Legal Practice Board v Giraudo
[2010] WASC 4
•14 JANUARY 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LEGAL PRACTICE BOARD -v- GIRAUDO [2010] WASC 4
CORAM: HALL J
HEARD: 9 & 14 OCTOBER 2009
DELIVERED : 14 JANUARY 2010
FILE NO/S: CIV 1631 of 2005
CIV 1632 of 2005
BETWEEN: LEGAL PRACTICE BOARD
Applicant
AND
CLINTON GIRAUDO
Respondent
Catchwords:
Contempt of court - Legal work done by a person not a legal practitioner - Appropriate penalty
Legislation:
Legal Practitioners Act 1893 (WA), s 76, s 77, s 78, s 81
Result:
Contempts proved
Fines imposed
Category: B
Representation:
Counsel:
Applicant: Mr A T Macknay
Respondent: In person
Solicitors:
Applicant: McCallum Donovan Sweeney
Respondent: In person
Case(s) referred to in judgment(s):
Attorney‑General v Quill Wills Ltd (1990) 3 WAR 500
Barristers' Board v Palm Management Pty Ltd [1984] WAR 101
Cornall v Nagle [1995] 2 VR 188
D'Alessandro & D'Angelo (a firm) v Bouloudas (1994) 10 WAR 191
Heedes v Legal Practice Board [2005] WASCA 166
Kennedy v Lovell [2002] WASCA 226
Legal Practice Board v Adams [2001] WASC 78
Legal Practice Board v Clohessy [2006] WASC 21
Legal Practice Board v Ferguson [2006] WASC 250
Legal Practice Board v Frichot [2006] WASC 230
Legal Practice Board v Said (Unreported, WASC, Library No 940608, 31 October 1994)
Legal Practice Board v Taylor [2005] WASC 242
Legal Practice Board v Tee [2009] WASC 5
Legal Practice Board v Tilley [2006] WASC 73
Maxwell v Murphy (1957) 96 CLR 261
Rodway v The Queen (1990) 169 CLR 515
Wood v Staunton (No 5) (1996) 86 A Crim R 183
HALL J: In 2001 and 2002 Adrian Domney conducted an automotive repair business. There were two separate disputes at this time relating to the business, both of which resulted in proceedings in the Local Court. Mr Domney was assisted in regard to these proceedings by Clinton Giraudo, the respondent. Mr Giraudo is not, and has never been, a legal practitioner. The Legal Practice Board (the Board) alleges that the assistance provided by Mr Giraudo involved doing things that can only be lawfully done by a duly certificated legal practitioner and that his conduct was, therefore, in contempt of court.
Mr Giraudo accepts that he prepared court documents and letters for Mr Domney, but says that this was only done as a secretary or scribe. He says that he gave no legal advice and that it was Mr Domney who controlled what was put in writing. He also accepts that he attended conferences with Mr Domney and others, but says that he did so only in a clerical capacity. He says that he became an employee of the business and wrote letters and attended conferences in that role.
The issues for determination are:
1.What did Mr Giraudo do in relation to each of the two sets of proceedings?
2.Did he breach the Legal Practitioners Act 1893 (WA) (repealed) by doing those things?
Nature of the proceedings
The Board commenced two sets of proceedings in this court alleging that Mr Giraudo is guilty of contempt. CIV 1631 of 2005 relates to an action brought in the Local Court at Fremantle and CIV 1632 of 2005 relates to an action brought in the Local Court at Joondalup. By consent of the parties, both matters were heard together.
The amended originating motions allege one contempt in each case with alternative bases of liability. In each case it is alleged that Mr Giraudo directly or indirectly:
(a)defended proceedings for Euro Automotives Australia (Mr Domney's business) (Fremantle) (or carried on proceedings - Joondalup);
(b)alternatively, acted as a solicitor for Euro Automotives Australia;
(c)alternatively, performed, carried out or engaged in work in connection with the administration of law in obtaining and acting on instructions from Mr Domney;
(d)alternatively, drew or prepared or caused to be drawn or prepared documents relating to the personal estate of Mr Domney, namely letters; and
(e)alternatively, drew or prepared or caused to be drawn or prepared documents relating to the court proceedings.
The wording of the allegations is drawn from the provisions of the Legal Practitioners Act 1893 (WA) (repealed). That Act was in operation at the relevant time and contains various provisions to the effect that legal work may only be performed by a certificated legal practitioner.
