Qld CA clean bowls admissions board which got hung-up on graduate’s trivial mistakes … SA Full Court not so kind to solicitor who made false claims for legal aid funds … Nick Bonyhady reports
The board had contended that the applicant, Kara Benchemam, a 25-year old law graduate living in Townsville, had failed to disclose that she had once been overpaid by Centrelink and submitted her tax returns late.
In her original application for admission, the applicant noted that she was “aware of the Centrelink overpayments that may bear adversely on my eligibility and suitability”.
It was this admission that prompted the board to ask for more information, which grounded a further submission from the LSC that the applicant had only disclosed her errors in a piecemeal fashion.
“She has been seriously careless, at best, in discharging her suitability matters to the board and the Supreme Court.”
Walter Sofronoff P with John Bond and Peter Davis JJ would have none of it, finding that the applicant’s disclosure had been prompt, and her errors minor.
The applicant seems to have come from a modest family. Her mother received family benefits payments and the applicant began working at a local chemist when she was in her early teens. When she later began working a second job as a clerk at the Northern Circuit Chambers, she received an overpayment of about $9,000 from Centrelink as her income increased.
Justice Davis noted:
“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 applicant had not set out to defraud Centrelink – there had simply been confusion between the applicant and her mother about how the Centrelink payments worked once the applicant turned 16 – and she promptly repaid the $9,000.
Justice Davis held:
“The applicant … 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.”
As a result, Justice Davis strongly rejected the aspersion of dishonesty in the board’s submission.
“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 … Oblique hints at dishonesty are not appropriate.”
As for the applicant’s late lodgement of her tax returns, HH was not concerned.
“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.”
Scott Geeves, barrister at Northern Circuit Chambers, provided a glowing reference:
“A more loyal, discreet, mature and trustworthy young lady you would not meet.”
At the admissions ceremony that immediately followed the judgment, their Honours paid tribute to the applicant’s character.
Sofronoff P said:
“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.”
The charges all relate to cases in 2014 and 2015 where Mancini claimed legal aid funding for work he had not actually undertaken.
In one case, Mancini told the commissioner he had represented an accused in the Magistrate’s Court when in reality he had been communicating with the court via fax.
Mancini argued that because he had secured the dropping of an assault charge, allowing his client to go home with a fine and good behaviour bond for driving offences, he was entitled to the full fees.
In another, Mancini asked for funds to represent an accused in the District Court when his client’s persistent sexual exploitation of a child charge had already been dropped in the Magistrate’s Court.
Another three cases in the 2014-2015 period involved similar discrepancies between Mancini’s claims for funding and the services he actually provided.
The Legal Practitioners Disciplinary Tribunal found that while Mancini had improperly claimed legal aid funds, he had an honest belief that he was entitled to the funds.
This finding, which the tribunal made in relation to each charge, meant that Mancini escaped a conviction for the more serious offence.
The Supreme Court of South Australia disagreed. Justices Kelly, Blue and Parker found that the tribunal had erred in failing to consider each instance of Mancini’s dishonesty individually, the severity of his failings, and Mancini’s history.
The tribunal also misapprehended the relationship between unsatisfactory professional conduct and professional misconduct.
In 2014, Mancini was placed under supervision after admitting that he had made false and misleading statement to an expert psychologist he had engaged.
As a result, his application to become a legal aid lawyer was initially rejected and accepted only after he agreed to strict conditions.
The court was particularly concerned that:
“… the tribunal made no reference to the practitioner’s disciplinary history, the fact that at the time of the alleged conduct the subject of the charges he was under supervision pursuant to an order made by this court or the fact that the commission had imposed special conditions on his admission to its general and complex criminal case panels which related to the adequacy of his provision of information to the commission. It is evident that those special conditions were imposed due to concerns by the commission as to the adequacy of the provision of information by the practitioner in the past.”
In light of the errors identified in the tribunal’s judgment, the SA Supremes found Mancini guilty of professional misconduct on three counts and remitted the remaining counts back to the tribunal for a new hearing.