Victorian Legal Services Board v Jensen

[2018] VSC 740

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

S ECI 2018 00521

VICTORIAN LEGAL SERVICES BOARD	Plaintiff
v
DENNIS JENSEN (and others according to the schedule)	Defendants

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JUDGE:	Garde J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 August 2018
DATE OF JUDGMENT:	2 August 2018
CASE MAY BE CITED AS:	Victorian Legal Services Board v Jensen
MEDIUM NEUTRAL CITATION:	[2018] VSC 740

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LEGAL PRACTICE – Unqualified persons engaging in legal practice ­– Advertising and representations implying entitlement to engage in legal practice – Injunction and orders to restrain unqualified legal practice and representation – Legal Professional Uniform Law (Vic) – Legal Professional Uniform Law Application Act 2014 (Vic) sch 1, ss 9, 10, 11, 447(2)–(4).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms N Papaleo	Landers & Rogers
The First Defendant appeared in person

HIS HONOUR:[1]

Introduction

[1]The judgment which follows is a written version of the oral judgment given by the Court on 2 August 2018.  Some names of parties have been anonymised. 

1. The Victorian Legal Services Board (‘the Board’) applies for an injunction under s 447 of the Legal Professional Uniform Law (Vic) (‘Uniform Law’) to restrain the defendants from engaging in unqualified legal practice, and from advertising or representing, or doing anything that states or implies that they are entitled to engage in legal practice.

1. It also seeks to restrain Mr Dennis Jensen, the first defendant from:

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

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

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

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

(e)   drawing documents of a legal character.

1. Mr Jensen opposes the application.  The second and third defendants are companies under the control of Mr Jensen.

The Board’s case

1. The Board alleges that the defendants have engaged in unqualified legal practice, and advertised or represented that they are entitled to do so.  It principally points to the facts and circumstances relating to four disputes.

1. The Board relied on the following affidavits and the exhibits thereto:

(a)   the affidavit of Alan Dudley Alpass, regarding the first dispute;

(b)   the affidavit of Dean Bosman, regarding the second dispute;

(c)    the affidavit of Lucas Carter Anthony, regarding the third dispute; and

(d)  the affidavit of Rebecca Toule McAllum, investigations officer from the Victorian Legal Services Commissioner (‘the Commissioner’), regarding all disputes.

1. Ms McAllum states in her affidavit that in the course of her investigation she searched Axiom, a database that keeps a register of legal practitioners and legal practices in Victoria.  The search revealed that:

(a)   Mr Jensen has never been admitted to legal practice in Victoria and does not hold, and has never held a practising certificate;

(b)   Common Law Resolutions Pty Ltd (‘Common Law Resolutions’) is not registered, and has never been registered as a law practice in Victoria; and

(c)    JTA Corporation Pty Ltd (‘JTA Corporation’) is not registered, and has never been registered as a law practice in Victoria.

1. The Board also relies on written submissions, and submissions by Counsel.

1. The defendants have elected not to file any affidavits.  The facts as set out in the Board’s affidavits have not been disputed.  The facts relating to each dispute are summarised in the following paragraphs.[2]

   [2]Outline of plaintiff’s submissions dated 1 August 2018, [28]–[38].

The first dispute

1. In 2016, the defendants purported to act for CR in relation to a dispute with JW and WTR Pty Ltd, concerning a caveat that had been lodged by CR’s partner over JW’s property. 

1. Throughout 2016, Mr Jensen sent JW numerous documents including a document titled ‘Common Law Jurisdiction Commercial Lien Notice of First and Final Warning’,  purported ‘tax invoices’ which contended that a sum of over $500,000 was owing to CR, and a letter in relation to administration costs and fees.  Each of the letters and tax invoices were on letterhead containing the words ‘Common Law Resolutions’.  Emails were said to come from the JTA Corporation.

1. On 21 November 2016, Common Law Resolutions emailed JW and said:

We will not contract with [JW’s lawyers] unless the below fee schedule is agreed to.

[the email then sets out a table noting a fee of $750 for ‘Response Letters’]

We are considering the removal of the Caveat and will have an answer within 7 days from the date of this email.

Invoice stands. Affidavits are unrebutted. Commercial Lien stands.

1. On 5 December 2016, Common Law Resolutions registered a security interest over WTR Pty Ltd on the Personal Property Securities Register (PPSR).

1. On 5 April 2017, Mr Jensen as managing director of Common Law Resolutions responded to the legal representative of JW and WTR Pty Ltd:

We will be only to [sic] happy to oblige with your demand on the full and final payment of the monies owing per in [sic] invoice enclosed.

In the event of any further correspondence please refer to our fee schedule.

1. The ‘fee schedule’ referred to the costs of ‘Phone Calls/email to/from Common Law Resolution’s [sic]’, ‘Correspondence to/from Common Law Resolution’s [sic]’, ‘Construction of Affidavits/Liens/Fee Structures and Documentation’ and ‘Court Expenses for Common Law Resolutions Advocate.’

The second dispute

1. In 2017, the defendants purported to act for WW, the defendant in a dispute with a Council over unpaid rates.  

1. On 10 January 2017, Mr Jensen wrote to the Council and asserted that Common Law Resolutions acted on behalf of WW.  It asked the Council to reply to it. 

