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Practicing Law in WA Contempt of Court - Legal Work Done by A Person Not A Legal Practitioner
Practicing Law in WA Contempt of Court - Legal Work Done by A Person Not A Legal Practitioner
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[2010] WASC 4
CORAM : HALL J
AND
CLINTON GIRAUDO
Respondent
Catchwords:
Contempt of court - Legal work done by a person not a legal practitioner -
Appropriate penalty
Legislation:
Legal Practitioners Act 1893 (WA), s 76, s 77, s 78, s 81
Result:
Contempts proved
Fines imposed
Category: B
Representation:
Counsel:
Applicant : Mr A T Macknay
Respondent : In person
Solicitors:
Applicant : McCallum Donovan Sweeney
Respondent : In person
mass of facts and conditions, the legal effect of which must be carefully
determined by a mind trained in the existing laws in order to ensure a
specific result and to guard against others. In such a case more than the
knowledge of the layman is required and a charge for such services brings
it within the practice of the law: Barristers' Board v Palm Management
[108] (Brinsden J).
14 Where a person, in preparing documents, exercises his mind as to
what is the appropriate form of words to accommodate the particular case,
this can be regarded as drawing or preparing a legal document: Cornall v
Nagle. A process of that kind goes beyond mechanical or clerical tasks
and is of a kind required to be performed by a solicitor: Attorney-General
v Quill Wills Ltd (1990) 3 WAR 500; and Legal Practice Board v Said
(Unreported, WASC, Library No 940608, 31 October 1994).
15 In Legal Practice Board v Adams the respondent prepared two writs
to commence actions in the Supreme Court. Hasluck J noted that the
respondent had played an active role in seeking to understand the facts
underlying the dispute and in then refining the claims in the form of draft
statements of claim. The respondent in that case purported to take
instructions and then gave a shape to the facts and matters conveyed to
him so that a claim could be advanced against a third party. His Honour
noted that the respondent exercised skill in formulating the statements of
claim in a way that would present the claims in their best light. This was
not acting in a mechanical or clerical manner but was exercising a degree
of skill as to what matters should be relied upon by the claimants in order
to obtain relief. His Honour held that a person acting essentially as a
solicitor who was the guiding intelligence behind the issue of a writ will
be regarded as indirectly suing out the writ.
I have been working through the facts and the issues to seek to determine
exactly what has happened and who is liable for what. There are seven
parties involved here and I am still unravelling the details.
I have further questions for Adrian but he is in a meeting. Until I have the
answers to these questions I am not in a position to give you a formal
reply. However, I am giving this close, careful and immed iate attention.
22 This letter goes well beyond merely recording the relevant facts. It
considers and makes assertions in respect of the legal consequences of
those facts. It is consistent with Mr Giraudo providing a legal analysis
beyond that which would be expected of a lay person.
options may be. He said that with the benefit of hindsight he would not
choose to write a letter like this again and that the letter was poorly
crafted. By this I took Mr Giraudo to mean that, whilst the letter might
give the impression of providing legal advice, that was not his intention.
30 Although Mr Giraudo persistently denied that the letter of
19 October 2001 contained any advice of a legal nature, it is my view that
that evidence is entirely inconsistent with the words of the letter. The
letter gives advice for resolving a legal dispute and shows an appreciation
of the fact that Mr Domney was likely to require and rely upon that
advice. As to the reference in the letter to not being skilled or qualified to
assist with court proceedings, this only aggravates the circumstances by
showing that Mr Giraudo was conscious of the need for qualifications.
The best inference that could be drawn for him is that he may have been
mistaken as to where the boundary lay regarding the need for
qualifications. However, subsequent conduct shows that he did not feel
constrained from continuing to assist Mr Domney when court proceedings
were commenced by the customs brokers.
31 On the same day as his letter to Mr Domney, 19 October 2001,
Mr Giraudo also wrote to the solicitors for the customs brokers. In that
letter he responded to the request for advice as to the capacity in which he
was acting. He stated:
I am a consultant helping Mr Domney in a number of matters that have
arisen from his business dealings with Malaysia. My purpose is to resolve
all of these matters.
