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[2000] VSC 489
Supreme Court of Victoria
2000-12-22
Hansen J
Original judgment source is linked above.
Conveyancer - Former legal practitioner convicted of offences and struck off the roll - Prohibition against being employed as a conveyancer - Application to authorise employment as a conveyancer - Refusal by Legal Practice Board - Appeal - Legal Practice Act 1996, Part 13.
' "conveyancer" means a person, other than a current practitioner or interstate practitioner, who carries on a business in the course of which conveyancing work is carried out directly or indirectly for fee or reward; "conveyancing work" means work, other than legal work, carried out in connection with the transfer or conveyance of a freehold or leasehold interest in land; "legal work" means-- (a) the preparation of any document that creates, varies, transfers or extinguishes an interest in land; or (b) the giving of legal advice.'
(a) whose name has been struck off the roll of practitioners of the Supreme Court (unless he or she has been re-admitted); or
(b) who is suspended, disqualified or otherwise prohibited from engaging in legal practice in Victoria or in any place outside Victoria (whether in or outside Australia); or
(c) who is subject to an order under section 321: or
(e) who is prohibited under the Corporations Law from managing a corporation; or
(f) who has been convicted in Victoria or elsewhere within the last 10 years of an offence involving fraud, dishonesty, drug trafficking or violence.
(2) A person to whom this section applies must not--
(b) subject to section 328, accept employment or engagement with a conveyancer in connection with the performance of conveyancing work; or
(c) have any pecuniary interest in the business of a conveyancer.
(3) Subject to section 328, a conveyancer must not knowingly employ or engage a person to whom this section applies in connection with the performance of conveyancing work.
"(1) On application by a conveyancer, the Board may authorise the conveyancer to employ or engage a person to whom section 327 applies for the period and subject to the conditions (if any) specified by the Board."
"(2) A conveyancer must give a written notice to a prospective client--
(i) whether or not the conveyancer holds insurance that covers the conveyancer against civil liability in connection with conveyancing work carried on in the course of their business; and
(ii) if the conveyancer holds insurance, the amount of cover and any relevant exclusions or limitations on the cover; and
(b) if the conveyancer intends to retain a legal practitioner or firm to perform legal work in connection with the transaction, indicating the name and address of that practitioner or firm; and
(c) if not, indicating that the conveyancer is not authorised to perform legal work.
"(1) The Board may, by written notice, require a conveyancer to give the Board any information or documents reasonably required by the Board to determine whether or not the conveyancer has complied with section 330."
"(1) An RPA, the Board or the Legal Ombudsman may apply to the Full Tribunal for an order that a person (other than a legal practitioner) who--
(a) has been convicted in Australia or elsewhere of an offence involving fraud, dishonesty, drug trafficking or violence; or
(b) in the opinion of the RPA, Board or Legal Ombudsman has been a party to an act or omission that, if the person had been a legal practitioner or firm, may have resulted in a charge being brought in the Tribunal--
not be employed or engaged in connection with legal practice or conveyancing work within the meaning of Part 13.
(2) The Full Tribunal may order that the person is not to be employed, for a specified period or indefinitely, in connection with legal practice or conveyancing work within the meaning of Part 13.
(3) If an order under this section specifies that a person not be employed indefinitely, the person may apply to the Full Tribunal to have the order revoked.
(4) The Full Tribunal, on application under section (3) [sic], may revoke an order if it considers it appropriate to do so."
Section 322 (1) provides that a person against whom an order is made under s. 321 may appeal to the Court of Appeal on a question of law. No application has been made to the Full Tribunal concerning Petsinis.
2. the name was registered on 14 July 1989;[7]
3. from 14 July 1989 the place of business was 92 High Street, Northcote;
4. from 14 July 1989 to 9 November 1990, the business was carried on by Fenral;
5. from 9 November 1990 to 1 January 1991, the business was carried on by Mr and Mrs Petsinis;
6. from 1 January 1991, the business was carried on again by Fenral.
I note that 92 High Street, Northcote is still the place of business.
