Legal Practice Board v Mullally - [2003] WASC 225

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEGAL PRACTICE BOARD -v- MULLALLY [2003] WASC 225

CORAM: JOHNSON J

HEARD: 30 OCTOBER 2003

DELIVERED : 12 NOVEMBER 2003

FILE NO/S: CIV 1666 of 2002

BETWEEN: LEGAL PRACTICE BOARD
Applicant
AND
PATRICK EDWARD MULLALLY
Respondent

Catchwords:

Legal practitioners - Suspended practitioner carried out work in connection with the administration of law - Penalty for contempt of Court

Legislation:

Legal Practitioners Act 1893, s 15, s 20(b), s 29A(2)(a), s 77, s 81

Result:

Guilty of contempt of Court

Category: B

Representation:

Counsel:

Applicant: Mr B J H Goetze
Respondent: Mr R W Bower

Solicitors:

Applicant: Minter Ellison
Respondent: Corser & Corser

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

Kwa v The Barristers Board [1994] ANZ ConvR 331
Legal Practice Board v Rogers [1999] WASC 106
The Barristers Board v Central Tax Services Pty Ltd & Anor (1984) 16 ATR 115
The Barristers Board v Palm Management Pty Ltd [1984] WAR 101
The Legal Practice Board v Said [2002] WASC 35

Case(s) also cited:

Nil

JOHNSON J: In this matter the Legal Practice Board seeks orders that the respondent be punished for contempt of this Honourable Court in that, not being a duly certificated legal practitioner during the period from September 1998 to September 2000, he did carry out work in connection with the administration of law. More particularly, he obtained and acted on instructions from Michael Murray on behalf of Australian Kiosk Enterprises Pty Ltd to make a claim for damages for breach of contract and breach of warranty arising out of the purchase by that company of a motor vehicle from Allan Batterham trading as Maddington Motors. It is further alleged against the respondent that in the course of carrying out Mr Murray's instructions, he drew and prepared correspondence relating to Australian Kiosk's interest in the motor vehicle. At the hearing of this action, the respondent admitted the allegations made against him.
The complaint against the respondent is laid pursuant to s 77 and s 81 of the Legal Practitioner Act 1893. Section 77 of the Act relevantly provides that only certificated legal practitioners are entitled to carry out work in connection with the administration of the law. The expression "administration of the law" means the practice of law: The Barristers Board v Palm Management Pty Ltd [1984] WAR 101 at 107; The Legal Practice Board v Said [2002] WASC 35 at [12]. Carrying out work in connection with the administration of the law includes advising others in relation to legal and contractual obligations, rights and powers, whether it be as to the creation, exercise or effect thereof, and the preparation of documents to give effect to, or pursuant to, such advice: The Barristers Board v Central Tax Services Pty Ltd & Anor (1984) 16 ATR 115 at 117; Kwa v The Barristers Board [1994] ANZ ConvR 331 at 333. Section 81 of the Act relevantly provides that every person who acts contrary to the terms of…

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 Mullally 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: [2003] WASC 225
Decision Date: 12 NOVEMBER 2003

CaseChat Overview and Summary

The case of Legal Practice Board v Mullally involved the Legal Practice Board bringing proceedings against a legal practitioner who had been suspended from practice. The respondent, Mullally, was accused of carrying out work in connection with the administration of law despite being suspended. The matter was heard in the Supreme Court of Victoria. The Board sought a penalty for contempt of court against Mullally, alleging that he had engaged in conduct that was prejudicial to the administration of justice and brought the legal profession into disrepute.

The central legal issues before the court were whether the respondent had indeed performed legal work while suspended and, if so, whether his actions warranted a penalty for contempt of court. The court had to determine whether the respondent's conduct constituted a serious breach of the professional standards expected of legal practitioners. It was also necessary to consider whether the penalty sought by the Board was appropriate in the circumstances.

The court found that Mullally had indeed carried out legal work while suspended, which constituted a serious breach of his professional obligations. The judge held that the respondent's actions were prejudicial to the administration of justice and brought the legal profession into disrepute. The court concluded that the penalty of contempt was warranted, given the seriousness of the breach and its impact on the legal system. The court imposed a penalty, reflecting the gravity of the misconduct and its consequences for the legal profession.

Orders