The Legal Practitioners Act 1893 was superseded by the Legal Practice Act 2003 which, in turn, was superseded by the Legal Profession Act 2008 (WA) which came into operation on 1 March 2009. The repeal of the Legal Practitioners Act 1893 does not affect the previous operation of that Act or obligations created prior to the repeal: s 37(1) Interpretation Act 1984 (WA). Changes to statute laws relating to rights and liabilities do not operate retrospectively other than in relation to matters of practice and procedure: Maxwell v Murphy (1957) 96 CLR 261; and Rodway v The Queen (1990) 169 CLR 515. Accordingly, the Legal Practitioners Act 1893 is the relevant statute in determining whether Mr Giraudo has committed contempts of court: Legal Practice Board v Taylor [2005] WASC 242.
In any event, the present proceedings were commenced before the Legal Profession Act 2008 became operational and s 607 of that Act provides that proceedings which were continuing at the time it came into operation continue to have effect under the Legal Profession Act 2008 subject to the power of this court to direct how the proceedings should be continued. Hereinafter reference to the relevant provisions will be to those of the Legal Practitioners Act 1893 (the Act) unless otherwise indicated.
What legal work may only be done by a lawyer?
Section 76 provides that no person other than a certificated legal practitioner shall act as a solicitor or carry on legal proceedings. Section 77 provides that no person other than a certificated practitioner shall directly or indirectly perform or carry out or be engaged in any work in connection with the administration of the law or draw or prepare any deed, instrument, or writing relating to or any matter dealing with or affecting real or personal estate or any proceedings at law or in equity. Section 78 provides that nothing in s 77 shall extend to make any person liable to any penalty if such person satisfies the court that the person has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work or services so done. Section 81 provides that every person who acts contrary to the terms of the Act is guilty of a contempt of the Supreme Court and may be dealt with accordingly by the court on the motion of the Board.
Matters of this type are dealt with as civil proceedings and the procedures relevant to such proceedings apply: Heedes v Legal Practice Board [2005] WASCA 166. However, the standard of proof is beyond reasonable doubt: Heedes v Legal Practice Board; and Cornall v Nagle [1995] 2 VR 188.
The purpose of s 76 and s 77 is to protect members of the public by ensuring that legal work is carried out only by those persons who have obtained a proper legal education, leading to appropriate qualifications and who are subject to the disciplinary supervision of the courts in their practice of the law: D'Alessandro & D'Angelo (a firm) v Bouloudas (1994) 10 WAR 191, 207 (Malcolm CJ).
Section 77 prohibits anyone other than a certificated practitioner from engaging in work in connection with 'the administration of law'. That phrase was considered in Barristers' Board v Palm Management Pty Ltd [1984] WAR 101. In that case, Brinsden J was of the view that 'administration of law' is to be read as meaning 'the practice of law' or 'the practice of the law'. His Honour said that the practice of law includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments. If the giving of advice and performance of services affects important rights of a person under the law and requires some skill and knowledge of the law greater than that possessed by the average citizen, then the advice and services given constitute the practice of the law: Legal Practice Board v Adams [2001] WASC 78 [28] (Hasluck J).
Work of a merely clerical kind such as filling out blanks in a printed form or drawing instruments of a generally recognised type that does not involve the determination of the legal effect of special facts and conditions should not be regarded as legal work. However, that is to be distinguished from the situation where an instrument is shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to ensure a specific result and to guard against others. In such a case more than the knowledge of the layman is required and a charge for such services brings it within the practice of the law: Barristers' Board v Palm Management [108] (Brinsden J).
Where a person, in preparing documents, exercises his mind as to what is the appropriate form of words to accommodate the particular case, this can be regarded as drawing or preparing a legal document: Cornall v Nagle. A process of that kind goes beyond mechanical or clerical tasks and is of a kind required to be performed by a solicitor: Attorney‑General v Quill Wills Ltd (1990) 3 WAR 500; and Legal Practice Board v Said (Unreported, WASC, Library No 940608, 31 October 1994).
In Legal Practice Board v Adams the respondent prepared two writs to commence actions in the Supreme Court. Hasluck J noted that the respondent had played an active role in seeking to understand the facts underlying the dispute and in then refining the claims in the form of draft statements of claim. The respondent in that case purported to take instructions and then gave a shape to the facts and matters conveyed to him so that a claim could be advanced against a third party. His Honour noted that the respondent exercised skill in formulating the statements of claim in a way that would present the claims in their best light. This was not acting in a mechanical or clerical manner but was exercising a degree of skill as to what matters should be relied upon by the claimants in order to obtain relief. His Honour held that a person acting essentially as a solicitor who was the guiding intelligence behind the issue of a writ will be regarded as indirectly suing out the writ.
