Montenegro v Law Society of NSW [2015] NSWSC 867

Montenegro v Law Society of NSW [2015] NSWSC 867

The plaintiff's disclosures had been incomplete and in some respects apt to mislead, and he may previously have obtained a practising certificate because of incorrect or incomplete information. However, dishonesty or deliberate concealment was not put or established. Having regard to the nature and age of much of the offending, the extent of disclosures actually made, the explanations accepted as failures of diligence and understanding rather than fraud, the testimonial evidence, and the capacity to address continuing concerns by conditions, circumstances warranted a determination that the plaintiff was a fit and proper person to hold a restricted local practising certificate subject to...

Jurisdiction
Australia
Judgment Date
02 July 2015
Procedural Posture
Appeal Under S 108 Legal Profession Act 2004 (nsw) From Refusal to Grant a Local Practising Certificate / Hearing De Novo Before the Supreme Court of New South Wales
Outcome
Appeal allowed.
Legal Topics
['practising Certificate' 'fit and Proper Person' 'disclosure of Criminal Convictions' 'good Fame and Character' 'restricted Practising Certificate' 'conditions on Practising Certificate']
['legal Practitioners' 'administrative Law'] ['practising Certificate' 'fit and Proper Person' 'disclosure of Criminal Convictions' 'good Fame and Character' 'restricted Practising Certificate' 'conditions on Practising Certificate']

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Procedural Posture

Appeal Under S 108 Legal Profession Act 2004 (nsw) From Refusal to Grant a Local Practising Certificate / Hearing De Novo Before the Supreme Court of New South Wales

Legal Issues

  1. 1 ["Whether the solicitor's prior criminal convictions and related circumstances were adequately disclosed to the Legal Profession Admission Board, the Law Society and the Bar Council." 'Whether incomplete or misleading disclosures meant the solicitor was not a fit and proper person to hold a local practising certificate.' 'Whether, notwithstanding matters within s 42(2)(a) Legal Profession Act 2004 (NSW), circumstances warranted a determination under s 42(3) that the solicitor was fit and proper to hold a restricted local practising certificate.' 'What conditions should be imposed if a restricted local practising certificate were warranted.']

Ratio Decidendi

The plaintiff's disclosures had been incomplete and in some respects apt to mislead, and he may previously have obtained a practising certificate because of incorrect or incomplete information. However, dishonesty or deliberate concealment was not put or established. Having regard to the nature and age of much of the offending, the extent of disclosures actually made, the explanations accepted as failures of diligence and understanding rather than fraud, the testimonial evidence, and the capacity to address continuing concerns by conditions, circumstances warranted a determination that the plaintiff was a fit and proper person to hold a restricted local practising certificate subject to...

Court Disposition

Appeal allowed.

Orders

  • ['Set aside the decision of the Council of the Law Society of New South Wales made on 15th January 2015 refusing to grant the plaintiff a local practising certificate.' 'Declare that as at 15th January 2015, notwithstanding that the plaintiff was a person within s 42(2)(a) Legal Profession Act 2004, circumstances...