Cox v Witt

[2005] NSWLC 1

Local Court of New South Wales

CITATION:	Cox v Witt [2005] NSWLC 1
JURISDICTION:	Civil
PARTIES:	Kenneth Alan Cox Frank Raleigh Witt
FILE NUMBER:	4255/04
PLACE OF HEARING:	Downing Centre
DATE OF DECISION:	04/26/2005
MAGISTRATE:	Magistrate H Dillon
CATCHWORDS:	Procedure - Lawyers - Persons may not act as lawyers without a practising certificate - Legal Costs paid to unqualified persons may be recovered as a debt
LEGISLATION CITED:	Legal Profession Act 1987 s 48B, s48C
CASES CITED:
REPRESENTATION:	Mr D Gasic (Counsel) instructed by Williams Woolf & Zuur Lawyers Mr B Dennis (Advocate) of Dennis & Co Solicitors
ORDERS:	1. Verdict and Judgment for plaintiff in sum of $13,000.00; 2. Interest to be calculated on sum of $5,000.00 from 30 March 1995 to present; on a further $5,000.00 from 8 September 1995 and on a further $3,000.00 from 15 August 1996.; 3. Question of costs is reserved.

JUDGMENT

1. The plaintiff, Mr Cox, brings this action seeking to recover a sum of $13,000 that he alleges is due to him by Mr Witt, the defendant, pursuant to s.48B of the Legal Profession Act 1987 (“the Act”), on account of Mr Witt performing legal work while unqualified to do so. At the relevant times, Mr Witt had been suspended from practice.

2. The relevant parts of s.48B provide:

(1) A natural person must not act as a barrister or solicitor and barrister unless the person holds a current practising certificate .

Maximum penalty: 20 penalty units…

(4) If a person contravenes this section:

(a) no action lies for the recovery of costs in respect of anything done in the course of the contravention, and

(b) if any such costs have been paid, the amount paid may be recovered as a debt owed by the person to the other person who paid them.

3. Mr Witt concedes that he did certain work for Mr Cox and that he received certain moneys from Mr Cox for work he performed but he denies that he performed legal work for Mr Cox or that he held himself out to be or did anything to suggest that he was a legal practitioner.

Background

4. Mr Witt was a barrister. His practising certificate, however, was cancelled on 24 December 1992 following proceedings in the Legal Profession Disciplinary Tribunal. On 22 July 1996, the Legal Services Tribunal found that Mr Witt had acted as a solicitor without a valid practising certificate. That Mr Witt had no practising certificate at the relevant time is not disputed.
5. Mr Cox works in the construction industry. In 1995, he unsuccessfully represented himself in a case in the Land and Environment Court. He was anxious to appeal against the decision. He was referred by a solicitor called Ms Yvonne Woon to Mr Witt. He saw Mr Witt at the offices of Laurence J Treanor & Co, Solicitors (“Treanors”) in West Ryde in March 1995. The terms of that discussion are disputed and will be considered below but it is not disputed that Mr Witt gave Mr Cox certain advice. Mr Cox also handed over a cheque in the sum of $5000 on 30 March 1995 payable to Treanors. That cheque was paid into the National Australia Bank account of Commercial Lawyers Pty Ltd (“Commercial Lawyers”) on 3 April 1995. The directors of Commercial Lawyers included Laurence John Treanor and Mr Witt. (Mr Witt’s de facto wife, Sonya Salkild, was company secretary.)
6. On 19 May 1995, Treanors sent Mr Cox a letter. It began, “We refer to our conference on 18 May 1995 and advise as follows…” The letter then referred to a consultation (by Treanors) “with senior counsel who is an expert in matters before the L&E Court”. The letter then went on to advise that there were grounds for an appeal on ten counts. Treanors then went on to advise that an application for review of the decision at first instance would be prepared and filed the following week and requested $10,000 for work done and anticipated. The plaintiff alleges that the letter was initialled by Mr Witt. A Notice of Grounds of Appeal was prepared for the Court of Appeal and provided to Mr Cox.
7. On 13 June 1995, Treanors wrote to a junior barrister, Mr Mario Sindone, briefing him to advise on the prospects of an appeal. That letter was signed by Mr Laurence Treanor. On 13 June 1995, Mr Treanor had a conference with Mr Sindone concerning two matters, one of which was the Cox appeal. He drafted a letter of advice concerning the grounds of appeal (of which he thought there were none). On 30 June 1995, Mr Sindone appears to have sent out his memorandum of fees for the advice he had given. In relation to Mr Cox’s matter, he charged no fee for the written advice because of the simple nature of the matter. He received his fees on 30 April the following year (with an apology for the delay).
8. On 8 September 1995, Mr Cox gave Mr Witt a further cheque payable to Treanors in the sum of $5000. That cheque was credited to the account of Sonya Salkild at the Bondi Junction branch of the St George Bank on 11 September 1995.

