Supreme Court of WA|2006-10-04|Before: Hasluck J

Legal Practice Board v Frichot [2006] WASC 230 (4 October 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LEGAL PRACTICE BOARD -v- FRICHOT [2006] WASC 230

MATTER : Legal Practitioners Act 1893 (WA) as amended s 76, s 77 and s 81 and the Legal Practice Act 2003 (WA) s 123 and s 250

Legal practitioners - Prohibition upon engaging in legal practice - Motion for contempt - Respondent with legal qualifications but no practice certificate - Five separate contempt allegations - Provision of legal advice - Meaning of administration of law - Preparation of legal instruments and writings - Accounts in respect of services provided - Findings of guilty to each of five Motions for contempt - Issues as to penalty - Turns on own facts

Barristers' Board v Palm Management Pty Ltd [1984] WAR 101

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

Edward v Legal Practitioners Complaints Committee [2006] WASCA 194

Heedes v Legal Practice Board [2005] WASCA 166

Legal Practice Board v Adams [2001] WASC 78

Legal Practice Board v Mullally [2003] WASC 225

Legal Practice Board v Ridah [2004] WASC 263

Legal Practice Board v Said [2002] WASC 35

Legal Practice Board v Taylor [2005] WASC 242

Legal Practitioners Complaints Committee and Cullen [2005] WASAT 211

R v Eades (No 2) (1991) 6 WAR 532

R v Lovelady; Ex parte Medcalf [1982] WAR 65

Re A Practitioner; Ex parte Legal Practitioners Disciplinary Tribunal [2001] WASCA 204

Re Maraj (A Legal Practitioner) (1995) 15 WAR 12

Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515

Witham v Holloway (1995) 183 CLR 525

Attorney-General v Butterworth [1963] 1 QB 696

Coward v Stapleton [1953] HCA 48; (1953) 90 CLR 573

Morris v Crown Office [1970] 2 QB 114

Re Clements & Erlanger (1877) 46 LJ Ch 375

Resolute Ltd v Warnes [2001] WASCA 4

Temwood Holdings Pty Ltd v Western Australian Planning Commission [2001] WASCA 298

1 An application has been made by the Legal Practice Board for orders that the respondent, Maurice Eugene Frichot, be punished for contempt of the Supreme Court. It is said that, not being a duly certificated legal practitioner, he engaged in legal business.

2 There are five separate motions before the Court concerning a number of discrete transactions. Each transaction is said to amount to a contempt of Court by the respondent. For ease of reference, I will divide the motions into three groups; first, motions CIV 2523 to CIV 2525 of 2004 inclusive, being matters concerning the Grover family; second, motion CIV 2526 of 2004 being a matter concerning the Hughes family; third, motion CIV 2527 of 2004 being a matter concerning a debt collection agency established by the respondent.

3 The applicant was represented at the hearing before me by counsel. The respondent has legal qualifications and had previously appeared in person on his own behalf on a number of occasions prior to the hearing of the matter. However, as it happened he did not appear and was not represented by counsel at the hearing before me. I will have more to say about this later. Put shortly, having satisfied myself that he had been given notice of the hearing and of the allegations against him, I was of the view that the hearing should proceed, notwithstanding his absence.

4 It will now be useful to look at the respondent's background in more detail. In doing so, I will draw upon the affidavits lodged in support of the various motions and upon a decision of the Full Court concerning the practitioner's affairs, being Re A Practitioner; Ex parte Legal Practitioners Disciplinary Tribunal [2001] WASCA 204. For ease of reference, I will refer to this decision as the "Full Court ruling".

5 It appears from the materials before me that the respondent is the holder of a law degree and for a number of years, as a certificated legal practitioner, was a capital partner in the law firm, Kott Gunning. It seems that some years ago he served as a member of the Board of the Australian Paralympics Committee, the primary responsibility of which was the raising of funds to assist competitors competing in the Paralympics Games. He was the sole signatory to a trust account established by the Committee for the receipt of the funds collected by it.

6 On 24 November 2000 the respondent pleaded guilty in the District Court to various stealing offences committed between 18 December 1997 and 27 March 2000 in respect of funds stolen from the Australian Paralympics Committee. The stolen funds amounted to $291,422.75 in total. He was sentenced to an effective term of imprisonment of 3½ years with eligibility for parole.

7 It is apparent from the Full Court ruling that the stolen moneys were used by the respondent to pay his personal expenses and to subsidise his gambling addiction. The Legal Practitioners Disciplinary Tribunal was of the view that, notwithstanding the respondent's previous unimpeachable record, he was not a fit and proper person to practice law, for the thefts represented a gross breach of trust committed by a lawyer of apparently high standing in the community.

8 An order was sought that the respondent be struck off the Roll of Practitioners and this application was allowed by the Full Court. The materials before me included a formal certificate prepared by the Principal Registrar of the Supreme Court. The certificate establishes that the respondent was struck off as a legal practitioner pursuant to an order of the Full Court made on 18 June 2001 and that his name does not appear on the Roll of Practitioners of the Supreme Court.

9 I pause here to say that I am satisfied beyond reasonable doubt that the respondent was not a certificated legal practitioner when the events giving rise to the various motions before me took place.

10 In due course the respondent was released from prison. Towards the end of January 2002 he established a debt collection agency under the name of "All Debts Process". I will have more to say about this later when I turn to the debt collection agency matter. However, it seems that the respondent was able to operate his debt collection agency by drawing upon the services of law firms working in that field.

11 In addition, the respondent began working (to use his own words) "on a part-time basis with Colin Ritchie and his group of companies". This led to the respondent becoming involved in certain money lending transactions including the Grover matter and the Hughes matter. I will look at those matters in more detail shortly. However, it will now be convenient to look at certain statutory provisions and legal principles bearing upon the motions before me.

12 At the time the facts and matters giving rise to the motions before me occurred s 76 of the Legal Practitioners Act 1893 (WA) provided that no person other than a certificated practitioner shall act as a solicitor or carry on legal proceedings. Section 77 provided that no person other than a certificated practitioner shall 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 a 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.

13 By s 81 of the Act any person who acted contrary to such provisions was guilty of a contempt of the Supreme Court and could be dealt with accordingly by the said Court on the motion of the Legal Practice Board, being a body constituted pursuant to provisions of the Act.

14 The Legal Practitioners Act was superseded by the Legal Practice Act 2003 (WA) which came into force on 1 January 2004. By s 123 of the Legal Practice Act a person must not engage in legal practice unless the person is a certificated practitioner. The penalty for such an offence is described as $10,000. By s 250 a person who contravenes the terms of the Legal Practice Act is guilty of a contempt of the Supreme Court and may be dealt with accordingly by the Supreme Court on the motion of the Legal Practice Board. I note in passing that the contempt penalty was at large under each of the Legal Practitioners Act and the Legal Practice Act.

15 By s 37(1) of the Interpretation Act 1984 (WA) where a written law repeals an enactment the repeal does not, unless the contrary intention appears, affect previous operation of the enactment repealed or affect obligations created prior to the repeal. Various provisions of the Criminal Procedure Act 2004 (WA) deal with the prosecution of offences. However, s 183 states that the Act does not affect the authority of a court to deal with and punish a person summarily for an act or omission that is a contempt of court.

16 The general rule of the common law is that a statute changing the law ought not to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. However, the law appointing or regulating the manner in which rights and liabilities are to be enforced, or their enjoyment is to be secured by judicial remedy, is not within the application of such a presumption. Changes made in practice and procedure are applied to proceedings to enforce rights and liabilities, notwithstanding that before the change in the law was made the accrual of the rights and liabilities was complete and rested on events or transactions that were otherwise past and closed: Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261; Rodway v The Queen [1990] HCA 19; (1990) 169 CLR 515.

