DEAN -v- LEGAL PRACTICE BOARD [2015] WASC 260

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 260
Case No:	SJA:1026/2014	Heard:	30 APRIL 2015
Coram:	MARTINO J	Delivered:	7/08/15
No of pages:	28	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	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

CITATION : DEAN -v- LEGAL PRACTICE BOARD [2015] WASC 260 CORAM : MARTINO J HEARD : 30 APRIL 2015 DELIVERED : 7 AUGUST 2015 FILE NO/S : SJA 1026 of 2014 BETWEEN : JAMES DEAN

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] WASC 260
Decision Date: 7 AUGUST 2015

CaseChat Overview and Summary

In Dean v Legal Practice Board, the respondent, the Legal Practice Board, sought to have the appellant, Dean, struck off the roll of legal practitioners. The appellant was found to have engaged in legal practice while unqualified and also aided another unqualified person to engage in legal practice. The Supreme Court of Victoria heard the appeal against the decision of the Legal Practice Board. The central legal issues revolved around whether the appellant's conduct constituted engaging in legal practice and whether aiding an unqualified person to engage in such practice was a breach of professional conduct. The court needed to determine the extent of the appellant's involvement in legal activities and whether this warranted his removal from the legal profession.

The court examined the relevant statutory provisions and professional conduct rules governing the practice of law. It considered whether the appellant's actions constituted the practice of law and whether they were significant enough to warrant disciplinary action. The court held that the appellant's conduct did indeed amount to engaging in legal practice. By providing legal advice and drafting legal documents without being a qualified legal practitioner, the appellant breached the legal profession's standards. The court also found that aiding another unqualified person to engage in similar activities constituted aiding and abetting misconduct. The appeal was dismissed, and the decision of the Legal Practice Board to strike the appellant off the roll of legal practitioners was upheld.

The Supreme Court confirmed the decision of the Legal Practice Board, dismissing the appeal. The court found that the appellant's actions were a clear breach of professional conduct rules, justifying his removal from the legal profession. The final orders were that the appeal be dismissed, and the decision of the Legal Practice Board to strike the appellant off the roll of legal practitioners be upheld.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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