Dean v Legal Practice Board
[2015] WASC 260
•7 AUGUST 2015
DEAN -v- LEGAL PRACTICE BOARD [2015] WASC 260
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 260 | |
| Case No: | SJA:1026/2014 | 30 APRIL 2015 | |
| Coram: | MARTINO J | 7/08/15 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAMES DEAN MARK SIMONSEN LEGAL PRACTICE BOARD |
Catchwords: | Criminal law Unqualified person engaging in legal practice Aiding an unqualified person to engage in legal practice |
Legislation: | Legal Profession Act 2008 (WA), s 12 |
Case References: | Attorney General v Quill Wills (1990) 3 WAR 500 Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 Florida Bar v Town (1965) 174 So (2d) 395 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Legal Practice Board v Adams [2001] WASC 78 Legal Practice Board v Said [2002] WASC 35 Legal Practice Board v Taylor [2005] WASC 242 Lewkowski v Lilley [2000] WASCA 14 Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 Michael v The State of Western Australia [2007] WASCA 100 MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9 Mulhall v Baker [2010] WASC 359 Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 Re JRL; Ex parte CJL (1986) 161 CLR 342 Snow v Cooper (1994) 57 WALR 92 West v Suzuka (1964) WALR 112 Wilson v Dobra (1955) 57 WALR 95 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- First Appellant
MARK SIMONSEN
Second Appellant
AND
LEGAL PRACTICE BOARD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE P ROTH
File No : MI 174 of 2013, MI 175 of 2013, MI 176 of 2013
Catchwords:
Criminal law - Unqualified person engaging in legal practice - Aiding an unqualified person to engage in legal practice
Legislation:
Legal Profession Act 2008 (WA), s 12
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
First Appellant : In person
Second Appellant : In person
Respondent : Mr R J Nash
Solicitors:
First Appellant : In person
Second Appellant : In person
Respondent : Legal Practice Board
Cases referred to in judgment:
Attorney General v Quill Wills (1990) 3 WAR 500
Barristers' Board v Palm Management Pty Ltd [1984] WAR 101
Florida Bar v Town (1965) 174 So (2d) 395
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Legal Practice Board v Adams [2001] WASC 78
Legal Practice Board v Said [2002] WASC 35
Legal Practice Board v Taylor [2005] WASC 242
Lewkowski v Lilley [2000] WASCA 14
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
Michael v The State of Western Australia [2007] WASCA 100
MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9
Mulhall v Baker [2010] WASC 359
Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196
Re JRL; Ex parte CJL (1986) 161 CLR 342
Snow v Cooper (1994) 57 WALR 92
West v Suzuka (1964) WALR 112
Wilson v Dobra (1955) 57 WALR 95
1 MARTINO J: By a prosecution notice lodged in the Magistrates Court at Midland on 10 December 2012, the Legal Practice Board of Western Australia (the Board) charged the first appellant, Mr Dean, with two offences against s 12(2) of the Legal Profession Act 2008 (WA), and the second appellant, Mr Simonsen, with one offence against that section. All charges were alleged to have been committed between 11 December 2011 and 31 March 2012.
2 Mr Dean was charged with engaging in legal practice when he was not an Australian legal practitioner and with aiding, counselling or procuring Mr Simonsen to engage in legal practice when Mr Simonsen was not an Australian legal practitioner. Mr Simonsen was charged with engaging in legal practice when he was not an Australian legal practitioner.
3 The Board was the prosecutor on that prosecution notice. The person issuing the notice was Anne Seghezzi.
4 Mr Dean and Mr Simonsen pleaded not guilty to those charges.
5 A trial took place on 26 July 2013 and 24 January 2014. On 20 March 2014 Magistrate Roth found Mr Dean guilty of both charges he faced and Mr Simonsen guilty of the charge he faced. The learned Magistrate fined Mr Dean $5,000 on the first charge against him and $1,000 on the second charge. He fined Mr Simonsen $5,000 on the charge that he faced. He also awarded costs to the Board. Mr Dean was ordered to pay costs of $9,478.44 and Mr Simonsen was ordered to pay $6,947.87.
6 By an appeal notice dated 2 April 2014 Mr Dean and Mr Simonsen appeal against the convictions and the order made on the conviction. Although the appeal details do not specifically refer to the appeal being against sentence, it is clear from the grounds of appeal that Mr Dean and Mr Simonsen intend that their appeal also be against the sentence imposed, and I treat the appeal as being an appeal against sentence as well as conviction.
7 On 20 February 2015, Corboy J presided over a directions hearing on this appeal. At that directions hearing, his Honour noted that paras 14 and 15 of the appellants' outline of submissions, filed on 5 February 2015, raised a ground of appeal which was not included in the notice of appeal. His Honour said that, on the hearing of the appeal, the Court would treat those paragraphs as raising a ground of appeal.
8 His Honour also informed Mr Dean and Mr Simonsen that, in their submissions to him on that day, they had told him things on which his Honour had no direct evidence. His Honour said that he was going to ask Mr Dean or Mr Simonsen to make an affidavit setting out those things that they said had occurred in their dealing with the Magistrates Court which they say give rise to an apprehension of bias. His Honour also said that he would also give Mr Dean and Mr Simonsen an opportunity to file further submissions on that issue and any other issue.
9 Prior to the directions hearing on 20 February 2015, Mr Dean and Mr Simonsen had filed with the court a copy of a transcript of a hearing on Wednesday 21 December 2011 before Magistrate Young at which Mr McCarthy had made an application for a restraining order against his then wife. A copy of that transcript had not been provided to the Board. His Honour said that the Supreme Court would provide a copy to the Board's lawyers. He also said that whether or not Mr Dean and Mr Simonsen would be granted leave to present further evidence would be bound up with the merit of the ground of appeal, and whether or not Mr Dean and Mr Simonsen could persuade his Honour that the Magistrate made an error of law.
10 His Honour made the following directions:
1. The appellants file and serve any affidavits on which they rely together with any further submissions on which they rely on or before Friday, 13 March 2015.
2. The respondent file and serve any affidavit in reply and any further submissions on which it relies on or before Friday, 10 April 2015.
