Legal Practice Board v Said
[2002] WASC 35
THE LEGAL PRACTICE BOARD -v- SAID [2002] WASC 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 35 | |
| Case No: | CIV:1733/1999 | 28 MARCH & 17-18 APRIL 2001 | |
| Coram: | PARKER J | 8/03/02 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Respondent guilty of contempt | ||
| B | |||
| PDF Version |
| Parties: | THE LEGAL PRACTICE BOARD MICHAEL NASSIB SAID |
Catchwords: | Legal practitioners Motion for contempt Work performed by person not a legal practitioner Defence of action Acting as solicitor Drawing and preparing documents relating to legal proceedings |
Legislation: | Legal Practitioners' Act 1893 (WA), s 76, s 77, s 78, s 81 |
Case References: | Attorney-General Ex Rel Law Society of Western Australia 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 v Bouloudas (1994) 10 WAR 191 Green v Hoyle [1976] 1 WLR 575 Law Society of New South Wales v Ramalca Pty Ltd (1988) 12 NSWLR 34 Said v The Legal Practice Board, unreported; FCt SCt of WA; Library No 950466A; 7 September 1995 The Legal Practice Board v Adams [2001] WASC 78 The Legal Practice Board v Said, unreported; SCt of WA (Scott J); Library No 940608; 31 October 1994 The Law Society of the United Kingdom v Waterloo Brothers and Layton (1883) 8 AC 407 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
MICHAEL NASSIB SAID
Respondent
Catchwords:
Legal practitioners - Motion for contempt - Work performed by person not a legal practitioner - Defence of action - Acting as solicitor - Drawing and preparing documents relating to legal proceedings
Legislation:
Legal Practitioners' Act 1893 (WA), s 76, s 77, s 78, s 81
Result:
Respondent guilty of contempt
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Category: B
Representation:
Counsel:
Applicant : Mr BJ H Goetze
Respondent : In person
Solicitors:
Applicant : Minter Ellison
Respondent : In person
Case(s) referred to in judgment(s):
Attorney-General ex rel The Law Society of Western Australia v Quill Wills Ltd (1990) 3 WAR 500
Cornall v Nagle [1995] 2 VR 188
D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191
Green v Hoyle [1976] 1 WLR 575
Law Society of New South Wales v Ramalca Pty Ltd (1988) 12 NSWLR 34
Said v The Legal Practice Board, unreported; FCt SCt of WA; Library No 950466A; 7 September 1995
The Barristers' Board v Palm Management Pty Ltd [1984] WAR 101
The Legal Practice Board v Adams [2001] WASC 78
The Legal Practice Board v Said, unreported; SCt of WA (Scott J); Library No 940608; 31 October 1994
Case(s) also cited:
The Law Society of the United Kingdom v Waterloo Brothers and Layton (1883) 8 AC 407
(Page 3)
1 PARKER J: This application is brought by The Legal Practice Board pursuant to s 81 of the Legal Practitioners Act 1893 ("the Act"). It is alleged that the respondent, Michael Nassib Said, is in contempt because he contravened s 76 and s 77 of the Act in that, not being a certificated legal practitioner, between 31 July 1997 or thereabouts and 24 March 1998 or thereabouts he did draw and prepare 16 specified documents on behalf of the defendant in an action in the District Court.
2 The action in the District Court was No 2709 of 1997. The first plaintiffs were the partners in a legal practice, Nicholas Robert Cogin and Wilhelm Loffelmann, and the second plaintiff was Mrs Jennifer Helen Cogin, the wife of one of the first plaintiffs. The defendant in the action was Raymond Nassib Said, a brother of the respondent to this application.
3 It is not disputed by the respondent, and the evidence clearly establishes, that the respondent has not been admitted as a legal practitioner and that his name does not appear on the Roll of Practitioners maintained pursuant to s 23 of the Act. He is not therefore a certificated practitioner. Nor was the respondent a party to the District Court action.
Statutory provisions
4 The relevant provisions of the Act provide 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.
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- (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 s 29 of the Local Courts Act 1904.
77. Only certificated practitioners to engage in legal business. Exception of public officers, etc.
(1) No person other than a certificated practitioner shall directly or indirectly perform or carry out or be engaged in any work in connection with the administration of law, or draw or prepare any deed, instrument, or writing relating to or in any manner dealing with or affecting real or personal estate or any interest therein or any proceedings at law, civil or criminal, or in equity.
(2) Nothing in subsection (1) shall be construed to affect public officers acting in discharge of their official duty, or the paid or articled clerks of certificated practitioners, or any person drawing or preparing any transfer under the Transfer of Land Act 1893.
78. No liability in certain cases
(1) Nothing in section 77 shall extend to make any person liable to any penalty if such person satisfies the Court or a Judge thereof, as the case may be, that the person has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work or services so done.
(2) Where such person directly or indirectly receives, expects, or is promised pay or remuneration for or in respect of other work or services relating to, connected with or arising out of the same transaction or subject-matter as that to which the said first-mentioned work or services shall relate, the provisions of this section shall not apply.
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
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- 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."
The application
5 The Board's originating motion specifies the 16 documents which it is alleged the respondent did draw and prepare on behalf of Raymond Said the defendant in the action in contravention of s 76 and s 77 of the Act. These 16 documents are described as follows:
"i. memorandum of conditional appearance dated 31 July 1997;
ii. request for discovery of documents and notice to produce for inspection dated 31 July 1997;
iii. defendant's request of particulars of first and second plaintiffs' claims dated 1 August 1997;
iv. notice of intention to defend dated 16 September 1997;
v. chamber summons to strike out action and other relief dated 16 October 1997;
vi. amended chambers summons to strike out action and other relief dated 20 October 1997;
vii. affidavit of Raymond Nassib Said in support of chamber summons to dismiss action dated 20 October 1997;
viii. defence and counterclaim dated 14 January 1998;
ix. notice of appeal dated 22 January 1998;
x. affidavit of Geoffrey Wayne Newman dated 28 January 1998;
xi. affidavit of Gilda Achikian dated 29 January 1998;
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- xii. affidavit of Michael John Dunderdale dated 9 February 1998
xiii. chambers summons for a stay of execution and to add a defendant dated 23 February 1998;
xiv. notice of appeal dated 23 February 1998;
xv. chamber summons to enable Michael Said, director to represent second defendant in person dated 11 March 1998; and
xvi. affidavit of Raymond Nassib Said dated 24 March 1998."
