Legal Practice Board v Frichot
[2006] WASC 230 (S)
•4 OCTOBER 2006
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | LEGAL PRACTICE BOARD -v- FRICHOT [2006] WASC 230 (S) |
| CORAM | : HASLUCK J | ||
| HEARD |
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| DELIVERED | : 4 OCTOBER 2006 | ||
| SUPPLEMENTARY | |||
| DECISION | : 13 MARCH 2007 | ||
FILE NO/S |
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MATTER |
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| BETWEEN | : LEGAL PRACTICE BOARD |
Applicant
AND
MAURICE EUGENE FRICHOT
Respondent
Catchwords:
Practice and procedure - Contempt - Summons to set aside judgment against contemnor - Application by respondent to set aside orders on basis that no notice of hearing was received - History of failure to comply with previous orders and
[2006] WASC 230 (S)
directions - Sufficient notice of hearing held to have been provided to respondent with the result that an opportunity to be heard was afforded - Whether findings as to liability for contempt should be set aside in any event - Whether respondent able to demonstrate a good defence on the merits - Application to set aside dismissed
Legislation:
Interpretation Act 1984 (WA), s 75
Legal Practice Act 2003 (WA), s 250
Legal Practitioners Act 1893 (WA)
Rules of the Supreme Court 1971 (WA), O 12(1), O 34(1), O 34(3), O 55,
O 58 r 17, O 58 r 18, O 58 r 22
Result:
Application to set aside judgment dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr D Wallace |
| Respondent | : | Mr B M C N de Lestang |
Solicitors:
| Applicant | : | Minter Ellison |
| Respondent | : | Benjamin & de Lestang |
Case(s) referred to in judgment(s):
Bailey v Marinoff (1971) 125 CLR 529
Cameron v Cole (1944) 68 CLR 571
Commissioner of Police v Tanos (1958) 98 CLR 383
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Heedes v Legal Practice Board [2005] WASCA 166
James v Robinson (1963) 109 CLR 593
[2006] WASC 230 (S)
Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd [2001]
WASCA 156
Laurie v Carroll (1958) 98 CLR 310
Legal Practice Board v Frichot [2006] WASC 230
Legal Practice Board v Taylor [2005] WASC 242
Legal Practice Board v Tilley & Anor [2006] WASC 73
R v Lovelady [1982] WAR 65
Taylor v Taylor (1979) 143 CLR 1
Tucker v Walker [1920] VLR 385
Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239
Woods v Sheriff of Queensland (1895) 6 QLJ 175
[2006] WASC 230 (S)
HASLUCK J
HASLUCK J:
Introduction
1 The Legal Practice Board by five discrete originating motions sought
orders that the respondent, Maurice Eugene Frichot, be punished for contempt of the Supreme Court. In each case, it was said that he had engaged in legal business while not being a duly certificated legal practitioner.
2 The subject motions were supported by the affidavits of various
complainants setting out the circumstances of each matter. As appears from the lengthy written judgment now described as Legal Practice Board v Frichot [2006] WASC 230, I was satisfied that the facts and matters said to constitute a contempt of court in each case had been established beyond reasonable doubt. I will call this the "2006 judgment".
3 The respondent had been representing himself during the course of
the proceedings but failed to appear at the hearing of the matter on 7 August 2006. Towards the end of the 2006 judgment I said that the respondent should be afforded an opportunity to be heard as to penalty before any penalty was imposed. Programming orders to that end were then made which included provision for personal service upon the respondent of the reasons for decision and the applicant's submissions as to penalty.
4 At that stage the respondent instructed solicitors to act on his behalf.
His solicitors entered an appearance. They have taken out a chamber summons with a view to setting aside "the orders made by the Honourable Justice Hasluck in Chambers on 4 October 2006". I will call these the "4 October orders".
5 The respondent seeks to set aside the 4 October orders pursuant to
O 34 r 3 of the Rules of the Supreme Court on the grounds that "the respondent received no notice of the hearing and was absent at the hearing". An order is also sought that the time to bring the application be extended to such time as the Court deems just.
6 Before dealing with the issues raised by the chamber summons, it
will be useful to begin by looking at the background to the matter, and at the history of the proceedings. Some of this appears in the 2006 judgment.
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Background
7 The respondent was for many years a certificated legal practitioner
and a partner in a leading law firm in Perth. However, on 24 November 2000 he pleaded guilty in the District Court to various stealing offences committed between 18 December 1997 and 27 March 2000 in respect of funds stolen from the Australian Paralympic Committee. He was sentenced to an effective term of imprisonment of 3½ years with eligibility for parole. He was struck off the Roll of Practitioners pursuant to an order of the Full Court made on 18 June 2001.
8 In due course the respondent was released from prison. Towards the
end of January 2002 he established a debt collection agency under the name of "All Debts Process". He also began working on a part-time basis with a businessman named Colin Ritchie and the latter's group of companies. It was later alleged by the Legal Practice Board that in the course of these activities the respondent carried out work in connection with the administration of law contrary to certain provisions of the Legal Practitioners Act 1893 (WA).
9 Towards the end of 2004 the Legal Practice Board issued five
originating motions seeking orders that the respondent be punished for contempt of court. There were three motions concerning the Grover matters (CIV 2523/04, CIV 2524/04 and CIV 2525/04), one motion concerning the Hughes matter (CIV 2526/04) and one motion concerning the debt collection agency matter (CIV 2527/04).
The facts and matters underlying the complaints reflected in the five subject motions and related affidavits are described at length in the 2006 judgment. The complaints are dealt with under headings corresponding to the shorthand descriptions I have just used. I will return to the relevant facts and matters later. However, as an aid to exposition with respect to the applications to set aside presently before me, I note in passing that the evidence against the respondent included a letter dated 22 August 2002 written by him on a letterhead which suggested that he was a principal in a law firm. The letterhead included these details: "Frichots, Principal M Frichot Llb; PO Box 137, Subiaco WA 6008". In regard to the debt collecting agency matter, the Legal Practice Board relied also upon affidavit evidence that the letterhead of the respondent's firm described its address as: "All Debts Process, PO Box 137, Subiaco, 6008".
11 It appears from the 2006 judgment that the Legal Practitioners Act 1893 (WA) was superseded by the Legal Practice Act 2003 (WA) which came into force on 1 January 2004. Having regard to certain principles of
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statutory interpretation, I concluded that the liability of the respondent was to be determined in accordance with the Legal Practitioners Act, being the statute in force when the events occurred. However, it was necessary to refer to s 250 of the Legal Practice Act in dealing with the five subject motions for contempt and giving considerations to matters of penalties. Section 250 provides that a contravening person is guilty of a contempt of the Supreme Court and may be dealt with accordingly by the Supreme Court or a Judge in Chambers on the motion of the Complaints Committee or the Board.
12 I noted also, having regard to Heedes v Legal Practice Board [2005] WASCA 166, that contempt was a unique offence in that not only is it the only criminal offence which still exists in this State at common law, but it cannot be prosecuted on indictment, and is dealt with by the civil processes of the Court, albeit that the matters complained of must be proved beyond reasonable doubt. I concluded that the procedure for acquainting the respondent with the case against him and for allowing to him an opportunity to be heard is determined by O 55 of the Rules of the Supreme Court 1971 (WA) and the Rules concerning originating motions. The Rules in question allow for an allegation of contempt to be advanced by way of an originating motion supported by affidavit evidence. That was the procedure adopted in respect of each of the five subject motions that were brought before the Court in the present case.
Procedural history of the matter
13 The procedural history of the matter is set out in the affidavit of
Wendy Sara Meggison sworn 20 November 2006. She is a solicitor in the employ of the solicitors for the Legal Practice Board.
14 It appears that on 24 November 2004 the applicant's solicitors filed
the five originating motions mentioned earlier. I digress briefly to note that the nature and contents of the various originating motions are described in the 2006 judgment. There appears to be no dispute that in each case the motion set out with particularity the nature of the complaint being made.
15 For example, as to motion CIV 2523/04, being the first of the three
Grover matters, it is apparent from the originating motion that the principal order sought was that the respondent be punished for contempt of this honourable Court in that, not being a duly certificated legal practitioner, during the period from in or about July 2002 to October 2003 or thereabouts at Perth he directly or indirectly acted in a way specified in the motion that was said to justify the making of the orders sought.
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16 The motion refers to engaging in work in connection with the
administration of law in obtaining and acting on instructions from Mr and Mrs Grover (par 1(a)) providing written advice to them by letter dated 22 August 2002 and attending various meetings with legal practitioners as their adviser (par 1(b)); drawing or preparing or causing to be drawn or prepared certain specified instruments in writing relating to, dealing with or affecting real or personal property (par 1(c)).
17 On 26, 27 and 30 November 2004 the applicant's solicitors attempted
to effect service of the originating motions upon the respondent, by way of a process server, at 320 Railway Parade, West Leederville in the State of Western Australia. The processor was unable to effect service. On 3, 4 and 6 December 2004 a further attempt was made to effect service of the motions upon the respondent, by way of a process server, at 320 Railway Parade, West Leederville. The process server was advised that the respondent no longer resided at that address.
18 The matter was listed for hearing in Masters' Chambers on 7 and
21 December 2004 but as service had still not been effected upon the respondent on each occasion the matter was ultimately adjourned to 2 February 2005. At that date, as service had not been effected, the action was adjourned to 2 March and subsequently to 30 March 2005.
19 On 23 March 2005, after numerous failed attempts to effect service
upon the respondent, the applicant's solicitors effected service of the originating motions upon the respondent, by way of a process server, at Subiaco Post Office, Rokeby Road, Subiaco.
20 The respondent did not file any documents in any of the proceedings
which indicated that his address for service was 320 Railway Parade, West Leederville. The action came before Master Newnes on 30 March 2005. The respondent appeared in person on that occasion and was ordered to file and serve affidavits in opposition to the originating motions by 20 April 2005. The action was otherwise adjourned to 11 May and then to 18 May 2005. The respondent did not then in compliance with the order file and serve sworn affidavits in opposition to the originating motions.
21 By letter dated 28 April 2005 the applicant's solicitors wrote to the
respondent and, amongst other things, informed him that the applicant's solicitors presumed that he did not intend to file any affidavit material and confirmed that their instructions were to seek a fine for the less serious matters and a suspended period of imprisonment for the more serious
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matters. This letter was addressed to the respondent at 320 Railway Parade, West Leederville. The letter was mailed to that address because documents had been successfully served on the respondent at that address in 2001 in relation to another matter. Although the applicant's solicitors had been unable to effect service at that address in relation to these proceedings, it was suspected that the respondent might still reside there.
22 By facsimile letter dated 18 May 2005 the respondent wrote to the
applicant's solicitors requesting a further two week adjournment so that he could "prepare affidavits to file in the matter". His postal address was given as: "PO Box 137 Subiaco WA 6008". The facsimile also indicated that the respondent's mobile telephone number was 0438 320 388. The address in question is listed in the White Pages as the postal address for All Debts Process.
