Legal Practice Board of Western Australia v Fazio
[2018] WASC 147
•4 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA -v- FAZIO [2018] WASC 147
CORAM: PRITCHARD J
HEARD: 4 APRIL 2018
DELIVERED : 4 APRIL 2018
FILE NO/S: CIV 1946 of 2017
BETWEEN: LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Plaintiff
AND
ARTURO SALVATORE FAZIO
Defendant
Catchwords:
Legal practitioners - Application for an injunction restraining conduct in contravention of the Legal Profession Act 2008 (WA) - Where not an Australian legal practitioner - Whether work engaged in was legal practice - Whether work engaged in was in connection with the administration of law - Whether work engaged in was in relation to any proceedings at law - Whether representation of an entitlement to engage in legal practice was made
Legislation:
Legal Profession Act 2008 (WA), s 585
Result:
Injunction granted
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr R J Nash |
| Defendant | : | No Appearance |
Solicitors:
| Plaintiff | : | Legal Practice Board of Western Australia |
| Defendant | : | No Appearance |
Case(s) referred to in decision(s):
Attorney-General v Quill Wills Pty Ltd (1990) 3 WAR 500
Barristers' Board v Marbellup Nominees Pty Ltd [1984] WAR 335
Barristers' Board v Palm Management Pty Ltd [1984] WAR 101
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Dean v Legal Practice Board [2015] WASC 260
Dean v Legal Practice Board [2016] WASCA 63
Legal Practice Board v Heedes [2004] WASC 260
Legal Practice Board v Said [2002] WASC 35
Legal Practice Board v Taylor [2005] WASC 242
Legal Services Commissioner v Walter [2011] QSC 132
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449
PRITCHARD J:
(These reasons were delivered extemporaneously on 4 April 2018 and have been edited from the transcript.)
This is an application by the Legal Practice Board (Board) by an originating summons dated 8 June 2017. The Board seeks a permanent injunction to restrain the defendant, Mr Fazio, from engaging in legal practice in contravention of s 12(2) of the Legal Profession Act 2008 (WA) (LP Act), or from representing an entitlement to engage in legal practice in contravention of s 13(1) of the LP Act in the State of Western Australia, when he is not an Australian legal practitioner.
The application is brought pursuant to s 585 of the LP Act. Subsection 585(1) provides that the Board may apply to the Court for an injunction in a variety of circumstances, including, relevantly for present purposes, if a person has engaged in conduct that constituted a contravention of the LP Act.
The Board's case is that Mr Fazio has engaged in conduct that constituted a contravention of s 12(2) of the LP Act, in that he engaged in legal practice in Western Australia, despite not being an Australian legal practitioner, and that he engaged in conduct that constituted a contravention of s 13(1) of the LP Act, in that he represented that he was entitled to engage in legal practice, despite not being an Australian legal practitioner.
I am satisfied that the Board has served Mr Fazio with notice of this application. On 5 December 2017, the Master dispensed with the requirement for personal service of the originating summons and ordered that service be effected by substituted service, namely by serving a copy of the originating summons and the supporting affidavits on Mr Fazio at an email address which it was understood that he used. An affidavit sworn by Mr Denis Barich on 6 December 2017 established that Mr Fazio was served by email with that material in accordance with the Master's orders on 5 December 2017.
Mr Fazio has not entered an appearance in response to the originating summons, and he has not appeared at the hearing of the application today.
For the reasons which follow, I will make an order granting permanent injunctive relief as sought by the Board. I will return to the precise terms of the order later in these reasons.