6 The originating motion in its heading refers to s 76, s 77 and s 81 of the Act. The terms of the motion are, at least at first sight, less than an ideally clear statement of what is alleged. There is a clear allegation that the respondent carried on, defended and acted as a solicitor in the District Court action which is conduct capable of constituting a breach of s 76(1) of the Act. It is also clearly alleged that the respondent did draw and prepare the 16 documents on behalf of the defendant in the action which is conduct capable of constituting a breach of s 77(1) of the Act. What is not altogether clear is that the drawing and preparing of the 16 documents in the action is intended not only to provide particulars of the breach of s 76(1), but also, separately, to constitute a breach of s 77(1). The matter was put clearly, however, in opening and no objection was raised. It was clear that the respondent had prepared on the basis that breaches of both sections were alleged.
7 Hence, I proceed on the basis that the case alleged against the respondent is that, by drawing and preparing the 16 documents, the respondent contravened both s 76 and 77 of the Act. Of course, by virtue of s 81, conduct which in any respect contravenes either or both s 76 or s 77 is punishable as a contempt.
The operation of s 76 and s 77
8 The subject matter of s 76 and s 77 can be traced as a matter of legislative history to s 6 of the Admission of Barristers Act 1881 (WA) (45 Vic 1). More closely s 46 and s 47 of the Act, as originally enacted, are direct legislative forebears to the present s 76, s 77 and s 78. The meaning and operation of the provisions have received consideration in a number of decisions over the years. While those decisions have provided much illumination, the nature of the subject matter and some of the language
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- used in the provisions continues to provide fertile ground for further judicial consideration.
9 The purpose of these provisions is generally accepted as being to protect the public by ensuring that legal work is only performed by persons who have suitable legal training and have secured appropriate legal qualifications and, importantly, who are subject to the disciplinary supervision of this Court for which the Act makes particular provision; D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191 at 207; The Legal Practice Board v Adams [2001] WASC 78 at [26]. The legal work which is the subject of this restriction is legal work within the scope of s 76 and s 77.
10 The reasons for decision in cases such as TheBarristers' Board v Palm Management Pty Ltd [1984] WAR 101 and Cornall v Nagle [1995] 2 VR 188 have done much to illuminate the scope and operation of many of the concepts dealt with in s 76 and s 77 of the Act. The reasons of J D Phillips J in Cornall v Nagle at 196-211, although dealing with somewhat similar Victorian provisions, provide an extremely valuable review of relevant authority in particular in relation to the notion of acting or practising as a solicitor. His Honour concluded at 210 that an unqualified person may act or practice as a solicitor in any of the following ways:
"(1) by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor; …
(2) by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner …;
(3) by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law. For present purposes, it is unnecessary to go beyond the example of the giving of legal advice as part of a course of conduct and for reward, … leaving open for later consideration the full scope of that notion. …"
- As his Honour went on to make clear, it is only in respect of the first of these three circumstances that it is relevant whether the inference is justified from the conduct that the actor is a solicitor. In the other two
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- situations the actor may have acted or practised as a solicitor even though stating plainly that he or she is not.
11 By s 76(1) of the Act a person who is not a certificated practitioner may not act as a solicitor in the litigious circumstances therein specified. Cornall v Nagle was concerned, however, with s 111 of the Victorian Legal Profession Practice Act 1958 which focussed attention on "acting as a solicitor", or, "as a solicitor suing out any writ or process or commencing carrying on soliciting or defending any action", etc. It will be noted that s 76(1) of the Act is wider than the Victorian provision in its operation. The second limb of s 76(1), like the Victorian section, precludes a person acting as a solicitor (or other style of legal practitioner) in specified litigious matters. However, unlike the Victorian section, the first limb of s 76(1) precludes persons other than certificated practitioners from suing out any writ or process or commencing carrying on etc, any action or other proceeding, but it is not necessary that the person do so "as a solicitor" to contravene the provision.
12 The decision of Brinsden J in TheBarristers' Board v Palm Management Pty Ltd (supra) at 107 is generally accepted as confirming that the expression "administration of law" in s 77(1) is to be read as meaning "the practice of law". Thus, in respect of litigation of the type comprehended by s 76(1), there is much scope for overlap between s 76(1) and s 77(1).
13 The practice of law is not, however, confined to litigation. As Hasluck J observed in The Legal Practice Board v Adams (supra) at [28], Brinsden J in TheBarristers' Board v Palm Management Pty Ltd:
" … went on to suggest that the practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court. If the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the person giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of the law.
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- Further, he cited with approval a proposition emerging from the decided cases that where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing laws in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required. A charge for such a service brings it definitely with the term 'practice of the law'."
- Similar views are expressed by J D Phillips J in Cornall v Nagle in particular at 208-209.
14 Section 77(1) of the Act, however, does not only proscribe work in connection with the administration of law. It also specifically proscribes a number of specific activities. Relevant to the present application, the drawing or preparation of any instrument or writing relating to or in any manner dealing with proceedings at law is specifically proscribed. It would appear clear that each of the 16 documents on which the applicant relies in the present case are instruments or writings which relate to the proceedings constituted by the District Court action.
15 The notion of drawing or preparing documents in contexts such as the present has been considered in a number of decisions. Some difference of approach, which favours the present respondent, has emerged between cases decided in the context of s 77 of the (Western Australian) Act and cases dealing with this subject in the Victorian and New South Wales legislation. A number of the relevant cases are considered by J D Phillips J in Cornall v Nagle, in particular at 204-206. It has been generally accepted in this State that in the particular context of s 77(1) the notion of drawing or preparing a document involves "the use of the intellect to compose the document, the use of the brain to select the correct words, to put them in the correct sequence so that the document expresses the intention of the parties"; see Green v Hoyle [1976] 1 WLR 575 at 581, per Widgery LCJ and The Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 (supra) per Brinsden J at 109-110. It is on this basis that in this State the mere routine filling up of a document which is in the form of a precedent has been generally regarded as merely a "clerical" or "ministerial" function, and that more than this is required to constitute the "drawing" or "preparing" of a document for the purposes of s 77(1). As was said by Hasluck J in the Legal Practice Board v Adams (supra) at [30]:
"It is apparent from Cornall v Nagle that where a person in bringing documents into existence exercises his mind as to what
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- is the appropriate form of words to accommodate the particular case, then this can be regarded as drawing or preparing a legal document. A process of that kind goes beyond mechanical or clerical tasks and is of a kind required to be performed by a solicitor."