' I wish to advise that I am the sole Director of Fenral Nominees Pty. Ltd. ... which owns and operates the conveyancing business "Residential & Commercial Property Transfer Co.," of 92 High Street, Northcote. The business has been conducted since 1985 and during that time I have employed my Husband, Peter Petsinis in his capacity as Conveyancer. It has now come to my attention that pursuant to Section 327 of the Legal Practice Act 1996 Mr. Petsinis may be precluded from being employed as a Conveyancer. In 1984 he was struck off from the Role [sic] of Barrister and Solicitor of the Supreme Court of Victoria. It is on this basis that I now make application under Section 328 of the said Act to the Board for the Company to employ Mr. Petsinis on an ongoing basis as a Conveyancer. Since 1984 Mr. Petsinis has worked in the conveyancing field without complaint or problem. He has many referees who support his ability, honesty and integrity. Copies of these references which are to hand are enclosed for your perusal and consideration. The business has had, in the course of its operation, Solicitor supervision by Mr. Roger K. Stevenson, who no longer practices [sic] in the State of Victoria, and currently we are supervised by Mr. Malcolm Buxton, Solicitor. We have complied with the Statutory requirements in respect of Professional Indemnity Insurance. At this point in time I would also like to inform the Board that Mr. Petsinis has instructed his Solicitors, McGrath Carey Katz to initiate an application for him to be re-admitted on the Role [sic] of Barristers and Solicitors of the Supreme Court of Victoria. In the meantime I would be grateful if the Board could now consider this application on its merits and advise our Office as soon as possible of its attitude.'
indicate that it was not. The points I have made are reflections on the extent to which the letter of application was frank and accurate.
" As the Board has not authorised Mr Petsinis [sic] employment in connection with your conveyancing business, he must immediately cease working as a conveyancer. I remind you that the Legal Practice Act prohibits the engagement of a struck off practitioner in connection with conveyancing work: s327(2)[.] The Act also provides that a person struck off the Roll must not accept employment or engagement with a conveyancer: s327(3)[.] There is a $10,000 penalty for breach of each of these provisions."
"1. Mr Petsinis failed to persuade the Board that his previous acts of dishonesty are no longer relevant and that he is an appropriate person to be permitted to work as a conveyancer.
2. Mr Petsinis and Residential & Commercial Property Transfer Co have been in breach of the Legal Practice Act since 1 January 1997. The Legal Practice Act brought in a number of changes to the operation of conveyancing businesses which were widely publicized. Residential & Commercial Property Transfer Co and Mr Petsinis should have been aware of those changes and complied with the Act from that time.
3. Mr Petsinis declined to cease working as a conveyancer when informed by the Victorian Lawyers RPA by letter dated 20 March 2000 that he was working in breach of the Legal Practice Act.
4. Mr Petsinis has failed to repay monies owing to the Solicitors' Guarantee Fund in relation to defalcations committed while working as a legal practitioner."
" In relation to your request that Residential & Commercial Property Transfer Co be permitted to employ Mr Petsinis pending the outcome of the proposed Supreme Court appeal, I again advise that as the Board declined to grant an authorisation under s328(1), Mr Petsinis and Residential & Commercial Property Transfer Co will be in breach of s327 of the Act if Mr Petsinis continues to act as a conveyancer."
TO: Our costs in relation to attending upon you taking instructions; preparation of Will and attending you on signing thereof.
" I believe I handed those instructions to Mr Malcolm Buxton who is the supervising solicitor of [Residential & Commercial]".[15]
The issue raised by this evidence is whether Petsinis and Residential & Commercial engaged in legal practice when not qualified to do so, contrary to s. 314 of the Act. Petsinis was cross-examined on this point, in particular as to the roles of himself and Buxton in the drawing of the will. He said that Residential & Commercial did not have a file, and he had been unable to find a copy of the will or the written instructions which he said he took from Rose. He knew the preparation of a will was a legal matter and that he was not supposed to do legal work. Legal work would be referred to a solicitor. In this instance he did not think of saying to Rose that as a will was a legal matter he would have nothing to do with it or that he could refer her to a solicitor. He did not advise Rose he was not permitted to draw a will. So, he believed and recollected that, having taken instructions, he referred the matter by handing the instructions to Buxton. He said that Buxton would then have advised it was okay to go ahead and draw the will and have it signed. He had no recollection of Buxton preparing any draft clauses or discussing them with him. Petsinis then drew the will. He would not have drawn the will without Buxton's okay. At one point he said that Buxton vetted the will. Whether considering that answer alone or in context, I did not understand it to mean that Buxton saw and approved the will after it had been drawn by Petsinis.
