Gargan v Ellis
[2004] TASSC 149
•17 December 2004
[2004] TASSC 149
CITATION: Gargan v Ellis [2004] TASSC 149
PARTIES: GARGAN, Ellen Mary
v
ELLIS, Timothy James
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 71/2004
DELIVERED ON: 17 December 2004
DELIVERED AT: Hobart
HEARING DATES: 8 December 2004
JUDGMENT OF: Blow J
CATCHWORDS:
Professions and Trades – Lawyers – Unqualified persons and disqualified practitioners – In general – Assisting in preparing instruments purporting to convey interest in real property – Practising the business of a conveyancer – What constitutes.
Legal Profession Act 1993 (Tas), s54(1)(f).
In the Will of Kerrigan (1935) 35 SR (NSW) 242, referred to.
Aust Dig Professions and Trades [140]
REPRESENTATION:
Counsel:
Applicant: In Person
Respondent: S J Bender
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2004] TASSC 149
Number of Paragraphs: 28
Serial No 149/2004
File No LCA 71/2004
ELLEN MARY GARGAN v TIMOTHY JAMES ELLIS
REASONS FOR JUDGMENT BLOW J
17 December 2004
This is a motion for the review of a conviction imposed by a magistrate on a charge of unlawfully practising as a conveyancer contrary to the Legal Profession Act 1993 ("the Act"), s54(1)(f). The applicant was charged with two other offences, but convicted only of the one charge. The charge in question read 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 applicant was not legally represented before the learned magistrate or before me. The Justices Act 1959, s26(1), required the complaint in this case to be made within six months from the time when the matter of complaint arose. The complaint was made on 3 October 2003. It should therefore not have included any allegation of a contravention of s54(1)(f) prior to 3 April 2003. It seems that that point was not noticed by the learned magistrate, nor by counsel for the respondent. I will assess the significance of that irregularity at the end of these reasons.
The legislation
The prohibition on practising the business of a conveyancer is contained in the Act, s54(1), which includes the following:
"54 ¾ (1) A person who is not admitted under Part 5 as a legal practitioner must not ¾
…
(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.
Penalty:
Fine not exceeding 200 penalty units or imprisonment for a term not exceeding 2 years, or both."
The scope of s54(1)(f) is clarified by s54(2)(e), which provides as follows:
"(2) The provisions of subsection (1) do not prevent a person from ¾
…
(e)publishing or selling information or material describing the procedures relating to the conveyance or transfer of property that does not involve the preparation of an instrument purporting to convey or transfer property."
The relevant evidence
There was ample evidence that the applicant carried on a business which provided services to its customers in connection with conveyancing. It was common ground that she was not admitted as a legal practitioner. It was also common ground that she was paid for her work. The critical question was whether her activities, or some of her activities, were of such a nature as to be prohibited by s54(1)(f). Evidence as to her activities was given by a Launceston law clerk named Bailey, two of her former customers named James and Le Fort, a former employee of the applicant named Dickenson, and by the applicant herself. The prosecutor also tendered two forms lodged by the applicant under the Business Names Act 1962. In January 2001 she registered the business name "Psiten Conveyancing", stating that the nature of the business was "conveyancing". In January 2004 she renewed the registration of that business name, but stated that the nature of the business was "clerical agency (diy conveyancing)".
Mr Bailey gave evidence that he worked for a legal practitioner in Launceston. His employer acted for the vendor of a property at Scamander in respect of an agreement for sale dated 24 February 2003. He received a letter addressed to his employer from "Psiten Conveyancing" dated 11 March 2003 containing "requisitions" and enclosing a transfer for execution by the vendor.
Mr James gave evidence that he entered into an agreement for the purchase of a property on 2 April 2003; that he telephoned the applicant that day, spoke to her, and engaged her to do the conveyancing for him; and that she charged him a fee of $305 which he paid in advance by a cheque that he mailed to her that day. He said she explained to him that "it was basically a do it yourself system"; that she would "get the forms"; that she would send them to him; that he would fill them in and return them to her; and that she would "type them up and process it". He gave evidence to the effect that he found her very difficult to contact; that he eventually approached the vendor's solicitors directly; and that they assisted him to complete his purchase without charging a fee. The vendor's solicitors apparently prepared the necessary transfer. In the course of cross-examination, the applicant showed Mr James a transfer with details completed in his own handwriting. It was not tendered as an exhibit. The vendor of the relevant property was a bank that was exercising its power of sale as a mortgagee. Mr James explained that he had been unsure, when filling in the document shown to him, whether to specify the bank or the owners as the transferor. He filled in the name of the bank, but wrote the applicant a note saying, "Please amend it before typing if I am wrong."