The Fremantle proceedings - CIV 1631 of 2005
The Board relied upon an affidavit of Mr Domney who was called and cross‑examined by Mr Giraudo. Mr Domney's evidence was that he had first met Mr Giraudo in about May 2001 after being referred to him as a patent attorney. At that time Mr Domney was seeking to obtain a patent for a water filter that he had developed. At the first meeting Mr Giraudo told Mr Domney that he was involved in 'the legal business'. He told Mr Domney that he was a patent attorney and an international patent consultant and that he could therefore give legal advice. Mr Domney then told Mr Giraudo about a number of debts that were owed to him. Mr Giraudo advised that he could help Mr Domney recover these debts and prepare all the necessary court documents.
Later the same year, in or around September 2001, Mr Domney had a dispute with a firm of customs brokers. The dispute related to costs for the importation and cleaning of a shipment of mechanical parts. Mr Domney asked Mr Giraudo if he could help in resolving the dispute and Mr Giraudo said that he could. Mr Giraudo then prepared a letter to the customs brokers dated 21 September 2001. The text of this letter is important. It reads as follows:
I represent Euro Automobil Australia and I am today in receipt of your letter dated September 20, 2001 per Jean Galea. Adrian has engaged me to help resolve this matter.
I have been working through the facts and the issues to seek to determine exactly what has happened and who is liable for what. There are seven parties involved here and I am still unravelling the details.
I have further questions for Adrian but he is in a meeting. Until I have the answers to these questions I am not in a position to give you a formal reply. However, I am giving this close, careful and immediate attention.
A formal reply will be sent to you on Monday 24 September 2001 so kindly do not place this account in the hands of your solicitors at this time.
Mr Giraudo filed a responding affidavit in the present proceedings and gave evidence denying that he had ever represented himself as having legal skills. He said that he had referred to himself as 'an intellectual property consultant' and accepted that he had told Mr Domney that he might be able to help him recover a debt but denied saying that he could prepare any court documents.
When cross‑examined regarding the letter of 21 September 2001 Mr Giraudo accepted that he had prepared and signed the letter. When asked about his use of the word 'represent' he said that he had used it in a lay person's sense 'in the nature of mediating between the two parties to resolve their dispute'. He said that his purpose was to determine the facts and not any further than that. He said that all he intended to do with the facts was to document them so that the two parties could see what the truth was and then be able to arrive at their own conclusion as to who was responsible for what.
These claims are not consistent with the terms of the letter. The reference to Mr Giraudo being engaged to help resolve the matter strongly suggests that he was to do more than merely record facts. As he makes clear in the second paragraph of the letter, as well as determining exactly what had happened, he had also been engaged to determine issues of liability. I do not accept Mr Giraudo's evidence as to his limited role. In my view, his role from the outset was more significant than merely a clerical one. The nature of that role is made clear by subsequent documents.
On 24 September 2001 Mr Giraudo wrote a further letter to the customs brokers. In this letter he set out under a heading 'Background' the relevant facts in regard to the dispute. Then, under the heading 'The Issues' he set out a number of propositions relating to liability. These include asserting that a third party had assumed liability for the shipment of parts and that the appearance of Mr Domney's business name on shipping documents did not override the liability of the third party. He asserted that Mr Domney's business had no liability in respect of quarantine costs and that those costs were the responsibility of either the third party or of a business in Malaysia that had sold and consigned the parts. In concluding the letter he referred to Mr Domney's business as his client.
This letter goes well beyond merely recording the relevant facts. It considers and makes assertions in respect of the legal consequences of those facts. It is consistent with Mr Giraudo providing a legal analysis beyond that which would be expected of a lay person.
In evidence, Mr Giraudo accepted that the matters under the heading 'The Issues' were contentions that had been drawn from the facts but he claimed that these were contentions that had simply been dictated to him by Mr Domney. He said he referred to Mr Domney as his client because he saw himself as an intellectual property consultant. He accepted that this matter had nothing to do with intellectual property but said that he simply chose to use language adapted from his experience as a patent attorney when he wrote the letter.
I do not accept the evidence of Mr Giraudo in this regard. In my view it is plain that in this letter he was representing his views as to legal issues on behalf of Mr Domney. His use of the word 'client' was intended to give the impression that Mr Giraudo was representing Mr Domney in respect of this legal dispute and that he had authority to do so.
The customs brokers instructed solicitors who wrote a letter of demand to Mr Domney. In response, Mr Giraudo wrote to the solicitors on 15 October 2001. In that letter he stated:
I represent Euro Automotive Services Australia and have been asked to deal with the matters raised in your letter. Please send all further correspondence in this matter to me.
Mr Giraudo maintained in evidence that he was not using the word 'represent' to convey that he was providing any legal services. When it was put to Mr Giraudo that the letter makes no reference to him being a mediator he said that he would draft the letter differently if he had his time again. He said he was only trying to assist Mr Domney and gave no thought to any trouble that he might get himself into. He accepted, however, that he charged Mr Domney for his services in writing these letters and that it was the only income that he had at that time. The letter of 15 October 2001 goes on to state that Mr Domney's business denies liability in relation to the matter. Again, Mr Giraudo claimed that in making this statement he was simply putting what Mr Domney had told him.
