Legal practice - Non-certified person carrying on legal business - Whether for reward - Burden of proof on contempt hearing - Principles to be applied

Legal Practice Act 2003 (WA), s 4, s 123, s 124, s 250

Barristers Board of Western Australia v Tranter Corp Pty Ltd (1976) WAR 65

Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594

Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136

R v Edwards [1975] QB 27

Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158

Witham v Holloway (1995) 183 CLR 525

Barristers' Board v Opie [1971] WAR 99

1 The applicant, the Legal Practice Board ("LPB"), moves against the respondent, Mr Arthur Heedes, for an order that he be punished for a contempt of this Court in that, not being a duly certificated practitioner, between in or about June 2004 and in or about August 2004, at Perth, he did engage in legal work and legal practice. That legal practice is then particularised as follows:

"(a) perform or carry out or engage in work in connection with the administration of law, namely obtaining and acting on instructions from Diba Durmanich on behalf of her infant son Louis Gregory Doherty to:

(1) on or about 24 June 2004, a conditional appearance (the conditional appearance) to originating summons CIV number 115 of 2004 (originating summons) issued out of the District Court of Western Australia at Perth (the Court) between the Insurance Commission of Western Australia as plaintiff and Louis Gregory Doherty as defendant; and

(2) on or about 28 July 2004, an affidavit sworn by the respondent on 28 July 2004 (the affidavit); and

(1) on 24 June 2004, the conditional appearance; and

(2) on 30 July 2004 the affidavit;

(b) in the course of carrying out the instructions referred to in (a) above, between on or about 24 June 2004 and on or about 28 July 2004, draw or prepare, or cause to be drawn or prepared, writing relating to or dealing with or affecting proceedings at law, namely:

(i) the conditional appearance to the originating summons; and

(2) the affidavit opposing the originating summons."

2 The Legal Practice Act 2003 by s 4 provides:

"Meaning of 'engage in legal practice'

A person engages in legal practice if the person directly or indirectly -

(a) whether in the name of that person or that of any other person -

(i) sues out any writ or process;

(ii) commences, carries on, solicits, defends, or appears, in any action, suit, or other proceedings in any court of civil or criminal jurisdiction in this State_;_ or

(iii) acts as a barrister or solicitor of the Supreme Court in any cause, matter or suit, information or complaint, civil or criminal, or under any commission for the examination in this State of witnesses, or others, issued by any court in or out of this State;

(b) performs or carries out or is engaged in any work in connection with the administration of law_;_ or

(c) draws or prepares any deed, instrument, or writing relating to or in any manner dealing with or affecting -

(i) real or personal estate or any interest in real or personal estate_;_ or

(ii) any proceedings at law, civil or criminal, or in equity."

3 Marrying s 4 of the Legal Practice Act with the originating summons, there is a complaint that a contempt was committed because Mr Heedes engaged in legal practice, namely, in effect, work in connection with the administration of law in that he prepared documents in civil proceedings. Under the Legal Practice Act s 123(1) an offence is created:

"A person must not engage in legal practice unless the person is a certificated practitioner."

4 Section 124 provides certain defences. By s 124(3):

"It is a defence to a charge under section 123(1) in respect of the doing of work to show that the person who did the work has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work so done (the 'unpaid work')."

5 Sub-section 124(4) has been referred to by Mr Heedes in the course of argument but I am of opinion that it has no relevance to the present proceedings.

6 A person who contravenes the terms of the Legal Practice Act is guilty of a contempt of this Court and may be dealt with by this Court on motion from the LPB under s 250. I am advised that these are the first proceedings for contempt brought under the Legal Practice Act 2003.

7 At the commencement of the hearing Mr Goetze, who appears for the LPB, read formally into evidence, and I accept into evidence, the affidavit of:

8 In addition, Mr Goetze read into evidence and relied upon affidavits which were filed by Mr Heedes, namely:

• Further affidavit of Mr A Heedes sworn 22 October 2004.

9 It is those affidavits which form the evidence in support of this motion. The following facts emerge. On 18 May 1998 there was a motor vehicle crash at Osborne Park caused by negligent driving. Master Louis Gregory Doherty allegedly sustained injuries arising from the accident. Master Louis Gregory Doherty, was born on 16 February 1991 and Ms Durmanich is his mother. As the driver was compulsorily insured by the Insurance Commission of Western Australia, the Commission instructed solicitors under the provision of the Motor Vehicle (Third Party Insurance) Act 1943 - 1972.