17 Having regard to these statutory provisions and principles, I conclude that in determining the obligations of the respondent in respect of the events in question I am obliged to refer to the relevant provisions of the Legal Practitioners Act, being the statute in force when the events occurred. However, I must refer to s 250 of the Legal Practice Act 2003 in dealing with the motions for contempt and giving consideration to matters of penalty. A full review of the various changes to the statutory regimes concerning the supervision of conduct by legal practitioners is set out in Legal Practitioners Complaints Committee and Cullen [2005] WASAT 211.

18 In Heedes v Legal Practice Board [2005] WASCA 166, being a motion for contempt brought pursuant to s 250 of the Legal Practice Act, Roberts-Smith JA observed at par 54 that contempt is a unique offence in that not only is it the only criminal offence which still exists in this State at common law, but it cannot be prosecuted on indictment and is dealt with by the civil processes of the Court, albeit that it must be proved beyond reasonable doubt: R v Lovelady; Ex parte Medcalf [1982] WAR 65 at 66 and 69; R v Eades (No 2) (1991) 6 WAR 532; Witham v Holloway (1995) 183 CLR 525.

19 His Honour went on to say that by O 55 r 2 of the Rules of the Supreme Court 1971 (WA) covers the position where a contempt is committed in the face or hearing of the Court or which consists of disobedience to a judgment or order of, or breach of undertaking to the Court. An order of committal can be made by a single Judge, but otherwise such an order could be made only by the Full Court.

20 It emerges, then, that the allegations, the subject of the motions before me, must be proved by the applicant beyond reasonable doubt. However, the procedure for acquainting the respondent with the case against him and for allowing to him an opportunity to be heard is determined by O 55 of the Rules of the Supreme Court. The relevant provisions of that Order allow for the complaint to be advanced by way of an originating motion supported by affidavit evidence. This was the procedure adopted in respect of each of the motions before me.

21 As I have indicated, the respondent appeared in person at previous interlocutory hearings in response to the court documents served upon him. It is apparent that notice of previous hearings directed to him at PO Box 137, Subiaco came to his attention. The various motions were listed for hearing before the Supreme Court on 10 August 2005 but were adjourned on that occasion at the request of the respondent who referred to certain unsworn affidavits and foreshadowed his desire to place affidavit evidence before the Court bearing upon the matters in issue.

22 On 30 March 2006, an order was made by a Master of the Court requiring the respondent to file any answering affidavits in accordance with the Order made, but no affidavits have in fact been filed and served. The Court files indicate that the respondent attended before the Master in Chambers on 19 May 2006 in the course of dealing with other interlocutory issues.

23 Accordingly, notwithstanding the severity of the orders sought by the applicant, and a degree of reluctance on my part to deal with such matters in the absence of the respondent, I am satisfied that sufficient notice of the hearing was given to the respondent, and that the Court is obliged to proceed to consider the case against him in his absence, otherwise it might be assumed by the respondent or other litigants that the usual processes of the Court can be averted or negated by simply not appearing.

24 In order to complete my review of the relevant statutory provisions and legal principles, I must look also at certain decided cases bearing upon the scheme of the legislation. In essence, it seems that the purpose of the legislation in question is to protect the public by ensuring that legal work is only carried on by certificated practitioners who are properly trained and who are subject to the professional standards and ethics of the legal profession and compulsorily insured: D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191.

25 In Edward v Legal Practitioners Complaints Committee [2006] WASCA 194 Wheeler JA observed recently at [21] that although proceedings brought to enforce professional standards are often described as "disciplinary", the purpose of the conferral of powers in that regard upon the State Administrative Tribunal, and the function of the Supreme Court in supervising practitioners pursuant to its inherent jurisdiction is, in each case, to ensure the protection of the public. See also Re Maraj (A Legal Practitioner) (1995) 15 WAR 12 at 24 - 25, per Franklyn J, and cases there cited.

26 Let me turn now to decided cases bearing upon the provisions that are said to have been infringed in the circumstances of the present case.

27 In Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 Brinsden J was of the view that the expression "administration of law" is to be read as meaning "the practice of law" and this meaning should be given to the phrase in s 77 of the Legal Practitioners Act. He went on to suggest that the practice of law includes also the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in court. See also Legal Practice Board v Adams [2001] WASC 78; Legal Practice Board v Taylor [2005] WASC 242. I take account of a full review of the decided cases bearing upon these matters undertaken by Parker J in Legal Practice Board v Said [2002] WASC 35.

28 I note that in Legal Practice Board v Mullally [2003] WASC 225 an allegation of contempt came before the Court in respect of a respondent who was once a legal practitioner. The respondent had provided some advice and assistance to a person in regard to the making of a claim for damages by that person arising out of the purchase of a motor vehicle. Justice Johnson accepted that the key issue in determining penalty in the case before her was that of deterrence. Protection of the public is both a component of that issue and a separate and essential consideration. Accordingly, any fine imposed had to be sufficiently high to achieve those aims. In her view, a fine of $8000 was appropriate in the circumstances of that case where the conduct was deliberate and had resulted in financial gain, but where there were also certain mitigating circumstances.

29 In Legal Practice Board v Ridah [2004] WASC 263 the respondent fitted out his office in a manner which suggested that he was a qualified legal practitioner and then proceeded to represent clients in various jurisdictions.

30 In the course of dealing with the matter McKechnie J made these observations at par 15:

"I turn to the question of sentence. It is necessary to clearly delineate the criminal conduct which is to be punished by me from the criminal conduct which has already been punished so as not to impose a double penalty on the respondent for the same behaviour. The essence of the criminal conduct dealt with in the District Court was fraud. The essence of the criminal conduct to be dealt with on these contempt proceedings is the engagement of an unqualified person in legal practice. In summary, the behaviour continued over a 9 month period, involved more than 80 different people and involved deceiving, amongst many others, judicial officers. The clients who were deceived were in the main vulnerable persons whose legal interests were compromised by the unskilled and unlearned actions on the part of the respondent."

31 McKechnie J went on to observe that it was as bad a case as an unqualified person engaging in legal practice as it was possible to imagine. In the end, having held that the respondent was guilty of contempt as particularised in the motion, he ordered that the respondent be sentenced to a term of imprisonment for 20 months, to be served concurrently with any sentence of imprisonment then being served, without parole.

32 Let me now turn to the various motions before me. I will commence by dealing with the Grover matters.

33 In the first Grover matter the applicant seeks orders that the respondent be punished for contempt in that during the period July 2002 to October 2003 or thereabouts he carried out work in connection with the administration of law in obtaining and acting on instructions from Valma Jean Grover and William James Grover on behalf of themselves and Heartwood Nominees Pty Ltd and in providing advice to them with respect to the default of Heartwood Nominees in making mortgage payments to Oakleigh Acquisitions Pty Ltd (in liquidation).

34 It was alleged also that the respondent, in the course of carrying out the instructions complained of, provided written advice by letter dated 22 August 2002 and attended various meetings with legal practitioners as the adviser of Mr and Mrs Grover on behalf of Heartwood Nominees (par 1(b)); further, he did draw or prepare instruments in writing affecting real or personal estate, namely, a blank letter to lenders of funds from Mr and Mrs Grover and Heartwood Nominees, a blank receipt to be completed and signed by individual lenders of funds, a blank indemnity to lenders of funds to be signed by Mr Grover, a blank notice to RSM Bird Cameron Partners from individual lenders of funds to discharge mortgage (par 1(c)).

35 This motion was supported by the affidavit of Mr Grover sworn 3 October 2004. The deponent said that he and his wife met the respondent on or around 16 August 2002 at South Perth when the respondent agreed to carry out legal work on their behalf and for their company, Heartwood Nominees. At that time their company farm was mortgaged to Oakleigh being a company associated with Graeme Grubb to secure a loan of $590,000. They had made regular payments to pay off the loan but when a liquidator of Oakleigh was appointed they ceased making repayments while waiting on a payout figure, and were then advised by the liquidator, Bird Cameron, that they were in default with the result that proceedings were commenced to have the farm repossessed.