In these reasons, I deal with the following matters:
1.The Court's power to grant injunctive relief under s 585 of the LP Act;
2.The evidence on which the Board relies in support of the application;
3.The Board's allegation that Mr Fazio has engaged in conduct that constituted a contravention of s 12(2) of the LP Act;
4.The Board's allegation that Mr Fazio has engaged in conduct that constituted a contravention of s 13(1) of the LP Act;
5.Why the grant of an injunction is warranted in the exercise of the Court's discretion; and
6. The orders which will be made.
The Court's power to grant injunctive relief under s 585 of the LP Act
The Court's power to grant relief in the nature of injunctive relief (in addition to its inherent jurisdiction to grant such relief) in this case derives from s 585(2) of the LP Act, which provides that:
On an application under subsection (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.
In order to establish the basis for the grant of such an injunction, the Board must demonstrate that the person the subject of the proposed order has engaged, is engaging, or is proposing to engage in one or more of the various kinds of conduct set out in s 585(1). In the present case, as I have said, the Board alleges that Mr Fazio has engaged in conduct that constituted a contravention of s 12(2) of the LP Act and conduct that constituted a contravention of s 13(1) of the LP Act.
Although conduct engaged in in contravention of those sections could constitute a criminal offence, the standard of proof required to establish the basis for the grant of injunctive relief in the present instance is clearly the civil standard of proof. However, because the nature of the allegations on which the Board relies to support its claim for the grant of injunctive relief is conduct that would be capable of constituting a criminal offence, it is appropriate to bear in mind what was said in Briginshaw v Briginshaw.[1] That is, the Court must feel an 'actual persuasion' of the occurrence or existence of the relevant facts in determining whether or not conduct of the kind alleged has been proved.[2] I approach the Board's application, and the evidence on which it relies, bearing in mind that understanding of the application of the civil standard of proof in this case.
[1] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[2] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361 - 362; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449, 450 (Mason CJ, Brennan, Deane and Gaudron JJ).
Returning to the basis on which injunctive relief may be granted, if the Court is satisfied that Mr Fazio has engaged in conduct that constituted a contravention of the LP Act, as the Board alleges, the Court must then consider whether the grant of relief is warranted in the exercise of its discretion. That was the approach to the application of a similar legislative provision taken by the Queensland Supreme Court,[3] and in my view, constitutes the appropriate approach to the application of s 585.
[3] Legal Services Commissioner v Walter [2011] QSC 132.
The evidence on which the Board relies in support of the application
The Board relies on the affidavit of Ms Elizabeth Fulham sworn 8 June 2017; the supplementary affidavit of Ms Elizabeth Fulham sworn 8 June 2017; an affidavit of Ms Erit David sworn 23 May 2017; an affidavit of Ms Helen Jovanovic sworn 19 May 2017; and an affidavit of Mr Denis Barich sworn 22 November 2017. (The latter affidavit was relied upon by the Board in respect of its application for substituted service which was heard by the Master, and to which I have already referred.)
The Board's allegation that Mr Fazio has engaged in conduct that constituted a contravention of s 12(2) of the LP Act
Subsection 12(2) of the LP Act provides that:
A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.
Subsection 12(2) reflects the position that under s 35 of the LP Act, an Australian legal practitioner is, subject to the LP Act, entitled to engage in legal practice in this jurisdiction. Subsection 12(2) makes clear that it is only an Australian legal practitioner who is entitled to engaged in legal practice in Western Australia.
The term 'legal practice' is not defined in the LP Act. It is not necessary to canvass exhaustively what that term may mean. The legislative context, including s 12(3) of the LP Act, clearly supports the conclusion that 'legal practice' is a broad term which encompasses the sorts of activities referred to in s 12(3) of the LP Act (albeit that the particular instances of legal work set out in s 12(3) are not covered by the prohibition in s 12(2) of the LP Act). Relevantly, 'legal practice' encompasses doing 'legal work'.
Both that legislative context, and authority, support the view that 'legal practice' clearly includes undertaking 'legal work', as that term is described in s 12(1) of the LP Act. It has been accepted that to engage in 'legal practice' includes engaging in or undertaking 'legal work' as defined in the LP Act.[4] Subsection 12(1) defines 'legal work' as:
(a)any work in connection with the administration of law; or
(b)drawing or preparing any deed, instrument or writing relating to or in any manner dealing with or affecting -
(i)real or personal estate or any interest in real or personal estate; or
(ii)any proceedings at law, civil or criminal, or in equity.