10 Mr Sierakowski, a solicitor acting on behalf of the Insurance Commission, issued an originating summons in the District Court on 14 May 2004 seeking an order under the Motor Vehicle (Third Party Insurance) Act s 29(2) that within 42 days of the date of service of the order the defendant (Louis Gregory Doherty) commence legal proceedings in respect of a claim for damages made by the defendant arising out of the motor vehicle accident. In an affidavit supporting that application Mr Sierakowski deposed that the defendant, Master Doherty, had given notice through his former of solicitors on 21 July 1998 of his intention to make a claim for damages but had done nothing further.

The cause of proceedings in the District Court

11 It is now necessary to recount the steps which were taken following the filing and service of the originating summons. On 24 June 2004 a document entitled Conditional Appearance pursuant to O 12 r 6 of the Rules of the Supreme Court 1971 was filed on behalf of the defendant. The document stated that it was "Prepared by: Ms Diba Durmanich & Arthur Heedes, 19 Joondanna Drive, Joondanna, WA, 6060". The phone number given is a mobile phone number and it is open to the inference, because of other correspondence and I do infer, that that was the phone number of Mr Heedes. The terms of the conditional appearance are as follows:

"Enter a conditional appearance for Master Louis Gregory Doherty aged 13 years of age, in this action:

1. The defendant alleges that the Plaintiff's application in it's (sic) current form is legally incompetent;

2. The defendant alleges that the plaintiff's application discloses no reasonable cause of action, is scandalous, frivolous and or vexatious and may prejudice, embarrass or delay a fair trial of the action and is otherwise an abuse of process of the court.

3. The Commission is not materially prejudiced in it's (sic) defence or otherwise, by the failure of the defendant to commence legal proceedings in respect of a claim for damages."

12 Paragraphs numbered 1 and 2 are matters of law and par 3 is a matter of mixed law and fact. The documents are signed "Diba Durmanich - Mother of 13 yr old Louis Gregory Doherty".

13 On 30 July 2004 an affidavit was sworn in the proceedings and entitled:

"SWORN AFFIDAVIT OF ARTHUR HEEDES WITH ATTACHED ANNEXURE IN OPPOSITION OF APPOINTMENT TO HEAR ORIGINATING SUMMONS LISTED TO BE HEARD BEFORE A JUDGE AT 10.30 IN THE FORENOON OF 2ND AUGUST 2004".

14 The affidavit states on its face that it is "Prepared by Arthur Heedes, 19 Joondanna Drive, Joondanna, WA, 6060". It is the conditional appearance and that affidavit which form the basis of this motion for contempt.

15 I should mention at this stage that counsel for the LPB has drawn my attention to certain other documents, particularly a notice of appeal filed in this Court. However, I accept the respondent's contention that those matters are outside the terms of the motion and I therefore pay no regard to them.

16 I return to the affidavit of Mr Heedes sworn 30 July 2004. As I have previously stated, I have read all of the affidavits and the accompanying annexures so I will only refer to certain passages within them. The affidavit commences with the description:

"I, ARTHUR HEEDES, SELF EMPLOYED AS AN ADVOCATE, INTERCESSOR, NEGOTIATOR AND INVESTIGATOR IN THE CARE OF 19 JOONDANNA DRIVE JOONDANNA IN THE STATE OF WESTERN AUSTRALIA BEING DULY SWORN MAKE OATH AND SAY AS FOLLOWS:

1. I am a self employed advocate and intercessor approached by an extremely distressed Miss Diba Durmanich the mother of the defendant on or about the 22nd June 2004, pleading for help in an extremely tearful state over the recent attempted service of an originating summons upon her 13 year old son at their family home, by the plaintiff in this matter.

2. At all material times from that point onwards, I have been the intercessor between the parties acting upon instructions from Miss Diba Durmanich on behalf of her 13 year old son, Master Louis Doherty the defendant in this matter.

..."

17 Paragraph 6 indicates that Mr Heedes has been acting on behalf of Ms Durmanich and Master Louis Doherty as instructed. Paragraph 8 states:

"8. All documents currently prepared and filed with the court in this matter on behalf of the defendant have been and are being prepared by the deponent upon instruction from Miss Durmanich for her son."

