Law Institute of Victoria v Maric
[2006] VSC 361
•3 October 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8323 of 2005
| LAW INSTITUTE OF VICTORIA | Plaintiff |
| v | |
| LYDIA MARIC and HOME CONVEYANCING RESERVOIR PTY LTD | Defendants |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 30 NOVEMBER-1 DECEMBER 2005, 15 MAY, 25 SEPTEMBER 2006 | |
DATE OF JUDGMENT: | 3 OCTOBER 2006 | |
CASE MAY BE CITED AS: | LAW INSTITUTE OF VICTORIA v MARIC & ANOR | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 361 | 2nd Revision: 11 October 2006 |
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Application for permanent injunction restraining defendant from issuing s.32 statements – Whether engaging in legal practice – No necessary giving of legal advice – Sections 299, 314(1), 326, Legal Practice Act 1996 – Sections 2.2.2(1), 7.1.1, 7.2.13, Legal Profession Act 2004, Sections 14(2), 16, Interpretation of Legislation Act 1984, Section 32, Sale of Land Act 1962.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr. M.A. Dreyfus QC with Mr. M. Randall | Mr. J. Barravecchio |
| For the Defendants | Mr. G. Garde QC with Mr. N. Wikramanayake SC and Mr. M.G. Roberts | Michael Benjamin & Associates |
HIS HONOUR:
The plaintiff ("the Institute") is an incorporated body representing solicitors of Victoria and is a professional association under the Legal Profession Act 2004 (the "Profession Act").
The first defendant carries on the business of a conveyancer utilising the second defendant (of which she is the Director and Secretary) as a corporate vehicle for such business. The business now operates under the name "Home Conveyancing Reservoir".
Section 314(1) of the Legal Practice Act 1996 (the "Practice Act") provided:
"(1)A person must not engage in legal practice in Victoria unless the person –
(a)is a natural person who –
(i)is admitted to legal practice; and
(ii)holds a practising certificate; or
(b)is an incorporated practitioner that holds a practising certificate; or
(c)is an interstate practitioner (other than an interstate practitioner who is suspended or prohibited from engaging in legal practice in Victoria)."
The penalty specified for a breach of this provision is imprisonment for two years.
Section 2.2.2(1) of the Profession Act now provides:
"2.2.2 Prohibition on engaging in legal practice when not entitled
(1)A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner. …
Penalty: Imprisonment for 2 years."
In September 2004 the Institute received a complaint from a country solicitor concerning a document prepared by the defendants in purported compliance with s.32 of the Sale of Land Act 1962 (a "s.32 statement").
The Institute formed the view that by preparing s.32 statements in the course of the conduct of a conveyancing business the defendants were engaging in legal practice in breach of s.314 of the Practice Act.
The matter was referred to the Legal Practice Board. The Board was established by s.347 of the Practice Act. Pursuant to s.73 of the Practice Act it made rules for the conduct of legal practice by regulated practitioners consistent with the general principles of professional conduct stated in s.64. Under s.441 of the Practice Act a charge might be brought by the Board against a person for an offence under the Practice Act[1] including an offence under s.314. By s.441A the Board might appoint a person to investigate suspected offences.
[1]Other than s.438(e)
In the present case the Board having reviewed the complaint concluded that it would not prosecute the defendants for breaches of the Practice Act. The Institute then sought injunctive relief from this Court pursuant to s.316 of the Practice Act restraining the defendants from issuing s.32 statements. Section 316(1) of the Act provided:
"On application by an RPA or the Board, the Supreme Court, if it thinks fit, may grant an injunction restraining a person from engaging in legal practice, or representing or advertising that they are qualified to engage in legal practice, in contravention of section 314."
The Institute had standing to make this application because it was a recognised professional association accredited under s.299 of the Practice Act.
Standing
The Practice Act was repealed on 12 December 2005[2] and the equivalent to s.316 is s.7.2.13 of the Profession Act. That section provides:
[2]The Institute did not alert the Court to this legislative change following the initial hearing in this matter. As a result both the exchange of written submissions by the parties and the further hearing of the case and were substantially delayed. Following an initial mention convened by the Court a series of written submissions were exchanged between the parties and a further hearing was requested by the Institute on 31 July 2006. If, as the Institute prior to that time contended, the fact of the amendment was irrelevant to the proper consideration of the case, it is difficult to see why it requested a further hearing. The matter was then relisted. The failure to alert the Court of the change to the legislation was unfortunate given the history of dispute attending the effect of the implementation of the Practice Act to which I will further refer, and the entirely foreseeable dispute as to the effect of the Profession Act.
"7.2.13 Injunctions
(1)The Board may apply to the Supreme Court for an injunction under this section if a person has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute—
(a) a contravention of this Act or the regulations; or
(b) attempting to contravene this Act or the regulations; or
(c)aiding, abetting, counselling or procuring a person to contravene this Act or the regulations; or
(d)inducing or attempting to induce, whether by threats, promises or otherwise, a person to contravene this Act or the regulations; or
(e)being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of this Act or the regulations; or
(f)conspiring with others to contravene this Act or the regulations.
(2)On an application under sub-section (1), the Supreme Court may grant an injunction, on any terms the Court thinks appropriate, restraining the person from engaging in the conduct and, if in the opinion of the Court it is desirable to do so, requiring the person to do any act or thing.
(3)If an application has been made under sub-section (1), the Supreme Court may, if the Court determines it to be appropriate, grant an injunction by consent of all the parties to the proceeding, whether or not the Court is satisfied that sub-section (1) applies."
The Profession Act provides the Legal Services Board with the power to make an application for an injunction to restrain a person that is engaging in conduct or is proposing to engage in conduct that would contravene the Act. Conversely, under the new provisions the Institute no longer has standing to pursue such an application on the basis of its status as a recognised professional association.
