1. The Respondent explicitly conveyed to the Magistrate that he was not working for a law firm but was a "sole practitioner". This exchange took place in the following context:
   1. At the commencement of the hearing, after Mr Lowry announced his appearance on behalf of the defendant/applicant, the Respondent said:[27]

If you Honour pleases, I appear for the plaintiffs in this matter.

1. Subsequently The Respondent stated:[28]

It's merely more so taking instructions by consulting with my clients...

1. The Respondent permitted the Magistrate to proceed on the basis of the understanding that the Respondent had clients;

Magistrate: Mr Frugtniet, could you stand up, please.

Magistrate: (indistinct) letter, what firm do you work with?

1. The Magistrate then refers to a letter addressed to the plaintiffs which leads to the following exchange:

Mr Frugtniet: I'm not familiar, Your Honour with the letter you're referring to...

Magistrate: Yes. Your client's put on notice that the proceedings appear to fail to comply...

1. The Magistrate then announces that he does not have a copy of the court file and he is not prepared to deal with the matter further until he has copies of the material. The hearing is adjourned to the afternoon and the Magistrate says to the Respondent:

I'm going to give you an opportunity, Mr Frugtniet to have a look at the exhibits...

1. Upon resuming the hearing in the afternoon, after a further exchange between the Magistrate and the Respondent, the Respondent says:[29]

Your Honour, if I can just get some instructions? My instructions are Your Honour in that there was...

1. At no stage did the Respondent refer to a Power of Attorney even where the Magistrate indicated that he did not have the court file.
2. Applicant's Counsel submitted that the above circumstances could only have led the Magistrate to believe that the Respondent was a legal practitioner or a solicitor who was entitled as of right to appear before the Magistrate on behalf of the plaintiffs.
3. Counsel further submitted that the following circumstances should lead the Tribunal to a finding that the Respondent has knowingly or intentionally wilfully misled the Magistrate in what he said and did so that the Magistrate came to believe that he was a legal practitioner, a solicitor, who was entitled as of right to appear before the Magistrates' Court on behalf of the plaintiffs:

1. First, he well knew and understood what he was saying and doing; 2. Secondly, he unequivocally stated in cross-examination that he was not distracted at the time;

1. Thirdly, that he was mindful of the duty imposed upon a person appearing before a court to inform the court of everything that could bear upon the court's decision-making and not to select or edit from that which has occurred;[30]

1. Fourthly that he well knew and understood that magistrates and courts are very precise about words that are used;[31] 2. Fifthly, that he knew that when a judge or tribunal member or magistrate is asking a question that one listens with particular care in order, first, to make sure that the question has been heard, secondly, that it's been understood and, thirdly, to ensure that the answer which is given is full and clear and complete and in no way misleading;[32] and 3. Sixthly, throughout the course of the proceeding before the Magistrate he said that the plaintiffs were clients.
2. Accordingly the wilful and intentional misleading of a Magistrate in a material manner is a sufficiently serious matter that could form the basis of a charge before the Tribunal if the Respondent had been an Australian legal practitioner.

1. Counsel submitted that by wilfully and intentionally misleading the Magistrate the Respondent has knowingly made a claim to the effect that he was a person who was entitled as of right to appear before the Magistrate on behalf of a party by effectively claiming to be a person who was a legal practitioner having been admitted to practice. He was not such a person. The Respondent has thereby committed an act of contempt in the face of the court.[33] Counsel relied upon the case of In the Marriage of Slender where it was said of a person who misrepresented themselves as a barrister instructed by a solicitor:

"Contempt in the face of the court may be broadly described as any word spoken or act done in or in the precincts of the court which obstructs or interferes with the due administration of justice or is calculated to do so..."Mr Macklin's offence is grave. He has impersonated a legal practitioner." ."[34]

1. Counsel also referred to the texts "The Law of Contempt"[35] and Halsbury's Laws of Australia[36] where the case of Slender is footnoted and impersonating a barrister is described as likely to be a serious contempt.
2. Counsel submitted that an act of contempt could also be a proper basis for a charge before the Tribunal.
3. Counsel submitted that whether or not the Respondent held a Power of Attorney from the plaintiffs is irrelevant to the lies and misrepresentations which he made to the Magistrate. In any event, Counsel submitted that the Respondent cannot rely upon such document in the circumstances.
4. Counsel referred to the decision of His Honour Mr Justice J.D. Phillips in Cornall v. Nagle[37] where the head note records:

"The granting of the power of attorney did not convert the donee into the donor. It did not authorise the agent to become the principal and to do things which by law only the principal could do."

1. In other words the power of attorney would not permit the donee to do that which is otherwise not permissible.
2. Section 100(6) of the Magistrates' Court Act identifies those persons entitled to appear, namely: "A party to a civil proceeding may appear personally; by a legal practitioner or other person empowered by law to appear for the party."
3. The power of attorney does not permit the person to do that which he otherwise cannot do.
4. In reply to Respondent's Counsel and the relevance of the Magistrates Court Act provisions concerning contempt, Applicant's Counsel clarified that this is not a proceeding in the nature of contempt. This is a proceeding brought under s.2.2.6(1)(b) in which the Applicant seeks that a finding be made that the Respondent has engaged in an act in the nature of contempt such that it could be made the subject of a charge before the Tribunal.
5. Counsel submitted that the Respondent should be disqualified for a period not exceeding 5 years.

1. Respondent's Counsel submitted that the Respondent cannot be found to have lied to or misled Mr Lowry or the Magistrate.
2. 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"
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. Accordingly, Counsel submitted that a declaration will penalise the Respondent beyond protecting the public from unauthorized legal practice.

