Law Institute of Victoria Limited v Frugtniet

Law Institute of Victoria Limited v Frugtniet - [2011] VCAT 596 - VCAT 2011 case summary — Zoe

[28]

Respondent's Counsel submitted that the Respondent cannot be found to have lied to or misled Mr Lowry or the Magistrate.
Counsel referred to parts of Mr Lowry's evidence which he submitted was inconsistent with his statement and otherwise confirmed that the Respondent had never used the title "solicitor". Mr Lowry merely made an assumption he was a solicitor on the basis of the words "sole practitioner"
Counsel submitted that the Respondent's use of the expression sole practitioner accurately described his status vis a vis his professional businesses in migration, conveyancing and tax.
Furthermore, the Respondent was acting under a Power of Attorney and therefore relies upon the exemption contained in 2.2.2(f) and the authority under s. 100 of the Magistrates Court Act. He believed that the Magistrate was in possession of the power of attorney when he answered questions about which firm he was with.
Counsel submitted that, even if the power of attorney was not legally effective, it goes to the state of mind of the Respondent in believing that he was entitled to speak on behalf of the plaintiffs before the Magistrate.
The Respondent's evidence in relation to the power of attorney and the initial conversation with Mr Lowry was also confirmed by Mr Vasta. Both Mr Vasta and the Respondent also gave evidence about a conversation with Mr Lowry about a defendant witness, which Mr Lowry did not recall.
In relation to the charge of contempt Counsel submitted that this should not be available in the circumstances. Contempt must be dealt with under sections 133 and 134 Magistrates' Act. The family law case of Slender is irrelevant.
In relation to any likely penalty, in the event that the Tribunal makes findings against the Respondent, Counsel submitted that the Tribunal should have particular regard to the fact that this was an isolated incident where the Respondent appeared before the Magistrate on 25 May 2010. He had not prepared any documents for the court; he had not drafted or sent any correspondence; he was not remunerated in any way; and he made no subsequent appearances. He was merely there to help out a friend. To be a spokesperson. The circumstances should be viewed as a minor transgression.
Counsel submitted that a declaration in the order of 5 years would be excessive and seriously and adversely impact upon his business as a conveyancer. Under s 5 of the Conveyancers Act 2006 a person disqualified under the Act is automatically disqualified from continuing to practice as a conveyancer, unless invited by the Commissioner to make submissions as to why he should continue to practice. In relation to his practice as a tax agent and migration agent the Respondent has to continue to satisfy a "fit and proper" person test.
Accordingly, Counsel submitted that a declaration will penalise the Respondent beyond protecting the public from unauthorized legal practice.

[29]

The Respondent is not and has never been an Australian legal practitioner.[38]
The Applicant was duly authorized as delegate of the Legal Services Board pursuant to Instrument of Delegation dated 4 March 2010.[39]
The acts upon which the opinion is based must be proven by the Applicant upon clear and cogent evidence. The Tribunal must be satisfied upon the balance of probabilities that one or more of those three acts identified has been done by the Respondent, having regard to the seriousness of the allegations and the gravity of the consequences flowing from such a finding.
Furthermore the Tribunal must be satisfied that any of the acts so found to have been committed may have resulted in a charge being brought in the Tribunal if it or they had been committed by an Australian legal practitioner.
I have already disposed of certain legal submissions made on behalf of the respondent, which I will not repeat again here. I otherwise accept the final submissions made on behalf of the Applicant, subject to one aspect concerning contempt, dealt with below.
Credit of the witnesses looms large in this case as there is a clear conflict in the accounts given by or on behalf of the Respondent and Mr Lowry. It is therefore appropriate to make some observations.
In my view Mr Lowry gave his evidence in a thoughtful and careful manner without embellishment. His testimony was also objectively supported to the extent to which he had made notes in his day book. I accept that he did have a day book with him at all times and made contemporaneous notes in the manner stated by him. He was instructed to appear at the Werribee Magistrates Court. His record keeping of the matter generally on that day was meticulous and in keeping with the evidence which he gave about how he would record matters and why. It was also entirely consistent with the manner in which a competent and responsible barrister would record events for the benefit of his instructing solicitor and clients. I have no hesitation in accepting the evidence of Mr Lowry as a truthful and accurate account of what occurred on the day and what was said to and by him. In particular:

[44]

The use of other words and expressions by the Respondent [such as "clients" and "obtaining instructions"] and the manner in which the Respondent knew to address the Magistrate, would have all confirmed in the mind of the Magistrate and Mr Lowry that the Respondent was appearing before the Court in the capacity of a solicitor entitled as of right to appear before the Court; 2. The Respondent Rudy Frugtniet has knowingly and intentionally or wilfully misrepresented himself to and misled Mr Lowry Barrister to believing he was a sole practitioner and solicitor entitled to engage in legal practice and appear as of right before the Magistrates Court on behalf of the plaintiffs; 3. The Respondent Rudy Frugtniet has knowingly and intentionally or wilfully misrepresented himself to and misled Magistrate Mellas in what he said and by what he failed to say so that the Magistrate came to believe that Mr Frugtniet was an Australian legal practitioner and a solicitor, who was entitled as of right to appear before the Magistrates' Court on behalf of the plaintiffs; 4. The conduct of the Respondent Rudy Frugtniet in face of the Magistrate constituted a contempt of Court.
I am further satisfied that the intentional misrepresentations and misleading of Counsel and Magistrate and the contempt in face of the Court, constituting dishonest conduct of a serious nature, are each of the kind of act or omission that, if the person had been an Australian legal practitioner, may have resulted in a charge being brought in the Tribunal.
However, in my view although the conduct before the Magistrate may also be properly described as in the nature of a contempt in the face of the Court, it should not be the subject of a separate and distinct ground for the purpose of section 2.2.6(1)(b) of the Act.
I propose to order that Rudy Noel Frugtniet is a disqualified person for the purposes of Division 3 of Part 2.2 of the Act for a specified period.
In considering the length of disqualification I am mindful that it has not been alleged that the Respondent engaged in a course of conduct over any extended period or that he acted for remuneration. I am also mindful of the adverse impact which any period of disqualification may have upon the Respondent's other businesses.
However, by his conduct in this case the Respondent has failed to demonstrate any insight into his behaviour and failed to express any responsibility or remorse. Indeed he has denied any transgressions whatsoever, notwithstanding clear and objective evidence.
Furthermore the manner in which the Respondent has chosen to defend himself in this case raises very serious questions as to his willingness and capacity to be an honest and reliable witness.
Subject to any further submissions from the parties on the duration of the period of disqualification, I propose that the period of disqualification be 3 years.

At a glance

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Before

Source

Judgment (56 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (1)

Law Institute of Victoria Limited v Frugtniet (Legal Practice) [2011] VCAT 596 (8 April 2011)