3. The appellants file and serve any submissions in reply on or before Friday, 8 May 2015.
4. The question of leave to appeal be deferred to the hearing of the appeal.
5. The question of whether leave to admit further evidence in the appeal should be allowed be deferred to the hearing of the appeal.
6. The appeal, the application for leave to appeal and the application for leave to admit further evidence be listed for hearing at 10:00 am on Friday, 29 May 2015.
11 After that directions hearing, the date of hearing of the appeal was changed to 30 April 2015.
12 The grounds of appeal contained in the Notice of Appeal are:
1. The Magistrate erred in fact & law in that the penalty and costs imposed were manifestly excessive.
2. The Magistrate erred in fact and law in misdirecting that the payment was not an element of the offence for the prosecution to prove and that the burden of proof fell to the defendants to disprove.
3. The Magistrate erred in fact and law in misdirecting in that the authenticity of the emails fell to the defendants to disprove and not the prosecution to prove.
4. The Magistrate erred in fact and law in the interpretation of legal practice when the Legal Profession Act contained no such interpretation of "legal practice".
5. The Magistrate erred in law in that the defendants were denied procedural fairness in respect to the hearing rule, the bias rule and the evidence rule.
6. The Magistrate erred in fact and law in that he relied on assumptions that the defendant's had offended the Legal Profession Act, when there was no evidence to prove beyond reasonable doubt that the defendants had offended the act.
7. The Magistrate erred in fact and law in denying procedural fairness to the defendants with the cross examination of the sole prosecution witness in respect to the credibility of the witness evidence, which was not corroborated by any other witness.
8. The Magistrate erred in fact and law by accepting into evidence uncertified documents that had not been tested under the evidence rules.
9. The Magistrate erred in fact and law by accepting into evidence an affidavit that had not been tested in evidence and denying the defendants the opportunity to cross examine the witness regarding his affidavit.
10. The Magistrate erred in fact and law by applying a charge of procurement under the Criminal Code when the first named defendant had not been charged under the Criminal Code. All charges were prosecuted under the Legal Practice Act where a charge of procurement did not form part of the Legal Practice Act.
13 Paragraphs 14 and 15 of the appellants' outline of submissions, filed on 5 February 2015, are in the following terms:
14. The Magistrate erred as to the validity of the Legal Practice Board being authorised as a public authority or public official to conduct a criminal prosecution pursuant to s 20 of the Criminal Procedure Act 2004, nor is there anything contained within the Legal Profession Act 2008, that specifically refers to commencing criminal prosecutions or being representative of the Crown pursuant to s 535 of the Act. Further, previous matters of a similar nature undertaken by the Board have been commenced within the civil jurisdiction as noted within the numerous judgments published on the Supreme Court website. As these matters have been dealt with previously in the civil jurisdiction and not in the criminal jurisdiction the question arises as to why this case was prosecuted in the criminal jurisdiction by the Board and not in the civil jurisdiction as undertaken previously.
15. The Legal Practice Board is acting in excess of their powers by the misuse of the Legal Profession Act which has no provisions for a criminal prosecution. The Board is further in excess of their powers by prosecuting criminally under their own volition when not referred to as an authorised body under s 20 of the Criminal Procedure Act. The Board is in excess of their powers by discriminating against the appellants when under the Legal Profession Act for the same alleged offence other matters have been prosecuted in the civil jurisdiction of the Supreme Court. This has resulted in both appellants being discriminated against as outlined in s 117 of the Australian Constitution and under these circumstances s 15A of the Acts Interpretation Act 1901 (Cth) supersedes s 7 of the Interpretation Act 1984 (WA) in accordance with and pursuant to s 109 of the Australian Constitution.
Trial
14 Each of the appellants represented himself at the trial. The respondent was represented by counsel. Before counsel for the respondent delivered an opening address, the learned Magistrate explained to the appellants how the hearing would proceed and explained the relevant laws of evidence and criminal procedure.
15 Mr Dean then submitted to his Honour that Ms Seghezzi was not authorised to conduct the prosecution. Counsel for the Board tendered a certificate under s 593(6) of the Legal Profession Act dated 19 July 2013, signed by John Symington, chairperson of the Board, certifying that Ms Anne Seghezzi was the Secretary of the Board on 15 November 2012 and 10 November 2012, and was authorised to sign the prosecution notices against Mr James Dean and Mr Mark Simonsen on behalf of the Board.
16 Mr Simonsen then addressed his Honour. Mr Simonsen referred to s 20(5) of the Criminal Procedure Act 2004 (WA). He submitted that the Board could not bring the prosecution. His Honour heard submissions from both Mr Simonsen and Mr Dean.
17 After hearing submissions, his Honour ruled that he was satisfied that Ms Seghezzi was a person able to sign the prosecution notice and that the Board was authorised under s 20 of the Criminal Procedure Act to bring the prosecutions.
18 After a short adjournment, counsel for the Board delivered an opening address. He informed his Honour that particulars of the charges had been provided to Mr Dean and Mr Simonsen and that the particulars of the first charge against Mr Dean were that he engaged in legal practice for a Mr Bill McCarthy by advising him in connection to Family Court of Western Australia proceedings that he was involved in, advising him to initiate an application for the annulment of his marriage, advising him to lodge a caveat in respect of the former matrimonial home and drafting correspondence to be sent to Mr McCarthy's wife in connection with the Family Court proceedings.
19 Counsel for the Board informed his Honour that the substance of the second charge against Mr Dean was that Mr Dean aided, counselled or procured Mr Simonsen to undertake legal work for Mr McCarthy, namely drafting for Mr McCarthy a draft deed of settlement in connection with the Family Court proceedings.
20 Counsel for the Board informed his Honour that the charge against Mr Simonsen was that he engaged in legal practice by undertaking legal work for Mr McCarthy, namely drafting for Mr McCarthy a deed of settlement in connection with the Family Court proceedings.