[4] Dean v LegalPractice Board [2015] WASC 260 [88] (Martino J). This decision was subject to an appeal (in Dean v Legal Practice Board [2016] WASCA 63), but nothing in the appeal casts doubt on Martino J's observations on this point.
In Barristers' Board v Palm Management Pty Ltd, Brinsden J equated the phrase 'administration of the law' (as it appeared in a similar legislative context to this case) to the practice of the law, and held that it includes: [5]
the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court
and:
if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law.
[5] Barristers' Board v Palm Management Pty Ltd [1984] WAR 101, 107 (Brinsden J), quoting State ex rel Florida Bar v Sperry (1962) 140 So (2d) 587. See also Dean v Legal Practice Board [2016] WASCA 63; Attorney-General v Quill Wills Pty Ltd (1990) 3 WAR 500; Legal Practice Board v Said [2002] WASC 35; Legal Practice Board v Taylor [2005] WASC 242.
Furthermore, in Barristers' Board v Marbellup, Brinsden J observed that the phrase 'directly or indirectly perform or carry out or be engaged in any work in connection with the administration of the law' is
of wide import relating in the main to non-curial work of that character, and limited only by the exclusion of mechanical or clerical work not requiring technical or professional skill to attempt it nor exercise of judgment in the doing of it.[6]
[6] Barristers' Board v Marbellup Nominees Pty Ltd [1984] WAR 335, 340.
Subsection 12(3) of the LP Act, to which I have previously referred, provides that s 12(2) does not apply to engaging in legal practice of the kind set out in that subsection in the circumstances there described. I mention, for completeness, that none of those circumstances describe the conduct which the Board says was engaged in by Mr Fazio in this case.
The term 'Australian legal practitioner' is defined in s 5 of the LP Act to mean an Australian lawyer who holds a current local practising certificate (which is granted under pt 5 of the LP Act) or a current interstate practising certificate (which is defined in s 3 as a current practising certificate granted under a corresponding law).
The question then is whether the Board has produced evidence which establishes, on the civil standard of proof, bearing in mind the persuasion the Court must feel under the Briginshaw approach, that Mr Fazio is not an Australian legal practitioner; that Mr Fazio engaged in legal practice; and that he did so in Western Australia. The evidence clearly establishes to that standard that that was the case.
The Board relies on the affidavit evidence of Ms David and Ms Jovanovic, and on a supplementary affidavit of Ms Fulham, in support of this aspect of its case.
Ms Fulham deposed to her inspection of the Board's records of legal practitioners in Western Australia, and her inquiries of legal practitioner administrative bodies and professional bodies in every other state and territory in Australia. I should observe that those inquiries were made in relation to the names Arthur Samuel Heades, Arthur Samuel Heedes, and Arthur Samuel Fazio, which are names Mr Fazio has used in the past, as well as the name Arturo Salvatore Fazio. Those searches and inquiries revealed, and I find, that Mr Fazio - under that name, or any of the other names to which I have referred - has never been admitted to practice in Western Australia or in any other Australian jurisdiction, and is not, and has never been, the holder of a practising certificate in Western Australia or any other Australian jurisdiction. I find that Mr Fazio is not an Australian legal practitioner.
I accept the unchallenged evidence of Ms David. Ms David's evidence, relevantly, was that in May 2015, a friend put her in touch with a person she identified as a lawyer, namely Mr Fazio, to assist her in relation to a civil claim which had been brought against her, and which she eventually brought an application to dismiss, in the Magistrates Court. That claim arose from a dispute with a tradesman over a minor home renovation. Ms David contacted Mr Fazio, who, she deposed, told her that he 'practised as a lawyer and did not have an office, and worked from home, so he could charge less'.[7]
[7] Affidavit of Erit David sworn 23 May 2017 [7].