The Institute submits that this amendment poses no difficulty in the current matter. Firstly, it contends that it is entitled to maintain its action with respect to the alleged breach of the Practice Act and obtain an order restraining further breach of the Practice Act, which will by virtue of the Interpretation of Legislation Act 1984, take effect pursuant to the Profession Act. Secondly, s.6.2.19(1)(d) of the Profession Act provides that the Legal Services Board (“the Board”) may delegate “any function of the Board”, (subject to restrictions contained in ss.6.2.19(2)) to “a person who is, or who is a member of a class that is, prescribed by the regulations”. At this point no relevant regulations have been made. Clause 8.14(1) of Schedule 2 to the Profession Act provides that until the relevant regulations are made the Institute and the Victorian Bar are to be taken to have been prescribed for the purposes of s.6.2.19(1)(d). A written delegation of the powers of the Board, including the powers under s.7.2.13(1) of the Profession Act, was given to the Institute on 3 January 2006. Accordingly, it is contended that despite s.299 being repealed the Institute still has continuing standing to seek an injunction of the type sought. Further, the legislative change should not be treated as a discretionary reason for refusing a continuing order founded in a breach of the Practice Act.[3]
[3]Since the decision of the High Court in Cooney v Ku-ring-gai Municipal Council (1963) 114 CLR 582 it has been clear the potential ambit of injunctive relief with respect to continuing conduct involving ongoing commission of summary offences is relatively full. Further, such relief may be sought by a party other than the Attorney-General subject to the rule in Boyce v Paddington Borough Council [1903] 1 Ch 109. The ultimate difficulty facing the Institute under the Profession Act absent delegation of the relevant power to it, may thus be best characterised as one going to the Court's discretion to grant an injunction outside the statutory scheme contained in the Act.
The Institute maintains the position that the proceeding under the Practice Act is preserved by virtue of s.14(2) of the Interpretation of Legislation Act 1984 which provides:
"Where an Act or a provision of an Act—
(a) is repealed or amended; or
(b) expires, lapses or otherwise ceases to have effect—
the repeal, amendment, expiry, lapsing or ceasing to have effect of that Act or provision shall not, unless the contrary intention expressly appears—
…
(e)affect any right, privilege, obligation or liability acquired, accrued or incurred under that Act or provision;
(f)affect any penalty, forfeiture or punishment incurred in respect of an offence committed against that Act or provision; or
(g)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as is mentioned in paragraphs (e) and (f) … "
It is submitted that in the absence of any contrary intention expressed in the Profession Act the Institute may continue the proceedings.
The defendants argue that the Institute is no longer a recognised professional association possessing the statutory right to seek injunctive relief and further that the proceedings are not saved by the delegation of powers made on 3 January 2006. The defendants submit that there are three key problems with the delegation of power.
First, the defendants contend that the delegation merely permits the Institute to commence and maintain proceedings on the Board’s behalf, that is, to act as a representative party. Therefore, to take advantage of the grant of power the Institute should have brought the proceedings as a representative party pursuant to Order 5 Rule 5.06 of the Supreme Court (General Civil Procedure) Rules 2005. The Institute did not bring the proceedings in a representative capacity and it is submitted that they cannot be converted now.
Secondly, the defendants note that the delegation of the Board is not retrospective and therefore from 12 December 2005 to 3 January 2006 the Institute was without power to bring or maintain the proceedings.
Thirdly, the delegation of power to the Institute under the Profession Act subsists only until regulations are made for the purposes of s.6.2.19(1)(d). The defendants submit that the operation of the delegation to the Institute only relates to the Profession Act and does not empower the Institute to commence or continue proceedings under the PracticeAct.
The defendants also contend that s.14(2)(g) does not operate to preserve the proceeding as the Institute is not seeking relief by way of penalty, punishment, or damages arising out of a breach of the Practice Act. Rather the Institute is seeking permanent injunctive relief that would operate prospectively pursuant to the provisions of the Profession Act. Therefore, the legal proceedings do not relate to a right or remedy under the Practice Act, but rather affect rights under the Profession Act.
In the alternative the defendants submit that the Profession Act clearly exhibits an intention for the proceedings not to be preserved. It is submitted that this intention is reflected in the substance of the Profession Act which took away the Institute’s power to seek an injunction in this kind of circumstance. The defendants also rely on the second reading speeches relating to the Profession Act, particularly that of the Attorney General, which made clear that the Profession Act was intended to effect a movement away from self-regulation of the legal profession towards independent regulation by the Board.
Substantially similar arguments were unsuccessfully raised in Felman v Law Institute of Victoria[4]at the time of the implementation of the Practice Act.In Felman the Law Institute of Victoria had commenced an action pursuant to s.95A of the Legal Profession Practice Act 1958 seeking orders restraining the appellant from practicing as a solicitor. The Institute’s secretary had also commenced a proceeding under s.90(7) of the same Act, seeking the similar orders. However, after the action had commenced the Legal Profession Practice Act 1958 was repealed by the Practice Act, which abolished the Institute as formerly constituted. The appellant argued that the two proceedings lapsed as a result. Kenny JA (with whom Winneke P and Brooking JA agreed) rejected this submission. Kenny JA stated that by instituting proceedings under the old Act, the respondents acquired a right to have these applications heard by the Court. Her Honour found this constituted an accrued right within the meaning of s.14(2)(e) of the Interpretation of Legislation Act 1984 and thus the proceeding was saved by the operation of this section:
"The right to have the court decide each application made in each proceeding is, in my opinion, a "right" within the meaning of s.14(2). Further, the right is in the nature of an "accrued" right."[5]
She further concluded that Parliament plainly intended that any rights which had been acquired by the Institute were to be vested in a new entity, constituted by a recognised professional association accredited under the Practice Act.
[4][1998] 4 VR 324
[5]Above at 333. Her Honour then referred to Esber v Commonwealth (1992) 174 CLR 430 in support of this conclusion.
Her Honour held that s.16 of the Interpretation of Legislation Act 1984 enabled an order made in proceedings under the former Act to have effect as if made under the new Act. Section 16 provides:
"Where an Act or a provision of an Act is repealed and re-enacted (with or without modification) then, unless the contrary intention expressly appears ‑
(a)any reference in any Act or subordinate instrument to the repealed Act or provision shall be construed as a reference to the re-enacted Act or provision; and
(b)insofar as any subordinate instrument made or other thing done under the repealed Act or provision, or having effect as if so made or done, could have been made or done under the re-enacted Act or provision, it shall have effect as if made or done under the re-enacted Act or provision."
