Contempt of court - Statutory contempt - Use of name, title or description implying or tending to the belief person is a legal practitioner - Contravention of Legal Practice Act 2003 (WA) s 128(b) read with s 250

Contempt of court - Statutory contempt - Test for contravention of Legal Practice Act 2003 (WA) s 128(b) - Applications of test to conduct and witness summons

Legal Practice Act (WA), s 3 'legal practitioner', s 123(1), s 128(b), s 250

Legal Practitioners Act 1893 (WA), s 80

Legal Profession Practice Act 1988 (Vic), s 90(7), s 92(1)(a)

Public Notaries Act 1979 (WA), s 7(2)

Respondent found to have committed four of the five contempts alleged

1 This is the judgment following a hearing on originating motions in two matters for statutory contempt. The respondent, who had in previous hearings in one of the two matters before me appeared to represent himself, did not appear at the present hearing, by himself, counsel or otherwise.

2 In these reasons I first set out the principal statutory provisions relied upon, and the instances of statutory contempt alleged.

3 I then describe the somewhat involved history of the two matters.

4 I then review the evidence in the hearing, and describe my findings on that evidence.

5 The final section of these reasons describes my conclusions and orders.

6 There are two notices of originating motion, one for each of the two matters before me, and one of which was amended prior to the hearing. Those notices allege discrete instances of the offence of contempt of the Supreme Court under Legal Practice Act 2003 (WA) (the 2003 Act), s 250, each involving contravention of s 128(b) of the 2003 Act. That latter provision needs to be read with the definition of 'legal practitioner' in the 2003 Act.

7 The 2003 Act s 250 at all times material to me read as follows:

Without limiting the operation of other provisions of this Act, a person who contravenes -

(a) the terms of this Act, or any provision of or obligation imposed under this Act; or

(b) an order of the Complaints Committee,

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.

8 The 2003 Act s 128(b) at all times material to me read as follows:

A natural person who is not a legal practitioner must not -

...

(b) advertise or use any name, title, addition, or description implying or tending to the belief that the person is a legal practitioner or is recognised at law as a legal practitioner.

Penalty: $2 500.

9 The term 'legal practitioner' is defined in the 2003 Act s 3 'unless the contrary intention appears' as follows:

legal practitioner means a person -

(a) who is admitted as a legal practitioner, whose name is on the Roll of Practitioners and who is not a disqualified person; or

(b) who is an interstate practitioner who practises in this State.

The instances of statutory contempt alleged

10 There are five such instances of contravention of the 2003 Act s 128(b). I reproduce the terms of each instance from the relevant notice of originating motion, leave to amend one of which was granted before the hearing. The history of the leave to amend is described in the next section of this judgment. I set out the instances in the order of their dates.

Alleged use of name, title or description in early February 2007

11 This instance is shown as ground 1 in the notice of originating motion in CIV 1377 of 2008 dated 11 April 2008. That ground reads as follows:

On a date in February 2007 that the applicant is unable to specify with precision but was after 3 February 2007 and before 12 February 2007, the respondent, in the circumstances set out herein, used a name, title or description which implied or tended to the belief that he was a legal practitioner or was recognised at law as a legal practitioner when he was not a legal practitioner under [the 2003 Act] and thereby contravened section 128(b) of [the 2003 Act]. The circumstances were as follows. The respondent attended the CitiWatch Office at the Perth Train Station and there met Darren Harris. The respondent said to Mr Harris that he was a lawyer. The respondent went on to say that he was representing a client and he had requested some video surveillance footage from the City of Perth. The respondent said that he was concerned that the footage might not have been saved. The respondent said the footage was important because it was required as evidence in his client's case and he wanted to confirm that the footage had been put aside for him.