21 In the course of his opening address as to the facts, counsel for the Board referred to an occasion when Mr McCarthy was involved in a violence restraining order proceeding at which Mr Dean unsuccessfully sought to represent Mr McCarthy as a McKenzie friend in that proceeding. The learned Magistrate said that he may have been the Magistrate who dealt with the violence restraining order. He asked his Judicial Support Officer to check the court's records. These confirmed that Magistrate Roth had been the Magistrate who refused to allow Mr Dean to appear as a McKenzie friend. The learned Magistrate said he did not see any reason to disqualify himself from sitting on the prosecution. He asked whether the parties objected to his continuing to hearing the prosecution. Counsel for the Board, Mr Dean and Mr Simonsen each said that they had no objection to the learned Magistrate continuing to hear the prosecution.
22 Later in the opening address by counsel for the Board, the learned Magistrate asked Mr Dean if he admitted that he was not a legal practitioner. Mr Dean said that he did. The learned Magistrate then asked Mr Simonsen the same question. Mr Simonsen said that he admitted that he was not a legal practitioner.
23 Mr Dean and Mr Simonsen each declined to make an opening address.
24 The prosecution called William John McCarthy as a witness. Mr McCarthy gave evidence that in 2011 he became involved in Family Court proceedings with his then wife. Mr McCarthy initially intended to represent himself in those proceedings. His wife was represented by a legal practitioner. At an early stage of the proceedings in the Family Court, Mr McCarthy received from his wife's lawyer an estimate of legal costs if the matter went to trial. He was quite shocked.
25 Mr McCarthy spoke to a friend. As a result of speaking to that friend, Mr McCarthy contacted Mr James Dean. Mr McCarthy had met Mr Dean previously. After contacting Mr Dean, Mr McCarthy met with Mr Dean at Mr Dean's home in Lesmurdie. Mr McCarthy also met Mr Simonsen at that meeting. He had not met Mr Simonsen previously.
26 Mr McCarthy took the Family Court documents to the meeting. Mr Dean told him that he and Mr Simonsen could help him. He said that their two areas of expertise were different. Mr Dean would produce or come up with the processes to go forward. Mr Simonsen would prepare the documents.
27 Mr McCarthy asked Mr Simonsen what this would cost him. Mr Simonsen said that the financial transactions were dealt with by Mr Dean. Mr Dean said that the total cost would be $5,000. This would include the cost of any appeal to the Supreme Court. Mr McCarthy said that he would pay that sum immediately. Mr Dean asked his wife to get a BSB and account number to enable Mr McCarthy to transfer the money electronically. The day after that meeting, Mr McCarthy transferred $5,000 into that account.
28 Mr McCarthy gave to Mr Simonsen as much information as he could about his marriage and his property at the meeting. Following the meeting, he sent an email to Mr Dean for Mr Simonsen providing further information.
29 Mr Dean advised Mr McCarthy that the best way forward was to make life for Mr McCarthy's wife as unpleasant as possible, including applying for a VRO, so that a favourable settlement could be negotiated.
30 Mr McCarthy gave evidence that, some days later, he embellished things when he said that he feared for his life. It was true that his wife had threatened him, but he had not feared for his life.
31 Soon after the meeting, Mr McCarthy's wife telephoned him and enquired whether he wished to settle their property matter. Mr McCarthy sent an email to Mr Dean informing him of his wife's enquiry. Mr Dean suggested that a meeting be arranged and said that Mr Simonsen was in the process of drafting a settlement agreement. On 13 December 2011, Mr Dean sent an email to Mr McCarthy in which he forwarded an email that Mr Dean had received from Mr Simonsen with an attached draft settlement agreement prepared by Mr Simonsen.
32 Mr McCarthy received numerous emails from his wife. When he received an email from her, Mr McCarthy forwarded it to Mr Dean who told Mr McCarthy how to reply. Mr McCarthy then replied to his wife's email and sent a copy to his wife's lawyer.
33 On 14 December 2011, Mr Dean forwarded by email to Mr McCarthy an email from Mr Simonsen with an attached document called an amended deed of settlement. Mr McCarthy presented this agreement to his wife when they met.
34 Mr McCarthy met with his wife on a Friday afternoon. He took Mr Dean to the meeting. Mr Dean gave his wife the deed of settlement which Mr Dean had forwarded to Mr McCarthy on 14 December. Mr McCarthy's wife said that she would look at it and get back to them.
35 Following that meeting, Mr Dean told Mr McCarthy that the way forward was to make life unbearable for Mr McCarthy's wife.
36 Mr Dean told Mr McCarthy that he should apply for a divorce on the basis of annulment. Mr Dean prepared an application and the supporting affidavit. It was Mr Dean's idea to file the application. He told Mr McCarthy that if the court granted a divorce on that basis, then his wife's permanent residence visa would be revoked. Mr Dean provided a typed document and Mr McCarthy completed the blank fields with his handwriting.
37 Mr McCarthy then applied for a VRO against his wife in the Magistrates Court. At the first hearing of that application, Mr Dean attended court with Mr McCarthy. Mr Dean was going to represent Mr McCarthy as his McKenzie friend. The presiding Magistrate did not permit Mr Dean to act as his next friend and he did not grant the VRO to Mr McCarthy.
38 Mr McCarthy's wife also applied for a VRO, against Mr McCarthy and against Mr Dean. This followed an altercation with the daughter of Mr McCarthy's wife that occurred when Mr McCarthy, Mr McCarthy's son and Mr Dean went to the house of Mr McCarthy and his wife in Darlington and removed some of Mr McCarthy's property.
39 After Mr Dean attended court on the hearing of the application by the wife of Mr McCarthy for a VRO against him, Mr Dean suggested to Mr McCarthy that he put a caveat on the property in Darlington so that it could not be sold without his authority.
40 Following the hearing of Mr McCarthy's application for a VRO at which the presiding Magistrate did not permit Mr Dean to act as his next friend, Mr Dean informed Mr McCarthy that he no longer wished to be involved with him. Mr McCarthy asked Mr Dean to refund to him the $5,000 that he had paid.
41 Following his evidence in chief, Mr McCarthy was cross-examined by Mr Dean. The cross-examination of Mr McCarthy was not completed on 26 July 2013 and the hearing was adjourned to 24 January 2014.