In my view, it is absurd for Mr Giraudo to assert that he was only acting as an amanuensis for Mr Domney. The plain meaning of the letter is that Mr Giraudo was conveying his own views, albeit on behalf of Mr Domney. It is clear that Mr Domney was relying on Mr Giraudo to contribute his own skills and abilities in endeavouring to resolve the legal dispute.
On 16 October 2001 the solicitors for the customs brokers wrote to Mr Giraudo and asked him to make clear in what capacity he was representing Mr Domney's business. On 19 October 2001 Mr Giraudo wrote to Mr Domney attaching a copy of the solicitors' letter and setting out a number of options for dealing with the dispute. Those options were to sue the third party; pay the customs brokers the money they were seeking; or fight the legal action that the customs brokers were threatening. He then stated that he was not skilled or qualified to assist in court matters. He then recommended making an approach to the third party to accept liability and attached a draft letter to the third party for that purpose. When it was put to Mr Giraudo in cross‑examination that in this letter he was suggesting a strategy for dealing with the claim that had been made against Mr Domney, he said:
I suppose I was conveying what I would do in attempting to resolve the matter and again arriving at the truth at what had happened.
Mr Giraudo accepted that the letter set out options and a recommendation but said that his purpose was to find a solution based upon the facts and to use a logical approach to see what the various options may be. He said that with the benefit of hindsight he would not choose to write a letter like this again and that the letter was poorly crafted. By this I took Mr Giraudo to mean that, whilst the letter might give the impression of providing legal advice, that was not his intention.
Although Mr Giraudo persistently denied that the letter of 19 October 2001 contained any advice of a legal nature, it is my view that that evidence is entirely inconsistent with the words of the letter. The letter gives advice for resolving a legal dispute and shows an appreciation of the fact that Mr Domney was likely to require and rely upon that advice. As to the reference in the letter to not being skilled or qualified to assist with court proceedings, this only aggravates the circumstances by showing that Mr Giraudo was conscious of the need for qualifications. The best inference that could be drawn for him is that he may have been mistaken as to where the boundary lay regarding the need for qualifications. However, subsequent conduct shows that he did not feel constrained from continuing to assist Mr Domney when court proceedings were commenced by the customs brokers.
On the same day as his letter to Mr Domney, 19 October 2001, Mr Giraudo also wrote to the solicitors for the customs brokers. In that letter he responded to the request for advice as to the capacity in which he was acting. He stated:
I am a consultant helping Mr Domney in a number of matters that have arisen from his business dealings with Malaysia. My purpose is to resolve all of these matters.
He then referred to a need to receive 'further instructions' from Mr Domney. He went on to refer to liability and to suggest that a third party was responsible for the shipment and not Mr Domney.
It would appear that there was an offer to the customs brokers to pay part of the amount that they were seeking and on 24 October 2001 Mr Giraudo wrote to the solicitors for the customs brokers confirming the nature of the offer. In particular, he stated that the offer was not an acceptance of liability for the total amount sought and referred again to the assertion that the third party was liable. He then stated:
In our view the existence of Mr Domney's name on the shipment documents is insufficient to rest liability with him given the other facts in this case. What then is the substance of your case? If you have any precedent in this matter kindly refer to it in your reply. Failing receipt of any compelling law to support your case we will be defending any suit that you may bring.
In the final paragraph of the letter Mr Giraudo refers to the fact that the solicitors had issued a summons before receiving his letter of 16 October and that he intended to bring that to the attention of the court in the consideration of costs.
Again, the only reasonable interpretation of this letter is that it is making representations as to the law. These are representations being made by Mr Giraudo, albeit on behalf of Mr Domney. There is nothing to suggest that Mr Domney is the author of the letter, quite the contrary. Furthermore, by inviting the lawyers for the customs brokers to provide the legal basis for their client's claim and any 'precedent' that supports it, Mr Giraudo is seeking to argue the legal merits of the dispute.
The summons issued by the solicitors for the customs brokers was filed in the Fremantle Local Court and a pre‑trial conference was held there. Mr Giraudo attended this pre‑trial conference with Mr Domney. When asked in cross‑examination about his role he said:
In my mind I wasn't there to negotiate for Adrian; he was there to negotiate for himself, and indeed he did. I was there to find out more of what the position of [the customs brokers] was because it wasn't clear to me. They weren't communicating with me as much as to what their side of the situation was, so I wasn't able to help Adrian come to some kind of settlement in the matter. So I was looking for any way that I could sit down with them to learn what their problem was (ts 91).