Mr Le Fort gave evidence to the following effect. He and a Mr Coe entered into a contract to purchase a property in April or May 2003. They engaged the applicant to do the conveyancing for them. (No written contract was tendered as an exhibit in respect of this transaction. There was no other evidence as to when the contract was made.) Mr Coe encountered difficulties in relation to the purchase. He needed a loan to finance the purchase, was a foreign national, and needed approval from the Foreign Investment Review Board. That caused a delay. Mr Le Fort discussed this with the applicant. She told him not to worry the vendor until a later date. The applicant was also acting for the vendor. Mr Le Fort and Mr Coe paid a deposit of approximately $8,000 directly to the vendor. The applicant suggested the payment of the deposit to the vendor at the time the contract was entered into. The purchase did not proceed to completion. Mr Le Fort and Mr Coe paid the applicant about $370, representing her fee of $200 plus disbursements.
Ms Dickenson gave evidence that she worked for Psiten Conveyancing, following an interview with the applicant, from February 2002 to September 2002. She said she worked from home. As to her duties, she said, "I sort of like typed letters, filled out documents for the conveyancing, like notices of sale, transfers, settlement details for the clients". She was shown a Land Titles Office transfer form, and identified it as the transfer form that she was speaking about. She said that she filled out details in the transfer form of the purchaser, the seller, the consideration, and the volume and folio. She said that the notice of sale was another form that she used to fill out, and identified a standard notice of sale form issued by the Land Titles Office.
The applicant gave evidence that she was a "law educator". According to the transcript, she said the following as to the services provided by her:
"It's inclusive in the service that my customers pay $200 per transaction for - they can ask me questions concerning procedure and I tell them the answers, if necessary, as I'm illustrating, by attending the relevant authorities; that is, the public liaison officer, who looks up in the practice book to ascertain the answer for them. All right? So if I know the answer, I simply tell that to them. If I don't know the answer, I find it out. If I can't find out the answer, I simply tell them that I can't find out the answer. I simply tell them that I can't find out the answer, but I provide legal information, which is what a law educator does. In addition to providing law education services, I provide clerical services. This involves the usual range of clerical services, demographical [sic] services – that's typing, taking messages, relaying messages, providing pro formas, for example, the notice of sale pro forma, which is the requirement, the authorities which to be notified on a regular pro forma. Similarly, applications for municipal certificates, which is a standard search purchasers do, municipalities require or prefer – usually insist upon – a specific pro forma. I provide them to customers. I type the details that they're supplied onto the pro formas. I post them for them in much the same way as a clerical agent in any field event ever might do, the only difference being that this clerical agency is inclusive of the service of law education.
…
I explain to them what to do. I post to them a blank transfer pro forma speaking to the critical document preparation, because it's an instrument, along with a summary of the booklet produced by the Recorder of Titles for the preparation of a transfer that can be followed by an intelligent eight year old child which they then prepare using biro or pencil. I enclose with the blank transfer pro forma for their drafting and the – for their preparation, or whatever, I should use the specific word, and the explanation as to how to prepare it and a pre-addressed stamped envelope so that they can return post it to me. I then type it, standardly, if they require, because they're raising a mortgage to make a purchase, and many people do. Their prospective mortgagees will require a priority notice, a URD [unregistered dealings] search showing the priority notice, a draft of the transfer, plus a notice of sale pro forma, all of which I having typed or neatly scripted in the instance of the notice of sale I post to the customer for their perusal which they then forward on to their prospective mortgagee being a standard requirement."
Subsequently the applicant explained that her clients would prepare transfers in their own handwriting, and send them to her for typing. She said that her work in typing transfers was "simply stenographical".
