Re Legal Profession Act 2004; re OG, a lawyer [2007] VSC 520 (14 December 2007)

IN THE MATTER OF THE LEGAL PROFESSION ACT 2004
IN THE MATTER OF THE LEGAL PROFESSION ACT 2004
AND
IN THE MATTER OF OG, A LAWYER
IN THE MATTER OF OG, A LAWYER

JUDGES:	WARREN CJ, NETTLE JA and MANDIE J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	23, 24 October, 5, 7, 8 November 2007
DATE OF JUDGMENT:	14 December 2007
MEDIUM NEUTRAL CITATION:	[2007] VSC 520	2nd Revision 9 October 2008

LEGAL PRACTITIONERS – Admission to practise – Revocation of order for – Duty of disclosure – Failure to make full and frank disclosure to Board of Examiners – Collusion in preparation of university assignment – Striking off roll – Inherent jurisdiction – Respondent struck off – Legal Profession Act 2004, ss 2.3.7 and 4.4.39; Legal Practice (Admission) Rules 1999, r 4.03(1)(b), Schedule 8.

APPEARANCES:	Counsel	Solicitors
For OG	Mr P J O’Callaghan QC with Mr R S Randall	Harrick Partners Pty Ltd

For the Legal Services Board	Mr S R Senathirajah	Legal Services Board

For the Board of Examiners for Legal Practitioners	Mr D M B Derham QC with Mr S G E McLeish SC	William Murray

1 This matter comes before the court as an application by the Board of Examiners by summons dated 22 June 2007 for the court to consider a report of the Board dated 16 February 2007 concerning the admission of OG to practise as an Australian Lawyer, and to make such orders as seem fit. The Legal Services Board appears by counsel by leave to prosecute the application. The Board of Examiners appears separately by counsel but its role in the proceeding has been confined to making submissions on matters of law.

2 The principal question is whether OG adequately disclosed to the Board of Examiners the circumstances in which he came to be awarded a zero grade or mark for an assignment that he was required to submit while studying for a Bachelor of Business degree at Victoria University.

3 In and between 2001 and 2005 OG studied at the university for the degrees of Bachelor of Business and Bachelor of Laws. As part of that course, during the first semester of 2005 he was enrolled in the subject of Strategic Marketing and Planning. There were three assessment components for that subject. The first was a joint assignment (‘the first assignment’) which was required to be undertaken by students working in groups of up to four. It was worth 40% of the total assessment. The second was an individual assignment (‘the second assignment’) which each student was required to produce without significant assistance or contribution from other students. It had a 1500 word limit and was worth 20% of the total assessment. The third was an examination, worth 40% of the total assessment.

4 The first assignment required an analysis of the environment, market, customers, competitors and internal management of a company, Ultraceuticals Pty Ltd, in order to identify the company’s strengths and weaknesses and the opportunities and threats it faced. The second assignment, which built of the first, called for a decision as to which of which of two marketing strategies considered in the first assignment, ‘Porter’s competitive strategy’ and ‘Day’s resource based view’, was better suited to the circumstances of the company. Students were required to choose the more appropriate strategy, and provide reasons for their choice, and then apply the chosen strategy to the company.

5 GL was a friend of OG who studied with him for the combined degrees of Bachelor of Business and Bachelor of Laws. During the first semester of 2005, he too was enrolled in the subject of Strategic Marketing and Planning and he and OG worked together as a group of two to produce the first assignment.

6 The second assignment was handed out at a lecture on 18 May 2005. GL attended that lecture but there is a dispute as to whether OG did so. GL recalls that he did. OG says that he recalls that he did not, because the lecture was held at the Footscray campus of the university and clashed with another subject which OG was taking at the Queen Street, Melbourne campus. GL made notes of what the lecturer said about the assignment. As GL recalls, the lecturer stated that students were required to describe or outline and to apply one of the two marketing strategies.

7 The scope of the second assignment was also discussed at a tutorial held some days after the lecture. It is not in issue that both GL and OG attended the tutorial. GL also made notes of what the tutor said about the assignment. According to GL’s recollection, the tutor said that students should select one of the two marketing strategies and demonstrate its application to the facts given, but that students were not required to describe or outline the selected strategy. The tutor handed out a suggested outline or plan for the assignment with suggested headings that might be useful in the assignment.

8 There is a dispute as to whether GL and OG discussed the second assignment. GL says that they discussed it on or about Friday 27 May 2005, some four days before it was due to be submitted on 1 June 2007. OG denies that they ever discussed the assignment.

9 GL’s recollection of the conversation has to some extent changed over time. In his affidavit sworn on 3 November 2006, he deposed that to the best of his recollection the content of the discussion was as follows:

GL: I know. The lecturer said we should give reasons for our choice and the tutor said we didn’t have to. Which one should we use?

GL: O.K. Let’s go with the lecturer then. Alright, so the question just asks you to pick Porter or Day and state why and make up strategies.

OG: Yeah, like give an example of the strategies, what does it mean by strategies.

GL: I don’t know, like pick a segment, O.K., let’s say old ladies, provide products that have anti-aging properties because that’s what they care about, you know, wanting to look younger, something like that.

GL: Yeah the three headings the tutor said, whatever they were I can’t remember now.

10 Contrastingly, in an affidavit sworn on 21 September 2007, GL deposed that, although by the time of the discussion he had not prepared his second assignment, he had a very good idea of what his approach to it would be and of what he wanted to say in it, and that he had prepared a written outline of it in his notebook. He deposed further that during the course of the conversation he read out from his notebook to OG in detail the market segments he proposed to select, the four marketing strategies he intended to use for each segment and the substance of what he was planning to say in respect of the application of the four marketing strategies to the assignment example. He also says that OG wrote down in his own notebook what GL read out to him.

11 OG has never wavered in his denial of having discussed the second assignment with GL before it was submitted.

12 GL and OG completed their second assignments and submitted them on 1 June 2005 and on that day they also sat the exam.

13 About three weeks later, after the second assignments had been marked and were due to be returned to students, the tutor told GL that his second assignment had been withheld (due to the detection of an irregularity) and sent to the Faculty of Business Topic Co-ordinator, Mr Jeffrey Kidd, and that GL should speak to Mr Kidd as soon as possible. On 24 June 2005, GL sent the following email to Mr Kidd:

It is my understanding that OG and I need to see you in relation to our individual assignments for Marketing Planning and Strategy. I wish to say that the only possible time for any meeting could be next Thursday, 30th June, as O[G] and I both have exams on the 29th and O[G] is going overseas on the 1st of July while I am going to Queensland on the 4th of July.

14 GL attended a meeting with Mr Kidd and Mrs Higgs (who was a Lecturer in Marketing) on 30 June 2005. His evidence is that he was there informed that it was suspected that his second assignment had been prepared in collusion with OG and that, if that were found to be the case, GL would receive a zero mark for the assignment. He said that Mrs Higgs showed him a copy of his second assignment and a copy of OG’s second assignment, each marked up to reflect some 26 detected similarities, and that Mrs Higgs said that she had particular concerns about the following three aspects of GL’s second assignment:

a) that his approach to considering which of the two market strategies was applicable to the company was markedly similar to the approach used by OG;

b) that the plan and outline of GL’s assignment was markedly similar to the plan and outline used by OG; and

c) that sentences and words used in GL’s assignment, while not precisely identical to those in OG’s assignment, appeared to be the work of OG and that the differences had been deliberately inserted by use of a thesaurus.

15 According to GL, he told Mrs Higgs that he had discussed the requirements of the second assignment with OG and that he and OG had in their discussion clarified that they would adopt the approach specified by the lecturer in preference to the tutor, but that, apart from that discussion, he had prepared the content of his second assignment without reference to OG.

16 GL said that he was asked to comment as to why he and OG had more or less an identical outline and plan. He replied that in the discussion which he had had with OG they had together decided to use the plan and headings suggested by the tutor and that thereafter GL had done exactly that apart from adding some headings relating to the identification of market segments, and that he had taken those from the first assignment. GL added that he assumed that OG had done the same thing.

17 GL said that he was asked to comment as to why his and OG’s respective approaches to the selection of the appropriate marketing strategy were similar, and GL replied that it should not be thought surprising that he and OG had each worked through the same process, given that the assignment required a selection to be made between Porter’s and Day’s strategies and that the approach taken was dictated by the strategies which they had been taught.

18 GL said that he was asked to comment as to the similarity between first sentences of each paragraph in three successive sections of his and OG’s second assignments. He answered that it was either mere coincidence or that it was the result of the fact that there were not many ways that one could say the same thing. He added that the subject matter of the three successive sections referred to material included in the first assignment.

19 GL said that Mrs Higgs asked him to detail how he had prepared his second assignment and GL stated that he had undertaken some research, making notes by hand, that he had referred to the first assignment and to the notes which he had made in conjunction with OG in researching the first assignment, and that he had typed out his second assignment on his laptop computer.

20 GL said that he was asked whether he had passed on either his notes or his second assignment to OG, and he answered that he had not. He was also asked whether there was any way that OG could have looked at GL’s notes or his laptop computer and GL answered that there was not; that he did not leave his laptop around the campus for fear of theft.

21 GL said that at the conclusion of the meeting, Mr Kidd and Mrs Higgs told him that they would need to talk to OG to find out how he went about creating his assignment but that, if they did not come to an acceptable conclusion as to why the assignments were so similar, GL would receive a zero grade for the assignment. They added that, if that occurred, GL would be entitled to appeal to the University Board but that, if he chose that course, an entry would be made in his permanent record. If instead he accepted an adverse finding without going to the Board, he would receive a zero mark but there would be no record kept of the matter.

22 Mrs Higgs gave evidence which substantially corroborated GLs’ recollection of the meeting. She said that she did not remember the meeting but that the university had an established protocol to be followed in such matters. She recalled that she had suspected collusion between GL and OG and she said that the standard procedure where copying or collusion was suspected was to underline the relevant section of the document and make annotations. In this case she had detected 26 similarities and marked them in accordance with the protocol. Having done that, she said that the standard procedure was to hand the documents to the course co-ordinator, who was then Mr Kidd, and brief him as to her suspicions that it was a case of collusion. Two academics were then appointed to have personal meetings with each of the students concerned, and the normal procedure at such meetings was to present the student with the assignments and the allegations and ask the student if there was any explanation for the apparent similarities (and any extenuating circumstances surrounding submission of the assignment). The object was to try and get each student’s account of events. Mrs Higgs said that at the conclusion of the interview the practice was to ask the student to leave the room while the academics discussed the case and reached a view. The course co-ordinator would then write a letter notifying each student of the outcome, which is to say that each student would usually be told the outcome of the meeting both orally and in writing.