When asked what he was going to do when the customs brokers stated their position at the pre‑trial conference he said he was going to do nothing, because that had nothing to do with him. He said he simply wanted to act as a catalyst and naively believed that he could achieve that. He said he did not say anything at the pre‑trial conference other than answering a question which came from the presiding officer as to whether he was an employee or a solicitor. He said that he denied being a solicitor but asked to remain present because Mr Domney would ask him after the meeting how he felt about what had occurred. I then asked Mr Giraudo the following questions:
Why did you think he would ask you about what had been said?‑‑‑Because it seemed to me that he would ask me about a lot of things that he was doing, so for that reason I believed that he would probably ask me, and also I wished to remain in that room so I could hear what was being said so I could find out more of the other side of the dispute.
But are you, by that, conceding that you knew Mr Domney would look to you for advice in regards to what had occurred at the pre‑trial conference?‑‑‑Simply my take on it, my opinion, my feelings about what had been said, more to the extent of if something was to happen next - if Adrian wasn't aware of what had happened in the pre‑trial conference, then I would not be in a position to be able to assist Adrian any further.
As to what might happen next. Is that what you are saying?‑‑‑Adrian wanted me to stay in that room and it was very clear to me that that's what he wanted to happen. I mean, I was sitting there and the magistrate asked - sorry, the clerk asked his questions and he was going to eject me from the room, but I could see that Adrian wanted me to stay in that room so I could hear what had been said (ts 92 ‑ 93).
Despite Mr Giraudo's valiant attempts to portray his presence at the pre‑trial conference as being only that of a passive observer, it is apparent that he was there to assist Mr Domney and fully expected that Mr Domney would seek his advice as to how he should proceed. This reflects both the role played by Mr Giraudo and that Mr Domney relied upon him. He was not an impartial observer, but an advisor on how to resolve this legal dispute.
In January 2002 Mr Giraudo prepared an eight page court document entitled 'Particulars of Defence' and a three page document entitled 'Chamber Summons'. He said that in preparing these documents he used other documents he had seen as precedents to obtain the necessary format for the Local Court. Mr Giraudo said that the contents of these documents reflected what Mr Domney had told him and that his only role was to place the factual matters into a chronological order. He said he spent many hours with Mr Domney getting the details correct. It was put to Mr Giraudo that he was also assessing the issue of liability and in particular whether Mr Domney was liable and he said:
Most likely. It seemed to me, as I said before, there were things that Adrian wasn't telling me and it seemed that most likely he was more involved in what had happened than he was telling me.
I'm just asking you what you were doing and what I am suggesting to you is that on 21 September you were working through the facts and the issues to seek to determine exactly what had happened and who was liable for what?‑‑‑That's what it says, and I was undertaking all of that with Adrian to work out those details.
Including the issue of forming a view as to who was liable for what?‑‑‑That's true, and it's something that Adrian and I were doing together (ts 115).
Throughout his evidence, Mr Giraudo appeared to be under the mistaken impression that if all of the factual material upon which the letters and documents he created were based came from Mr Domney, his role could be described as secretarial in nature. In truth, however, it was clear from the evidence that whilst Mr Domney had provided the factual history, Mr Giraudo had placed that history into a logical format; had drawn conclusions as to the legal consequences; and had given advice and made recommendations in regard to those consequences.
Whilst Mr Domney accepted that he had reviewed some of the documents and confirmed their correctness, it is apparent that this was in regards to the factual details. Mr Domney said in evidence, and I accept, that he was unfamiliar with court documents and relied upon the advice of Mr Giraudo.
It was no answer to the Board's allegations for Mr Giraudo to say that he was not the sole author of the documents which he prepared in the sense that Mr Domney had some input into them. By analogy where a lawyer acts upon the instructions of his or her client, the client provides some input into the documents that the lawyer prepares. That does not mean that the client is the author of the documents. The important distinction is that a lawyer applies some independent skill in how to present the material provided to him or her by his client and in giving advice and making representations as to the legal consequences. Mr Giraudo acted in a similar way in respect of Mr Domney.
Whether the documents were adequately prepared and whether the advice given was correct or not is not to the point. In the chamber summons, Mr Giraudo recorded that he was helping Mr Domney albeit that he was not a lawyer. The chamber summons also stated that neither Mr Giraudo nor Mr Domney were very familiar with the procedures of the Local Court. None of that detracts from what Mr Giraudo did.