16 In Cornall v Nagle (supra) at 205 consideration was also given by J D Phillips J to the situation in which, in the drawing or preparation of a document, the document passed through a number of hands. His Honour referred by way of example to Green v Hoyle (1976) 1 WLR 575 (supra), Law Society of New South Wales v Ramalca Pty Ltd (1988) 12 NSWLR 34 and Attorney-General ex rel The Law Society of Western Australia v Quill Wills Ltd (1990) 3 WAR 500. His Honour observed that in the last two of these the Court regarded as answerable the person who took responsibility for the finished product; and see also Green v Hoyle at 584 per Goff J. His Honour concluded that this was a sufficient test for his present purposes; a view which, in my respectful view, is also appropriate to apply in the present case.
17 It is to be noted that in the context of s 77(1) the drawing or preparing of the writings there specified need not be undertaken in the practice of the law or in connection with the administration of law to come within the proscription of the provision. It is enough that such a writing is drawn or prepared by a person who is not a certificated practitioner. Of course, it must be kept in mind that by s 77(2) there are exceptions, which include the paid or articled clerks of certificated practitioners. Further, s 78(1) excludes from liability for conduct otherwise in breach of s 77(1) any person who satisfies the court that he or she has not been directly or indirectly paid or remunerated for the work (or promised or expected pay or remuneration).
18 Many things in the day to day conduct of legal practice may be attended to by a solicitor's servants or agents. Except where a statute or rule may require a solicitor to act personally in a particular matter, many things may be delegated by a solicitor to the servants or agents of the solicitor. There is no need for present purposes to analyse the range of matters that may be delegated in this way but the topic is discussed generally by J D Phillips J in Cornall v Nagle at 198-199. Thus a servant or agent of a solicitor may perform a number of acts under the authority of the solicitor principal without contravening s 76(1) or s 77(1).
19 In concluding this review of the law and principles which I should apply in the present case I would add that it was accepted by counsel for
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- the applicant that a contempt of this nature must be established beyond reasonable doubt. That is the standard of proof which the Board must discharge in this application; Said v The Legal Practice Board, unreported; FCt SCt of WA; Library No 950466A; 7 September 1995 per Malcolm CJ, Kennedy and Owen JJ concurring, at 4.
The background circumstances
20 In 1997 the respondent's brother Raymond Said was concerned with proceedings in the Local Court. Those proceedings had been commenced in 1994 in the District Court but were later transferred to the Local Court. A former client, Mr Lee was suing Raymond Said and Donabray Pty Ltd, a company of which Raymond Said was the owner and the managing director. This company traded as Phoenician Pools. It manufactured and repaired swimming pools. For a time Mr Nicholas Robert Cogin had acted for Raymond Said and his company in this action. He had also handled all of Raymond Said's other legal affairs including protracted family law proceedings and other matters concerning Donabray Pty Ltd. At times relevant to this present application Mr Cogin was a partner in a law firm, Cogin and Loffelmann. Mr Cogin ceased to act for Raymond Said and his interests sometime in 1996. Thereafter Raymond Said and Donabray Pty Ltd were without legal representation. There are suggestions in evidence that Raymond Said had approached other legal practitioners but was not able to afford the fees which they proposed, so they were not retained.
21 In mid 1997 Mr Lee's action in the Local Court was approaching trial. I accept it was the view of Raymond Said that he had neither the knowledge nor the skills necessary to adequately defend this action. I also accept that it was the view of Raymond Said, and it was the fact, that his brother the respondent, by virtue of involvement in a number of legal proceedings, had gained at least some knowledge of legal procedures and some familiarity with aspects of the law, such that in the view of Raymond Said the respondent was far more capable of ensuring the adequate defence of Mr Lee's action than was Raymond Said. In addition to the respondent's familiarity with some matters of law and legal procedure, it was also the case that Raymond Said had a very limited capacity in the English language, whereas the respondent had developed a much greater capacity in both written and spoken English, including some rough familiarity with English usage in legal contexts. I also accept from the evidence that Raymond Said could not spare the time necessary to prepare his case for trial.
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22 By mid 1997 Raymond Said's problems were far more extensive than Mr Lee's action. His or his company's business activities had given rise to a number of legal disputes. He was also being pressed to pay arrears of rent on his business premises and to pay legal fees which were outstanding to Cogin and Loffelmann. In addition his business affairs were in considerable disarray and his company was at risk of liquidation. There is evidence that by mid 1997 he was having to obtain part payment in advance for work undertaken by his business to enable him to obtain necessary materials and to pay his workmen. The evidence suggests that he was working extremely long hours to try and survive financially and the strain of this and of his legal and financial problems was having a considerable adverse effect on his emotional well-being and on his capacity to manage his affairs.
23 It is the evidence of the respondent that it was in this context that he was approached by Raymond Said for assistance; initially it seems in May 1997. The approaching trial of Mr Lee's action was the primary consideration.
24 It is the evidence of the respondent that he was reluctant to become involved with his brother's affairs. In part, he says, this was because there were aspects of his own affairs which required attention. His reluctance also arose from some tension in their personal relationship and because he was concerned to avoid exposing himself to any further risk of being in contempt of court. He had been found guilty of contempt in respect of his involvement in the legal affairs of another in earlier proceedings; The Legal Practice Board v Said, unreported; SCt of WA (Scott J); Library No 940608; 31 October 1994, Said v The Legal Practice Board (supra). It is the respondent's evidence that it was only after continued pressure from Raymond Said and from their mother that the respondent eventually agreed to assist Raymond Said. A little later in these reasons I will quote from an affidavit of the respondent sworn on 13 February 1998 which suggests a difference of emphasis about some of these matters. Nevertheless, I accept the above and find accordingly.
25 While the matter of most immediate concern was the Local Court action of Mr Lee, it is apparent from the evidence that the respondent was well conscious of the pressing difficulties with his brother's financial and business affairs and that he saw his role to be more extensive than merely to be concerned with the Local Court action of Mr Lee. As the respondent said at one point of his evidence, Raymond Said was literally not sleeping and not able to concentrate so that the respondent felt he had to intervene "on every little detail" … "anything I can help him with that will preserve
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- him from having to leave work … so he doesn't have to attend to these matters, and so therefore he concentrates all his focus trying to earn some money for the company …".
