Legal Practice Board v Van Der ZWAAN
[2002] WASC 133
LEGAL PRACTICE BOARD -v- VAN DER ZWAAN [2002] WASC 133
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 133 | |
| Case No: | CIV:2961/2001 | 29 APRIL 2002 | |
| Coram: | PULLIN J | 31/05/02 | |
| 11 | Judgment Part: | 1 of 1 | |
| Result: | Defendant fined | ||
| B | |||
| PDF Version |
| Parties: | LEGAL PRACTICE BOARD WILHELMUS VAN DER ZWAAN |
Catchwords: | Contempt Work performed by a person other than legal practitioner Penalty |
Legislation: | The Legal Practitioners Act 1893, s 76, s 77 and s 81 |
Case References: | Attorney-General v Quill Wills Ltd (1990) 3 WAR 500 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 McKenzie v McKenzie [1971] P 33 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 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WILHELMUS VAN DER ZWAAN
Defendant
Catchwords:
Contempt - Work performed by a person other than legal practitioner - Penalty
Legislation:
The Legal Practitioners Act 1893, s 76, s 77 and s 81
Result:
Defendant fined
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr B J H Goetze
Defendant : Mr G A Lacerenza
Solicitors:
Plaintiff : Minter Ellison
Defendant : G A Lacerenza & Associates
Case(s) referred to in judgment(s):
Attorney-General v Quill Wills Ltd (1990) 3 WAR 500
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
McKenzie v McKenzie [1971] P 33
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:
Nil
(Page 3)
1 PULLIN J: This is an application brought by the Legal Practice Board seeking orders that the defendant be punished for contempt for the following conduct:
"… not being a duly certificated practitioner, during the period from on or about 14 June 2000 to on or about 20 September 2000, at Perth did directly or indirectly perform or carry out or engage in work in connection with the administration of the law in that the respondent
(a) on or about 14 June 2000 at 66 Donald Drive, Safety Bay, take instructions from Mark Williams and Caroline Anne Starling with respect to issues arising out of the breakdown in their de facto relationship concerning custody, access, maintenance of their child and property settlement;
(b) in or about June or July 2000 draw and prepare documents to be filed in the Family Court of Western Australia bearing number 4173/00 as follows:
(i) Form 12A – Application for Consent Orders; and
(ii) Minute of Consent Orders: child issues,
(c) write to Mark Williams on 25 July 2000, 31 July 2000 and to the solicitors acting for Mark Williams on 6 September 2000, 14 September 2000 and 20 September 2000 in respect of custody, access, maintenance and property settlement issues arising from the breakdown of his de facto relationship with Caroline Anne Starling."
2 The defendant has pleaded guilty, and therefore admits the facts and admits that those facts amount to contempt of court. I therefore have to deal only with penalty.
3 Section 77(1) of the Legal Practitioners Act 1893 ("the Act") provides:
"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
(Page 4)
- therein or any proceedings at law, civil or criminal, or in equity."
4 By s 81 of the Act, every person who acts contrary to the terms of the Act, or to any provision of, or obligation imposed by or under, the Act, 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 Legal Practice Board.
5 The purpose of these provisions is to protect members of the public by ensuring that legal work is carried out only by persons who have obtained a proper legal education, leading to appropriate qualifications, and who are subject to the disciplinary supervision of the courts in their practice of the law. For the purposes of the Act, "legal work" is specifically defined in s 76 and s 77, as well as "any work connected with the administration of law": D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191.
6 The expression "administration of law" in s 77 is to be read as meaning "the practice of law" or "the practice of the law". The practice of the law 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 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. 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 service brings it within the term "practice of the law": Barristers' Board v Palm ManagementPty Ltd [1984] WAR 101; Barristers' Board v Marbellup Nominees Pty Ltd [1984] WAR 335; and The Legal Practice Board v Adams [2001] WASC 78.
7 Where a person bringing documents into existence exercises his mind as to the appropriate form of words to accommodate the particular case, then this can be regarded as drawing or preparing a legal document:
(Page 5)
- Cornall v Nagle [1995] 2 VR 188; Attorney-General v Quill Wills Ltd (1990) 3 WAR 500; The Legal Practice Board v Said, unreported; SCt of WA (Scott J); Library No 940608; 31 October 1994; and The Legal Practice Board v Adams (supra).
8 The plaintiff's application is supported by an affidavit of Mark Williams, who was previously the de facto husband of Caroline Anne Starling. A child was born of that relationship, and then in April 2000 the couple separated. On 14 June 2000, Ms Starling and Mr Williams attended upon the defendant. Mr Williams was handed a business card by the defendant, which announced the defendant as a "Paralegal Consultant" trading under the name "Family Law West" and describing that business as offering the services of "Family Law Advocacy, Legal Document Preparation, Mediation and Counselling Services". At the foot of the card appeared the words "Family Court Accredited 'McKenzie' Friend". The defendant explained to the couple that he was a mediator and that it would be beneficial to them to resolve the circumstances arising from their relationship without the need for a court application. The defendant informed them that his fee was $270 to negotiate and prepare a settlement concerning custody, access, maintenance for the child, and to deal with property. Ms Starling gave the defendant $220, and Mr Williams says he gave him $50. This payment was said to be in cash. It was submitted by counsel for the defendant that only $220 was received. It is not necessary to resolve that dispute. I find that the defendant did receive payment of at least $220 for the services which he provided, and which I describe below.
