Legal Practice Board v Rogers
[1999] WASC 106
•16 JULY 1999
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 so."
Mr Rogers decides to assist
Mr Raccanello is elderly. He is also in poor health. He apparently has a distrust of lawyers. A number of lawyers had acted in the proceedings. At the time of the assessment he was unrepresented.
At all events, Mr Roderick Rogers, the respondent, decided to assist him. Mr Rogers is not and has not been a legal practitioner. A number of documents were filed and letters were written in respect of the action.
Mr Raccanello has a nephew who works in the goldmines. He became aware of the situation. He approached solicitors and, in due course, applied to the Guardianship and Administration Board. He has been appointed a guardian ad litem. The litigation is back on track. He received an account from Mr Rogers for $2250 for "professional service and documentation". The Legal Practice Board took up the matter.
The Legal Practice Board complaint
The Legal Practice Board seeks orders that:
"1.The respondent be punished for contempt of this Honourable Court in that, not being a duly certificated legal practitioner, during the period from 10 December 1997 or thereabouts to 23 February 1998 or thereabouts, at Perth and Esperance, did directly or indirectly carry on, defend and act as a solicitor of the Supreme Court of Western Australia in action number CIV 1397/95 in the Supreme Court of Western Australia between William Townsend Gun as plaintiff and Leonorio Raccanello as defendant in that the respondent did directly or indirectly prepare the following documents for and on behalf of the defendant therein:
(a)notice of motion to set aside judgement dated 10 December 1997;
(b)amended notice of motion to set aside judgement dated 10 December 1997;
(c)affidavit of Roderick Rogers in support of defendants application for chamber summons;
(d)affidavit of Leonorio Raccanello in support of chamber summons for extension of time and leave to appeal against the order of Acting Master Chapman and assessment of damages awarded by Master Sanderson filed 12 February 1998; and
(e)chamber summons for specific discovery and extension of time for filing interrogatories and amended defence filed 23 February 1998."
The complaints are laid pursuant to s 76 and s 81 of the Legal Practitioners Act which provides as follows:
"76. Only certificated practitioners to act in legal proceedings in court. Exception of parties in person, etc.
(1)No person other than a certificated practitioner shall, whether in their own name or that of any other person, directly or indirectly sue out any writ or process, nor commence, carry on, solicit, defend, or appear in any action, suit, or other proceedings in any court whatever of civil or criminal jurisdiction in Western Australia, nor act as a barrister, solicitor, attorney, or proctor of the Supreme Court of Western Australia in any cause, matter or suit, information or complaint, civil or criminal, wheresoever and before whomsoever the same is to be heard, tried, or determined, or under any commission for the examination within the State of witnesses, or others issued by any court in or out of Western Australia.
(2)Nothing in subsection (1) shall be construed as preventing a party from appearing or defending in person as heretofore, nor to prevent any person from addressing the court if permitted to do so pursuant to section 29 of the Local Courts Act 1904.
…
81. Offences against this Act or the rules, how punishable
Without limiting the operation of Part IV, every person who acts contrary to the terms of this Act, or to any provision of or obligation imposed by or under this Act, or to any rule, or to any order of the Complaints Committee or of the Disciplinary Tribunal, shall be guilty of a contempt of the Supreme Court, and may be dealt with accordingly by the said Court or a Judge thereof in Chambers on the motion of the Complaints Committee or the Board."
These provisions together with s 77 are sometimes referred to as the monopoly provisions. They give to certificated legal practitioners an exclusive licence to conduct litigation and other legal work on behalf of members of the community.
The practice of law is complex. Before a person can be admitted as a practitioner, they must have undergone a lengthy period of study almost invariably at a university, together with an apprenticeship known as articles of clerkship. Thereafter, a practitioner must practise for a year under supervision. These procedures are to ensure that persons who undertake legal work for reward fulfil standards of competence.
There are many traps for the unwary. If a practitioner falls into a trap, there is the prospect of recovery from professional indemnity insurance. Furthermore, practitioners are constrained by a variety of ethical and statutory rules as to their conduct. They may be disciplined.