23 A business names extract created by the Department of Consumer
and Employment Protection on 30 September 2004 in relation to All Debts Process identifies the respondent as one of the person carrying on that business from 27 November until 13 December 2001 and lists the principal place of business as 320 Railway Parade, West Leederville WA 6007. A certain Rilda June Rea was identified as one of the persons carrying on the business from 27 November 2001 and became the only person listed as carrying on that business from 13 December 2001.
24 The matters the subject of the originating motions came before a
Master in Chambers on 18 May 2005 and was adjourned to a Judge in Chambers on a date to be fixed. By letter dated 19 May 2005 the applicant's solicitors wrote to the respondent. This was addressed to the respondent at PO Box 137, Subiaco WA 6008. By letter dated 20 June 2005 the applicant's solicitors wrote to the respondent at the same address.
25 On 27 June 2005 the applicant's solicitors received a letter dated
23 June 2005 from the Listings Supervisor of the Supreme Court. A copy of this letter was mailed to the respondent at the Subiaco post box address. By letter dated 4 July the applicant's solicitors wrote to the respondent at the Subiaco post box address informing him that the matter was listed for hearing on 10 August 2005.
26 On 7 July 2005 the applicant's solicitors received a copy of a letter
dated 6 July 2005 from Malcolm McCusker QC to the respondent, being a
letter sent to the Subiaco post box address.27 By email dated 9 August 2005 the applicant's solicitors received an
email from the respondent with five attachments. The attachments were
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copies of unsworn affidavits of the respondent in respect to the five originating motions. These unsworn affidavits refer to the respondent's address as being 320 Railway Parade, West Leederville.
28 On 10 August 2005 the applicant's solicitors wrote to the respondent
by email to his account at "[email protected]" enclosing an outline of the applicant's submissions. Receipt of this document was acknowledged.
29 The matter came before Le Miere J on 10 August 2005. On that
occasion the respondent appeared in person and indicated that he intended to plead guilty to the various motions issued against him if various factual bases could be agreed. He agreed to meet with a solicitor from the applicant's solicitors with a view to refining issues so that the matter could then proceed by way of a guilty plea. The matter was adjourned sine die.
30 A meeting was scheduled to take place between the respondent and
Mr B Goetze, a solicitor with the applicant's solicitors having the conduct of the matter at that time, at the offices of the applicant's solicitors on 11 August 2005. It seems that the respondent left the offices in question just before Mr Goetze was about to meet with him.
31 By letter dated 23 August 2005 the applicant's solicitors wrote to the
respondent at 320 Railway Parade, West Leederville requesting an alternative time to meet. No response was received in relation to that letter. On 2 June 2006 Mr Goetze spoke with the respondent by telephone and an arrangement was made for the respondent to meet with Mr Goetze at the offices of the applicant's solicitors on 6 June 2006. It seems that the respondent failed to keep that appointment.
32 On or about 23 June 2006 the applicant's solicitors received a letter
dated 22 June 2006 from the Listings Supervisor of the Supreme Court indicating that the matter was listed for hearing on Monday, 7 August 2006 at 10.30 am. A copy of the letter had been sent to the respondent at the Subiaco post box address. By letter dated 26 June the applicant's solicitors wrote to the respondent noting that the matter was listed for hearing on Monday, 7 August 2006 at 10.30 am. A copy of the letter was sent to the respondent at the Subiaco post box address. The respondent did not advise the applicant's solicitors that he did not receive mail addressed to him at the Subiaco post box address. As at 11 November 2006 the address in question was the business address of All Debts Process.
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33 The matter was brought on for hearing before me as the presiding
Judge on 7 August 2006. My understanding was that the matter had been listed in the daily Court List in the West Australian newspaper in the usual way. I was informed by counsel for the applicant that notice of the hearing had been given to the respondent. It was brought to my attention also that he had appeared on his own behalf before the Master on a previous occasion and that there had been various exchanges between the parties concerning the matters in issue.
34 I was told that letters from the applicant's solicitors and from the
Court were sent to the Subiaco post box address, being the address used to communicate with him on past occasions, and there was no reason to believe that he would not be receiving correspondence sent to that post office box address. I was told that notice of the hearing before Le Miere J on a previous occasion had been given to the respondent at the Subiaco post box address and had apparently been sufficient because he had attended the hearing in person and without raising any query as to the form of the notice.
35 I was reminded that directions had been given at an earlier hearing
before a Master of the Court for the respondent to file and serve any affidavits to be relied upon by him in answer to the charges of contempt but those arrangements had not been complied with. Moreover, the respondent had failed to attend a meeting with the applicant's solicitors or proceed with the arrangements canvassed at the hearing before Le Miere J and which were relied upon by the respondent as a basis for obtaining an adjournment of the hearing. In the course of the discussion I noted that the respondent had been a practising lawyer for many years. He would be well aware of the importance of providing an address for service and, of the importance of notifying the opposing party of any change in the address being used by him.
36 I noted that there was no appearance by or on behalf of the
respondent on the date listed for the hearing. Having regard to the procedural history of the matter I concluded that notice of the hearing had been given to him and that he was in default in failing to attend. I was of the view that in the case of a litigant who was undoubtedly familiar with the ways of the legal system, and of the consequences that might follow in a matter of this kind if he failed to comply with directions by the Court or attend a hearing of the matter (for the nature of the penalty being sought had been foreshadowed by his opponents) there had been a lack of diligence on his part in taking steps to ensure that he was not in default and was being kept informed as to the progress of the matter. The facts
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before me were open to the interpretation that the respondent, for whatever reason, had simply decided to abandon any resistance to the claims, in which case a further adjournment would simply create further unjustified delay.
37 Accordingly, I acted on the submission put to me by counsel for the
applicant and allowed the matter to proceed. Evidence was then adduced in support of the applicant's case in respect of each of the five motions. The nature of the evidence in each case was by way of affidavit and is described more fully in the 2006 judgment. At the conclusion of the hearing I reserved my decision.
38 On 4 October 2006 I handed down my reserved decision. As appears
from the 2006 judgment, as to each of the motions, I was satisfied beyond reasonable doubt that the allegations had been made out and that the respondent was guilty of contempt as alleged. However, I was of the view that the respondent should be afforded an opportunity to be heard as to penalty, before any penalty was imposed, and to be heard (if that was his wish) as to any of the matters reflected in the applicant's submissions concerning penalty, being those submissions set out in a document dated 28 August 2005. Accordingly, I gave directions for the 2006 judgment and the applicant's submissions as to penalty to be served upon the respondent personally.
39 I understand that formal orders in respect of each of the subject
motions were then extracted by the applicant's solicitors. With a view to avoiding prolixity, I will refer, by way of example, to the formal order made in respect of motion CIV 2523/04, being the first Grover matter, which reads as follows:
"1. The respondent is in contempt of this honourable Court as
alleged in the originating motion.2.
A copy of the reasons for decision of the Honourable Justice Hasluck dated 4 October 2006, a copy of the applicant's submissions as to penalty dated 28 August 2006, a copy of this order and notice of a further hearing to be held in Judge's Chambers at the Supreme Court, Perth at 10.30 am on Wednesday, 22 November 2006 are to be personally served on the respondent, Maurice Eugene Frichot, within 28 days from the date of these orders.
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3. The parties should be at liberty to make submissions at the further hearing on 22 November 2006 as to penalty and the orders required to carry the judgment of the Honourable Justice Hasluck into effect.
4. There be general liberty to apply."
40 Orders were extracted in respect of the other motions in similar
terms. I note in passing that although the subject orders have been approved and sealed by the Court they cannot be regarded as final orders disposing of the matters in issue because penalties have not been imposed as a consequence of the various rulings. It cannot be said that the presiding Judge has completed his role in the matter and is functus officio. To my mind, this has a bearing upon the outcome of the applications to set aside now before me.
Subsequent events
41 It was against this background that the respondent finally proceeded
to engage solicitors to act on his behalf. A notice of appointment of solicitors dated 19 October 2006 was filed and served providing an address for service. On the same date the respondent's solicitors issued the subject chamber summons for an order that the order made on 4 October 2006 be set aside pursuant to O 34 r 3 of the Rules of the Supreme Court on the grounds that the respondent received no notice of the hearing and was absent at the hearing.
42 The application to set aside was supported by the affidavit of the
respondent sworn 17 October 2006. He said that he had previously represented himself in respect of the matters in question and that his address for service had always been 320 Railway Parade, West Leederville. I pause there to note in passing that there is no document on the Court file to that effect although that is the address, as indicated in earlier discussion, that appeared on the coversheets of some draft affidavits that the respondent referred to at the hearing before Le Miere J 18 months ago on 10 August 2005. He did not file and serve affidavits in that form in answer to the allegations against him at any time prior to the handing down of the 2006 judgment.
43 The respondent went on to say in his affidavit that he had had several
appearances before the Court in the preliminary and interlocutory stages of the matter. His last appearance was before Le Miere J on 10 August 2005 when the matter was adjourned sine die at the request of the applicant. The intention was for the parties to meet and narrow down the
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issues raised in the draft affidavit which he had supplied to the applicant's solicitor. He said that he attended at the offices of Minter Ellison on the day arranged for the meeting but the solicitor then acting failed to keep the appointment. He heard nothing further on the matter except a chance meeting with Mr Goetze in Perth earlier in 2006 when he was to have his secretary send him a note to set up a time for meeting at his office. No letter was received and no meeting took place.
44 The respondent went on to say that the next time he heard about the
matter was when he read an article in the West Australian newspaper on Saturday, 7 October 2006 which indicated that the hearing had taken place in his absence and a judgment had been handed down on 4 October 2006. He said that his address for service has always been the address at 320 Railway Parade, West Leederville and he has not received any correspondence at this address indicating a hearing was to take place.
45 I feel obliged to pause there and note that the affidavit does not say
unequivocally that he did not receive any correspondence at any other address or location indicating that a hearing was to take place; that is, he does not say unequivocally that he did not receive notice of the hearing and was completely unaware that the hearing listed for 7 August 2006 was to take place. He says only that he did not receive notice of such a hearing at 320 Railway Parade, West Leederville, being the address he regarded as his address for service.
46 The respondent said further in his affidavit that on Monday,
9 October 2006 he appointed Benjamin & de Lestang to act on his behalf and they obtained a copy of the 2006 judgment. He said further that he wished to be able to defend himself and had always expressed his belief that the matters raised were in dispute and that he believed that he had a defence to the complaints. The affidavit is said to be in support of an application to set aside the default judgment entered on 4 October 2006. The respondent wishes to be given an opportunity to present his side of the case in the matter.