18 I pause to say that par 8 is, in my opinion, an important paragraph because it constitutes an admission that the documents prepared and filed (which would include the conditional appearance), have been prepared by Mr Heedes on instructions. Paragraph 10 states:

"10. The deponent by any definition of the Legal Practitioners (sic) Act 2002, is NOT a legally qualified person but does have the full conduct of this matter on behalf of the defendant's mother upon her instructions. In order for me to be heard on behalf of the defendant, I must seek and ultimately acquire leave of the court and your honor (sic) as well as the plaintiff, of which neither has yet been sought or discussed."

19 The affidavit then goes on to describe the steps taken to try and obtain legal assistance for Ms Durmanich. Paragraph 14 states:

"14. The deponent truly believes and knows that the defendant through his mother, is going to eventually defend this application on principles of law quite vigorously through due diligence and with substantive incontrovertible evidence, though her attempts to obtain certain documentation has been conscientiously thwarted by the plaintiff to date. It is the sincere position of Miss Durmanich and the deponent armed with legal precedent and argument and intimate knowledge of all the pertinent facts, that the matter ought to be dismissed with costs awarded to the defendant and that time be allowed to pass before permitting the Commission to make any further applications it wishes to make."

20 Within the affidavit are various matters to which it is not necessary for me to specifically refer. In a further affidavit in the District Court proceedings sworn 30 July 2004, Mr Sierakowski, among other matters, annexed the following letter received by the Insurance Commission from Mr Heedes and Ms Durmanich:

"Thursday 24th June 2004

Mr Brad Galvin

Insurance Commission of W.A.

221 St Georges Terrace

PERTH WA 6000

"WITHOUT PREJUDICE"

Save as to costs

Dear Sir

RE: MASTER LOUIS GREGORY DOHERTY

DISTRICT COURT ACTOIN: CIVO NO 115 OF 2004

Serve notice, I act for both Master Louis Doherty aged 13 and his mother Ms Diba Durmanich in all of the aforementioned capacities, having full conduct of the matters with authority to brief counsel as required, upon instruction from Ms Durmanich, as proved by her accompanying signature at the foot of this correspondence.

You are hereby requested herein to address all future correspondence in the matters at hand to me at the above address and make suitable arrangements to accommodate my clients request for any future formal service of court documents, by way of my personal collection after telephone notification, upon the offices of the Insurance Commission of W.A. or your nominated legal representatives.

In the true interests of transparency and 'umberrimae fidei', counsel fees are charged at the agreed rate of $370 per hour plus disbursements and costs as required whilst my fees are charged at the agreed rate of $200 per hour inclusive of all disbursements, both with G.S.T additional. [emphasis added]

Serve further notice that I am not a registered agent or a legally qualified person in the strict definition of The Legal Practitioners Act 1893 but merely a facilitator and disseminator in order to ultimately provide disadvantaged and bullied clients, natural justice, as in this case. My involvement by way of engagement by Ms Durmanich in these matters is as a sole result of the conduct afforded both her and her son, by the Insurance Commission of W.A.

Acknowledging service receipt of your 'Originating Summons Appearance Required' with accompanying 'Affidavit in support of Originating Process' in the aforementioned matter, filed with the Perth District Court on the 14th May 2004 but not served upon Ms Durmanich until Saturday the 19th June 2004.

Please find enclosed my clients Conditional Appearance pursuant to Order 12 rule 6 of the Rules of the Supreme Court 1971, filed this afternoon with the intention to vigorously defend the matter on numerous points of law, for which we expect your application to be doomed to an embarrassing failure upon judicial analysis.

Upon my initial investigations, I am lead (sic) to understand that you sir solely handle the Commission's conduct in this matter and is personally responsible for instigating this legal proceeding upon my 13 year old client and that such decision was made after an internal meeting, presumably with either messrs Watts, Evans, Zanotti and Sierakowski or all of above?

Upon perusal of the incontrovertible facts and the Commission's conduct in this matter upon confirming investigation, one can reasonably expect that the Commission and the respective individuals would incur significant embarrassment, discomfort and unnecessary financial loss should this be made a matter of full public record, either by way of contemporaneous complaints to the Ombudsman, Legal Practitioners Complaints Committee, Medical Board, extensive media exposure and vigorous defence of your application in the court, or all of the aforementioned.