12 From now on I refer to this instance as the early February 2007 contravention.

Alleged use of name, title or description in mid February 2007

13 This instance is shown as ground 2 in the notice of originating motion in CIV 1377 of 2008 dated 11 April 2008. That ground reads as follows:

On a date in February 2007 that the applicant is unable to specify with precision but which was on or about 12 February 2007 or shortly thereafter the respondent, in the circumstances set out herein, used a name, title or description which implied or tended to the belief that he was a legal practitioner or was recognised at law as a legal practitioner when he was not a legal practitioner under [the 2003 Act] and thereby contravened section 128(b) of [the 2003 Act]. The circumstances were as follows. The respondent attended the CitiWatch Office at the Perth Train Station and there met Darren Harris. The respondent said to Mr Harris that he was a lawyer. Mr Harris said 'I know. We met before'. The respondent replied 'Oh yes'. The respondent said that he had a witness summons for Mr Steven Cummings to produce to the Magistrates Court the tapes of the footage that he had requested. Mr Harris said that he could give the summons to Mr Cummings and the respondent handed Mr Harris the summons.

14 From now on I refer to this instance as the mid February 2007 contravention.

The alleged use of name, title, addition or description in the witness summons of 12 February 2007

15 This instance is shown as ground 3 in the notice of originating motion in CIV 2100 of 2007 dated 31 October 2007 with the amendments leave to make which was granted by orders made 31 March 2008. That ground as so amended reads as follows:

In preparing and issuing a witness summons to Steven Cummings on 12 February 2007 containing the references:

(a) 'PIL (Harvard Law School)';

(b) 'Notary Public';

(c) 'General Counsel';

(d) 'General Notary'; and

(e) 'JT/crimlit.99120207.DOC'

the respondent, not being a legal practitioner under [the 2003 Act,] used a name, title, addition or description which collectively implied or tended to persons reading the summons the belief that he was a legal practitioner or was recognised at law as a legal practitioner, in contravention of section 128(b) of [the 2003 Act].

16 From now on I refer to this instance as the contravention by the witness summons of 12 February 2007.

The alleged use of name, title or description later in February 2007

17 This instance is shown as ground 3 in the notice of originating motion in CIV 1377 of 2008 of 11 April 2008. That ground reads as follows:

On a date in February 2007 that the applicant is unable to specify with precision but which was after 12 February 2007 but before 1 March 2007, the respondent, in the circumstances set out herein, used a name, title or description which implied or tended to the belief that he was a legal practitioner or was recognised at law as a legal practitioner when he was not a legal practitioner under [the 2003 Act] and thereby contravened section 128(b) of [the 2003 Act]. The circumstances were as follows. The respondent attended the CitiWatch Office at the Perth Train Station and there met Darren Harris. The respondent told Mr Harris that he was a lawyer and said that he was concerned that the tapes he had summonsed Mr Cummings to produce might not be duly produced. Mr Harris told the respondent that as long as the tapes were paid for prior to their delivery date, there would not be any problem with Mr Cummings producing them.

18 From now on I refer to this instance as the contravention of later in February 2007.

The alleged use of name, title or description on 20 July 2007

19 This instance is shown as ground 2 in the notice of originating motion in CIV 2100 of 2007 dated 31 October 2007 with the amendments leave to make which was granted by orders made 31 March 2008. That ground as so amended reads as follows:

On 20 July 2007, the respondent, not being a legal practitioner under [the 2003 Act]:

(a) said he was a lawyer from 'Wittingham & Associates' to Terence Bradley; and

(b) replied 'yes' when asked by Terence Bradley if he was a lawyer, after the respondent said that he would complete the necessary paperwork relating to his request for video footage held by the City of Perth,

and in so doing, used a name, title or description which implied or tended to the belief that he was a legal practitioner or was recognised at law as a legal practitioner in contravention of section 128(b) of the Act.

20 From now on I refer to this instance as the contravention of 20 July 2007.

The history of CIV 2100 of 2007 and CIV 1377 of 2008

21 The procedure for statutory contempt of the sort in the 2003 Act s 250 is civil, notwithstanding that the procedure is for an offence and that the standard of proof is the criminal one of beyond a reasonable doubt: Heedes v Legal Practice Board [2005] WASCA 166 [54] (Roberts-Smith JA), [1] (Owen JA agreeing) and [2] (Wheeler JA agreeing). Heedes was itself a proceeding under the 2003 Act s 250 for a contravention of s 128.

