Van der Feltz v Legal Practice Board

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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2017] WASC 2
Case No:SJA:1059/201622 NOVEMBER 2016
Coram:HALL J9/01/17
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
B
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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)
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Details
Case
[2017] WASC 2
Decision Date

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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