Council of the Law Society of the Act v Wearne (Occupational Discipline)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v WEARNE (Occupational Discipline) [2015] ACAT 27

OR 14/30
Catchwords: OCCUPATIONAL DISCIPLINE – LEGAL PRACTITIONERS – unsatisfactory professional conduct - consent orders – purporting to witness statutory declaration when not done so

Legislation cited: Legal Profession (Solicitors) Rules 2007

List of

Texts/Papers cited: Legal Aid Commissioner (ACT) Enterprise Agreement 2011-2013

Tribunal: Mr G. Lunney SC – Senior Member

Date of Orders: 26 August 2014

Date of Publication of orders: 31 March 2015

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ) NO: OR 14/30

RE:COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant

AND:NECIA WEARNE
Respondent

ORDERS

Tribunal: Mr G Lunney SC – Senior Member

Date of Order: 26 August 2014

By consent, the Tribunal orders that:

A finding that the respondent has been guilty of unsatisfactory professional conduct.
An order publicly reprimanding the respondent.
An order that the respondent pay the applicant’s costs on the Supreme Court scale on a party/party basis as agreed or as assessed.

Particulars:

(i)The respondent, in breach of Rule 1.2 of the Legal Profession (Solicitors) Rules 2007, failed to act with competence and diligence in the service of her client, by recklessly apply her signature in the place for a prescribed person to witness a statutory declaration, in circumstances where her client had not sighted, approved or signed the declaration as more particularly detailed in paragraphs 2 to 4 in the Agreed Statement of Facts, and by so doing engaged in conduct that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian Legal Practitioner.

Agreed statement of Facts:

The Respondent was at all material times, including on 30 July 2013, a local legal practitioner employed by the Legal Aid Commission (Commission) and the holder of a restricted practising certificate.

On or about 30 July 2013, the Respondent at about 5:00 pm on the afternoon immediately before she was to embark upon nine (9) weeks recreation leave, applied her signature to a Form 1410 Statutory Declaration in preparation for lodgement with the Department of Immigration and Citizenship (Department) on behalf of a client, [name redacted] which form was completed in accordance with instructions provided by the client at an earlier conference.

The Client had not sighted, approved nor signed the declaration and was not present when it was signed by the Respondent.

The Respondent provided oral and handwritten instructions to an administrative officer to progress the matter. The Form 1410 was provided by an unknown employee of the Commission to the Client who, between 30 July 2013 and 6 August 2013, signed and returned it to the Commission, although the form was not further actioned and, in particular, was not submitted to the Department.

The Commission appointed Clayton Utz to investigate the matter and provide a report which found on the balance of probabilities the Respondent was guilty of misconduct as defined by the Legal Aid Commissioner (ACT) Enterprise Agreement 2011-2013.

On 17 December 2013, the Respondent resigned her employment at the Commission with effect from 29 January 2014.

The matter was referred to the Society by the Commission on 28 January 2014.
Signed ........................................
Mr G Lunney SC
Senior Member

HEARING DETAILS

FILE NUMBER:	OR 14/30
PARTIES, APPLICANT:	Council of the Law Society of the ACT
PARTIES, RESPONDENT:	Necia Wearne
COUNSEL APPEARING, APPLICANT
COUNSEL APPEARING, RESPONDENT	Ms T Warwick
SOLICITORS FOR APPLICANT	Phelps Reid Lawyers
TRIBUNAL MEMBERS:	Mr G. Lunney SC – Senior Member
DATES OF HEARING:	26 August 2014

The respondent, Mr Wearne, was found to have engaged in unsatisfactory professional conduct by the Council of the Law Society of the ACT. The Council sought an order that Mr Wearne be publicly reprimanded and that he pay costs. The dispute was heard by the Supreme Court of the ACT. The Council alleged that Mr Wearne had witnessed a statutory declaration when he had not done so. The Council claimed that Mr Wearne had signed a statutory declaration as a witness when he had not actually witnessed the deponent sign the declaration. Mr Wearne conceded that he had not witnessed the signing of the declaration, but claimed that he had relied on the deponent’s assertion that the declaration had been signed in his presence.

The court had to decide whether Mr Wearne’s conduct constituted unsatisfactory professional conduct and whether the penalties sought by the Council were appropriate. The court found that Mr Wearne’s conduct did amount to unsatisfactory professional conduct as it breached the professional obligations of honesty and integrity. The court also found that the penalties sought by the Council were appropriate. The court noted that Mr Wearne had not disputed the Council’s case and had not sought to justify his conduct. The court held that the penalties sought by the Council were necessary to uphold the professional standards of legal practitioners and to maintain public confidence in the legal profession.

The court made an order finding that Mr Wearne had engaged in unsatisfactory professional conduct. The court also ordered that Mr Wearne be publicly reprimanded. Finally, the court ordered that Mr Wearne pay the costs of the proceeding. The court noted that the costs should be paid on the Supreme Court scale on a party/party basis as agreed or as assessed.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established