Serve further notice my clients reserve all their legal rights both in civil and criminal jurisdictions against the respective individuals involved in antithesis to the bodies corporate, both jointly and severally. My clients are extremely fearful and scared of your threatening and intimidatory conduct to date and do not appreciate your totally unwarranted vindictive and defamatory pursuit of them personally, nor your criminal attempts to effleurage the facts in this matter. It is in that spirit that they request you immediately desist from making any further direct contact with them and direct such through me.

You are hereby availed this first and final opportunity to seriously reflect upon the imminent ramifications of your conduct and are invited to formally discontinue the precipitous proceedings and serve notice of such upon me by the close of business on Friday 2nd July 2004, with the view to opening up meaningful communication and dialogue with a view to settling this matter.

Whilst it is transparently clear to the writer that the sole intention of the Commission in instigating this highly irregular proceeding is to limit and contain liability, you are reminded that my client has actively and openly engaged in mitigating the Commissions exposure in this matter and continues to do so by directing this correspondence to you and not through Mr Sierakowski, thus unnecessarily incurring legal fees and costs to the Commission.

You are strongly encouraged to accept our more than magnanimous offer by discontinuing the proceedings whilst contemporaneously attempting to ameliorate the damage you have already caused my clients, by way of putting your veracious cards on the table, or be assured that the aforewarned action will commence without further notice.

Yours faithfully

Arthur Heedes Diba Durmanich"

21 If I may respectfully say, the letter points to the dangers of unqualified persons attempting to conduct litigation. It is the third paragraph of that letter which is at the heart of this action.

22 That letter received an immediate response from Mr Sierakowski, who, in a letter of 25 June 2004, said, among other things:

"Given that you are not legally qualified you cannot receive any reward and your fees and expenses are not recognised."

23 Mr Heedes replied by letter dated 30 June 2004, during the course of which he dealt with the question of costs as follows:

"With regard to your correspondence, it has now been established by the conduct of the ICWA in deflecting the issues at hand to you, that they intend to pay you for handling this matter on their behalf from hereon in, at a cost my clients deem an unnecessary waste of money.

Furthermore on your correspondence, it is interesting that the first issue you chose to focus on was in fact, the issue of my fees and your terminology of such as a reward. The question bears asking, are your fees to the ICWA a reward for your performance? In any event, I am totally comfortable with my position in relation to such, which will be addressed in the fullness of time."

24 On 24 July 2004 Mr Heedes wrote to the Insurance Commission seeking various documents. Thereafter correspondence flowed between Mr Sierakowski and Mr Heedes.

25 I turn now to the affidavits which have been formally read by Mr Goetze on behalf of the LPB but which were filed on behalf of the respondent. The affidavits having been read became part of the evidence: Barristers Board of Western Australia v Tranter Corp Pty Ltd (1976) WAR 65 at 67. Mr Heedes has sworn two affidavits. One is sworn 8 September 2004 and the other, sworn 21 October 2004, is a responsive affidavit to affidavits sworn on behalf of the LPB on 29 September 2004 and also to the outline of submissions filed on behalf of the LPB. A further affidavit has been filed by Ms Durmanich dated 10 September 2004. In the course of this affidavit Ms Durmanich explains how she first met Mr Heedes on 23 June 2004 at an organised rally of IPASA outside the offices of the Legal Practitioners Complaints Committee. During that meeting she explained to Mr Heedes that her 13-year-old son had been summonsed to appear in court by the Insurance Commission. She said that upon:

"... Showing Mr Heedes the summons he told me it was extremely important to address such within the time stipulated and that I should get legal advice and representation in the matter urgently."

26 She explained her particular circumstances to Mr Heedes and that she had recently dispensed with the services of her lawyers and asked if he knew of a good honest lawyer. He made some phone calls and, upon returning, said:

"... that was unlikely I would be granted legal aid. If I wanted to file the required appearance in the interim myself whilst looking for and instructing a suitable law firm to assist, we should go to the District Court and get a pro forma document which we did."

27 The next day the conditional appearance was prepared.

28 Ms Durmanich deals specifically with the question of payment. She says at par 4:

"4. During the course of preparing the accompanying letter and Conditional Appearance on the 24th June, I offered to pay Mr Heedes for his services in assisting me represent myself, whereby he declined to accept such and provided me with a copy of section 27 of the Motor Vehicle (Third Party Insurance) Act 1943, stating he was not entitled under the act to be paid..."