47 The respondent relied also upon the affidavit of his solicitor,
Mr de Lestang sworn 19 October 2006 in which his solicitor indicated that he received instructions to set aside the orders in question on Monday, 9 October 2006. He endeavoured to lodge such an application and supporting affidavit soon afterwards but was advised that as the orders were the subject of five separate applications he would need to file five separate applications. This led to the prescribed time limit being
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exceeded and it was upon that basis that an application for an extension of
time is sought.48 At a later stage the respondent filed further affidavits in respect of
each motion directed to the merits of the case against him and purporting to address the allegations the subject of the various motions for contempt. I will put that aspect of the matter to one side for the time being in order to complete the narrative. Counsel for the respondent also filed written submissions dated 17 November 2006 in support of the applications to set aside.
49 On the applicant's side, as I have indicated, the applicant filed and
served the Meggison affidavit bearing upon the attempts made to serve the respondent and referring to the steps taken to give him notice of the hearing. Written submissions dated 21 November 2006 were filed on behalf of the applicant in opposition to the respondent's application to set aside judgment.
The applications to set aside
The various applications to set aside the 4 October orders were brought on for hearing in Chambers before me on 22 November 2006 with both parties being represented by counsel at the hearing. I heard full submissions from counsel as to all aspects of the matter. At an early stage of the debate I observed that there appeared to be three issues raised by the application to set aside and the written submissions filed by the parties.
51 First, there was the question of whether, in a formal sense, the
applicant had complied with the Rules of Court and given the respondent
proper and sufficient notice of the hearing on 7 August 2006.52 Second, even if it be held that sufficient notice had been given,
should relief be afforded to the respondent by way of setting aside the orders having regard to his sworn evidence to the effect that he did not receive any correspondence at 320 Railway Parade, West Leederville indicating that a hearing was to take place and that he was not present at the hearing.
53 Third, even if it be held that the respondent did not receive any or
any sufficient notice of the hearing, or that his non-appearance was otherwise excusable, were the facts and matters raised by the respondent in his various affidavits concerning the merits of the matters in dispute sufficient to justify relief.
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54 Both counsel accepted that these were essentially the issues to be
addressed. It follows from this that no issue was raised as to the adequacy and service of the original notices of motion in regard to providing the respondent with particulars of the various complaints or of any other aspect of the procedural history of the matter. The respondent himself was present in Court and did not suggest by counsel or by himself that it was not open to the Court to deal with the matter upon the basis of affidavit evidence in accordance with the programming orders previously made. However, counsel for the respondent asserted firmly, under express instructions from his client, that if the applications to set aside were allowed, the respondent would deny liability for the contempts alleged in the various notice of motion, and would seek programming orders providing for the cross-examination of those who had sworn the various affidavits relied upon by the applicant.
55 Counsel for the respondent submitted that although the charges
against the respondent are dealt with by the civil processes of the Court they must be proved beyond reasonable doubt, being the standard of proof adopted in the 2006 judgment. Counsel placed reliance upon the facts and matters deposed to in the respondent's affidavit sworn 17 October 2006 in support of an assertion that the only notice of the hearing were those sent in the form of letters by the applicant's solicitors and the Court itself to the Subiaco post box address. These notices were not sent to the respondent's address for service, which was said to be 320 Railway Parade, West Leederville, but to a post office box number and this was not sufficient. It was said that the respondent, in his affidavit, had sworn that he did not receive notice of the hearing and there was no proof that he did receive such notice.
56 Counsel submitted that in the absence of any proof of service upon
the respondent, he must be given the benefit of any doubt as to service of the notice of the hearing and that the Court ought to accept that the respondent did not receive notice of the hearing. It was said that O 34 r 1 provides specific relief for a defendant against whom a judgment is given in his absence. An affidavit as to the merits is not essential. However, generally the Court requires an affidavit not only of merits but also an explanation for the absence of the party which shows that the justice of the situation requires that the party should be excused. It was said that the respondent had filed an affidavit providing a convincing explanation of his absence from the hearing and had also provided the Court with an affidavit of merits.
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57 It was submitted further that the respondent's affidavits raised
questions of evidence and credibility which should be determined not simply by reference to affidavit evidence but by evidence in person which should be tested by cross-examination.
58 Counsel for the applicant referred to a number of decided cases
bearing upon the power to set aside judgments and orders. It was said that as to the respondent's failure to attend, the respondent's affidavit sworn 17 October 2006, sought to rely principally on the assertion in par 2 that:
"I had previously represented myself in the matters and my address for service has always been 320 Railway Parade, West Leederville".
59 It was said that the affidavit of Ms Meggison revealed that the
respondent had never filed a notice of appearance or a notice of address for service in the various proceedings. The process servers instructed by the applicant to serve the respondent tried on numerous occasions to serve him at 320 Railway Parade, West Leederville without success. In December 2004 the process server was told that the respondent no longer resided at that address. The respondent was finally served outside the Subiaco Post Office.
60 Counsel submitted that the respondent himself used the Subiaco post
box address in writing to the applicant's solicitors and this suggested that it was his usual address. The Court and the applicant's solicitors wrote to him at the post office box address to advise of the hearing date for August 2005 which correspondence appeared to have been acted upon by the respondent as he appeared at the hearing on 10 August 2005. Despite having been ordered to file answering affidavits the respondent ignored the orders and directions to that effect. Indeed, the first sworn affidavits put up by the respondent in answer to the facts and matters raised against him were sworn on 17 November 2006 and served on 20 November 2006; that is, two years after commencement of the proceedings.
61 It was said that even when the respondent sought to instruct counsel,
Malcolm McCusker, it appears that he was using the Subiaco post box address. At all material times, the respondent had been working at All Debts Process whose address is the Subiaco post box address. The Subiaco post office address could be regarded as his usual or last known address, and certainly for the purpose of receiving notices or court documents capable of being served by post.
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62 The applicant submitted by counsel that the respondent had
displayed a course of conduct since these matters were commenced in which he had actively sought to avoid service; avoided co-operating with the Court and the applicant by not filing an appearance and notifying of an address for service; acted upon correspondence and notices sent to the Subiaco post box address; worked out of the same address; avoided orders from the Court to file answering affidavits and generally sought to frustrate the proceedings by his conduct.
63 It was said that the respondent's failure to attend the hearing on
7 August 2006 was indicative of the conduct complained of. It was said further that this was not a case of an oversight or regrettable error in service or notification of the hearing date. The respondent had practised law for many years. The Court could infer that the respondent knew of the hearing date and chose, for whatever reason, not to attend.
Counsel also made various submissions concerning the merits. I will return to this aspect of the matter later.
Legal principles
65 I noted in earlier discussion that the procedure concerning an
allegation of contempt is governed by O 55 of the Rules of the Supreme
Court and the Rules applicable to originating motions.66 Order 55 rule 1 of the Rules of the Supreme Court defines a "contemnor" as a person guilty or alleged to be guilty of contempt of court.
67 Order 55 rule 4 provides that an application for punishment for
contempt of court must be made by motion on notice to the contemnor. By O 55 r 5 the notice of motion must specify the contempt of which the contemnor is alleged to be guilty. Unless the Court otherwise orders, the notice of motion must be served personally on the contemnor. This is consistent with O 54 r 7 which indicates that originating and other motions must be served personally.
68 It is said in Seaman Civil Procedure at par 55.4.32 that there is no
power to commit for contempt unless there has been either personal or substituted service of the application to commit and personal service will normally be required. However, substituted service may be ordered when, for example, all reasonable efforts to effect personal service have failed. There is a discretion to relieve the applicant from the requirements of personal service when there is no doubt that the order came to the
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knowledge of the contemnor and there is no prejudice to him by virtue of the failure to comply with the Rules. However, the discretion to order substituted service of a notice of motion should be exercised sparingly.
69 The learned author observes also at par 72.1.1 that personal service
of the Court's process upon the defendant is the foundation of the Court's jurisdiction over him: Laurie v Carroll (1958) 98 CLR 310 at 323. Hence it is required by O 9 for all forms of originating process. The Rules also require personal service of a number of highly significant notifications and proceedings, such as an application to commit a person for contempt or a judgment or order which it is proposed to enforce.
70 Generally, documents subsequent to the originating process need not
be served personally. All parties state an address for service, usually their solicitor's office, at which all documents served in the course of a proceeding are served. Personal service is required only where the Rules specifically state that service is to be personal. Service at an address for service is referred to as ordinary service. Ordinary service is effected by sending or delivering the document to the party's address for service. In most jurisdictions, it is permissible to post a document to an address for service or leave it at a document exchange: Cairns: "Australian Civil Procedure" (5th ed) at 109.
71 In this jurisdiction these matters are dealt with for the most part by
O 72 of the Rules of the Supreme Court. Thus, O 72 r 1(1) provides that any document which by virtue of these Rules is required to be served on any person need not be served personally unless required to be so served by an express provision or court order.
By O 72 r 2 personal service of a document is effected by leaving a copy of the document with the person to be served.
73 It appears from O 72 r 5 that service of any document not being a
document which by virtue of the Rules is required to be served personally may be effected by leaving the document at the proper address of the person to be served or by sending the document by post addressed to the person to be served at his proper address or in such manner as the Court may direct.
74 By O 72 r 5(2) for the purposes of this Rule, the proper address of
any person on whom a document is to be served shall be the address for service of that person, but if at the time when service is effected that person has no address for service his proper address shall be (a) in any
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case the business address of the solicitor (if any) who is acting for him;
(b) in the case of an individual his usual or last known address.75 Order 72 rule 8 provides that where by virtue of these Rules any
document is required to be served on any person but is not required to be served personally, and at the time at which service is to be effected that person is in default as to entry of appearance or has no address for service, the document need not be served on that person unless the Court otherwise directs or any of these Rules otherwise provides.
76 I pause here to note that by s 75 of the Interpretation Act 1984 (WA) where a document is served by post service it is deemed to occur when the document would be delivered in the ordinary course of post. In Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 notices were posted to hirers "care of the post office Sapphire in the State of Queensland" which was the postal address of their place of residence last known to the sender. They denied receipt of the notices. It was held by the High Court that the notices had been properly served. The postal address of a person's abode does not necessarily coincide with the physical location of that abode. This suggests, having regard to O 72 r 5(2) that a person's usual or last known address in the context of a Rule allowing for service by post can be a postal address at a post office.
Further provisions
77 The Rules of the Supreme Court generally require that an appearance be entered by a party to civil proceedings. Order 12 rule 1 provides that a defendant to an action may enter an appearance and defend it by a solicitor or in person. This is done by completing a memorandum of appearance. The general position is thought to be that a defendant cannot take any step in a proceeding without entering an appearance: Tucker v Walker [1920] VLR 385. Subject to some minor exceptions, a defendant who intends to contest the relief sought in an originating summons must, in accordance with O 58 r 17 and r 18, enter an appearance.
