placing before the Board or the Court material he perceived to be adverse to his application but which he knew would be regarded by the Court as significant, or a serious and reckless laxity in his approach to honesty in his application.
In regard to the initial disclosure that the applicant had received a single Centrelink overpayment, when in fact he had received four Centrelink overpayments across the period 2009 to 2014, adequate explanation has been provided both as to the applicant’s error of judgement in relying upon his memory when making the initial disclosure and as to why his memory was erroneous.
The court is satisfied that the applicant now understands the importance of the obligation of candour and its inherent requirements for checking the accuracy of the facts by reference to reliable evidence, for the utmost care and attention to detail, and for caution in language and expression, to ensure full and accurate disclosure of all relevant matters to avoid misleading.
Conclusion: The applicant has established that he is a fit and proper person for the admission as a local lawyer under the Act.