23 There is a dispute as to whether GL told OG about what happened at his meeting with Mr Kidd and Mrs Higgs. According to GL, he called OG on his mobile telephone some ten to fifteen minutes after the meeting. He says that OG asked him: ‘How was your meeting? What did they say in the meeting about me?’, and that he replied that he had seen Mr Kidd and Mrs Higgs and that they had told him that they suspected his second assignment was prepared in collusion with OG. GL says he also told OG that he had explained to Mr Kidd and Mrs Higgs how he had gone about completing his second assignment: that he had used the information from the first assignment and the information he discussed with OG at their meeting before the assignments were handed in, and that he had then prepared the assignment in draft form and typed it up on his laptop computer. According to GL, OG asked then whether anything else had been said, and GL explained to OG that Mr Kidd and Mrs Higgs had ‘kept on going on’ about how he and OG had engaged in copying or collusion and how GL had used a thesaurus in order to create apparent differences, and that Mr Kidd and Mrs Higgs had selected individual sentences from the assignment and asked him to explain how he had gone about drafting them. According to GL, he told OG that he had answered Mr Kidd and Mrs Higgs by saying that he had looked at the lecture notes and the information which he had gained from lectures and from the tutor and just went on from there to write the sentences. GL says as well that at another point in the conversation he told OG that Mr Kidd and Mrs Higgs had said that they wanted to have a meeting with OG about their suspicions and that OG should make arrangements for the meeting as soon as he got back from the trip overseas for which he was to depart the next day.

24 GL’s version of events is to some extent corroborated by two other items of evidence. The first is the email of 24 June 2005, to which we have already referred. It implies that GL and OG were in communication about the meetings which each of them was to have with academic staff. The second is an email of 18 July 2005 from GL to OG while OG was away overseas. It was as follows:

I got 63 for tax and 65 for equity. Jarrod got 50 for tax and 60 for equity. Fuck a 76 for a dissertation, that is fucken awesome. I haven’t got that mark yet, but her comments seem promising so I should get a distinction. Fuck got back from Surfers Paradise today, was so good up there.

2500 a week is a shitload, what do you have to do for that job, and how can I get something like that, hehehe. FUCK.

You have to come back and sort out this marketing shit cos I don’t want to be doing another semester because of one bullshit class.

25 The email of 18 July 2005 was sent to OG at his email address at the university web site. OG admitted that he was able to get access to emails sent to that address from wherever there was internet access anywhere in the world. He did not deny that he had seen the email at or about the time it was sent, but said that he could not remember doing so. We think that it is probable that he did.

26 Despite that, OG denies that he had any conversation with GL about his meeting with Mr Kidd and Mrs Higgs

27 OG says that when he returned from abroad on 5 August 2005 he found waiting for him a letter from the university which required him to attend a meeting concerning ‘a Marketing subject’. We have not seen a copy of the letter. OG says that on 11 August 2005, during the following week, he had a meeting with Mr Kidd and Professor Polonsky (who was the acting co-ordinator while Mrs Higgs was absent on long-service leave). According to OG, Professor Polonsky said that he had with him copies of OG’s and GL’s second assignments, and that the assignments appeared to be similar. But OG says that Professor Polonsky did not show OG the assignments or use the word ‘plagiarism’ or ‘collusion’ and that OG did not perceive Professor Polonsky to suspect plagiarism or collusion or implicitly to be accusing OG of plagiarism or collusion. According to OG, Professor Polonsky merely asked him to explain how he had gone about constructing his assignment and he replied that he had just put together the information which he already had, using the material from the first assignment, lecture notes posted on the internet and the course material guide. According to OG, Professor Polonsky then said that that was not what had been expected - that OG had been required to go into more detail and explore the question further by conducting research; that OG had misunderstood the assessment component; and it was appropriate that OG receive a zero grade for the assignment. OG says that Professor Polonsky added that the matter would not go any further; that it was an internal issue that would not be recorded, but said nothing else. According to OG the meeting lasted no longer than 10 minutes.

28 On 21 September 2006 GL’s solicitor faxed a memo to Professor Polonsky stating:

I am seeking the release of so much of [GL’s] file as related to an allegation of cheating in the subject of Marketing Planning & Strategy. It was an assignment. He received a zero mark as a result of a meeting about 30/6/05 with Bronwyn Higgs & Jeffrey Kidd.

As part of his application to the Supreme Court Board of Examiners to be admitted as a solicitor, [GL] must make a full disclosure of any incident in which he was involved.

Sorry that it took so long to get back to you. The student’s file was in storage and it took longer to access than I hoped.

I have looked through the file and did not find a formal letter regarding the outcome of this matter. The University has recently changed procedures related to dealing with issues of plagiarism and collusion, where students meet with the course coordinator and subject lecturer, the coordinator then considers both sides and identifies if a resolution is possible. It a resolution is achieved than no additional formal processes are progressed, where as if no resolution is possible or if the students dispute the outcome the matter is taken to the Head of School. While documentation relating to the issues raised and outcome should be placed in the students file, this did not occur in this instance.

I have discussed the matter with the lecturer involved and the course coordinator. According to the notes that they had, the issue arose where two students had very similar assignments. When the matter was discussed with them, it was identified that the two students worked together on the material, which resulted in the assignment from both being very similar in content and structure. It was determined that the level of collusion was inappropriate and the grade allocated for the assignment was zero, with no further action being required. GL retook the subject BHO3235 in semester 2 of 2005 and completed the subject with a grade of 68.

I am not sure if you need any further clarification of this matter? If so please do not hesitate to contact me and I can discuss it with you further. I have posted you a signed copy of this letter as well.

...It is our understanding that you sent an email transmission to GLL[2] on 11 August 2005 at 2.39 pm.

Could you please confirm if the same or similar email transmission was also sent to our client on or about that date.

If such an email was sent to OG could you please send a copy of that email to Mark Harrick via the following email address...

31 A reply came back on 10 October 2007, directly from Dr Steven Stern, the university’s general counsel, as follows:

...I am instructed that Professor Polanski [sic] does not know what you are referring to in making mention of an email of 11 August 2005. According to the instructions that I have been given, Professor Polanski [sic] has no recollection of being involved.

I am instructed that after getting your email, Professor Polanski [sic] asked the School administration to ‘double check’ again to see if there is a copy of any correspondence, but the personnel there did not see anything in their files. Professor Polanski [sic] himself went back to his electronic files again as well to ‘double check’ and could not find anything either.

Professor Polanski [sic] is presently on leave from Victoria University, and is therefore unable to give me more precise instructions than those set out here.

Please direct all your further communications to the University or its personnel in relation to this matter to me.

32 Ultimately, however, Professor Polonsky swore an affidavit of 1 November 2007 and was cross-examined. In his affidavit he stated that in the second half of 2005 he had been head of the marketing discipline within the School of Hospitality, Tourism and Marketing and in that role had been present at a number of interviews with students concerning the propriety of the students’ work. He said that he did not now have any recollection of the meeting with OG, and therefore could not deny OG’s version of events. But he said that the standard practice in such interviews was to put the concerns directly to the student and ask for his or her explanation. He further deposed that, although he had no recollection of it, he had been told that in this case Mrs Higgs had formed the suspicion that OG had colluded with GL and marked up their assignments with at least 26 instances of suspicious similarity and provided those documents to university staff together with a verbal outline of her suspicions. He stated that, if those were the facts, the standard practice, assuming he had been involved, would have been that he:

a) Told OG that the university was concerned that he and another student had colluded in the preparation of the assignment;

b) Brought to OG’s attention the similarities in the two assignments that had prompted the university’s concern;

d) Told OG that, unless he was able to provide a satisfactory explanation, he would be awarded a zero for that assignment.

33 Professor Polonsky noted too that in all the interviews of that type he had attended over the years, there had only ever been one occasion when a student proffered a justifiable explanation which allayed the university staff’s concerns; and that OG’s case was not that instance.

34 OG says that when he checked his email inbox approximately 10 minutes after his meeting with Professor Polonsky and Mr Kidd, he had received an email from Professor Polonsky stating that OG’s overall mark for the subject was 51, and that he and passed the subject, and wishing good luck with his further studies. We have not seen a copy of the email.

35 On the same day at 2.39 pm GL received the following email from Professor Polonsky:

The review of your assignment in BHO3435 is now complete. After discussing the matter with both students involved we have determined that a zero grade for the assignment is the appropriate outcome. As such you[r] semester grade has been calculated on the assessment components completed.

We have processed the amendment to grade form, but wanted to let you know the outcome should you need to amend your timetable for semester 2.

According to Professor Polonsky it was very likely that the email sent to OG was the same as that sent to GL, except of course for the overall grade.

36 OG says that after he received his email he had a conversation with GL, in which GL asked him what score he had received, and that OG had responded that he had received 51 for the subject and that he had passed. According to OG, GL replied to the effect that he had received 49 [sic] and had failed. OG says he told GL that he had received zero for the second assignment because of a ‘misunderstanding as to the assessment requirement’. According to OG, GL responded that he had had a meeting with Mrs Higgs and Mr Kidd in July 2005 but did not say what had occurred. OG says that he then informed GL that he did not meet Mr Kidd or Ms Higgs.

37 GL’s version of that conversation is different, but not as clear. As he recalled the event in his affidavit of 21 September 2007, OG told him that he had been asked at his meeting why the two second assignments were so similar. But GL could not recall whether OG mentioned that the lecturer had explicitly made allegations of collusion or plagiarism. In cross-examination GL accepted the proposition that OG had said to him he received a zero mark for the second assessment because of a ‘misunderstanding of the assignment’.

Discussion between GL and OG about the need for disclosure to the Board of Examiners

38 Following completion of their degrees, OG and GL both undertook the Leo Cussen Institute practical legal training course between 6 March 2006 and 6 October 2006, although OG was given leave of absence after 1 September 2006 to enable him to begin the Bar readers’ course. During the Leo Cussen course, one of the lecturers, Mr David Were, discussed with the students the obligation of each student to disclose to the Board of Examiners any matter relevant to the question of whether the student was a fit and proper person to be admitted to practise as an Australian lawyer. GL recalls that Mr Were specifically referred to allegations of plagiarism and other incidents resulting in disciplinary action at university as examples of the sorts of matters which needed to be disclosed. Each student was also given a document containing examples of the sorts of matters that needed to be disclosed. It included the following advice:

3.1 You are obliged to disclose to the Board all criminal charges or charges of a similar nature (eg. a charge before a university disciplinary board for stealing books from the library, plagiarism and the like). You must also disclose any other matter which might be relevant to the Board in assessing whether or not you are a fit and proper person to be admitted to practise.

Any disciplinary or other action taken at Leo Cussen (for example), which relates in any way to honesty or character, should be disclosed. For example, any warning given for copying or behaviour must be disclosed.

39 According to GL, before making any disclosures to the Board he had a conversation, perhaps two, with OG in which he told OG that he was going to make disclosures about: ‘What happened at University, how we both got zeros for our assignment because they thought we had engaged in collusion’, and that OG had replied that there was no need to disclose it because it was not referred to a university board as a formal incident of collusion and it was never explicitly referred to as such during OG’s meeting with Professor Polonsky and Mr Kidd. GL said that he had replied to OG that that was not correct because the incident had specifically been put to him in his meeting with the university authorities as involving collusion between him and OG. GL also said that he had an impression, but was not confident, that OG had said that GL should go and ask someone about it and that GL later told OG that he intended to go ahead and disclose it to the Board of Examiners.

40 OG denies that such a conversation occurred. In his affidavit of 12 October 2007 he swore that there was a lecture given at the Leo Cussen Institute in which it was ‘indicated that any matter in which an assessment component was in issue at university should be disclosed’, and at that stage he knew that he needed to disclose to the Board that he had received a zero mark for his second assignment. He further deposed that:

Prior to and at the time of giving my disclosure letter I did not know whether [G]L had made disclosure, nor the contents of such disclosure, nor did I know that he had been accused of collusion or plagiarism. I had no discussions with [G]L at any time in relation to what should or should not be disclosed to the Board of Examiners.

