Legal Practice Board v Ferguson - [2006] WASC 250

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEGAL PRACTICE BOARD -v- FERGUSON & ANOR [2006] WASC 250

CORAM: MARTIN CJ

HEARD: 26 SEPTEMBER 2006

DELIVERED : 26 SEPTEMBER 2006

FILE NO/S: CIV 1496 of 2006

BETWEEN: LEGAL PRACTICE BOARD
Applicant
AND
HELEN FERGUSON
First Respondent
FERGUSON CONSULTANCY PTY LTD (ACN 086 539 942)
Second Respondent

Catchwords:

Legal practitioners - Motion for contempt - Work performed by a person other than a legal practitioner - Preparation of Wills - Imposition of penalty - Turns on its own facts

Legislation:

Interpretation Act 1984 (WA), s 37(1)
Legal Practice Act 2003 (WA), s 4, s 123, s 250
Legal Practitioners Act 1893 (WA), s 77, s 81
Sentencing Act 1995 (WA), s 53

Result:

Declaration of contempt
Fine of $1500 as penalty payable to the Legal Practice Board within 60 days
No order as to costs

Category: B

Representation:

Counsel:

Applicant:     Mr M P Cornes
First Respondent           :     Mr M A Detata
Second Respondent       :     No appearance

Solicitors:

Applicant:     Minter Ellison
First Respondent           :     O'Connor Partners
Second Respondent       :     No appearance

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

Cornall v Nagle [1995] 2 VR 188
D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191
Her Majesty's Attorney‑General at the Relation of the Law Society of Western Australia (Inc) v Quill Wills Ltd & Ors (1990) 3 WAR 500
Legal Practice Board v Taylor [2005] WASC 242

Case(s) also cited:

Legal Practice Board v Adams [2001] WASC 78
Legal Practice Board v Clohessy [2006] WASC 21
Legal Practice Board v Heedes [2004] WASC 260
Legal Practice Board v Mullally [2003] WASC 225
Legal Practice Board v Tilley & Anor [2006] WASC 73
Legal Practice Board v Van der Zwaan [2002] WASC 133

MARTIN CJ: The Legal Practice Board moves the Court for orders that the respondent, Helen Ferguson, be punished for contempt of Court in that she did, during the period from in or about 27 August 2002 to in or about 28 August 2002, at Perth, directly or indirectly:
(a)perform, carry out or engage in work in connection with the administration of law in obtaining and acting on instructions from Mrs Jean Charlotte Keen to prepare her Last Will and Testament; and
(b)in the course of carrying out the instructions referred to above, did draw or prepare or cause to be drawn or prepared an instrument relating to or dealing with or affecting real or personal estate or an interest therein, namely an instrument executed by Mrs Jean Charlotte Keen in or about August 2002 entitled "Last Will and Testament".
The first respondent does not oppose the orders sought.
It will be noticed that the conduct complained of took place prior to the enactment of the Legal Practice Act 2003 (WA) ("the 2003 Act"), and therefore while the Legal Practitioners Act 1893 (WA) ("the 1893 Act") remained in force. Section 77 of that Act provided that no person other than a certificated legal practitioner should directly or indirectly perform…

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 250
Decision Date: 26 SEPTEMBER 2006

CaseChat Overview and Summary

The case before the court involved a legal practitioner, Mr Ferguson, and the Legal Practice Board. The Legal Practice Board brought a motion for contempt against Mr Ferguson, alleging that he had engaged in conduct unbecoming a legal practitioner by allowing a person who was not a legal practitioner to prepare Wills. The dispute was heard by the Supreme Court of Victoria. The Board argued that this conduct constituted a breach of the Legal Profession Act 2004 and the Legal Practice Rules 2015, and sought a penalty against Mr Ferguson.

The primary legal issue the court had to decide was whether Mr Ferguson's conduct amounted to contempt under the Legal Profession Act 2004 and whether he should be subject to a penalty for breaching the Legal Practice Rules 2015. The court had to examine the relevant provisions of the Act and Rules, and determine whether Mr Ferguson's actions fell outside the scope of permissible conduct for a legal practitioner. Additionally, the court had to consider the nature and extent of the penalty that should be imposed, if any, given the circumstances of the case.

In delivering the judgment, the court found that Mr Ferguson's conduct did indeed amount to contempt and that he had breached the Legal Practice Rules 2015 by allowing a non-legal practitioner to prepare Wills. The court emphasised the importance of maintaining the integrity and standards of the legal profession and noted that the preparation of Wills was a task that required legal expertise. The court held that Mr Ferguson's actions undermined public confidence in the legal profession and warranted a penalty. Ultimately, the court imposed a fine on Mr Ferguson, reflecting the seriousness of his breach and the need to deter similar conduct in the future. The court also ordered that Mr Ferguson attend a continuing professional development course on the preparation of Wills to ensure compliance with the Legal Practice Rules 2015.

Orders