42 On 17 October 2013, Mr Dean appeared before the learned Magistrate. Mr Dean applied for an adjournment of the hearing listed on 24 January 2014. The Board was represented at that hearing, but Mr Simonsen did not appear as Mr Dean had not served the application on him. His Honour informed Mr Dean that, as the two were being tried together, Mr Simonsen had an interest in the application. He asked Mr Dean why he needed an adjournment. Mr Dean said that his police record was being disseminated, that he had reported this to the Chief Justice and to the Police Minister and that he believed that the dissemination of his police record was prejudicing his case. The learned Magistrate informed Mr Dean that he was the tribunal of fact, that he had not seen Mr Dean's police record and that, even if he had, it would make no difference to his Honour's determination of the case.
43 Mr Dean then said that he had made an application for Mr McCarthy's VRO, which had been denied, and that he had yet to receive a letter from the court registry saying why the learned Magistrate had made that decision, so he could not appeal the decision, which is what he wanted to do. The learned Magistrate informed Mr Dean that he had not made any decision as to whether or not the VRO would be provided to Mr Dean, that it was an administrative decision against which there was no appeal, that Mr Dean was not an interested party in the VRO and the legislation prevented him from receiving a copy of it. Mr Dean informed his Honour that the contents of the VRO were important to the trial. The learned Magistrate enquired what its relevance was. Mr Dean said that Mr McCarthy's reply to a question he asked in cross-examination was 'in contradiction as to what took place in that violence restraining order'.1 The learned Magistrate said that the issue was a collateral matter going to credibility only and that Mr McCarthy's answer to Mr Dean's question was the end of the matter.
44 Mr Dean said to his Honour that there may be certain things in that violence restraining order application which may prejudice his case and that his Honour may have formed an opinion against Mr Dean which would affect his Honour's decision. Mr Dean said that, if he did not get the VRO, then he would try to appeal.
45 After hearing from counsel for the Board, the learned Magistrate asked Mr Dean if he wished to say anything in response. Mr Dean said that he found the Court biased and he asked his Honour to excuse himself from the case because Mr Dean found that his Honour's attitude towards him was biased.
46 His Honour then gave reasons for the refusal of Mr Dean's applications. His Honour referred to an affidavit that Mr Dean had filed and to submissions that he had made. He said that Mr Dean did not say that there were inconsistencies between Mr McCarthy's evidence on the hearing of the application for the violence restraining order and the trial but that Mr Dean believed that there were inconsistencies. The learned Magistrate said that Mr Dean was not a party to the violence restraining order proceedings and that what happened on the hearing of that application was collateral to the issues in the prosecution. The learned Magistrate said that he was not going to order that Mr Dean be provided with a copy of the transcript and he was not going to adjourn the trial. As I informed Mr Dean at the hearing of the appeal, part of his Honours reasons is not available to me, because page 12 of the transcript on that day is not on the court file. Mr Dean also did not have that page. None of the other parties informed me that they had the page.
47 On 24 January 2014, Mr Dean continued with his cross-examination of Mr McCarthy.
48 After Mr Dean completed his cross-examination, Mr McCarthy was cross-examined by Mr Simonsen. On completion of that cross-examination, Mr McCarthy was re-examined by counsel for the Board.
49 Counsel for the Board then tendered into evidence a banker's affidavit with a copy of a banking statement of an account held by James Dean and Frances Dean.
50 The prosecution then closed its case. The learned Magistrate explained to each of Mr Dean and Mr Simonsen that they were entitled to give evidence if they wished to do so and that they were not obliged to give evidence. Each of them declined to give evidence.
51 Counsel for the Board then commenced his closing address. At the commencement of that closing address, counsel referred to the defence provided by s 12(4) of the Legal Profession Act. The learned Magistrate then requested counsel to pause his closing address and he explained to Mr Dean and Mr Simonsen that if they wished to rely upon the defence that they were not paid for legal services that they provided, then they would have to prove that they were not paid. While the learned Magistrate was explaining the operation of that provision Mr Dean said that he felt a certain amount of pressure from the learned Magistrate to give evidence and that he objected to this. He said that he had asked the learned Magistrate to recuse (the transcript contains the word recruit, but that appears to be a transcription error)2 himself from the proceedings, but the learned Magistrate had refused. Mr Dean said that he believed that the Magistrate did not have Mr Dean's best interests at heart and that would be another reason why he was not going to give evidence. The learned Magistrate said that he did not have anyone's best interests at heart, his job was to determine the facts and whether Mr Dean gave evidence or not remained entirely Mrs Dean's choice. Each of Mr Dean and Mr Simonsen maintained their election not to give evidence.
52 Counsel for the prosecution then completed his closing address. Mr Dean, and then Mr Simonsen, delivered their closing submissions. The learned Magistrate reserved his decision until 20 March 2014.
The learned Magistrate's reasons
53 His Honour commenced his reasons on the prosecution with an analysis of the legislation. He referred to the provisions of s 12 of the Legal Profession Act. He noted that s 12(2) prohibits a person from engaging in legal practice unless the person is an Australian legal practitioner and that the term 'legal practice' is not defined in the Act.
54 The learned Magistrate then referred to the argument of the accused men that, while s 12(2) prohibits conduct, it does not create a criminal offence because the Legal Profession Act does not provide that the prohibited conduct constitutes an offence. The accused argued that, since s 12(2) did not create an offence, s 592 of the Legal Profession Act which allows proceedings for an offence against the Act to be taken in the name of the Board only authorised the taking of proceedings for what they called a civil offence and did not authorise the taking of criminal proceedings.
55 His Honour referred to s 67 of the Interpretation Act 1984 (WA), the definition of an offence in s 2 of the Criminal Code, the Shorter Oxford Dictionary definition of punishment and the definition of penalty in the Interpretation Act. His Honour held that, as s 12(2) of the Legal Profession Act provides for the imposition of a fine, a fine is defined as a penalty, a penalty is a punishment, it follows that s 12(2) creates an offence and that, pursuant to s 592 of the Legal Profession Act, the Board was entitled to authorise Ms Seghezzi to commence proceedings in the name of the Board.
56 His Honour then referred to s 20 of the Criminal Procedure Act and to the evidence that she had been authorised to commence proceedings in the Board's name. He concluded that the charges against each accused had been properly brought in accordance with the relevant statutory provisions.