9. In late 1995, Mr Cox was also a board member of the David G. Stead Memorial Wildlife Research Foundation of Australia. At that the Foundation was in dispute with the National Trust concerning the terms of the will of the late Thistle Yolette Stead. Mr Cox was concerned to obtain support on the board for an action against the National Trust. He invited Mr Cox to join the Foundation, which he did in October 1995. Mr Cox alleges that Mr Witt offered advice concerning certain legal issues to do with the will. Mr Witt asserts that Mr Cox, knowing that he had been a barrister, sought unsuccessfully to elicit legal advice from him. I will consider the evidence further below.

10. In late 1995, to compound Mr Cox’s legal problems, his previous solicitors, Marsdens, sued him in the sum of $1442.90 for fees for work done in relation to a claim against him by a plaintiff who alleged that Mr Cox’s dog had bitten him. Mr Cox’s defence failed and judgment was entered against him. Mr Cox refused to pay the fees charged by Marsdens because he asserted that their advice had been negligent. The solicitors obtained a default judgment against him. On 17 October 1995, a letter was sent to Marsdens representing that Treanors acted for Mr Cox and that he sought to defend the matter. Mr Cox asserts that the letter was drafted by Mr Witt and sent on his behalf. Mr Witt denies this. Once again, I will deal with the evidence below. A Notice of Motion to set aside the default judgment and a supporting affidavit were drafted and filed at the Campbelltown Local Court in early 1996. Mr Cox asserts, and Mr Witt denies, that the latter drafted the Notice of Motion and affidavit. Mr Witt did not appear at court for Mr Cox.

11. The fourth area in relation to which Mr Cox asserts he received legal advice from Mr Witt concerned a proposed development at Concord. Mr Cox entered an agreement in 1994 with the owner of a property pursuant to which he was entitled to pursue a development application (“DA”). (This was the DA in respect of which Mr Cox was unsuccessful in the Land and Environment Court to which reference has been made already.) The agreement with owner was open for two years. If Mr Cox was able to have the DA approved within two years he stood to make either a profit or to be awarded a construction contract for the site. Mr Cox was hopeful of succeeding in his appeal against the decision of the Land and Environment Court and therefore sought to extend the agreement with the owner of the Concord property. In June 1996, following a period of negotiations, Mr Cox’s company made an agreement with the owner, The Formula Australia Pty Ltd. According to Mr Cox, Mr Witt gave him legal advice concerning this agreement. Again, this is denied by Mr Witt and the evidence is discussed below.

12. On 15 August 1996, Mr Cox made out a cheque in the sum of $3000 and gave it to Mr Witt without nominating a payee. The cheque was, accordingly, a bearer cheque. That cheque was deposited to the credit of Sonya Salkild.

13. For the development plan to succeed, the appeal from the Land and Environment Court’s decision was critical. On 24 July and 3 August 1997, Mr Cox wrote to Treanors concerning the advice he said he had been given by Mr Witt and seeking a progress report. He received no reply.

The issues for determination

14. There is no question that Mr Cox paid Mr Witt certain fees and that Mr Witt was not entitled to represent himself to be a legal practitioner. In respect of those moneys, or any of them, the issue is whether they were fees Mr Witt charged Mr Cox for legal advice (as opposed to financial or marketing advice).

15. In his Notice of Grounds of Defence, the defendant pleads that the plaintiff is barred from maintaining this action by operation of the Limitation Act. The plaintiff’s action was commenced in the Manly Local Court on 6 February 2001.

16. In his case summary, the defendant also asserted that he is not the proper defendant and that the plaintiff is not the proper plaintiff. I note that the latter allegation is not pleaded in his Notice of Grounds of Defence. No application to amend has been made. I have been told that Mr Witt’s cross-claim is not pressed.

Preliminary issue: Limitation Act 1969

17. Section 14(1)(d) of the Limitation Act provides that an action is generally not maintainable if commenced more than six years after the cause of action under an enactment accrues. If, however, the plaintiff’s action is based on fraud or deceit, time starts to run when the plaintiff discovers, or with reasonable diligence could have discovered, the alleged deceit.