22 The procedure is governed by Rules of the Supreme Court 1971 (WA) O 55, which allows for the prosecution of the offence to be by originating motion returnable in chambers and supported by affidavit: Legal Practice Board v Frichot [2006] WASC 230 [20] (Hasluck J). In such proceedings, the court should first deal with any objection to the originating motion before the hearing of the matters to which that process relates: see The Director Of Public Prosecutions For Western Australia v Network Ten (Perth) Pty Ltd [2007] WASC 166 (Simmonds J) (a case on common law contempt).

23 By the notice of originating motion in CIV 2100 of 2007 the applicant stated it sought to have the respondent found guilty of contempt of the Supreme Court under the 2003 Act s 250 and punished for such contempt. In accordance with the usual practice in such cases, that statement was followed by a series of numbered grounds. Each specified an event or events and referred to the 2003 Act s 128(b).

24 The respondent, representing himself at the first return of the notice of originating motion in CIV 2100 of 2007, indicated he took or planned to take a number of objections to the originating motion. Following hearings on 21 November 2007, 12 March 2008 and 31 March 2008, and at the latter hearing, at which the respondent was present and representing himself and for the reasons given extemporaneously then, I gave leave to the applicant to amend grounds 2 and 3, but denied it leave to make the amendments proposed to ground 1.

25 At a further hearing on 4 April 2008, again at which the respondent was present and again representing himself and for the reasons given extemporaneously then, I denied leave to make other amendments to ground 1 and granted the respondent's application to have that ground struck out. I also made programming orders for a hearing of the originating motion as so amended including written submissions from the parties, mention on 8 May 2008 and the hearing of the originating motion on 15 and 16 May 2008.

26 In summary my reasons for striking out ground 1 went to the failure of the notice of originating motion to specify the offence or offences subsumed by that ground with sufficient particularity: see O 55 r 5(1) and John Holland Pty Ltd v The Construction, Forestry, Mining and Energy Union [2006] WASC 106 [15] - [18] (Blaxell J) and Hammond v Aboudi [2005] WASCA 204.

27 In the event, the applicant subsequently commenced further proceedings by notice of originating motion in CIV 1377 of 2008 dated 11 April 2008. That notice of originating motion was in the same form as that in CIV 2100 of 2007 dated 31 October 2007, and grounds 1 to 3 of CIV 1377 of 2008 in my view cover the ground intended to have been subsumed by ground 1 of CIV 2100 of 2007 (see the supporting affidavit of Darren Harris sworn 4 October 2007) while providing greater detail.

28 Initial attempts were made to serve the notice of originating motion in CIV 1377 of 2008 on the respondent. Those attempts were reported to me at the hearing on 8 May 2008 at which the respondent was not present. At that hearing, at which it was not pressed on me that there had been sufficient service of that process, I determined that, in view of the degree of overlap between the subject-matter of the originating motions in the two matters, the hearing of the originating motion in CIV 2100 of 2007 should be vacated, and a further hearing held on 16 May 2008 at which the matter of service and an application for joint hearing of the two originating motions could be dealt with. Following a further attempt to serve the respondent, that later hearing, at which the respondent again was not present, was adjourned when the applicant again did not press a submission that the further attempt had been successful. The applicant made a still further attempt to serve the respondent on 29 May 2008 in the Central Law Courts.

29 At a hearing on 3 June 2008, at which the respondent was again not present and for the reasons given extemporaneously then, I determined that the still further attempt, on 29 May 2008, represented sufficient service, and I ordered that the hearing of the originating motion in the matter CIV 1377 of 2008 be held at the same time as that of the originating motion in the matter CIV 2100 of 2007, that time to be set as 2 and 3 September 2008, and the evidence in the latter matter should also be evidence in the former matter and vice versa. In view of the absence of the respondent, and the fact he had represented himself in the matter CIV 2100 of 2007, I gave liberty for him to apply on 48 hours notice, to make any preliminary applications he considered appropriate. No such applications were made.