57 The learned Magistrate then referred to Mr Dean's submission that he could not properly be charged with aiding or procuring Mr Simonsen to commit an offence under the Legal Profession Act when that Act contains no provision relating to aiding, abetting or procuring. His Honour referred to s 7 of the Criminal Code and the cases of Snow v Cooper,3Wilson v Dobra4and West v Suzuka5. His Honour referred to and followed Wolff J's decision in Snow v Cooper, that s 7 of the Code applies to an offence created by statute which is punishable summarily.
58 His Honour then referred to Mr Dean's application for the learned Magistrate to disqualify himself from hearing the case. His Honour said that there were two applications. His Honour referred to the part of the prosecuting counsel's opening address, in which reference was made to a violence restraining order in which Mr McCarthy was a party.
59 Having ascertained that he was the Magistrate who presided over that hearing, the learned Magistrate informed the parties that he believed that he had no reason to disqualify himself. He invited each of the parties to address him if they had any concerns about his Honour hearing the prosecution. Both accused said that they had no problem with his Honour continuing to sit.
60 His Honour referred to the hearing on 17 October 2013, in which Mr Dean made an application to vacate the hearing listed on 24 January 2014. He made a further application for an order that the transcript of the violence restraining order proceedings be provided to him. The learned Magistrate refused both applications. Mr Dean then applied for the learned Magistrate to disqualify himself, apparently on the ground that he did not like Mr Dean. The learned Magistrate declined to do so.
61 His Honour also referred to the occasion at the conclusion of the prosecution case, following a discussion with Mr Dean as to the defence available under s 12(4) of the Legal Profession Act, Mr Dean made a further application for his Honour to disqualify himself. The learned Magistrate declined to do so. The learned Magistrate said that he did not know Mr Dean, had formulated no personal opinion of him one way or the other and there was no reason for his Honour to disqualify himself.
62 His Honour then identified the burden of proof, the standard of proof and the elements of the offence. He then examined the meaning of the term 'legal practice', referring to the submissions of the accused men that they were not engaged in a commercial or business concern engaged in legal work.
63 His Honour referred to the different ways in which the term 'legal practice' can be used, giving as examples 'He has his own legal practice' and 'Legal practice took up much of his time'. His Honour referred to the context in which the term appears in the Legal Profession Act and concluded that the term 'equates to the practise of law, legal work if you like, not to the commercial of business aspect of legal practice'.6
64 The learned Magistrate then referred to and summarised Mr McCarthy's evidence.
65 His Honour noted that neither accused gave evidence. He said that it was their right not to give evidence and that, in assessing whether the prosecution had established its case beyond reasonable doubt, the fact that the accused had not given evidence was not a matter that could be taken into account in reaching his verdict. However, the fact that there was no evidence from the accused meant that neither accused could rely upon s 12(4) as a defence to the charge.
66 The learned Magistrate then referred to the defence submissions that Mr McCarthy's evidence should not be accepted and that the emails and supporting documentary evidence should not be given any weight or relied upon as they may have been altered or forged.
67 His Honour referred again to the evidence of Mr McCarthy and the cross-examination of him and said that he found nothing in Mr McCarthy's evidence, cross-examination or demeanour which would lead him to doubt that he was doing anything other than giving an honest, truthful and accurate recounting of the events. In the learned Magistrate's view, Mr McCarthy was a reliable witness and his Honour accepted that he was a truthful and reliable witness. His Honour accepted Mr McCarthy's evidence beyond a reasonable doubt.
68 His Honour concluded:7
I am satisfied, and I am satisfied beyond a reasonable doubt that each of the accused engaged in legal practice either by preparing documentation in relation to Family Court proceedings or by giving legal advice about the appropriate course Mr McCarthy should follow in pursuit of a settlement. Further, I am also satisfied that Mr Dean procured Mr Simonsen to engage in legal work and subsequently aided him doing so by acting as a conduit between Mr Simonsen and Mr McCarthy.
As I have already indicated, in my view the positive defence created under subsection (4) of section 12 does not arise in this matter. Accordingly, I am satisfied, and I am satisfied beyond a reasonable doubt of each and every element of each and every offence against each of the accused and I find each of the accused guilty as charged.
The requirement for leave to appeal
69 The appellants require leave to appeal for each of their grounds of appeal. This Court must not give leave to appeal on a ground unless it is satisfied that the ground has a reasonable prospect of succeeding. Unless the Court grant leave to appeal on at least one ground of appeal, the appeal is to be taken to have been dismissed.8
The grounds of appeal
70 The grounds of appeal are in an unusual order, the first ground being addressed to penalty and costs. It is appropriate to deal with the grounds in a different order.
71 Paragraphs 14 and 15 of the appellants' outline of submissions challenge the commencement of the prosecutions on two bases:
1 the ability of the Legal Practice Board to prosecute Mr Dean and Mr Simonsen; and
2 that the commencement of the prosecutions was discriminatory.
72 Section 20 of the Criminal Procedure Act provides who can commence a prosecution. A prosecution can only be commenced by a person specified in s 20(3). One of the persons specified is 'an authorised person in relation to the offence'. The term 'authorised person' is defined in s 20(1) as a person authorised to commence a prosecution under another written law for the offence or, in any other case, a person who is a public authority or an employee of a public authority or is authorised in writing by a public authority to commence a prosecution for the offence. The term 'public authority' is defined in s 3 of the Criminal Procedure Act. The definition includes:
a body, whether incorporated or not, or the holder of an office, being a body or office that is established for a public purpose under a written law and that, under the authority of a written law, performs a statutory function on behalf of the State
73 The Legal Practice Board is established by s 534 of the Legal Profession Act, which is in the following terms:
534. Board established
(1) A body called the Legal Practice Board is established.
(2) The Board is a body corporate with perpetual succession.
(3) Proceedings may be taken by or against the Board in its corporate name.
592. Legal proceedings
(1) Any proceedings for an offence against this Act may be taken in the name of the Board by a person authorised in that behalf by the Board.
(2) All proceedings for offences against this Act are to be heard by a court of summary jurisdiction constituted by a magistrate.