41 GL’s version of events, however, is to some extent corroborated by evidence given by BB and EK (who were also students at Leo Cussen Institute at the time, and have since been admitted to practise).

42 In his evidence in chief, BB said that, after the lecture on disclosure, there were many discussions between students as to what should be disclosed by different individuals, particularly where there was no finding of guilt or decision made by a disciplinary board. BB also said that he was a good friend of both GL and OG and that he was present during at least one such discussion between GL and OG in which he understood GL and OG to be at odds ‘as to whether or not a particular matter [about a marketing subject] had to be disclosed’. Significantly, that evidence was not attacked in cross examination.

43 EK said that he too undertook the course at the Leo Cussen Institute in 2006 and that at some point after the lecture on disclosure, he began discussing with fellow students the matters which each was proposing to disclose. He said that, in that context, he and BB and GL and OG had a number of discussions and that he specifically recalls that a subject of discussion between GL and OG was an incident that they said occurred while they were both at the same university, when they were accused by university staff of plagiarising one another in completing a particular written assignment. In paragraphs 6 and 7 of his affidavit EK deposed that:

6. Again, while I cannot remember the exact words said, I do recall the gist of the discussions. Specifically, I recall that the subject of their discussion was an incident that they said had occurred whilst they were both attending (the same) university in which they were accused by university staff of plagiarising one another in completing a particular written assignment. From listening to those discussions, I gathered that the allegation had been put to both GL and OG by the university staff and an investigation undertaken, however, the university could not identify who copied whom, and as a result, they both failed the assignment.

7. In those discussion, GL said that he wanted to disclose the incident and the surrounding circumstances because he believed that they may have come within the range of matters a person seeking admission to legal practice was obliged to disclose, but he was not certain, and that in those circumstances, he preferred to disclose them to be safe. OG, on the other hand, said that it was clearly not a disclosable incident because no finding was ever made by the university, and that the matter did not even proceed to the university disciplinary body.

Did they say it individually, jointly or how? --- Well, the – the discussions in regard to this were basically in a group situation if you like. Like I said in my affidavit, I can’t recall exactly the words that were said and what had happened and basically the discussions were over a series of other dates and it was just basically the general idea that I formed. Just hearing from what both parties have told me or where I was present in conversations.

I see and did you get the impression that they’d been accused or somebody had been accused of plagiarising? --- Yes, GL had told me that he was involved in an allegation of plagiarism.

That he’d been accused of plagiarism? --- That he was involved and accused, yes.

Now, let me get the specifics. Are you swearing that [O]G said to you or said in your presence that he’d been accused of plagiarism? --- I’m not sure about actually accused but involved, yes.

I see. You see I put to you EK that these discussions which you have now sought to recall in a specific way are very vague in your memory? --- That’s correct.

You couldn’t really attribute who said what, it’s just and impression you got? ---That’s correct.

Well, whatever else you’re saying is you’re saying – and I’m accepting for the purposes of this question your testimony. You’re saying that [O]G maintained it was never a disclosable incident? --- That’s what I heard him say, yes.

I intend to apply on 14 November 2006 to be admitted to practice [sic] as an Australian Lawyer of the Supreme Court of Victoria.

In late July 2005, I was accused of colluding with another student on an assignment for the subject of Marketing Planning and Strategy. I spoke to the Topic Co-ordinator and Head Lecturer and stated that I did not collude with the other student. They did not accept my reasoning for why the assignments were similar.

My reasoning for why the assignments were similar was that it was a mere coincidence. The assignment was based on the findings of a group project completed a few weeks earlier, I was in the same group as the other student. The assignment called for developing a marketing strategy based on the product research in our group subject. There were only two possible strategies that could be used.

They advised that I could go the University Board to defend the matter but based on my reasoning, they were of the opinion that our appeal would be rejected. They also said that if I went to the University Board there would be a mark of [sic] my record. If the matter was dealt with by the Topic Co-ordinator and Head Lecturer, they would not put a mark on my record.

I decided to take the penalty of receiving a zero for the assignment and they said that the matter would not be taken further.

I request the Board not to regard this matter as rendering me unfit to practice [sic] in Victoria.

46 On 31 August 2006 GL received a letter from the Secretary of the Board informing him that he was required to attend a special hearing before the Board as to the matters disclosed in the letter of 28 August 2006.

47 GL says that within a week of receiving the Board’s letter of 31 August 2006 he had a further discussion with OG and at that time showed OG his letter of 28 August 2006 and the Board’s letter of 31 August 2006. According to GL, OG looked at him and said that he was upset with the way GL had worded the letter of 28 August 2006 and stated that: ‘You shouldn’t have put in collusion or plagiarism because that is not what happened.’ GL says that he replied that OG was not correct because when GL met Mr Kidd and Mrs Higgs in 2005 the allegations of copying and collusion were put, and he says that he told OG that he should disclose what happened as well.

48 OG denies that there was any such conversation. Once again, however, GL’s evidence is to some extent corroborated by evidence given by EK. He said that he was present in a seminar room at Leo Cussen Institute during 2006 when GL showed him his disclosure letter to the Board and that during the conversation OG entered the seminar room and became upset. According to EK, OG said words to the effect that he was concerned at the content of GL’s letter of disclosure and as to the fact that GL had made disclosures relating to the incident at university. OG stated that it was never a disclosable incident as there were no findings of guilt in relation to the matter. According to EK, GL was visibly upset by OG’s statements:

OG said words to the effect that GL should not have disclosed this incident because this would now potentially implicate him. He also said words to the effect that this was never a disclosable incident as there were no findings of guilt in relation to the matter. The reason why this episode made an impression on me is that I observed, after OG had left the room, that GL was close to tears as a result of what OG said to him on that occasion.

49 It was put to GL in cross-examination that the Board’s letter to him was dated 31 August 2006 and that OG’s last day at the Leo Cussen Institute before beginning the Bar Readers Course was 1 September 2006; the unexpressed implication being that the conversation could not have occurred. But GL was clear that it had occurred:

When you say that the – there was a meeting that you said took place after there’d been – or after GL had been told he was required to appear before the Board of Examiners, that’s in Paragraph 9? --- Yes.

When do you say that discussion took place? --- Like I said, I can’t - I can’t exactly but if I had to give you and estimated I would assume that was in the month of September or October.

I see? --- It was toward the end of the year or end of the actual course at Leo Cussens.

...What I put to you is that [O]G wasn’t there after the 1 September? --- That’s possibly right.

You’re talking about having conversations with him in the seminar - - -? --- Like I told you from the start, I can’t recall the exact dates. It was just like I said it’s - towards the end of the period around that time. If we’re referring to this conversation specifically in Paragraph 10 [of the affidavit] then that was basically the last conversation that happened.

50 On 10 September 2006 OG sent a letter to the Board in which he disclosed among other things the following:

On or about 26 July 2005 I received a zero grade for an assessment component in a Marketing subject at University for a misunderstanding that occurred. I had a clash in my Law and Marketing subjects and as a result the Strategic Marketing & Management subject coordinator exempted me from attending tutorials.

I undertook an assessment component that was worth 15% of the total assessment for that subject, which was to be conducted as a group task for both the research component and the writing up of the assignment. However, I misunderstood this as a result of my non attendance at the tutorials, and whilst I conducted the research process in a group I mistakenly wrote up the assignment individually.

As a result of my misunderstanding the topic coordinator awarded me a zero mark for that assessment component. I subsequently still, successfully passed the subject.

No record of the event was recorded and at no time was it suggested to be plagiarism or the like. I did not go before the University Board, nor did I fail the subject for my misunderstanding. It was an internal matter with the subject coordinator.

I request the Board does not regard these matters as rendering me unfit to practise in Victoria.

51 On 12 September 2006, the Secretary of the Board read OG’s letter of 10 September 2006. He noted the disclosure, judged it to be minor, marked the letter to that effect and, following his usual practice (after having made that assessment), did not refer the letter to the Board. On 30 October 2006, the Board met and granted OG a certificate pursuant to the Rules for admission to legal practice.[3]

52 Meanwhile, on 12 October 2006 GL had filed an affidavit with the Board, as he was required to do, in which he made further disclosure in relation to the allegation of collusion. It included a partial account of what had occurred at GL’s meeting with Mr Kidd and Mrs Higgs on 30 June 2005. Significantly, however:

a) it did not mention OG by name – GL referred to OG throughout the affidavit as ‘my fellow student’ (as he later said in evidence before the Board, because he did not consider that it was necessary to identify OG);

b) it did not mention that GL was shown marked up copies of the two assignments at his meeting with Mr Kidd and Mrs Higgs;

c) it contained an assertion that, apart from one meeting in which GL said that he discussed with his ‘fellow student’ the plan and headings suggested by the tutor, analysed the requirements of the question, decided to use the outline and plan including the headings suggested by the tutor and determined to refer to the contents of the common first assignment, GL had not showed his second assignment to his fellow student or made available to his fellow student any notes made in connection with the second assignment; and

d) it stated that, apart from that one conversation, GL was unable to explain the similarity of the assignment plans.

53 On 30 October 2006 GL appeared before a full hearing of the Board. On that occasion it was ascertained that GL had in his possession, although not with him at the time, copies of the first assignment and of the marked up versions of his and his ‘fellow student’s’ second assignments that were shown to him during his meeting with Mr Kidd and Mrs Higgs. When the Chairman of the Board requested GL to produce those documents, he agreed to do so, and the hearing was adjourned to enable that to be done.

54 On 3 November 2006 GL filed a third affidavit with the Board to which he exhibited copies of the first assignment and the two marked up second assignments and in the affidavit GL set out in the form in which it appears in paragraph [9] above the substance of the conversation which he said he had with his ‘fellow student’ shortly before submitting the second assignment.

55 On 14 November 2006 OG, BB, EK and TF, who was another Leo Cussen student and friend of GL and OG, were admitted to practise. GL attended the admission ceremony to see them all admitted and viewed it from the public gallery. He says that, shortly after the ceremony that day, he had a conversation with OG in a café in the city. According to GL, OG asked him how his Board hearing had gone, and GL says that he told OG that the hearing had been adjourned because the Board wished to see copies of the two second assignments and that he would be providing the Board with copies of the assignments.

56 OG denies that he had any conversation with GL on that day about the Board hearing or production of the documents.

57 The hearing before the Board reconvened on 27 November 2006. During that session of the hearing, GL identified OG as his fellow student and, in answer to a question as to what had happened to OG since graduating from university, GL told the Board that OG had been admitted to practise during November 2006. In light of that information, the Board determined to refer GL’s application for admission to a special hearing with counsel retained on behalf of the Board and also instructed the secretary of the Board to review OG’s application for admission and to report back to the Board on that matter.

58 On 7 December 2006 the Board’s solicitors wrote to OG requesting that he make himself available at the special hearing into GL’s application for admission, to be held on 13 December 2006, and on 8 December 2006 the solicitors also wrote to GL encouraging him to secure OG’s attendance at the special hearing on 13 December 2006.