1. On 31 January 2017, the Council received a letter from Mr Jensen enclosing a document signed by WW and entitled ‘notice of authority.’  WW purported to give Common Law Resolutions his full authority to act on his behalf in the matter between the parties, and in all other matters as his advocate and representative.

1. On 23 February 2017, Common Law Resolutions purported to render a ‘true bill of accounts’ upon the Council.  The ‘tax invoice’ stated that:

(a)   failure to pay would ‘automatically set legal action in process’; and

(b)   as soon as ‘we have settled we will remove the Goods and Services PPSR on the [Council]’.

1. In March 2017, Common Law Resolutions sent the Council a document titled ‘Common Law Default Notice’, and enclosed a PPSR search certificate.  The certificate showed that Common Law Resolutions had registered a security interest over the Council in respect of ‘Debtor Accounts accumulated during the course of Business for invoices issued from time to time.’  The Council had granted no such security interest.

1. On 23 May 2017, the Council obtained a default judgment in a proceeding commenced against WW in respect of the unpaid rates. 

1. On 2 June 2017, Common Law Resolutions provided the Council with a document titled ‘Notice of Objection to a hearing [sic] proceeding in the absence of the parties,’ which imitated a Magistrates’ Court form.

The third dispute

1. In 2017, the defendants purported to act for JB in a building enforcement matter commenced by a different Council. 

1. On 21 April 2017, Mr Jensen as managing director of Common Law Resolutions, provided the following documents to the Council:

(a)   an authority for Common Law Resolutions to act as an advocate or mediator;

(b)   a letter from Common Law Resolutions; and

(c)    a document titled ‘Criminal Charge Sheet for Common Law Grand Jury’ (the purported charge sheet).

1. The letter both asserted that Common Law Resolutions represented JB and sought the Council’s response to it.  The purported authority stated:

   I, [JB] of [address] give authority to Common Law Resolutions Pty Ltd to advocate for me in matters relating to the proceedings brought against me and my property at the address listed above by [the Council].

2. The purported charge sheet charged various council staff with ‘common law criminal charges’ including ‘Misprision of Treason’.

1. The defendants sent documents purporting to convey an offer on behalf of JB.

The fourth dispute

1. In 2018, Mr Jensen purported to act for HE and EE in relation to proceedings commenced by a bank seeking possession of their property as mortgagee.

1. Mr Jensen sought to appear on behalf of EE at hearings before an Associate Justice and a Judge.  At the hearing before the Associate Justice, Mr Jensen:

(a)   indicated to the court that he was an advocate;

(b)   sought to speak on behalf of the second defendant; and

(c)    sought to appear for the first defendant.

1. In the hearing before the Judge, Mr Jensen:

(a)   signed an appearance sheet;

(b)   addressed the Court; and

(c)    informed the Court that he had ‘put the appeal in.’

1. Following the hearing, Mr Jensen emailed the Supreme Court and confirmed consent to an adjournment.

Defendant’s case

1. In response to the Board’s case, Mr Jensen handed up a purported charge sheet for grand treason concerning the Court, to be issued by Mr Jensen in the Magistrates’ Court.  He stated that the charges were being laid, and that the defendants had no business in the Court. 

1. The defendants made no submissions of substance to the Court.  The Court was not assisted by the defendant’s submissions. 

Statutory framework

1. Section 9 of sch 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) (‘Application Act’) states that the objectives of the Uniform Law are:

(a)to ensure, in the interests of the administration of justice, that legal work is carried out only by those who are properly qualified to do so; and

(b) to protect clients of law practices by ensuring that persons carrying out legal work are entitled to do so.

1. Section 10 prohibits unqualified entities engaging in legal practice:

(1) An entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity.

(2)An entity is not entitled to recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of subsection (1). Any amount so received may be recovered as a debt by the person who paid it.

(3) Subsection (1) does not apply to an entity or class of entities declared by the Uniform Rules to be exempt from the operation of subsection (1), but only to the extent (if any) specified in the declaration.

1. Section 11 prohibits advertisements or representations by or about unqualified entities:

(1) An entity must not advertise or represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity.

(2) A director, partner, officer, employee or agent of an entity must not advertise or represent, or do anything that states or implies, that the entity is entitled to engage in legal practice, unless the entity is a qualified entity.

1. Section 447 gives the Supreme Court power to grant an injunction to restrain contraventions of Law or the Uniform Rules:

(1) This section applies if a person has contravened, is contravening, or is likely to contravene this Law or the Uniform Rules.

(2) The designated local regulatory authority may apply to the Supreme Court for an injunction.

(3) On application under subsection (2), the Supreme Court may grant an injunction restraining the person from contravening this Law or the Uniform Rules (including by requiring the person to do something).

(4)       The Supreme Court may grant the injunction--

(a) whether or not it appears to the Court that the person intends to contravene this Law or the Uniform Rules, contravene this Law or the Uniform Rules again or continue to contravene this Law or the Uniform Rules; and

(b) whether or not the person has previously contravened this Law or the Uniform Rules; and

(c) whether or not there is a likelihood of substantial damage to anyone else if the person contravenes this Law or the Uniform Rules; and

(d) whether or not proceedings for a contravention of this Law or the Uniform Rules have begun or are about to begin.