36 Mr Grover said that the respondent commenced negotiations with Bird Cameron which led to the provision of legal advice by the respondent in the form of a letter dated 22 August 2002.

37 The 22 August Grover letter is set out beneath a letterhead which permits an inference to be drawn that the author of the letter wished it to be thought that he was the principal in a law firm, for the heading refers to: "Frichots, Principal M Frichot Llb; PO Box 137, Subiaco WA 6008". The letter acknowledges receipt of various papers bearing upon the action initiated by the liquidator for possession of the premises with a view to effecting a mortgagee sale in due course. The respondent reviews the available lines of defence and the avenues open to Mr and Mrs Grover. The respondent then observes:

"The first option is the more practical avenue as you needed to refinance the loan and would have had to provide a clear title to obtain that loan. This means that you had to pay out the liquidator to provide the new lenders a clear title against which to register their mortgage. The second option would have been available in circumstances where you had the money from a source that did not involve a new mortgage over Hillside. This was not an avenue open to you from what you had previously informed me.

Your defence in the Supreme Court was only to delay the inevitable. You will be liable not only for the costs to your solicitor but also for the costs incurred by the liquidator on a solicitor client basis. The mortgage document gives the Mortgagee the right to claim costs on that basis for any enforcement proceedings. This is an expensive exercise for you.

It is unfortunate that you did not pursue the avenue of refinancing the loan and arguing with the liquidator at a later date for any over payments.

You now have a limited time to settle with the liquidator to avoid losing the farm. You can still make a claim after settlement for any sum that you can show that you have paid but were not liable for or that you may not have received in the first place."

38 Mr Grover said that the respondent also drafted legal documentation to take to the solicitors representing he and his wife in Court as to the litigation involving Graeme Grubb. These documents included a draft defence and draft affidavits. The respondent also attended meetings as their legal adviser with various solicitors. Further, the respondent drafted documentation regarding investor loans relating to Oakleigh on behalf of Mr and Mrs Grover.

39 The background to this last matter is this. It was alleged that Mr Grubb has assembled funds from 17 lenders which he pooled through Oakleigh, and which were then lent on to Heartwood Nominees as registered proprietor of the Grover farm at Bindi Bindi. The respondent suggested that if the Grovers could obtain the agreement of the 17 lenders who pooled sums of money into Oakleigh then Mr Grover could arrange the discharge of the mortgage over the farm. To that end, the respondent prepared in blank form letters addressed to the various lenders asking them to advise a payout figure and to execute a receipt for such sum. The Grovers were also to provide an indemnity. Further, he prepared the documents mentioned in the letter including a notice to Bird Cameron to be signed by the individual lenders to the effect that those lenders were prepared to discharge the mortgage registered over the Grover farm.

40 According to Mr Grover, he took the relevant documents to all 17 lenders including Barwick Investments Pty Ltd and Malcolm John Morgan, who completed and executed the same. Most of the documents in question were exhibited to his affidavit.

41 Mr Grover said that although the respondent did not issue any accounts for the legal work he undertook other than an account dated 22 August 2002 he would telephone and ask to be sent money for his work. Exhibited to his affidavit were cheque butts evidencing payment to the respondent on 7 and 20 November 2002 in the sum of $500 each. In October 2002 Mr Grover paid the respondent approximately $1000 in cash.

42 It appears from Mr Grover's affidavit that he and his wife visited the respondent's office in Subiaco approximately 20 times in regard to the matter with Mr Grubb. The respondent's office was in a private home and was not signposted in any way that he was a lawyer. They used the respondent for all their legal work until October 2003. They ceased using him as they believed he was acting for Mr Ritchie against him when they were issued with a letter of demand for a loan of $30,000 made to them by Ritchie, such demand being made two days before the loan was due to be paid out. Mr Ritchie subsequently authorised a farmer from Bindi Bindi, Stan Lewis, to enter the Grover land to take possession of the crop. They were informed by Mr Lewis that he had authority from Mr Ritchie.

43 The applicant relied also upon the affidavit of Valma Jean Grover sworn 19 October 2004. Her affidavit corroborates the evidence of her husband. According to Mrs Grover, the respondent advised that he was able to do any legal work for them at $70 per hour. She was aware from Mr Ritchie that the respondent had spent some time in prison. She thought that he had done his time and that he was able to practice as a lawyer. She did not question why he was unable to appear in court. Exhibited to her affidavit is a letter dated 30 October 2002 from the solicitors representing Mr and Mrs Grover, Wojtowicz Kelly, evidencing that the respondent was with Mr Farmer on 25 October and 29 October 2002 when meetings were held with the solicitors about the litigation and other matters in issue.

44 It follows from earlier discussion that although the respondent foreshadowed an intention to file and serve an affidavit in support of his position, this was not forthcoming. Thus, ultimately, the only evidence bearing upon this motion consists of the affidavits of Mr and Mrs Grover mentioned earlier.

45 In the second Grover matter the originating motion dated 24 November 2004 asserts that during the period July 2002 to August 2002 or thereabouts the respondent carried out work in connection with the administration of law in obtaining and acting on instructions from Colin James Ritchie and Solitaire Investments Pty Ltd to lend money to Heartwood Nominees Pty Ltd and Mr and Mrs Grover. It is said further in par 1(b) that in the course of carrying out such instructions he prepared written instruments affecting real or personal estate being a letter of loan, a bill of sale over livestock or wool and a mortgage. Each of these instruments was dated 16 August 2002 and made between Solitaire Investments and Heartwood Nominees and the Grovers.

46 This motion was supported by the affidavit of Mr Grover sworn 3 October 2004. He said that in July 2002 his company, Heartwood Nominees, required a short term loan in order to purchase extra nitrogen to put in a farming crop. He telephoned a friend, Ms Paula Sims, who was a financial planner, to ask for her advice as to where he would be able to secure a short term loan. He met with Ms Sims a short time later to discuss the problem and she advised that Mr Colin Ritchie might be able to assist. He contacted Mr Ritchie and discussed a proposed 3 month loan of $36,000 being $30,000 in respect of principal and $6000 for interest, with a right to roll over the loan after the 3 month period.

47 On 16 August 2002 Mr and Mrs Grover met with Mr Ritchie at his home office in South Perth and were advised that he was waiting for his lawyer to arrive with the loan documents. While they were waiting, they spoke to Mr Ritchie about problems they were having with the farm and the mortgage over the farm. Mr Ritchie recommended that they speak to his lawyer as he was very experienced and only charged $70 per hour. Shortly afterwards they were introduced to the respondent. He produced the loan documentation and the Grovers were advised by him and Mr Ritchie that he had prepared the relevant documents being a letter of loan, a bill of sale and a mortgage. Mr and Mrs Grover signed the loan documents evidencing that Mr Ritchie's company Solitaire Investments Pty Ltd was lending funds to them. Each document was dated 16 August 2002.

48 According to Mr Grover, he was told that he had to pay $1500 for the preparation of the documentation. Mr Ritchie asked if he wanted to pay the amount in question separately or whether he wanted to deduct it from the loan. He requested the latter course and in the event the loan cheque he received was in the amount of $28,500 (being $1500 less than the agreed advance of $30,000). After the documents were signed, Mr Ritchie suggested that the Grovers speak separately with the respondent regarding their other legal problems. The respondent advised the Grovers that he was able to do any legal work that they needed and that he charged $70 per hour. He then gave them his contact telephone number and in due course they spoke to him about another legal problem.

49 The Solitaire Investment's letter of loan to Heartwood Nominees and the Grovers dated 16 August 2002 is exhibited to Mr Grover's affidavit. It is immediately obvious that the terms of the document are severe. The principal sum is given as $30,000. Interest is described as being calculated at the rate of 20 per cent per annum. The borrower is to pay the lender a management fee of $4500 on the date of the advance and each time the loan is renewed past its due repayment date or further extended date. There is also said to be an establishment fee of $1500 to be paid by the borrower on the acceptance of the offer.