Discussion between GL and OG about proceedings before the Board of Examiners

59 Shortly after 8 December 2006, GL and OG had a telephone conversation. According to GL, in that conversation OG told GL that he had received the letter of 8 December 2006 from the Board’s solicitors and asked GL if he knew anything about it. GL replied that the Board had said that they wanted to hear evidence from OG and that he assumed that the letter was asking for a statement or asking whether OG would give evidence. OG’s version of the conversation is similar. He said that he asked GL ‘What’s this in relation to?’ and he said: ‘It’s only admission, don’t worry.’ OG’s evidence was that he then said to GL: ‘I’ve got the assignments in place and the letter, you know, what’s the sort of go?’ and that GL said that OG’s attendance was required at the hearing on 13 December 2006. OG said that he told GL: ‘OK, I’ll attend’.

60 According to GL, he and OG met about half an hour after that telephone conversation in order to discuss the matter face to face. He says that he then told OG that he had filed the affidavits of 12 October 2006 and 3 November 2006 and that they discussed the contents of those affidavits. GL says that he recounted the story of what had happened at his meeting with Mr Kidd and Mrs Higgs and how immediately at the commencement of that meeting Mrs Higgs had put to him that she and Mr Kidd suspected that GL had colluded with OG in the preparation of the second assignment. GL says that OG asked why the issue of collusion had been raised again and stated that he was going to consult the university guidelines again regarding that issue. GL also says that OG recounted in greater detail what had happened at his meeting with the university authorities. According to GL, OG said that they just asked him to explain how he went about doing his assignment; that a tutor or lecturer from America had said that OG got the wrong idea about the assignment, in that he did not follow the criteria; and that they were going to have to give OG a zero mark for the assignment because it was not good enough to get any marks.

62 OG attended the special hearing on 13 December 2006. At that hearing GL gave evidence that in late June or early July 2006, before he made disclosure, he had discussions with OG about the question of disclosure in substance to the effect set in paragraph [39] above; that he had a further conversation with OG after receiving the letter from the Board on 31 August 2006, in substance to the effect set in paragraph [47] above; that he had not had a meeting with the same university people as OG – he said that his meeting had been with Mr Kidd and Mrs Higgs and that he did not know who OG met, except that it was not Mrs Higgs because she had gone on long service leave; and that he had a further brief telephone conversation and then a longer meeting in the city with OG after GL received the letter from the Board’s solicitors of 8 December 2006, in substance to the effect set out in paragraph [60] above.

63 During the hearing, the Board noted the attendance of OG and addressed some questions to him as to whether he wished to give his version of events. He replied that he had taken legal advice and did not wish to give evidence or answer any questions other than about his own disclosure. In light of his stance, neither counsel assisting the Board nor counsel for GL sought to ask OG any questions and thereafter the further hearing of GL’s application was adjourned to 18 December 2006.

64 On 15 December 2006 GL filed a further affidavit with the Board. It exhibited pages 25 to 28 of the Course Guide for the subject Marketing Planning and Strategy for Semester 1, 2005, in which was set out the method of assessment for the subject.

65 OG did not attend the further hearing of the Board on 18 December 2006. GL gave further evidence and was further closely cross-examined by counsel assisting the Board and by the members of the Board as to how he had gone about preparing his second assignment and as to the similarities between his and OG’s second assignments. Throughout that cross-examination GL maintained, as he had during his cross-examination on 13 December 2006, that he had prepared his second assignment himself and that the similarities between the two assignments were mere coincidence deriving from the fact that the second assignment was based on the first assignment, followed the plan and to a large extent headings suggested by the tutor, and incorporated propositions which were stated in the printed lecture guide materials available to all students. GL continued to deny that there was any copying or collusion apart from the one meeting outlined in his affidavit of 12 October 2006 (in which he said he had discussed with OG the plan and headings suggested by the tutor, analysed the requirements of the question, decided to use the outline and plan including the headings suggested by the tutor and determined to refer to the contents of the common first assignment). GL also continued to deny that he either showed his second assignment to OG or made available to OG any notes made in connection with the second assignment.

66 At the conclusion of the cross-examination on 18 December 2006, and after hearing submissions from counsel for GL and counsel assisting the Board, the Board retired for almost an hour to consider its decision. Upon returning, the Chairman declared that the Board

...has considered two aspects which were presented to us, both considering the alleged collusion and the other issue which was to become important to us throughout the case, is the candour of GL both in relation to his disclosures by affidavit and in giving evidence. The decision of the Board is that it is not prepared to grant GL’s a certificate and I can indicate that that decision is based upon the latter of those two reasons which is to say the quality of the disclosure f[o]und in GL’s affidavit and the evidence he’s given from the witness box in going to his candour and the full and frank nature of the disclosures that he’s made.

it would appear that [O]G’s disclosure in his letter dated 10 September 2006 was inadequate.

68 Following a directions hearing in this court in which it was determined that the hearing of the application would proceed on affidavit, the Legal Services Board filed the further affidavit of GL of 21 September 2007 in which GL deposed that he had reflected on his conduct and acknowledged that he did not at the time of the hearings in 2006 disclose to the Board of Examiners all of the circumstances surrounding the second assignment:

...What I did not disclose to the Board of Examiners was that during the course of this aspect of the discussion, I had my notebook with my outline in front of me and I described in detail to OG the market segments that I proposed to select, the four marketing strategies that I intended to use for each segment and the substance of what I was planning to say in respect of the application of the marketing strategies to the assignment example. OG had his own notebook out and he wrote down what I was saying. I believe that this is the explanation for the similarities in our assignments.

The reference to ‘this aspect of the discussion’ is to the discussion which GL earlier deposed he had with OG some four days before the second assignment was due to be submitted concerning the assignment plan and headings.

69 As has been noted, OG filed an affidavit of 12 October 2007 in which he denied point blank that he discussed the requirements of the second assignment with GL. In that affidavit he deposed that he did not have any discussion with GL in relation to the assignment and that he never saw GL’s assignment or notes or had them made available to him. He also denied that it was suggested in his meeting with Professor Polonsky that it was suspected that there was collusion or plagiarism involved.

70 As to anomalies apparent in his letter of disclosure to the Board of Examiners, OG stated in his affidavit that:

...my...disclosure letter contains some inaccuracies the reasons for which I now seek to explain:

71 OG’s affidavit of 12 October 2007 did not condescend to any explanation of the similarities between the two second assignments, still less suggest that GL was guilty of copying. But in a statement of contentions which was filed with OG’s affidavit on 12 October 2007, it was alleged, inter alia, that:

The evidence of GL should not be accepted. [OG’s] evidence that he had no discussion with [G]L other than those identified in [OG’s] affidavit should be accepted.

Given the validity of the contentions in the preceding paragraph and the nature of the similarities of the assignments, the inevitable inference is that [G]L copied from [OG’s] assignment.

72 Counsel for OG also put it to GL in cross-examination that he could have used OG’s password (which GL had for the purposes of effecting OG’s re-enrolment whilst OG was abroad on holiday) to gain access to such of OG’s documents as may have been saved on the university computer system, and that GL had thus copied his second assignment from OG’s second assignment. GL admitted that he did have the password, and had used it to re-enrol OG on a number of occasions throughout the five years of their course, but he said that he was not aware whether OG saved his second assignment on the university computer system and he denied that he had copied it or any of OG’s documents from the system or otherwise.

73 As appears from the foregoing, there are number of disputed issues of fact which need to be determined. We propose to deal with them in the following order:

2) Secondly, if not, whether OG colluded with GL in the composition of the second assignment.

3) Thirdly, whether GL and OG had a conversation before the second assignment was due to be submitted in or to the effect set out in paragraphs [9] and [10] above.

4) Fourthly, whether GL spoke to OG on 30 June 2005 as to what had occurred at GL’s meeting with Mr Kidd and Mrs Higgs earlier that day and, in particular, whether GL told OG that Mr Kidd and Mrs Higgs suspected collusion.

5) Fifthly, whether, when OG had his meeting with Professor Polonsky on 10 August 2005, Professor Polonsky conveyed to OG that it was suspected that he and GL had colluded in the composition of the second assignment.

6) Sixthly, whether, before GL and OG made their disclosures to the Board of Examiners, GL told OG that he was going to make disclosure about: ‘What happened at University, how we both got zeros for our assignment because they thought we had engaged in collusion.’

7) Seventhly, whether, in the week or so after receiving the Board’s letter of 31 August 2006, GL showed OG his disclosure letter of 28 August 2006 and the Board’s letter of 31 August 2006, and whether OG then said to GL that: ‘You shouldn’t have put in collusion or plagiarism because that is not what happened.’

8) Eighthly, whether the errors in OG’s disclosure letter of 9 September 2006 were due to the factors adumbrated in OG’s affidavit of 11 October 2007, or were the result of something else.

9) Ninthly, whether GL and OG had a discussion on 14 November 2006 about GL’s special hearing before the Board of Examiners.

10) Tenthly, whether, after their telephone conversation following receipt of the Board’s letter of 8 December 2006, GL and OG had a face to face meeting in which they discussed GL’s affidavits of 12 October 2006 and 3 November 2006.

74 OG did not give any evidence in chief as to whether he believed that GL had copied his second assignment from the computer system or otherwise. In cross-examination, he said that he had not referred to it in his affidavit because he had been told by his counsel to conceal it so as in effect to take GL by surprise in cross-examination:

I will put it again, why did you not put in your affidavit that you believed him to have copied your work? --- Because I was told to conceal that because if I put that then maybe for cross-examination purposes that he had the relevant information to deny the proposition that he was probably abusing my password so if I put that in the affidavit, I knew that in the defence he'd maybe in cross-examination deny all behaviour in relation to having that source. So the reason I didn't put the fact that he copied my assignment was because it might trigger his memory in cross-examination to sort of diverge from the issue about my having my pass removed (indistinct) that's why I didn't reveal that.

But we doubt that was so. For one thing, it was possible that GL would be put on notice by the contentions filed on behalf of OG.[4] For another, if needs be, it could have been established by objective evidence that GL had used the password to re-enrol OG. We think it is significant that, until cornered on the subject in cross-examination, OG was not prepared to swear that GL had copied.

75 In our view, it is also significant that, throughout 2005 and 2006, OG never put to GL that he believed that GL had copied. Logic suggests that, if OG had formed the view that GL had copied his work, he would have taken it up with him virtually as soon as he came to that view, and in all probability told his story to the Board. As it was, however, OG was three times asked about why he had not taken up the matter with GL and on each occasion he was unable to provide any rational explanation for not doing so.

76 On the first occasion, he was asked in cross-examination what his reaction had been upon learning, as he alleged, that GL had copied his work and whether he had taken the matter up with GL; and he said this:

You must have been outraged when you saw the similarities between your assignment and that of GL? --- Yes, sir, I definitely was.

From William Murray solicitors? --- That's correct, so it would have been the 7th or 8 December, I can't recall exactly what date it got given to me. I did call GL. I had a very brief conversation with him, I was furious, and I said, ‘What's this in relation to?’ and he said, ‘It's only admission, don't worry.’ And I said, ‘I've got the assignments in place and the letter, you know, what's the sort of go?’ And all he said was that your attendance was required at the hearing and here's your (indistinct) at 13 December 2006 and I said, ‘OK, I'll attend’ and that's it.

And you didn't demand any more explanation than that from GL? --- No, I was just really upsetting and upset at the letter that I received from William Murray and I just didn't want to speak to him. All it is, yes, just hung up and then I saw (indistinct).

In our view, that evidence and the manner in which he gave it was wholly unconvincing.