Her Honour held that as the relevant provisions in the Legal Professional Practice Act 1958 had been effectively reproduced with only minor modifications in the Practice Act, any order made by the Court in the proceedings would be deemed by s.16(b) to have been made under the Practice Act.
"Section 95A has been re-enacted in s.321 so as to deal with essentially the same mischief as before in very much the same way as before, but so as to take account of changes in the environment in which the provision is to operate, including the introduction of new entities to govern the profession. Whether or not an alteration effects a fundamental change so that it can no longer be described as a mere modification of a former provision does not always admit of a ready answer. The changes may be so substantial as to lead a court to conclude that something more than a re-enactment was intended: cf. Day v Adam; Ex parte Day [1989] 2 Qd. R. 9. Ultimately it is a matter of substance and degree. The new provision recognises that new entities (RPAs, the board and the Legal Ombudsman) are to govern the profession and, in so doing, it places the power formerly exercisable by the Supreme Court and the council of the institute in the new tribunal (subject, as already noted, to a limited right of appeal to this court). In my opinion, the changes are in substance no more than modifications designed to take account of the altered framework for the administration and discipline of the profession."[6]
[6]Above at 339
Additional support for this view was to be found in transitional provisions equivalent to those now found in clause 2.3 of schedule 2 to the Profession Act:
"2.3 Unqualified practice
(1)An order made under section 316 of the old Act in force immediately before the commencement day continues in force on and after that day according to its tenor as if it were an injunction under section 7.2.13 of this Act.
(2)An authorisation that was in force under section 320 of the old Act immediately before the commencement day is taken, on and after that day, to be an approval of the person to whom the authorisation relates under section 2.2.8 of this Act.
(3)An order that was in force under section 321 of the old Act immediately before the commencement day continues in force on and after that day according to its tenor as if it were an order under section 2.2.6 of this Act."
Her Honour further observed that the contrary view would produce an irrational result. Proceedings validly instituted under the former Act could not crystallise in effective orders under the new Act resulting in a period of ineffectual regulation. She concluded Parliament cannot have intended this result.
Accordingly, if an order was made under the former Act the "thing done" under s.16(b) would be the making of the order and the effect of s.16(b) would be that the order "should have effect as if made under the current Act".
Kenny JA's reasoning in Felman provides an analogous basis for holding that the current proceedings are saved by the Interpretation of Legislation Act 1984.[7] Further, if this reasoning is accepted the defendants' arguments as to alleged inadequacies of the delegation are largely not to the point. The plaintiff's claim pursuant to the Practice Act is entitled to be maintained. However, due to the conclusion which I have reached below as to the merits of the Institute’s request for injunctive relief, it is unnecessary for me to finally resolve whether the Institute has power to continue the proceedings based on breach of the Practice Act, following the implementation of the Profession Act.
[7]See also Council of the NSW Bar Association v Davidson [2006] NSWSC 699.
I would only add that given the defendants clearly intend to continue the conduct complained of, the substantive provisions governing such conduct remain unchanged, and the Institute currently has standing to initiate proceedings of the kind in issue, it would be an artificial and technical result to this proceeding if it were disposed of on one or other of the procedural bases suggested by the defendants.
Engaging in Legal Practice
The concept of engaging in legal practice is not defined by the Practice Act, nor by the Profession Act.
The explanatory memorandum which accompanied the introduction into Parliament of the Bill comprising the relevant provision of the Practice Act stated:
"Note: The concept of 'engaging in legal practice' is used throughout the Bill. This concept is the same as 'acting or practising as a legal practitioner' and other similar phrases used in other jurisdictions and is intended to invoke the common law learning on what defines the practice of a lawyer."
I accept that regard can be had to this memorandum pursuant to s.35 of the Interpretation of Legislation Act 1984.
The principal authorities bearing on the concept of engaging in legal practice in this State relate to previous legislation and in particular the provisions of the Legal Profession Practice Act 1958. Section 90(1) of that Act provided:
"90. Unqualified persons not to practise etc
(1)No person shall be qualified to act or practise or shall act or practise as a solicitor unless -
(a)the person is a practitioner or an incorporated practitioner; and
(b)the person holds a practising certificate for the time being in force authorising the person to act or practise in the capacity concerned."
Section 93(1) further provided:
"93. Unqualified persons not to draw etc. instruments
(1)Any unqualified person who unless the person proves that the act was not done for or in expectation of any fee gain or reward (whether the fee gain or reward is or is expected to be direct or indirect) draws fills up or prepares any instrument creating or regulating rights between parties or relating to real or personal property, or any legal proceedings, shall be guilty of an offence and liable on summary conviction to a penalty of not more than 10 penalty units and shall in addition be guilty of a contempt of the Court and liable to be punished accordingly."
Section 111 provided:
"111. Solicitors to be admitted etc.
Except so far as is otherwise expressly enacted no person shall act as a solicitor or as such solicitor sue out any writ or process or commence carry on solicit or defend any action suit or other proceeding in the name of any other person or in the person’s own name in the Supreme Court, County Court, or Magistrates’ Court unless such person has been admitted and enrolled and otherwise duly qualified to act as a barrister or a solicitor or a barrister and solicitor of the Supreme Court and continues to be so duly qualified and on the roll at the time of acting in the capacity of a solicitor as aforesaid; and every person who acts or does anything in contravention of the provisions of this section shall be guilty of a contempt of the Supreme Court and punishable accordingly upon the application of any person complaining thereof and upon proof made thereof upon oath either oral or by affidavit and shall be incapable of maintaining or prosecuting any action suit or other proceeding for any fee reward or disbursement for or in respect of any business matter or thing done by the person in connexion with the matters aforesaid."
