Legal Practice Board v Heedes - [2004] WASC 260

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEGAL PRACTICE BOARD -v- HEEDES [2004] WASC 260

CORAM: MCKECHNIE J

HEARD: 26 NOVEMBER 2004

DELIVERED : 26 NOVEMBER 2004

FILE NO/S: CIV 2062 of 2004

MATTER :Legal Practice Act2003, s 123 and s 250

BETWEEN: LEGAL PRACTICE BOARD
Applicant
AND
ARTHUR HEEDES
Respondent

Catchwords:

Legal practice - Non-certified person carrying on legal business - Whether for reward - Burden of proof on contempt hearing - Principles to be applied

Legislation:

Legal Practice Act 2003 (WA), s 4, s 123, s 124, s 250

Result:

Respondent guilty of contempt

Category: A

Representation:

Counsel:

Applicant: Mr B H Goetze
Respondent: In person

Solicitors:

Applicant: Minter Ellison
Respondent: In person

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

Barristers Board of Western Australia v Tranter Corp Pty Ltd (1976) WAR 65
Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594
Dowling v Bowie (1952) 86 CLR 136
R v Edwards [1975] QB 27
Van Den Hoek v The Queen (1986) 161 CLR 158
Witham v Holloway (1995) 183 CLR 525

Case(s) also cited:

Barristers' Board v Opie [1971] WAR 99

MCKECHNIE J:

Introduction

The applicant, the Legal Practice Board ("LPB"), moves against the respondent, Mr Arthur Heedes, for an order that he be punished for a contempt of this Court in that, not being a duly certificated practitioner, between in or about June 2004 and in or about August 2004, at Perth, he did engage in legal work and legal practice. That legal practice is then particularised as follows:
"(a)perform or carry out or engage in work in connection with the administration of law, namely obtaining and acting on instructions from Diba Durmanich on behalf of her infant son Louis Gregory Doherty to:
(aa)prepare or cause to be prepared:
(1)on or about 24 June 2004, a conditional appearance (the conditional appearance) to originating summons CIV number 115 of 2004 (originating summons) issued out of the District Court of Western Australia at Perth (the Court) between the Insurance Commission of Western Australia as plaintiff and Louis Gregory Doherty as defendant; and
(2)on or about 28 July 2004, an affidavit sworn by the respondent on 28 July 2004 (the affidavit); and
(ab)file or caused to be filed in the Court:
(1)on 24 June 2004, the conditional appearance; and
(2)on 30 July 2004 the affidavit;
and
(b)in the course of carrying out the instructions referred to in (a) above, between on or about 24 June 2004 and on or about 28 July 2004, draw or prepare, or cause to be drawn or prepared, writing relating to or dealing with or affecting proceedings at law, namely:
(i)the conditional appearance to the originating summons; and
(2)the affidavit opposing the originating summons."
The Legal Practice Act 2003 by s 4 provides:
"Meaning of 'engage in legal practice'
A person engages in legal practice if the person directly or indirectly -
(a)whether in the name of that person…

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.

Keep reading for free

Create a free CaseChat account to read Legal Practice Board v Heedes and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2004] WASC 260
Decision Date: 26 NOVEMBER 2004

CaseChat Overview and Summary

The Legal Practice Board brought proceedings against Heedes, alleging that he was carrying on legal business without being a certified legal practitioner, and that he was doing so for reward. The case was heard in the Supreme Court of Queensland. The central issue before the court was to determine whether Heedes had indeed been carrying on legal business without proper certification and if he had been doing so for reward. Furthermore, the court needed to establish the burden of proof applicable in contempt proceedings, particularly in relation to the principles that should be applied in such cases.

The court examined the relevant statutory provisions and considered whether the onus of proof lay with the Board to demonstrate Heedes's misconduct. It was acknowledged that the Legal Practice Act required that legal business be carried on only by certified practitioners. The court also explored the principles of natural justice and fairness in contempt proceedings, determining that the Board must prove its case to the requisite standard of proof, which in this context was beyond reasonable doubt. The court concluded that the Board had successfully discharged its burden of proof, establishing that Heedes had indeed been carrying on legal business without certification and for reward.

Consequently, the court found Heedes guilty of contempt and imposed penalties accordingly. The judgment underscored the importance of adhering to legal practice regulations and the necessity for certified practitioners to conduct legal business. The court's decision emphasised the high standard of proof required in such proceedings and highlighted the principles of natural justice that must be observed.

Orders