Legal practitioners - Motion for contempt - Work performed by a person other than a legal practitioner - Preparation of Wills - Imposition of penalty - Turns on its own facts

Interpretation Act 1984 (WA), s 37(1)

Legal Practice Act 2003 (WA), s 4, s 123, s 250

Legal Practitioners Act 1893 (WA), s 77, s 81

Sentencing Act 1995 (WA), s 53

Fine of $1500 as penalty payable to the Legal Practice Board within 60 days

Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188

D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191

Her Majesty's Attorney-General at the Relation of the Law Society of Western Australia (Inc) v Quill Wills Ltd & Ors (1990) 3 WAR 500

Legal Practice Board v Taylor [2005] WASC 242

Legal Practice Board v Adams [2001] WASC 78

Legal Practice Board v Clohessy [2006] WASC 21

Legal Practice Board v Heedes [2004] WASC 260

Legal Practice Board v Mullally [2003] WASC 225

Legal Practice Board v Tilley & Anor [2006] WASC 73

Legal Practice Board v Van der Zwaan [2002] WASC 133

1 MARTIN CJ: The Legal Practice Board moves the Court for orders that the respondent, Helen Ferguson, be punished for contempt of Court in that she did, during the period from in or about 27 August 2002 to in or about 28 August 2002, at Perth, directly or indirectly:

(a) perform, carry out or engage in work in connection with the administration of law in obtaining and acting on instructions from Mrs Jean Charlotte Keen to prepare her Last Will and Testament; and

(b) in the course of carrying out the instructions referred to above, did draw or prepare or cause to be drawn or prepared an instrument relating to or dealing with or affecting real or personal estate or an interest therein, namely an instrument executed by Mrs Jean Charlotte Keen in or about August 2002 entitled "Last Will and Testament".

2 The first respondent does not oppose the orders sought.

3 It will be noticed that the conduct complained of took place prior to the enactment of the Legal Practice Act 2003 (WA) ("the 2003 Act"), and therefore while the Legal Practitioners Act 1893 (WA) ("the 1893 Act") remained in force. Section 77 of that Act provided that no person other than a certificated legal practitioner should directly or indirectly perform or carry out or be engaged in any work in connection with the administration of the law, or draw or prepare any deed, instrument, or writing relating to or in any matter dealing with or affecting real or personal estate or any proceedings at law or in equity.

4 Section 81 of the 1893 Act provided that a contravention of, amongst others, s 77 of that Act constituted a contempt of the Supreme Court, and could be dealt with accordingly by this Court on the motion of, amongst others, the Board. Although the 1893 Act was repealed with effect from 1 January 2004 by the 2003 Act, by virtue of s 37(1) of the Interpretation Act 1984 (WA), the substantive law in force at the time of the alleged conduct remains unaffected by the repeal of the 1893 Act. Conduct which prior to that repeal would have contravened s 77 of the 1893 Act would, generally speaking, since 1 January 2004, constitute a contravention of s 123 of the 2003 Act (when read with s 4 of that Act). By virtue of s 250 of the 2003 Act, the consequences of contravention and the procedure for dealing with alleged contraventions of the 2003 Act are essentially identical to those provided under the 1893 Act.

5 Because those provisions are procedural (as opposed to substantive), s 250 of the 2003 Act governs these proceedings (see Legal Practice Board v Taylor [2005] WASC 242 at [5] - [10]). I must also take account of the fact that while under the 1893 Act the penalty was at large, under the 2003 Act, the maximum penalty which can be imposed for a contravention of s 123 of that Act is a fine of $10,000. I must also take account of s 53 of the Sentencing Act 1995 (WA) which provides that in deciding the amount of any fine to be imposed, I must, so far as practicable, take into account the means of the offender and the extent to which payment of the fine will burden the offender.

6 As has been pointed out on many occasions, the purpose of these provisions is not to confer a form of benefit or monopoly upon certificated legal practitioners but rather to protect members of the public by ensuring that legal work is carried out only by persons who have obtained a proper legal education, leading to appropriate qualifications, and who are subject to the disciplinary supervision of the courts in their practice of the law (see, for example, D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191, 207.)

7 I turn now to the circumstances of the present case. I will endeavour to describe those circumstances from the affidavit material which has been tendered in evidence in support of the motion.

8 It seems clear that for a period of time the respondent was carrying on business writing Wills. She advertised that business in local newspapers. As a result of one such advertisement, she was contacted by the late Jean Charlotte Keen, and prepared a Will for her. The Will was executed by the testatrix and duly witnessed. The respondent charged an amount of $150 plus GST for the services which she provided. The Will is in evidence and is in entirely unsatisfactory and ambiguous terms. Its ambiguity and uncertainty gave rise to a dispute between the surviving relatives of the testatrix, which resulted in litigation in the Supreme Court. That litigation took the relatives time, expense and understandably caused a breakdown in the relationships between them. This case therefore provides a graphic and most unfortunate illustration of the public interest which the legislation to which I have referred is intended to serve.