26 There is in evidence a brief document headed "Agreement" which is signed by both the respondent and Raymond Said and dated 3 June 1997, but which purports to record an agreement reached on 30 May 1997 between the two, the most material provision of which is:
"Michael Said will help Raymond Said with his litigation against anyone who instigate (sic) any legal action against the (sic) Raymond or vice versa to the extent that Michael is able and/or willing to do so at no charge whatsoever."
- In an affidavit filed in the District Court in action number 2709 of 1997 the respondent deposed on 13 February 1998 that his brother had visited him on 30 May 1997 following a pre-trial conference in the Local Court and they discussed the Local Court proceedings. The respondent continued:
"7. My brother left my place without having accepted my help which I offered him free of charge claiming to have severe problems trusting me or anyone, despite the fact I offered to put my intent not to charge him if he lost, as he was in no position to pay me anything, in writing, and stated that he would have to think about it before he get back to me in in the matter, even when the conditions I stipulated were as follows:
a. I will help him to resolve his case With the Alan Lee (sic) without charge to him in the event that he lost that case. However, in the event that he won, he will then pay to me whatever the Court allows him for me as part of his costs.
b. Raymond will remain on the Court's record as acting in person while I help preparing all his documentation.
c. I will never have any legal claims against him nor he against me in any event.
d. I remain free to cease helping Raymond at any time without incurring any liability or losses. The same is true for Raymond who could cancel any
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- of this arrangement at any time without being liable for any costs whatsoever to me.
- e. Raymond is to copy all his files in the Lee Case and to bring them to me to enable me to commence helping him."
27 It is the effect of the evidence, and I find, that by 3 June 1997 Raymond Said came to accept these terms set out in par 7 of the affidavit, which had been proposed by the respondent on 30 May 1997. The written document dated 3 June 1997 was not intended as a further or complete agreement. Indeed it had been foreshadowed on 30 May 1997 when the respondent offered to put in writing that he did not intend to charge if Raymond Said lost (see the early lines of par 7), and was intended to reassure and protect Raymond Said who, it seems, had been cautioned about the respondent by Mr Cogin (par 8 of the affidavit). Further, the written document seems to have been intended to extend what had been proposed on 30 May 1997 in relation to the Lee action to "any legal action against (the) Raymond or vice versa". As will appear, it was pursuant to this extension that the respondent came to assist Raymond Said in District Court action No 2709 of 1997 on the basis originally proposed by the respondent on 30 May 1997.
28 It is to be noted that by the terms so agreed Raymond Said was to remain on the court record as acting in person, but the respondent would help prepare all his documentation. While it was agreed that the respondent would not charge for his services, Raymond Said agreed that in the event of success he would pay the respondent whatever the court allowed for the respondent's work as part of Raymond Said's costs. As will appear, however, money came to be paid to the respondent by Raymond Said in circumstances which will be considered in more detail later in these reasons.
29 The papers held by Raymond Said were incomplete and disordered and the respondent set about trying to secure the files relating to the Lee action from Cogin and Loffelmann. He also sought to obtain access to the files relating to that action held in the Local and District Courts. He encountered difficulty in these respects and on 11 June 1997, at the respondent's suggestion, Raymond Said for himself, and as a Director of Donabray Pty Ltd trading as Phoenician Pools, signed an authority, the terms of which included:
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- "I … do hereby authorise my brother, Mr Michael N Said … who is willing to assist me with my current legal disputes with Mr Alan Lee and others, to seek and obtain access to all my files at the District and the Local Courts and all my files held by my former Solicitors, and to engage Solicitors on my behalf if and when necessary, with close consultation with me, pertaining to this or any other matter which may arise which may require my personal attention, and to have dealings with them on my behalf as my personal representative who has my total trust and authority to handle any issue arising out of my past and current predicaments having anything to do with me personally or my above stated business, either with or without my presence as he thinks fit."
- By this stage the respondent had found that Cogin and Loffelmann had acted for Raymond Said in a number of matters and it is clear that this authority was drawn to ensure that it would inter alia extend to all of the files of Raymond Said and of Donabray Pty Ltd trading as Phoenician Pools. The authority extended much more widely, of course, than merely to secure access to files.
30 On 11 June 1997 the respondent wrote to Cogin and Loffelmann advising that he was now assisting Raymond Said "with all his problems inclusive of his current litigation with a Mr Alan Lee …" and seeking the release of the files urgently. In this letter the respondent observed:
"I note that nothing of substance has been done on my brother's behalf to date and no defence, counterclaim nor any formal pleadings and interlocutory procedure (sic) been entered into to date. Therefore there is much to be done to bring his claims and the issues properly dealt with (sic) before this action could be allowed to proceed to trial and as you can see, there is not much time left for him to do all the necessary work."
31 While Cogin and Loffelmann had been cooperative to a degree with access to its files it appears that there were outstanding fees of substance, including $15,000 which was in respect of senior counsel's fees in the Family Court litigation. As a consequence the firm was not prepared to hand over all papers. There were telephone and other conversations between the respondent, Mr Cogin and Raymond Said. At the instigation of the respondent, Raymond Said wrote a letter to Cogin and Loffelmann on 18 June 1997 which included the statement:
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- "I confirm that my brother is in charge of my legal affairs now your assistance is required as a matter of urgency for any information he may require to enable him to help me."
32 While these matters were proceeding it appears there were also ongoing discussions between Mr Cogin and Raymond Said, the general effect of which was that Mr Said might undertake work at Mr Cogin's home, in particular repair work to a swimming pool, on the basis that the value of the work would be set off against the outstanding legal fees due to Cogin and Loffelmann. It seems that in mid-June 1997 some work in respect of the swimming pool at the home of Mr Cogin was commenced but not completed. This became a further matter of dispute, complicated by the circumstance that the home was owned not by Mr Cogin but by his wife Jennifer Helen Cogin.
33 By a writ of summons filed on 18 July 1997 in the District Court Messrs Cogin and Loffelmann as first plaintiffs, and Mrs Jennifer Helen Cogin as second plaintiff, sued Raymond Said. This is action number 2709 of 1997 in which the 16 documents upon which the Board relies were filed. The endorsement of claim alleged two distinct causes of action. The first was a claim by Cogin and Loffelmann for legal fees totalling $42,000. The second was a claim by Jennifer Helen Cogin for damages done by Raymond Said to the swimming pool at her residence on or about 16 June 1997. Interest was also claimed in respect of both causes of action. This writ was served on Raymond Said some days after it was issued and the respondent immediately became involved in the defence of this new action. As far as the evidence reveals no fresh basis was discussed or agreed for the respondent's involvement, it being treated in my finding as part of the respondent's involvement with the overall legal and other affairs of Raymond Said.