30 At a further hearing on 14 July 2008, again in the absence of the respondent, I made further programming orders for the hearing of the originating motions. Those orders as extracted were in material part for each of the originating motions as follow:

1. Written submissions from the applicant be filed and served by 28 July 2008.
2. Written submissions from the respondent be filed and served by 4 August 2008.
3. The respondent have leave to cross-examine any or all of the deponents to the affidavits in support of the applicant's Motion.
4. The respondent to notify the applicant by 11 August 2008 of the name or names of such deponents as the respondent does not require for cross-examination.

31 In the event, only the applicant has filed and served written submissions. At the hearing on 14 July 2008, I was informed by the applicant, in relation to the originating motion in CIV 2100 of 2007, that it did not intend to file any further written submissions, but would rely upon its previously filed written submissions of 16 November 2007. In relation to the originating motion in CIV 1377 of 2008, the applicant filed written submissions dated 12 August 2008.

32 Prior to the hearing on 2 September 2008 the respondent had not as the programming orders provided for given any notification to the applicant in relation to deponents the respondent did not require for cross-examination.

33 I note that there is also in the file for CIV 2100 of 2007 an affidavit of Ms Fang sworn 14 July (the Fang affidavit of 14 July 2008) in which she deposes as to her firm sending a letter to the respondent dated 12 June 2008 at an address in West Perth, attaching a copy of the orders in CIV 2100 of 2007 and CIV 1377 of 2008 as extracted that I made on 3 June 2008.

34 There is also in both files a further affidavit of Ms Fang, sworn 29 August 2008 (the Fang affidavit of 29 August 2008), in which she deposes as to her firm sending a letter to the respondent at the same address dated 23 July 2008, attaching a copy of the programming orders as extracted that I made on 14 July 2008.

35 Further, as I will also explain below, I am also satisfied that prior to the present hearing the respondent was duly served with the written submissions in both CIV 2100 of 2007 and CIV 1377 of 2008, and the affidavits on which those submissions rely.

36 In view of the Fang affidavits, and the respondent's presence, previously referred to, in some of the hearings in relation to CIV 2100 of 2007, and subject to the point I reach next, I consider that I have sufficient proof before me that notice of the present hearing and the matters which at that hearing the applicant proposed to address was given to the respondent. I consider that in view of that proof I should consider and make findings on the case against him, even in his absence: see Frichot [23].

37 It is appropriate I consider, however, whether or not I have proof the address used in the letters copies of which are annexed to the Fang affidavits of 14 July 2008 and 29 August 2008 was the respondent's 'geographical address or last known geographical address': see O 72 r 5(5)(a); and see Legal Practice Board v Frichot [2006] WASC 230 (S) [105] (Hasluck J). I note, however, that there was no contention before me that by virtue of O 72 r 8 I should proceed without regard to such a consideration.

38 As to that matter, the address used in the letters was the same address as that used for the service of the submissions in CIV 1377 of 2008 dated 12 August 2008. That address, as I will explain below, came from the respondent. That address in my view met the description in O 72 r 5(5)(a).

39 The applicant's written submissions state that reliance is made on the following affidavits.

40 In relation to the originating motion in CIV 2100 of 2007, the affidavits relied upon are those of Miranda Elisabeth Breisch sworn 21 September 2007 (the Breisch affidavit of 21 September 2007); Darren Harris sworn 4 October 2007 (the Harris affidavit of 4 October 2007); Steven Cummings sworn 4 October 2007 (the Cummings affidavit); and Terence Bradley sworn 30 October 2007 (the Bradley affidavit).