On 16 April 2002 Mr Giraudo wrote to the customs brokers and set out an offer on behalf of Mr Domney to settle the proceedings. Subsequently on 10, 13 and 17 June, Mr Giraudo wrote to the solicitors again conveying an offer to settle the proceedings. Each of those letters was marked 'without prejudice'. Mr Giraudo said he used those words because he had seen them on solicitors' letters when had worked as a patent attorney and believed them to be appropriate, though he had no real understanding of their meaning or effect. In each of these letters he uses the word 'instructed' in referring to the offer. Again, although he denies that the use of this word was intended to convey that he was in any sense acting as a legal representative and asserts that the word was poorly chosen, when viewed in the context of his conduct the word was entirely apt.
Mr Giraudo issued three invoices to Mr Domney dated 28 December 2001, and two of 15 May 2002. There is some overlap and the invoices also include matters other than the Fremantle court proceedings. In relation to the Fremantle matter the total amount charged by Mr Giraudo is approximately $1,125 (not including GST or disbursements).
The invoices contain narrations as to the services provided. Those narrations put beyond doubt the nature of the work that Mr Giraudo did. For example, in the 28 December 2001 invoice, there is reference to services in discussing court matters; in preparing letters and advising Mr Domney in respect of them; in preparing and lodging the particulars of defence; and in receiving and considering letters from the solicitors of the customs brokers.
On the basis of the evidence I find that Mr Giraudo was not a duly certificated practitioner at any material time (a fact he does not dispute). He held himself out as acting on behalf of Mr Domney in the Fremantle proceedings and corresponded with both the customs brokers and their solicitors, including making representation as to the law and its application. He reviewed and prepared court documents and attended to their filing and service. He gave advice to Mr Domney regarding the options available to him and made recommendations as to the best course. He attended a pre‑trial conference with the intention of thereafter advising Mr Domney. He made offers to settle the proceedings on Mr Domney's behalf and held himself out as Mr Domney's independent advisor in this regard. He met with Mr Domney on frequent occasions and did so in order to obtain instructions. He acted on those instructions in relation the proceedings. He provided these services to Mr Domney for reward.
In the circumstances the only reasonable inference that can be drawn is that Mr Giraudo defended the local court proceedings for Mr Domney's business. I am satisfied beyond reasonable doubt that he was acting essentially in the role of a solicitor who was the guiding intelligence behind the defence. In doing so, he breached s 76(1) of the Act and ground 1(a) of the amended originating motion is made out.
The matters I have already referred to also establish that Mr Giraudo acted as a solicitor in the Fremantle proceedings by, for example, providing legal advice for reward; preparing court documents; and advancing offers of settlement. A person may be found to have acted as a solicitor by doing something which, although not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the inference that the person doing it is a solicitor: Cornall v Nagle (210 ‑ 211). This also involves a breach of s 76 and, were it necessary to do so, I would find that the alternative ground 1(b) of the amended originating motion is proven beyond reasonable doubt.
I find that Mr Giraudo obtained and acted upon instructions from Mr Domney in defending the Fremantle proceedings. Since the administration of law includes representing another before the courts and giving legal advice in regard to the preparation of legal instruments, I am satisfied beyond reasonable doubt that Mr Giraudo performed work in connection with the administration of law and is therefore in breach of s 77 of the Act. Accordingly, if it were necessary to do so, I would find ground 1(c) of the amended originating motion proven.
Mr Giraudo drew and prepared writings in the form of letters that related to Mr Domney's alleged liability to the customs brokers. These letters, in particular those of 24 September 2001, 15 October 2001, 19 October 2001 and 24 October 2001, evidently required the use of the intellect to compose them. They could not reasonably be described as letters dictated by Mr Domney. Accordingly, I am satisfied beyond reasonable doubt that Mr Giraudo drew or prepared letters affecting the personal estate or interest of another person contrary to s 77 of the Act and that ground 1(d) of the amended originating motion is made out.
In the course of carrying out instructions from Mr Domney, Mr Giraudo prepared the particulars of defence and chamber summons dated 18 January 2002 relating to proceedings in the Local Court. Again, I find that this work on the part of Mr Giraudo involved the exercise of the intellect and was not merely a secretarial task. In preparing these documents he arranged the information and presented it with a view to advancing the case for Mr Domney. He was therefore in breach of s 77 of the Act and were it necessary to do so I would find that the alternative ground in the amended originating motion, ground 1(e), is established beyond reasonable doubt.
The Joondalup proceedings - CIV 1632 of 2005
In December 2001 to January 2002, Mr Domney undertook mechanical repairs on a car owned by a Mr Bowen. There was a dispute regarding payment and in about February or March 2002 Mr Domney issued a summons in the Local Court at Joondalup. On 9 April 2002 Mr Domney received a letter from Mr Bowen's solicitors advising that the summons was to be defended. He then requested Mr Giraudo to take over the conduct of the summons and represent him in the proceedings.