Ms David exchanged emails with Mr Fazio in relation to that litigation and emailed him a draft application to dismiss the claim against her, and a draft supporting affidavit. Mr Fazio then requested information, so he could amend the affidavit. He sent her copies of the rules of the Court applicable to its civil jurisdiction. Mr Fazio amended the application and the affidavit, which Ms David then filed in the Magistrates Court. He also provided Ms David with information about his billing arrangements. Mr Fazio engaged a private investigator to locate the other party in the Magistrate Court's proceedings. According to Ms David, Mr Fazio told her to keep his involvement in the case confidential.
Mr Fazio invoiced Ms David for his work in the sum of $1182.65. The services described in his invoice were:[8]
Management, advice and attendance upon various issues arising from the dispute [in the Magistrates Court], with a view to the location of holding [the other party] to full account for damages caused, plus the mitigation of ongoing damages.
[8] Affidavit of Erit David sworn 23 May 2017, annexure ED7.
The Magistrates Court subsequently dismissed Ms David's application to dismiss the claim against her. She deposed that the magistrate pointed out various problems with her application, which she subsequently conveyed to Mr Fazio and requested that he reimburse her the fees that he had charged.
Ms David also deposed that she made a counterclaim against the tradesman and obtained a default judgment in the Magistrates Court in respect of that claim. She then sought Mr Fazio's assistance in relation to a hearing to assess the amount of her claim. He provided her with advice on what evidence was required. Mr Fazio later drafted a supporting affidavit for the hearing on quantum, and advised her as to the quantum of her loss, which he advised was in excess of $21,000, which included the cost of his services.
Mr Fazio subsequently invoiced Ms David for this work, in the sum of $898.70 and $7,139.62. She paid all of these invoices. In respect of the latter invoice, Mr Fazio's invoice described the work done as being for professional services between 7 May 2015 and 25 May 2015, which were described as:[9]
Management, advice and attendance upon various issues arising from the dispute … with a view to the location of and holding [the other party] to full account for damages caused [and other matters].
[9] Affidavit of Erit David sworn 23 May 2017, annexure ED16.
Ms David attended at the Magistrates Court on 1 July 2015 at the hearing to assess her damages claim. The Court assessed her damages at $6,000 plus $154 in costs. It was at that hearing that Ms David learned that Mr Fazio was not a lawyer, as the magistrate informed her that she was not entitled to claim the cost of his services. Ms David deposed that she was shocked to discover that Mr Fazio was not a lawyer. When Ms David contacted Mr Fazio to convey what had occurred, his response was that the work he had performed was not legal work.
Ms David deposed that she had also asked Mr Fazio to assist her in a dispute with two real estate agents. On 18 May 2015, Mr Fazio provided her with an email he had prepared and sent to them on her behalf. That email alleged that one of the real estate agents had engaged in defamatory conduct and unlawful, tortious interference with the business of Ms David. The email referred to the possibility that Ms David may exercise her rights to commence proceedings under the Real Estate and Business Agents Act 1978 (WA), and to the prospect that she may commence proceedings in the Supreme Court for defamation and tortious conduct. The email demanded that the alleged tortious conduct cease.
I turn to Ms Jovanovic's unchallenged evidence, which I accept. Ms Jovanovic is a legal practitioner and is a claims consultant employed by an insurance company (the insurer). The following factual findings are drawn from Ms Jovanovic's affidavit.
In June 2016, Mr Fazio notified the insurer by email that he was acting on behalf of a party (the claimant) in relation to a public liability insurance claim against a Chicken Treat outlet in Western Australia. Mr Fazio advised that he had 'been asked to act for the claimant'. He signed the email in his own name for the claimant. The email header referred to 'Negligence and Breach of Duty of Care Claim'.