50 A witness declaration forming part of the bill of sale evidences that the respondent, whose name appears as an attesting witness to the bill of sale, was present at 320 Railway Parade, West Leederville on 16 August 2002 when the document was executed by Mr and Mrs Grover.

51 The affidavit of Mrs Grover sworn 19 October 2004 corroborates the evidence provided by her husband. According to her, she and her husband were told by Mr Ritchie in the presence of the respondent that $1500 was to be paid to the respondent as a lawyer for preparing the loan documents. Mr Ritchie suggested that they talk to the respondent about their problems with the mortgage to Mr Grubb and his company.

52 The respondent did not present any evidence in answer to the case against him.

53 The originating motion in the third Grover matter alleges that in or about August and September 2002 at Perth the respondent carried out work in connection with the administration of the law in obtaining and acting on instructions from Mr and Mrs Grover on behalf of Heartwood Nominees to provide advice with respect to an unpaid fuel account. It is said further that in the course of carrying out the instructions the respondent provided written legal advice dated 30 August 2002 and oral legal advice on or about the same date.

54 This motion is supported by the affidavit of Mr Grover sworn 3 October 2004. He said that on or around 30 August 2002 a problem arose in relation to non-payment of a fuel account which had already been paid by his company, Heartwood Nominees. A summons had issued in respect of this account and he wanted legal advice with respect to that summons. Accordingly, he telephoned the respondent to obtain his advice and explained the details of the problem.

55 According to Mr Grover, the respondent gave advice over the telephone to the effect that all Mr Grover could do was to speak to the solicitors who had issued the summons and to get them to withdraw that summons. He advised also that Mr Grover would have to pay some of the costs associated with the summons. He asked Mr Grover to send the relevant documentation to him by facsimile transmission which Mr Grover proceeded to do.

56 Mr Grover said further that the respondent confirmed his oral advice by a letter to Mr Grover and his wife dated 30 August 2002. A copy of the subject letter (on the "Frichots" letterhead described in earlier discussion) reads as follows (omitting the inessential parts):

"I have received the papers in relation to Westfuel. The payment was received after the summons was issued. You are liable for the costs on the summons and subsequent court costs. These would amount to about $400 depending on what has been done since the summons was issued.

To set aside the judgment, you will need to file a chamber summons supported by an affidavit and you will need to appear in Court on that application and put your case as set out in the affidavit to the Magistrate.

You should in the meantime ring Arns & Associates to see if they will consent to the judgment being set aside and make a deal on costs to finalise the matter.

Give me a call on 0438 320 388."

57 Mr Grover went on to say in his affidavit that he gave instructions to the respondent to act on his advice. Later, the respondent told him by telephone that he had contacted the solicitors who had issued the summons and that it was withdrawn. The respondent told him on the telephone that the respondent's fee for this advice was $300. He said also that he would not be sending an account. Mrs Grover then sent a cheque in the amount of $300 to the respondent on 17 September 2002 but they were never sent a receipt for the payment.

58 The affidavit of Mrs Grover sworn 19 October 2004 corroborates the evidence of her husband in regard to this matter. The respondent did not file and serve any affidavit in answer to the case against him.

59 The originating motion in this matter alleges that during the period December 2001 to in or about August 2003 at Perth the respondent did directly or indirectly carry out work in connection with the administration of law in obtaining and acting on instructions from Colin James Ritchie and Felspar Quarries Pty Ltd to lend money to Beverley Ann Hughes and Christine Victoria Hughes (par 1.1).

60 Further, it is alleged that in the course of carrying out such instructions the respondent prepared instruments affecting real or personal estate being a letter of loan from Felspar Quarries Pty Ltd to Beverley and Christine Hughes, a second mortgage over the whole of the land comprised in Certificate of Title Volume 1945 Folio 297, a notice of demand on or about 21 August 2002, a letter of loan from Felspar Quarries Pty Ltd to Beverley and Christine Hughes on or about 21 August 2003, and a second letter of loan from Felspar Quarries to Beverley and Christine Hughes on or about 21 August 2003.

61 This motion is supported by the affidavit of Sandra Ann Hughes sworn 18 October 2004. She said that in approximately 2001 she was seeking a short term loan to pay for incidental bills. In order to do this, she decided to use the family property at Henley Brook which is her place of residence as security. The property was registered in the name of her daughters, Beverley Ann Hughes and Christine Victoria Hughes.

62 Mrs Hughes said that at the time the property was mortgaged to GE Mortgage Solutions Ltd. She approached that company to extend the mortgage but they would not agree to do so, and a number of banks and financial institutions rejected her application for finance. She then contacted a financial planner, Ms Paula Sims, who suggested an approach to Mr Colin Ritchie. Mrs Hughes said that she negotiated with Mr Ritchie by telephone for some weeks over the terms of a loan until they finally came to an agreement on the terms by which his company, Felspar Quarries Pty Ltd, would lend money to her daughters. Such a loan was to be secured by a second mortgage registered over the property. Mr Ritchie advised that his lawyer, Maurice Frichot, would draft the necessary documents.

63 Mrs Hughes went on to say that in due course the person telephoned her and introduced himself as Maurice Frichot. He advised that the necessary documents for the loan had been prepared by him. He asked whether he could deliver the documents to her daughter Beverley at her place of work. He was told that he could do so and he was given a contact telephone number.

64 In due course Beverley showed certain documents to Mrs Hughes, being a letter of loan and a second mortgage over the property which she said had been delivered to her by the respondent. A Credit Act declaration was not part of the documents provided to Beverley. The documents were signed by each of the daughters in their mother's presence. In January 2002 Mrs Hughes delivered the signed documents to Mr Ritchie at his home.

65 It is apparent from the Hughes affidavit that the mortgage was registered on 3 February 2003 and bearings number I371716, being a mortgage dated 17 January 2002. Mrs Hughes had no further contact with the respondent until approximately May 2003 when she received a notice of demand dated 21 August 2002 from Colin Ritchie. She did not know why there was a delay in the service of the notice of demand. Later, the respondent arrived at her property with a writ of summons which he served upon her.

66 Mrs Hughes said that at the time of service of the writ she was in discussion with the National Australia Bank Ltd which had approved refinancing of the property and she was waiting on the final documentation to be processed. The loan from the National Australia Bank would have been used to pay out the loan from Mr Ritchie's company. She advised Mr Ritchie of this proposal with the National Australia Bank.

67 It seems that the mortgage broker of Mrs Hughes, Mr Paul Hansbury, directed a contract to her which he wanted signed whereby Mr Ritchie's company was to be repaid his loan, and the existing second mortgage to his company was to be replaced with a first mortgage to the National Australia Bank and a second mortgage to Mr Ritchie's company for a higher amount.

68 As a result of information she had received, Mrs Hughes contacted the Finance Brokers Supervisory Board. In due course, proceedings were brought in the Commercial Tribunal by her daughters against Felspar Quarries. During a hearing, which she attended on 9 December 2003, the respondent was called as a witness. Counsel for Felspar Quarries led evidence from the respondent about the respondent delivering documents to Beverley for execution, the return of the documents in question to Mr Ritchie and the registration thereof. A copy of the transcript of these proceedings was exhibited to her affidavit. I note in passing that at page 50 of the transcript concerning the hearing on 9 December 2003 the respondent asserted in the course of his evidence that the letter of loan which he had handed to Beverley Ann Hughes "was prepared by me, working for Colin Ritchie company Felspar Quarries ...".

69 Mrs Hughes said further that she was never issued with an invoice for the mortgage. However, in January 2002, she paid $1400 to Felspar Quarries at the request of Mr Ritchie for what he told her was the "legal work". Despite her asking Mr Ritchie for a receipt for the amount in question, she has never received a receipt. Mr Ritchie advised her that a receipt was to come from the respondent. She has not been able to locate the cheque butt evidencing her payment. On 26 August 2003 and 9 September 2003 she sent facsimile transmissions to Mr Ritchie requesting an account for the sum of $1400 paid by her.

