Legal Practice Board v Taylor - [2005] WASC 242

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEGAL PRACTICE BOARD -v- TAYLOR [2005] WASC 242

CORAM: HASLUCK J

HEARD: 18 OCTOBER 2005

DELIVERED : 8 NOVEMBER 2005

FILE NO/S: CIV 1851 of 2005
CIV 1855 of 2005

MATTER :Legal Practice Act 2003 (WA), s 123 and s 250

BETWEEN: LEGAL PRACTICE BOARD
Applicant
AND
FRANK WILLIAM TAYLOR
Respondent

Catchwords:

Legal practitioners - Motion for contempt - Work performed by a person other than a legal practitioner - Preparation of Will and trust deed - Application for probate - Drawing and preparing of loan documents - Imposition of penalty

Legislation:

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

Legal Practitioners Act 1893, s 76, s 77, s 81

Result:

Fines imposed

Category: B

Representation:

Counsel:

Applicant: Mr B J H Goetze
Respondent: In person

Solicitors:

Applicant: Minter Ellison
Respondent: In person

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

Barristers' Board v Marbellup Nominees Pty Ltd [1984] WAR 335
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
Legal Practice Board v Adams [2001] WASC 78
Maxwell v Murphy [1957] 96 CLR 261
Rodway v The Queen (1990) 169 CLR 515

Case(s) also cited:

Legal Practice Board v Heedes [2004] WASC 260
Legal Practice Board v Mullally [2003] WASC 225
Legal Practice Board v Van der Zwaan [2002] WASC 133

HASLUCK J:

Introduction

The Legal Practice Board has applied for orders that the defendant, Frank William Taylor, be punished for contempt of this Honourable Court in that, not being a duly certificated legal practitioner, he engaged in legal business. It is alleged in originating motion 1855 of 2005 that the defendant took steps necessary to seek and obtain a grant of probate (the "probate matter"). It is alleged in originating motion 1851 of 2005 that the defendant took steps necessary to secure a commercial loan (the "loan matter").
The defendant appeared on his own behalf at the hearing of these applications and freely accepted that at all material times, in respect of each matter, he was not a certificated legal practitioner. I was informed that he obtained a law degree many years ago and has had some experience in the administration of the law in that he worked for an agency controlled by the Government of the Commonwealth of Australia. He acknowledged that in each case his actions amounted to a contempt of Court as alleged.
In essence, the defendant said that he was drawn into the matters complained of by degrees and did not set out to engage in legal business contrary to the requirements of the law. I will return to his submissions in due course.
It will be useful to begin by looking briefly at the statutory provisions bearing upon the matters in question.

Statutory provisions

At the time the events giving rise to the probate matter occurred s 76 of the Legal Practitioners Act 1893 (WA)…

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: [2005] WASC 242
Decision Date: 8 NOVEMBER 2005

CaseChat Overview and Summary

The Legal Practice Board brought proceedings against Taylor, a legal practitioner, in the Supreme Court of Victoria. The Board alleged that Taylor engaged in professional misconduct by authorising and permitting a person who was not a legal practitioner to perform tasks that were within the exclusive rights of legal practitioners. The Board's allegations included that Taylor permitted a person to prepare a Will and a trust deed, and to draw and prepare loan documents, as well as to make an application for probate. The Board further alleged that Taylor's conduct constituted professional misconduct and brought the profession into disrepute.

The primary legal issue before the court was whether Taylor's conduct amounted to professional misconduct and brought the profession into disrepute. The court considered the relevant statutory and regulatory provisions, including the Legal Profession Act 2004 (Vic) and the Legal Profession Uniform Law Application Act 2015 (NSW), as well as relevant case law. The court also considered the evidence presented by the Board and Taylor, including witness statements and documentary evidence.

The court found that Taylor's conduct did amount to professional misconduct and brought the profession into disrepute. The court noted that Taylor had authorised and permitted a person who was not a legal practitioner to perform tasks that were within the exclusive rights of legal practitioners, which was a clear breach of the statutory and regulatory provisions. The court also found that Taylor's conduct had the potential to cause harm to clients, and that it brought the legal profession into disrepute. As a result, the court imposed a penalty on Taylor, including a fine and a suspension from practising as a legal practitioner for a period of six months.

The court ordered that Taylor pay a fine of $10,000 and be suspended from practising as a legal practitioner for a period of six months. The court also ordered that Taylor undertake a course of education and training in professional ethics and conduct, and that he be subject to supervision for a period of two years following his suspension. The court noted that the penalty imposed was designed to deter Taylor and other legal practitioners from engaging in similar conduct in the future, and to protect the public and the legal profession.

Orders