In June 2016, Mr Fazio engaged in correspondence with Chicken Treat's representatives and the insurer in relation to the claimant's claim.
In July 2016, the manager of the Chicken Treat store was served with a letter signed by the claimant, which also contained Mr Fazio's email address, an unfiled Magistrates Court general claim, and an unfiled statement of claim in the Magistrates Court. The letter advised that unless the claimant received 'a full and serious proposal to fully ameliorate the matters contained within the enclosed [documents, within a specified time]', then the claimant would commence proceedings.[10] The Court forms enclosed with that correspondence described the claimant's claim as one 'based upon tortious negligence and breach of a duty of care owed [with] collateral tortious issues aris[ing] out of deceit and or fraud', and sought a payment 'in the sum of $25,000 [plus] damages and interest'.[11]
[10] Affidavit of Helen Jovanovic sworn 19 May 2017, annexure HJ5.
[11] Affidavit of Helen Jovanovic sworn 19 May 2017, annexure HJ5.
In August 2016, Mr Fazio corresponded by email with the insurer in relation to the claim referred to in those documents, with which the insurer had been provided. In about September 2016, Mr Fazio sent the insurer an authority form, by which the claimant appointed Mr Fazio to act on her behalf in all matters relating to her claim.
During September 2016, Mr Fazio continued to correspond with the insurer in relation to the claimant's claim, providing a medical certificate and pay slips, amongst other things. On 14 September 2016, he wrote a letter to the insurer addressed from him at a business called 'Carpe Diem Advocacy', and which referred to an email address also used by Mr Fazio. In that letter, Mr Fazio stated that he acted for the claimant. The correspondence during this period referred to matters such as the total amount of the claim, and information required from the insurer, before the claimant could be in a position to consider whether to make an offer to settle the claim.
In October 2016, Mr Fazio emailed the insurer in relation to the claim, setting out particulars of various aspects of the claimant's claim, and also claimed $6,471.65 in costs, fixed to that date. Ms Jovanovic queried the claimed legal costs, given that formal proceedings had not been commenced and that Mr Fazio had provided virtually no medical evidence in support of the claimant's claim (apart from some medical certificates, which suggested that the claimant had been unable to work for two weeks which, based on her average earnings, amounted to a loss of under $900).
Later in October 2016, Mr Fazio requested a $10,000 advance from the insurer to cover the claimant's costs of a consultation with a Queen's Counsel. It was at that point that Ms Jovanovic contacted the Board to express her concerns about Mr Fazio's conduct in relation to the claimant's claim.
On 19 October 2016, Mr Fazio sent further correspondence to the insurer, including a copy of a letter dated 17 September 2016, from his address at Carpe Diem Advocacy and his email address. In that letter, he demanded that the insurer provide the claimant with a settlement offer. He also provided a copy of a doctor's request for an MRI scan for the claimant and his latest invoice, in the amount of $8,220.90. (The invoice was in the name of Carpe Diem Advocacy.) It referred to 'professional services … upon the foundation of an injury' and described those services as 'investigations … witness interviews, extensive attendance upon [the insurer, various regulatory bodies and practitioners] plus lodgement and management of claim to date.[12] It referred to billable hours, plus disbursements.
[12] Affidavit of Helen Jovanovic sworn 19 May 2017, annexure HJ18.
Having regard to the evidence of Ms David and Ms Jovanovic, I am satisfied that the Board has established, to the civil standard of proof, that Mr Fazio has engaged in legal practice.
The evidence establishes that Mr Fazio has given Ms David advice and counsel of a legal nature in relation to how to prosecute her claim and defend a claim against her in the Magistrates Court, how to seek a dismissal of a claim against her, and in relation to her claim for damages. That conduct, in my view, is clearly conduct which constituted legal work, in that it was work in connection with the administration of law.