" wills were legal documents and we needed those legal documents vetted by our then supervising solicitor".
He said that in the early 1990s a supervising solicitor had approved this practice:
' as long as he perused the instruction and he would send us back a note saying that "On those instructions it's okay for you to go ahead and draw up the will" '.
He named a particular supervisory solicitor in this respect. The practice, it seems, continued with Buxton. Once the solicitor gave permission, he would draw the will without further input from the solicitor. That, I find, is what happened in the case of Rose's will.
Buxton did not state that he was not aware of the changes. As a solicitor practising in Dandenong and presumably performing conveyancing work it would seem strange if he was not aware of the legislation, particularly as it so radically re-wrote the former legislation and introduced a new regulatory and disciplinary regime. One could hardly conduct practice as a solicitor without being familiar with the Act. Further, if he was not aware of the changes including the new Part 13, it is hard to understand what state of awareness of the Act he brought to the task of supervising solicitor, the nature and scope of which task he did not explain. Nor did he refer to any discussions with Mr or Mrs Petsinis as to the lawful activity of a conveyancer let alone to any advice he might have given in that respect, the commencing point in any such discussions or advice being, of course, the applicable provisions of the old and new Acts. Nevertheless, Buxton was not cross-examined and his evidence stands as it is.
5. Is the standard under s. 328(1) the same as for re-admission?
The schedule contained a list of 47 claimants and in relation to 46 of them stated the amount paid by the Solicitors' Guarantee Fund for principal, interest, costs and disbursements. No amount was shown as paid to one of the 47 claimants. Petsinis exhibited the schedule to his affidavit. According to the schedule the total paid for principal was $43,974.79 which represented $956 for each of the 46 clients. The highest and lowest amounts paid were $3,000 and $200 respectively. By contrast, in his affidavit Petsinis said that there were "actually 29 clients". When, later in his affidavit, he produced the schedule he gave no explanation as to the number of clients and the amount of losses which it disclosed.
it is significant that the true situation was discernible on a careful reading of the affidavit and the exhibits. I should add that the evidence of Mazaris assisted in that it established when Petsinis held a practising certificate. That evidence was readily to be anticipated by Petsinis, as was a careful reading of his affidavit. I accept the bona fides of the statement of his counsel that, notwithstanding an involvement in the affidavit, they had not picked up the inaccuracy. I conclude, having regard to my observation of Petsinis and a careful consideration of the affidavit and all that was submitted, that the inaccuracies are to be attributed to an inattention to detail and carelessness in drafting of the affidavit and not to an intention to mislead the Court. It is worth repeating that in this respect counsel for the Board did not rely on the second aspect identified above.
The effect of these provisions was plain and I find that Petsinis understood them according to their terms. He did not suggest otherwise. The concept of acting or practising as a solicitor referred to in those sections was very wide. The cases had long before established that a person acted as a solicitor if he or she did a thing usually done by a solicitor and did it in such a way as to lead to the reasonable inference that he or she was a solicitor.[38] I do not know whether Petsinis' inquiries led him to the cases. He made the inquiries referred to and said that he concluded that he could act as a secretarial service specialising in conveyancing as long as he did not give legal advice and did not hold himself out as being a qualified solicitor. In his evidence on 12 December Petsinis acknowledged an awareness that drawing a will was legal work which was required to be done by a solicitor. That reflected an appreciation of the prohibition on an unqualified person undertaking legal work, although he thought he could draw a will if his supervising solicitor approved him doing so.