78 By O 6 r 9 the usual requirement for a party commencing
proceedings is that the writ or motion will be indorsed with an address for service. By O 6 r 8 a plaintiff suing in person shall indorse his place of residence, his occupation, and a place to be his address for service, which shall not be more than 66 kilometres from the Supreme Court at Perth where all documents not required by the Rules to be served personally may be left for him.
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79 It is said in Seaman: Civil Procedure (supra) at par 16.8.1 that the Rule as to the address for service of a litigant in person is couched in obligatory terms. Its purpose is to facilitate the prompt exchange of documents in litigation, which would not be achieved if only service by post were possible. Hence its requirements are not satisfied by the provision of a post office address for it is not a place where documents can be left for the person.
Contempt proceedings
80 The Rules do not appear to prescribe expressly that the respondent to
an originating motion or a motion for contempt, if acting in person, must enter an appearance or provide an address for service. This may be due to the special nature of contempt proceedings which allow to the Court powers to proceed in a summary manner. The method of trial is peculiar in that the prescribed procedure contemplates that the facts will be placed before the Court on affidavit. That way of proceeding has become established by practice: R v Lovelady [1982] WAR 65. See also James v Robinson (1963) 109 CLR 593.
81 Section 7 of the Criminal Code Act Compilation Act 1913 (WA) provides that nothing in that Act or in the Criminal Code shall affect the authority of courts of record to punish a person summarily for the offence commonly known as contempt of court, but so that a person cannot be so punished, and also punished under the provisions of the Code for the same act or omission.
82 The Law Reform Commission of Western Australia in its report on
Review of the Law of Contempt (Project No 93) observed at 3 that from the earliest times common law courts have assumed the power to coerce those who obstruct the administration of justice. This merger of prosecutorial and judicial functions has resulted in something of an anomaly which continues to influence much of the law in this area; from the peculiar kind of "summary" jurisdiction by which contempt offences may be punished to such prosaic matters as the term "contemnor", used for an alleged but also a convicted offender. Generally the "summary" jurisdiction to punish contempt means not only that there is a relatively immediate determination of the charge but also, in instances of contempt in the face of the Court, that the presiding Judge has the power to proceed on his or her own motion.
83 However, notwithstanding the unusual nature of the contempt
procedure, it is a civil proceeding. That being so, the usual practice is for
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the opposing party to enter an appearance and provide an address for
service in order to facilitate the exchange of documents.
Non-appearance
84 The Rules of the Supreme Court also contain provisions bearing upon the non-appearance of a party. By O 34 r 2, if, when a trial is called on, one party does not appear the Judge may proceed with the trial of the action in the absence of that party. By O 34 r 3, any judgment, order or verdict obtained where one party does not appear at the trial may be set aside by the Court upon such terms as the Court thinks just upon application made within 14 days after the trial.
85 I note in passing that by O 58 r 22 where any party to an originating
summons fails to attend at the first or any resumed hearing thereof, the Court may proceed in his absence if, having regard to the nature of the application, it thinks it expedient so to do. However, it may require to be satisfied that the originating summons, or, as the case may be, notice of the time appointed for the resumed hearing was duly served. Where the Court has proceeded in the absence of a party, then provided that any order made on the hearing has not been perfected, the Court, if satisfied that it is just to do so, may rehear the originating summons. The consequences of a failure to attend were canvassed in Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd [2001] WASCA 156.
86 In the present case, as I indicated in earlier discussion, the
respondent's application to set aside the 4 October 2006 orders is brought pursuant to O 34 r 3. The respondent also seeks an order that the time for bringing the application be extended to such time as the Court deems just.
The power to set aside
87 The power allowed to the Court by O 34 r 3 must be considered in
the context of the general principle that once a proceeding is concluded by the regular entry of the judgment the judicial role of the Court is at an end. In other words, if a party is dissatisfied the only remedy is to appeal to a higher court. Although the Court may reconsider a judgment before it is formally entered, it may not do so after the formal entry: Cairns: "Australian Civil Procedure" (supra) at 496.
88 In Bailey v Marinoff (1971) 125 CLR 529 Gibbs J made certain observations at 539 about this principle. His Honour observed that it is a well settled rule that once an order of a court has been passed and entered
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or otherwise perfected in a form which correctly expresses the intention with which it was made the Court has no jurisdiction to alter it. The Rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing. However, the Rule is not inflexible and there are a number of exceptions to it in addition to those that depend on statutory provisions such as the slip rule found in most Rules of court.
89 He observed further that the Court has the power to vary an order so
as to carry out its own meaning or to make plain language which is doubtful, and that power does not depend on rules of court, but is inherent in the court. Further, it has been held that a court may amend a part of a judgment or an order which is not the operative and substantial part. Similarly, the rule that a court may review an order made ex parte has been said to be a rule of natural justice or an elementary rule of justice and this can only mean that the power is traceable to the inherent jurisdiction. Moreover, it has been held that in certain cases circumstances occurring since the judgment may warrant the making of a supplemental order. His Honour noted also that where springing orders are made allowing for the dismissal of an action unless a condition such as delivery of particulars is fulfilled within a specified time, it has been held the Court may entertain an application for extension of time for appealing against the order so that on appeal the time allowed by the original order can be enlarged.
90 In Woods v Sheriff of Queensland (1895) 6 QLJ 175, being one of the authorities relied upon by Gibbs J in Bailey v Marinoff (supra), it was said that when a judgment or order is pronounced or made after hearing both sides, it is a general rule that the Court which pronounced the judgment or made the order cannot reverse or vary it. However, when an order is made ex parte, the Court or Judge making it may, upon application of any person prejudicially affected by the order, review and, if necessary, discharge it.
91 This approach can be illustrated by reference to Taylor v Taylor (1979) 143 CLR 1. In that case a wife brought proceedings for dissolution of marriage and other relief. Through no fault of his own the husband was neither present nor represented at the hearing of the petition. A decree nisi was made and the husband was ordered to transfer his interest in the matrimonial home to the wife. On learning of the decree, the husband applied for a variation of the order. Through no fault of her own the wife was neither present nor represented at the relevant hearing.
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The High Court held that an order made against a party who did not have a reasonable opportunity to appear before a court and present his case, ought in a proper case, to be set aside. The Family Court had inherent jurisdiction to set aside an order made in default or ex parte. Gibbs J referred with approval to the reasoning of Rich J in Cameron v Cole (1944) 68 CLR 571 at 589 that it is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case.
92 Justice Gibbs referred with approval also to the reasoning of
Dixon CJ and Webb J in Commissioner of Police v Tanos (1958) 98 CLR 383 at 395 that it is a deep rooted principle of the law that before anyone can be punished or prejudiced in his person or property by any judicial or quasi judicial proceeding he must be afforded an adequate opportunity of being heard.
The inherent jurisdiction
93 At the hearing of the present application counsel on both sides
appeared to accept that the specific power allowed to the Court by O 34 r 3 to set aside a judgment or order where a party had failed to appear should be regarded as an exception to the principle enunciated in Bailey v Marinoff (supra) expressly allowed for by the Rules of Court. This is consistent with the reasoning of Gibbs J in that case in which his Honour noted that the basic principle is subject to a number of exceptions. Further, and in any event, as I indicated in earlier discussion, the order made in the present case cannot be characterised as a perfected final order so that the judicial officer is functus officio in respect of all matters in issue. It went only to the question of liability. Accordingly, in my view, if the Court is persuaded that sufficient grounds exist to justify the order previously made being set aside, then the Court has power to proceed in that way pursuant to O 34 r 3.
94 The power of the Court to act pursuant to its inherent jurisdiction in
the manner allowed for by the High Court in Taylor v Taylor (supra) was not fully explored at the hearing before me. However, the rules of natural justice underlined by the High Court in Taylor's case, clearly have a bearing upon the exercise of the power contained in O 34 r 3 and may provide another avenue of relief if, for any reason, O 34 r 3 was not thought to be a sufficient source of power.
95 In that regard, I am inclined to keep in mind the observations made
by Roberts-Smith J in Keyside Investments (WA) Pty Ltd v Quartz Water
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Leonora Pty Ltd (supra) at [36]. That was a case in which application was made to set aside an order dismissing the appellant's appeal for want of prosecution where a failure to attend the relevant hearing was said to be due to a misunderstanding or confusion on the part of counsel as to a hearing date. It was said in those circumstances it would be unjust to allow an order of dismissal to stand and that it should be set aside. His Honour made these observations:
"36
So far then as the inherent jurisdiction of the Court is concerned, and bearing in mind in particular the respondent's concession in that regard, I remind myself that rules and forms of procedure are not ends of themselves but are means to an end, which is the attainment of justice; and here I am referring in particular to paragraph 1.0.4 of Seaman's 'Civil Procedure'.
37
I accept the position is as set out by the learned author in that paragraph and that in substance the true rule is that a Court may exercise its inherent powers in respect of matters regulated by statute or by Rules so long as it can do so without contravening them, the general position being that a judge cannot dispense with the requirements of the Rules unless the Rules themselves give the power to do so. One cannot rely upon inherent powers as a means of (as the learned author puts it) escaping from the necessity of ensuring that a condition required or imposed by the Rules is fulfilled.
38
In the present circumstances I am also mindful of the principle and philosophy underlying the decision of the High Court in Taylor v Taylor (1979) 143 CLR 1, in which the High Court emphasised the fundamental principle of natural justice that a party is entitled to be heard, and that if by some accident or mischance a party is deprived of that entitlement and no injustice to other parties is involved, then a Court has inherent jurisdiction to set aside an order, subject obviously to suitable terms if necessary.
39
In the present case it does seem to me, in light of the explanation offered and in light of the consequences to both parties were I either to set my earlier order aside or not do so respectively, that justice would best be served
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by me setting the order aside, notwithstanding that it has been perfected to the extent that the formal order has been extracted and served."
The power to set aside
96 As to the application of O 34 r 3, a number of observations about this
matter appear in Seaman Civil Procedure (supra) at par 34.3.1. The learned author observes that the application to set aside should be made to the trial Judge if that is possible. The time for making the application may be extended. An affidavit of merits is not essential but generally the Court requires an affidavit not only of merits but also an explanation for the absence of the party which shows that justice requires that the parties should be excused. Furthermore, delay in bringing the application may require explanation, and prejudice to the opponent will be a material matter.