41 In its material parts, the Breisch affidavit of 21 September 2007 states that Ms Breisch as at that date was the Professional Affairs Officer of the applicant and had conducted searches of the register of legal practitioners maintained by the applicant under Legal Practice Board Rules 2004 (WA) r 70 and of the applicant's register of the Roll of Practitioners. I note that the former register is one that, unlike the latter, includes 'details of ... interstate legal practitioners who are practising in this State' (r 70(2)(c)). Neither search ([6] and [7]) revealed an entry for 'James Hong Tee'. Further, the Breisch affidavit of 21 September 2007 states (in [2] and [8]) that

I am also a certificated legal practitioner under [the 2003 Act]. I was admitted as a legal practitioner in 2005 and I have been practising as a legal practitioner since.

...

I have seen a copy of [the witness summons of 12 February 2007]. Based on my experience as a legal practitioner, the reference 'JT/crimlit.99120207.DOC' in the [witness summons of 12 February 2007] is a reference of a type commonly used by legal practitioners in court documents and suggests to me that:

(a) the summons was prepared by a person whose initials were 'JT';

(b) the matter was a criminal litigation matter; and

(c) the client's reference or file number was 99120207.

42 In its material parts the Harris affidavit of 4 October 2007 states that as at that date he was [1] a 'Surveillance Officer employed by the City of Perth'. He met the respondent on three occasions. He was unable to recall the exact dates and times of these meetings.

43 However, the first meeting was [4] 'shortly prior to 12 February 2007', when the respondent 'said that he was a lawyer and that he had requested some footage from the City of Perth', saying also 'he was concerned that the footage might not have been saved and he wanted to confirm that the footage had been put aside for him'.

44 The second occasion was [5] 'on the day he delivered a witness summons for Mr Steve Cummings to produce to the Magistrates Court the tapes of the footage that he had requested', when the respondent again 'told me that he was a lawyer'.

45 The third occasion was [6] 'after the delivery of the witness summons for Mr Cummings but before Mr Cummings was due to produce the tapes to the Court'. Mr Harris deposes that on that occasion the respondent told him 'that he was a lawyer and that he was concerned that the tapes might not be duly produced'.

46 Mr Harris further deposes that [7], [8] and [9], part as follows:

Having dealt with many lawyers in my 26 year career in law enforcement, I felt Mr Tee's demeanour during our meetings to be quite unlike that which I expected of a lawyer. I observed that Mr Tee was sweating profusely, to the point that his shirt appeared visibly wet under his jacket. This struck me as unusual for a man who was of slim build. Mr Tee appeared uncomfortable and agitated, and he spoke very quickly with an 'Upper Class' English accent. He did not stand still and was very animated with his hand gestures.

Some time after 1 March 2007, I contacted Mr Tee in relation to the money he owed the City of Perth for the tapes that had been produced by Mr Cummings to the Perth Magistrates Court in compliance with summons. Mr Tee answered his mobile telephone in an accent that was completely different to the one that he had when he attended the CitiWatch Office. When I identified myself, Mr Tee immediately reverted to an 'Upper Class' English accent that I had previously known him to use.

By reason of the matters referred to in paragraphs 7 and 8 above, I became suspicious of Mr Tee's claims that he was a lawyer. On 9 May 2007, I telephoned the Legal Practice Board and spoke to Ms Miranda Breisch.

47 Mr Harris swore a further affidavit, in CIV 1377 of 2008, in which he provided further detail as to these meetings. I do not consider that that provision gives me any reason to doubt the reliability of his evidence in either affidavit.

48 In its material parts the Cummings affidavit states that as at 4 October 2007 he was [1] 'Team Leader Ranger/Security & Surveillance employed by the City of Perth'. On or about 12 February 2007 he received the witness summons of 12 February 2007, and on 1 March 2007 he attended at the Criminal Registry of the Magistrates Court and 'produced two tapes containing the video surveillance footage referred to in the summons'.