The provisions are designed to protect the public and to ensure that, put simply, those who undertake the responsible task of advising on and conducting litigation before courts are likely to know what they are doing. Attempts to assist the disadvantaged in the conduct of litigation may be well meaning. However danger lies in so doing, not only because of the contravention of the Legal Practitioners Act but also because in ignorance, a difficult situation for the assisted person may be made intolerable.
The standard of proof
Under the Legal Practitioners Act s 81, a breach of s 76 is a contempt of court. Contempt of court is a criminal process and, therefore, the standard of proof is beyond reasonable doubt.
The conduct of the litigation subsequent to judgment after the assessment of damages: the involvement of Mr Rogers
Upon becoming aware of the judgment, the proper step would have been to apply to set aside the judgment on terms, including making full discovery. Instead of which, on 9 October 1997, a letter was sent to the Principal Registrar which read:
"We wish to lodge an appeal against the judgement (sic) made by Master Sanderson delivered on 26th September in the matter of Gun vs Raccanello.
We wish to have the fees and charges waived as Mr Raccanello has been subjected to immense legal costs and is elderly and suffering from emphysema and has never been subjected to criminal charges in relation to the matter.
With regards.
Rod Rogers.(Sgd)
………………………
Esperance AdvocacyL. Raccanello (sic)
(Sgd)
………………………."
That request was refused. On 30 October 1997, the Acting Principal Registrar wrote in detail to Mr Raccanello and concluded as follows:
"Furthermore, officers of the Court may not discuss any aspects of a case with any person who is not a party to the case or the legal representative of the party. I am informed that a Mr Rogers has been demanding information about your application from Court staff. If Mr Rogers has been acting on your behalf and is not a legal practitioner, I would be obliged if you would inform him that Court staff cannot discuss the matter with him and request that he refrain from contacting them."
That letter received a response from the respondent in the form of a fax on letterhead headed, Nulsen Progress Association. The fax read:
"We find it reprehensible that the acting registrar can deny the right of appeal against a Masters decision simply because the appelant (sic) does not wish to hire a lawyer.
Please clarify urgently why a lawyer is essential to argue a case before your court."
That response was also sent to the Hon the Chief Justice. The Acting Principal Registrar replied on 27 November 1997 citing the relevant rules.
On 2 December 1997, the respondent was clearly put on notice as to the legal situation. In a letter from the associate to the Hon the Chief Justice, he was advised as follows:
"The requirements of the persons who may appear before the Supreme Court are governed by legislation enacted by State Parliament pursuant to the Legal Practitioners Act 1893 ('the Act'). For your convenience I attach copies of ss76, 77, 80 and 81 of the Act.
Those provisions state, in effect, that the only people who can appear before this Court are legally qualified lawyers holding a current practising certificate and individuals who are also one of the parties to a proceeding. These individuals are commonly known as 'in-person' litigants. Consequently it is not 'essential' to have a lawyer to argue a case in the Court.
Kindly note that pursuant to s81 of the Act, any person who purports to act on behalf of a party to an action who is not a legally qualified lawyer holding a current practising certificate would be liable to be held in contempt of the Court."
The timing of this letter is significant because, if there were any doubt in the respondent's mind before that letter as to his legal position, the letter ought to have removed it.
On 10 December 1997, a notice of motion to set aside judgment was prepared and faxed. The fax header is entitled R & S Rogers. It was said to have been filed on behalf of the plaintiff and prepared by Leonorio Raccanello, 4 Queen Street, Esperance.
Significantly, a fax was subsequently sent correcting the filing details. The new motion purported to be filed on behalf of the defendant.
Accompanying that new motion was a hand-written coversheet, reading as follows:
"Gun Vs Raccanello
A typing error is evident on our copy of motion to set aside judgement (sic).
The notice of motion has been filed by the defendant not the plaintiff.
An amended copy is faxed herewith.
Regards."