The evidence establishes that Mr Fazio has drafted court documents, including a claim for the Magistrates Court and an affidavit in support of an application by Ms David to dismiss the claim against her. That work constituted legal work, in the sense of preparation of an instrument or writing relating to a matter involving proceedings of a civil nature, pursuant to s 12(1)(b)(ii) of the LP Act.
The evidence also establishes that Mr Fazio drafted and sent email communications on behalf of Ms David to the real estate agents, alleging tortious conduct or behaviour, threatening proceedings and demanding that the conduct cease. That conduct, in my view, constituted legal work, in that it was work in connection with the administration of the law, within s 12(1)(a) of the LP Act.
In relation to the claimant's claim against Chicken Treat, as described in Ms Jovanovic's affidavit, the evidence establishes that Mr Fazio purported to act for and represent the claimant in respect of that claim, made legal submissions to the proprietors of the Chicken Treat outlet and to the insurer in respect of that claim, and made submissions to the insurer in respect of the quantum of damages suffered by the claimant. In my view, that work clearly constituted legal work in the sense that it was work in connection with the administration of the law within s 12(1)(a) of the LP Act.
Furthermore, there was clearly evidence that Mr Fazio charged both Ms David and the claimant. No question arises as to whether he was doing the work as unpaid work, as described in s 12(4) of the LP Act.
In short, the evidence clearly establishes that Mr Fazio's conduct constituted work done in connection with the administration of the law, including the preparation of documents in civil proceedings, which is legal work as defined in s 12(1) of the LP Act, and which therefore constituted engaging in legal practice.
I am therefore satisfied that the Board has established that Mr Fazio engaged in conduct that constituted legal practice in Western Australia, and that he did so when he was not an Australian legal practitioner.
The Board's allegation that Mr Fazio has engaged in conduct that constituted a contravention of s 13(1) of the LP Act
Subsection 13(1) of the LP Act provides that:
A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.
The meaning of representing that the person is entitled to engage in legal practice is explained by s 13(4) of the LP Act, which provides that:
A reference in this section to a person -
(a)representing or advertising that the person is entitled to engage in legal practice; or
(b)representing or advertising that a body corporate is entitled to engage in legal practice,
includes a reference to the person doing anything that states or implies that the person or the body corporate is entitled to engage in legal practice.
In order to establish that Mr Fazio has engaged in conduct in contravention of s 13(1), the Board must establish on the civil standard of proof, bearing in mind what was said in Briginshaw, that Mr Fazio is not an Australian legal practitioner, and that he represented that he was entitled to engage in legal practice, in that he engaged in conduct by which he stated or implied that he was entitled to engage in legal practice. In support of this aspect of its case, the Board relies on Ms David's evidence, and also on Ms Jovanovic's evidence.
The Board relies on Ms David's evidence, which I accept, that Mr Fazio told her that he 'practised as a lawyer and did not have an office … so he could charge less'.[13]
[13] Affidavit of Erit David sworn 23 May 2017 [7].
I note that s 14(3) of the LP Act provides that the taking or using of a name, title or description to which s 14 applies (as described in s 14(1)) by a person who is not entitled to take or use that name, title or description, gives rise to a rebuttable presumption that the person represented that the person is entitled to engage in legal practice. One of the names, titles and descriptions to which s 14 applies is that of a lawyer. Consequently, Mr Fazio's representation that he was a lawyer constitutes or gives rise to a rebuttable presumption that he represented that he was entitled to engage in legal practice.
One of the matters to which Ms Jovanovic refers is an email sent by Mr Fazio to the proprietor of the Chicken Treat outlet. That email was sent on 20 June 2016. It bore the heading 'Without Prejudice', and it advised, in the first paragraph, that Mr Fazio had been asked to act for the claimant in relation to an incident that had occurred at the Chicken Treat store, and which the email subsequently explained, is alleged to have constituted an event giving rise to a claim in tort.