77 On the second occasion on which he was asked about the matter, he gave a different and in our view equally unpersuasive response:

NETTLE JA: But as soon as you saw the similarities, surely you realised that someone had copied from someone else? --- Yes, definitely but I just said to him [GL], I said, ‘Look why are these assignments in here? Why do they appear to be similar or why is it like this?’ and he said, ‘You'll just have to attend the hearing and I can't speak about it’ and I said, ‘OK’ and he said, ‘It's the hearing on the 13th’ and I said, ‘All right’ and just - and I got where it was and I attended it.

WARREN CJ: Just a moment. (To witness) At that stage did the penny drop as to what Professor Polonsky had been raising with you? --- Your Honour, no, I couldn't say it did drop because at that point I was just really (indistinct) about the letter and being reference to my admission and all the other stuff that I can't recall (indistinct) but the penny didn't drop. What occurred to me was is I was just outraged because I knew that my admission was in jeopardy and I saw the assignments and I just wanted to call him and say why is this like this because the subject (indistinct) and all he said was ‘You'll just have to attend the hearing, I can't speak to you about it.’

NETTLE JA: But you must have thought that he had dropped you in it by copying your assignment? --- I didn't believe him. All I did was just wanted to see what was going on.

Surely you must have though[t] your admission was under question because it was suspected that you had copied or colluded? --- Yes, yes, yes, yes, that - - -

And you realised, as you say, that he had copied from you? --- Yes, I did but I (indistinct) made known to him or if that was his act, then I realise I can't say (indistinct) but I did realise once I saw those assignments that he had copied my assignment.

And you would have been furious? --- I definitely was furious, that's why the conversation lasted - - -

Not just because he'd copied your work? --- Because my admission was in jeopardy.

And yet you never said as much to him? --- No, it was just really - I - I'm a bit hot-headed sometimes so I just talk to people and I get a bit frustrated so I just hung up and I didn't speak to him.

You've said to him, ‘What's all this about’? --- Well, I don't say that I had, ‘I said, he said, I said, he said’ discussion, all I said is that this was the gist of the conversation which was I told him to do - what this all about and he told me that I needed to attend a hearing and I said, you know, ‘What's it all about?’ and he said, ‘I can't say any further, just attend the hearing’ and that's it, he may have - I may have put in a couple of swear words, I'm not sure, I can't say what I said in that.

NETTLE JA: But you knew what it was all about from William Murray's letter? --- Yes, when I read the letter I knew what it was about so - - -

You knew that the board suspected you of collusion? --- When I read it initially I would have, yes, because I did read the letter.

And you knew that they were offering you an opportunity to go before them and put your version? --- Yes, and that's what I did and - - -

So what did you need to ask GL about? --- Well, exactly the assignments because (indistinct) I said, ‘What is this all about?’ because I wanted to know from him himself what it was in relation to because the subject was ‘Re [G]L’ so I thought I'd call him and find out.

It's plain from the letter of William Murray what it was all about? --- Yes, but I still wanted to ask him what it was about so I called him and I said, ‘Look, I've received this letter’ and he said, ‘Yes, you're required to attend the hearing.’ And I said, ‘Even though you didn't give me any additional information to the letter’ I thought I'd call him. I can't say why I did but I wanted to call him and ascertain exactly what it was all about and he just said, ‘I can't speak about it’. I'm not sure if he was under cross-examination or what but he just said he can't speak about it, I had to attend and I can't recall exactly to what I had said in that conversation after that.

79 In our view, it taxes credulity beyond belief that someone who has just learned and professes to be outraged by the realisation that his friend has copied his work and thereby exposed him to risk of being struck off should telephone the friend about the very matter and yet not say a thing about his sense of betrayal and outrage.

80 OG was also several times asked in cross-examination why he had not told the Board of Examiners that he believed that GL had copied his work without his permission and that was the reason for the apparent collusion. The only explanation he could offer was that he was prepared to give evidence relating to his own disclosure but not to anything else.

Do you say on your oath that you believed that GL copied your assignment by accessing your computer? --- Yes, I do at the moment, yes.

But you believed that when you heard GL give his evidence on 13 December [2006]? --- Yes, yes.

Is there any reason that you didn't tell the Board [of Examiners] of that belief at that time? --- I intended [sic] a meeting of the Board and both counsel (indistinct) and I think it was (indistinct) for [G]L, when they approached me to give evidence, I said, ‘I will give evidence’ and they were reluctant to call me, because they (indistinct) in the witness box, they don't defend me, but on my instructions - - -

Did not the Chairman of the Board on that occasion ask you whether you were there to give your version of events? --- Yes, and I said at that point that I would give evidence in relation to my disclosure and then (indistinct) occurred to me and it was put to me the way I conducted my assignment and put to me (indistinct) I would've suggested that, yes, that he had access to my - my password and I believe that that's (indistinct) occurred.

When was it you first formed the view that [G]L had copied from you? --- Well, when I received the assignments in the mail.

When was that? --- (indistinct) my solicitors, I believed it was before, it would be 7 December by my recollection...

Could you just tell me again why you did not go before the Board and tell the Board that you believed [G]L to have copied your assignment? --- I volunteered to go before the Board in relation to my admission and in relation to my admission would have been if I got caught, why leave some the same. Again, that - - -

I don't understand. The question's a simple one. Why did you not accept the invitation to give your version of events? --- I did. I said, ‘Yes, I will give evidence in relation to my admission and the events that happened to me’ I accepted that, I would. It's on the transcript.

82 We do not accept that evidence either. If, as OG claimed, he believed that GL had furtively copied his second assignment, and that it was the reason for the striking similarities between the two second assignments (which resulted in OG’s admission being put in question by the Board of Examiners) that belief would have been central to what OG called ‘my admission and the events which happened to me’. Further, if, as OG claimed, he was outraged by the fact that GL had copied and so put OG’s admission at risk, common sense and experience suggests that the first thing which OG would have wished to do was lay all of the facts as he knew them before the Board of Examiners, either by way of evidence or by letter. When then there is added to those considerations the fact that the Chairman of the Board of Examiners several times warned OG of the possibility of an adverse inference being drawn if he chose not to give his version of events, and the fact that OG took legal advice before attending before the Board, and so far as appears has had the benefit of legal advice at all times since, we think that the inference is ineluctable that OG’s evidence on the point was false.

83 We are, moreover, confirmed in that view by objective evidence which implies that GL did not copy his second assignment from OG and that the more likely conclusion is either that OG copied from GL, whether with or without his permission, or that both men colluded in the composition of the second assignment. We start with the 26 similarities between the two assignments which were marked by Mrs Higgs. They were as follows:

The strategy that was recommended for Ultraceuticals was a differentiation strategy focusing on the customer and not other competitors as they are in a niche market.

The strategy in this report recommends Ultraceuticals to pursue a differentiation strategy, in which the focus will be on consumers and not competitors as Ultraceuticals are engaged in a niche market.

The four segments that were identified that Ultraceuticals could cater for were ABC females, women aged 45-64, women aged 18-25 and men aged 25-39.

ABC females, Women between 45-64, Women between 18-25, and men aged between 25-39 are four segments in which Ultraceuticals could provide for [sic].

For ABC females, Ultraceuticals should implement a differentiation strategy focused on developing close relationships with distributors and customers.

Ultraceuticals should put into practice a differentiation strategy, which should be focused on constructing close proximity with distributors and customers in the ABC Female segment;

For women aged 45-64, the focus of differentiation should shift to being able to do things better than competitors in relation to service and quality.

Service and Quality should be differentiated to that of competitors in Women aged between 45-64;

For women aged 18-25, it was recommended that Ultraceuticals should not target this market as any strategies involved would not be profitable.

The segment of women aged between 18-25 should not be pursued, as a strategy will prove to be non-profitable.

For men aged 25-39, no recommendation was made as there is not enough evidence to make an informed decision about the viability of this segment. A cost-benefit analysis needs to be done before any decision is made.

Men between 25-39, highlights the importance of a cost-benefit analysis, as there is a lack of information, no rational recommendation as to a particular strategy can be concluded.

A customer based focus is recommended for Ultraceuticals as they [are] not actively pursuing any direct competition with larger firms and they cannot focus too much on any competitors because they don’t have the size and resources to implement and react to changes to the magnitude of competitors.

A customer based spotlight is recommended to be necessary for Ultraceuticals as they are not seeking to compete with large firms, as they lack the resources to do so.

Ultraceuticals have carved out a niche market and a customer base view would enhance growth by examining and tailoring products to the needs of customers.

The fact that Ultraceuticals has encapsulated a niche market enables them to improve growth by tailoring their products to the specific needs of their consumers.

While Ultraceuticals is tilted towards following a customer based view, it must still have some knowledge of competitor’s actions in order to minimise any risk of selective attention and amplification, as a customer focus is remote from the business activities.

Ultraceuticals must still have some knowledge of the actions of its competitor’s [sic] if they want to minimise the risk of narrowing their attention, as solely pursuing a customer based view may provide [sic] to be too remote for the business in the conducting of their activities.

The strategy that would be recommended for Ultraceuticals is differentiation as it is what they are currently doing now with their upmarket pricing and it also coincides with a customer based view...

The ideal strategy for Ultraceuticals would be that of differentiation. It can already be seen that Ultraceuticals is currently engaged in pricing their produces to the upper markets, which runs parallel to the customer based view.

A differentiation strategy also allows a premium price to be implemented in order to use surplus revenue for research and development, advertising and further advances in quality.

This premium price has the benefit of producing more revenue to a company, which in turn can be used for research and development, advertising and technological developments.

By positioning themselves as giving superior value, Ultraceuticals would be looking to increase customer satisfaction and loyalty and not dwell on market share and profits.

The existing product range should be developed to create more value added elements to cater for existing customers with entirely new products...

Ultraceuticals will be increasing customer loyalty and satisfaction, as not alternatively [sic] being too caught up with the aim of increasing market share and/or profits.

The current product range should introduce an added element to which will reinforce [sic] the satisfaction to existing consumers...

A mixture of selective and exclusive distribution is recommended involving department stores and beauty and health spas to reduce post purchase dissonance from making the decision to use the brand as the product is a high risk relief purchase.

The choice of distributing their products should be a mix between selective and exclusive distribution as for example department stores such as David Jones and Myer, are able to reduce the post purchase dissonance and allowing a consumer to make a relatively comfortable purchase...

...adding to repeat purchase behaviour and utilising one of Ultraceuticals’ core competencies.

Promotion is not a high priority for this segment as Ultraceuticals is not competing with the major players of the market.

As Ultraceuticals is not in competition with major firms such as Avon, promotion is not to be regarded as a major element for this particular segment.

A new product line aimed at anti-aging should be developed for this segment as the population will be increasing in the future and significant first mover advantages would follow.

This segment may highly increase in the future and if Ultraceuticals is able to be the first in they may be able to gain a major advantage. Therefore a new product line targeted at anti-aging should be developed.

The price should be set at a prestige level as over 45s have the largest income of the entire population and are willing to part with their money. There should be different pricing points in order to increase sales.

Although one suggestion may be to set a high price for products, as this segment will have large resources (ie income) and may be more willing to spend their money, the suggestion of different pricing points should also be a consideration as it will effectively increase sales.

Distribution should start exclusive so as to not over commit to a growing market with a change to include department stores when the demand increases.

Exclusive distribution should be the starting point as this market [sic] to avoid over commitment, however it should adapt with an increase of size in the market.