Perhaps the clearest statement of principle is that made by Jordan CJ in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243:
"In such a case, when the plaintiff is in no respect in default, a new trial, will not be granted, save in very special circumstances: Chitty's Archbold, 10th ed., 1437; 12th ed., 1526. In every such case the Court has an inherent and unfettered, though judicial, discretion, in the exercise of which it will, however, necessarily consider (a) whether any useful purpose would be served by setting aside the judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained: Evans v Bartlam [1937] A.C 473 at 482. As a general rule (although not necessarily in every case, if some reason exists for departing from it: Collins' Book Depot Pty Ltd v Bretherton [1938] V.L.R 49), the Court requires an affidavit showing prima facie that the defendant has a good defence on the merits: Evans v Bartlam (op cit), and also an explanation of his absence which shows that justice requires that in the circumstances it should be excused. And if there has been gross negligence on the defendant's part, the Court will be the more disposed to require at least a reasonably clear case of merits to be shown, to incline it to interfere: Nash v Swinburne 3 M. & G. 630 at 632; Weitzel v Friedenreich 14 WN 7"
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General observations
98 It emerges, then, from a consideration of these Rules and decided
cases that a notice of motion for contempt brought pursuant to s 250 of the Legal Practice Act must specify the grounds of complaint with particularity and the contemnor must be served personally. This is necessary to establish the jurisdiction of the Court and to comply with the requirements of natural justice that the contemnor be informed of the case against him and be afforded an opportunity to be heard. It appears that these requirements were fulfilled in the present case.
99 The difficulty that arose in the present case is that the respondent
chose to act on his own behalf. I find that he did not enter an appearance or provide an address for service. Having been served with the initial process, he did appear at hearings in chambers thereafter and thereby clearly submitted himself to the jurisdiction of the Court. However, he failed to attend on the date listed for hearing of the matter, namely, 7 August 2006 although there is evidence before me that notice of the hearing was posted to him at the Subiaco post box address by the solicitors for the applicant and by the Court itself.
100 The respondent has sworn an affidavit to the effect that he did not in
fact receive any correspondence giving notice of the hearing at 320 Railway Parade, West Leederville, being the address he regarded as his address for service. It is said that this explains his failure to attend the hearing at the appointed time.
101 It emerges from earlier discussion that the Court has power to set
aside the order that was made against the respondent in his absence pursuant to O 34 r 3, or pursuant to its inherent jurisdiction. However, this requires the Court to be satisfied that the applicant was not in default, that the respondent had a sufficient explanation for his absence and has a good defence on the merits of his case, or otherwise there are circumstances, having regard to the rules of natural justice, that would make it unjust for the order made in his absence to be kept in force.
With these general observations in mind, I must now turn to the three central issues mentioned earlier.
The first issue
103 The first question to be resolved is whether, in a formal sense, the
applicant complied with the Rules of Court and gave the respondent proper and sufficient notice of the hearing on 7 August 2006. I speak of
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this as being the first issue, for it emerges from earlier discussion that a factor bearing upon the exercise of the discretion to set aside is a requirement that the Court be satisfied that the applicant was not in default.
104 It is apparent from my general observations and earlier discussion
that, after some initial difficulty in locating the respondent, the originating motions were eventually served upon him personally in compliance with the Rules of the Supreme Court. This does not appear to be disputed. That fact establishes that the Court has jurisdiction and that consistently with the requirements of natural justice in regard to a serious matter of this kind, the respondent was properly acquainted with the nature of the allegations put against him, and was afforded an opportunity to address those allegations. It was open to him to enter an appearance, provide an address for service, and file answering affidavits. Had he been represented by solicitors these steps might well have been taken on his behalf. However, as I have found, notwithstanding his assertions to the contrary, he did not file and serve any document purporting to contain his address for service prior to the crucial hearing.
105 I am of the view, having regard to the Rules and decided cases
mentioned earlier, that once personal service of the originating motions had been effected, the general rule described by Cairns (supra) at 109 applied whereby documents subsequent to the originating process need not be served personally. This is allowed for by O 72 r 5 whereby documents, other than those required to be served personally, may be served by sending the document by post addressed to the person to be served at his proper address. That can be his usual or last known address and, as indicated by the reasoning of the High Court in Fancourt's case, in the context of provisions concerning service of documents by post this can be an address at a post office or a post box address.
106 In the present case, there is evidence before me in the Meggison
affidavit that as at mid-2006 when notice of the forthcoming hearing had to be given, the Subiaco post box address was being used by the respondent as an avenue of communication. He sent letters from that address and it can be inferred that letters reached him at that address because he attended a hearing before Le Miere J on 7 August 2005 in response to a notice of the hearing given to him by post at the Subiaco post box address. At the hearing in question he had an opportunity to query the sufficiency of notice being given to him at that address but failed to do so. On the other hand, there is evidence before me that, notwithstanding the assertions contained in his recent affidavits, as at
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mid-2006 there were indications that he was either not resident at 320 Railway Parade, West Leederville or not willing to treat it as a place of service. A process server had been informed that he had ceased to reside at that address.
107 Accordingly, having regard to the reasoning in Fancourt's case, I consider that as at mid-2006 the applicant's solicitors were entitled to treat the Subiaco post box address as the applicant's usual or last known address in regard to service of documents by post. There is evidence before me that notice of the hearing was sent to the respondent at the Subiaco post box address by the applicant's solicitors and by the Court and there is no clear evidence to the contrary, for the respondent in his recent answering affidavit has only been prepared to say that he did not receive any correspondence referring to or containing notice of the hearing at the address he himself regarded as his address for service, namely, 320 Railway Parade, West Leederville. In these circumstances, s 75 of the Interpretation Act permits me to infer that the letters from the applicant's solicitors and the Court containing notice of the hearing were served by post because service is deemed to occur when the document would be delivered in the ordinary course of post.
108 It follows from all of this that I am of the view that the respondent
was served with notice of the hearing and has failed to provide a satisfactory explanation for his absence. Further, the applicant was not in default in regard to giving notice of the crucial hearing. The notice of the hearing was in fact served in a manner allowed for by the Rules. However, it is an undisputed fact that the respondent did not appear at the hearing on the appointed date. He was afforded an opportunity to be heard but was not actually heard in his own defence in regard to a matter of importance. This brings me to the second and third issues.
The second and third issues
109 Even if it be held that the respondent was given notice of the hearing
in compliance with the Rules, and that the applicant was not in default in that regard, there is a further question to be resolved as to whether the respondent should nonetheless be afforded relief because, for whatever reason, he was not present at the hearing and findings in an important matter were made against him in his absence.
110 This issue brings into play consideration of various matters I
mentioned in earlier discussion with respect to the inherent jurisdiction of the Court. The rules of natural justice undoubtedly require that before anyone can be punished by any judicial proceeding he must be afforded
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an adequate opportunity of being heard. It is apparent from Taylor's case (supra) that the Court has an inherent jurisdiction to set aside an order which infringes this principle.
111 Thus, it can be argued in the present case that even if notice of the
hearing was served by post in compliance with the Rules, in a matter of this importance, further steps should have been taken to ensure that the respondent appeared at the hearing, and was able to put his case. It appears from the narrative that this would probably have required yet another adjournment, the making of directions for personal service of further documents, and perhaps even further orders and directions concerning the provision of answering and responsive affidavits, and with consequential directions as to the cross-examination of deponents on their affidavits.
112 I accept, having regard to the decided cases, that the Court under
O 34 r 3, and in any event in the exercise of its inherent jurisdiction, has power to set aside the 4 October orders, even in the absence of any default on the part of the applicant and even in circumstances where notice of the hearing had been served upon by the respondent, but for some reason was not acted upon by him. However, it must be clearly understood that the power to set aside in these circumstances is concerned with the question of whether the respondent was afforded a sufficient opportunity to be heard. It is immediately obvious that it is not sufficient for the respondent simply to say that he was not present at the hearing in question.
113 The question of whether the order made against him in his absence is
to be set aside must be considered in the context of whether he was afforded an opportunity to be heard and whether there was any default or lack of diligence on his part in taking advantage of the opportunity. Moreover, as appears from what was said by Jordan CJ in Vacuum Oil (supra) this is bound up with the question of whether the person seeking to set aside a judgment or order has a good defence on the merits. Jordan CJ observed in the Vacuum Oil case that if there has been gross negligence on the defendant's part, the Court will be the more disposed to require at least a reasonably clear case of merits to be shown, to incline it to interfere.
114 As to the second issue, my provisional view is that in the
circumstances of this case the respondent was afforded a sufficient opportunity to be heard. He was given an ample opportunity to file answering affidavits directed to the merits. The hearing before Le Miere J was adjourned to allow him to proceed in that manner or otherwise to
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define his stance before the Court more exactly. He failed to take advantage of that opportunity and this led to further delay. It follows from my earlier finding that in mid-2006 he was then given notice of the relisted hearing. If he did not in fact receive notice of the hearing, and was completely unaware that the hearing was to take place, I would have expected to see an emphatic and unequivocal assertion to that effect. However, as I have noted, he was prepared to say only that he had not received notice at the address he regarded as his address for service, even though, in the absence of any document filed with the Court setting out his address for service, his position in that regard appears to have been based upon a misconception as to the true state of affairs.
115 I perceive, having regard to the decided cases, that these objections
could be overcome if the respondent was able to demonstrate that he has a good defence to the allegations against him on the merits. It is for that reason that I spoke of my "provisional" view in regard to the second issue. In other words, my provisional view is subject to an examination of the respondent's position with respect to the various charges of contempt and the allegations made against him. Since the originating motions were served upon him personally on 23 March 2005 he has had close to two years to define his position and to put up an opposing case. It was not until affidavits were prepared and filed in November 2006 that the position he contends for has been supported by sworn evidence.
116 This leads into the third issue to be resolved, that is, whether there
are facts and matters raised by the respondent in his various recent affidavits concerning the merits of the matters in dispute sufficient to justify setting aside the 4 October orders, even if it be held that there was default on his part in failing to attend the hearing.
117 Accordingly, before finally disposing of the second and third issues,
I must look at the affidavit evidence before me bearing upon the evidentiary issues underlying the allegations of contempt.
The merits
118 The allegations underlying the five originating motions for contempt
and the evidentiary materials bearing upon them are described fully in the 2006 judgment. It would be unnecessarily prolix for me to repeat them in this judgment, bearing in mind that the respondent is now fully conversant with the 2006 judgment and was in a position to prepare his recently filed affidavits with an eye to what appears in the 2006 judgment. In other words, it has been open to him since the handing down of that judgment, and his decision to apply to set aside the related orders, to raise matters
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casting doubt upon the reasoning and conclusions expressed in the judgment, and to indicate the way in which the evidence relied upon by the applicant would be tested by cross-examination or countervailing evidence if the judgment was set aside and the respondent was afforded an opportunity to be heard further. The discussion about the merits in this judgment must be viewed in that light.
The Grover matters
119 As to CIV 2523/04, it was alleged that the respondent engaged in
work in connection with the administration of the law by providing written advice in his letter dated 22 August 2002, attending meetings and preparing instruments in writing dealing with or affecting real or personal property.