18. In this case, the advice was allegedly given by Mr Witt between March 1995 and July 1997. The action was clearly commenced within time. In any event, if it was not within the general six-year period, s.55 of the Limitation Act would, in my opinion, operate to bring the action within time, it clearly being the plaintiff’s case that Mr Witt acted deceitfully in misrepresenting himself to be a lawyer with a valid practising certificate and charging for fees for legal advice.

Evidence

19. I have already outlined most of the uncontroversial evidence. I have taken into account all the evidence presented by the parties but, in the interests of economy, will refer only to the salient features of the additional evidence adduced by each them. Mr Cox alleges that Mr Witt represented himself to be a legal practitioner and gave him legal advice in relation to a number of separate issues.

Appeal against Land and Environment Court decision

20. Mr Cox gave evidence that he had been referred to Mr Witt by a solicitor, Ms Yoon, who had called him a “good barrister”. (Ms Yoon did not give evidence). He said that he had met Mr Witt at the office of Treanors and had given Mr Witt a copy of the Land and Environment Court decision together with a transcript of the proceedings. He said that Mr Witt told him that he had 40 days in which to appeal and that he would advise the court that an appeal was to be filed. He said that Mr Witt had told him he needed $5000 to read the documents and that he had given him a cheque for that sum

21. He said that he later had a conversation with Mr Witt in which Mr Witt said that a barrister, Mr Sindone, had advised against an appeal but that he and Mr Treanor thought that the appeal should proceed nonetheless. He thought that he had been given this advice by Mr Witt and Mr Treanor at a conference on or about 18 May 1995. At this time he said that he had been given a copy of the Notice of Appeal and had been told by Mr Witt that it would take about two-and-a-half years for the appeal to be heard. According to Mr Cox, Mr Witt asked in May for a further $5000 and he paid this on 8 September 1995.

22. Mr Witt’s version of events is that he had known Ms Yoon for about 15 years as they had had common interests in property transactions. He said that he shared offices with Laurence Treanor but that was the extent of his association with Treanors. He agreed that he had met Mr Cox who brought with him two large tubes containing construction plans and other papers concerning a development project plus a box file of documents relating to the Land and Environment Court case. According to Mr Witt, he told Mr Cox that he was a corporate and financial consultant who organised funding for projects and offered advise concerning development projects and their feasibility. He said that he had also informed Mr Cox that he had previously practised at the Bar but did not do so any longer and could not offer legal advice.

23. Mr Witt said that Mr Cox had told him about his unsuccessful foray into the Land and Environment Court and wished to ascertain his chances of a successful appeal. He said that he had referred Mr Cox to Mr Treanor for legal advice on this issue as was his general practice when legal issues arose in the course of his financial consultancy work. He said that his advice to Mr Cox in relation to the development project which had resulted in the Land and Environment Court proceedings was purely in relation to the commercial aspects of the project. He stated that he and Mr Cox had made an arrangement that if he, Mr Witt, assisted Mr Cox in obtaining development approval and funding for the project, he would receive 15 per cent of the profit made by Mr Cox plus expenses.

24. In support of his claim that he had merely offered financial and other commercial (as opposed to legal) advice, Mr Witt tendered a fax document from Bruce Davies concerning the Concord Hotel. The letter attached preliminary costs estimates for the development project being considered by Mr Cox. He also tendered an environmental impact statement prepared in respect of the project.

25. Mr Cox denied that Mr Witt had had anything to do with the marketing or funding of his development project. He said that another firm, Bailey Davidson and Associates, had provided those services to his company. He denied any success fee arrangement with Mr Witt.

26. The letter of 19 May 1995 on Treanors letterhead is a very significant piece of evidence. The plaintiff’s case is that it was prepared and signed by Mr Witt. A comparison of the signature (or initial) on the letter with the application form signed by Mr Witt for membership of the David G. Stead Wildlife Research Foundation and Mr Witt’s signed proxy form, given by him to Mr Cox, and on a cheque dated 8 September 1995 from Mr Cox payable to Treanors shows a striking resemblance between them. The cheque was endorsed by Mr Witt to Ms Sonya Salkild, his de facto partner. Mr Witt agreed in cross-examination that the signature on the cheque appeared to be his.

27. Mr Cox also tendered letters apparently signed by Mr Laurence Treanor. The signature on those letters reads “L. Treanor”. It is very different from the signature on the letters apparently signed by Mr Witt.