In Sanderson's case[8] Cussen J considered the forerunner to s.111 and stated:
"I do not think it is advisable that I should endeavour to lay down any precise rule as to when a person acts as a solicitor, nor do I say that, merely because a person does a thing usually done by a solicitor, but which may be done by someone else, he will be guilty of an offence under s.87; nor do I wish to decide at present that if he merely professes to be a solicitor, but does no act in pursuance of that pretence he will be guilty of an offence under the section …
What I do decide is that if a person does a thing usually done by a solicitor and does it in such a way as to lead to the reasonable inference that he is a solicitor – if he combines professing to be a solicitor with actions usually taken by a solicitor – I think he then does act as a solicitor."[9]
[8]Re Sanderson: Ex parte Law Institute of Victoria [1927] VLR 394
[9]Ibid at 396 – 397
In Cornall v Nagle[10] JD Phillips J referred to the ancient history of these sections. He further stated:
"Section 111 first makes a like provision to s.90 in that it proscribes 'acting as a solicitor'. But then it proceeds to enjoin the doing of a number of things to do with the conduct of litigation. All these things are not to be done by the unqualified 'as such solicitor', an expression to which some effect must be given. In Hubbard Association at 794 McInerney J said on that account that s.111 prohibited the unqualified 'assuming to act as a solicitor'. On appeal, the Full Court said that s.111 did not 'purport to deal with an appearance before the court by an unqualified person when he is not purporting to act as a 'solicitor, but for example as a spokesman': Hubbard Association of Scientologists International v Anderson & Just [1972] VR 340 at 342. …
All this suggests that the conduct which s.111 proscribes if done by an unqualified person 'as such solicitor' is not forbidden if done by the unqualified otherwise than as a solicitor – that is, when not 'assuming to act as a solicitor'. Of course, if that argument were pushed too far, it would become circular and leave the section of little use. In the present case, it is sufficient (at least so far as s.111 is concerned) to follow the lead of the House of Lords in Waterlow[11] and look to see what is required by Rules of Court to be done only by a solicitor. If some step in a proceeding is required to be done only by the party or his solicitor, then, if that step is taken by someone who, not being the party himself, is not admitted and enrolled, that person will necessarily be acting as a solicitor – and in my view acting 'as such solicitor' within the meaning of s.111."[12]
[10][1995] 2 VR 188
[11]Law Society of the United Kingdom v Waterlow Brothers and Layton (1883) 8 App Cas 407
[12]Above at 200-201
His Honour went on to elaborate his conclusions with respect to s.111 and then turn to s.93. Having traced the history of that provision he stated:
"Not dissimilar provisions to s93 of the LPPA may be found in many jurisdictions, but the wording not uncommonly varies as to detail. For instance, in Victoria the only document now referred to is an "instrument", but the prohibition is against drawing, filling up or preparing the instrument - as too in New South Wales; in other places, the prohibition may still be only against "drawing or preparing". Again, in Victoria, where the onus on the question was reversed by an amendment to s93 in 1966 … the concept of fee, gain or reward is expanded by the phrase "direct or indirect"; whereas before 1946, that qualification was attached to the drawing or preparation of the document … In Western Australia, that phrase, or its adverbial equivalent, is now attached to both the fee, etc and the drawing, etc. … Such variations require that some care be taken when looking to cases in other jurisdictions; for where differences exist in the wording of the prohibition, they may be significant."[13]
[13]Ibid at 203 – 204
His Honour went on to observe:
"In other jurisdictions, where the legislation has been in a different form, there have been decisions on the completion of precedent forms, in which the filling up of the document has sometimes been dismissed as merely "clerical" or "ministerial" and on that ground not a contravention of the relevant statute; see, for example, Barristers' Board of Western Australia v Tranter Corporation Pty Ltd [1976] WAR 65 (contract of sale of land), Barristers' Board v Palm Management Pty Ltd [1984] WAR 101, Barristers' Board v Marbellup Nominees Ltd [1984] WAR 335 (a superannuation and other trust deeds and incorporation of shelf company); and see also, in Canada, the cases on the incorporation of companies, such as Ott, Mitchell and Nicholson to which I refer below. Perhaps these decisions are distinguishable because of the differences in the legislation; for instance, in all those cases the local prohibition was against (only) "drawing or preparing" documents and in the Canadian cases it appeared as a part of the prohibition on "acting or practising as a solicitor", while, in the Western Australian cases, the relevant prohibition was in the same sentence as the prohibition on unqualified persons acting in "the administration of law"."[14]
[14]Ibid at 204–205
His Honour went on to analyse further authority bearing on the question whether the defendant in that case had drawn, filled up or prepared documents of the relevant class within the meaning of the then s.93. His Honour further accepted that if a person did that which was expressly required by the Act to be done exclusively by a duly qualified practitioner, then that person would necessarily thereby be "acting as a solicitor" contrary to the prohibition in s.90.
His Honour then turned to consider the broader ambit of s.90(1). He observed:
"In my opinion, the giving of legal advice, at least as part of a course of conduct and for reward, can properly be said to lie at or near the very centre of the practice of the law, and hence of the notion of acting or practising as a solicitor, which is itself central to s90. If the public is to be adequately protected from those lacking relevant qualifications, then, in the context of a regulated legal profession, the giving of legal advice professionally is, I think, to be regarded as exclusively the province of those properly trained in the law and having the necessary expertise."[15]
[15]Ibid at 209
In consequence his Honour concluded s.90 should be taken to encompass the giving of legal advice, at least in circumstances where there is a course of conduct involving the giving of that advice for reward. He then reviewed authority supporting this conclusion.
Ultimately he stated:
"Nevertheless, I think that it should be taken now as established by the foregoing cases that, where the giving of legal advice is concerned, the public are to be protected from the untrained and the unqualified with the result that the task will ordinarily be regarded as the exclusive province of the professionally trained and duly qualified. In Victoria, the means of achieving that control is, I think, the prohibition in s90 of the Act. It follows that if one set himself up, although without any legal qualifications, as competent to give legal advice in matters affecting rights and obligations under the law and then indulged in a course of conduct involving the giving of such advice for reward, then that conduct would necessarily involve a contravention of the prohibition on "acting or practising as a solicitor" which s90 contains.