33 It would appear that there was an offer to the customs brokers to pay
part of the amount that they were seeking and on 24 October 2001
Mr Giraudo wrote to the solicitors for the customs brokers confirming the
nature of the offer. In particular, he stated that the offer was not an
acceptance of liability for the total amount sought and referred again to
the assertion that the third party was liable. He then stated:
In our view the existence of Mr Domney's name on the shipment
documents is insufficient to rest liability with him given the other facts in
this case. What then is the substance of your case? If you have any
precedent in this matter kindly refer to it in your reply. Failing receipt of
any compelling law to support your case we will be defending any suit that
you may bring.
34 In the final paragraph of the letter Mr Giraudo refers to the fact that
the solicitors had issued a summons before receiving his letter of
16 October and that he intended to bring that to the attention of the court
in the consideration of costs.
35 Again, the only reasonable interpretation of this letter is that it is
making representations as to the law. These are representations being
made by Mr Giraudo, albeit on behalf of Mr Domney. There is nothing to
suggest that Mr Domney is the author of the letter, quite the contrary.
Furthermore, by inviting the lawyers for the customs brokers to provide
the legal basis for their client's claim and any 'precedent' that supports it,
Mr Giraudo is seeking to argue the legal merits of the dispute.
36 The summons issued by the solicitors for the customs brokers was
filed in the Fremantle Local Court and a pre-trial conference was held
there. Mr Giraudo attended this pre-trial conference with Mr Domney.
When asked in cross-examination about his role he said:
In my mind I wasn't there to negotiate for Adrian; he was there to negotiate
for himself, and indeed he did. I was there to find out more of what the
position of [the customs brokers] was because it wasn't clear to me. They
weren't communicating with me as much as to what their side of the
situation was, so I wasn't able to help Adrian come to some kind of
settlement in the matter. So I was looking for any way that I could sit
down with them to learn what their problem was (ts 91).
But are you, by that, conceding that you knew Mr Domney would look to
you for advice in regards to what had occurred at the pre-trial
conference?---Simply my take on it, my opinion, my feelings about what
had been said, more to the extent of if something was to happen next - if
Adrian wasn't aware of what had happened in the pre-trial conference, then
I would not be in a position to be able to assist Adrian any further.
I'm just asking you what you were doing and what I am suggesting to you
is that on 21 September you were working through the facts and the issues
to seek to determine exactly what had happened and who was liable for
what?---That's what it says, and I was undertaking all of that with Adrian
to work out those details.
With regard to the issue to filing a new defence we discussed this with you
on May 23 when I served our discovery and Full Particulars of Claim on
you. Why did you not act on the new defence at that time? When will
your fresh Defence and/or Counterclaim be lodged?
We are sure that you will now act diligently to complete the fresh Defence
and/or Counterclaim, and provide us with access to the physical evidence
as requested hereinabove forthwith.
64 For similar reasons, were it necessary to do, I would find that each of
the alternatives in ground 1(b) - (e) is also established beyond reasonable
doubt.
65 I should note that at the hearing of this matter Mr Giraudo submitted
that Mr Domney should not be believed. He cross-examined Mr Domney
and also relied upon affidavits of Mr Robert Smith regarding unrelated
business dealings. Much of this evidence was excluded as being
irrelevant. To the extent that Mr Domney's credibility was in issue I
found him to be a truthful witness. In any event my findings in this matter
rely almost entirely on the documents (that were not in dispute).
Conclusion
66 In respect of each of CIV 1631 of 2005 and CIV 1632 of 2005, I
have found that Mr Giraudo breached s 76 and s 77 of the Act.
Accordingly, the Board is entitled to the relief sought in the amended
originating motion alleging contempt of court and Mr Giraudo must be
punished for contempt of the Supreme Court of Western Australia in the
manner allowed for by s 81.
Penalties
67 Under the Legal Practitioners Act 1893, the penalty was at large:
Legal Practice Board v Ferguson [2006] WASC 250 [5]. Section 81
provided that a person guilty of contempt 'may be dealt with accordingly'.
Under the Legal Practice Act 2003 the maximum penalty for a breach of
the equivalent provision was a fine of $10,000 but the penalty for
68 The Sentencing Act 1995 (WA) does not apply to punishment for a
contempt of court: see s 3(3)(a). However, it is appropriate that the court
should give consideration to sentencing principles in the Sentencing Act
when dealing with a contempt of this nature: Kennedy v Lovell [2002]
WASCA 226 [6] (Malcolm CJ), [48] (Murray J), [55] (Steytler J); Legal
Practice Board v Frichot [2006] WASC 230; and Legal Practice Board v
Tee [2009] WASC 5.