Again, that was done with the fax header showing R & S Rogers. Further correspondence passed. On 17 December 1997, Mr Rogers wrote another letter to the Principal Registrar on a fax sheet headed "Rod Rogers, Esperance Advocacy Centre", the same title on the letter which accompanied it.
On 29 January 1998, there was filed "Affidavit of Roderick Rogers in support of defendant's application for chamber summons in the above matter", said to be prepared by Roderick Rogers. It sets out his knowledge of Mr Raccanello and his poor English and lack of understanding of the law. Paragraph 2 of that affidavit says:
"2.I have not given Mr Raccanello legal advice but have attempted to assist him in obtaining documents for perusal by the court."
Filed with that affidavit was an affidavit of Mr Raccanello setting out certain facts, together with a document entitled "Chamber summons specific discovery and extension of time for filing interrogatories and amended defence", filed by Leonorio Raccanello, whose address for service is care of Kylie Calwell, Unit 32b, 62 Great Eastern Highway, Rivervale. On 13 February, at the same time of filing, a fax was sent on letterhead entitled Rod Rogers, to the Registrar. It read:
"Sir,
We urgently await your fax in reply to this mornings fax re Raccanello in order to facilitate proceedings according to the requirements of the Court."
In a more detailed fax, signed by Mr Rogers and hand-written, he pointed out that there was a strongly‑backed group of people in both Esperance and Kalgoorlie seeking to assist Mr Raccanello in an appeal in the action. He referred to the fact that affidavits were filed, but the chamber summons was rejected because a memorandum pursuant to O 59 r 9 was required. He sought details of a pro forma so that Mr Raccanello could comply.
It was about this time that Mr Mario Raccanello became involved. He deposed:
"… Mr Rogers informed that although he was not a lawyer he was in fact assisting my uncle in the Court proceedings and had prepared various documents …"
An account is sent for professional service
Also about this time an account was sent to Messrs Raccanello, which read as follows:
"Messrs Raccanello,
432 Egan St.,KALGOORLIE. WA. 6430.
Dear Sirs,
Further to our discussion of last Thursday I submit to you the following account for professional service and documentation to Mr Leo Raccanello.
re the case of Gunn vs Raccanello.
Preparation of and Service of Affidavits
and Chamber Summons in the Supreme Court
of W.A $2000.00Office work costs and phone and tax calls to the
Supreme Court and to Commercial Union to
obtain new evidence. $ 250.00
________TOTAL $ 2250.00
________
As this matter has dragged on for five (5) months payment is required within seven (7) days to avoid further action."
On 7 April 1998, the legal officer of the Legal Practice Board wrote to Mr Rogers, who responded asking various questions. At point 4 he said:
"As at no time I have ever claimed to be a legal practitioner why are you involved in my private commercial business."
He further advised:
"Preparation of the questionable documents was partaken of at the request of in‑person litigant Leonorio Raccanello by
Ms Sylvia Rogers - my wife
Ms Wendy Duncan - Ross Ainsworth MLA electorate officer
Assistance was given by
Michelle Campbell electorate officer of Graeme Campbell MHR
Arthur Auguste LLB …"
In a letter dated 23 April 1998, the respondent said:
"As it is now patently obvious that you have no knowledge of the private contractual arrangements between myself and Leo Raccanello and you are proceeding to investigate me with a view to laying charges against me I have no choice but to seek relief on grounds of restraint of trade."
