Dean v Legal Practice Board - [2013] WASC 155

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DEAN -v- LEGAL PRACTICE BOARD [2013] WASC 155

CORAM: HALL J

HEARD: 24 APRIL 2013

DELIVERED : 24 APRIL 2013

PUBLISHED : 1 MAY 2013

FILE NO/S: SJA 1039 of 2013

BETWEEN: JAMES DEAN
Appellant
AND
LEGAL PRACTICE BOARD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE G A BENN
File No  :MI 174 of 2013, MI 175 of 2013

Catchwords:

Criminal law - Appeal from Magistrates Court - Whether appeal competent - Definition of 'decision' - Whether a decision regarding authority of the prosecutor to commence a prosecution open to appeal - Whether Legal Practice Board an authorised person - Whether a review order available as an alternative - Appeal not competent

Legislation:

Criminal Appeals Act 2004 (WA), s 6, s 7
Criminal Procedure Act 2004 (WA), s 20, s 23
Legal Profession Act 2008 (WA), s 11, s 12, s 534, s 592

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Ms E R A Fulham

Solicitors:

Appellant: In person
Respondent: Legal Practice Board

Case(s) referred to in judgment(s):

Davern v Messel [1984] HCA 34; (1984) 184 155 CLR 21
Mansell v Mignacca‑Randazzo [2013] WASC 66

HALL J:
(These reasons were delivered orally and have been edited from the transcript)

Introduction

Mr James Dean, who I will for present purposes refer to as the appellant, has lodged an appeal notice seeking leave to appeal against the decision of a magistrate. There is a preliminary issue as to whether the appeal is competent. The matter was listed today to address that question.

Background

The background is as follows. On 10 December 2012 a prosecution notice was lodged with the Magistrates Court at Midland. That prosecution notice alleged that the appellant and another man had committed offences against the Legal Profession Act 2008 (WA) (LPA). In particular, it is alleged that between 11 December 2011 and 31 March 2012 the appellant had engaged in legal practice when he was not an Australian legal practitioner and had aided, counselled or procured the second named accused to do the same thing. Those alleged offences are stated to be contrary to s 12(2) of the LPA.
The appellant raised a preliminary issue in the Magistrates Court. He submitted in that court that the charges should be dismissed because the prosecution notice had not been validly completed. In particular, he argued that the prosecution had not been commenced by an authorised person as required by s 20 of the Criminal Procedure Act 2004 (WA) (CPA).

Relevant statutory provisions

The prosecution notice states on its face that the prosecutor is the Legal Practice Board of Western Australia. It is to be noted that sch 1 cl 3 of the CPA provides that if a prosecution is commenced by a person who is acting in the course of his or her duties as an employee of a public authority it…

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.

Continue reading Dean v Legal Practice Board

Details

AGLC: Dean v Legal Practice Board [2013] WASC 155
Case: [2013] WASC 155
Decision Date: 1 MAY 2013

CaseChat Overview and Summary

The case of Dean v Legal Practice Board involved the appellant appealing against a decision made by the Legal Practice Board, which determined that the appellant did not have the authority to commence a prosecution in relation to certain matters. The appeal was brought before the court to determine the competency of the appeal, the definition of a 'decision' for the purposes of appeal, and whether a review order could be an alternative to the appeal. The Legal Practice Board argued that the appeal was not competent as it did not involve a decision within the meaning of the applicable legislation.

The central legal issue before the court was whether the appeal was competent and if the decision regarding the authority of the prosecutor to commence a prosecution was appealable. Additionally, the court needed to decide whether the Legal Practice Board was an authorised person for the purposes of the legislation and whether a review order was available as an alternative to the appeal. The court was required to interpret the relevant statutory provisions to determine the scope of the appeal and the definition of a 'decision'.

The court held that the appeal was not competent as the decision in question did not fall within the definition of a 'decision' as provided by the legislation. The court found that the decision regarding the authority of the prosecutor to commence a prosecution was not appealable as it did not constitute a 'decision' for the purposes of the legislation. Furthermore, the court determined that the Legal Practice Board was not an authorised person and that a review order was not available as an alternative to the appeal. Consequently, the appeal was dismissed as incompetent.

As a result of the court's decision, the appeal was dismissed, and the appellant's challenge to the decision of the Legal Practice Board was not upheld. The court's interpretation of the relevant statutory provisions and its finding that the decision was not appealable had significant implications for the appellant's ability to challenge the authority of the prosecutor in future cases.

Orders