28. When pressed in cross-examination in relation to letters containing legal advice on Treanors letterhead and apparently signed by him, Mr Witt claimed either to have no recollection of the letter or admitted the possibility that he may have initialled the letter but only as some sort of service to Treanors to enable the letter to go out. In other evidence, however, he claimed to have had no association with Treanors other than to share office space, notwithstanding the fact that he was a director of Commercial Lawyers which appears to have been the corporate body which traded as Treanors.

29. Another striking piece of evidence concerning the letter of 19 May is that it refers to advice being received from “senior counsel”. There is no evidence whatsoever that any advice was sought or received from counsel, letter alone senior counsel, until Mr Sindone’s advice was sought in June 1995. Whoever drafted the letter of 19 May 1995 – and the evidence points at Mr Witt – not only provided Mr Cox with legal advice but on a false and dishonest basis.

30. I note that Mr Treanor has not been called by the defendant to give evidence on his behalf to explain the letter of 19 May 1995 on his letterhead. No reasonable explanation has been provided to explain his absence. I think it appropriate to infer that Mr Treanor’s evidence would not be of assistance to Mr Witt in the circumstances.

The Wildlife Foundation

31. Mr Cox gave evidence that, during his campaign on the board of the David G. Stead Wildlife Foundation against the National Trust, he had sought Mr Witt’s advice concerning the terms of the will of testator, Mrs Stead and had been given it. He said that he used Mr Witt’s advice as material with which he sought to persuade his fellow board members to his view. Mr Cox makes no allegation of having paid Mr Witt for legal advice in relation to this matter.

32. Mr Witt claimed to have been “inveigled” to join the organization to enable Mr Cox “to make use of my advices at no cost in relation to the running of the Foundation of which he, Cox, sought control.”

Claim by Marsdens against Mr Cox

33. Mr Cox’s evidence, denied by Mr Witt, is that Mr Witt provided him with advice concerning his application to have a default judgment in favour of Marsdens set aside. On 17 October 1995, a letter was sent from Treanors claiming that the firm represented Mr Cox and requesting that Marsdens not “proceed to judgment in this matter until we have had sufficient opportunity to peruse the file and prepare a defence.” A copy of the letter sent to Marsdens was, according to Mr Cox, given to him by Mr Witt. It was initialled. The plaintiff’s version of events is that the letter was initialled by Mr Witt and that it accords with the advice he was given by Mr Witt.

34. Mr Cox also said that a Notice of Motion and affidavit in support seeking to set aside the default judgment was drafted for him by Mr Witt and that he had expected Mr Witt to appear for him on the motion at Campbelltown Local Court but had been disappointed by Mr Witt’s failure to turn up. He said that he had telephoned Mr Witt and been told by him that he could not make it to court but that Mr Witt had given him advice as to how to deal with the motion.

35. Mr Witt denied ever having drafted any documents to do with the Marsdens case for Mr Cox. He said that he had offered the very general advice that Mr Cox should pay Marsdens unless there was good reason not to. He also said that Mr Cox had refused to instruct Mr Treanor in the matter because he had no money to pay legal fees.

The Concord option agreement

36. According to Mr Cox, he believed that his appeal against the Land and Environment Court decision had been lodged and was proceeding. As I have outlined above, it was, however, necessary for him to obtain development approval or to obtain an option to purchase the Concord property. Mr Cox’s evidence was that he therefore gave Mr Witt instructions to prepare an agreement enabling him to extend the time within which he might have the development application approved. A copy of the agreement was tendered by Mr Cox.

37. The solicitors for the other party, The Formula Pty Ltd (“Formula”), were Hoosen and Co (“Hoosens”). On 13 May 1996, Hoosens wrote to Mr Witt addressing him as “Mr Frank Witt, Solicitor” and referring to a conversation on 3 May 1996 concerning the draft of the agreement which was being negotiated by Mr Cox with Formula. Hoosens criticised certain aspects of the draft agreement and made a counter-offer before concluding “we look forward to hearing from you.”

38. Mr Witt agreed that the fax number on the letter was his but denied having negotiated with Hoosens concerning the agreement, having drafted the agreement or having ever seen the Hoosens letter.

The $3000 cheque

39. Mr Cox gave evidence that he had been asked for a further $5000 by Mr Witt for the work done but that he had only been able to pay him $3000. Mr Witt had accepted this sum. Mr Cox said that he had given Mr Witt a cheque for that amount but had been requested by Mr Witt to leave the payee line open. The cheque was subsequently filled out as payable to Sonya Salkild.