Promotion should be aimed at increasing awareness in the segment by stating that Ultraceuticals can provide consumers with the youthful look they are after. Ultraceuticals could use their professional backing by making direct statements about the effectiveness of their product under the Therapeutic Goods Act 1989.

Promotion should be focused on increasing awareness of the product attributes, such as the use of vitamin supplements with [sic] encourages a young-looking appearance.

This segment cannot afford to pay a premium for a new product, therefore the strategy needs to be changed from differentiation to a cost based strategy.

A cost based strategy is the major force in this segment, as a differentiation may not provide to be effective [sic] due to this segments refusal to pay premium prices.

Consequently it is recommended that Ultraceuticals do not try to market to this segment.

Ultraceuticals will not have the resources to do continue updating [sic] their products for the male range in the short future [sic].

Ultraceuticals will not be able to provide for this segment, as they don’t have the resources to do so.

It cannot be ascertained whether men would be willing to pay a premium on cosmetics...A cost-benefit analysis needs to be conducted to determine whether it is worthwhile to cater for this market. It is difficult to determine whether the market will grow in the future or whether it is just a fad.

Therefore no recommendation is made for this segment without first receiving any figures relating to a cost-benefit analysis.

It is currently unknown that men will pay premium for cosmetic products. Therefore it must be highlighted that a cost-benefit analysis needs to be conducted to assess if it is advantageous to provide for this market. The future of this segment is unclear. Thus, a rational recommendation cannot be made at the current moment, due to the lack of information.

84 Taken alone, the striking nature and extent of the 26 similarities strongly implies that one man copied from the other, with or without the other’s permission, or that each of them independently or by arrangement copied from a third party, or that they colluded. The position, however, is complicated by the fact that there are some indications in the 26 similarities which suggest that one man copied part of the assignment from the other and other indications which suggest that the other man copied other parts of assignment from the first man.

85 The solecisms which appear in the passages extracted from OG’s assignment under the headings for Similarities 2, 10, 13, 19, 20 and 22 and the oddity of the expression ‘customer based spotlight’ compared to ‘customer based focus’ in similarity 8 suggest that OG copied those passages from GL’s assignment or from another assignment from which GL also copied.

86 Additionally, when OG was asked about similarity 8 he was inclined to agree with the proposition that it appeared that his 8 had been copied from GL’s 8:

I put this to you for comment, it strikes me that the words are ‘customer based spotlight’ - - -? --- Yes.

- - - appear as though they've been altered from the more natural expression of ‘customer based focus’ in order to try to make it look different? --- That's possible, yes.

87 When, however, it was put to OG that such would suggest that he had copied from GL, he offered for the first time a further allegation against GL that GL may have gone into OG’s computer system after copying from OG’s assignment and deliberately corrupted OG’s assignment so as to make it appear that OG had copied from GL, and that OG had not noticed those changes when he submitted his second assignment on 2 June 2005:

- - - that would suggest that you have copied from him? --- Like I said, your Honour, (indistinct) have, it was the fact he had access to my system and he could've altered in relation to changing possibly my way, he altered mine, so I'm not even sure his assignment's mine and mine's an altered version of it, but he couldn't possibly go there and - and alter mine unless (indistinct) attractive and make his more attractive. I can't say why that's been, maybe he saw - saw that too and he said, ‘I want to use this too in mine’ and altered mine, I can't tell your Honour that, I'm just - I'd be guessing on that, your Honour.

WARREN CJ: When did you form the view that GL may have gone into the system and altered your assignment? --- Well, when I first read the assignments.

NETTLE JA: That was on 7 December or shortly after it? --- Yes, about when that, that it was given to me, yes.

By William Murray Solicitors? --- That is correct, yes, because I - I - when I looked at the summary, it's - I just thought nobody can copy this if it, this was the wrong piece and this was the copy, anybody copying that would change it substantially sort of thing, and would have seen the point that it looked the same and then I formed the view that it was the thesaurus or just things have been in that's attractive from mine.

88 Much the same thing happened when it was suggested to OG that similarity 9[5] implied that he had copied from GL:

Thank you, “Ultraceuticals have carved out a niche market” and you've used the expression, “Ultraceuticals have” what, ‘have encapsulated a niche market’? --- Yes, that appears so, yes, sir.

Then could I put it to you that to carve out a niche market is a more usual form of expression than encapsulating a niche market? --- Yes, Your Honour, it may be.

If that was so again it would suggest, might I put it to you, that at least in the form in which it appears before you, yours looks as though it has been copied from GL's but changed to try to make it appear different? --- Yes, well I deny that and the same reasoning is, is that I'm not even sure that that could be my assignment. This one could be my assignment. I don't know but again –

89 We do not accept that evidence. If in truth OG had come to the view on or about 7 December 2006 that GL not only copied his work but also corrupted it to obfuscate the act of copying, it is next to impossible to suppose that OG would not have taken up the matter with GL and disclosed it to the Board of Examiners. A further indication of the improbability of that version of events is that no such thing was ever put to GL in cross-examination or mentioned in the course of opening or otherwise in the course of OG’s case.

90 There are some indications among the similarities that GL may have copied part of his assignment. Without more, the solecisms which appear in the passages extracted from GL’s assignment under the headings for Similarities 8 and 25 might be thought to suggest that GL copied those passages from OG’s assignment, or from another assignment from which OG also copied. Similarly, while the awkward construction of the passages from OG’s assignment which are extracted under the headings for Similarities 10, 11, 17 and 26 suggest that OG may have copied those passages from GL’s assignment, or from another assignment from which GL also copied, the awkward construction of the passages from GL’s assignment extracted under the headings for Similarities 1, 8, 12 and 14 might be thought to suggest that GL copied those passages from OG’s assignment or from another assignment from which OG also copied.

91 There is, however, no suggestion, still less evidence that there was a third party assignment from which GL and OG may both have copied and, given the apparent assiduousness of Mrs Higgs in finding and exposing collusion and copying, we think it unlikely that such a thing would have gone undetected. Accordingly, we exclude the possibility of copying from a third party document. The question is whether one man copied from the other or they both worked together in ‘collusion’; and, for the reasons to which we now turn, it appears to us that GL did not copy OG’s assignment.

92 In the course of GL’s cross-examination, GL was asked to produce the notebook in which he wrote the outline or plan that he said he discussed with OG on 27 May 2005. Overnight, GL retrieved the notebook from his home and produced it when the hearing resumed. On examination of the book, it appeared that it was indeed GL’s notebook and that he had written his outline or plan for the second assignment in it some time before 27 May 2005, just as he swore he had done. Counsel for OG did not suggest otherwise to GL. Comparison of the outline or plan with GL’s second assignment reveals similarities which imply that the outline or plan was the immediate basis for GL’s second assignment and that in all probability GL went about developing his second assignment from the plan or outline, just as he told Mr Kidd and Mrs Higgs he did. Those similarities which were also the subject of detailed consideration in the course of GL’s cross-examination before the Board of Examiners on 13 December 2006, and the transcript of that cross-examination was put in evidence before this court. Since nothing was said by or on behalf of OG before this court to counter the effect of those similarities, we set them out as follows:

1) First, in the second paragraph of GL’s outline, the justification for avoiding the ‘Porter resources based strategy’ in favour of the ‘Day differentiation marketing strategy’ is stated as follows:

Porter would not apply to this section as there is there are a vast amount of groups and subgroups involved in the industry and is aimed more at manufacturing business with non-consumable products. Therefore look at Day’s theories...

Virtually the same words appear in the first paragraph of GL’s second assignment:

The Porter model would not apply to Ultraceuticals as there are vast amounts of groups and subgroups involved in the cosmetics industry and the model is aimed more at large manufacturing businesses with non-consumable products. Also Ultraceuticals’ size would not be served well by the five forces model as it does not have any control over its own survival.

Due to the size of Ultraceuticals, and its skills and limited resources a customer based focus is appropriate. By their superior skills they can exercise and tailor to the needs of customers as they are already doing in a niche market.

Very similar words appeared in the second and last paragraph on the first page of GL’s second assignment:

The resource based view would be appropriate as Ultraceuticals can use their superior skills as a source of advantage.

A customer based focus is recommended for Ultraceuticals as they not actively pursuing any direct competition with larger firms and they cannot focus too much on any competitors with larger because they don’t have the size and resources to implement and react to changes to the magnitude of competitors. Ultraceuticals have carved out a nice niche market and a customer based view would enhance growth by examining and tailoring products to the needs of customers.

Use differentiation because need to do research and design advertising and further advances in quality. Looking for superior customer value and customer satisfaction and loyalty.

The same conception appears on the second page in the last paragraphs of the ‘Strategies’ section of GL’s second assignment, as follows:

A differentiation strategy also allows a premium to be implemented in order to use surplus revenue for research and development, advertising and further advances in quality.

By positioning themselves as giving superior customer value, Ultraceuticals would be looking to increase customer satisfaction and loyalty and not dwell on market share and profits.

Product – increase product development by adding value to existing goods and also penetrating market with more choices / takes advantage of boom in cosmeticeuticals.

The same proposition appears in more developed form in the second paragraph under the heading ‘ABC FEMALES’ on page 3 of GL’s second assignment:

The existing product range should be developed to create more value added elements to cater for existing consumers with entirely new products aimed at penetrating a small segment of the larger commercial firms market to increase sales. Increasing the product range to target consumers takes advantage of the boom in cosmecueuticals in the cosmetics industry.

Pricing – continue pricing premiums but allow for price product discrimination between products of differing qualities. So have different selling points/ facilitate others getting involved and using differing products. Elasticity of demand is low.

The same idea is adumbrated in the third paragraph of the same section in GL’s second assignment, as follows:

In relation to pricing, since the price elasticity of demand is low for this segment a premium price strategy should continue. However price-product discrimination should occur between products of different qualities and ingredients. This difference in selling price points may facilitate switching from non-users as the costs involve for the market are not high.

- distribution – mixture of selective and exclusive distribution in department stores and beauty spas to reduce post purchase dissonance and increase repeat purchase through support of professionals and utilize core competency [and then in the margin] high risk relief purchase.

The same notion is expressed in remarkably similar terms in the penultimate paragraph on page 3 of GL’s second assignment:

A mixture of selective and exclusive distribution is recommended involving department stores and beauty and health spas to reduce post purchase dissonance from making the decision to use the brand as the product is a high risk relief purchase. It would also help to alleviate fears or misconceptions about the cosmetic industry as Ultraceutical’s products are sold by and with the backing of health professionals, adding to repeat purchase behaviour and utilising one of Ultraceuticals’ core competencies.

Product proliferation may be a good idea under differentiation strategy to increased combined sales. First mover advantages that flow from [indecipherable] but research and development must be ongoing.

The very same idea is expressed under the heading ‘WOMEN AGED 45-64 YEARS’ on page 4 in the second paragraph in GL’s second assignment:

A new product aimed at anti-aging should be developed for this segment as the population will be increasing in the future and significant first mover advantages would follow.

We note too that the following appears on the next page of GL’s second assignment under the heading ‘MEN AGED 25-39 YEARS’:

...to continue the first mover advantages, there must be further research and development to keep in front of the expected retaliation of competitors.

Segment – 18-25 – can’t afford price premiums and not worth developing low cost strategy as the mix of the two could cause problems unless there is a strict separation of business units. May be able to for Ultraceuticals, but size may be too small. What do they have efficiency in?

