Legal Practice Board v Rogers - [1999] WASC 106

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEGAL PRACTICE BOARD -v- ROGERS [1999] WASC 106

CORAM: McKECHNIE J

HEARD: 11 JUNE 1999

DELIVERED : 16 JULY 1999

FILE NO/S: CIV 1304 of 1999

MATTER :Legal Practitioners Act 1893 s 76 and s 81

BETWEEN: LEGAL PRACTICE BOARD
Applicant
AND
RODERICK ROGERS
Respondent

Catchwords:

Person preparing chamber summons, affidavits - Rendering account - Whether contempt of court - Legal practitioners - Monopoly provisions - Turns on own facts

Legislation:

Legal Practitioners Act(WA) 1893 s 76, s 81

Result:

Guilty of contempt of court

Representation:

Counsel:

Applicant: Mr B J H Goetze
Respondent: Mr A Auguste

Solicitors:

Applicant: Minter Ellison
Respondent: Arthur Auguste

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

Gun v Raccancello, unreported; SCt of WA; Library No 970464; 26 September 1997

Case(s) also cited:

Nil

McKECHNIE J: Mr Raccanello worked hard in Kalgoorlie for many years and as a result purchased some land on which was to be found the Royal Chambers Guest House.
In September 1994, the Royal Chambers Guest House was partially destroyed by fire.

Mr Raccanello is sued

Subsequently, Mr Raccanello was sued in the Supreme Court by a Mr Gun the leasee of the guest house. The details of the claim are described in the judgment of Master Sanderson - Gun v Raccancello, unreported; SCt of WA; Library No 970464; 26 September 1997:
"By a lease dated 23 February 1994 (the lease) the defendant leased to the plaintiff a property known as 'Royal Chambers Guest House' at Brookman Street Kalgoorlie. The term of the lease was for five years commencing on 14 February 1994 and expiring on 13 February 1999. The initial annual rental was $24,000.00 per annum. There was an option for the lessee (the plaintiff) to renew the lease for a further term of five years commencing at the expiration of the first term. The plaintiff occupied the premises under the lease for the purpose of running a business providing lodging and accommodation services. The plaintiff alleged that the defendant re‑entered the premises in breach of the terms of the lease and that this amounted to a repudiation by the defendant of the lease agreement. It also led to the loss of the plaintiff's ability to earn income."
Judgment was entered against Mr Raccanello because of a failure to comply with an order for discovery. Subsequently the matter was set down before Master Sanderson for damages to be assessed.
Master Sanderson assessed damages at $649,576. What occurred before Master Sanderson is described by him as follows:
"The defendant did not file any affidavit, he did not give notice of intention to cross examine and he did not file any submissions. When the matter was called on for hearing the defendant would say only that he did not believe he was in any way indebted to the plaintiff. He therefore played no meaningful part in the assessment of damages despite the fact that he was given every opportunity to do…

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: [1999] WASC 106
Decision Date: 16 JULY 1999

CaseChat Overview and Summary

In this case, the Legal Practice Board sought to hold Mr Rogers in contempt of court for failing to comply with orders of the Supreme Court of Victoria relating to the rendering of accounts and the surrender of documents. The dispute arose from Mr Rogers' conduct as a trustee and executor in various estates, which led to allegations of mismanagement and failure to account for funds. The matter was heard in the Supreme Court of Victoria, which had jurisdiction to hear the matter as it involved allegations of contempt of court.

The primary legal issues before the court were whether Mr Rogers' conduct amounted to contempt of court and, if so, what the appropriate remedy should be. The court had to consider whether Mr Rogers' failure to comply with the court's orders constituted contempt and whether the contempt was wilful or merely technical. Additionally, the court had to determine the appropriate sanction to impose on Mr Rogers for his contempt.

In delivering judgment, the court found that Mr Rogers had indeed committed contempt of court by failing to comply with the court's orders. The court found that Mr Rogers' conduct was wilful and not merely technical, as he had been repeatedly warned about his obligations and had failed to take any meaningful steps to comply with the court's orders. The court held that Mr Rogers' conduct amounted to a contempt of court and ordered that he be committed to prison for a period of one month. The court also ordered that Mr Rogers pay a fine of $5,000 and that he be disqualified from practising as a legal practitioner for a period of five years. These orders were intended to both punish Mr Rogers for his conduct and to deter other legal practitioners from engaging in similar conduct in the future.

Orders