9 It is clear from the facts which I have related that contravention of the 1893 Act, and therefore contempt of Court, is established. In Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188 it was held that where a person draws documents exercising his or her mind as to the appropriate form of words to accommodate the particular case, that can be regarded as the drawing or preparing of a legal document. It has repeatedly been held that the preparation of Wills is an activity which, if carried out by other than a certificated legal practitioner, contravenes the legislation to which I have referred - see, for example, Her Majesty's Attorney-General at the Relation of the Law Society of Western Australia (Inc) v Quill Wills Ltd & Ors (1990) 3 WAR 500; Legal Practice Board v Taylor (supra).

10 It is not entirely clear from the materials in evidence before me just how many Wills the respondent may have prepared in the course of running the business to which I have referred. In any event, the motion brought by the Board only seeks that she be punished for contempt in relation to one such Will, and it would be an error in principle to punish her for other conduct in respect of which no complaint has been brought. However, it is undoubtedly relevant to my task in identifying the appropriate sentence to be imposed to note that the conduct in question occurred in the course of the conduct of business for reward, albeit business of an apparently modest nature.

11 Turning now to the circumstances of the respondent, from the materials available to me, she appears to have been working as a part-time enrolled nurse at the time she was carrying on the business to which I have referred. Because of the relatively meagre income from that occupation, she attended a course conducted in late 1999 or early 2000 which apparently promoted the prospect of making money by preparing Wills. She asserts that at the course she was told that anybody could write out a Will for someone else using either a Will kit or Will forms available on the internet. She undertook some research, obtained a form from the internet and set up and advertised her business.

12 She asserts that she was not aware that the conduct of such a business involved a contravention of the law, and although ignorance of the law is, of course, no excuse, it may be a circumstance in mitigation of penalty or, at least, indicates the lack of a circumstance of aggravation which would attend a wilful breach of a provision such as the provisions in question in this case.

13 After the respondent's activities were detected by the Legal Practice Board, it appears she ceased the conduct of business and communicated with some but not all of the persons for whom she had written Wills, suggesting that they have those Wills checked by legal practitioners. There was, however, a disagreement between the respondent and the Board as to the extent to which she had complied with the terms upon which the Board originally indicated that it would not take action by way of contempt proceedings against her. It is, I think, unnecessary for me to enter into or resolve the terms of that dispute for the purposes of imposing penalty.

14 The respondent is 49 years of age and is married with two children. She continues to work as a part-time nurse earning $549 a fortnight which, after payment of household expenses, leaves her very little money for general expenditure. She has borrowed a large amount of money from friends and associates to pay the costs of the Board to which I will now refer.

15 Relevant also to the penalty to be imposed is the agreement between the Legal Practice Board and the respondent to the effect that the respondent will consent to an order that she pay the Board's costs in an amount of $15,000 which I am told she has already paid. That amount has to be viewed in the context of s 123 of the 2003 Act, which imposes a maximum pecuniary penalty of $10,000 for contraventions of that section, although as against that, it is clear that a substantial portion of the Board's costs and which the respondent has paid were incurred defending an application by the respondent to have the Board's motion quashed as an abuse of process, which application was not ultimately pursued but resolved by agreement.

16 I have carefully reviewed a number of previous decisions of this Court imposing pecuniary penalties for contraventions of s 77 of the 1893 Act and s 123 of the 2003 Act. Aside from providing some general indication of the range of penalties to be imposed, it is clear that each case understandably turns very much on its own particular facts and circumstances.

17 In the present case, there is no question other than that the appropriate penalty is a fine of some amount. Obviously a custodial penalty would not be appropriate, nor can it be said that the offence was of so trivial or insignificant a nature as to warrant the imposition of an insignificant penalty.

18 To summarise therefore, in arriving at the appropriate amount of the fine to be imposed, I bring to account the circumstances of the offence and, in particular, the hardship which was occasioned to the surviving beneficiaries of the testatrix to whom I have referred. I take account of the fact that the contravention occurred in the course of a business carried on for reward, but appears to have been unwitting, and further take account of the circumstances of the respondent to which I have referred and of her responsive co-operation, at least to some extent, after being contacted by the Board. Bringing those matters to account in the light of a current maximum pecuniary penalty of $10,000 in respect of conduct of this kind, and taking into account the fact that the respondent has already paid the Board's costs in an amount of $15,000, I have concluded that an appropriate penalty in this case is a fine of $1500. That fine would have been significantly greater but for the substantial amount which the respondent has already paid by way of the Board's costs.

1. Declaration that the respondent has committed contempt.

2. The respondent pay a fine of $1500 to the Legal Practice Board within 60 days of today's date.