These could only have served to remind Petsinis of the restrictions on unqualified persons in the old Act. As early as May 1988 the Law Institute raised the matter of Residential & Commercial acting as a solicitor and suggested there was a breach of ss. 90, 92 and 93. The same point arose in 1993 in relation to a notice of default and notice of recision which the Law Institute claimed could only be drawn by a qualified person.
That was sufficient for a person of reasonable sense to have gone to the Act. On reading s. 314, Petsinis would immediately have been aware that the Act continued the old prohibition against an unqualified person engaging in legal practice or, in the old terminology, acting or practising as a solicitor. On reading s. 330, it would immediately have become apparent to Petsinis that it was a new provision in a new Part.
that he did not have a copy of the Act but had obtained one before speaking to Mazaris after receiving the letter of 20 March.
Petsinis was asked about his supervising solicitor. He gave the name of a solicitor who at that time "was backing our service". He said he had numerous solicitors he could call on for assistance "with these sorts of matters". He said "we've had two [supervising solicitors] recently ... I can call on a couple of fellows to give clients legal assistance if need be, which is rare". He was asked if a solicitor was meant to draft a conveyance and he replied:
" The conveyancing industry is an industry that's not heavily regulated and the code of practice in the conveyancing industry is that not every document that is prepared is vetted by a solicitor".
He then stated that that applied to a transfer. He said:
" The transfer is a document that now requires just filling in of blank spaces, as you would with a rate inquiry form."
" I've given that consideration but I weigh that up with the convention that's used in the conveyancing industry as is the case to this very day."
that it may have been, I would have to infer that awareness because neither Petsinis nor Kawecki nor Mrs Petsinis in her letter dated 30 March so informed the Board in clear and unequivocal terms. That is not to overlook the earlier remarks of Petsinis in his conversations in March. Nor, it should be added, was the Board informed of the legal advice of Kawecki on the basis of which Petsinis worked after the application was provided to it. It should also be noted that Petsinis did not refer to his letter dated 13 April in his affidavit, let alone exhibit it.
Petsinis' solicitors were advised that the amount owing was $23,206.39. It was suggested in cross-examination that a further letter had been sent demanding payment of this amount. If there was, no payment was made and the years rolled by. It seems clear that, to the extent the matter of payment was pressed, it was done lightly and certainly ineffectually. In such circumstances a debtor may go to sleep. Of course it is a matter of honourable conduct to meet such a liability, but on the creditor's side there were two factors. The amount owing was subject to dispute and was not clarified until July 1993, 12 years after the last offence and almost nine years after sentence. That was followed by what seems virtual inactivity of the creditor. These cannot be overlooked as factors which contributed to the delay in payment.
I have mentioned that in drawing a will there was a seeming contravention of s. 314. It was submitted that Petsinis' approach and his attitude was sloppy in that he failed to draw the line between what he was and was not permitted to do and that his relevant evidence was unsatisfactory. The evidence in this respect included his evidence concerning the dispute between Rose and her mother in which, counsel in effect submitted, Petsinis indicated that he would have drawn a document if he had not thought it appropriate to refuse to do so. I take that into account but the fact that he refused outright to do something because he considered that a mother-daughter dispute over money should be settled amicably does not establish a contravention of the law or an intention in his mind to be prepared to contravene the law.
I do not repeat them. I only add the following. I am not persuaded on the balance of probabilities that more than one conversation occurred, as mentioned earlier. I do not find that Rose was not an honest witness. Rather, taking account of all the evidence, it is not established to my satisfaction that she spoke to him on as many occasions as she did. Secondly, I accept that he spoke to her for the reasons and in the way I have discussed earlier.
(a) (i) produce to the Board for inspection any document relating to the conduct by the appellant of its conveyancing business including but not limited to any document contained in any file or pertaining to any bank account, and
(ii) provide to the Board any information relating to the conduct of the said business.