29 She also explains in relation to the letter to which I have referred:

"... Having pointed out to him that he did not solicit instructions from me and was merely responding to my request for assistance in representing myself, he still further declined. Dictating and directing the content of the accompanying letter to ICWA, Mr Heedes reluctantly told them at my specific request, he was charging me the sums per hour I specified, as I still believed that they should pay him for helping me personally defend my son and protect his interests, especially considering that they waited 6 years until the very moment I released my son's lawyers before then taking advantage of such to then instigate legal proceedings, knowing that both my son and I were vulnerable and entirely on our own."

30 In the course of paragraph 6 of the affidavit Ms Durmanich states:

"6. At all material times, Mr Heedes has stated that he would assist my son and I in our endeavours and that he did not expect or want recompense or payment for such assistance and has continually and steadfastly refused to entertain the idea or conversation regarding such. He has never provided me with an invoice or even an indication of such and I have never paid him any amount of money for such services in the aforementioned capacities or any other capacity."

31 She then details that Mr Heedes had stated that he was not a lawyer, is precluded from giving legal advice and has never attempted to do so. She points out that because of her health she was unable to appear at the District Court hearing and that led to Mr Heedes preparing his affidavit of 30 July 2004 to which I have referred.

32 In relation to these contempt proceedings, Ms Durmanich comments specifically at paragraph 14:

"14. The specific allegations contained within said documents I know to be erroneous in that;

a) Mr Heedes did not engage in or purport to engage in legal practice at any material time.

b) Mr Heedes did not carry out or engage in work, that being the definition of (such activity as a means of earning income,) as he sought and received no income to be derived.

c) Mr Heedes only assisted me in preparing the Conditional Appearance as previous specified.

d) Mr Heedes only prepared the affidavit under my guidance to content, in order to alert the court of my unwell health so that they may conduct the orderly transaction of the business of the court and such was filed with my accompaniment, albeit under sufferance.

e) Mr Heedes did not exclusively draw or prepare, or cause to be drawn or prepared, writing relating to or dealing with or affecting proceedings at law, if that allegation is to be levelled, it should be levelled at me, Mr Heedes only assisted."

33 I now refer to Mr Heedes' affidavit in these contempt proceedings sworn 8 September 2004. Much of this affidavit is directed to what he regards as the misguided and erroneous application made by the LPB on the allegations of Mr Sierakowski who he considers has a degree of animus and vexatiousness towards Mr Heedes. Mr Heedes explains the affidavit filed on 30 July 2004 and compiled at the request of Ms Durmanich and at par 8 and par 9 states:

"8. The conditional appearance of the 24th June 2004 as annexed as C in the sworn affidavit of Brian Sierakowski was filed with the court by and also endorsed by the signature of Diba Durmanich, the mother of the defendant, not the respondent in this matter.

9. The affidavit of the 30th July 2004 was compiled at the request of Ms Durmanich by the respondent, as a courtesy only to the court, informing them of the circumstances behind Ms Durmanich and her son's non attendance on the 2nd August 2004 and other explanatory factors, so that the court may conduct the orderly transaction of the business of the court. The respondent was under no obligation whatsoever to assist the court or provide such courtesy and takes great personal offence at having such vexatiously classified as contempt of the honourable court. In line with such, perhaps the court can understand why the respondent will from now on be loathe or reluctant to go substantially out of my way to attempt to assist and or accommodate with best intentions the court, regarding errors that are not my own doing?"

34 In relation to the question of costs, Mr Heedes deposes particularly at pars 17, 18 and 19 as follows:

"17. At all material times, I have never suggested, inferred, implied or stated that I would, or have actually sent an invoice to Ms Durmanich or her son for anything I have done to assist her in her self representation of her son, nor do I have any intention of doing so in the future.

18. Ms Durmanich has never paid me any reward or remuneration for said assistance and neither have I accepted any of her numerous offers for payment nor would I accept such payment, reward or benefit for such, in the future.

19. At all material times, I have never portrayed myself in any way shape or form as a legal practitioner or a legally qualified person pursuant to the Legal Practitioners (sic) Act, in antithesis to such, I have gone out of my way to explain such in depth."

Mr Heedes' further affidavit sworn 21 October 2004 deals in part with matters which are not really relevant. In the affidavit he admits that he did help prepare the conditional appearance, although he did not exclusively prepare it, and he says he did not file it and did not sign it and the document for service is that of Ms Durmanich and her son.

