Gargan v Ellis
[2005] TASSC 108
•11 November 2005
[2005] TASSC 108
CITATION: Gargan v Ellis [2005] TASSC 108
PARTIES: GARGAN, Ellen Mary
v
ELLIS, Timothy James
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 4/2005
DELIVERED ON: 11 November 2005
DELIVERED AT: Hobart
HEARING DATE: 4 November 2005
JUDGMENT OF: Crawford, Evans and Tennent JJ
CATCHWORDS:
Professions and Trades – Lawyers – Unqualified persons and disqualified practitioners – In general – Practising the business of a conveyancer.
Legal Profession Act 1993 (Tas), s54(1)(f).
Aust Dig Professions and Trades [140]
REPRESENTATION:
Counsel:
Appellant: In Person
Respondent: S J Bender
Solicitors:
Appellant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 108
Number of paragraphs: 15
Serial No 108/2005
File No CCA 4/2005
ELLEN MARY GARGAN v TIMOTHY JAMES ELLIS
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
EVANS J
TENNENT J
11 November 2005
Order of the Court
Appeal dismissed.
Serial No 108/2005
File No FCA 4/2005
ELLEN MARY GARGAN v TIMOTHY JAMES ELLIS
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
11 November 2005
I agree with the reasons for judgment of Evans J. The appeal should be dismissed.
File No FCA 4/2005
ELLEN MARY GARGAN v TIMOTHY JAMES ELLIS
REASONS FOR JUDGMENT FULL COURT
EVANS J
11 November 2005
The appellant was convicted in the court of petty sessions on a charge of unlawfully practising the business of a conveyancer contrary to the Legal Profession Act 1993 ("the Act"), s54(1)(f). That provision is as follows:
"54 — (1) A person who is not admitted under Part 5 as a legal practitioner must not –
…
(f)for fee or reward, prepare or assist in preparing any deed or will or any instrument in writing purporting to create or convey any estate or interest in real or personal property or otherwise practise the business of a conveyancer."
The charge on which the appellant was convicted is as follows:
"That Ellen Mary Gargan at Hobart in Tasmania between on or about 24th February and on or about 3rd October, 2003, not being admitted under Part 5 of the Legal Profession Act 1993 as a legal practitioner, and trading as Psiten Conveyancing, did practise the business of a conveyancer, particulars of such practice being set out below, contrary to Section 54/(1)(f) of the said Act:
particulars
a)Purporting to act as solicitor for the purchaser in the sale of property at 26 Main Road, St Marys by National Australia Bank Limited to Alan Frank James and Jane Christina Kent, the title to the said property being transferred on 23rd April, 2003.
b)Purporting to act as solicitor for the purchaser in the sale of property at 24 Targett Street, Scamander by Paul Roland Godden to Maxwell James Brown and Susan Joan Brown, the title to the said property being transferred on 9th May, 2003.
c)[Deleted]
d)Purporting to act as solicitor for the purchaser in the sale of property at or near Tunnack by Rick Coe to Paul Le Fort and another, the said transaction not being completed."
The appellant filed a notice to review challenging her conviction on the ground that:
"The decision is predicated upon errors in law and upon errors in fact, pertinently and significantly, no conveyances were presented in evidence for which the defendant may be said to be the conveyancer entirely as the preparer, or in part as assistant to the preparer, nor were efficacious arguments presented by prosecution founded upon relevant precedent law against the fact that where there is no conveyance there is no conveyancer."
The appellant's notice to review was dismissed (Gargan v Ellis [2004] TASSC 149). At the outset of his reasons for dismissing the notice, Blow J noted that the Justices Act 1959, s26(1), required that the complaint against the appellant be made within six months from the time when the matter of complaint arose. The complaint was made on 3 October 2003. It accordingly should not have included an allegation of a contravention of s54(1)(f) prior to 3 April 2003. Whilst this irregularity was not a ground of the notice to review, Blow J addressed it and concluded that it did not result in the receipt of any inadmissible evidence and further that the evidence that had been accepted by the learned magistrate who heard the prosecution overwhelmingly established that the appellant had contravened s54(1)(f) within the six month period prior to the making of the complaint.
With reference to the ground detailed in the notice to review, Blow J concluded:
"24The first limb of s54(1)(f) prohibits a non-lawyer who charges a fee from (inter alia) assisting in preparing an instrument in writing purporting to convey an estate or interest in real property. In my view the applicant assisted in preparing such documents by advising her clients as to how transfers should be filled in, and then typing transfers in accordance with her clients' drafts. The second limb of s54(1)(f) prohibits a non-lawyer who charges a fee from otherwise practising the business of a conveyancer. The inescapable inference from the relevant evidence was that the applicant ran a general conveyancing business, save that there was no evidence that she did any work in relation to general law land, prepared any contracts, or prepared transfers other than those drafted by her clients under her instruction. In my view those exceptions, whilst limiting the scope of her business, did not result in it not being the business of a conveyancer. Plainly she sought to place her business outside the prohibition of s54(1)(f) by getting her clients to prepare draft documents. In my view she did not succeed.
25It follows, in my view, that the learned magistrate did not err in making findings that the applicant assisted in preparing instruments such as priority notices and transfers, and that she otherwise practised the business of a conveyancer."
The appellant has appealed against Blow J's dismissal of her notice to review. Pursuant to the Justices Act, s123(1), her right of appeal is confined to errors "in point of law or upon the admission or rejection of evidence". The grounds of her appeal are:
"1The learned Judge erred in law by overwhelmingly establishing his finding contrary to Part VI Section 26 (1) of the Justice Act (1898) upon activities predating the charge particulars;
2These activities of another person which were summarily desisted, were not done by the subject of the charge, in which the learned Judge also erred in law by so overwhelmingly establishing his findings;
3Those activities summarily desisted of that other person were beyond the scope of the charge particulars, which the learned Judge so found, yet he errs in law by not making his finding upon the evidence within scope of the charge, and done by the subject of the charge, so making his judgment upon activities which the subject did not at any time do;
4By rendering irrelevant trial against charge pursuant to evidence, the learned Judge sets published precedent in law unsustainable in view of Judicial practice in Tasmania."