The latter email clearly implied that Mr Fazio was entitled to do the work he was purporting to do in that email, which itself constituted legal practice. That email, and Ms David’s evidence, clearly establishes that Mr Fazio represented that he was entitled to engage in legal practice. I am satisfied that the Board has established that Mr Fazio has engaged in conduct in contravention of s 13(1) of the LP Act.
Why the grant of an injunction is warranted in the exercise of the Court's discretion
A variety of discretionary considerations may be relevant to the Court's decision whether to grant injunctive relief under s 585 of the LP Act. It is not necessary to endeavour to set out an exhaustive list of those considerations.
In approaching the exercise of discretion, I bear in mind the purpose of the provisions relevant in this case. The power in s 585 to grant an injunction is clearly a power given to the Court in support of the general prohibitions in pt 3 of the LP Act. The purposes of pt 3 are set out in s 11 of the LP Act. They are:
(a) to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so;
(b) to protect consumers by ensuring that persons carrying out legal work are entitled to do so.
The grant of injunctive relief is ordinarily directed to restraining the person from engaging in particular conduct in the future, and in cases under the LP Act, the grant of an injunction would thereby be directed to preventing future contraventions of the LP Act. Consequently, if no prospect of any future contravention existed, then that would be relevant to the exercise of the Court's discretion as to whether to grant an injunction. However, the exercise of the power in s 585(2) of the LP Act may be informed by different or additional considerations, in that s 585(6) expressly provides:
The power of the Supreme Court to grant an injunction restraining a person from engaging in conduct may be exercised -
(a)whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of that kind; and
(b)whether or not the person has previously refused or failed to do that act or thing; and
(c)whether or not there is an imminent danger of substantial damage to any person if the first‑mentioned person refuses or fails to do that act or thing.
That provision serves to underline the importance of the prohibitions under the LP Act which are designed to protect the public. The importance of that protection is such that for the purposes of determining whether to grant injunctive relief, it matters not whether it appears that the conduct will necessarily be repeated in the future.
In any event, the circumstances in this case clearly support the inference that there is a risk that Mr Fazio will engage in further conduct in contravention of the LP Act unless restrained by an order of the Court. Those circumstances, and the factors I take into account, which support the grant of injunctive relief in this case, are the following.
First, it is apparent that Mr Fazio has a history of contraventions of legislation regulating legal practice in Western Australia. In November 2004, Mr Fazio, acting under the name Arthur Heedes, was found guilty by this Court of contempt for engaging in legal practice between June 2004 and August 2004 when he was not a qualified legal practitioner.[14] He appealed against that decision, and that appeal was dismissed.[15] Furthermore, on 6 April 2011, Mr Fazio was convicted in the Perth Magistrates Court of seven separate counts of making false representations to be a legal practitioner, when he was not a legal practitioner, contrary to s 128 of the Legal Practice Act 2003 (WA).
[14] Legal Practice Board v Heedes [2004] WASC 260.
[15] Heedes v Legal Practice Board [2005] WASCA 166.
It is apparent from the evidence of Ms David and Ms Jovanovic, to which I have referred, that Mr Fazio has not modified his behaviour, notwithstanding his conviction in the Magistrates Court, and the finding of contempt made against him in this Court. It is clear that the proceedings brought against him in the past by the Board have not deterred him from engaging in similar conduct.
The second consideration which I take into account is the fact that Mr Fazio has engaged in the conduct the subject of the present application over a period of months, indeed years.
The third consideration I take into account is the fact that Mr Fazio appears to be operating a business in which he engages in legal practice - Carpe Diem Advocacy - and for which he charges clients for his services. He is apparently charging not insignificant sums of money for his services.
Fourthly, I take into account the evidence that Mr Fazio asked Ms David to keep his involvement in her matter confidential. That supports the inference that Mr Fazio is aware that his conduct constitutes a contravention of the LP Act, and is concerned to ensure that his conduct is not detected.
