Legal Services Commissioner v Walter - [2011] QSC 132

SUPREME COURT OF QUEENSLAND

CITATION:

Legal Services Commissioner v Walter [2011] QSC 132

PARTIES:

LEGAL SERVICES COMMISSIONER
(applicant)
v
DAVID JOHN WALTER
(respondent)

FILE NO:

13468 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

17 January 2011

JUDGE:

Daubney J

ORDER:

Pursuant to s 703 of the Legal Profession Act 2007 (Qld) (“the LPA”), the respondent is restrained from engaging in legal practice in the State of Queensland, when not an Australian legal practitioner, in contravention of s 24(1) of the LPA, and in particular is restrained from:

(a) providing legal advice in relation to proceedings or potential proceedings;

(b) corresponding or communicating on behalf of litigants or potential litigants;

(c) drawing documents on behalf of, or as agent of, litigants, including pleadings, affidavits and submissions; and

(d) appearing in court on behalf of litigants to proceedings.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – GENERALLY – where the applicant applies for an injunction to restrain the respondent from engaging in legal practice in the State of Queensland when not an Australian legal practitioner – whether the respondent has engaged in legal practice.

Legal Profession Act 2007 (Qld), ss 5, 6, 12, 22, 23, 24, 85, 703
Legal Practice Act 1996 (Vic)
Legal Profession Practice Act 1958 (Vic)

Burns & Ors v Cassowary Coast Regional Council (unreported, Supreme Court, Cairns, P Lyons J, 27 April 2010) , cited
Burns v State of Queensland & Croton [2007] QCA 240, cited
Cornall v Nagle [1995] 2 VR 188, considered
Downey v O’Connell [1951] VLR 117, considered
Felman v Law Institute of Victoria [1998] 4 VR 324, considered
In re Sanderson; ex parte the Law Institute of Victoria [1927] VLR 394, cited
Lade and Company Pty Ltd v Finlay & Ors [2010] QSC 382, cited
Legal Services Commissioner v Bradshaw [2009] LPT 21, considered
Re Foster (1950) 50 SR (NSW) 149, cited
Wilson v Raddatz [2006] QCA 392, cited

COUNSEL:

J J Allen for the applicant
No appearance for the respondent

SOLICITORS:

Legal Services Commission for the applicant
No appearance for the respondent

The Legal Services Commissioner (“the applicant”) has applied pursuant to s 703 of the Legal Profession Act 2007 (Qld) (“the LPA”) for an injunction to restrain

David John Walter (“the respondent”) from engaging in certain conduct, namely engaging in legal practice in the State of Queensland when not an Australian legal practitioner.

The respondent was served with the application, but did not appear on the hearing.

Section 703 of the LPA provides:

“703 Injunctions
(1)This section applies if a person (the subject person) has engaged, is engaging or is proposing to engage in conduct that constituted, constitutes or would constitute –

(a)an offence against a relevant law; or

(b)attempting to contravene a relevant law; or

(c)aiding, abetting, counselling or procuring a person to contravene a relevant law; or

(d)inducing or…

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: [2011] QSC 132
Decision Date: 27 May 2011

CaseChat Overview and Summary

The Legal Services Commissioner brought an application against Walter, seeking an injunction to prevent him from engaging in legal practice in Queensland without being a registered legal practitioner. The Commissioner argued that Walter had been acting as a lawyer despite not being licensed. The case was heard by the Supreme Court of Queensland.

The court had to determine whether Walter had indeed engaged in legal practice and if so, whether he was acting without the necessary qualifications. This involved examining whether Walter had been providing legal advice, drafting legal documents, or representing clients in court, all activities reserved for licensed legal practitioners. The court also needed to consider the potential harm to the public if unqualified individuals were allowed to practice law.

The court found that Walter had indeed engaged in legal practice without the requisite qualifications. He had been providing legal advice, drafting legal documents, and appearing in court on behalf of clients. The court emphasised the importance of maintaining the integrity of the legal profession and protecting the public from unqualified practitioners. As a result, the court granted the injunction, prohibiting Walter from engaging in any legal practice in Queensland unless he is a registered legal practitioner.

The court's order restrains Walter from providing legal advice, drafting documents, or appearing in court on behalf of litigants unless he is a licensed legal practitioner. This ensures that only qualified individuals can engage in legal practice, thereby safeguarding the public and maintaining the standards of the legal profession.

Orders

Orders of the court

Pursuant to s 703 of the Legal Profession Act 2007 (Qld) (“the LPA”), the respondent is restrained from engaging in legal practice in the State of Queensland, when not an Australian legal practitioner, in contravention of s 24(1) of the LPA, and in particular is restrained from:

(a) providing legal advice in relation to proceedings or potential proceedings;

(b) corresponding or communicating on behalf of litigants or potential litigants;

(d) appearing in court on behalf of litigants to proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Walter [2011] QSC 132
PARTIES:	LEGAL SERVICES COMMISSIONER (applicant) v DAVID JOHN WALTER (respondent)
FILE NO:	13468 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	27 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	17 January 2011
JUDGE:	Daubney J
ORDER:	Pursuant to s 703 of the Legal Profession Act 2007 (Qld) (“the LPA”), the respondent is restrained from engaging in legal practice in the State of Queensland, when not an Australian legal practitioner, in contravention of s 24(1) of the LPA, and in particular is restrained from: (a) providing legal advice in relation to proceedings or potential proceedings; (b) corresponding or communicating on behalf of litigants or potential litigants; (c) drawing documents on behalf of, or as agent of, litigants, including pleadings, affidavits and submissions; and (d) appearing in court on behalf of litigants to proceedings.
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – GENERALLY – where the applicant applies for an injunction to restrain the respondent from engaging in legal practice in the State of Queensland when not an Australian legal practitioner – whether the respondent has engaged in legal practice. Legal Profession Act 2007 (Qld), ss 5, 6, 12, 22, 23, 24, 85, 703 Legal Practice Act 1996 (Vic) Legal Profession Practice Act 1958 (Vic) Burns & Ors v Cassowary Coast Regional Council (unreported, Supreme Court, Cairns, P Lyons J, 27 April 2010) , cited Burns v State of Queensland & Croton [2007] QCA 240, cited Cornall v Nagle [1995] 2 VR 188, considered Downey v O’Connell [1951] VLR 117, considered Felman v Law Institute of Victoria [1998] 4 VR 324, considered In re Sanderson; ex parte the Law Institute of Victoria [1927] VLR 394, cited Lade and Company Pty Ltd v Finlay & Ors [2010] QSC 382, cited Legal Services Commissioner v Bradshaw [2009] LPT 21, considered Re Foster (1950) 50 SR (NSW) 149, cited Wilson v Raddatz [2006] QCA 392, cited
COUNSEL:	J J Allen for the applicant No appearance for the respondent
SOLICITORS:	Legal Services Commission for the applicant No appearance for the respondent