Citation: [2016] NTSC 9

Court: Supreme Court of the Northern Territory

Judgement of: Hiley J

Procedural History

Following consideration of Mariel Jessica Sutton’s application (‘the Application’) to be

admitted as a lawyer pursuant to s 25 of the Legal Profession Act 2006 (NT) (‘Act’), she was
asked by the Legal Practitioners’ Admission Board (‘Board’) to provide further information
regarding an admission of an overpayment made by the Department of Human Services
(‘Centrelink’) by means of a second affidavit.

After reconsidering the Application on 15 October 2015, with additional information

provided to the Board by the applicant on the 7 October 2015, the Board referred the issue
of whether the Applicant is a fit and proper person to be admitted to the Supreme Court
pursuant to s 32(1) of the Act. A memorandum entitled “Application for Admission by Mariel
Jessica Sutton” was sent to the Honourable Hiley J. (‘his Honour’) [3 & 4].

Written submissions were provided on behalf of the Applicant and by the Law Society
Northern Territory (LSNT) acting as amicus curiae. The Applicant gave evidence at the
hearing of her application on 7 January 2016 and was cross-examined by counsel for LSNT
[7].

Facts

From 28 March 2014 the Applicant had been receiving Youth Allowance payments for full-
time studies. On the 14 July 2014 the Applicant commenced work at De Silva Hebron
lawyers as a clerk and commenced part-time studies 22 July 2014. She continued to receive
Youth Allowance until 28 August 2014, incurring a $1465.28 overpayment [2]. The Applicant
attended Centrelink to report her change of circumstances on 8 September 2014.

In her First Affidavit the applicant did not disclose details related to her Centrelink
overpayment [3 & 7].

Paragraph 20 of her First Affidavit stated that she had a debt to Centrelink which arose
because the payment continued when she began part-time studies. The Applicant stated
thought she was only required to inform Centrelink after she began full time employment
and earned threshold [10].

With information gained from a Freedom of Information request to Centrelink, the

Applicant supplied a Second Affidavit dated 7 October 2015 to the Board which clarified
statements in paragraph 20 of her First Affidavit and listed 30 documents that had been
sent to her in 2014 by Centrelink [14 & 15].

Issues(s)

Five issues related to Ms. Sutton’s application are very clearly shown [102]:

(a) How serious was the Applicant’s conduct in relation to the Centrelink overpayment?
(b) With regards to the wording of paragraph 20 in the First Affidavit, was Ms. Sutton not
significantly candid, and did she deliberately try to mislead the Board or act recklessly
with regards to honesty?
(c) Did the Second Affidavit ensure that the Board then had all necessary information about
the Centrelink debt?
(d) Has the Applicant acknowledged misleading the Board and her failures to provide all
relevant information to the Board, and demonstrated a proper appreciation of the
important obligations of candour and honesty?
(e) Is the Applicant a fit and proper person for admission to practice as a lawyer?

Reasoning

With the ultimate question being whether the Applicant is a fit and proper person for
admission to practice as a lawyer, his Honour chose to focus on the matters raised by the
Board and the LSNT to answer the ultimate question [103].

The first matter was the misleading implication in paragraph 20 of the First Affidavit that the
Applicant went to Centrelink before she commenced her employment, as it gave the
impression that the Applicant contacted Centrelink prior to commencing full-time
employment [105 & 106]. He stated that the Applicant accepted the misleading nature of
paragraph 20 in her oral evidence. He found the Applicant remorseful in her Second
Affidavit and stated that without further explanation that paragraph 20 would have been
dishonest and misleading [107]. His Honour found that at the time of writing paragraph 20,
she lacked insight in the importance of her obligations of one making an affidavit which
forms part of her application as a lawyer. With this, her acknowledgements that she failed in
her obligations to be full and frank, and her oral evidence, his Honour accepted that she
understood and acknowledged her error and was not intending to mislead the Board [109 &
110].

The second matter for consideration was the Applicant’s lack of disclosure related to her
overpayment from Centrelink due to failure to notify of the change from full-time to part-
time studies, and her assertion that she did not know that she need notify Centrelink of that
change [111]. His Honour appreciated that the applicant could not recall all of the content
of the 10 letters sent to the applicant, but found it likely that the Applicant had received and
acted upon the letter of 12 May 2014 and seen the 14 May 2014 letter as it pertained to
success of her Youth Allowance. He noted that the first paragraph of the 14 May letter
states her obligation to advise Centrelink within 14 days of a study load change [112 & 113].
His Honour reasoned that although the Applicant should have realized she needed to inform
Centrelink of her study load change, she did not give Centrelink correspondence the full
attention that it deserved and did not appreciate her reporting obligations [113 & 114].
With this in mind, his Honour went on to find that the Applicant’s failure to notify Centrelink
of the change to her study load was disclosed [115].

The third matter for consideration was the Board and his Honour’s concern over the
Applicant’s explanation for the delay before notifying Centrelink of her change in
circumstances, stating that she should have been prepared to notify prior to commencing
her new job. His Honour agreed with the Applicant’s observation of her own immaturity
with regards to notifying Centrelink, noted that she attended to repayment arrangement
immediately [119 & 120], and with her oral evidence his Honour found that she had
understood the importance of giving correspondence the weight it deserves [121].

Finally his Honour found that the Applicant was not shifting responsibility when disclosing
that showing drafts of her affidavits to Mr. De Silva and Mr. Orr, as it was Mr. De Silva who
suggested the Applicant include paragraphs stating that she had shown them drafts of her
initial affidavit [122].

Order/Decision
Utilising facts, oral evidence and observations of the Applicant in the witness box, character
references, common law provided by the Applicant, the Board and the LSNT, his Honour
found the Applicant to be a fit and proper person to be admitted as a lawyer.