35 Dealing with the question of costs and the submissions made by the LPB. Mr Heedes gives an explanation in relation to his fees in pars 30, 31 and 36:

"30 Paragraphs 18.1 to 19 are factually correct in all regards with the disclaimer that the content of my correspondence has been previously explained as direction from Miss Durmanich, previously sworn on oath by both of us. The disclosure of the fees rates show two things, that obviously counsel was to be involved at the rate of $370 per hour and my fees inclusive of disbursements were and still remain $200 per hour. At the time of writing the correspondence, I was well aware that I was not entitled to payment for my ensuing services pursuant to section 27 of the Motor Vehicles Insurance Act but she firmly believed on moral not legal grounds, that I should be paid by ICWA (not her) for my involvement and requested I put such in to see if they would agree to pay me such. Having already stipulated that I would help her and Louis in my specified capacities for nix, gratis, nothing, the matter of my payment was finally and correctly put to rest as expected, by the reply from Brian Sierakowski dated 25th June 2004, whereby he correctly states I could not receive any reward and my fees and expenses were not recognised, hence they would not pay, that then being the end of the story.

31. Paragraph 19.1 is plain and simple boondoggle, the question of whether or not I was to be paid has simply never been asked by ICWA, Brian Sierakowski, the Legal Practice Board or Minter Ellison representing them, so how could I possibly deny such and besides, the issue of payment was squarely joined by both the law and Sierakowski's letter? It is so obvious that it goes without saying, that if ICWA (effectively the government) are not going to pay me my fees and or disbursements, then I am not going to even attempt to enforce such upon Miss Durmanich, a single mother on a pension with absolutely no ability whatsoever to meet such. The statement specifically referred to was meant as a question to ICWA if they would pay me my fees, albeit I did not apply a question mark. Brian Sierakowski and ICWA obviously knew it to be a question upon them as if to pay me, because they specifically stated that I was not entitled to receive any reward and my fees and expenses are not recognised, again end of story.

...

36. With regard to paragraph 24, both Miss Durmanich and I did not have reason to swear to such previously, because the applicant being the LEGAL PRACTICE BOARD negligently and recklessly never asked either of us the question or any questions whatsoever before embarking on this vexatious proceeding amounting to an abuse of the court system and waste of both the courts and mine valuable time and resources! The rhetorical question asked has been previously answered under oath and furthermore, my fees are charged and ultimately paid for at the agreed rate of $200 per hour when the client and or the defendant can afford such, so the statement is NOT untruthful as postulated. On this specific occasion as I have done previously with every other member of IPASA and will continue to do so, whereby I can help in my afore sworn capacities or otherwise, I will never charge for said help, work or assistance. These disadvantaged people have been victimised enough by corrupt insurers acting unlawfully."

These are important sections of the affidavit bearing on the issues. These matters seem to me to highlight the issues both as to legal practice and the question of payment.

The legal principles: the burden and standard of proof

36 I turn now to the legal principles. The Legal Practice Act, s 123 creates an offence. An offence is simply an act or omission which renders the person doing the act or omission liable to punishment. The offence is a simple offence and ordinarily the procedure for dealing with simple offences is set out in the Justices Act 1902: see the Interpretation Act, s 67(4). The Legal Practice Act 2003 by s 250, however, provides a different mode of trial for offences which are created under the Legal Practice Act. That mode of trial is by way of proceedings for contempt of court in this Court.

37 The mode of trial, however, does not displace the ordinary common law rules for which there is no statutory provision in Western Australia regarding the burden and standard of proof. The LPB brings an allegation of criminal contempt against Mr Heedes and therefore bears the burden of proving that to a standard beyond reasonable doubt: see Witham v Holloway (1995) 183 CLR 525.

The elements of the offence under s 123

38 I return to the Legal Practice Act s 123. The applicant must prove beyond reasonable doubt that Mr Heedes:

• Engaged in legal practice as defined by s 4.

39 It is not in issue in this case, and it is admitted by Mr Heedes, that he is not a certificated legal practitioner. The question is whether he has engaged in legal practice. In my opinion, the evidence discloses that Mr Heedes has engaged in legal practice and I am satisfied beyond reasonable doubt as to that matter.

40 Although Mr Heedes assisted Ms Durmanich, who may or may not have legal skills of her own, it is clear to me that he carried out work in connection with the administration of law in advising her what to do and that he assisted in the preparation of a conditional appearance which raises legal issues. Moreover, I am satisfied beyond reasonable doubt that Mr Heedes drew or caused to be drawn the conditional appearance and the affidavit and that he filed or caused to be filed the affidavit. So I am satisfied beyond reasonable doubt that the elements of s 123 have been made out. That is not, however, the end of the matter.