I made, inter alia, these observations about the first Grover matter:
"37 The 22 August Grover letter is set out beneath a letterhead which permits an inference to be drawn that the author of the letter wished it to be thought that he was the principal in a law firm, for the heading refers to: "Frichots, Principal M Frichot Llb; PO Box 137, Subiaco WA 6008". The letter acknowledges receipt of various papers bearing upon the action initiated by the liquidator for possession of the premises with a view to effecting a mortgagee sale in due course. The respondent reviews the available lines of defence and the avenues open to Mr and Mrs Grover. The respondent then observes: 'The first option is the more practical avenue as you needed to refinance the loan and would have had to provide a clear title to obtain that loan. This means that you had to pay out the liquidator to provide the new lenders a clear title against which to register their mortgage. The second option would have been available in circumstances where you had the money from a source that did not involve a new mortgage over Hillside. This was not an avenue open to you from what you had previously informed me.
Your defence in the Supreme Court was only to delay the inevitable. You will be liable not only for the costs to your solicitor but also for the costs incurred by the liquidator on a solicitor client basis. The mortgage
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document gives the Mortgagee the right to claim costs on that basis for any enforcement proceedings. This is an expensive exercise for you.
It is unfortunate that you did not pursue the avenue of refinancing the loan and arguing with the liquidator at a later date for any over payments.
You now have a limited time to settle with the liquidator to avoid losing the farm. You can still make a claim after settlement for any sum that you can show that you have paid but were not liable for or that you may not have received in the first place.'
38 Mr Grover said that the respondent also drafted legal documentation to take to the solicitors representing he and his wife in Court as to the litigation involving Graeme Grubb. These documents included a draft defence and draft affidavits. The respondent also attended meetings as their legal adviser with various solicitors. Further, the respondent drafted documentation regarding investor loans relating to Oakleigh on behalf of Mr and Mrs Grover."
121 I found at [100] of the 2006 judgment that the respondent's letter
dated 22 August 2002 established clearly that he held himself out as a person with legal qualifications who was prepared to and did offer legal advice to Mr and Mrs Grover as to how they should deal with the problem concerning mortgage payments due to Oakley. It was clear that the respondent was involved in the preparation of legal writings and was minded to and did charge for his services in the manner of a legal practitioner.
The respondent, in his affidavit sworn 17 November 2006 concerning the merits, confirms that he has read the affidavits of Mr and Mrs Grover sworn 3 October 2004. He refers to the nature of his association with Mr and Mrs Grover. He accepts that Mr Grover appointed him to act as his business consultant and to try and assist him in the refinancing of the relevant farming property. The respondent confirms that he received payment for his services. He referred to some dissatisfaction with the work being done by Mr Grover's then solicitors. Importantly, the respondent does not deny that he prepared the letter of 22 August 2002 and indeed there appears to be an admission that he did
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so at par 20 and par 21 of his affidavit. He says that he made it clear to the Grovers that although he had been a solicitor, he was no longer one, and referred them to other solicitors for advice. However, the respondent does not directly challenge the allegations and finding made against him that by the letter he held himself out as a person capable of providing legal advice and in fact proceeded to do so.
The respondent said this in his affidavit sworn 17 November 2006:
"18. The many discussions I had with the Grovers over the many months I saw them was circular, in the sense that the same matters were raised over and over again. They accused the firm of Shane Brennan or Wojtowicz Kelly of having failed to represent him properly, that the Receivers had by then seized his farming property and that he felt entitled to a claim in damages.
19.
It was clear to me that neither Shane Brennan nor Wojtowicz Kelly was not negligent in their work and I wrote a letter to the Grovers that the judgment obtained against them was correct. I could not pursue that avenue as a claim through the debt collection agency.
20.
At the time I thought I could set up some sort of business consultancy work. I even wrote a couple of letters to the Grovers but it was a mistake on my part to attempt to do so and I quickly realised that I could not and should not use that form of heading for my letters.
21.
I was more interested in a possible claim as against the Receivers and we had numerous discussions about that aspect.
22.
I made many phone calls and enquiries in relation to this matter including calls to Bird Cameron and I had one meeting at Gavan Kelly's office at Wojtowicz Kelly. That meeting which only lasted for about 20 minutes was so that Mr Kelly would release some of his files to Mr Grover and I had been invited by Mr Grover for moral support and so I could get some information about the matter to assist me in assessing his potential claim for a recovery.
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23. I was at Wojtowicz Kelly to discuss legal issues and did not do so. This must have been something done a few days later when Mr Grover returned to Mr Kelly's office when I was not present."
124 I pause to note that par 20 appears to contain a tacit admission that
the respondent wrote the 22 August letter (or something like it) and recognises that he ought not have done so. The respondent went on to say this:
"27. In the end I was unable to advance the possibility of making a claim through the debt collection agency as I was having problems reconciling the facts of the case with what Mr Grover was telling me.
28. It was after he informed me that he was hiding from his secured creditors and other creditors, a large commercial trailer valued at about $35,000 on one of his relations farm and that he had moved sheep secured by bill of sale to Westfarmers [sic] to a neighbours property to avoid the sheep being collected by Wesfarmers to satisfy their charge, that I felt that I could not progress any claim for recover where there was to be an eventual problem with his credibility.
29. We parted company in 2003 after I declined to take the matter of his claim forward as I could not see a way that a claim could be made against anyone.
30. My circumstances at the time, that I was disbarred was no secret and Mr Grover was well aware of my circumstances. I had told them that I could not represent them and that their legal advice was as obtained from their solicitors. I suggested to them to see Murfett & Co for ongoing legal advice which they did.
31. I am aware by a comment by Mr Murfett at some time later that the Grovers retainer had been terminated as the Grovers had not paid their bills.
32. Mr Grover makes a reference in his affidavit that Mr Ritchie referred to me as his solicitor, this comment was never made in my presence. Even if that statement was made I made it quite clear to Mr Grover on a number
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of occasions that although I had been a solicitor, I was no longer one and the reason why I referred him to Murfett & Co for any legal issues and advice.
33. During the course of the many times I saw Grover he did offer to reimburse me for out of pocket expenses and I did receive some money from him or his company and I was paid $150 a sum that we agreed at the time. There was another payment of some money but not as suggested in the affidavit VJG4 of Mrs Grover which appears to be a cheque butt and I never received cash as alleged form [sic] them.
34. The documents mentioned in Mr Grover's affidavit WJG3 were documents that were prepared at the time he was represented by Murfett & Co and not drafted by me.
35. I have never stated an hourly rate let alone a rate of $70 per hour to Mr Grover. I have spent well over 100 hours and have not demanded or asked or invoiced for payment in any sum resembling the time spent. I know that as a consultant I should have charged for the time spent with him, but I did not, and what ever I received form [sic] him was accepted as acting as his business consultant.
36. Had the debt recovery gone ahead as had been discussed the Debt Collection Agency would have done the work for a commission on success.
37. I had at the time set up a separate firm for a short time to raise a consultancy fee with the Agency but gave up the concept in late 2002.
38. I did write the letter WJG3."
I pause here to note that in a later affidavit sworn 22 November 2006 the respondent made some corrections to the earlier affidavit. Paragraph 23 was supposed to read that he was not (emphasis added) at Wojtowicz Kelly to discuss legal issues. He had simply gone there with Mr Grover so that the latter could collect his file. In par 38 he meant to say that he wrote WJG1 (the 22 August letter) not that he wrote WJG3.
126 As to this matter, I am not persuaded that the respondent has a good
defence on the merits. The respondent does not dispute that he wrote the
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crucial letter. He purports to dispute certain factual issues concerning the basis on which payments were made and as to advising the Grovers about his status.
127 However, these protestations occur within a context confirmed by his
own admissions that he was assisting them in their business activities and at a time when they were dissatisfied with legal advice from other quarters. The 22 August letter (WG1) speaks for itself. It is a carefully structured letter by an adviser who mentions his legal qualifications and is clearly writing with an eye to all the legal implications inherent in the matter. It contains advice.
128 To my mind, the matters raised by the respondent are not sufficient
to displace or cast doubt upon the central allegations and findings made
against him in respect of this matter.
CIV 2524/04
129 As to CIV 2524/04, the essential elements of the originating motion
were that the respondent acted on instructions from Colin Ritchie and Solitaire Investments Pty Ltd to lend money to Heartwood Nominees and Mr and Mrs Grover. In doing so, he prepared, or caused to be prepared a letter of loan, a bill of sale over livestock or wool and a mortgage. Such documents were dated 16 August 2002.
In the 2006 judgment I summarised the evidence bearing upon the allegations in this way:
"46
This motion was supported by the affidavit of Mr Grover sworn 3 October 2004. He said that in July 2002 his company, Heartwood Nominees, required a short term loan in order to purchase extra nitrogen to put in a farming crop. He telephoned a friend, Ms Paula Sims, who was a financial planner, to ask for her advice as to where he would be able to secure a short term loan. He met with Ms Sims a short time later to discuss the problem and she advised that Mr Colin Ritchie might be able to assist. He contacted Mr Ritchie and discussed a proposed 3 month loan of $36,000 being $30,000 in respect of principal and $6000 for interest, with a right to roll over the loan after the 3 month period.
47
On 16 August 2002 Mr and Mrs Grover met with Mr Ritchie at his home office in South Perth and were
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advised that he was waiting for his lawyer to arrive with the loan documents. While they were waiting, they spoke to Mr Ritchie about problems they were having with the farm and the mortgage over the farm. Mr Ritchie recommended that they speak to his lawyer as he was very experienced and only charged $70 per hour. Shortly afterwards they were introduced to the respondent. He produced the loan documentation and the Grovers were advised by him and Mr Ritchie that he had prepared the relevant documents being a letter of loan, a bill of sale and a mortgage. Mr and Mrs Grover signed the loan documents evidencing that Mr Ritchie's company Solitaire Investments Pty Ltd was lending funds to them. Each document was dated 16 August 2002.
48 According to Mr Grover, he was told that he had to pay $1500 for the preparation of the documentation. Mr Ritchie asked if he wanted to pay the amount in question separately or whether he wanted to deduct it from the loan. He requested the latter course and in the event the loan cheque he received was in the amount of $28,500 (being $1500 less than the agreed advance of $30,000). After the documents were signed, Mr Ritchie suggested that the Grovers speak separately with the respondent regarding their other legal problems. The respondent advised the Grovers that he was able to do any legal work that they needed and that he charged $70 per hour. He then gave them his contact telephone number and in due course they spoke to him about another legal problem."
131 I digress briefly to note (because it is a matter mentioned in one of
the respondent's answering affidavits that I will come to in a moment) that the assertions described in the last three sentences of [48] above concerning the respondent's availability to do legal work at an hourly rate were set out in par 12 of the Grover affidavit.