40. Mr Witt claimed that the cheque was an advance for disbursements in relation to the marketing scheme he was developing with Mr Cox. His evidence was that he and Mr Cox had agreed that he would bear all the disbursements within the scope of his success fee in relation to the development.

Findings of fact

The Land and Environment Court decision

41. In relation to the letter of 19 May 1995, I think that the evidence overwhelmingly suggests that Mr Witt was the author of the letter. His signature appears to be on the letter. I draw that conclusion on the basis of a comparison of proven signatures and the questioned signature. There is a striking resemblance. Although there was no expert handwriting analysis done, that in itself is suggestive (cf s.183 Evidence Act 1995). That being the case, the fact that the defendant’s signature apparently appears on the letter is also suggestive that he gave the advice contained within the letter.
42. Mr Cox was desperately concerned for his development project and needed legal advice not marketing assistance because the project was blocked by the Land and Environment Court. The only thing that would release the project from its legal shackles was a successful appeal. Mr Cox already had advisers concerning marketing and funding – he needed a clever lawyer to resolve his quandary, not a financial consultant. Mr Witt had legal skills and had a background in development projects. It is appears to me to be far more probable than not that Mr Cox wanted legal advice from Mr Witt and that anything else Mr Witt offered would simply be topping.

43. The environmental impact statement and cash flow projections are consistent with Mr Witt’s claims but equally with those of Mr Cox. In fact, the cash flow projections seem to me to be more corroborative of Mr Cox than of Mr Witt because they show that he had someone else involved in project management as he asserted. That being the case, there was little apparent need for Mr Witt’s skills in that respect.

44. Mr Cox appeared to be an honest witness. He appeared to be something of “rough diamond” but was forthright and frank and appeared to be genuinely surprised and insulted by suggestions put to him that he had consulted Mr Witt in relation to anything but legal issues. He agreed that Mr Treanor had been brought into the matter but was emphatic that most of his dealings were with Mr Witt. Given that Mr Treanor was not being called to give evidence and was not going to be present to contradict him if he denied that Mr Treanor had, as well as Mr Witt, offered legal advice, his concession bolstered his credibility.

45. Confronted with the letter of 19 May, Mr Witt, on the other hand, had all the appearance of an evasive witness. It has often been said that “an ounce of proof is worth a pound of demeanour” in determining whether a witness is telling the truth. In this case, I came to the view that there were pounds of proof and pounds of demeanour suggesting that Mr Witt was not a reliable witness. He did not claim that the signature was that of Laurence Treanor, the person to whom he claimed to have referred Mr Cox for legal advice. He provided no satisfactory explanation for his signature appearing on the document. There is no evidence that Mr Treanor was in any way involved in dealing with a possible appeal on behalf of Mr Cox until June 1995. In my opinion, the evidence of Mr Witt in relation to the obtaining of instructions concerning an appeal and the advice that followed is wholly unsatisfactory and cannot be relied upon in any way where it conflicts with the evidence of Mr Cox.

46. In relation to the appeal against the decision of the Land and Environment Court, I am satisfied that Mr Witt was the author of the legal advice of 19 May and offered other advice of a legal nature to Mr Cox. That Mr Treanor also offered advice does not diminish or alter Mr Witt’s role or exonerate him from his misconduct. It is misconduct that is aggravated by the fact that he told at least two lies in the letter of 19 May to Mr Cox, namely that senior counsel’s opinion had been obtained and that Treanors would file an appeal within the week. No appeal was ever filed.

47. It is also clear that Mr Cox placed cheques worth $10,000 in Mr Witt’s hands and that these moneys never went into Treanor’s trust account. The two cheques for $5000 each were made out to Treanors. Clearly, it was Mr Cox’s belief that he was paying for legal advice. If he had been paying for financial advice, why make the cheques out to a firm of solicitors rather than to the financial consultant himself? It would make no sense at all. I am more than satisfied on the balance of probabilities that Mr Witt obtained those moneys from Mr Cox for legal advice and services either provided to or anticipated by him.

The Wildlife Foundation

48. For the reasons I have given above, I think that Mr Cox’s version of events is more credible than Mr Witt’s. On the other hand, it is also clear that whatever advice Mr Witt provided Mr Cox in respect of his campaign, it was gratis. The relevance of the evidence therefore is in relation to credibility and to proving a general course of conduct. Here the evidence supports Mr Cox because it shows that Mr Witt was prepared to offer legal advice to Mr Cox on a “pro bono” basis.