…

1. Section 450 states that the Supreme Court’s other powers are not limited:

(1) The powers given to the Supreme Court under this Part are in addition to any other powers of the Court.

…

Previous authority

1. On many occasions, the Court has considered what is necessary for an unqualified person to engage in legal practice.

1. In In re Sanderson; Ex Parte Law Institute of Victoria, Cussen J described the case before him in these terms:

What I do decide is that if the person does a thing usually done by a solicitor and does it in such a way as to lead to the reasonable inference that he is a solicitor, if he combines professing to be a solicitor with action usually taken by a solicitor, I think he then does act as a solicitor…

I think that in this case, the respondent did pretend to be a solicitor in the sense that in writing to a person who, for all he knew, might be an ignorant person, he did use language which might convey to that person the idea that he was acting as a solicitor in the matter.  I call particular attention to three or four matters appearing in his letter. 

First, the heading ‘in the matter of F. Wallace, Ararat, v Yourself’; then the demand for costs, which, though it may not be justified even in a case of a solicitor, is the usual accompaniment of a demand by a solicitor; next, the statement as to issuing a summons, and the further statement that, 'I shall not proceed against you under the Fraudulent Debtors Act to show cause why you should not be dealt with as the law directs under the order of the Court which will be duly sent to you.’[3]

[3][1927] VLR 394, 397–398 (‘Sanderson’).

1. In Cornall v Nagle, J D Phillips J said that a person who was neither admitted to practice law nor enrolled as a barrister and solicitor may be regarded as acting or practising as a solicitor in one of three ways:

(1) by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor…

(2) by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner…

(3) by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law...[4]

[4]Cornall v Nagle [1995] 2 VR 188, 210.

1. Additionally his Honour said the giving of legal advice can be properly said to lie at or near the very centre of the practice of the law:

If the public is to be adequately protected from those lacking relevant qualifications, then, in the context of a regulated legal profession, the giving of legal advice professionally is, I think, to be regarded as exclusively the province of those properly trained in the law and having the necessary expertise.[5]

[5]Ibid 208.

1. In Felman v Law Institute Of Victoria, Kenny JA said:

In my opinion, the expression to ‘engage in legal practice’…signifies ‘to carry on or exercise the profession of law’.  Reference to the definitions of ‘engage’ and ‘practice’ in the Oxford English Dictionary supports the view that this is the ordinary and natural meaning of the expression.  The carrying on of the profession of law is done by none other than a ‘legal practitioner’.  Accordingly, in my view, the expression ‘engage in legal practice’ means ‘engage in legal practice as a legal practitioner’, the italicised words being implicit in the notion of legal practice. [6]

[6][1998] 4 VR 324, 352 (emphasis in original).

1. In Legal Services Commissioner v Walter,[7] the Supreme Court of Queensland said that this ‘relatively broad approach’ to construing the term ‘engaging in legal practice’ is consistent with traditional notions of legal practice.[8]

   [7][2011] QSC 132.

   [8]Ibid [14].

Review of the evidence

1. The Board has provided a substantial volume of evidence, including documents that have been prepared by Mr Jensen, or prepared by or on behalf of one of the corporate defendants. 

1. From the evidence, it is clear that the activities of the defendants include:

(a)   sending notices and tax invoices in property disputes;

(b)   offering to contract on behalf of a client;

(c)    advising that the removal of a caveat was under consideration;

(d)  asserting that affidavits were unrebutted and that a commercial lien stood;

(e)   demanding payment of moneys owed on invoices rendered in accordance with the fee schedule;

(f)     arranging for clients to give his company full authority to act on their behalf;

(g)   alleging that a failure to pay would automatically set legal action in progress;

(h)   serving default notices and search certificates;

(i)     drafting and serving affidavits;

(j)     providing a notice of objection in rate collection proceedings;

(k)   providing purported legal documents to a municipal council;

(l)     obtaining authorities of various descriptions from clients;

(m)preparing charge sheets and charges for the appointment of a grand jury;

(n)   appearances before the court on various occasions representing that he is an advocate; and

(o)   signing appearance sheets and consenting to adjournments.

1. The unchallenged evidence of the Board demonstrates that Mr Jensen has carried out actions and activities, prepared documents and engaged in conduct which is prohibited unless performed by an Australian legal practitioner.  The defendants have also advertised or represented that they are entitled to act as they have done.  

Conclusion

1. The Court is satisfied that this is an appropriate case for injunctions and orders to be made under s 447(3) of the Uniform Law.  Injunctions and orders will be made generally in the form sought by the Board.

   
   

SCHEDULE OF PARTIES

VICTORIAN LEGAL SERVICES BOARD	Plaintiff
DENNIS JENSEN			First Defendant
COMMON LAW RESOLUTIONS PTY LTD (ACN 610 824 729)		Second Defendant
JTA CORPORATION PTY LTD (ACN 098 788 848)	Third Defendant