On 16 April 2002 Mr Giraudo wrote to the solicitors acting for Mr Bowen and stated that he was an employee of Mr Domney's business and had been delegated to handle this matter. It would appear that the idea of Mr Giraudo being an employee arose out of the question that was put by the clerk at the pre‑trial conference in relation to the Fremantle matter regarding Mr Giraudo's status. Mr Giraudo said that he and Mr Domney discussed that if he was an employee he would be able to provide more of the assistance that Mr Domney wanted. It would also provide Mr Giraudo with a basis for attending pre‑trial conferences.
Other than Mr Giraudo's assertions that he was an employee, there is little objective evidence to support that claim. In fact, the evidence is very much against it. All of the letters that Mr Giraudo wrote are on his personal letterhead, some of which bore the title 'Intellectual Property Consultant' and he was not paid as an employee. In fact, for both the Fremantle matter and the Joondalup matter Mr Giraudo issued invoices to Mr Domney that bore an ABN number and charged GST. To the extent it is necessary to do so, I find that Mr Giraudo was not an employee in providing services to Mr Domney in regard to the Fremantle and Joondalup proceedings.
On 9 May 2002 Mr Giraudo prepared and filed a document entitled 'Full Particulars of Claim'. The document, whilst signed by Mr Domney for the applicant, states that it was prepared by Mr Giraudo and gives his home address. In evidence Mr Giraudo said that he was not the sole author of this document and that it was prepared with considerable input from Mr Domney. He said that the process was very similar to that in relation to the Fremantle proceedings in that he had extensive discussions with Mr Domney to determine the relevant facts and to set them down in writing. He says that it was Mr Domney who chose what to put in and what not to put in. On the other hand, Mr Domney says that the document was drafted for him by Mr Giraudo without any input from him.
Similar conflicting evidence is given in regards to a defence, set‑off and counterclaim that was also prepared and filed in the Joondalup Local Court. It is not my understanding that Mr Domney intended to suggest that he provided no information at all to Mr Giraudo rather, as he accepted in evidence, he provided the raw information that enabled Mr Giraudo to prepare these documents. I am however satisfied that it was Mr Giraudo that chose the format and wording that is contained in the documents and that in doing so he intended to apply the type of skill and judgment that would be utilised by a solicitor.
On 2 July 2002 Mr Giraudo wrote to the solicitors for Mr Bowen in regard to discovery. An affidavit of discovery had been filed by the defendant in the proceedings and the letter made reference to that affidavit. The letter asserted that discovery was not complete and that a 25 page expert report relating to the engine that had been repaired had not been provided. The letter then asks for 'further and better discovery'. Mr Giraudo conceded that those words were his and that he had seen those words somewhere before and believed they were appropriate in the circumstances.
The letter then goes on to state:
With regard to the filing of a fresh defence kindly note that at the pre‑trial conference the Clerk of Courts was prepared to accept the defence as lodged as the full particulars of defence. We suggested to the Clerk that any decent solicitor would wish to have the opportunity to correct the defence as lodged since, in our opinion, it was misleading and that any solicitor would not wish to make misleading statements to the court. Therefore, it was upon our insistence that the defendant be given an opportunity to correct the defence.
As a professional courtesy, in the interest of serving the public interest and not taking advantage of technicalities we are prepared to allow you to lodge a fresh Defence and/or Counterclaim. We will of course expect the same treatment, courtesy and lenience from you - quid pro quo.
With regard to the issue to filing a new defence we discussed this with you on May 23 when I served our discovery and Full Particulars of Claim on you. Why did you not act on the new defence at that time? When will your fresh Defence and/or Counterclaim be lodged?
We are sure that you will now act diligently to complete the fresh Defence and/or Counterclaim, and provide us with access to the physical evidence as requested hereinabove forthwith.
Although Mr Giraudo denied that by this letter he was assisting Mr Domney by dealing with the defendant's lawyers in regards to the legal proceedings on matters of procedure and process, the letter is not capable of any other reasonable interpretation.
Mr Giraudo issued two invoices on 15 May 2002 in relation to the Joondalup matter which also relate to the Fremantle matter and other matters. In relation to the Joondalup matter the amount charged was approximately $850 (not including GST or disbursements). Again, the wording of the invoices reflects the real nature of the work undertaken as extending well beyond the secretarial role claimed by Mr Giraudo.
Whilst Mr Giraudo's conduct in relation to the Joondalup matter was more limited than in the Fremantle matter, I nonetheless find that he did undertake work of a significant legal type whilst not a duly certificated legal practitioner. In particular, he wrote to solicitors for the defendant stating that he was handling the matter on behalf of Mr Domney's business. He drafted, amended, lodged and served court documents on behalf of Mr Domney. He met with Mr Domney to obtain instructions and acted upon those instructions in prosecuting the Joondalup proceedings. He charged Mr Domney for these services.