The Marsdens case

49. The initial or signature on the copy of the letter to Marsdens appears to be that of Mr Witt. It bears a close resemblance to signatures proven to be his. The only rational conclusion to draw from that fact and the fact that Mr Treanor was not called by Mr Witt to give evidence on his behalf is that Mr Witt drafted the legal letter on Treanors letterhead to Marsdens. That accords with the evidence given by Mr Cox.
50. It also seems to me that, given his general ignorance of procedure relating to the setting aside of default judgments, that it is unlikely that Mr Cox would have drafted the Notice of Motion and affidavit in support. Those documents are written in a style one would expect of a trained legal professional, not a builder, even one with the court experience Mr Cox had had.
51. For the reasons I have given above, I found Mr Witt a less than persuasive witness whereas Mr Cox appeared to me to be honest and reasonably reliable, notwithstanding the passage of time since these events occurred. I am satisfied that Mr Witt offered legal advice and services to Mr Cox in relation to the Marsden case.
The Concord option agreement

52. The agreement ultimately reached between Mr Cox’s company and Formula is a complex legal document. It could only have been drafted by someone with legal training and expertise. It is possible that it was drafted by Formula’s lawyers but that does not explain why Hoosens wrote to Mr Witt criticising his draft as “unacceptable”. Whether or not Mr Witt saw the Hoosens letter of May 1996, it only makes sense if Mr Witt was acting on behalf of Mr Cox, representing himself (or allowing himself to be represented by Mr Cox) as Mr Cox’s solicitor.

53. In cross-examination on this topic Mr Witt appeared once again to be evasive and to have no reasonable explanation for Hoosens referring to him as Mr Cox’s solicitor if he had not so represented himself or been represented by Mr Cox. Mr Cox had no other legal representation at this time. He clearly relied on Mr Witt to act as his legal representative in forging the deal he needed to obtain time to get his development application passed. It defies commonsense to accept Mr Witt’s evidence over that of Mr Cox in the circumstances. In addition I take into account the general impressions I formed of the relative credibilities of Messrs Cox and Witt to conclude that Mr Witt’s evidence is unreliable and unworthy of belief. I am bolstered in my view by the fact that Mr Cox said that he only learned that Mr Witt was not entitled to practise as a lawyer when told this by his new barrister, Mr Bill Veitch.

54. I am, accordingly, satisfied that Mr Witt provided legal advice and services in relation to the option agreement. I am also satisfied that Mr Witt obtained fees for his legal services.

The $3000 cheque

55. For reasons I have given above, I do not accept that there was any arrangement or agreement between these parties in relation to a success fee for Mr Witt in relation to the development. Even if there was such an agreement, it was contingent upon development approval being obtained. On Mr Witt’s own version of events, he was to bear his own disbursements. It was not clear why, even on his case, there would be any obligation on Mr Cox’s part to pay $3000 up front as an advance.

56. In any event, I do not accept the evidence of Mr Witt on the point. Once again, when cross-examined on this topic, he prevaricated and, in my opinion, appeared to fabricate or reconstruct evidence in a most unsatisfactory way. I am satisfied by Mr Cox’s account that he was asked for the money in respect of legal services provided by Mr Witt and that he paid the $3000 on that basis.

Conclusions

57. A number of other matters were raised in evidence concerning legal advice said to have been given by Mr Witt to Mr Cox. Suffice it to say that Mr Witt denied the various contentions. It is unnecessary to go through them all item by item here. It will be evident from my findings above that where there is a conflict in the evidence of Messrs Cox and Witt I prefer that of Mr Cox.

58. I am satisfied that the plaintiff has comfortably made out his case on the balance of probabilities, even to the Briginshaw v Briginshaw standard. Mr Cox is, consequently, entitled, pursuant to s.48B(4) of the Legal Profession Act, to recover the $13,000 he paid Mr Witt in legal fees, plus interest.

59. In my opinion, there is a significant amount of evidence suggesting that Mr Witt may have committed an offence against s.48C of the Legal Profession Act 1987 by falsely representing himself to be a legal practitioner. It is likely, however, that any prosecution would be statute-barred by the passage of time. Nevertheless, I propose to have a copy of this judgment sent to the Legal Services Commissioner for his consideration.

Verdict and judgment

60. There will be a verdict for the plaintiff in the sum of $13,000 and judgment accordingly. Interest is to be calculated by the Registrar on the sum of $5000 from 30 March 1995, on a further sum of $5000 from 8 September 1995 and on a further sum of $3000 from 15 August 1996. I reserve the question of costs.