34 The 16 documents upon which the Board relies in this application and while have been listed earlier in these reasons were progressively filed and served in the District Court. Putting aside for the present four of the documents, being the three affidavits, documents x , xi and xii and a chamber summons dated 11 March 1998 document xv, all of the remaining 12 documents relied on were endorsed in the usual pace with a notation in the following, or approximately the following, terms:
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- "Prepared by:
Michael N Said
Assistant/(Brother)
Raymond Nassib Said
Defendant in person
C/- 10 Cohn Court
Willagee WA 6165."
- 10 Cohn Court, Willagee was the home address of the respondent. In respect of the 12 documents now being considered telephone numbers were also endorsed, which were those of the respondent. There was also an endorsement that the document was filed on behalf of "The Defendant in person" and each document was signed by Raymond Said above a notation "defendant in person".
35 The three affidavits, being documents x, xi and xii, had no endorsement with respect to their preparation. They were simply filed by Raymond Said as "The Defendant in person", so far as each affidavit reveals. I will deal with document xv, the chamber summons dated 11 March 1998, later in these reasons.
36 It is not material to the present application to make any observations as to the nature of the action, its conduct and the joinder of the causes of action and I will not do so.
The merits of the application
37 The Board relies on the endorsement on 12 of the documents noted above as evidence that they were in fact prepared by the respondent. It submits that the nature and content of the documents as a series in the action, they each being prepared by the respondent, is sufficient to establish that in truth he was directly or indirectly carrying on, defending and acting as a solicitor in the District Court action for his brother, Raymond Said. The Board also seeks to rely on the agreement between the respondent and Raymond Said referred to earlier in these reasons and the assertions in the correspondence to which I have referred as evidence of the respondent's true role in respect of this District Court action and the other legal affairs of Raymond Said.
38 The Board also placed some reliance on statements in letters sent by the respondent to the solicitors acting in the District Court action for the plaintiffs in which, among other things, the respondent expressed the opinion that Mr Cogin had been negligent in his conduct of Raymond
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- Said's legal affairs, the need for him to have access to all of the files so that the respondent could ascertain whether or not Raymond Said owed any money to the plaintiffs, an assertion that he would undertake to instruct Raymond Said to proceed to complete the work at the Cogin home on certain conditions, a proposal that he should meet with the plaintiff's solicitors to discuss resolution of the problems on a without prejudice basis, and a stated insistence that the solicitors for the plaintiff refrain from any further contact with Raymond Said and direct all future communications to the respondent. Further, in other letters written by the respondent to the solicitors for the plaintiff, all written in July 1997, the respondent made statements to the effect that he needed to read all the files before he could identify the acts of negligence which would be asserted against the plaintiffs and the extent of the claim for damages that would be pursued; he also proposed an offer of settlement, not only of the District Court action but also of Local Court actions that had been commenced by Cogin and Loffelmann against Donabray Pty Ltd asserting that if the offer were not accepted "we will be prepared to fight your clients to the bitter end …". The Board also sought to rely on evidence that the respondent attended with Raymond Said at various appearances before Registrars and Judges of the District Court and sought to represent his brother on those appearances.
39 These matters extend, of course, beyond the drawing and preparing of the 16 documents upon which the Board's application is founded. They are advanced not as evidence of conduct in contravention of the Act but as evidence of the true nature of the respondent's activities in respect of the conduct of the defence of Raymond Said in the District Court action of which the drawing and preparation of the documents was a part. I do not find any assistance in the attempts to appear on behalf of Raymond Said as it is not suggested that in any respect the respondent purported to appear as a legal practitioner but merely to represent or speak on behalf of his brother. In each case his request was refused and Raymond Said conducted the appearance so far as he was able. Practical reasons were offered in evidence for the attempts to ensure that the solicitors for the plaintiff dealt with the respondent rather than Raymond Said and for the attempts to have the respondent's address accepted as the address for service of documents. Nevertheless, these matters, as well as the contents of some of his correspondence, provide some support for the view that his actions may have constituted acting as a solicitor or conducting the defence of the action. They must be considered, however, in light of all the evidence and in particular the defence evidence relating to the drawing
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- and preparation of the particular documents relied on in support of the application.
40 The respondent raises many matters, as I understand his defence, which are of varying relevance and weight. In particular, he says that all times the defence was conducted by Raymond Said acting in person and the documents themselves evidence this by their consistent assertion of this fact and because, where signature was called for, they were signed by Raymond Said in person. It is his evidence and submission that the endorsement as to the preparation of the documents on each of the documents (apart from the affidavits and the chamber summons of 11 March 1998) was not intended to indicate that he was the person who had the sole preparation of the document but to make it evident to all that Raymond Said had assistance from the respondent in the preparation of the document. In this respect the words themselves and the format may admit some ambiguity. The respondent in his evidence and submission accepts that he had a role in preparing each of the 16 documents, but it his evidence that the preparation was shared with Raymond Said who took all the effective decisions, albeit after discussion with the respondent and after the respondent had sought to guide and assist him, as to what steps should be taken and what documents should be filed. There is also evidence of the respondent as to the process generally followed in preparing documents which was a process, it is said, which involved not only discussion between the respondent and Raymond Said but also the preparation of partial or complete handwritten drafts by Raymond Said, or partial or complete drafts on computer discs prepared by Raymond Said, which the respondent then merely corrected, he says, for English usage and legal form. As I understood his evidence that process of drafting and correction might occur once or several times during the preparation of a document. It was the evidence of the respondent but that by these means his role was merely to try and present the thoughts of his brother in appropriate English and legal form. Hence, he submits his role was in truth of a secondary nature and essentially merely ministerial, or secretarial, in nature.
41 There was often inconsistency in the evidence of the respondent. For example, on the one hand he was quite eloquent in his description of the workload and long hours his brother spent in the business, and of the state of apparent depression of his brother which meant that he was unable to effectively deal with his business and legal affairs. Yet, on the other hand, he went to some lengths to describe how the general process followed, apparently from the outset of the respondent's assistance to his brother, involved Raymond Said considering all matters, making all
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- material decisions, preparing often extensive drafts and checking all documents before he signed them. While the respondent insisted that Raymond Said had prepared extensive handwritten, and later computer disc, drafts of documents, and in his evidence often indicated his intention to tender these, with the exception of one handwritten set of notes relating to one document no drafts were ever tendered. The respondent was given opportunities to produce these overnight but did not do so. His reasons and explanations for not doing so were varied and progressive but, in the end, it seems to be his account that some of the drafts and some computer discs were with his brother's present solicitors and he hadn't been able to find time to locate them; further he may have lost some computer records because of technical difficulties at some time. I found all of this to be somewhat unconvincing.