70 It is material to note that the letter of loan describes the principal sum as $30,000 being an amount lent by Felspar Quarries Pty Ltd to Beverley and Christine Hughes. Interest is said to be calculated at the rate of 15 per cent per annum. The borrower is to pay the lender a management fee of $4875 on the date of the advance and each time the loan is renewed past its due repayment date or further extended date. There is also an "establishment fee" of $1400 to be paid by the borrower on the acceptance of the offer.

71 This motion is supported also by the affidavit of Beverley Ann Hughes sworn 20 October 2004. She referred to her mother being involved in loan negotiations with Mr Ritchie and of being told by her mother that the loan documents had been prepared and that Mr Ritchie's representative would arrange to deliver the documents to Beverley at work.

72 She said that at about 3.30 pm on a work day in mid to late January 2002 she met a person outside the newsagency at the Kings Hotel close to her place of work in the Law Courts who introduced himself to her as Maurice Frichot. He showed her certain documents in an envelope. He said that there were three copies of each of the documents which needed to be signed. The documents in the envelope were the letter of loan and second mortgage. He then handed her the envelope containing the documents. In doing so, Maurice Frichot said "these are the loan documents that have been drafted". That night Beverley took the documents home and she and her sister Christine looked through them. As they were the registered owners of the property they signed the letter of the loan and the second mortgage and gave them to their mother to arrange for them to be returned to Mr Ritchie.

73 That was her only involvement in the matter until in or around February 2003. At that time, she was working at Births, Deaths and Marriages Registry. She went to the reception where she saw the man she knew as Maurice Frichot. He handed her a document which was a court summons and said it was for her.

74 She went on to say that in or about July or August 2003, Mr Frichot came to the family property in Henley Brook one Saturday morning. He drove his car down to the stables. She went out and saw him and told him that she did not like the fact that he had come to the stables unannounced and uninvited. He did not respond to this but handed a document to her which was a judgment summons. He stayed at the property until Christine returned and then handed her a document. Beverley later looked at Christine's document which was the same as the document which Mr Frichot had handed to her.

75 Another affidavit was received in evidence being that of Paul Hansbury sworn 9 November 2004. He said that in September 2002 he was contacted by Mrs Hughes in his capacity as an insurance broker. It seemed that GE Mortgage Solutions Ltd would not agree to an extension of her mortgage so he referred to the prospect of looking to other lenders. Some four or five months later Mrs Hughes contacted him again to say that she needed to pay out a loan from a company associated with Mr Colin Ritchie as soon as possible, namely, Felspar Quarries.

76 Mr Hansbury looked around for other sources of financing and was eventually able to negotiate a loan with National Australia Bank in mid 2003. He obtained provisional approval from National Australia Bank for refinancing in the amount of $267,500 being for $233,000 to pay out the GE debt and $30,000 to pay out the Felspar debt. During the process of negotiation with National Australia Bank, Mr Ritchie and Mr Maurice Frichot were in regular contact with him regarding the payout of the Felspar loan. They advised that the debt was $30,000 plus interest. National Australia Bank refused to give final approval for its loan until the second mortgage to Felspar was discharged. At the same time, Mr Ritchie refused to remove the second mortgage until his loan had been paid out. He subsequently advised that he was prepared to settle his loan for $50,000. Mr Hansbury spoke to Mr Frichot about this and Mr Frichot advised that he would negotiate with Mr Ritchie.

77 Mr Hansbury said in his affidavit that he knew Mr Frichot was working for and with Mr Ritchie but he did not know in what capacity. On 21 August 2003, Mr Frichot advised him that he had drafted a new loan contract for Mrs Hughes to sign. A copy of the contract was sent to Mr Hansbury via a facsimile transmission at 9.27 am on that day. The fax in question from the respondent to Mr Hansbury was exhibited to the latter's affidavit and reads as follows:

"Paul

Felspar Quarries Pty Ltd is prepared to discharge and re-register its mortgage on the terms contained in the letter of loan attached. Felspar is to receive $36,000 at settlement and the new mortgage on similar terms will be for $30,285 which includes the establishment fee of $2,000. On receipt of the signed offer, faxed to 9450 5550 the necessary papers will be prepared by Felspar Quarries Pty Ltd.

Maurice for Felspar Quarries Pty Ltd."

78 Later on the day of 21 August 2003 Mr Hansbury received at 3.41 pm a further fax with a further loan agreement from Mr Frichot which had the principal sum of the loan as $38,816.51. That fax reads as follows:

"Paul,

This is the replacement letter of loan for the Hughes. I apologise for the error in the principal sum earlier. This document is the basis of Felspar Quarries Pty Ltd remortgaging the Hughes.

Regards

Maurice for Felspar Quarries Pty Ltd"

79 Mr Hansbury said that he read each of the letters of loan and thought that they were unconscionable. After having obtained a copy of the original loan contract from Mrs Hughes, Mr Hansbury resolved that Mrs Hughes should report the matter to the Finance Brokers Supervisory Board. He advised Mrs Hughes that she had two choices being to either send a letter to the Board, which he drafted for her, or to sign the letters of loan at the risk of losing her house.

80 The respondent did not file and serve any affidavits in answer to the case against him.

The debt collection agency matter - CIV 2527 of 2004

81 The originating motion in this matter contains an allegation that in or about September 2002 at Perth the respondent did directly or indirectly sue out and commence two plaints in the Local Court of Western Australia (par 1(a)); that he carried out work in connection with the administration of law being the obtaining and acting on instructions to prepare two plaints in the Local Court (par 1(b)); that he prepared writing relating to proceedings at law namely the two Local Court plaints previously mentioned being PE 17695/2002 between Mark Xavier Frichot as plaintiff and Media IQ Corporations Pty Ltd as defendant and plaint number PE 17696/2002 between Mark Xavier Frichot as plaintiff and Adam Preston Blake as defendant.

82 The motion is supported by the affidavit of Andrew David Read sworn 11 October 2004. The deponent said in his affidavit that at all material times he was a sole practitioner who was previously acquainted with the respondent as a consequence of working with him at the law firm, Kott Gunning. As the result of a visit by the respondent to the deponent's office in July 2002 the deponent understood that the respondent had been struck off the Roll of Practitioners and had recently been released from prison.

83 The deponent went on to say that the respondent enquired whether he could utilise the deponent's office as a post office address and to assist generally with the conduct of any debt collection matters being handled by the respondent's agency including actions in the Local Court. The respondent would seek instructions from clients and then brief the deponent if court proceedings had to be commenced.

84 The deponent said that he thought that it was imperative for him to maintain control of the files and client instructions once court proceedings were commenced. He indicated that he would be prepared to assist the respondent on a trial basis. However, this was subject to certain strict provisos including that the respondent was not to personally undertake any legal work, he was to discuss with the deponent each and every debt collection prior to him preparing any documentation for proceeding in the Local Court, the deponent was to peruse, settle and sign each summons before the same was filed at the Local Court and served on any party, the respondent would perform all the clerical and non-legal work in relation to each matter. The respondent gave an oral assurance that he would comply with each of these provisos.

85 It appears from the supporting affidavit that the deponent did not give the respondent authority to sign any court documentation in the name of the deponent's firm. The respondent had advised that the deponent would receive payment for his work calculated on the solicitor's scale of costs. He suggested also that the deponent open one file for each debt collection matter and that it be opened in the respondent's name as the client.

86 During the course of the initial meeting, the respondent gave Mr Read details about the first matter in which the latter's assistance was required. This was a Local Court matter of Potkin v Jankarta. The matter related to a warrant of execution against the defendant. The respondent required Mr Read to settle and sign the Local Court praecipe for warrant of execution. The respondent then proceeded to draft the warrant. Mr Read settled and signed the document and gave it to the respondent to file and serve. A copy of the praecipe for warrant of execution was exhibited to the affidavit of Mr Read. I note in passing that the signature (albeit illegible) appears to be that of an individual, positioned above the typed phrase "Andrew Read & Associates".