Based upon the foregoing, I conclude that a person who is neither admitted to practise nor enrolled as a barrister and solicitor may "act or practise as a solicitor" in any of the following ways:
(1)by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor. This is the test in Sanderson.
(2)by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner. Examples of such prohibitions in a statute are s.93 and s.111 of the LPPA.
(3)by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law. For present purposes, it is unnecessary to go beyond the example of the giving of legal advice as part of a course of conduct and for reward.
While in the first of these three, the conduct is forbidden in circumstances only where the inference is justified that the actor is a solicitor, it is surely otherwise in the other two cases. If something be the exclusive province of a duly qualified lawyer, then it is the doing of the act by someone not so qualified that will constitute the offence and, in such circumstances, it can scarcely matter that the actor states plainly that he is not a qualified lawyer: see, for example, R v Woods [1962] OWN 27. In the instant case, if and in so far as the defendant Nagle indulged in conduct which was positively proscribed to all but a qualified person, then I think he did "act or practise as a solicitor", even if (about which I think there remains some doubt) he professed to be acting only as an "attorney under power" and did not represent that he was qualified as a solicitor. The test has been very recently put quite shortly - but nonetheless comprehensively - by Potter J in Piper Double Glazing Ltd v DC Contracts (1992) Ltd [1994] 1 All ER 177 at 183 in words that appear to me apt here:
'An unqualified person does not "act as a solicitor" within the meaning of s25(1) [of the Solicitors Act 1974] merely by doing acts of a kind commonly done by solicitors. To fall within that phrase, the act in question must be an act which it is lawful only for a qualified solicitor to do and/or any other act in relation to which the unqualified person purports to act as a solicitor...'
In the latter part, this statement echoes the words of Cussen J in Sanderson. For the rest, it turns on what is required by law to be done only by a legally qualified practitioner and, as such, the statement contains the more general principle which I have suggested is equally relevant to s90(1)."[16]
[16]Ibid at 210–211
It can be seen that the careful analysis contained in the judgment of JD Phillips J demonstrates:
(a)that the "common law learning" referred to in the explanatory memorandum to the Practice Act, in part carefully distinguishes the terms of different legislation;
(b)that s.314(1) of the Practice Act may be regarded as broadly equivalent to the former s.90(1) of the 1958 Act and that it was not supplemented by an equivalent to s.93 specifically dealing with the drawing of a specified class of instruments; and
(c)that the notion of engaging in legal practice potentially includes each of the three classes of activity identified by his Honour as conduct by which a person may "act or practise as a solicitor".
Incidental Legal Advice
A person will not engage in legal practice if advice is given which although relating to legal requirements, is truly incidental to the conduct of another occupation.
Thus accountants and other professionals may give opinions on questions of mixed fact and law falling within their expertise. This concept is elucidated in the judgment of Kenny JA in Felman. Her Honour quoted from the reasons for judgment of JD Phillips J in Cornall v Nagle[17] and then observed:
"It is clear from this latter passage (and indeed from the context of the case) that his Honour was not saying that any person who, in the lawful pursuit of an occupation other than law, gives advice (for reward) on matters lying within his or her area of occupational expertise necessarily acts as a solicitor or a legal practitioner simply because the advice involves the expression of an opinion about the requirements of relevant legislation, statutory rules or the like. A person who, in his or her capacity as a tax agent, customs agent or migration agent, proffers advice which touches such matters, does so on account of his or her knowledge of and experience in the fields of taxation, customs, or migration (as the case may be). In this regard, he or she is in no different a position from anyone else who, in the pursuit of an occupation, advises upon a matter within and by virtue of his or her expertise, as, for example, an architect who advises upon the legal ramifications of his proposed design. Pursuing Phillips J.'s approach, the giving of advice in the course of carrying on an occupation other than a solicitor's (or legal practitioner's) would not fall within either limb 1 or limb 3 of his Honour's test. (Limb 2 is not presently material.) The advice would not, in the circumstances, be given in such a way as to justify the inference that it was given by a solicitor, as required by limb 1, and it could not be said that, in order to protect the public, it had to be given by a lawyer, as required by limb 3. For much the same reasons, the preparation, as an accepted part of an occupation, of a document giving rise to legal rights and obligations would not fall within either limb."[18]
[17]Above at 210
[18]Above at 350
This concept may have incidental application to the area of conveyancing. Thus a surveyor may certify as to the dimensions of land by reference to a certificate of title or an environmental auditor may certify that land complies with applicable environmental standards.
The concept does not, however, resolve the fundamental question at issue in this case. A conveyancer is not engaged in a different area of occupational expertise from a lawyer. A conveyancer is one who provides a limited part only of that category of services normally provided by a lawyer. A conveyancer provides no other category of services as distinct from tax agents, customs agents and other professionals. Thus the line of demarcation between a lawyer and a conveyancer is more akin to that between a medical practitioner and a nursing aide. Both are engaged in the provision of services within the same occupational sphere but only one is engaged in professional practice.
In my view conveyancing cannot be regarded as a separate occupation potentially involving the giving of incidental legal advice in the sense contemplated by Kenny JA in Felman. The question in the present case is simply whether the completion of s.32 statements crosses the line between conveyancing and legal practice.
Part 13 of the Practice Act
Part 13 of the Practice Act provided for some regulation of conveyancing business. Section 326 provided:
"326. Definitions
In this part –
'conveyancer' means a person, other than a current practitioner or interstate practitioner, who carries on a business in the course of which conveyancing work is carried out directly or indirectly for fee or reward;
'conveyancing work' means work, other than legal work, carried out in connection with the transfer or conveyance of a freehold or leasehold interest in land;
'legal work' means –
(a)the preparation of any document that creates, varies, transfers or extinguishes an interest in land; or
(b)the giving of legal advice."
Section 327 prohibited the employment or engagement of a proscribed class of persons in conveyancing business.
Section 328 provided that the Board in the first instance and this Court on appeal may authorise exceptions to s.327.
Section 329 required persons disqualified by s.327 to so inform prospective employers.