42 I also had the distinct impression that the respondent was contriving to play down his role and level of responsibility in an attempt to create the impressions that he had no original role in the decision to take any step or file any document in the action or with respect to the content of the documents that were filed so his role was no more than ministerial or secretarial. The nature and content of the documents in question, and my clear impression of the respective levels of understanding of legal issues and procedures of the respondent on the one hand and Raymond Said on the other, made this somewhat improbable. I do accept that Raymond Said was consulted with respect to each material step taken in the defence and as to the documents that were prepared and filed, but I had the distinct impression that the evidence of the respondent exaggerated the role and capacity of Raymond Said in these matters and played down the respondent's role. In this respect the respondent did lead evidence from Raymond Said, both affidavit and oral evidence. While in general terms this supported the respondent to some degree, it fell short when the detail was tested. I was left with the clear impression, both from the evidence itself and from the understanding I gained about Raymond Said's lack of familiarity with legal issues and procedures and his limited facility with the English language, that the real role played by Raymond Said in the preparation of the documents and the decision that they should be prepared and filed was often in the nature of an acceptance of the views advanced by the respondent rather than an originating and determinative role.
43 A cousin of the respondent and Raymond Said, Mr Ghassan Said, also gave evidence for the defence on affidavit and orally. His evidence provided some confirmation of discussions between the respondent and Raymond Said, discussions in which the cousin also played some part,
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- and provided some confirmation of some drafting by Raymond Said. He eschewed any detailed involvement or recollection. By the end of the evidence of the cousin, however, it was my clear impression that his evidence fell well short of confirming the merely ministerial or secretarial role which the respondent had sought to maintain.
44 Despite the reservations I have and which I have sought to summarise, the evidence does clearly indicate that Raymond Said had an ongoing involvement in the conduct of the defence. This included some involvement in the preparation of documents that were filed in the District Court. Leaving aside the three affidavits and the chamber summons of 11 March 1998, he gave at least some consideration to each document and was prepared to accept the document as his own by signing it as such. In many cases he attended himself to the filing of the document in the Court and the service of it. With respect to the three affidavits, documents x, xi, and xii, the only evidence before me is that it was Raymond Said who sought out the three witnesses and obtained from them drafts of their evidence, which the respondent typed up in appropriate form making only grammatical and spelling corrections. I will consider the chamber summons of 11 March 1998 in more detail later, but on the only evidence before me Raymond Said was aware of the summons and had some discussion with the respondent as to its content and accepted the respondent's view that it should be prepared and filed.
45 While he may have been influenced, to a greater degree than the respondent sought to assert, by the opinion and ideas of the respondent as to what steps should be taken in the defence of the action and as to the nature of the documents and their content nevertheless, in the end, Raymond Said appears to have accepted that each of the 16 documents should be filed in the conduct of his defence of the action, and in the case of 12 of the documents he accepted each of them as his own by signing them.
Remuneration
46 It is particularly asserted by the respondent as a further limb of his defence that he was not remunerated or promised remuneration for the assistance he gave his brother. As foreshadowed earlier in these reasons it was the evidence of the respondent, confirmed in general terms by Raymond Said, that they had initially agreed that the respondent would not be remunerated for his assistance. The respondent accepted that Raymond Said hadn't the financial means to pay him unless Raymond Said should be successful in some claim or other whether against Mr Lee,
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- or later the partners in Cogin and Loffelmann or Mrs Cogin, or some other of the several people with whom Raymond Said or Donabray Pty Ltd were in legal dispute. I accept from the evidence that in the event that Raymond Said or Donabray Pty Ltd should have some success and secure an award for costs, the respondent had reserved to himself the benefit of any costs order which might be made in favour of Raymond Said or Donabray Pty Ltd in respect of the work done by the respondent. Unknown to the respondent and Raymond Said, as a matter of law, as no legal practitioner was acting, it is not apparent how the respondent would ever have achieved any actual financial benefit by these means, except perhaps the recovery of out of pocket expenditure. Notwithstanding this, it cannot be said, in my finding, that even at the beginning the respondent had no thought of the possibility of some financial benefit, although he was clearly careful to limit this to the amount that might flow from any costs order of the Court. Although it was conditional on Raymond Said securing an order for costs, in these circumstances it cannot be concluded, in my finding, that the respondent had not been promised or expected remuneration for the work he undertook in the District Court action in respect of the 16 documents within the meaning of s 78(1).
47 There was a significant further element, however, relevant to the issue of remuneration and the reliance of the respondent on s 78 as part of his defence. Despite the terms agreed between the respondent and Raymond Said on or between 30 May 1997 and 3 June 1997 that the respondent would not be remunerated for his work, the evidence discloses that he was paid sums of money by Raymond Said. The respondent's explanation is that the money he was paid was to part recompense him for out of pocket expenditure. It is his evidence that he incurred expenses for a variety of matters including court fees, transcript fees, the purchase of legal reference works, an interview with the Law Society's shop front lawyer service, and expenses such as the costs of transmitting fax messages and travelling costs.
48 In his evidence the respondent asserted with some confidence that he had maintained meticulous records of every item of expenditure and he also asserted that he had prepared a complete statement of these items for his brother. He also repeatedly indicated, as a matter of generality, that he remained out of pocket in respect of this expenditure as Raymond Said had failed to reimburse him fully in respect of his out of pocket expenditure.
49 Despite these generalised assertions, and even though the respondent was clearly well conscious of the importance to his case of the issue of
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- remuneration, the evidence which he gave was seriously deficient in particulars and supporting documentary records. Despite being allowed further opportunity to locate and produce the full statement of the out of pocket expenses which the respondent had incurred this statement was never produced in Court or tendered in evidence. The respondent's explanation in the end seemed to be that it was probably with Raymond Said's then solicitor.