The defence under s 124

41 I now turn to s 124(3). This requires attention. The words "it is a defence" and the words "to show" raise the issue as to the burden of proof necessary to establish that defence. Is it a matter upon which the prosecution bears the ultimate burden of disproving once there is evidence? Or is it a matter which requires the defendant to affirmatively establish the defence?

42 The words "a person is not criminally responsible" have been held to require no more than an evidential burden which, once discharged, requires the prosecution to negative the issue beyond reasonable doubt: see Van Den Hoek v The Queen [1986] HCA 76; (1986) 161 CLR 158.

43 There is a discussion as to the nature of evidential and persuasive burdens in the Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594. It is necessary for me to construe s 124(3) to discern whether the legislative intention is to impose upon the respondent a persuasive burden of bringing himself within the words of s 124(3): see Director of Public Prosecutions v United Telecasters at 106.

44 I refer also to Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136, a judgment of the Chief Justice, Sir Owen Dixon, at 139 and also to the case of R v Edwards [1975] QB 27 at 39 - 40 where their Lordships say:

"In our judgment this line of authority establishes that over the centuries the common law, as a result of experience and the need to ensure that justice is done both to the community and to defendants, has evolved an exception to the fundamental rule of our criminal law that the prosecution must prove every element of the offence charged. This exception, like so much else in the common law, was hammered out on the anvil of pleading. It is limited to offences arising under enactments which prohibit the doing of an act save in specified circumstances or by persons of specified classes or with specified qualifications or with the licence or permission of specified authorities. Whenever the prosecution seeks to rely on this exception, the court must construe the enactment under which the charge is laid. If the true construction is that the enactment prohibits the doing of acts, subject to provisos, exemptions and the like, then the prosecution can rely upon the exception."

45 In my opinion the section does require an affirmative burden to be discharged. I reach that conclusion by use of the words which I have quoted. The word "show" is variously defined within the Macquarie Dictionary but means relevantly "to point out, to make known, to prove, to demonstrate". The construction which I apply is a sensible construction because it would be easily within the knowledge of a person who did the work to know and be able to show that they had not been paid or remunerated or had an agreement as such. This is another indication of the legislative intent.

46 Where the burden is placed on an accused to prove a matter, it is normally to be discharged to the standard of the balance of probabilities, not on the criminal standard of proof beyond reasonable doubt. That is the standard I adopt, namely, it is necessary for the respondent, Mr Heedes, to show on the balance of probabilities, the existence of a fact on the issue of non-remuneration. Thereafter he has established the defence.

47 It is for the respondent, Mr Heedes, to establish on the balance of probabilities that he was not to be rewarded, not to be directly or indirectly paid or remunerated or promised or expected pay or remuneration for the legal practice I am satisfied he engaged in. In determining that question I have regard to the evidence to which I have already referred on the matter, namely, the letter itself of 24 June 2004 and the explanations subsequently given by Mr Heedes and Ms Durmanich.

48 I note that there are no invoices or any other indicia of payment and that an agreement to pay costs is denied by Mr Heedes and Ms Durmanich. The letter of 24 June 2004, however, is telling. Reference is made by Mr Heedes in his affidavit sworn in these proceedings and dated 21 October 2004 that the third paragraph of the letter was in the nature of a question or a query whether he was to be remunerated. However, I do not construe or interpret the letter that way. It seems to me on the whole of the evidence clear enough that there was within Mr Heedes an expectation that he would, or could, at some stage, be paid whether at the end of the proceedings or at some other time. The letter was a plain request to the Insurance Commission of Western Australia to pay him.

49 It is also clear that Ms Durmanich regarded herself as under a moral obligation to pay Mr Heedes and had communicated that fact to him, as he says, on countless times. It may be that he did not regard her as having the ability to pay. In his words, "Ms Durmanich's offer was a hollow promise". Nevertheless, the letter of 24 June 2004 itself was not a hollow request, nor, in my view, was Mr Heedes' response to Mr Sierakowski when he raised the issue. At the time when he engaged in the administration of law and in drawing the documents, as I find beyond reasonable doubt that he did, Mr Heedes did have an expectation of payment. It follows that he has been unable to persuade me affirmatively that he has a defence under s 124(3) and I therefore find that the contempt has been proved.