49 In its material parts the Bradley affidavit states that as at 30 October 2007 he was [1] 'a Surveillance Officer employed by the City of Perth'. On 20 July 2007 he received a telephone call from a man who said his name was James Tee and who [3] 'said that he was a lawyer from Wittingham and Associates' and that he had previously been dealing with Steven Cummings of the City of Perth. The man asked for certain video footage and said [4] he would complete 'the necessary paperwork for the request and that he would forward the paperwork to the City of Perth'; this 'prompted' Mr Bradley 'to ask [the man] if he was a lawyer', to which he responded 'yes'. I do not consider that that question, when the information it sought (by way of confirmation, in my view) had previously been given, gives me any reason to doubt the reliability of Mr Cumming's evidence.

50 In relation to the originating motion in CIV 1377 of 2008, the affidavits relied upon are those of Ms Breisch sworn 11 April 2008 (the Breisch affidavit of 11 April 2008), Mr Harris sworn on the same date (the Harris affidavit of 11 April 2008) and Yin Chieh Fang sworn on the same date (the Fang affidavit of 11 April 2008).

51 In its material parts the Breisch affidavit of 11 April 2008 states that she had conducted searches of the register of legal practitioners maintained by the applicant under Legal Practice Board Rules 2004 (WA) r 70 and of the applicant's register of the Roll of Practitioners. Neither search ([4] and [5]) revealed an entry for 'James Hong Tee'. It is not clear if these were further searches to those deposed to in the Breisch affidavit of 21 September 2007. However, in my view the matter of whether or not one search or two was done in each case is not relevant for the purposes of my deliberations.

52 The Harris affidavit of 11 April 2008 provides greater detail in respect of the three meetings referred to in the Harris affidavit of 4 October 2007.

53 In relation to the first meeting, the Harris affidavit of 11 April 2008 states [15] that the video surveillance footage called for by the witness summons of 12 February 2007 was recorded on 2 and 3 February 2007, and Mr Harris' first meeting with Mr Tee was after 3 February 2007. Mr Harris deposes [4] he was at work in the CitiWatch office when the buzzer at the front door sounded and Mr Harris heard a voice saying 'I am James Tee and I am a lawyer. I am here to see Steven Cummings'. On being asked by the Surveillance Supervisor to see that person and to tell him that the footage he had requested had been downloaded, Mr Harris [5] met the person at the front door where that person said 'My name is James Tee and I am a lawyer', going on to say 'he was representing a client and he had requested some video surveillance footage from the City of Perth'. That person further said [6] he was concerned that the footage might not have been saved, and that the 'footage was important because it was required as evidence in his client's case, and he wanted to confirm that the footage had been put aside for him'.

54 It will be noted that the further detail as to the first meeting includes not simply matter as to the date, forms and terms of the communications between Mr Harris and the person he met but in particular that that person said he was a 'lawyer' who was 'representing' a person who was his 'client' for whose 'case' the video footage was required as 'evidence'.

55 In relation to the second meeting, the Harris affidavit of 11 April 2008 states [16] that the summons issued to Mr Cummings which the respondent said at that meeting the respondent had for Mr Cummings was dated 12 February 2007 and Mr Harris' second meeting with Mr Tee 'was on or about 12 February 2007 or shortly after then'. At the second meeting Mr Harris [8] heard a voice over the office intercom saying 'This is James Tee, a lawyer, here to see Steven Cummings'. On going to the front door Mr Harris [9] found 'Mr Tee' standing there; 'Mr Tee' said 'James Tee. I am a lawyer', Mr Harris replying 'I know. We met before', to which 'Mr Tee' responded 'Oh yes'; 'Mr Tee' added 'he had a witness summons for Mr Steven Cummings to produce to the Magistrates Court the tapes of the footage that he had requested'. In the course of the ensuing conversation Mr Harris said [10] 'I could give the summons to Mr Cummings' after which 'Mr Tee handed me the summons and left'.

56 It will be noted that the further detail as to the second meeting includes the date, forms and terms of the communications between Mr Harris and the person he met then. There is no express reference, however, to that person representing a client, or to Mr Harris having read the witness summons handed to him.