As required by Practice Direction No 6 of 2005, the appellant lodged written submissions in support of her appeal. They are of no assistance. They throw no light on her somewhat unintelligible grounds of appeal and are not directed to them. As an indication of the thrust and flavour of the submissions, I set out below the last four paragraphs thereof:
"Do your own participants in legal processes emburden themselves with the responsibility of overseeing all this work. They presume this responsibility as their right by choice – within regulatory restraint. Excluding neglect which breaches duty of care, the principle of 'buyer beware' applies to them for all such services they engage. The right to make this choice is fundamental to free-men. Only through paternalism may they be protected from themselves, which by definition erodes their status. This they can and do resist. Across Australia literally in their tens of thousands every year they do conveyancing procedures by elementary representation – being themselves.
Embodied by the decision of Justice Blow in this matter, the Supreme Court Tasmania rests upon formless ground – in denying citizens this elementary right or, in the alternative, by seeking to erode their status as free-men. With quixotic sophistry, lawyers customarily do, saying the self-represented are unrepresented. This is false, factually. Who are citizens if citizens are not recognized as themselves? They are nobody.
I am myself.
The institution of Tasmanian lawyers adjusting to changing fortunes must rationalize their industry to re-win their own ongoing status within this body politic. Their stocks are too low. Only through common cause with the citizenry will their privileged allegiance be secured. The problem presented by the reluctance of lawyers to so do is – although interconnected – irrelevant to this matter, and its burden is not nor should be carried by me."
It seems from these paragraphs of the appellant's written submissions and a good portion of her oral submissions, that she resents the statutory prohibition against non-legal practitioners performing the business of conveyancing. She was, of course, entitled to endeavour to lawfully circumvent the prohibition. The decision of the learned magistrate, as upheld by Blow J, is that she did not achieve that objective. She has submitted that this Court should abolish the statutory prohibition contained in s54(1)(f). Clearly that is beyond the Court's power.
As to the legitimacy of the appellant's effort to circumvent the legislation, she, in substance, submits that her business is to conveyancing what a building supplier is to building in that her business provides the material that enables a person to carry out a conveyance just as a building supplier provides the material that enables a person to construct a building. She contends that just as a business that supplies building material is not thereby a builder, the provision by her business of material for conveyancing does not render her a conveyancer. The difficulty with this proposition is that it ignores the factual findings made by the learned magistrate as upheld by Blow J. The learned magistrate found that the appellant offered to serve all her clients' conveyancing requirements and carried out that intent. As to her offer, the evidence was incontrovertible, it included a letter the appellant distributed promoting her business in which she listed the services of the business as:
"Title searches, certificate applications, document preparation, settlement attendances, stenographical services, payout calculation rates (rates/land tax apportionment, lodgement, guide to processes and explanation of obligations."
The letter concluded:
"Recommend your customers to PSITEN CONVEYANCING. I will service all their conveyancing requirements."
I turn to the actual grounds of appeal.
Ground 1
"1The learned Judge erred in law by overwhelmingly establishing his finding contrary to Part VI Section 25 (1) of the Justice Act (1898) upon activities predating the charge particulars;"
Whatever this ground involves, it is clear that at its core is the proposition that the findings made against the appellant were wrongly based upon activities predating 3 April 2003. There is no substance to the ground. Insofar as evidence was given of activities that preceded 3 April 2003, for the reasons explained by Blow J in par26 of his decision, that evidence was relevant and admissible to the activities of the appellant subsequent to that date.
Grounds 2 and 3
"2These activities of another person which were summarily desisted, were not done by the subject of the charge, in which the learned Judge also erred in law by so overwhelmingly establishing his findings;
3Those activities summarily desisted of that other person were beyond the scope of the charge particulars, which the learned Judge so found, yet he errs in law by not making his finding upon the evidence within scope of the charge, and done by the subject of the charge, so making his judgment upon activities which the subject did not at any time do;"
The appellant informed the Court that the other person referred to in these grounds is Amanda Dickenson. The learned magistrate found that Ms Dickenson was employed by the appellant. That finding was not challenged by the notice to review and is not the subject of this appeal. In the context of the charge against the appellant, it was entirely proper to pay regard to Ms Dickenson's activities in the course of her employment by the appellant when considering the evidence against the appellant. That Ms Dickenson's employment concluded prior to 3 April 2003 is of no consequence as the activities were relevant to the scope of the appellant's activities after that date.
Ground 4
"4By rendering irrelevant trial against charge pursuant to evidence, the learned Judge sets published precedent in law unsustainable in view of Judicial practice in Tasmania."
This ground is unintelligible. When explaining it in the course of her oral submissions, the appellant said that it was based on the general proposition that a person cannot be held liable for the actions of another, just as a parent cannot be held liable for the actions of that parent's child On this basis the appellant contended that the activities of Ms Dickenson could not be held against the appellant. This contention has already been dealt with under grounds 2 and 3.
The appellant has not established any error on the part of Blow J. I would dismiss the appeal.
File No FCA 4/2005
ELLEN MARY GARGAN v TIMOTHY JAMES ELLIS
REASONS FOR JUDGMENT FULL COURT
TENNENT J
11 November 2005
I agree with the reasons for judgment of Evans J. The appeal should be dismissed.
0