Finally, I take into account that conduct of the kind in which Mr Fazio has engaged, namely engaging in legal practice, is, by virtue of the fact that he is not an Australian legal practitioner, not constrained by the sorts of professional and ethical standards which apply to legal practitioners, nor is his conduct covered by compulsory insurance. The tone and content of some of Mr Fazio's correspondence, to which the Court has been taken, is of some concern. If Mr Fazio continues to engage in legal work in contravention of the LP Act, there is a risk that members of the public will suffer loss or damage which could not be compensated by insurance. That means that there is a risk to the public by his continued engagement in such conduct. The ongoing risk to the public if Mr Fazio continues to engage in conduct of this kind supports the grant of injunctive relief. Accordingly, I am satisfied that a permanent injunction should be granted against Mr Fazio, as sought by the Board.
The orders which will be made
The terms of the injunction order sought by the Board are set out in the minute of proposed orders dated 4 April 2018:
Pursuant to section 585(1) of the Legal Profession Act 2008 (WA) (Act), an injunction be granted restraining the defendant:
(a) from engaging in legal practice in the state of Western Australia, when not an Australian legal practitioner, in contravention of section 12(2) of the Act; and
(b) from representing an entitlement to engage in legal practice in the state of Western Australia, when not an Australian legal practitioner, in contravention of section 13(1) of the Act, and
(c) without limiting the generality of the restraints in (a) and (b) above, from engaging in any of the following activities in the state of Western Australia, whilst not an Australian legal practitioner -
(i) providing legal advice in relation to legal proceedings or potential legal proceedings;
(ii) providing legal advice in respect of legal claims or causes of action, including providing advice as to how to advance or prosecute such claims or causes of action;
(iii) corresponding or communicating on behalf of litigants or potential litigants in respect of their legal claims or causes of action;
(iv) drawing or settling documents on behalf of or as agent for litigants, including but not limited to affidavits, pleadings and legal submissions;
(v) drawing or settling correspondence or letters of demand, for potential litigants or persons who have or assert legal claims or causes of action;
(vi) appearing in court on behalf of litigants to proceedings;
(vii) providing advice or counsel to persons who are appearing in court in connection with any such court appearance; or
(viii)representing to any person, expressly or impliedly, that he is entitled to engage in activities of the kind set out in (i) to (vii) above.
I am satisfied that an order should be made in those terms. I note that the terms of that order reflect the core nature of the type of conduct prohibited by s 12 and by s 13(1) of the LP Act, and include examples of conduct which would be encompassed by engaging in legal practice. Counsel for the Board has explained that the terms of the order have been crafted in that fashion in an endeavour to make clear and unambiguous what conduct is prohibited, so that Mr Fazio will be left in no doubt as to the nature of the prohibition that the injunction imposes. I am satisfied that an order should be made in those terms, having regard to that objective, which overcomes the concern that otherwise an injunction in terms of (a) and (b) of the order would do no more than restate the provisions which are already set out in the LP Act.
The Board also seeks an order that Mr Fazio pay its costs of the action to be taxed, if not agreed. As the Board has been wholly successful in bringing this application, it is appropriate that a costs order in those terms be made.
The final matter which should be addressed is that the Board seeks an order that it serve the orders on Mr Fazio by emailing a copy of the extracted orders to the email address Mr Fazio has used in the material and correspondence before the Court.
Ordinarily, an order in the nature of an injunction would need to be served personally on the individual to whom it applied. To date, however, Mr Fazio has proved elusive, and personal service has not been possible, and hence the Board obtained the order for substituted service of the application, to which I earlier referred. Having regard to the affidavit of Mr Barich, which was filed in support of that application, I am satisfied that service of the orders I will make by email to the email address specified will bring the orders to Mr Fazio's attention.
The making of an order for service in those terms, of course, does not preclude service personally or by any other means, and no doubt the Board will take all possible steps to serve the injunction order on Mr Fazio by any means which will bring it to his attention in the future.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD10 MAY 2018
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