Section 330(1) required a conveyancer to disclose whether he or she held insurance that covered them against civil liability in connection with conveyancing work:
(a) in every public document of the conveyancer; and
(b)in a conspicuous place on the outside of every place at which the business was carried on and accessible to the public.
Section 330(2) required written notice to be given to a prospective client:
(a) indicating
(i)whether or not the conveyancer held insurance that covered the conveyancer against civil liability in connection with conveyancing work carried on in the course of their business; and
(ii)if the conveyancer held insurance the amount of cover and any relevant exclusions or limitations on the cover; and
(b)if the conveyancer intended to retain a legal practitioner or firm to perform legal work in connection with the transaction, indicating the name and address of that practitioner or firm; and
(c)if not, indicating that the conveyancer was not authorised to perform legal work.
It is to be observed that the regulation of conveyancers by these provisions was limited. In particular there was no requirement for qualifications or accreditation of conveyancers.
Nevertheless, it is plain the Practice Act did envisage that conveyancing work might be carried out by conveyancers, i.e. persons who are not qualified legal practitioners. If it were not so Part 13 would be superfluous.
Further, it is clear that the definition of "conveyancing work" embraced work which is commonly done by solicitors, but limited the ambit of such work to exclude "legal work" as defined.
Likewise, Part 13 as a whole and s.330 in particular contemplated and required that conveyancers would not purport to act as solicitors. They would not do things usually done by a solicitor in a way that gave rise to the reasonable inference the conveyancer was a solicitor. In particular s.330(2)(b) and (c) required written notice to be given to a client whether a conveyancer intended to retain a legal practitioner to perform legal work in connection with the transaction and if not so indicating that the conveyancer was not qualified to perform legal work.
Subject to some minor changes Part 13 is substantially reproduced in Chapter 7 of the Profession Act. However, unlike the Practice Act, Part 7.1 of the Profession Act which contains the relevant provisions, is expressly headed "Regulation of Conveyancing Businesses". Reference to this heading may be had regard to pursuant to ss.35–36 of the Interpretation of Legislation Act 1984.
The defendants submit that Part 13 of the Practice Act and Part 7.1 of the Profession Act provide a complete code of the obligations of conveyancers. It is submitted that what is expressly permitted by s.326 of the Practice Act and 7.1.1 of the Profession Act cannot be held to be contrary to s.314 of the Practice Act and s.2.2.2 of the Profession Act.
The Institute submits that the sections commencing the relevant provisions make it clear that the definitions they contain apply "in this Part" and do not derogate from the general limitation on the right to engage in legal practice, found in another "Part". Further, there is no express permission given for conveyancing businesses. As the arguments were developed, however, it is apparent that the positions adopted by the parties on this point are not decisive of the issue between them. This is because the central contention made on behalf of the Institute is that the preparation of s.32 statements for reward implicitly involves the giving of legal advice. As such it would constitute engaging in legal practice within the meaning of the general provision of the successive Acts prohibiting such conduct by unqualified persons, and it would also constitute legal work within that part of the legislation regulating conveyancing businesses.
Having said this, and bearing in mind that I am at heart concerned with an alleged breach of the Practice Act, I have ultimately come to the view that the heading contained in the Profession Act namely "Regulation of Conveyancing Businesses" does tend to support the view that conveyancing work other than legal work as defined may be carried out by a conveyancer in connection with the transfer or conveyance of a freehold or leasehold interest in land. To my mind the heading is indicative not of some incidental provisions but of an intention to provide a comprehensive scheme of regulation for conveyancing businesses.
I turn then to the central contention identified above namely that the purpose of s.32 statements for reward implicitly involves legal advice and should therefore be regarded as engaging in legal practice.
Section 32 of the Sale of Land Act 1962
At common law it was necessary for a vendor of land to disclose defects of title at the time of contract to avoid the possibility that the purchaser might object to such defects once they became apparent. Williams on Title (4th ed.) states:
"A contract for the sale of land is not a contract uberrimae fidei in which there is an absolute duty upon each party to make a full disclosure to the other of all material facts within his knowledge. In fact, although it is convenient and usual to speak of a duty to disclose, the real duty in law is the vendor's obligation to make good title, or, if he has by special condition limited the title he is required to make, it is then to provide a title in accordance with the contract."[19]
[19]at p.94
The Sale of Land (Amendment) Act 1982 was passed to implement the recommendations made by the Dawson Committee of Inquiry into Conveyancing Practice in Victoria. In his second reading speech the Attorney-General stated:
"The second substantial change to conveyancing practice effected by the Bill is to provide for the principle of caveat vendor, that is, that vendors of land are under an obligation to supply sufficient information relating to the property to a purchaser prior to obtaining the signature to a contract of sale. Under the present law, the conveyancing proceeds on the principle of caveat emptor, that is the onus is placed on the purchaser to make his own searches concerning the property in question. Furthermore under the present clause there is no obligation upon the vendor to provide any information, except as to latent defects of title or quality, if the purchaser does not see it."
Section 32 of the Sale of Land Act 1962 provides that a vendor under a contract for the sale of land must (a) give to the purchaser before he signs the contract a statement signed by the vendor; (b) include in the contract a statement containing matters specified in the section; and (c) attach copies of the relevant documents to the statement.
The matters required to be stated include in summary pursuant to s.32(2):
(a) relevant mortgage particulars;
(aa) particulars of any relevant statutory charge,
(b)a description of relevant easements, covenants or other similar restrictions;
(c)particulars of relevant planning controls;
(ca)a warning as to the potential impact of planning controls;
(cb)a warning as to the potential impact of commercial agricultural production;
(d)particulars of rates and similar outgoings affecting the land;
(e)particulars of any notice affecting the land given under the Land Acquisition and Compensation Act 1986 ("the LAC Act");
(ea)a list of services connected to the land;
(eaa)particulars of sub-standard water supply or sewerage service;
(eb)a warning to the effect purchasers should check with the appropriate authority covering the supply of essential services not connected to the land;
(ec)a statement if no access is available to the property by road;
(f)information relating to terms contracts;
(g)particulars of vendors insurance;
(h)particulars of relevant body corporate fees;
(i)particulars of any current land use restriction under the Agricultural and Veterinary Chemicals (Control of Use) Act 1992 due to contamination.[20]
[20] Section 32(1)(A) requires further particulars relating to residential land in respect of:
Section 32(3) requires relevant title documentation to be attached to the s.32 statement.