9 On the same day, Ms Starling and Mr Williams signed a costs agreement. This showed that the defendant charged $25 for the first two pages of an agreement and $9 for each further page. He also charged $20 for a consultation for the first 20 minutes, and $15 for each 15 minutes thereafter. This agreement contained a note which read:
"FAMILY LAW WEST
Are an independent and privately run registered Paralegal Consultancy and Advocacy business that aims to help you in the procedures of self representation in the Court, we do not appear for you before the Court, but aim to save you the huge legal cost that can be charged by the legal profession in preparing, filing and service of documents."
(Page 6)
10 On 12 July 2000, Mr Williams attended at the defendant's office for the purpose of executing a minute of proposed consent orders and a deed of agreement. Mr Williams asked the defendant if he could take the minute of consent orders to a solicitor for advice. The defendant told him that a Justice of the Peace was waiting for him to sign the document and that he should hurry up and read it. Mr Williams was concerned about an extra two pages which at the time were included in the minute of proposed consent orders dealing with violence and which had not been attached to any previous draft seen by him and which the defendant told Mr Williams were insignificant standard child welfare clauses to which everyone agreed. Mr Williams said that he would have liked to have had greater contact with the child who was the subject of the consent orders, but he was not advised by the defendant that this was negotiable. After expressing concerns about his custodial rights, Mr Williams signed the minute of proposed consent orders. This minute contained detailed provisions about when Mr Williams was to have contact with the child, provisions about Mr Williams' responsibilities for expenses of food provisions and transport when exercising his right of contact. Paragraphs 5, 6 and 7 of the document read:
"5. The parties are restrained and an injunction granted restraining the parties from removing the said child from the state of Western Australia and the Commonwealth of Australia without the prior approval in writing of the other party or an Order of the Court.
6. The parties are restrained by injunction from applying for a passport for the said child without the prior approval in writing of the other party or an Order of the Court.
7. The parties and/or any third person(s) are restrained by injunction from denigrating each other and/or using abusive language and/or discussing Family Court Proceedings in the presence of the child."
11 This document, when signed by Mr Williams and Ms Starling, was then filed at the Court, and orders by consent were pronounced in terms of the minute as a result of an order by a Registrar in chambers on 21 July 2000.
12 The defendant had also prepared an application for consent orders pursuant to O 14 r 2, and commonly called a Form 12A. This showed that the plaintiff was Ms Starling and that the address for service of the
(Page 7)
- documents on the plaintiff was "Family Law West" at the defendant's address in Safety Bay.
13 Soon after signing the minute of proposed consent orders, Mr Williams asked the defendant if it was possible to change the consent orders, to which he replied that it was. Mr Williams asked how he would go about doing that, and the defendant then said that he could not advise further on this point because he was acting for Ms Starling and that she was his client and not Mr Williams.
14 On 25 July 2000, the defendant wrote to Mr Williams informing him that he was instructed by Ms Starling "to seek your financial responsibility and obligation to the support of the child". The letter then continued:
"While the Child Support Agency 'CSA' is unable to assess your obligation as to support until after the 30th June 2001, it is not unusual for a person to apply to the Family Court for immediate orders to be made, these orders are then registered with the CSA.
Based on the information as to your present earnings as you have provided in your financial statement to the writer, it is calculated that 18% (the normal rate for one child) of your gross base wage is estimated at about $100 per week.
Our client is willing to accept a lesser amount of say $90 per week albeit backdated to the date of separation, by the making of consent orders similar to those made in regards to residency and contact orders that the writer has recently filed in the Family Court.
If you agree to these consent arrangements, please contact the writer so that the necessary agreement is drawn and filed in the Court by consent. Should you not agree, please feel free to contact the writer to discuss any proposal that you are willing to consent to, being a more or lesser amount to the one sought.
The writer is instructed to inform you that unless the matter of child support by consent is settled within a short period of time, say 10 days, our client has instructed us to proceed by the making of an Application in the Court for the determination of the proper amount payable by you and that may exceed the $100 per week herein before estimated."
(Page 8)
15 On 31 July 2000, the defendant wrote to Mr Williams. The letter contained the following:
"CHILD SUPPORT AND PROPERTY SETTLEMENT
In relation to the issue of child support, our client rejects your offer of just $50.00 per week.
Relative to property settlement, our client has instructed us to proceed in court for at least a 60% share of the asset(s), rejecting your offer of just $15,000.00
The evidence shows that at the time of separation there was a liability to the ANZ Bank of just $84,474.12 owing, certainly not the $98,928.81 the figure you provided in your interim financial statement provided to the writer, given the fact that the property could realise if put to the market a price of $135,000 there is an equity of about $50,500.00 available for distribution amongst yourself and our client, minus the selling agents costs and commissions.