Under cross-examination she said that her customers sometimes got certificates posted to themselves, but sometimes to her, and that she usually read them. Later she said that customers and real estate agents post copies of contracts to her, and that she would send out a document entitled "Guide to the Preparation of Transfers" so that people would know how to fill out a transfer before they sent it back to be typed. She said she would then type the transfer. She said the customers very rarely lodged transfers through her clerical agency, and that they were usually lodged by the customers' mortgagees.
In the course of her cross-examination, she conceded that her work included title searches, certificate applications, document preparation, settlement attendances, calculations for rates and land tax apportionment, lodgements, and the explanation of obligations.
The applicant also said that her clerical agency enables customers to lodge priority notices electronically by virtue of an account that she has with the Department of Primary Industries, Water and Environment.
The magistrate's findings
The learned magistrate found the applicant's evidence generally to be unacceptable. He rejected it where it conflicted with evidence given by the prosecution witnesses, whose evidence he preferred and accepted. His findings as to the critical question of whether the applicant's activities fell within the scope of s54(1)(f) comprised the following:
"I am satisfied beyond a reasonable doubt that the defendant and her employee Ms Dickenson (and I am satisfied for these purposes that Ms Dickenson was an employee of the Defendant) finalised settlement figures and attended settlements on behalf of the defendant's customers. … The defendant offered in (P13) to 'service' all her clients [sic] 'conveyancing requirements' and in my view the evidence supports that she carried out her intentions in the three transactions of which evidence has been given.
I am also satisfied beyond a reasonable doubt that the defendant lodged documents for and of behalf of her customers including priority notices.
…
If the defendant was not preparing instruments such as priority notices, transfers and the like (which I am satisfied she did) I am quite satisfied beyond a reasonable doubt that she was assisting in such preparation by providing information to customers and general comments such as the correct title of the vendor in the James matter. In my opinion the prohibition in S54 (1) (f) is intended to extend to all documents to be lodged to affect [sic] a conveyance or transfer of interest.
If I am wrong as to that in any event I am quite satisfied beyond a reasonable doubt for the reasons above that the defendant 'otherwise practised the business of a conveyancer' within the prohibition contained in s54 (1) (f)."
The notice to review
The notice to review contains only one ground of appeal. It is worded as follows:
"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."
However the notice to review, when filed, had appended to it 13 pages of typed material criticising the learned magistrate's decision and his reasoning process. From that material, I take it that the applicant is contending that, on the evidence presented to him, it was not reasonably open to the learned magistrate to convict her on the s54(1)(f) charge because her activities were not thereby prohibited. However her principal contention was that one cannot practise the business of a conveyancer unless one prepares conveyances, and that there was no evidence that she had prepared any conveyances.
Were the applicant's activities prohibited?
This case raises the question of how wide an interpretation s54(1)(f) should be given. By virtue of the Acts Interpretation Act 1931, s8A, an interpretation of s54(1)(f) that promotes the purpose or object of the Legal Profession Act is to be preferred to an interpretation that does not promote that purpose or object. In my view Parliament's purpose or object in enacting s54(1)(f) was the protection of the public. The Act permits only legal practitioners to practise conveyancing for reward. Legal practitioners are required to have completed appropriate courses of tertiary education; are required to have professional indemnity insurance; and can be prosecuted and punished for professional misconduct or unprofessional conduct. The Solicitors Guarantee Fund exists for the purpose of compensating those who have suffered financial losses as the result of legal practitioners' improprieties. These arrangements promote high standards, particularly ethical standards, on the part of legal practitioners, and provide protection for the victims of negligence and impropriety. Whilst these arrangements have imperfections, no equivalent arrangements have been made for the protection of the public in relation to the activities of conveyancers other than lawyers. Since the object of s54(1)(f) is to protect the public, that purpose or object will be served by adopting an interpretation of s54(1)(f) that imposes a wide prohibition upon the business activities of non-lawyers in the provision of conveyancing services.
A conveyance is a deed by which an estate or interest in land is transferred from one person to another. In Torrens title systems, including the system provided for in the Land Titles Act 1980, instruments known as transfers are used instead of conveyances. Nearly all of the privately owned land in Tasmania is now under the Land Titles Act. There was certainly no evidence that the applicant had prepared any conveyances, or done any work in relation to land that was not under the Land Titles Act. However the nouns "conveyancing" and "conveyancer" have much wider meanings that the meaning of the word "conveyance" would suggest. The Macquarie Dictionary defines "conveyancing" as "the branch of legal practice concerned with the transfer of property rights (particularly rights in real property)". It defines "conveyancer" as "a person engaged in conveyancing".