50 The respondent did eventually produce some individual receipts. This was, again, only after the matter had been pursued with the respondent and after he had taken time overnight to prepare his receipts. Those that he did tender detailed expenditure totalling in all some $1,492.70. In the main part they were in respect of transcript and court fees as well as the purchase of legal reference works, and there was a receipt for $20 for the interview with the shop front lawyer service. While the respondent continued to make general assertions that he had many more receipts and in fact had with him in Court a large box which he indicated contained receipts or financial records, it remained the fact that the only receipts tendered totalled some $1,492.70.
51 In his evidence, the respondent had mentioned fax costs and travel expenses as two further items but gave no indication of the extent of these. There were also suggestions that he may have receipts dealing with one or more other legal proceedings in which his brother or Donabray Pty Ltd were concerned but this was never established and none were tendered, nor was there any evidence as to the amount of any other expenditure of this nature.
52 The evidence as to the receipt of money from Raymond Said in respect of the work undertaken by the respondent, whether in respect of the District Court action or any other proceedings, was similarly unsatisfactory. In the end the respondent tendered one page which purported to itemise some 40 transactions on a banking account with the Commonwealth Bank at Fremantle. The document tendered was not a Commonwealth Bank statement. Even accepting it to be a reliable and accurate record, it is confined to the period between 15 December 1997 and 23 April 1998. It purports to suggest that on 15 December 1997 the account was opened with a deposit of $1,500 being a cheque drawn on Phoenician Pools. There were many other transactions which are recorded, including regular deposits of social security pension payments. Relevant to the present application are two further deposits each of $350 by way of cheques drawn on Phoenician Pools. The first was on 5 March 1998 and the second on 23 April 1998. This was the last transaction
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- shown on the document. The evidence of the respondent is that these three deposits of $1,500, $350 and $350, ie a total of $2,200, were payments by Raymond Said to the respondent in respect of the expenses incurred by the respondent in conducting the legal affairs of Raymond Said. The respondent also says that he received in cash a further sum he thought of $100 at some unidentified time. Apart from his evidence that he received in this way sums totalling $2,300 from Raymond Said, there is no other evidence to confirm that these were the only payments or to explain why the first payment was not made until 15 December 1997 and the last payment was made on 23 April 1998 (leaving aside the uncertainty as to the date of the cash payment).
53 Raymond Said was called in support of the respondent's case but his evidence did not assist in these respects in any material way. No financial records, banking records or detailed oral evidence was led as to the moneys he had paid the respondent.
54 I am conscious and have taken into account that it is possible that the disadvantage and difficulties faced by the respondent in representing himself may be an explanation, or a part explanation, for the state of the evidence about payment which I have canvassed. Nevertheless, despite attempts to ensure that the respondent gave proper consideration to the evidence that he wished to adduce on this subject and the provision of opportunity for him to order and collect his evidence over adjournments, and even though he called Raymond Said to support his case, the position remains that the respondent has not been able to account satisfactorily for over $800 of the money he says he received from Raymond Said to reimburse him for out of pocket expenses in respect of his assistance with Raymond Said's legal actions, including and especially the District Court action in which the 16 documents were filed.
55 Pursuant to s 78 the onus to satisfy me that the respondent has not been directly or indirectly remunerated for the work he performed in respect of the drawing and preparing of the 16 documents lies with the respondent. Despite the evidence which I have canvassed as to the basis on which the respondent assisted Raymond Said and the generalised evidence that his out of pocket expenses exceeded the $2,300 or so that he has received, for the reasons given I am not able to be satisfied that the respondent has discharged the onus which he bore. To have the advantage of s 78 the respondent had to satisfy this onus. He has not done so. It also remains an issue, therefore, whether the proved conduct of the respondent which is the subject of the application contravened s 77.
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Has contempt been established?
56 I propose to consider the 16 documents on which the Board relies in three separate groups. The first comprises the three affidavits being documents x, xi, xii. Given the evidence outlined earlier, which is uncontradicted, that the role of the respondent in respect of these was merely to type up drafts in a form suitable for swearing and filing, making spelling and grammatical corrections in the process, the principles enunciated earlier suggest that the respondent's role has not been shown to constitute the drawing or preparing of these affidavits within the meaning of s 77(1). The evidence as to the process of decision which led to the preparation and filing of the affidavits does not persuade me that in these respects the role of the respondent was by its nature and significance sufficient to establish that the respondent was carrying on or defending the action for Raymond Said or that he was acting as a solicitor so as to contravene s 76(1).
57 Turning to the main group of documents, being the remaining 12 documents apart from the chamber summons of 11 March 1998, the prevailing effect of the evidence has failed to displace the apparent circumstance that it was Raymond Said himself who accepted the ultimate responsibility for each of these documents by which he was conducting his own defence of the action. Neither Raymond Said, the solicitors acting for the plaintiffs, nor the District Court were given any reason, by the documents or the conduct of the respondent in relation to them, to think that the respondent was a solicitor. Indeed, the documents should have made it very clear that whatever was the role being performed by the respondent he was not a solicitor; he expressly described himself as an invalid pensioner on the face of the documents.
58 Although the respondent has failed to demonstrate that he did not receive any remuneration, so far as the evidence discloses, the remuneration he may have received beyond being recouped for out of pocket expenses was modest indeed having regard to the extent of the work undertaken. Further, it is clear he was not at the relevant time in any sense "in the business" of assisting persons with their legal affairs, and his involvement was only by virtue of his brother's predicament. Of course, when these documents are considered as a group in the context of the conduct of the action, it is clear they were material to the conduct of Raymond Said's defence. While I am left with quite strong suspicions as to the true extent and nature of the role performed by the respondent in guiding the course of the conduct of Raymond Said's defence, and as to the true extent of the respondent's contributions to the decisions which led
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- to the creation and filing of these documents and determined their content, I am unable to be satisfied beyond reasonable doubt that it has been shown that the respondent's role was such as to constitute acting as a solicitor or carrying on or defending the action. For these reasons in respect of this main body of 12 documents, the evidence does not establish a breach of s 76(1).