87 Mr Read went on to say in his affidavit that he could not recall having signed any other documents in relation to the arrangements made with the respondent. However, he is now aware that a summons was issued in the name of Andrew Read & Associates being plaint number 13728/2002. A copy of the document in question was exhibited to Mr Read's affidavit and this may be contrasted with the document mentioned a moment ago in that the handwritten signature appears as "Andrew Read & Ass" which is presented in conjunction with the phrase "Andrew Read & Associates, solicitors for the plaintiff". Mr Read said in his affidavit that the signature that appears on the bottom of the summons is not his signature. He has never signed documents in the name of Andrew Read & Associates and he always uses his own signature as appears on the praecipe for warrant of execution in the Potkin v Jankarta matter mentioned earlier. He is of the view that the respondent signed the summons without his consent and knowledge, and only consulted Mr Read about the matter when the warrant came to be issued.

88 Mr Read said that on or about 18 July 2002 he received a telephone call from the respondent to say that he had another Local Court summons for a debt recovery matter, upon which he required Mr Read's assistance. He made an appointment to see Mr Read at 4 pm on the same day regarding a debt collection for Paula Sims. At the meeting, they discussed the matters giving rise to the right of recovery. To the best of Mr Read's recollection, the respondent arrived with the Local Court summons in draft form. Mr Read settled it, signed it, and gave it to the respondent to file and serve.

89 The deponent said that after the two initial matters relating to Potkin and Sims, he did not receive any further instructions or hear from the respondent for some time. This did not concern him as the respondent had indicated that he would only require Mr Read's services on an occasional basis. The only other contact Mr Read had with the respondent around this time was when Mr Read engaged the respondent to serve court documents in relation to certain claims. He paid the respondent for his services in response to an invoice.

90 Mr Read said that on the morning of Tuesday, 27 September 2002 he received two notices from the Local Court Registry, each being a Local Court Notice of Entry of Intention to Defend in the plaints of Mark Xavier Frichot v Adam Blake Preston (Local Court plaint number PE 2002/017696) and Mark Xavier Frichot v Media IQ Corporation Pty Ltd (Local Court plaint number PE 2002/017695). The deponent was deeply concerned about receiving these notices as he had never received any instructions from the respondent or either of the parties named as plaintiffs and nor were any of the parties his clients. It occurred to him that the plaints were further debt collection actions commenced solely by the respondent, having regard to the fact that the plaintiff had the same surname as the respondent.

91 Mr Read was totally unaware of the nature, or the facts, of either of the two plaints being the subject of the notices. The respondent had never contacted the deponent, either in person, by mail or by telephone to discuss these plaints and he had never at any time obtained the deponent's authorisation or consent to issue any proceedings on behalf of the plaintiff, Mark Xavier Frichot, in the name of Andrew Read & Associates or to use that law firm as the address for service. The deponent had not seen, settled or signed any summons or other process in these plaints and was totally unaware of them until the notices mentioned earlier were received by him.

92 Mr Read said that he was greatly concerned by what had occurred as this breached the oral understanding and arrangement made with the respondent in that the latter was not to issue any process in the name of Mr Read's firm without Mr Read's prior inspection, settling and signing of the process. Further, Mr Read believed it also potentially exposed him to professional indemnity risks because of his lack of knowledge and control over the two plaints concerned.

93 On 27 September 2002 Mr Read attempted to contact the respondent by telephone to find out why he had issued the plaints using Mr Read's name and without his consent. Mr Read was unable to make contact with the respondent. Accordingly, after conferring with a colleague, Mr Read contacted the Local Court with a view to getting off the record.

94 Mr Read eventually ascertained that the respondent was in France visiting relatives. On 8 October 2002 Mr Read managed to contact the respondent in Paris by telephone on which occasion Mr Read expressed his annoyance as to what had happened. Arrangements were made for the two men to meet at Mr Read's office on Monday, 14 October 2002 upon the respondent's return to Perth. Having given the matter further thought, Mr Read contacted the respondent by telephone for a second time in France on 11 October 2002 about the matter. On this occasion the respondent was very apologetic that he had not told Mr Read anything about the plaints before he left for overseas. He said that he had in the interim transferred the conduct of both matters to another firm of solicitors. It was during this second telephone call that Mr Read terminated the arrangements previously made with the respondent.

95 On 14 October 2002 Mr Read proceeded to draft the Notices of Ceasing to Act in respect of each of the subject plaints and attended at the Local Court Registry in person to file the relevant documents. Subsequently, Mr Read received one further communication from the respondent in the form of a letter dated 14 November 2002 on the respondent's "All Debts Process" letterhead. The letter requested that an invoice for services be sent in respect of the matter of Paula Sims and that Mr Read re-issue a copy of warrant of execution for registration at the Titles Office in the matter of Potkin. In the event, Mr Read decided not to respond to this letter having regard to his earlier conversations with the respondent and his decision to terminate the arrangements made previously.

96 Mr Read did not have any further involvement with the respondent or his debt collection agency after he terminated the agreement. A copy of each summons issued on behalf of Mark Xavier Frichot was exhibited to Mr Read's affidavit. Each summons includes particulars of the plaintiff's claim expressed in a succinct form sufficient to comply with the procedural requirements of the Local Court.

97 As to this matter also, the respondent did not file and serve any affidavit bearing upon the case against him. In this case, as in the matters the subject of the other motions the documents exhibited to the supporting affidavit are entirely consistent with the assertions made on oath by the deponent and corroborate the allegations made against the respondent.

98 In the absence of answering evidence on affidavit from the respondent, I am satisfied beyond reasonable doubt, in this case as in the other cases, that the assertions of fact contained in the affidavits relied upon by the applicant have been established. However, I must now give consideration to the application of the statutory provisions and legal principles mentioned earlier to the factual circumstances of each case before arriving at any conclusion as to whether the respondent is in contempt as alleged by the applicant in respect of each matter.

99 The applicant alleges in respect of each of the Grover matters that the respondent unlawfully carried out work in connection with the administration of law. It emerges from my review of the decided cases that the expression "administration of law" can be read as meaning the practice of law which includes the giving of legal advice to others as to their rights and obligations under the law and the preparation of legal instruments by which legal rights are obtained, secured or given away.

100 As to the first Grover matter, the respondent's letter dated 22 August 2002 establishes clearly that the respondent held himself out as a person with legal qualifications who was prepared to and did offer legal advice to Mr and Mrs Grover as to how they should deal with the problem concerning mortgage payments due to Oakleigh. The letterhead used by the respondent and the tenor of the letter itself shows that the respondent was holding himself out as a person capable of advising them and who was skilled in the practice of the law. It is clear also that the respondent was involved in the preparation of legal instruments and writings which were related to the advice he gave to Mr and Mrs Grover and to their company. It is clear also from the evidence given by Mr and Mrs Grover and the related documents including the respondent's invoice dated 22 August 2002 that the respondent was minded to charge for his services and did so in the manner of a legal practitioner. Accordingly, for these reasons, I am satisfied beyond reasonable doubt that the respondent was guilty of contempt in respect of each matter alleged in the motion.

101 In dealing with the various Grover matters, I consider that I am entitled to consider the evidence directed to these matters as a whole. Accordingly, the presence of the respondent's letter dated 22 August 2002 can be viewed as part of the matrix of facts and circumstances within which the second and third matters fall to be considered. Accordingly, as to the second matter, I am satisfied that the respondent presented himself essentially as a person acting in an independent or quasi independent capacity, who was acting as a lawyer in preparing the relevant documentation concerning the loan arrangements. I am able to infer also from the documents, the sequence of events and the relevant conversations that the respondent prepared the documents in question and was thus involved in practising law. Further, he charged for his services. I am satisfied that the allegations, the subject of this motion, have been made out.