1. The Respondent is not and has never been an Australian legal practitioner.[38]
2. The Applicant was duly authorized as delegate of the Legal Services Board pursuant to Instrument of Delegation dated 4 March 2010.[39]
3. 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.
4. 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.
5. 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.
6. 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.
7. 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:

1. I accept that Mr Lowry heard Mr Vasta say to him, words to the effect that his solicitor was on the way; 2. I accept that the questioning made by Mr Lowry of the Respondent in their initial conversation confirmed to him that the Respondent was a sole practitioner and a solicitor entitled to practice;

1. I accept that the interpretation derived by Mr Lowry of the representations made to him by the Respondent was the only reasonable interpretation to be made in the circumstances;

1. I accept that Mr Lowry's understanding of the Respondent's status as a sole practitioner and a solicitor was recorded contemporaneously with the events of the day; 2. I accept that Mr Lowry's understanding of the Respondent's status as a sole practitioner and a solicitor was further confirmed and reinforced by the Respondent's appearance before and answers and other statements made to the Magistrate.
2. In my view, in rather stark contrast, the evidence of the Respondent was characterised by rambling and often irrelevant and/or evasive answers. I have grave reservations about the veracity of his evidence in a number of respects, but in particular:
   1. His evidence that he filed the original power of attorney with the Court Registry; and
   2. The manner in which statements were obtained from witnesses Vasta , Kierzak and Xinomilakis.
3. Furthermore, in light of the evidence of Mr Lowry and the transcript of the proceedings before the Magistrate, I do not accept the accuracy or reliability of the Respondent's evidence in relation to:
   1. His account of his initial conversation with Mr Lowry; and
   2. His explanations as to why he did or did not say certain things before the Magistrate.
4. In view of the Respondent's tertiary legal qualifications; and his admitted understanding of the duties of a person appearing in Court as a consequence of his prior applications for admission to practice; I am satisfied that the conduct of the Respondent, both by act and omission, was conscious and deliberate and in full knowledge of the likely consequences.
5. The veracity of the evidence of witnesses Vasta , Kierzak and Xinomilakis also causes me particular concern. As indicated during the hearing:

1. None of the witnesses could explain why significant parts of each of their statements are in identical form, other than to say to the effect that they had the same story to tell; 2. None of them seemed to know the identity of the person "Mary" to whom they gave instructions;

1. Each gave an account about how their statements were first drafted which was inconsistent with later evidence given by them and/or conflicted with the accounts given by the other two witnesses; and

1. Each was unfamiliar with parts of their statements and Mr Kierzak also admitted that he was prepared to rely upon the memory of others.
2. In relation to the Power of Attorney:

1. The original document has never been produced; 2. No copy of the original document was retained by any of the original plaintiffs who gave evidence;

1. The document does not appear on the relevant Magistrates Court file;

1. It is not on the "screen dump" or computer print out of documents filed in the matter; 2. The person whose stamps appear on the document was not working at the Werribee Court on the day; 3. Each of the Court Registrars confirmed to the effect that it is a practice and internal rule that staff are not permitted to use another staff member's stamp; 4. The Registrar working at Werribee Court on the day did not receive or affix any stamps to a power of attorney; and 5. The Magistrate did not refer to a power of attorney at any stage.
2. If the original power of attorney were filed in the manner stated by the Respondent then necessarily there has been a complete breakdown in all internal and filing procedures of the Court. I do not accept that this was the case. I am confirmed in this view by the following circumstances:

1. On the Respondent's own admission, the power of attorney was not shown to Mr Lowry; 2. Mr Lowry's evidence is inconsistent with any statement alleged to have been made by the Respondent that he was appearing pursuant to a power of attorney;

1. It is inconceivable that Mr Lowry would not have raised the power of attorney, if that had been previously advised to him, in the context of other statements made by the Respondent to the Magistrate;

1. No mention is made by the Respondent to the Magistrate about a power of attorney at any stage; and 2. The Magistrate was careful in adjourning the hearing to enable him to have the file made available to him.
2. In view of the foregoing findings, I am satisfied that;

1. The Respondent Rudy Frugtniet did not make any statement to Mr Lowry Barrister to the effect that he was a spokesman, or spokesperson, for the plaintiffs pursuant to a power of attorney; 2. On the basis of the transcript of evidence before Magistrate Mellas on 25 May 2010 in the circumstances of the hearing, the Magistrate would understand the reference to "sole practitioner" as only meaning "legal practitioner" and would not have taken the reference to sole practitioner as a sole practitioner in business of some other kind;

1. From the context, the Magistrate was clearly seeking to clarify the status of the person appearing before him;

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

[1] Manager Compliance Legal Services Board

[4] Exhibit 1 Notice of appointment of investigator, Mr John Mazaris, dated 18/08/10.

[5] Extract of transcript of proceeding before Magistrate Mellas on 25 May 2010 @ p5

[6] Under Part 4.4 of the Act

[7] Exhibit C Affidavit of Steven Andrew Lowry dated 04/08/10 without any attachment

[8] Exhibit B Statement dated 04.02.11 together with the annexed transcript of the Magistrates' Court.

[17] Exhibit F -Court file of Werribee Magistrates' Court for Proceeding No.A10400550.

[26] I note also the contents of the further written submissions made by the Respondent.

[33] In the Marriage of Slender Family Court of Australia reported [1977] FamCA 56; (1977) 29 F.L.R. 267.

[35] Borrie & Lowe 3rd edn Butterworths @ p 39

[36] Volume 5 Butterworths @ 188,081 para (8)

[37] reported [1995] VicRp 50; [1995] 2 V.R. 188.