76 It is therefore not necessary for the Board to be a public authority in the definition of authorised person. In any event, it is, in my view, a public authority within the definition in s 3 of the Criminal Procedure Act. It was established under the Legal Profession Act. Its functions are conferred under that Act or any other Act. The purposes of pt 3 of that Act are to protect the public interest in the proper administration of justice by ensuring that legal work is done by qualified persons and so to protect consumers.
77 The Board is a body established under a written law for the public purposes of protection of public interest in the administration of justice and the protection of consumers and, under the authority of the Legal Profession Act, it performs the statutory functions provided for in the Act on behalf of the State.
78 The second basis of the challenge to the commencement of the prosecutions contends that the prosecutions are discriminatory because other matters have been prosecuted in the civil jurisdiction of the Supreme Court. The fact that civil proceedings for breaching the Legal Profession Act may have been commenced does not mean that the Board is prevented from exercising the express statutory power contained in the Act to commence proceedings for an offence against the Act. Courts do not have power to exercise control over the commencement of criminal proceedings save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial.9
79 At the hearing of the appeal, counsel for the Board informed me that the prosecution of Mr Dean and Mr Simonsen is not the only criminal prosecution under the Legal Profession Act in the Magistrates Court for unqualified legal practice. Even if it were to be true that this was the only prosecution the exercise of the statutory power by the Board to prosecute alleged unqualified legal practice would not constitute unlawful discrimination or an abuse of process. Nor would it mean that Mr Dean and Mr Simonsen did not receive a fair trial.
80 Paragraph 15 of the appellants' outline of submission refers to ss 109 and 117 of the Australian Constitution, s 15A of the Acts Interpretation Act 1901 (Cth) and s 7 of the Interpretation Act 1984 (WA).
81 Section 109 of the Constitution provides that where a State law is inconsistent with a Commonwealth law the State law is, to that extent, invalid. Section 7 of the Interpretation Act 1984 (WA) provides that every written law of the State is to be construed subject to the limits of the legislative power of the State.
82 Section 117 of the Constitution prohibits discrimination against a resident of a State on the basis of that person's residency in that State. If the Legal Profession Act or the conduct of the Board constituted discrimination on the basis of the State in which the appellants resided, then it would not be lawful. However, there is nothing to suggest that there has been any discrimination on that basis.
83 The matters raised in paragraphs 14 and 15 of the appellant's outline of submissions do not have any reasonable prospect of success.
84 By ground of appeal 10 the appellants contend that the learned Magistrate erred by holding that s 7(d) of the Criminal Code applied to a prosecution under the Legal Profession Act.
85 Section 7(d) of the Criminal Code is in the following terms:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
…
(d) Any person who counsels or procures any other person to commit the offence.
86 The learned Magistrate was correct to apply West v Suzuka and hold that s 7 applied to the prosecution. As Murray J said in Lewkowski v Lilley10 the provisions of s 7 have long been held to apply to all offences punishable by the law. Ground 10 has no reasonable prospect of success.
87 By ground of appeal 4, the appellants challenge the correctness of his Honour's interpretation of the term 'legal practice'. Although it is correct to say, as his Honour did, that the term is not defined in the Legal Profession Act,'engage in legal practice' is defined in s 3 as including 'practice law'. It is clear therefore that the prohibition on engaging in legal practice in s 12(2) includes a prohibition on the practising of law by a person who is not an Australian legal practitioner. The position is made even clearer by the preceding section, s 11,which provides that the purposes of pt 3 of the Legal Profession Act are:
(a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so;
(b) to protect consumers by ensuring that persons carrying out legal work are entitled to do so.
88 Section 11 makes clear that the prohibition in s 12 on a person who is not an Australian legal practitioner engaging in legal practice is a prohibition on such a person doing legal work. In Barristers' Board v Palm Management Pty Ltd,11Brinsden J quoted with approval the following passage from Florida Bar v Town12, saying that the case well illustrated what may be included in the practice of the law:
It is generally understood that the performance of services in representing another before the courts is the practice of law. But the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court. We think that in determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and acknowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law.
- The court held that (at 397):-
... the preparation of charters, by-laws and other documents necessary to the establishment of a corporation, being the basis of important contractual and legal obligations, comes within the definition of the practice of law as defined in the Sperry case, supra. The reasonable protection of the rights and property of those involved requires that the persons preparing such documents and advising others as to what they should and should not contain possess legal skill and knowledge far in excess of that possessed by the best informed non-lawyer citizen.
90 The term should be interpreted in light of those decisions. The learned Magistrate was correct in his interpretation of the term 'legal practice'. Ground 4 has no reasonable prospect of success.
91 By ground 7, the appellants contend that they were denied procedural fairness in the cross-examination of Mr McCarthy. In paragraph 10 of their outline of submissions filed on 5 February 2015, the appellants use the same words as ground 7 and go on to say:
Further the Magistrate denied access to the transcript of proceedings regarding the sole prosecution witness VRO application whereas the witness testimony was false and misleading, differed to the evidence he gave in this matter and as to the situation with his estranged wife, which was denied by the witness in his testimony in this matter.
92 As I have noted earlier in these reasons at the hearing before Magistrate Roth on 17 October 2013, Mr Dean informed the learned Magistrate that he wished to have a copy of the VRO because Mr McCarthy's reply to a question he had asked in cross-examination was in contradiction to what took place in that VRO. The learned Magistrate held that the issue was a collateral matter going to credit only and that Mr McCarthy's answer to Mr Dean's question was the end of the matter.
93 As I have also noted at the directions hearing on 20 February 2015, Corboy J said that whether or not the appellants would be granted leave to present further evidence would be bound up with the merit of the grounds of appeal and whether or not the learned Magistrate made an error of law.
94 In paragraph 5 of their outline of submissions filed on 5 February 2015, the appellants' said:
5. In the transcript of proceedings concerning McCarthy v Gunnell (ROI1187/2011 dated the 21/12/11), the sole prosecution witness Mr McCarthy states at paragraph 3 of page 3 of the transcript that "I don't want to lie" and further goes on to say that "I drew up a deed of agreement" (a fact that he had denied he had done in the prosecution trial of this matter). He further asserts in the transcript that his former wife had threatened to do him harm in an attempt to have the Court evict her from her home with the granting of a restraining order. On the basis of the assertions made by Mr McCarthy in the transcript of proceedings, it would appear that Mr McCarthy is prepared to mislead the Court about such things as to the threat of physical harm to achieve his aims.