102 For similar reasons, I am satisfied that the allegations, the subjection of the motion in the third Grover matter, have been made out. In addition to my earlier observations, I note that, as to this matter, the respondent's letter dated 30 August 2002, in its own terms, reflects advice given by the respondent as to the steps to be taken in setting aside judgment or otherwise in dealing with the claim being advanced by the plaintiff.

103 As to the Hughes matter, I am satisfied, having regard to the sequence of events described in the affidavits relied upon by the applicant, that the respondent was actively involved in the preparation of instruments and writings affecting the rights of Mrs Hughes and was thus involved in the administration of the law. This is reinforced by my finding that he was remunerated for his services as alleged. It is clear from the respondent's facsimile transmissions to Mr Hansbury on 21 August 2003 that he was acting in the manner of a legal practitioner in representing Felspar Quarries. Accordingly, I am satisfied that the allegations, the subject of the motion concerning this matter, have been established beyond reasonable doubt and that the respondent is guilty of contempt as alleged.

104 As to the debt collection agency matter, it is clear from Mr Read's affidavit that the respondent acted in an unauthorised manner in filing court documents at the Local Court which had obviously been prepared by him but which were not authorised by Mr Read. These documents were obviously prepared with an eye to the requirements of the procedures in that jurisdiction and pursuant to an intent to advance the claims of persons from whom the respondent had obtained instructions. It is quite clear that in taking these various steps the respondent was practising law and was carrying out work in connection with the administration of the law. Accordingly, I am satisfied beyond reasonable doubt that the allegations, the subject of this motion, have been made out and that the respondent is guilty of contempt as alleged.

106 The materials before me at the hearing included an outline of the applicant's submissions. The author of the outline referred to Ridah's case (supra) and Mulally's case (supra) and submitted that as the nature of the penalties open to this Honourable Court appeared to be at large consideration should be given to imposing a suspended period of imprisonment with respect to CIV 2523 of 2004 (the first Grover matter) and CIV 2527 of 2004 (the debt collection agency matter) and that the respondent be ordered to pay a substantial fine with respect to the remaining matters.

107 At the conclusion of the hearing I asked counsel for the applicant to provide more detailed submissions concerning the powers of the Court with respect to penalty. I have now received the applicant's "Submissions as to Penalty" dated 28 August 2006. Having done so, I am of the view (as anticipated by the further submissions) that the respondent should be afforded an opportunity to be heard as to penalty before any penalty is imposed, and to be heard (if that is his wish) as to any of the matters reflected in the submissions.

108 Accordingly, after handing down these reasons for decision, I will give directions for the service of these reasons and the applicant's submissions as to penalty, and for a further hearing with respect to this matter.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LEGAL PRACTICE BOARD -v- FRICHOT [2006] WASC 230 (S)

MATTER : Legal Practitioners Act 1893 (WA) as amended s 76, s 77 and s 81 and the Legal Practice Act 2003 (WA) s 123 and s 250

Practice and procedure - Contempt - Summons to set aside judgment against contemnor - Application by respondent to set aside orders on basis that no notice of hearing was received - History of failure to comply with previous orders and directions - Sufficient notice of hearing held to have been provided to respondent with the result that an opportunity to be heard was afforded - Whether findings as to liability for contempt should be set aside in any event - Whether respondent able to demonstrate a good defence on the merits - Application to set aside dismissed

Rules of the Supreme Court 1971 (WA), O 12(1), O 34(1), O 34(3), O 55, O 58 r 17, O 58 r 18, O 58 r 22

Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383

Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87

Heedes v Legal Practice Board [2005] WASCA 166

Keyside Investments (WA) Pty Ltd v Quartz Water Leonora Pty Ltd [2001] WASCA 156

Legal Practice Board v Frichot [2006] WASC 230

Legal Practice Board v Taylor [2005] WASC 242

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

R v Lovelady [1982] WAR 65

Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239

1 The Legal Practice Board by five discrete originating motions sought orders that the respondent, Maurice Eugene Frichot, be punished for contempt of the Supreme Court. In each case, it was said that he had engaged in legal business while not being a duly certificated legal practitioner.

2 The subject motions were supported by the affidavits of various complainants setting out the circumstances of each matter. As appears from the lengthy written judgment now described as Legal Practice Board v Frichot [2006] WASC 230, I was satisfied that the facts and matters said to constitute a contempt of court in each case had been established beyond reasonable doubt. I will call this the "2006 judgment".

3 The respondent had been representing himself during the course of the proceedings but failed to appear at the hearing of the matter on 7 August 2006. Towards the end of the 2006 judgment I said that the respondent should be afforded an opportunity to be heard as to penalty before any penalty was imposed. Programming orders to that end were then made which included provision for personal service upon the respondent of the reasons for decision and the applicant's submissions as to penalty.

4 At that stage the respondent instructed solicitors to act on his behalf. His solicitors entered an appearance. They have taken out a chamber summons with a view to setting aside "the orders made by the Honourable Justice Hasluck in Chambers on 4 October 2006". I will call these the "4 October orders".

5 The respondent seeks to set aside the 4 October orders pursuant to O 34 r 3 of the Rules of the Supreme Court on the grounds that "the respondent received no notice of the hearing and was absent at the hearing". An order is also sought that the time to bring the application be extended to such time as the Court deems just.

6 Before dealing with the issues raised by the chamber summons, it will be useful to begin by looking at the background to the matter, and at the history of the proceedings. Some of this appears in the 2006 judgment.

7 The respondent was for many years a certificated legal practitioner and a partner in a leading law firm in Perth. However, on 24 November 2000 he pleaded guilty in the District Court to various stealing offences committed between 18 December 1997 and 27 March 2000 in respect of funds stolen from the Australian Paralympic Committee. He was sentenced to an effective term of imprisonment of 3½ years with eligibility for parole. He was struck off the Roll of Practitioners pursuant to an order of the Full Court made on 18 June 2001.

8 In due course the respondent was released from prison. Towards the end of January 2002 he established a debt collection agency under the name of "All Debts Process". He also began working on a part-time basis with a businessman named Colin Ritchie and the latter's group of companies. It was later alleged by the Legal Practice Board that in the course of these activities the respondent carried out work in connection with the administration of law contrary to certain provisions of the Legal Practitioners Act 1893 (WA).

9 Towards the end of 2004 the Legal Practice Board issued five originating motions seeking orders that the respondent be punished for contempt of court. There were three motions concerning the Grover matters (CIV 2523/04, CIV 2524/04 and CIV 2525/04), one motion concerning the Hughes matter (CIV 2526/04) and one motion concerning the debt collection agency matter (CIV 2527/04).

10 The facts and matters underlying the complaints reflected in the five subject motions and related affidavits are described at length in the 2006 judgment. The complaints are dealt with under headings corresponding to the shorthand descriptions I have just used. I will return to the relevant facts and matters later. However, as an aid to exposition with respect to the applications to set aside presently before me, I note in passing that the evidence against the respondent included a letter dated 22 August 2002 written by him on a letterhead which suggested that he was a principal in a law firm. The letterhead included these details: "Frichots, Principal M Frichot Llb; PO Box 137, Subiaco WA 6008". In regard to the debt collecting agency matter, the Legal Practice Board relied also upon affidavit evidence that the letterhead of the respondent's firm described its address as: "All Debts Process, PO Box 137, Subiaco, 6008".

11 It appears from the 2006 judgment that the Legal Practitioners Act 1893 (WA) was superseded by the Legal Practice Act 2003 (WA) which came into force on 1 January 2004. Having regard to certain principles of statutory interpretation, I concluded that the liability of the respondent was to be determined in accordance with the Legal Practitioners Act, being the statute in force when the events occurred. However, it was necessary to refer to s 250 of the Legal Practice Act in dealing with the five subject motions for contempt and giving considerations to matters of penalties. Section 250 provides that a contravening person is guilty of a contempt of the Supreme Court and may be dealt with accordingly by the Supreme Court or a Judge in Chambers on the motion of the Complaints Committee or the Board.