Section 32(4) provides that where information required by paragraphs (c), (d) or (e) of sub-section (2) is contained in a certificate issued by the relevant authority, provision of the certificate will be sufficient compliance with the sub-section.
Section 32(5) provides that if false information is supplied in the statement or certificates required by the section, or there is a failure to supply information required by the section, the purchaser may rescind any contract for the sale of land which has been entered into on the basis of the information supplied, at any time before the purchaser accepts title and becomes entitled to possession or the receipt of rents or profits.
Section 32(5)(A) governs the situation where a notice of intention to acquire land has been served under s.6 of the LAC Act.
Section 32(6) makes it an offence for a vendor to knowingly or recklessly supply false information or fail to supply information required by the section.
Section 32(7) provides a proviso to s.32(5) in specified circumstances.
Section 32(8) provides that the section cannot be excluded, modified or restricted by contract.
Section 32(9) provides for exceptions in the case of consecutive contracts between the same parties on substantially similar terms.
As the Institute submitted, non-compliance with s.32 has serious consequences for a vendor. In particular, innocent non-compliance gives the purchaser the right to rescind pursuant to s.32(5).[21]
[21]See also s.32(6) as to knowing or reckless non-compliance.
Facts in the Present Case
The first defendant has both practical background and academic training in conveyancing. She has undertaken several initial extended periods of work involving participation in conveyancing transactions in the capacity of a legal secretary. She has also undertaken studies at RMIT University with respect to conveyancing practice, property law, and land contracts as part of a Business Studies (Law) course.
In 1995 she commenced full time employment as a conveyancer for a firm of solicitors and a related conveyancing business known as "AAA1 Conveyancing Services". Since that time she has carried on the occupation of conveyancer.
The second defendant was initially incorporated by a firm of solicitors in 1997 to conduct a conveyancing business with legal assistance being provided by the solicitors firm. The business utilised precedent documents supplied by a solicitor of that firm.
The business was acquired by the first defendant together with another person and since 2001 has been conducted by the first defendant alone. The business has utilised a computer software program and precedents approved by solicitors.
The s.32 statement forming the basis of this proceeding first aroused interest upon its receipt by the solicitor acting for another party to the transaction, because it contained extraneous matters, namely contractual terms. In so doing however, I am satisfied it did not evidence a practice which is likely to continue.
The first defendant has further deposed to the circumstances in which she completed the s.32 statement giving rise to this proceeding. She says that she completed some parts only of the statement which was otherwise completed by the client. She says she was personally aware of the relevant planning controls and completed information in the statement relating to such controls from her own knowledge.
She says further that she completed information with respect to the provision of services to the property partly from information provided by the client's son and partly from documents obtained from Yarra Valley Water.
She was advised by the client's son that there were no building approvals, guarantees or insurance. She made the necessary deletions to the s.32 statement accordingly.
This evidence demonstrates that the extent to which a conveyancer may exercise judgment with respect to a s.32 statement may vary materially with the facts of a transaction.
It is further the first defendant's evidence that she does not give legal advice and there is no suggestion that she has failed to comply with s.330(2) of the Practice Act or purported to act as a solicitor or legal adviser. She deposes that her clients are well aware and informed that she is not a solicitor and only operates a conveyancing company. She notified her client in the present case that a legal practitioner was retained to perform legal work in connection with the transaction.
She deposes that if she were required to refer every s.32 statement to a solicitor on an individual basis, the costs involved would severely affect her business.
Legal Advice
The Institute contends that the completion of a s.32 statement necessarily involves the giving of express or implied legal advice and therefore constitutes legal work as defined by s.326 of the Practice Act and the equivalent provision of the Profession Act. More fundamentally it would involve engaging in legal practice because the giving of legal advice is something which is required to be done only by those who have the necessary training and expertise in the law, in order that the public be protected.[22] It submits that the preparation of a s.32 statement will always constitute the practice of the law, such that it can only be undertaken by a legally qualified person.
[22]The third category identified by JD Phillips J in Nagle.
I accept that the completion of a s.32 statement may involve the giving of legal advice, but in my view the Institute could not be entitled to an injunction restraining the defendants from the preparation of s.32 statements unless it can demonstrate that the preparation of such statements will always involve the giving of legal advice or at the very least there is a real and substantial probability that the defendants will in fact engage in the preparation of s.32 statements in circumstances involving the giving of legal advice.
The Institute places particular reliance on the decisions of Ipp J in Attorney-General (WA) v Quill Wills Ltd[23] and Heerey J in Australian Competition and Consumer Commission (ACCC) v Murray[24]. Both cases concerned "do it yourself" will kits. In Quill Wills the defendant had attempted to setup a business to sell "will making franchises". A client would be offered a bank of clauses from which they would choose to form a valid will. Ipp J concluded that the Quill Wills system involved the giving of legal advice. His Honour stated:
"The overall effect of the system is an attempt to apply the facts (that is, the wording of the particular clauses concerned, and the potential combinations thereof) to the law of wills, followed by the formulation of a conclusion, namely that the will will be valid. That is, in essence, the process by which legal advice is given."[25]
[23](1990) 3 WAR 500
[24](2002) 121 FCR 428
[25]Above at 509
In ACCC v Murray the defendant was the director of the Will Writers Guild Pty Ltd. The company provided licenses to carry on a business of providing wills to members of the public. The licensee would then sell "do it yourself" will kits. The licensee would also be present when the customer prepared and executed the will and would direct the customer through the process. The company argued that the licensees did not give legal advice, but rather the customers prepared their own wills. This submission was rejected by Heerey J:
"It was an essential element of the modus operandi that the licensee be physically present at the customer's home or other convenient location. The object of the licensee's attendance on that occasion was not just the giving of abstract information as to legal rules, or the handing over of documents or forms, but the production of a valid will appropriate to the individual circumstances of the customer: ... This is the essence of legal practice, the advising of a particular person in a particular situation and the production of a document which affects legal rights and which is tailored to the particular needs of that person."[26]
[26]Above at [94]
The Institute submits that assistance with the creation of a will is analogous to a s.32 statement as both involve the use of pre-prepared forms or systems to create legal documents.