(b) permit the servants or agents of the Board and the solicitor for the Board to enter the office premises of the appellant at 92 High Street, Northcote for the purpose of inspecting any document or thing relating to the conduct of the appellant's conveyancing business and remove into their custody any such documents or things.
that he might at times have had to handle funds belonging to a client or the other party to a transaction. Nothing adverse has arisen over this period. All the indications are, and the contrary was not suggested, that Petsinis is a good conveyancer, trustworthy and reliable in that regard.
[4] Defined in subs. (3) to include a business letter, statement of account, invoice, receipt and offer or agreement to supply services.
[5] See [[] and [-] below.
6] The other share is held by Joanne Failla.
[7] The evidence, for instance correspondence in 1988, suggested that Petsinis was using the Residential & Commercial name before July 1989. It might be thought that the records of the Business Names Office are a reliable indicator, not only because they are contemporaneous but also because, as I would infer, they are based on advice of Petsinis. Counsel for the respondent made no point of this; neither do I.
[9] I infer that Failla ceased to be a director at this time.
[10] Mrs Petsinis remained as the sole director.
[12] The fact is that Petsinis had not made any payment after that date.
[13] This is plainly a reference to an application to the Board under s. 328(1).
17] [1909] HCA 87; (1909) 9 CLR 655 at 681 and 688 per Isaacs J and 692 per Higgins J.
[18] [1952] VicLawRp 51; [1952] VLR 385 at 387 and 389 per the Full Court.
[19] [1985] VicRp 36; [1985] VR 343 at 346-347 per Kaye J and on appeal [1986] VicRp 75; [1986] VR 743 at 750 per Brooking and Nathan JJ.
[20] [1981] VicRp 57; [1981] VR 577 at 580-582 per Starke J.
[21] [1909] HCA 87; (1909) 9 CLR 655 at 664. See too Re S (a Solicitor) [1985] VicRp 36; [1985] VR 343 at 346 per Kaye J.
[22] [1952] VicLawRp 51; [1952] VLR 385 at 389.
[24] [1893] 2 QB 439 at 447.
[25] [1909] HCA 87; (1909) 9 CLR 655 at 681 per Isaacs J.
[26] [1952] VicLawRp 51; [1952] VLR 385 at 387 per the Full Court.
[27] [1909] HCA 87; (1909) 9 CLR 655 at 681.
[28] [1909] HCA 87; (1909) 9 CLR 655 at 692. See too the reference to this point in Re S (a Solicitor) [1985] VicRp 36; [1985] VR 343 at 347 per Kaye J.
[29] See In the matter of TS [1981] VicRp 57; [1981] VR 577 at 581 per Starke J.
[30] [1985] VicRp 36; [1985] VR 343 at 346.
[31] The categories can overlap, for example if a lawyer is convicted of a relevant offence and is consequently struck off, although I note that there have been instances where solicitors have been convicted of misappropriation of trust funds and no application has been brought to strike them off the roll: see Law Institute of Victoria v Gough (10 February 1995, Hansen J, unreported) at 25. A person who fell within both categories would continue to be permanently precluded as a category (a) person, subject to authorisation under s. 328(1), even upon the expiration of 10 years. Thus, my references to category (f) persons should be taken to mean "category (f) persons who are not also category (a) persons".
[32] The same category of offences is stipulated in s. 321(1)(a).
[33] I am not here referring to a cheque payable to a third party; such a cheque is received on trust to be applied for the purpose for which it is received and would not need to be deposited in a trust account.
35] [1986] VicRp 75; [1986] VR 743 at 748.
38] In re Sanderson; ex parte the Law Institute of Victoria [1927] VicLawRp 57; [1927] VLR 394 at 395; In re Berry and Gulliver; ex parte Law Institute of Victoria [1929] VicLawRp 39; [1929] VLR 224 at 225-226; and see Cornall v Superannuation Systems (Aust) Pty Ltd [1989] VicRp 5; [1989] VR 43.
40] See [[] and [] above.
47] See [[-] and [] above.
Fenral Nominees Pty Ltd
Legal Practice Board [2000] VSC 489
(1909) 9 CLR 655