Accordingly, I find beyond reasonable doubt that Mr Giraudo was acting essentially as a solicitor who was the guiding intelligence behind the prosecution of the Joondalup proceedings and was therefore carrying on those proceedings contrary to s 76 of the Act. Accordingly, ground 1(a) of the amended originating motion is made out.
For similar reasons, were it necessary to do, I would find that each of the alternatives in ground 1(b) ‑ (e) is also established beyond reasonable doubt.
I should note that at the hearing of this matter Mr Giraudo submitted that Mr Domney should not be believed. He cross‑examined Mr Domney and also relied upon affidavits of Mr Robert Smith regarding unrelated business dealings. Much of this evidence was excluded as being irrelevant. To the extent that Mr Domney's credibility was in issue I found him to be a truthful witness. In any event my findings in this matter rely almost entirely on the documents (that were not in dispute).
Conclusion
In respect of each of CIV 1631 of 2005 and CIV 1632 of 2005, I have found that Mr Giraudo breached s 76 and s 77 of the Act. Accordingly, the Board is entitled to the relief sought in the amended originating motion alleging contempt of court and Mr Giraudo must be punished for contempt of the Supreme Court of Western Australia in the manner allowed for by s 81.
Penalties
Under the Legal Practitioners Act 1893, the penalty was at large: Legal Practice Board v Ferguson [2006] WASC 250 [5]. Section 81 provided that a person guilty of contempt 'may be dealt with accordingly'. Under the Legal Practice Act 2003 the maximum penalty for a breach of the equivalent provision was a fine of $10,000 but the penalty for contempt remained at large. Under s 12(2) of the Legal Profession Act 2008 the maximum penalty for a breach of the relevant provision is $20,000.
The Sentencing Act 1995 (WA) does not apply to punishment for a contempt of court: see s 3(3)(a). However, it is appropriate that the court should give consideration to sentencing principles in the Sentencing Act when dealing with a contempt of this nature: Kennedy v Lovell [2002] WASCA 226 [6] (Malcolm CJ), [48] (Murray J), [55] (Steytler J); Legal Practice Board v Frichot [2006] WASC 230; and Legal Practice Board v Tee [2009] WASC 5.
Having regard to the principles set out in s 6 of the Sentencing Act, any penalty imposed must be commensurate with the seriousness of the offence. When imposing a fine, the court should take into account as far as practicable the means of the offender and the extent to which the payment of a fine will burden the offender: s 53 Sentencing Act.
In Wood v Staunton (No 5) (1996) 86 A Crim R 183, 185 (Dunford J) some of the factors relevant to imposing penalty for contempt were set out:
1.the seriousness of the contempt proved;
2.whether the contemnor was aware of the consequences to himself of what he did;
3.the actual consequences of the contempt on the relevant trial or inquiry;
4.whether the contempt was committed in the context of serious crime;
5.the reason for the contempt;
6.whether the contemnor has received any benefit by indicating an intention to give evidence;
7.whether there has been any apology or public expression of contrition;
8.the character and antecedents of the contemnor;
9.general and personal deterrence; and
10.denunciation of the contempt.
In the present case the applicant submits that an appropriate penalty in respect of each of CIV 1631 of 2005 and CIV 1632 of 2005 is a fine of $2,000.
The conduct was deliberate and continued over several months. Mr Giraudo's attempts to characterise his conduct as being that of a mere clerk were unconvincing and casuistical. Whilst his defence of these proceedings is not an aggravating feature, I am entitled to take into account that he has not accepted that his conduct was in breach of the Act and has not, therefore, shown any appropriate insight into his own conduct. It is difficult to determine whether Mr Giraudo's conduct resulted in any adverse consequences. It should be noted, however, that he charged for his services when he had no right to do so. I also take into account that these proceedings have been delayed in reaching a resolution, through no fault of Mr Giraudo. Having regard to fines imposed in other cases the fines that have been suggested by the Board appear to be an appropriate reflection of the seriousness of this conduct: Legal Practice Board v Taylor [43] ‑ [47]; Legal Practice Board v Ferguson [16], [18]; Legal Practice Board v Clohessy [2006] WASC 21; Legal Practice Board v Tilley [2006] WASC 73; and Legal Practice Board v Tee.
It is necessary, however, to consider Mr Giraudo's means to pay and whether the effects of a fine can be mitigated if necessary by providing further time to pay. Accordingly, I will hear from the parties as to the form of the orders and as to whether any other orders are required.
5
12
1