The foregoing is not inclusive of the furniture and other possessions that have not been fairly disbursed equally at the time of separation and of which you currently posses (sic) the major items and value.
Our client is now willing to settle, out of court the issues of child support contributions to a reduced amount of $80 per week payable by you, albeit backdated to the time of separation, all the property / furniture assets be finalised by your prompt payment of $25,000.00 to her, if you agree by the making of Consent Orders of these issues accordingly.
Unless your intention to both child support and property settlement is agreed to within 10 days of this letter by contacting the writer, our instructions are to file an expedient Notice of Application in the Court to have the matter settled and determined in that forum for the full amount that would be assessable based on the mother and the child being provided for in equitable terms of at least a justifiable 60% that is resultant from the prior relationship."
(Page 9)
16 By 3 August 2000, Mr Williams had instructed solicitors, namely Gibson Tovey Mills in Rockingham, and they were given copies of the defendant's letters of 25 and 31 July 2000.
17 Gibson Tovey Mills then made enquiries of the Principal Registrar of the Family Court of Western Australia and the Legal Practice Board about the defendant's status as a mediator.
18 On 6 September 2000, the defendant wrote to Mr Williams' solicitors and stated that he was aware of complaints being made to the Principal Registrar of the Family Court and the Legal Practitioners' Board, and contending that he had "indeed received a form of accreditation in the Court of which the Principal Registrar Mr S E Thackray is not aware …" He then continued in that letter to propose a method of settlement concerning the assets of the relationship and inviting Gibson Tovey Mills to draft a deed of agreement for the defendant to peruse when it was completed.
19 On 14 September 2000, the defendant wrote to Gibson Tovey Mills concerning property settlement issues, stating that "he would prefer an amicable approach … as the ultimate aim is to achieve a fair and just settlement for our clients, personality clashes between the writers will not assist in serving the best interest of our respective clients. We look forward to receiving the prepared proposed draft of the Deed of Settlement."
20 Finally, on 20 September 2000, the defendant wrote to Gibson Tovey Mills, and in that letter he said:
"Our advise (sic) to Ms Starling has always been to claim nothing less than her entitled share for herself and her child, she is now heeding that recommendation and we are now instructed by our client to seek the correct and just amount of settlement in a (sic) intended Supreme Court Application."
21 It is clear from the foregoing that the defendant thought that he had gained some kind of authority to act in Family Law matters because he had at some stage in the past appeared as a "McKenzie Friend": McKenzie v McKenzie [1971] P 33. He maintained this argument, even when challenged by the solicitors for Mr Williams, and contended that this was his right in correspondence to the Principal Registrar of the Family Court of Western Australia. The Principal Registrar, Mr S E Thackray, made the position perfectly clear in a letter he wrote to the defendant on 19 September 2000. It read:
(Page 10)
- "The fact that you may have been permitted to act as a McKenzie's friend does not constitute any form of accreditation by the Family Court. You are manifestly unqualified to provide legal advice and to assert that you have some form of accreditation from the Court would be highly misleading.
I note also that you purport to provide mediation services. I draw your attention to the provisions of Regulation 60 of the Family Law Regulations which provide that 'a person may provide family and child mediation as a community mediator or private mediator only if the person:
a) Has been awarded an appropriate degree, diploma or other qualification by a university, college of advanced education or other tertiary institution of an equivalent standard; and
b) Has completed at least five days training in mediation, including at least one training course of a duration of at least 3 days; and
c) Has engaged in at least 10 hours of supervised mediation in the twelve months immediately following completion of that training'.
To the best of my knowledge you do not qualify on any of these counts and you are, therefore, not entitled to provide family and child mediation services as a community mediator or private mediator."
22 On the defendant's own admission, through counsel, he has been guilty of contempt of court. The card that was produced into evidence shows that he had set himself up in business to engage in the kind of conduct which is the subject of these proceedings. I am, however, dealing only with the particular case before me. I will take into account the fact that he has been involved in other matters in a similar way, merely to rule out the reduction of penalty on the basis that this was a one-off occasion.
23 Other cases which have imposed penalties provide some guide as to the court in fixing a penalty in this case. Hasluck J, in The Legal Practice Board v Adams (supra) at par 40-41, refers to penalties imposed in earlier cases. In Adams' case, Hasluck J imposed a fine of $800 in circumstances where the conduct seemed to have related to his dealings with one group
(Page 11)
- of persons and where there was no evidence of the defendant in that case acting for other persons.
24 In my view, if it were not for considerations personal to the defendant in this case, I would conclude that a fine very greatly in excess of $800 was justified.
25 I am informed, however, that the defendant is a person living on a disability pension of just over $400 per fortnight. He also supports two children and receives child support of just over $400 per fortnight. He therefore lives on an income of just over $400 per week, after which he must provide for himself and his children. He has no assets.
26 Taking into account all of these factors, I fine the defendant $1,000.
27 The parties have agreed that the defendant should pay the plaintiff's costs fixed at $2,000.
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