Legal Practice Board v Giraudo - [2010] WASC 4

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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2010] WASC 4
Decision Date: 14 JANUARY 2010

CaseChat Overview and Summary

The case of Legal Practice Board v Giraudo involved a dispute between the Legal Practice Board and Mr Giraudo. Mr Giraudo was alleged to have engaged in the unauthorised practice of law by providing legal services while not being a registered legal practitioner. The matter was heard by the Supreme Court of Victoria. The court was tasked with determining whether Mr Giraudo had indeed contravened the provisions of the Legal Practice Act by offering legal services without the necessary qualifications and whether the appropriate penalty for such an offence should be imposed.

The central legal issues before the court were twofold. Firstly, whether the actions of Mr Giraudo constituted contempt of court and the unauthorised practice of law. Secondly, if so, what penalty should be imposed for such conduct. The court had to consider the evidence presented regarding Mr Giraudo's activities and determine whether these activities amounted to the provision of legal services, thereby contravening the statutory provisions. Additionally, the court needed to weigh the appropriate sanctions available under the Legal Practice Act for such a breach.

In delivering the judgment, the court found that Mr Giraudo had indeed engaged in the unauthorised practice of law. The court held that by providing legal advice and representation without the requisite qualifications, Mr Giraudo had contravened the statutory provisions. The court emphasised the importance of maintaining the integrity of the legal profession and the need to protect the public from unqualified individuals offering legal services. Consequently, the court imposed a penalty on Mr Giraudo, which included a fine and a prohibition from engaging in the unauthorised practice of law in the future. The court concluded that this penalty was necessary to uphold the standards of the legal profession and to deter similar conduct in the future.

The final orders of the court were that Mr Giraudo be fined a specified amount and be prohibited from engaging in the unauthorised practice of law. The court's decision underscored the importance of adhering to the legal framework governing the practice of law in Australia and reinforced the penalties available for those who fail to comply with these requirements.

Orders