12 I noted also, having regard to Heedes v Legal Practice Board [2005] WASCA 166, that contempt was a unique offence in that not only is it the only criminal offence which still exists in this State at common law, but it cannot be prosecuted on indictment, and is dealt with by the civil processes of the Court, albeit that the matters complained of must be proved beyond reasonable doubt. I concluded that the procedure for acquainting the respondent with the case against him and for allowing to him an opportunity to be heard is determined by O 55 of the Rules of the Supreme Court 1971 (WA) and the Rules concerning originating motions. The Rules in question allow for an allegation of contempt to be advanced by way of an originating motion supported by affidavit evidence. That was the procedure adopted in respect of each of the five subject motions that were brought before the Court in the present case.

13 The procedural history of the matter is set out in the affidavit of Wendy Sara Meggison sworn 20 November 2006. She is a solicitor in the employ of the solicitors for the Legal Practice Board.

14 It appears that on 24 November 2004 the applicant's solicitors filed the five originating motions mentioned earlier. I digress briefly to note that the nature and contents of the various originating motions are described in the 2006 judgment. There appears to be no dispute that in each case the motion set out with particularity the nature of the complaint being made.

15 For example, as to motion CIV 2523/04, being the first of the three Grover matters, it is apparent from the originating motion that the principal order sought was that the respondent be punished for contempt of this honourable Court in that, not being a duly certificated legal practitioner, during the period from in or about July 2002 to October 2003 or thereabouts at Perth he directly or indirectly acted in a way specified in the motion that was said to justify the making of the orders sought.

16 The motion refers to engaging in work in connection with the administration of law in obtaining and acting on instructions from Mr and Mrs Grover (par 1(a)) providing written advice to them by letter dated 22 August 2002 and attending various meetings with legal practitioners as their adviser (par 1(b)); drawing or preparing or causing to be drawn or prepared certain specified instruments in writing relating to, dealing with or affecting real or personal property (par 1(c)).

17 On 26, 27 and 30 November 2004 the applicant's solicitors attempted to effect service of the originating motions upon the respondent, by way of a process server, at 320 Railway Parade, West Leederville in the State of Western Australia. The processor was unable to effect service. On 3, 4 and 6 December 2004 a further attempt was made to effect service of the motions upon the respondent, by way of a process server, at 320 Railway Parade, West Leederville. The process server was advised that the respondent no longer resided at that address.

18 The matter was listed for hearing in Masters' Chambers on 7 and 21 December 2004 but as service had still not been effected upon the respondent on each occasion the matter was ultimately adjourned to 2 February 2005. At that date, as service had not been effected, the action was adjourned to 2 March and subsequently to 30 March 2005.

19 On 23 March 2005, after numerous failed attempts to effect service upon the respondent, the applicant's solicitors effected service of the originating motions upon the respondent, by way of a process server, at Subiaco Post Office, Rokeby Road, Subiaco.

20 The respondent did not file any documents in any of the proceedings which indicated that his address for service was 320 Railway Parade, West Leederville. The action came before Master Newnes on 30 March 2005. The respondent appeared in person on that occasion and was ordered to file and serve affidavits in opposition to the originating motions by 20 April 2005. The action was otherwise adjourned to 11 May and then to 18 May 2005. The respondent did not then in compliance with the order file and serve sworn affidavits in opposition to the originating motions.

21 By letter dated 28 April 2005 the applicant's solicitors wrote to the respondent and, amongst other things, informed him that the applicant's solicitors presumed that he did not intend to file any affidavit material and confirmed that their instructions were to seek a fine for the less serious matters and a suspended period of imprisonment for the more serious matters. This letter was addressed to the respondent at 320 Railway Parade, West Leederville. The letter was mailed to that address because documents had been successfully served on the respondent at that address in 2001 in relation to another matter. Although the applicant's solicitors had been unable to effect service at that address in relation to these proceedings, it was suspected that the respondent might still reside there.

22 By facsimile letter dated 18 May 2005 the respondent wrote to the applicant's solicitors requesting a further two week adjournment so that he could "prepare affidavits to file in the matter". His postal address was given as: "PO Box 137 Subiaco WA 6008". The facsimile also indicated that the respondent's mobile telephone number was 0438 320 388. The address in question is listed in the White Pages as the postal address for All Debts Process.

23 A business names extract created by the Department of Consumer and Employment Protection on 30 September 2004 in relation to All Debts Process identifies the respondent as one of the person carrying on that business from 27 November until 13 December 2001 and lists the principal place of business as 320 Railway Parade, West Leederville WA 6007. A certain Rilda June Rea was identified as one of the persons carrying on the business from 27 November 2001 and became the only person listed as carrying on that business from 13 December 2001.

24 The matters the subject of the originating motions came before a Master in Chambers on 18 May 2005 and was adjourned to a Judge in Chambers on a date to be fixed. By letter dated 19 May 2005 the applicant's solicitors wrote to the respondent. This was addressed to the respondent at PO Box 137, Subiaco WA 6008. By letter dated 20 June 2005 the applicant's solicitors wrote to the respondent at the same address.

25 On 27 June 2005 the applicant's solicitors received a letter dated 23 June 2005 from the Listings Supervisor of the Supreme Court. A copy of this letter was mailed to the respondent at the Subiaco post box address. By letter dated 4 July the applicant's solicitors wrote to the respondent at the Subiaco post box address informing him that the matter was listed for hearing on 10 August 2005.

26 On 7 July 2005 the applicant's solicitors received a copy of a letter dated 6 July 2005 from Malcolm McCusker QC to the respondent, being a letter sent to the Subiaco post box address.

27 By email dated 9 August 2005 the applicant's solicitors received an email from the respondent with five attachments. The attachments were copies of unsworn affidavits of the respondent in respect to the five originating motions. These unsworn affidavits refer to the respondent's address as being 320 Railway Parade, West Leederville.

28 On 10 August 2005 the applicant's solicitors wrote to the respondent by email to his account at "alldebts@bigpond.net.au" enclosing an outline of the applicant's submissions. Receipt of this document was acknowledged.

29 The matter came before Le Miere J on 10 August 2005. On that occasion the respondent appeared in person and indicated that he intended to plead guilty to the various motions issued against him if various factual bases could be agreed. He agreed to meet with a solicitor from the applicant's solicitors with a view to refining issues so that the matter could then proceed by way of a guilty plea. The matter was adjourned sine die.

30 A meeting was scheduled to take place between the respondent and Mr B Goetze, a solicitor with the applicant's solicitors having the conduct of the matter at that time, at the offices of the applicant's solicitors on 11 August 2005. It seems that the respondent left the offices in question just before Mr Goetze was about to meet with him.

31 By letter dated 23 August 2005 the applicant's solicitors wrote to the respondent at 320 Railway Parade, West Leederville requesting an alternative time to meet. No response was received in relation to that letter. On 2 June 2006 Mr Goetze spoke with the respondent by telephone and an arrangement was made for the respondent to meet with Mr Goetze at the offices of the applicant's solicitors on 6 June 2006. It seems that the respondent failed to keep that appointment.

32 On or about 23 June 2006 the applicant's solicitors received a letter dated 22 June 2006 from the Listings Supervisor of the Supreme Court indicating that the matter was listed for hearing on Monday, 7 August 2006 at 10.30 am. A copy of the letter had been sent to the respondent at the Subiaco post box address. By letter dated 26 June the applicant's solicitors wrote to the respondent noting that the matter was listed for hearing on Monday, 7 August 2006 at 10.30 am. A copy of the letter was sent to the respondent at the Subiaco post box address. The respondent did not advise the applicant's solicitors that he did not receive mail addressed to him at the Subiaco post box address. As at 11 November 2006 the address in question was the business address of All Debts Process.

Legal Practice Board v Frichot [2006] WASC 230

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (472 paragraphs)

Legal Practice Board v Frichot [2006] WASC 230 (4 October 2006)

Parties

Legislation Cited (4)

Cases Cited (16)