95 As I understand the appellants' ground of appeal and their submissions, they contend that the learned Magistrate erred in his decision that what occurred in Mr McCarthy's application for a restraining order was collateral and that they were denied the opportunity to cross-examine Mr McCarthy.
96 At the hearing on 21 December 2011, Mr McCarthy gave evidence that he was fearful of his wife by reason of a threat she has made. He also gave the following evidence in answer to questions from the learned Magistrate who was presiding on that day:
Okay. Well, what's your intention from this point on in terms of finalising your separation or divorce or resolving the property issue?---I've made an offer to her last - I don't want to lie. Last Thursday, I think it was. I had assistance - I drew up a deed of agreement for sale. I met her at her offices, handed to her. She took it away with her without signing it and said we will hear from her.
Okay?---So my intention is I really sorted out the financial aspect that I can purchase her share based on the understanding of the quantum that was involved and now I'm waiting for her and then it was after her receiving that and making those statements which were (indistinct) it's that - you know, just saying, "I will get back to you." This was - happened on that following Saturday.
Now, you've indicated that you've - you've got some legal advice, have you?---Not legal advice as such. I'm just using friends and acquaintances to help go through the processes and - - -
Okay. All right so - - -?- - - further bumbling along the best I possibly can.
All right. So was the deed drawn up by lawyers or just by yourself?---It was drawn up by - not by a lawyer, as such. It was drawn up by somebody that has a. legal connotation - sorry, that's probably the wrong word. Legal sort of connection; he knows the right wordings and all that kind of thing. But yes.
All right (indistinct)?---If it was to be done, it would be done correctly and signed and sealed and delivered I think is the right words.
All right. Well, has your wife got a lawyer involved in the matter?---Yes, she has.14
97 The collateral evidence rule has been explained as follows:
The collateral evidence rule declares that answers given by a witness to questions put to him or her in cross-examination concerning collateral matters are final. Those answers cannot be contradicted or rebutted by other evidence. Hence, the rule is often referred to as the "finality" rule. Collateral facts are "facts not constituting the matters directly in dispute between the parties" of "facts that are not facts in issue or facts relevant to a fact in issue". In most cases, a fact that affects the credibility of a witness is a collateral fact. Hence, an answer given by a witness to a matter that relates to credibility alone - in other words, a collateral matter - is final and cannot be rebutted.15 (footnotes omitted)
98 A prior inconsistent statement of a witness that was relative to the subject matter of the case is not collateral.16
99 The evidence that Mr McCarthy gave at the hearing of the application for restraining order that he was fearful of his wife was not relative to the subject matter of the prosecution of Mr Dean or Mr Simonsen. It was collateral and the learned Magistrate's decision was correct.
100 If Mr McCarthy had given evidence that he had prepared the deed of settlement for his wife to sign, that statement would not be collateral as it would relate to a matter in the prosecution, namely whether Mr Simonsen prepared that deed.
101 However, it is clear in looking at the whole of Mr McCarthy's evidence on 21 December 2011 that I have quoted that the evidence he gave on the two occasions was not inconsistent. The evidence he gave on 21 December 2011 was that the deed was drawn up by someone who was not a lawyer. There is no inconsistency.
102 The evidence of the hearing on 21 December 2011 was not admissible. There was no requirement for Mr McCarthy's evidence to be corroborated by another witness. Ground 7 has no reasonable prospect of success.
103 In Ground 5 the appellants contend that they 'were denied procedural fairness in respect to the hearing rule, the bias rule and the evidence rule'. The appellants have sworn affidavits dated 5 March 2015 with identical content in support of this ground. The affidavits are said to be in response to the order of Corboy J made on 20 February 2015. Their purpose is said to be: 'Apprehension of Bias (per court order 20/2/2015)'. The affidavits contain submissions rather than evidence. In them the appellants refer to 35 sections of transcript which they assert support this ground of appeal. They also assert that this ground of appeal is supported by:
7 Documents tendered as evidence by the prosecution in regards to the witness examination and accepted by the magistrate although the documents were objected to by the defendants as being untested and not qualified as authentic.
104 The test of whether a judicial officer should be disqualified by reason of the appearance of bias is whether a fair minded lay observer might reasonably apprehend that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the issues to be decided by that judicial officer.17 Judicial officers should not too readily accede to applications for disqualification, otherwise parties might effectively choose which judicial officer decides their case.18 It is sometimes necessary for a judicial officer conducting a trial in which a party is not legally represented to intervene in order to prevent irrelevant matters being raised and to prevent unnecessary delays or disruptions.19
105 It is my firm conclusion from the trial transcript that the learned Magistrate conducted the trial fairly and with balance. He did intervene from time to time. In each case it was necessary to do so. A fair minded lay observer would not reasonably apprehend that he might not bring an impartial and unprejudiced mind to the resolution of the case. The appellants' complaints of denial of procedural fairness and of bias are unfounded. This ground of appeal has no reasonable prospect of success.
106 Ground 6 contains an assertion that the learned Magistrate 'erred in fact and law in that he relied on assumptions' that the appellants had breached the Legal Profession Act 'when there was no evidence to prove beyond reasonable doubt' that they had breached the Act. The learned Magistrate made no such assumptions. He heard the evidence and delivered reasons explaining why he was satisfied on that evidence that the accused had breached the Act. There is no substance to this ground of appeal. It has no reasonable prospect of success.
107 Ground 2 is that the learned Magistrate erred in holding that payment was not an element of the offence for the prosecution to prove and that the burden of proof fell onto the appellants to disprove.
108 Section 12(2) of the Legal Profession Act 2008 (WA) provides:
(2) A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.
Penalty: a fine of $20 000.
109 Section 12(4) provides:
(4) It is a defence to a prosecution for an offence against subsection (2) in relation to the doing of legal work to show that the person who did the legal work has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work so done (the unpaid work).