59 With respect to s 77(1) the critical issue relevant to this group of 12 documents is whether it has been established that the respondent "drew or prepared" any or all of them. Having regard to the principles enunciated earlier, and despite the strong reservation I have about much of the evidence advanced in defence relevant to this issue, it has not been established beyond reasonable doubt that the respondent was the sole or primary author of the documents. While I am satisfied he did apply his mind, within the limits of his capacity, to the initial issue of the need for each of the documents and as to their form and content, and that this process involved weighing to the extent of his ability many considerations to determine what they should deal with and how best they should be expressed to convey what was intended, it has not been established beyond reasonable doubt that the respondent did this to the exclusion of Raymond Said or that the respondent's role was the dominant or prevailing one in this respect. It seems to me, therefore, that the issue should be approached on the basis that in the preparation of these documents both the respondent and Raymond Said were involved and contributed. Given that Raymond Said signed each of them as the litigant acting in person and ultimately determined or accepted that they should be filed, it has not been established that it was the respondent who accepted final responsibility for any of these documents. In accordance with the principles enunciated earlier it has not been established that the nature and degree of the respondent's involvement was such that it may properly be concluded that he "drew or prepared" these documents, or any of them. The evidence fails, therefore, to establish a contravention by the respondent of s 77(1) in respect of the 12 documents now being considered.
60 That leaves the chamber summons of 11 March 1998. In material respects this is in a different position to the rest of the documents relied on by the Board.
61 One issue of which the respondent was very conscious was whether the second cause of action in the District Court proceedings, ie the claim of Mrs Cogin, was properly brought against Raymond Said. It was the view of both the respondent and Raymond Said that there was at least a
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- good argument that any claim Mrs Cogin might have was against Donabray Pty Ltd rather than Raymond Said. It was also the case, in my finding, that the respondent was very concerned to find a way for him to appear in the action so that he could present his brother's case. His efforts to do so thus far had been singularly unsuccessful. The combination of these factors, and my finding, led to a new strategy being followed. While I accept that this was done with the full agreement of Raymond Said I am satisfied, despite the respondent's attempts in evidence to put a different light on these events, that the respondent was the originator of this strategy. It involved the respondent being appointed a director of Donabray Pty Ltd. This was achieved on 6 February 1998. It was then intended that Donabray Pty Ltd should be joined as a defendant to the District Court action. The respondent, as a director, would then represent Donabray Pty Ltd in the proceedings. By this means, it was anticipated that the respondent effectively would in the position that he could present not only the case of Donabray Pty Ltd, but also that of Raymond Said, who would continue to appear to conduct his case in person but would need to play only a nominal role.
62 There were, of course, problems with the strategy but initially at least these were not appreciated by the respondent or Raymond Said. In particular it was not appreciated that, as a company, Donabray Pty Ltd could not conduct its defence or be represented by a director. It would need to engage a legal practitioner. Nevertheless, the strategy was implemented.
63 In apparent ignorance of the correct procedures, under the guidance of the respondent, documents were simply filed by Raymond Said in which Donabray Pty Ltd was added as a further defendant in the title. These documents included a defence and counterclaim that was filed on 14 January 1998 and a notice of appeal from a decision of Deputy Registrar Kingsley which was filed on 23 February 1998. It was sometime before this was put right by orders made by Williams DCJ, who struck out all references to Donabray Pty Ltd as a defendant. In the meantime, however, a number of documents were filed which included Donabray Pty Ltd as a party in the title .
64 It was in this context that the chamber summons dated 11 March 1998 was filed on that date. It was entitled "Chambers Summons to enable Michael Said, Director to represent second defendant in person". Donabray Pty Ltd was recorded as the second defendant in the title to the summons. Endorsements on the summons recorded it as having been
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- filed on behalf of the first and second defendants in person and having been:
"Prepared by:
Michael N Said
Director of second Defendant
Assistant/(Brother) of 1st Defendant
10 Cohn Court
WILLAGEE WA 6156"
It is significant that the document is not signed by Raymond Said. The respondent signed this summons himself. The description under the signature is:
"Defendants in person
Michael N Said
Director of second Defendant"
66 No doubt as a reflection of the understanding of the respondent that as a director he could represent the company, the first significant order sought by the summons was for Donabray Pty Ltd to "be entered herein as the second defendant". By this time it had become apparent to the respondent that more was required for the company to become a party than merely to enter its name as a defendant in the title of the action. Of course, at that stage Donabray Pty Ltd was not a party to the action and it never became a party.
67 The summons, however, went on to seek further orders. These included:
• A stay of execution of an order of Deputy Registrar Kingsley for Raymond Said to pay $15,000 to the first plaintiffs;
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- • An affidavit sought to be used in Raymond Said's conduct of the action, sworn by the respondent on 13 February 1998, be restored to the Court's file;
• The re-listing for hearing by special appointment of an application by Raymond Said which had been filed in October 1997;
• The adjournment of appeals by Raymond Said from Registrars, which had been listed for hearing in March 1998, to enable Michael Said "to file all the necessary documentation otherwise Oral Evidence be entertained in this regard";
• A direction that a Deputy Registrar not be involved further in the action; and
• The transfer of two Local Court actions brought by the first plaintiffs to the District Court. These were actions against Donabray Pty Ltd.
68 For the most part the orders sought were matters in which neither Donabray Pty Ltd nor the respondent had any direct interest. They were orders manifestly in pursuit of the defence of Raymond Said. Yet they were pursued by the summons which the respondent himself drew, prepared, filed and intended to pursue in person. While the document purports also to be filed on behalf of Raymond Said it was not his summons for the reasons indicated. Further, as indicated earlier, the chamber summons was in pursuance of a strategy being followed by the respondent and Raymond Said in the conduct of Raymond Said's defence of the action. Indeed, Raymond Said swore an extensive affidavit in support of the chamber summons.
69 Having regard to the principles identified earlier in these reasons I am persuaded in respect of the chamber summons of 11 March 1998 that the role of the respondent has been shown beyond reasonable doubt to contravene both s 76(1) and s 77(1) of the Act. While the respondent's conduct in this regard is not such as to constitute "acting as a solicitor" it did involve, in my finding, conducting the defence of Raymond Said in the action in contravention of s 76(1). With respect to s 77(1) the evidence clearly establishes that the respondent drew and prepared the chamber summons within the meaning of that subsection. By its nature the document related to the legal proceedings in the District Court between Messrs Cogin and Loffelmann and Mrs Cogin as plaintiffs and Raymond Said as defendant. It was filed by the respondent in those proceedings in the District Court with the intention of pursuing the summons in those proceedings.
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Finding
70 For these reasons, but only in respect of the chamber summons dated 11 March 1998, I find that the Board has proved a contravention of both s 76(1) and s 77(1) of the Act by the respondent. It has thereby established the respondent is in contempt as provided by s 81 of the Act.
71 I will hear the parties on the question of penalty and costs.
6
3
0