132 In the 2006 judgment I went on to note that this evidence was
corroborated by Mrs Grover's affidavit. I noted also that a witness declaration forming part of the Bill of Sale evidences that the respondent, whose name appears as an attesting witness, was present at 320 Railway Parade, West Leederville on 16 August 2002 when the document was
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eventually executed by Mr and Mrs Grover. I eventually came to this
conclusion:
"101 In dealing with the various Grover matters, I consider that I am entitled to consider the evidence directed to these matters as a whole. Accordingly, the presence of the respondent's letter dated 22 August 2002 can be viewed as part of the matrix of facts and circumstances within which the second and third matters fall to be considered. Accordingly, as to the second matter, I am satisfied that the respondent presented himself essentially as a person acting in an independent or quasi independent capacity, who was acting as a lawyer in preparing the relevant documentation concerning the loan arrangements. I am able to infer also from the documents, the sequence of events and the relevant conversations that the respondent prepared the documents in question and was thus involved in practising law. Further, he charged for his services. I am satisfied that the allegations, the subject of this motion, have been made out."
The respondent in his answering affidavit as to CIV 2523/04 acknowledged that he was employed by Mr Richie and his group of companies "on a casual basis". Mr Ritchie needed assistance with all aspects of his business. The respondent said that his work was general in nature and involved meeting with him at his home office, negotiating as directed for the loans that he made, "and to do letters and mortgages that he had to evidence the loans that he made". He goes on to say that it was in relation to one of those loans that he met the Grovers and witnessed their signatures on documents they signed.
134 In his answering affidavit as to this matter (that is, CIV 2524/04) the
respondent provided further information about the nature of his relationship with Mr Ritchie including that his work with Mr Ritchie encompassed all aspects of his various businesses, Mr Ritchie negotiated his loan arrangements by himself, that the respondent was to be paid at the rate of $50 per hour although the arrangement was fairly relaxed, the payments the respondent received averaged about $500 per month.
More particularly, as to the Grover/Heartwood loan arrangement, the respondent said this in his affidavit:
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"4.
Under instructions from Mr Ritchie I was asked to prepare loan papers for Heartwood Nominees Pty Ltd and Mr and Mrs Grover for a loan of $30,000.
5.
The papers annexed to that affidavit was prepared by myself for Mr Ritchie's company Solitaire Investment Pty Ltd as trustee for the Solitaire Superannuation Fund. He had mortgages from previous loans which were adapted to fit the loans he was then making such as the Grovers and the Hughes.
6.
That is, I copied an existing mortgage he had and changed the names and the figures in the forms and the document to comply with his directions and printed them up for signing by the Grovers.
7.
These lenders were introduced to Mr Ritchie by Paula Sims, a finance broker.
8.
I thought that I was able to do those documents as an employee. I did not raise a fee not [sic] get paid by the Grovers for that work.
9.
I was present for most of the time that the Grovers were at Mr Ritchie's premises and the statement alleged at paragraph 12 was not made and if made would have been incorrect.
10.
I have always informed the Grovers that although I had been a solicitor I was no longer one. They already had solicitors acting for them in any event.
11.
I spoke to the Grovers some time after I met them at Mr Ritchie's office, and I was interested to see if a claim could be made for a recovery action through the debt collection firm I worked for.
12.
Mr Grover also appointed me to act as a business consultant on their behalf and to assist them in trying to refinance their mortgage.
13.
I do not do work on an hourly rate and never charged the Grovers an hourly rate. Nothing formal was arrived at and if a rate of $70 per hour was mentioned, I have no
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specific recollection of it and I have never raised an
invoice based on that rate."
136 Again, the respondent does not address directly the specific
allegations or findings made against him as to this matter. He simply attempts to diffuse the criticism by suggesting that he was involved in helpful activities of a general kind for the benefit of Mr Ritchie. Importantly, however, he admits that he prepared the subject documents and did so in a context in which he was to be remunerated for his services, if not by the Grovers directly, at least by Ritchie, as the person who employed him on a part-time or casual basis.
137 To my mind, what is said in his affidavit constitutes an admission of
the allegations that lie at the heart of the case reflected in the originating motion. It is apparent from Legal Practice Board v Tilley & Anor [2006] WASC 73 that, as a matter of law, an independent contractor or quasi-employee, who prepares legal documents at the behest of his client or employer by changing the details on existing forms or precedents, can nonetheless be held guilty of infringing s 77 of the Legal Practitioners Act. He acts as a solicitor if he does something which is to be done only by those who have the necessary training in the law and assumes responsibility for the efficacy of the document. The respondent's work was clearly of that description in the present case. The respondent's proposed line of defence appears to be based upon a misconception as to the effect of the relevant provisions.
138 In Legal Practice Board v Taylor [2005] WASC 242 the respondent in that case was found to be guilty of contempt because he assisted in the preparation of probate documents and, in a situation much like the present case, while purportedly acting as a business consultant, assumed responsibility for the finalisation of a loan document to be signed by a firm with which he had a close association. The judgment included these observations:
"33
The purpose of the relevant legislation is to protect the public to ensure that legal work is only carried on by certificated practitioners who are properly trained and who are subject to the professional standards and ethics of the legal profession and compulsorily insured: D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191.
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34 In Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 Brinsden J was of the view that the expression 'administration of law' is to be read as meaning 'the practice of law' and this meaning should be given to the phrase in s 77 of the Legal Practitioners Act. He went on to suggest that the practice of law includes also 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.
35 It is apparent from Cornall v Nagle [1995] 2 VR 188 that where a person in bringing documents into existence exercises his mind as to what is the appropriate form of words to accommodate the particular case, then this can be regarded as drawing or preparing a legal document. "
139 These observations are applicable to the circumstances of the present
case. The parties to the transaction were clearly looking to the respondent to ensure that the documentation was appropriate and binding, and he assumed that responsibility. His work was more than merely clerical. It was central to completion of the transaction.
140 Accordingly, I am not persuaded that he has a good defence on the
merits in respect of this matter or that setting aside the judgment would
alter the outcome.
CIV 2525/04
141 As to CIV 2525/04, the essential elements of the originating motion
were that the respondent rendered legal advice to the Grovers on behalf of Heartwood Nominees in relation to an unpaid fuel account. Further, in that regard, it was said (and so found) that he provided written legal advice dated 30 August 2002 and oral legal advice on the same date.
I remind myself that I said this about the letter in question in the 2006 judgment:
"55
According to Mr Grover, the respondent gave advice over the telephone to the effect that all Mr Grover could do was to speak to the solicitors who had issued the summons and to get them to withdraw that summons. He
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advised also that Mr Grover would have to pay some of the costs associated with the summons. He asked Mr Grover to send the relevant documentation to him by facsimile transmission which Mr Grover proceeded to do.
56 Mr Grover said further that the respondent confirmed his oral advice by a letter to Mr Grover and his wife dated 30 August 2002. A copy of the subject letter (on the 'Frichots' letterhead described in earlier discussion) reads as follows (omitting the inessential parts):
'I have received the papers in relation to Westfuel. The payment was received after the summons was issued. You are liable for the costs on the summons and subsequent court costs. These would amount to about $400 depending on what has been done since the summons was issued.
To set aside the judgment, you will need to file a chamber summons supported by an affidavit and you will need to appear in Court on that application and put your case as set out in the affidavit to the Magistrate.
You should in the meantime ring Arns & Associates to see if they will consent to the judgment being set aside and make a deal on costs to finalise the matter.
Give me a call on 0438 320 388.'
57 Mr Grover went on to say in his affidavit that he gave instructions to the respondent to act on his advice. Later, the respondent told him by telephone that he had contacted the solicitors who had issued the summons and that it was withdrawn. The respondent told him on the telephone that the respondent's fee for this advice was $300. He said also that he would not be sending an account. Mrs Grover then sent a cheque in the amount of $300 to the respondent on 17 September 2002 but they were never sent a receipt for the payment."
143 To my mind, the letter speaks for itself, and its own terms is a potent
piece of evidence weighing against the respondent. He is clearly
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purporting to provide legal advice, with the letter in question having been
written shortly after his earlier letter dated 22 August 2002.
The answering affidavit of the respondent sworn 17 November 2006 admits that he wrote the subject letter and does not expressly deny the rendering of the oral legal advice. The respondent had this to say about the matter in question:
"5. I did write the letter of the 30 August attached to the affidavit of Mr Grover and marked WJG2. I did not however receive document WJG1. 6. Mr Grover had spoken to me about some difficulty that he had with his petrol bill and I sent him the note on the 30 August. Mr Grover had at the time asked me to act as a business consultant for him and his company and this was put in writing in September 2002. I refer to my affidavit in the other matter. 7. I did not raise a fee and the stub VJG3 would appear to be from a deposit book. I have no recollection of having received that sum of money from the Grovers at that time. 8. The Grovers were at the time receiving their own legal advice about their many issues but they felt comfortable to go over every matter and problem with me as they were very keen to make a claim for what they perceived to have been improper action taken by the liquidators in taking their farm over. 9. I did feel sorry for them at the time and we did talk at length about many issues they had and I did sent [sic] that note re the petrol bill at the time. 10. Whatever money I received from the Grovers or their company was made at their offer and in part to refund the many phone calls I made for them, the searches at the companies office and at the titles office to get an understanding of what was going on and in accordance with my appointment as a consultant to try and discharge their mortgage over their farming property."
145 In my view, the matters raised by the respondent are not sufficient to
displace the clear inference to be drawn from the terms and tone of the
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crucial letter dated 30 August 2002 that legal advice was being proffered to the Grovers as to what could be done about the debt. The question of remuneration is a subsidiary issue which does not stand in the way of a finding against the respondent. Moreover, even on his own account of what occurred, it would be open to the Court to infer that the respondent stood to gain by acting as an adviser to the Grovers in respect of this matter.
146 I do not consider that he has a good defence on the merits or that
setting aside the judgment would alter the outcome. The matters relied upon by the applicant are not sufficient to raise a reasonable doubt as to the validity of the finding against him.
The Hughes matter
147 CIV 2526/04 concerned an allegation that the respondent acted on
instructions from Mr Ritchie and Felspar Quarries Pty Ltd to lend moneys to Beverley and Christine Hughes. It was alleged that the respondent prepared the documents mentioned in the originating motion.
148 The nature of the affidavit evidence concerning this matter was the
subject of a lengthy summary at [59] to [79] of the 2006 judgment. It
would be unnecessarily prolix to repeat what was said then.149 In essence, it was alleged that in acting on instructions from Ritchie
and Felspar Quarries to make the subject loan the respondent prepared a letter of loan to be signed by Beverley and Christine Hughes and a second mortgage over their land at Henley Brook.
150 My summary of the affidavit of Sandra Hughes included at [68]
reference to an admission made by the respondent in the course of giving evidence to the Commercial Tribunal on 9 December 2003 that the letter of loan which he handed to Beverley Ann Hughes "was prepared by me working for Colin Ritchie's company Felspar Quarries …".