On 19 April 1999 I made certain programming orders. On 11 May I received a fax from Mr Rogers wherein he said:
" …THE CASE BROUGHT BY THE LEGAL PRACTISES BOARD AGAINST ME REVOLVES AROUND A COMMUNITY GROUPS ATTEMPT TO ASSIST A MAN, A LEO RACCANELLO, PREPARE SOME DOCUMENTS TO ALLOW HIM TO APPEAR BEFORE THE COURT TO APPEAL AGAINST A JUDGEMEN'T OF $600.000 MADE AGAINST HIM IN THE SUPREME COURT
I SPENT MANY HOURS HELPING THIS MAN AND SOME OF THE DOCUMENTS AFTER I HAD COLLATED THEM WERE PREPARED BY ROSS AINSWORTH OUR LOCAL MLA, GRAEME CAMPBELL OUR LOCAL MHR, WE WERE ASSISTED BY THE LOCAL CLERK OF COURTS, THE LOCAL SERGEANT OF POLICE AND ARTHUR AUGUSTE , BARRISTER
THE REASON SO MANY COMMUNITY GROUPS BECAME INVOLVED WAS BECAUSE MR RACCANELLO WAS IN POOR HEALTH AND HAD BEEN REFUSED LEGAL ADVICE BECAUSE OF DEBTS OWED TO LAWYERS.
MR RACCANELLO OFFERED TO PAY FOR ANY HELP HE RECEIVED AND AT NO TIME WAS HE ASKED FOR MONEY THE ACCOUNT SENT TO HIM WAS MERELY A REMINDER OF HIS PROMISE TO HELP OFFSET THE COSTS INCURRED.
…
WE SOUGHT TO HELP HIM BECAUSE NO LAWYER WOULD. HAVING SPOKEN TO MANY MEMBERS OF OUR COMMUNITY AND MANY MEMBERS OF OUR CHURCH I CAN ASSURE YOUR HONOUR THAT IT IS GENERALLY CONSIDERED TO BE PRETTY CROOK WHEN WELL MEANING MEMBERS OF THE COMMUNITY ARE PROSECUTED FOR HELPING OTHER FOLK IN NEED.
IN CLOSING I CAN ASSURE YOUR HONOUR IT HAS ALREADY COST WELL OVER THE $2,000 DOLLARS THAT APPEARS IN THE INVOICE TO ASSIST THIS MAN AND NO ONE HAS RECEIVED ONE CENT.
IT NOW APPEARS THAT WE HAVE BROKEN SOME OBSCURE CLAUS OF THE LEGAL PRACTITIONERS ACT, HAD THE LEGAL PROFESSION COME TO THIS MANS AID NON OF US WOULD HAVE BECOME INVOLVED IN HIS QUEST TO CLEAR HIS NAME. AS IT STANDS I AM THE ONLY ONE BEING PROSECUTED. JUST WHAT PURPOSE IT SERVES TO PROSECUTE AN UNEMPLOYED MAN IN HIS FIFTIES WHO LIVES IN A STATE HOUSING COMMISSION ESTATE AND SPENDS HIS LIFE DOING VOLUNTARY WORK WHILST LETTING EVERYONE ELSE WHO ASSISTED GO FREE IS BEYOND THE KEN OF ALL IN OUR TOWN.
ROD ROGERS"
The explanation about the account given in this document is implausible in light of the terms of the account itself and the comments to the Legal Practice board. I completely reject it.
Conclusion
In my opinion, the evidence from the documents together with admissions made establish overwhelmingly that Mr Rogers prepared the documents particularised in the motion. These were prepared on behalf of Mr Leonorio Raccanello. I am satisfied beyond reasonable doubt that Mr Rogers has breached s 76 of the Legal Practitioners Act and is therefore guilty of a contempt of court. He has carried on the proceedings to a significant degree and in preparing the documents he has effectively acted as solicitor for Mr Raccanello. His actions went far beyond the provision of support and assistance to an elderly man and substantially intruded on the proper function of lawyers. The steps taken were ineffective and may have put Mr Raccanello in even greater peril had not solicitors been engaged by the guardian ad litem.
16 July 1999 - penalty hearing
Although Mr Rogers was not represented at the hearing of the complaint, today Mr Auguste has attended and ably put submissions as to penalty. I consider that the aggravating circumstance is the demand for payment. As to mitigation I accept that the respondent was trying to assist a very difficult person. The respondent is unemployed. While I consider the offence warrants a fine in the vicinity of $1000, having regard to the particular matters of mitigation I impose a penalty by way of a fine of $250.
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