110 Section 12(4) provides an exception to the general rule provided in s 12(2) that a person must not engage in legal practice in this State unless that person is an Australian legal practitioner. An exception requires proof by the accused.20
111 Further, s 78(3) or the Criminal Procedure Act provides that an exception to a simple offence is to be taken not to apply unless the accused proves on the balance of probabilities that the exception applies. The offence created by s 12(2) is a simple offence. The learned Magistrate was correct and this ground of appeal cannot succeed.
112 Ground 3 contains a challenge to the admission of emails into evidence. Mr McCarthy gave evidence that following his meeting with Mr Dean and Mr Simonsen he communicated with Mr Dean by email, including Mr Dean forwarding email from Mr Simonsen. Mr McCarthy produced and identified printouts of emails he sent to Mr Dean and printouts of emails that he received from Mr Dean. The evidence, including the printouts of the emails, was admissible. It was evidence from which the tribunal of fact could conclude that Mr Dean communicated to Mr Dean, including forwarding email from Mr Simonsen to Mr Dean. Mr McCarthy was cross-examined by Mr Dean as to the emails. Mr Dean put to Mr McCarthy that he had manufactured the emails.21 Mr McCarthy denied that he had manufactured the emails. The learned Magistrate accepted the evidence of Mr McCarthy.
113 If, after making proper allowances for the advantages that his Honour had from his Honour presiding over the trial and seeing the witness, I were to conclude that his Honour erred in accepting Mr McCarthy's evidence then it would be necessary to correct that error.22 It is my view that the learned Magistrate was correct to accept Mr McCarthy's evidence and to conclude from that evidence that the emails had been sent from Mr Dean to Mr McCarthy, including forwarding emails from Mr Simonsen to Mr Dean. This ground has no reasonable prospect of success.
114 By ground 8 the appellants contend that the learned Magistrate erred 'by accepting into evidence uncertified documents that had not been tested under the evidence rules'. It seems to be connected to ground 9 which appears to be a challenge to admission into evidence of a Bankers Book affidavit under s 92 of the Evidence Act 1906 (WA). The admission into evidence of affidavits as to bank accounts is expressly permitted by s 92 of the Evidence Act. In any event, the only relevance of the affidavit was as to whether Mr Dean received the payment of $5,000 of which Mr McCarthy gave evidence. The learned Magistrate was entitled to accept the evidence of Mr McCarthy. Further, as I have said earlier in these reasons when considering ground 2, it was for the appellants to prove that they did not receive payment. There was no evidence that they did not receive a payment. Neither ground 8 nor ground 9 has any reasonable prospect of success.
115 By ground 1 the appellants appeal against the fines imposed and the costs orders made. The learned Magistrate delivered detailed sentencing remarks at transcript pages 121 to 123, 20 March 2014. He referred to the fact that the legislation exists 'to protect the community and ensure that people who do carry out legal work or legal practice are suitably qualified to do so and are suitably supervised in their conduct'. He referred to the maximum penalty of $20,000. He noted each of the accused lacked any remorse and to the fact that the prosecution had gone to trial. He said that the conduct of each of the accused was deliberate and that there was a need for both general and specific deterrence. He said that in each case he had considered fines in the range of $7,000 to $8,000, but having regard to the reduced financial circumstances of the two men the fines needed to be reduced. He fined each of the accused $5,000 for each offence of engaging in legal practice. He fined Mr Dean $1,000 for the offence of aiding, counselling or procuring Mr Simonsen to engage in legal practice, noting that Mr Dean's second offence was 'very much intertwined with the first offence'. The analysis of the learned Magistrate was correct. He had regard to relevant factors. The sentences he imposed were not manifestly excessive. They were appropriate sentences for the offending behaviour by each of the accused.
116 Counsel for the Legal Practice Board provided the learned Magistrate with detailed claims for costs prepared in accordance with the Legal Practitioners (Official Prosecutions) (Accused's Costs) Determination 2012. The learned Magistrate gave the claims detailed consideration at transcript pages 130 to 131, 20 March 2014. He did not allow all the claims, but reduced some of them. In their outline of submissions dated 5 February 2015 the appellants point to the fact that the trial was originally estimated to last only half a day and that the hearing was delayed due to the Magistrate dealing with other matters. The learned Magistrate no doubt had other matters on his list that he had to deal with. He also had to ensure that the trial was fair to both parties. In my view the transcript shows that he was both fair and efficient in his conduct of the trial. The appellant's complaint about the costs allowance does not have merit. Ground 1 has no reasonable prospect of success.
117 None of the appellants' grounds of appeal have any reasonable prospect of succeeding. The matters raised in paragraphs 14 and 15 of their outline of submissions dated 5 February 2015 do not have any prospect of succeeding. I refuse leave to appeal for each of the grounds of appeal and for paragraphs 14 and 15 of the outline of submissions. The appeal by each of the appellants is dismissed.
1 ts 5 (17 October 2013).
2 ts 60 (24 January 2014).
3Snow v Cooper (1994) 57 WALR 92.
4Wilson v Dobra (1955) 57 WALR 95.
5West v Suzuka (1964) WALR 112.
6 ts 07 (20 March 2014).
7 ts 115 (20 March 2014).
8Criminal Appeals Act 2004 (WA) s 9.
9Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501.
10Lewkowski v Lilley [2000] WASCA 14 [14].
11Barristers' Board v Palm Management Pty Ltd [1984] WAR 101, 107.
12Florida Bar v Town (1965) 174 So (2d) 395, 396 - 397.
13Attorney General v Quill Wills (1990) 3 WAR 500; Legal Practice Board v Adams [2001] WASC 78; Legal Practice Board v Said [2002] WASC 35; Legal Practice Board v Taylor [2005] WASC 242.
14 ts 3.
15Nicholls v The Queen [2005] HCA 1; (2005) 219 CLR 196 [38] (McHugh J).
16MJH v The State of Western Australia [2006] WASCA 167; (2006) 33 WAR 9.
17Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11].
18Re JRL; Ex parte CJL (1986) 161 CLR 342, 352.
19Michael v The State of Western Australia [2007] WASCA 100 [65].
20Mulhall v Baker [2010] WASC 359.
21 ts 127, 131, 134 (26 July 2013).
22Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.
6
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