VAN DER FELTZ -v- LEGAL PRACTICE BOARD [2017] WASC 2

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASC 2
Case No:	SJA:1059/2016	Heard:	22 NOVEMBER 2016
Coram:	HALL J	Delivered:	9/01/17
Judgment Part:	1 of 1
Result:	Leave to appeal against conviction, sentence and costs refused - appeals dismissed Cross-appeal - extension granted, leave to appeal granted, appeal allowed and spent conviction order set aside
Category:	B
PDF Version

Parties:	RIC VAN DER FELTZ LEGAL PRACTICE BOARD
Catchwords:	Criminal law Representing and advertising an entitlement to engage in legal practice when not an Australian legal practitioner Legal Profession Act 2008 (WA) Appeal against conviction Whether appellant denied procedural fairness Whether Magistrate made errors of fact and law Whether the representations amounted to representations that the appellant was entitled to do legal work Criminal law appeal against sentence and costs order Whether fine and costs manifestly excessive Criminal law Cross-appeal against spent conviction order Whether grounds for exercising the discretion to make such an order were made out
Legislation:	Criminal Appeals Act 2004 (WA) Criminal Procedure Act 2004 (WA) Legal Profession Act 2008 (WA) Sentencing Act 1995 (WA)
Case References:	Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 Beamish v The State of Western Australia [2005] WASCA 62 Brewer v Bayens [2002] WASCA 271 Dean v The Legal Practice Board [2015] WASC 260 Dean v The Legal Practice Board [2016] WASCA 63 Fry v Keating [2013] WASCA 109 King v The City of Fremantle [2004] WASCA 212 Konings v Commonwealth Bank of Australia [2016] WASCA 122 Legal Practice Board v Adams [2001] WASC 78 Legal Practice Board v Giraudo [2010] WASC 4 O'Connell v The State of Western Australia [2012] WASCA 96 R v Tognini [2000] 22 WAR 291 Samuels v The State of Western Australia [2005] WASCA 193 Tobin v Dodd [2004] WASCA 288

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : VAN DER FELTZ -v- LEGAL PRACTICE BOARD [2017] WASC 2 CORAM : HALL J HEARD : 22 NOVEMBER 2016 DELIVERED : 9 JANUARY 2017 FILE NO/S : SJA 1059 of 2016 BETWEEN : RIC VAN DER FELTZ

Appellant

AND

LEGAL PRACTICE BOARD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE P MALONE

File No : PE 10343 of 2016

Catchwords:

Criminal law - Representing and advertising an entitlement to engage in legal practice when not an Australian legal practitioner - Legal Profession Act 2008 (WA) - Appeal against conviction - Whether appellant denied procedural fairness - Whether Magistrate made errors of fact and law - Whether the representations amounted to representations that the appellant was entitled to do legal work

Criminal law - appeal against sentence and costs order - Whether fine and costs manifestly excessive

Criminal law - Cross-appeal against spent conviction order - Whether grounds for exercising the discretion to make such an order were made out

Legislation:

Criminal Appeals Act 2004 (WA)

Criminal Procedure Act 2004 (WA)
Legal Profession Act 2008 (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: [2017] WASC 2
Decision Date: 9 JANUARY 2017

CaseChat Overview and Summary

The appellant, Van der Feltz, was convicted of offences under the Legal Profession Act 2008 (WA) for representing and advertising an entitlement to engage in legal practice despite not being a legal practitioner in Australia. The case was brought to the Court of Appeal by Van der Feltz, who sought to overturn the conviction and the subsequent sentence and costs order imposed upon him. Additionally, Van der Feltz filed a cross-appeal against a spent conviction order.

The primary legal issues before the court were whether Van der Feltz was denied procedural fairness during the trial, whether the magistrate made errors of fact or law in finding him guilty, and whether the representations made by Van der Feltz amounted to a claim of entitlement to do legal work. The court also had to consider whether the sentence and costs order were manifestly excessive and whether there were grounds to set aside the spent conviction order.

The court found that there was no procedural unfairness in the trial, and the magistrate did not err in fact or law. It was determined that Van der Feltz's representations did indeed amount to claims of entitlement to engage in legal practice. Furthermore, the sentence and costs order were not found to be manifestly excessive. The court, however, found merit in the cross-appeal and determined that the grounds for exercising the discretion to make a spent conviction order were not adequately made out. Consequently, the cross-appeal was allowed, and the spent conviction order was set aside.

The court refused leave to appeal against the conviction, sentence, and costs order, and dismissed the appeals. It granted an extension and leave to appeal against the spent conviction order, and allowed the cross-appeal, setting the spent conviction order aside.

Orders

Orders of the court

Leave to appeal against conviction, sentence and costs refused - appeals dismissed

Cross-appeal - extension granted, leave to appeal granted, appeal allowed and spent conviction order set aside

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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