The 2006 judgment also included these passages concerning the Hughes matter:
"77
Mr Hansbury said in his affidavit that he knew Mr Frichot was working for and with Mr Ritchie but he did not know in what capacity. On 21 August 2003, Mr Frichot advised him that he had drafted a new loan contract for Mrs Hughes to sign. A copy of the contract was sent to Mr Hansbury via a facsimile transmission at 9.27 am on
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that day. The fax in question from the respondent to Mr Hansbury was exhibited to the latter's affidavit and reads as follows:
'Paul
Felspar Quarries Pty Ltd is prepared to discharge and re-register its mortgage on the terms contained in the letter of loan attached. Felspar is to receive $36,000 at settlement and the new mortgage on similar terms will be for $30,285 which includes the establishment fee of $2,000. On receipt of the signed offer, faxed to 9450 5550 the necessary papers will be prepared by Felspar Quarries Pty Ltd.
Maurice for Felspar Quarries Pty Ltd.'
78 Later on the day of 21 August 2003 Mr Hansbury received at 3.41 pm a further fax with a further loan agreement from Mr Frichot which had the principal sum of the loan as $38,816.51. That fax reads as follows:
'Paul,
This is the replacement letter of loan for the Hughes. I apologise for the error in the principal sum earlier. This document is the basis of Felspar Quarries Pty Ltd remortgaging the Hughes.
Regards
Maurice for Felspar Quarries Pty Ltd' "
152 Findings were made in the 2006 judgment to the required standard of
proof beyond reasonable doubt that the respondent was actively involved in the preparation of instruments and writings affecting the rights of Mrs Hughes and was thus involved in the administration of the law. He was remunerated for his services. It was clear from his fax transmission to Mr Hansbury on 21 August 2003 that he was acting in the manner of a legal practitioner in representing Felspar Quarries.
The respondent's answering affidavit sworn 17 November 2006 concerning the Hughes matter included these passages:
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"5. I do not know what Mr Ritchie said to Mrs Hughes but I was asked by Mr Ritchie to complete some mortgage forms for his company and deliver it to Beverley Hughes near the Central Law Courts so that she could take the documents home for execution. 6. These papers were returned to Mr Ritchie direct and some time later he asked me to take the papers for stamping and lodge at the Titles Office. 7. I thought that I was able to do that work as this sort of work is done by lay people at banks and financial institutions in Perth every day of the week. 8. The documents were prepared at the direction of Mr Ritchie. 9. I saw the Hughes much later when they defaulted under their mortgage and I was asked to serve a notice of demand and later a copy of a Writ issued by Mr Ritchie's solicitors on the Hughes. 10. In the course of serving various documents as directed by Mr Ritchie's solicitors I did attend at their home at Henley Brook to serve them with court documents. 11. I did send a letter setting out a loan as directed by Mr Ritchie who is the sole director and shareholder of Felspar Quarries Pty Ltd to a Paul Blackburn who was at the time trying to refinance the loan of the Hughes and pay out Mt [sic] Ritchie. 12. I do not charge Mr Ritchie nor his companies any legal fees and am not sure about the claim made by Mrs Hughes for a receipt or invoice from Mr Ritchie as I have not received any monies from Beverley Hughes or her sister. The document did charge her an establishment fee of $1400 which I presume is the figure that Mrs Hughes is talking about."
154 The respondent does not appear to dispute that he prepared the
documents in question. He seeks to be excused from liability essentially on the grounds that at the time he was acting on instructions from Mr Ritchie and Felspar. However, having regard to Tilley's case (supra),
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and for the reasons given above in regard to the Grover/Heartwood matter
(CIV 2524/04), this nonetheless amounts to infringing conduct.155 To my mind, the respondent has not raised any matter sufficient to
challenge or cast reasonable doubt on the findings made in relation to this
matter. It does not appear to me that he has a good defence on the merits.
The debt collection agency matter
156 The originating motion in CIV 2527/04 contains an allegation that
the respondent breached the Legal Practitioners Act by commencing two Local Court plaints and performing work in relation to the preparation of the subject documents.
157 The underlying allegations were supported by the affidavit of a legal
practitioner Read who described an arrangement whereby legal process to be issued by the respondent's debt collection agency would be put through Read's firm. Read referred to certain incidents that were not in accordance with the arrangements. The 2006 judgment included this passage:
"90 Mr Read said that on the morning of Tuesday, 27 September 2002 he received two notices from the Local Court Registry, each being a Local Court Notice of Entry of Intention to Defend in the plaints of Mark Xavier Frichot v Adam Blake Preston (Local Court plaint number PE 2002/017696) and Mark Xavier Frichot v Media IQ Corporation Pty Ltd (Local Court plaint number PE 2002/017695). The deponent was deeply concerned about receiving these notices as he had never received any instructions from the respondent or either of the parties named as plaintiffs and nor were any of the parties his clients. It occurred to him that the plaints were further debt collection actions commenced solely by the respondent, having regard to the fact that the plaintiff had the same surname as the respondent.
91 Mr Read was totally unaware of the nature, or the facts, of either of the two plaints being the subject of the notices. The respondent had never contacted the deponent, either in person, by mail or by telephone to discuss these plaints and he had never at any time obtained the deponent's authorisation or consent to issue any proceedings on behalf of the plaintiff, Mark Xavier
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Frichot, in the name of Andrew Read & Associates or to use that law firm as the address for service. The deponent had not seen, settled or signed any summons or other process in these plaints and was totally unaware of them until the notices mentioned earlier were received by him.
92 Mr Read said that he was greatly concerned by what had occurred as this breached the oral understanding and arrangement made with the respondent in that the latter was not to issue any process in the name of Mr Read's firm without Mr Read's prior inspection, settling and signing of the process. …"
158 A finding was made at [104] of the 2006 judgment that the
respondent acted in an unauthorised manner in filing court documents at the Local Court which had been prepared by him but which were not authorised by the solicitor, Mr Read.
159 In his affidavit of 17 November 2006 the respondent admits to
entering into an arrangement with Mr Read. He essentially admits the allegations contained in the Read affidavit from par 1 to par 12 although he alleges that he was at liberty to complete the forms and file them in the name of Mr Read's firm.
The respondent's answer affidavit sworn 17 November 2006 included these observations:
"10.
The contents of paragraphs 1 to 6 of Mr Read's affidavit are not in dispute. I believe that Mr Read is mistaken in paragraph 7 as I told him I was managing a small debt collection agency. I have never owned the agency.
11. The facts contained in paragraphs 8 to 11 are correct. 12.
The provisos in paragraph 12 are at slight variance with my understanding in that Mr Read told me he did not know the forms and that I could prepare them and file them in his firm's name and to keep him informed as to the nature of the claim and for him to have copies of the documents so lodged. I was to do all the clerical work and outside work as he did not have the personnel to do so.
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13. The Potkin matter was a matter issued out of Mr Read's office and went through to a warrant of execution. This matter was completed by Benjamin & de Lestang after Mr Read and All Debts parted ways.
14. All fees to this matter has been paid. I did not receive a fee although the Debt Collection agency collected whatever disbursements it incurred and a commission on the successful recovery of that debt.
15. The Paula Sims matter was done in the same manner and was issued out of Mr Read's office.
16. The Frichot matter referred to 2 small matters for my brother Mark.
17. These documents were issued in the firm name of Mr Read as was the usual arrangement.
18. I attended at Mr Read's office and he was not present and as I was leaving for overseas I lodged the papers at the Local Court but omitted to leave a copy as was the practice at his office. When I was overseas we spoke about the matter and explained what had happened and that I would have his copies delivered to his office on my return.
19. He rang me a day or so later and said that he did not want to act for All Debts anymore and I told him I would attend to the matters on my return."
161 To my mind, the respondent's stance is inconsistent with Mr Read's
affidavit and the course of conduct set out in that affidavit in relation to the first two complaints. More importantly, it does not excuse the conduct of the respondent in any event. The respondent knew, and was expected to know, that to issue plaints or legal process under his own hand, at a time when he was not a certificated practitioner, was in breach of the Legal Practitioners Act.
162 The respondent seeks to excuse the conduct complained of by
saying, in effect, that this was allowed for by the general (or even loose) nature of the arrangements allegedly entered into with Mr Read concerning the filing of court documents. However, even on his own account, at a time when he was working not as an employee of Mr Read,
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but as an independent contractor on his own behalf, he took it upon himself, to sign and issue legal process as if he were a legal practitioner in order to recover a debt for his own client.
163 I pause to say that I doubt that Mr Read was a party to an
arrangement of the kind contended for by the plaintiff. However, as I have indicated, my ruling against the respondent does not depend upon a finding in that regard. Essentially, the respondent acted as a legal practitioner in regard to commencing or advancing legal proceedings by the use of legal forms contrary to the prohibition in that regard in the Legal Practitioners Act.
164 I am not satisfied that the applicant has a good defence on the merits
in regard to this matter, or that his affidavit is sufficient to raise a
reasonable doubt as to validity of the findings made against him.
Conclusion
165 I indicated in earlier discussion that, irrespective of whether the
respondent was given notice of the hearing in compliance with the Rules of Court concerning ordinary service, it would nonetheless be open to the Court, in regard to a serious matter of this kind, to set aside the 4 October orders upon the basis that it would be unjust for findings as to liability for contempt to be made without the respondent actually being heard.
166 Such a step might be taken in circumstances where there was a
degree of ambiguity as to whether the respondent had actually received notice of the hearing. Where a good defence on the merits was demonstrated, such a step might also be taken even if it were accepted that there was a degree of default on the respondent's side in failing to act upon a notice he had received or in standing upon a technicality that he had not been served at what he understood to be his address for service.
167 In other words, in regard to a matter of this seriousness, which could
involve the imposition of a sentence of imprisonment, the inclination of the Court might well be to err on the side of ensuring that the respondent was heard in his own defence, and that the evidence against him was tested, even though such a course would cause inconvenience to an opposing party who was not in default and involve further cost and delay.
168 However, to proceed in the manner I have just described, depended
essentially upon whether the respondent was able to demonstrate that he had a good defence on the merits to the various allegations. To my mind, for the reasons I have just given, this has not been demonstrated. Further,
[2006] WASC 230 (S)
HASLUCK J
it does appear to me that the respondent has procrastinated throughout the procedural history of this matter and must be held accountable. He has failed to provide an adequate explanation for his non-appearance and has failed to demonstrate that a refusal to set aside the orders made in his absence would be unjust.
169 Accordingly, in the end, I am not persuaded that the 4 October orders
should be set aside upon the grounds contended for. Put shortly, the respondent was given sufficient notice of the hearing. He was afforded an opportunity to be heard. The fact that orders were made in his absence is not sufficient to justify the grant of the relief he seeks where he does not appear to have a good defence on the merits.
Summary
170 Having regard to the explanation provided in the affidavit of the
respondent's solicitor, the time for bringing the application to set aside will be extended in each case. However, for the reasons I have given, the application to set aside in each case is dismissed. I will hear from the parties as to whether any further orders or directions are required.
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