The scope of the work of a conveyancer was considered in In the Will of Kerrigan (1935) 35 SR (NSW) 242. In those days the legal profession in New South Wales included not only barristers and solicitors, but also conveyancers. Conveyancers formed a third and distinct section of the profession. In that case a conveyancer, who had become the executor of a client, sought remuneration for work done for the client before and after her death. Questions arose as to how much of his work was the work of a conveyancer. At 250, Jordan CJ (with whom Stephen and Street JJ agreed) said the following:
"I am of opinion that the work of a conveyancer as such includes preparing any document or doing any act for the purpose of creating, transferring or extinguishing any interest in any form of property, and anything incidental or ancillary to any such act, where the document or act is of a kind calling for something more than ordinary business knowledge, skill or ability."
The applicant's submission to the effect that "the business of a conveyancer" is concerned only with the preparation of general law conveyances is inconsistent with the ordinary meaning of the word "conveyancer", and involves an interpretation of s54(1)(f) that would certainly not promote the Act's purpose or object concerned with the protection of the public. I therefore reject her submission.
I accept that some of the tasks routinely undertaken in connection with conveyancing could be carried out by an individual for reward as a business activity without contravening s54(1)(f). If, for example, an individual were to establish a business that conducted title searches and made the usual enquiries of councils and public authorities in relation to purchases of land, and then provided the results of such searches and enquiries to its customers or clients without providing advice or any incidental service, I do not think the business in question could properly be characterised as "the business of a conveyancer". To act as a search agent or an enquiry agent is not to act as a conveyancer. The preparation of documents necessary to make such searches and enquiries would not in the words of Jordan CJ, call for "something more than ordinary business knowledge, skill or ability". Similarly, the sale of conveyancing kits, even containing very detailed procedural information, would not constitute the practice of the business of a conveyancer because of the provisions of s54(2)(e).
However the evidence that the learned magistrate accepted establishes that the applicant went much further than just conducting searches and enquiries and just providing kits. She advised Mr Le Fort as to the timing of the revelation to his vendor that Mr Coe was having difficulty obtaining finance. She advised Mr Le Fort and Mr Coe as to the appropriateness of paying an $8,000 deposit directly to their vendor. She routinely lodged priority notices electronically. She took responsibility for arranging and effecting settlements. She lodged documents when purchaser clients did not have mortgagees. She went through the charade of getting purchaser clients to prepare draft documents under her instructions, and then typing the final documents, or having them typed. Save for the preparation of such draft documents, and the preparation of contracts, the evidence suggests that there was no part of the work of a conveyancer in relation to Torrens title land that she did not undertake. Certainly the evidence of Mr James and Mr Le Fort suggests that they retained her to act for them generally in relation to their purchases, save in relation to the drafting of documents.
The 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.
It 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.
Justices Act 1959, s26(1)
Parts of the evidence before the learned magistrate related to activities of the applicant more than six months before the making of the complaint, ie, before 3 October 2003. All of Ms Dickenson's work for the applicant was done before that date, but Ms Dickenson's evidence was admissible as tending to prove the scope of the applicant's activities after that date. Mr James' evidence related to a contract made on 2 April 2002, but his evidence was admissible and very significant because it related to work that the applicant must have done after 3 April 2003. The evidence of Mr Le Fort related to a contract that might possibly have been entered into prior to 3 April 2003, but it was virtually certain that at least the bulk of the work undertaken by the applicant for him and Mr Coe was done after that date. The evidence of Mr Bailey related to requisitions and a transfer received in March 2003, but an exhibit reveals that the transfer was registered on 9 May 2003. His evidence was relevant as tending to prove the scope of the applicant's activities after 3 April 2003.
In my view, the oversight in relation to the Justices Act, s26(3) did not result in the receipt of any inadmissible evidence. Further, the evidence accepted by the learned magistrate overwhelmingly established that the applicant had contravened s54(1)(f) within the six months prior to the making of the complaint.
Conclusion
For these reasons, I think the learned magistrate did not err in finding the charge proven. The motion to review is therefore dismissed.
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