LEGAL PRACTICE BOARD -v- CLOHESSY [2006] WASC 21

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 21
Case No:	CIV:2066/2005	Heard:	2 FEBRUARY 2006
Coram:	EM HEENAN J	Delivered:	2/02/06
No of pages:	10	Judgment Part:	1 of 1
Result:	Declaration of contempt following plea of guilty Fined $1000
Category:	B
PDF Version

Parties:	LEGAL PRACTICE BOARD RAYMOND WALTER CLOHESSY
Catchwords:	Legal practitioners Unqualified persons Contempt of court Preparing and initiating application under Corporations Act for leave to proceed against a company in administration Leave needed to continue application in State Industrial Commission Application made by registered "industrial agent" Plea of guilty Fine imposed
Legislation:	Corporations Act 2001 (Cth) Industrial Relations Act 1979 (WA) Interpretation Act 1984 (WA) Legal Practice Act 2003 (WA) Legal Practitioners Act 1893 (WA)
Case References:	Nil Cornall v Nagle [1995] 2 VR 188 Legal Practice Board v Adams [2001] WASC 78 Legal Practice Board v Taylor [2005] WASC 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LEGAL PRACTICE BOARD -v- CLOHESSY [2006] WASC 21 CORAM : EM HEENAN J HEARD : 2 FEBRUARY 2006 DELIVERED : 2 FEBRUARY 2006 FILE NO/S : CIV 2066 of 2005 BETWEEN : LEGAL PRACTICE BOARD

Applicant

AND

RAYMOND WALTER CLOHESSY

Respondent

Catchwords:

Legal practitioners - Unqualified persons - Contempt of court - Preparing and initiating application under Corporations Act for leave to proceed against a company in administration - Leave needed to continue application in State Industrial Commission - Application made by registered "industrial agent" - Plea of guilty - Fine imposed

Legislation:

Corporations Act 2001 (Cth)

Industrial Relations Act 1979 (WA)
Interpretation Act 1984 (WA)
Legal Practice Act 2003 (WA)
Legal Practitioners Act 1893 (WA)

(Page 2)

Result:

Declaration of contempt following plea of guilty

Fined $1000

Category: B

Representation:

Counsel:

Applicant : Mr B J H Goetze

Respondent : In person

Solicitors:

Applicant : Minter Ellison

Respondent : In person

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

Nil

Case(s) also cited:

Cornall v Nagle [1995] 2 VR 188
Legal Practice Board v Adams [2001] WASC 78
Legal Practice Board v Taylor [2005] WASC 242

(Page 3)

1 EM HEENAN J: The motion before the court is that the respondent, Raymond Walter Clohessy, should be punished for contempt of court in that, not being a duly certificated legal practitioner, he did, during the period from about October to November 2003 or thereabouts, at Perth directly or indirectly:

(a) sue out or commence and carry on proceedings in the Supreme Court of Western Australia, being an application by originating process, namely proceeding number COR 353 of 2003 between Anthony Sebastian Paterniti as plaintiff and Catering Concepts Australia Pty Ltd, (administrators appointed) as the first defendant, and John Osborn, director, second defendant, proceedings referred to as "the action";

(b) alternatively to subpar (a) that he performed, carried out or engaged in work in connection with the administration of law in obtaining and acting on instructions from Anthony Sebastian Paterniti to sue out, commence or carry…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] WASC 21
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was presented with a case where the Legal Practice Board sought a declaration of contempt against Raymond Walter Clohessy for engaging in legal activities without being a certified legal practitioner. The allegations against Clohessy included preparing and initiating an application under the Corporations Act for leave to proceed against a company in administration, a task that required legal expertise and authorisation. Clohessy, who was a registered "industrial agent," pleaded guilty to the charge of contempt of court.

The court had to determine the appropriate sanction for Clohessy's actions, which involved preparing legal documents and initiating court proceedings outside the scope of his authorised activities as an industrial agent. The primary consideration was the protection of the public, ensuring that legal advice and document preparation were conducted by qualified individuals. The court emphasised the importance of maintaining ethical standards and the responsibilities that come with appearing before the court as a legal practitioner.

After considering the evidence and the submissions made by both parties, the court concluded that Clohessy's actions, though possibly well-intentioned, were unauthorised and constituted a breach of the Legal Practitioners Act. The court imposed a fine of $1000 on Clohessy and ordered him to pay the Legal Practice Board's costs of the application, which would be taxed separately. The court's decision underscored the necessity of adhering to legal regulations and the potential consequences of unauthorised legal practice.

Orders