The same idea appears in slightly more developed form in the last paragraph on page 4 of GL’s second assignment as follows:

This segment cannot afford to pay a premium price for a new product, therefore the strategy needs to be changed from differentiation to a cost based strategy. However this would cause problems unless there is a strict separation of business units partaking in the two different strategies. Ultraceuticals is too small to have separate business units and do not have the economies of scale and resources to begin competing based on costs.

Men – same as above, low cast not advisable, may also not be will to pay premium for product if a product is designed for men but would be costly, cost benefit analysis. Profit motive, are they there? Place and promotion not cost benefit.

Exactly the same conception is expressed in more detailed form in the penultimate paragraph of page 5 of GL’s second assignment, as follows:

It cannot be ascertained whether men would be willing to pay a premium on cosmetics. They will certainly have the necessary disposable income to buy products, but may not wish to outlay so much. Therefore the product development has to be scaled back a bit and costs need to be cut in order to maintain high profits. The differentiation strategy may have to be changed to a cost based strategy. A cost-benefit analysis needs to be conducted to determine whether it is worthwhile to cater for this market. It is difficult to tell whether this market will grow in the future or whether it is just a fad.

93 In our view, that comparison leaves only two possibilities. Either GL drafted his second assignment from his outline or plan, and OG copied GL’s second assignment, with or without GL’s permission; or, alternatively, GL and OG colluded in the composition of the second assignment, using GL’s outline or plan as the basis of composition, perhaps by each of them drafting some of the sections of the second assignment as they had drafted the first assignment, and then combining the parts to make a draft of the whole which each or them then settled individually.

94 On the evidence before us, we are unable to say that either of those possibilities is necessarily more probable than the other. But we incline to the latter.

95 Either way, however, it follows in our view that GL and OG are likely to have had the conversation on 27 May 2005 to which GL deposed in his affidavit of 21 September 2007. If OG copied from GL, the effect of the conversation was later superseded by the act of copying and, if GL and OG engaged in collusion of the sort to which we have referred, the conversation must have gone a good deal further than GL was prepared to admit. We reject OG’s testimony that there was no such discussion.

96 Apart from GL’s testimony there is no direct evidence that he spoke to OG after his meeting with Mr Kidd and Mrs Higgs on 30 June 2005. In our view, however, the circumstantial evidence points strongly in that direction. First, if they had colluded even only to the limited extent which GL was prepared to admit, OG would have been very anxious to learn the outcome of GL’s meeting and it is probable that GL would have been just as keen to share it with him. Secondly, as we have observed, the contents of GL’s email to Mr Kidd of 24 June 2005 imply that GL spoke to OG about the need for both men to meet the academics and that GL was deputed to make arrangements on behalf of each of them for that purpose. Thirdly, the contents of GL’s email of 18 May 2005 to OG permit of little doubt that OG was aware that GL was in trouble over the second assignment and that GL was looking to OG to do or say something in his meeting with the academics to get both men off the hook. We reject as untenable a submission put by counsel on behalf of OG that the reference to ‘this marketing shit’ in the email could have been a reference to something other than the fact that both men had been called to front the academics over the similarities between their second assignments and that the prospect in view was a zero grade or mark. Why else would GL have faced the prospect of having to repeat the ‘bullshit subject’? No other possibility was suggested.

97 On balance, we are satisfied that GL spoke to OG after his meeting with Mr Kidd and Mrs Higgs on 30 June 2005, as he said he did.

98 Largely for the same reasons, we are satisfied that Professor Polonsky or Mr Kidd or both in one form or another conveyed to OG during his meeting with them on 11 August 2005 that he and GL were believed to have colluded in the composition of the second assignment and that he would be given a zero grade or mark for the assignment because he had colluded. Among other matters already mentioned, the following appear to us to point strongly in that direction.

1) First, the similarities between the two second assignments were so significant as to make very probable that there had been collusion or copying.

2) Secondly, as Mrs Higgs deposed, she came to that conclusion when marking the assignments and reported it to Mr Kidd.

3) Thirdly, as she also said in evidence, the protocol or procedure to be followed in those circumstances was well established and clear; and, at least so far as GL was concerned, we know from his evidence that it was followed to the letter. He was summoned before two academics and the allegation of collusion and copying was put to him squarely and he was given an opportunity to respond to it.

4) Fourthly, we know from GL’s evidence that his meeting with the academics concluded on the basis that they were not persuaded by his denials, but that they wished to hear from OG before coming to a final view.

5) Fifthly, we know from OG’s evidence that Professor Polonsky began the meeting with the statement that there were ‘similarities’ between OG’s second assignment and another student’s second assignment and by demanding an explanation as to how OG had gone about composing his second assignment.

6) Sixthly, we know that, after Professor Polonsky and Mr Kidd had had their meeting with OG, the view of the university remained that GL had colluded with OG.

7) Seventhly, there is EK’s evidence that he was present during at least one conversation between GL and EK during 2006 about whether they should disclose that they had been awarded a zero grade or mark, in which OG said in substance to GL that they should not disclose it because the university could not identify who had copied.

8) Eighthly, we reject OG’s evidence that he did not understand that he was suspected of having copied or colluded with another student. In our view it is plainly more probable than not that Professor Polonsky put the allegation of collusion to OG more or less directly, just as it had been put to GL. But, even if Professor Polonsky said no more than OG swears was the case – which is to say, an assertion that the assignments appeared to be similar and a demand that OG explain how he had gone about composing his assignment, we think that it must have been obvious to OG that the professor suspected collusion and was looking for an explanation to satisfy him that it had not occurred. Given OG’s obvious intelligence and his education, we do not see how else rationally he could have interpreted the professor‘s demand.

9) Ninthly, the statements that EK heard OG make to GL at the Leo Cussen Institute about GL’s disclosure are tantamount to an admission that OG did understand that Professor Polonsky suspected copying or collusion, albeit that there was no finding one way or the other.

99 In coming to those conclusions we bear in mind that these are in effect professional disciplinary proceedings and that, while the standard of proof is the civil standard, the degree of satisfaction for which that standard calls in this context is proportionate to the gravity of the facts to be proved. We have also given weight to the presumption of innocence and the exactness of proof expected in matters of this kind.[6] We have borne in mind, too, as counsel for OG contended that we should, that, to begin with, GL was hesitant to answer questions and that, on the first day of giving his evidence in this court, he several times objected to answering questions on the basis of privilege against self incrimination (after he was reminded of the privilege). It is true, as counsel for OG contended that, because of GL’s objections, counsel for OG was on the first day of GL’s evidence significantly restricted in testing his veracity and the reliability of his testimony. But those problems were short lived. Overnight after the first day of giving evidence, GL took the advice of very senior Queen’s Counsel who, next day, was given leave to appear on GL’s behalf for the duration of GL’s testimony. After that, GL took very few objections and, with what appeared to us to be the confidence of having counsel there to look after his interests, he answered virtually all questions put to him, directly and fully. From that point on, counsel for OG were not inhibited in testing GL’s testimony and they availed themselves of that opportunity by going back to matters as to which GL had taken objection the previous day and obtaining answers to their questions on those matters.

100 All things considered, we are left with a real sense of conviction based on the evidence to which we have referred that allegations of collusion were in one form or another put to OG in his interview with Professor Polonsky or at the least that OG inferred from what was said to him in the meeting that Professor Polonsky suspected copying or collusion. We are therefore satisfied that, by no later than the conclusion of his interview with Professor Polonsky and Mr Kidd, OG well understood that he was to be awarded a zero grade or mark for his second assignment because it was suspected that he had colluded with GL.

101 Similarly, we accept GL’s evidence that he had at least one discussion with OG about disclosure before GL sent his letter of disclosure to the Board of Examiners on 28 August 2006. Although there are some aspects of GL’s evidence which we do not accept, in particular that the degree of collusion was as limited as that to which he deposed in his affidavit of 21 September 2007, there was no reason for him not to tell the truth about later conversations. In the scheme of things, it makes sense that GL would have had a pre-disclosure conversation with OG about what each of them should disclose about the circumstances in which they were awarded a zero grade or mark. Despite an attempt by OG in his evidence to downplay the extent of their friendship, it is plain that they were good friends and that both of them stood to be affected by any disclosure which either of them might make. Further, on this point, GL’s evidence about having a pre-disclosure conversation with OG was as we have noticed to some extent corroborated by BB’s testimony and significantly corroborated by EK’s evidence.

102 We reject the idea that GL may have told untruths in order to make himself look less culpable or otherwise better than he was or, as it were, to drag down OG with him. To the contrary, his evidence before the Board of Examiners on 13 December 2006 (which on this point was to the same effect as the evidence he gave before this court) suggests that he did his best to protect OG. Similarly, in the course of his cross-examination before this court, it emerged that he was giving evidence under sufferance. He had asked to be left out of it and he had only agreed to swear a further affidavit once he was told that if he did not do so he would be subpoenaed to give evidence. Even then, he seemed to us to be intent on saying no more against OG than he had to in order to tell the truth. Accordingly, we reject any idea that GL gave untrue evidence to cover the fact that he was the one who copied and was trying to pretend that he had not.

103 We are unable to say whether the conversation went as far or was as explicit as GL recalled it being. BB’s testimony suggested that it was. But it appeared to us that BB’s recollection may to some extent have been informed by later developments. We do not doubt his veracity. He impressed us as a witness who did his best to tell the truth as he recalled it. But he was hesitant to say that he had a clear recollection of the content of the conversation and, even when pushed by counsel for the Legal Services Board, he was prepared to say only that it was his ‘understanding’ of the conversation that it related to a zero mark for a marketing assignment.

104 But even allowing that the conversation may not have gone as far as GL recalled it going, we still think that OG would have well understood that the subject matter which GL said he intended to disclose was the fact that GL had been awarded a zero grade or mark for having colluded with OG in the composition of the second assignment. Given that they had both been accused of suspicion of collusion, and both accorded zero marks, it would have been enough for GL simply to mention the assignment or the zero grade in order to make that clear.

Whether GL showed OG his letter of 28 August 2006 and the Board’s letter of 31 August 2006

105 We are also persuaded as to the accuracy of GL’s evidence that he showed OG his letter of disclosure in the week following receipt of the Board’s letter of 31 August 2006.

106 We are in some doubt as to whether GL showed OG the Board’s letter. He said in his evidence before this court that he did, and we think that that was his honest recollection. But while his recollection of the meeting having taken place has remained constant throughout, his recollection of the detail has changed over time. Thus his evidence before the Board of Examiners on 13 December 2006 was that the discussion took place in a room at the Leo Cussen Institute. He gave similar evidence before this court but added that the meeting lasted in the order of an hour. But in contradistinction to his evidence before this court (that he showed OG both his letter of disclosure of 28 August 2006 and the letter to GL from the Board of 31 August 2006), his evidence at the hearing before the Board of Examiners on 13 December 2006 was that he showed OG only the letter of disclosure; not the letter from the Board. In cross-examination before this court, he said that the reason for the difference was that, when first giving evidence about the matter before the Board, he was under the pressure of cross-examination and it was only later, when he had the opportunity to think about the matter and recall events in effect at his leisure, he remembered that he kept both letters in the one envelope (because one was a response to the other). He reasoned, therefore, that he would have shown OG both letters. But that gives the impression of being more of a logical reconstruction than actual recollection of the facts.