In my view, however, there is a fundamental difference between the completion of a s.32 statement and the making of a will. A will is intended to effect a change in legal relationships. The preparation of a will necessarily carries with it implied advice that the document is effective to realise the intentions of the testator in this regard. Significantly a central part of Ipp J’s reasoning in Quill's Wills was that the use of the will kit would result in a valid will be being brought into existence.[27]
[27]Attorney-General (WA) v Quill Wills Ltd (1990) WAR 500 at 509.
Conversely, a s.32 statement is essentially an information statement, preliminary to a conveyance. It does not purport to effect a change in legal relationships, it states information concerning the property which a vendor wishes to sell.
It may be objected that the information provided involves questions of mixed fact and law. Thus a statement as to the zoning of land or as to rates owing with respect to the property, although commonly answered by reference to certificates provided by the relevant authority, ultimately involves questions of mixed fact and law.
In my view, however, it would be entirely artificial to regard the making of such statements as necessarily involving the giving of legal advice. Questions of zoning are ascertainable by reference to the relevant planning scheme provisions. Interpretation of the relevant ordinance and maps is not essentially the work of a lawyer. Indeed it may well be that in cases of difficulty it is better undertaken by a town planner or a surveyor. Likewise, the quantum of rates owing with respect to a property is fundamentally a question of accounting.
It is, however, further submitted that specific components of the information required to be provided in a s.32 certificate necessarily involve the exercise of legal expertise incidental to the provisions.
In particular the Institute emphasised in argument the initial requirement contained in s.s.(2) that the statement contain:
"(a)particulars of any mortgage (whether registered or unregistered) over the land, which is not to be discharged before the purchaser becomes entitled to possession or to the receipt of rents and profits, including the particulars specified in schedule 1;"
In the present case the s.32 statement forming the basis of the proceeding did not disclose the land was subject to any mortgage whatsoever. It further contained a note referring to the relevant statutory requirement.
I accept that in some circumstances the provision of the relevant particulars may involve the giving of legal advice. Thus it is possible that such advice may be necessary to respond to particular circumstances in which some real question arises as to whether land is subject to a mortgage, of the class referred to.
It can be seen, however, that the ambit of such circumstances would not extend to situations where:
(a) no mortgage affects the land[28]; or
(b)no doubt exists that a mortgage of the requisite character affects the land.
[28]As appears to have been the present case.
The Institute's case is that in ascertaining whether a question of law arises the conveyancer necessarily enters into the giving of legal advice.
I do not agree. In my opinion if a conveyancer asks his or her clients simple questions such as: "Is the land subject to a mortgage?", then the conveyancer will either identify facts giving rise to a live question of law or not. Acceptance of and response to the information provided by a client will not necessarily involve the giving of legal advice. Like reasoning applies to the requirements of s.32(2)(aa) and (b). In any particular case questions may or may not arise as to the existence of statutory charges, or easements, covenants or other restrictions affecting the land. In turn, the completion of the s.32 statement may or may not involve the giving of legal advice in response to such questions, but in many cases it will not because the facts presented to a conveyancer will not raise the possibility of such issues.
Likewise, in my view, a conveyancer who makes inquiries of a client by reference to questions formulated by a solicitor in the form of a computer program will not necessarily engage in the giving of legal advice in responding to the answers. To the contrary, if the answer gives rise to any doubt as to the legal position, the conveyancer may decline to formulate a statement in answer to the question and require the client to take it to a solicitor.
In the present case I have no reason to reject the defendants' position that the first defendant will at all times seek legal advice with respect to matters requiring such advice.
The ultimate issue for this Court is whether the defendants will engage in legal practice having regard to their disclosed intentions.
Accordingly, although I accept the submission of counsel for the Institute that the completion of a s.32 statement may well give rise to the giving of legal advice in particular circumstances, I do not accept that it will necessarily do so. Nor am I satisfied that the evidence before the Court establishes that a real and substantial risk exists that completion of such statements by the defendants will do so, such as to justify an order precluding the defendants from preparing s.32 statements.
In this regard it is relevant that the Act provides a remedy by way of criminal prosecution for individual breaches of the relevant provisions. There is no reason to suppose this remedy will be ineffective to suppress individual instances of legal work by conveyancers.
It is only if the completion of the s.32 statement does in fact involve the giving of legal advice that the conveyancer will fall within the categories identified by JD Phillips J in Nagle. The completion of the statement does not "justify a reasonable inference that the person doing it is a solicitor", as conveyancers regularly perform such tasks and expressly disclaim being solicitors. Further, it does not involve the performance of an act that is positively proscribed by legislation unless done by a duly qualified solicitor.[29] Lastly, unless the completion of the statement in fact involves the giving of legal advice it could not be said that the defendants were performing an act which, in order to protect the public, should only be done by those who have the necessary legal training.
[29]The completion of a s.32 statement is not the filling in of a proscribed class of document.
Unless there is a real and substantial risk that the conveyancer will give legal advice, the plaintiff must fail. First, the injunction sought would in terms restrain conduct which is lawful, namely the making of s.32 statements in circumstances not involving the giving of legal advice. Secondly, the plaintiff has not established on the balance of probabilities that the defendants will in fact engage in legal practice in the future. Thirdly, insofar as the plaintiff has identified the possibility that the defendants may give legal advice, the injunction sought would occasion disproportionate hardship to the risk in issue. Fourthly, I am not satisfied the remedy of prosecution is inadequate in the event such risk eventuates.
Insofar as the law gives rise to any continuing uncertainty in the situation as I have analysed it, this is a question for Parliament to address as it see fit.
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·Building permits
·Relevant guarantees under the House Contracts Guarantee Act 1987
·Relevant insurance under the Building Act 1993 (s.32(10) provides a further deeming provision in relation to such insurance).
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