Legal Practice Board v Tee - [2009] WASC 5

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: LEGAL PRACTICE BOARD -v- TEE [2009] WASC 5

CORAM: SIMMONDS J

HEARD: 21 NOVEMBER 2008

DELIVERED : 16 JANUARY 2009

FILE NO/S: CIV 1377 of 2008
CIV 2100 of 2007

MATTER :Section 250 of the Legal Practice Act 2003

BETWEEN: LEGAL PRACTICE BOARD
Plaintiff
AND
JAMES HONG TEE
Defendant

Catchwords:

Contempt of court - Statutory contempts - Use of name, title or description implying or tending to the belief person is a legal practitioner - Contraventions of Legal Practice Act 2003 (WA) s 128(b) read with s 250 - Punishment for statutory contempts - Principles to be applied - Fine instead of committal - Use of Sentencing Act provisions to guide discretion - Provision of time to pay fine

Contempt of court - Statutory contempts - Costs including reserved costs - Costs for litigant in person

Legislation:

Legal Practice Act 2003 (WA), s 4, s 123(1), s 128(b), s 250
Legal Practitioners Act 1893 (WA), s 76, s 77, s 80, s 81
Royal Commission Act 1968 (WA), s 10, s 13, s 14
Rules of the Supreme Court 1971 (WA), O 55
Sentencing Act 1995 (WA), s 3, s 6, s 39, s 53, s 54, s 59

Result:

Respondent fined for four contempts with time to pay and liberty to apply with respect to time to pay
Costs including reserved costs for applicant with exceptions

Category: B

Representation:

Counsel:

Plaintiff: Mr P A Tottle
Defendant: In person

Solicitors:

Plaintiff: Tottle Partners
Defendant: In person

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

Cachia v Hanes (1994) 179 CLR 403
Dobree v Hoffman (1996) 18 WAR 36
Heedes v Legal Practice Board [2005] WASCA 166
Kennedy v Lovell [2002] WASCA 226
Legal Practice Board v Adams [2001] WASC 78
Legal Practice Board v Frichot [2006] WASC 230 (S2)
Legal Practice Board v Mullally [2003] WASC 225
Legal Practice Board v Ridah [2004] WASC 263
Legal Practice Board v Tee [2008] WASC 206
Michael v Monitronix Ltd (Unreported, WASC, Library No 920044, 20 February 1992)
Rowan v Cornwall (No 6) [2002] SASC 234
Wood v Staunton (No 5) (1995) 86 A Crim R 183

SIMMONDS J:

Introduction

This is my determination as to the punishment to be imposed for certain statutory contempts and as to costs. This determination follows my judgment in Legal Practice Board v Tee [2008] WASC 206. In Tee I determined the respondent was guilty of a number of contraventions of Legal Practice Act 2003 (WA) (2003 Act) s 128(b) and thus of statutory contempts in the terms of s 250.
I first provide the background to this determination as to punishment. I then review the principles I should follow in exercising the power of the court to punish for statutory contempt under 2003 Act s 250, before I consider each of the matters those principles indicate I should address. In doing the latter, I consider the applicant's submissions as to penalty. I then turn to consider…

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.

Continue reading Legal Practice Board v Tee

Details

AGLC: Legal Practice Board v Tee [2009] WASC 5
Case: [2009] WASC 5
Decision Date: 16 JANUARY 2009

CaseChat Overview and Summary

In the matter of Legal Practice Board v Tee, the Legal Practice Board sought a declaration and orders against the respondent for engaging in conduct that amounted to contempt of court. The respondent had been advertising services as a legal practitioner despite not being admitted to practice law in Western Australia. This matter came before the court to determine whether the respondent's actions constituted contempt of court under the Legal Practice Act 2003 (WA) and to decide on the appropriate remedy.

The court needed to consider whether the respondent's use of the title "legal practitioner" and the description "solicitor" in their advertising material contravened section 128(b) of the Legal Practice Act, read in conjunction with section 250. The court also needed to determine the appropriate punishment for such statutory contempts and whether the principles guiding the imposition of fines were appropriately applied, including the use of the Sentencing Act provisions to guide the court's discretion. Additionally, the court had to decide on the provision of time to pay the fine and address the issue of costs, including reserved costs, in light of the respondent being a litigant in person.

The court found that the respondent's conduct amounted to contempt of court under the statutory provisions. The respondent was fined for four instances of contempt, with the court providing the respondent with time to pay the fine and the liberty to apply with respect to the time to pay. The court also ordered costs, including reserved costs, in favour of the applicant, with certain exceptions. The court considered the principles governing the imposition of fines for statutory contempts and applied the relevant provisions of the Sentencing Act to guide its discretion, ensuring that the punishment was proportionate and appropriate.

Orders

Orders of the court

Respondent fined for four contempts with time to pay and liberty to apply with respect to time to pay

Costs including reserved costs for applicant with exceptions

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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