107 We are not in any doubt, however, that GL showed OG his letter of disclosure of 28 August 2006. We accept EK’s evidence as to what happened in the seminar room at the Leo Cussen Institute. In our view, the inference properly to be drawn from the events that EK described is that GL had just shown the letter of disclosure to OG when EK heard and saw OG express the disquiet of which he spoke. On the evidence before us, there is no other credible explanation for OG behaving and speaking as he did.

108 Much was made in cross-examination and by counsel for OG in final address of the evidence that OG was exempted from attendance at Leo Cussen after 1 September 2006, and thus of what was said to be the inherent improbability that GL would have had the meeting with OG at Leo Cussen after receiving his letter from the Board of Examiners of 31 August 2006. But we do not regard that evidence as being particularly significant. It is possible that the meeting took place on 1 September 2006, immediately after GL had received the letter of 31 August 2006. It is also possible, as GL suggested in his evidence, that OG returned from time to time to Leo Cussen Institute after starting the Readers’ course. It is to be remembered that Leo Cussen Institute and Owen Dixon Chambers are only a few blocks apart. And other possibilities present themselves.

109 Turning then to OG’s disclosure letter of 9 September 2006, it is possible that he may have made a mistake in writing that the second assessment was worth 15% rather than 20% of the total subject assessment. That would be a relatively easy mistake to make and, apart perhaps from attempting to minimise the significance of the event, there would not seem to be any reason for deliberately misstating the percentage of the total mark which the assignment was worth. Giving OG the benefit of the doubt, it seems to us that the difference between 15% and 20% is so relatively small as to make little if any apparent difference to the significance of the event.

110 On the other hand, we reject OG’s explanation for writing in his disclosure letter that: ‘I mistakenly wrote up the [group] assignment individually’. We do not accept that he did make a mistake about it. There were only two assignments - the first [group] assignment and the second [individual] assignment - and at the time of disclosure it was only just over a year since OG had been called before Professor Polonsky and Mr Kidd to answer allegations that he had colluded with GL in the composition of the second [individual] assignment. In the circumstances, in our view it is fanciful to suppose that OG was in any doubt at the time of writing his letter as to the fact that the university believed that he copied or colluded with GL in the composition of the second [individual] assignment and that it was for that reason that he had been awarded a zero grade or mark for the assignment.

111 We also reject OG’s evidence that he confused tutorials with the lectures that he was given permission not to attend. As he says, he knew that the lectures were held at Footscray and that was why he could not get to them. Apparently, he was able to attend the tutorials. In that state of affairs it presents as inherently improbable that he would confuse one with the other. It is also not the sort of thing that one would be likely to forget about in the space of just over a year. Perhaps, OG simply wrote down the wrong thing absent-mindedly, as one sometimes does when composing a letter. But having seen OG in the witness box, we think it more probable that he deliberately misrepresented that he was unable to attend tutorials; his object being to add credence to the fiction that he was given a zero grade or mark because he had misunderstood the requirements of the second assignment.

112 We are not satisfied that GL and OG met in a café on 14 November 2006 or otherwise that day had a discussion about GL’s Board hearing. We suspect that GL may be confused as to when that conversation occurred. We believe that he was being honest when he said that he recalled such a meeting. It is significant that he also said the same thing when giving evidence at the hearing before the Board of Examiners on 13 December 2006. But there are doubts about the accuracy of his recollection. He was unable to recall the name of the café or where it was located, and he could not do so either when asked about the matter on 13 December 2006. That is odd given that it was then only a few weeks since the event; especially given what one might suppose was the significance of the event at the time.

113 GL’s recollection is also at odds with TF’s evidence that, after the admission ceremony had concluded, he went directly with OG to Nick’s café, where GL was not present, and then directly from Nick’s to Goldfingers, where he found that GL was present. It is possible that OG went later to Goldfingers and that Goldfingers is the ‘café’ which GL recalls. But GL denied that possibility.

114 It also emerged in the course of TF’s evidence that he and BB and GL spent something more than three and a half hours drinking at Goldfingers that day, and TF said that he was drunk by the end of the session. The evidence did not establish how much GL had to drink. But it is a fair inference that GL had a considerable amount too and, therefore, possible that his recollection of that day is corrupted by the effects of alcohol.

115 We think it more likely than not that OG and GL had a face to face meeting in December 2006, after OG received the letter of 7 December 2006 from the Board’s solicitors. GL’s evidence about that was clear and, significantly, exactly the same as the evidence which he gave on the point before the Board of Examiners on 13 December 2006 (only a few days after the meeting was said to have taken place).

116 The likelihood of such a meeting having occurred is also supported by the fact that the Board’s solicitors had written to GL urging him to persuade OG to come to the special meeting, and by the objective probability that OG would have wished to discuss GL’s affidavits with GL before committing himself to the meeting.

117 A further factor supporting GL’s version of events is that in his affidavit of 21 September 2007 he deposed that OG told him at the meeting that, when he met the university academics in August 2005 concerning his second assignment, he was told by an American lecturer or tutor[7] that the reason he would be awarded a zero grade or mark for the assignment was because ‘You’ve got the wrong idea about the assignment. You didn’t follow the criteria. We’re going to give you a zero mark for the assignment because it wasn’t good enough to get any marks.’ That version of events is more or less identical to the version to which OG later swore for the first time in his affidavit of 12 October 2007. So unless OG expressed it to GL on 8 December 2006, as GL said he did, it is difficult to see how GL could have learned of it or guessed it.

118 We reject OG’s testimony that the only conversation that he had that day with GL was by telephone.

119 The Legal Services Board contends that OG’s letter of disclosure to the Board of Examiners of 10 September 2006 falsely represented that the reason why OG was awarded a zero mark for his second assignment was because he wrote up a joint assignment as an individual assignment and falsely represented that OG did not attend the tutorial at which the second assignment was discussed and as a result misunderstood the assessment requirements. For the reasons already given, we accept that contention.

120 The Legal Services Board further contends that OG made each of those misrepresentations deliberately or recklessly and thereby deliberately or recklessly failed to make full and frank disclosure of the true circumstances in which he was awarded a zero mark for the second assignment. For the reasons already given, we also accept that contention. We are satisfied that OG well knew that he had been suspected of collusion and that his mark had been reduced to zero for that reason. Thus by representing that the mark was reduced to zero for the reasons set out in his disclosure letter he deliberately or recklessly misrepresented the circumstances in which he was awarded the zero mark.

121 The Legal Services Board submits that, having found that OG deliberately or recklessly misrepresented the circumstances in which he was awarded a zero mark for his second assignment, it is open to find that OG was on 14 November 2006 unfit to be admitted to practise and thus to set aside the order made that day for his admission to practise.

122 The rules which govern applications for admission to practise law in this state require that an applicant make full disclosure in writing to the Board of Examiners of every matter which is relevant to consideration of the applicant’s fitness for admission to the legal profession, including but not confined to any formal charges of criminal offences.[8] To that end, each applicant is bound to lodge with the Secretary of the Board of Examiners an affidavit sworn by the applicant that he or she has complied with that obligation of disclosure.[9]

123 As OG was taught at the Leo Cussen Institute, that obligation of disclosure requires that an applicant be frank and honest with the Board of Examiners, and so with the court, about anything which might reflect adversely on the fitness and propriety of the applicant to be admitted to practise. Nice questions sometimes arise as to how much that entails. Increasingly, there is an expectation that even ancient peccadillos should not be left out.[10] In the past, perhaps, the obligation was not always seen as going quite so far. But the need for honesty has never been in doubt. Admission to practise is conditioned upon an applicant having a ‘complete realization ... of his obligation of candour to the court in which he desire[s] to serve as an agent of justice’.[11] An applicant must at least disclose anything which he or she honestly believes should not be left out. Plainly, candour does not permit of deliberate or reckless misrepresentation pretending to be disclosure.

There can be no doubt that if a candidate is admitted to practise as a barrister and solicitor of this Court and it is afterwards discovered that the certificate of the Board upon which he was admitted ought not to have been granted, because the candidate has not complied with the Rules, this Court has ample power in its inherent jurisdiction to revoke the admission, and we do not understand Mr Ostrowski, who appeared for Miss Warren, to challenge that proposition. An order admitting a candidate to practise is an order made ex parte and there is an inherent power in all Courts to review ex parte proceedings: see Re Reid Murray Acceptance Ltd, [1964] VR 82, at pp. 89-90, and the cases there cited. This principle must apply a fortiori where the order made is an order admitting a person to practise: cf. Re a Solicitor, [1952] VLR 385 and the authorities there cited, especially at p. 388.

It is, however, not desirable to attempt to lay down the circumstances in which an order admitting a candidate to practise might be revoked. An obvious example would be where the order has been obtained by fraud, but there may well be other cases besides. It is sufficient for present purposes to say that we are satisfied that no case here exists for revoking Miss Warren's admission.[13]

125 All things considered, we have concluded that we should revoke the order admitting OG to practise. As we have found, he deliberately or recklessly misrepresented to the Board of Examiners the circumstances in which he came to be awarded a zero grade or mark for his second assignment. His actions, therefore, were the antithesis of a ‘realization ... of his obligation of candour to the court in which he desire[s] to serve as an agent of justice’.[14] We say nothing of what has happened since, including his evidence in this court and his attempt to shift the entire blame onto GL by alleging that GL had copied by utilising his access to OG’s computer and also changed OG’s own assignment on that computer. It cannot be doubted that the Board of Examiners would not have granted OG a certificate if it had been aware of the misrepresentation. He should not be permitted to benefit from the fact that he managed to mislead them.

126 Section 2.3.7 of the Legal Profession Act 2004 requires the court to keep a roll of persons admitted to the legal profession under the Act and s 4.4.39 of the Act expressly preserves the inherent jurisdiction of the court with respect to the control and discipline of members of the profession. It derives from the power to admit practitioners[15] and, among ‘a great variety of other orders’, it extends to striking the a practitioner from the roll.[16] We have power, therefore, to strike a practitioner from the roll for failure to make full and true disclosure to the Board of Examiners.[17] It is right so to order in this case.

127 Counsel for OG submitted that, whatever may be the finding of the court as to the question of whether OG made full disclosure before admission, there is evidence that he has since performed satisfactorily at the Bar as a member of counsel and thus that the court should in the exercise of discretion desist from striking him from the roll.

128 We reject that contention. If OG seeks to be readmitted to practise, he will need to persuade the Board of Examiners that he is a fit and proper person.

129 There will be orders accordingly that the order admitting OG to practise be revoked and that he be struck off the roll.

[1] The printed course materials contained examples of marketing and strategy plans.

[2] By a subsequent email of 2 October 2007 the solicitors corrected that to ‘GJL’.

[5] As it is described above (although marked on the assignments as part of similarity 8).

[6] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 350 (Rich, J) and 362-3 (Dixon, J); Mercer v Pharmacy Board of Victoria [1968] VR 72,81-2 (Pape, J); Ex parte AG (C’th) Re a Barrister and Solicitor (1972) 20 FLR 234 at 246; New South Wales Bar Association v Livesy [1982] 2 NSWLR 231, 238; Heydon, Cross on Evidence [9075].

[8] Legal Practice (Admission) Rules 1999 (SR 144 of 1999), R. 4.03(1)(b), and Schedule 8.