57 In relation to the third meeting, the Harris affidavit of 11 April 2008 states [17] the witness summons of 12 February 2007 'required Mr Cummings to produce the tapes to the Magistrates Court on 1 March 2007', and 'my third meeting with Mr Tee was after 12 February 2007 and before 1 March 2007'. At the third meeting Mr Harris [12] was at work in the CitiWatch office when he heard a voice over the intercom saying 'This is James Tee. I am a lawyer. I am here to see Steven Cummings'. Mr Harris [13] then went to the front door and met the same person 'who had introduced himself to me on the two earlier occasions as James Tee'. That person [14] told Mr Harris that that person 'was a lawyer and said that he was concerned that the tapes that he had summonsed Mr Cummings to produce might not be duly produced', and Mr Harris said that 'as long as the tapes were paid for prior to their delivery date, there would not be any problem with Mr Cummings producing them'.

58 Again, as with the second meeting, it will be noted that the further detail as to the third meeting includes the date, forms and terms of the communications between Mr Harris and the person he met then. There is no express reference, however, to that person representing a 'client' or a 'case' for which 'evidence' was required.

59 For all three meetings, it will also be noted that the language in relation to them of the Harris affidavit of 11 April 2008 corresponds closely with that used in the three grounds respectively in the notice of originating motion of 11 April 2008.

60 The Fang affidavit of 11 April 2008 states that she was a solicitor employed by the solicitors for the applicant, that on 9 April 2008 she had telephoned Mr Harris to request him to provide further details about his meetings with the respondent, and that based on his replies she had prepared a further affidavit for him to swear which [4] 'expanded on the matters in [the Harris affidavit of 4 October 2007]'. This in my view explains the production of the Harris affidavit of 11 April 2008 with its further detail as to the three meetings it describes.

61 As to the matter of the provision of the applicant's submissions and these affidavits in CIV 2100 of 2007 and CIV 1377 of 2008 to the respondent prior to the present hearing, I am satisfied on the evidence that these were duly served on the respondent. I derive this satisfaction from the affidavit of service in CIV 2100 of 2007 of Brian McNally sworn 16 November 2007 (the McNally affidavit) which counsel for the applicant undertook at the hearing on 2 September 2008 to have filed and which was duly filed; the affidavits as to service in CIV 1377 of 2008 of Susan Rae Brook sworn 30 May 2008 (the Brook affidavit) and of Fiona Vernon sworn 3 June 2008 (the Vernon affidavit); the Fang affidavit of 29 August 2008, as well as the testimony of Ms Fang given at the hearing before me on 2 September 2008; and Exhibits 1 - 4.

62 As to the affidavits in CIV 2100 of 2007, the McNally affidavit states that the Harris affidavit of 4 October 2007, the Bradley affidavit, the Cummings affidavit and the Breisch affidavit of 21 September 2007 were all served on the respondent on 10 November 2007 together with the originating motion in CIV 2100 of 2007 dated 31 October 2007. In addition, I note the minute of proposed orders of the respondent dated 21 November 2007 (Exhibit 2) sought orders to strike out these affidavits 'or parts thereof'.

63 As to the submissions dated 16 November 2007 in CIV 2100 of 2007, there is a facsimile from the solicitors for the applicant to the court dated 16 November 2007 (Exhibit 1) stating that 'attached' are 'the applicant's submissions for the hearing'. The facsimile at its end shows 'cc: Mr James Tee By facsimile [to the number there given]'. The facsimile number there given is that which Ms Fang included in a file note (Exhibit 3) of her conversation with the respondent of 14 November 2007, and is also shown as the transmission header in the facsimile from the respondent to the court dated 20 November 2007 in relation to a hearing of the matter CIV 2100 of 2007 on 21 November 2007 (Exhibit 4).

64 As to the affidavits in CIV 1377 of 2008, the Vernon affidavit [2], [3], [10] - [12], read with the Brook affidavit [2] and annexure 'SRB1' to the latter affidavit, indicates that the Fang affidavit of 11 April 2008, the Breisch affidavit of 11 April 2008 and the Harris affidavit of 11 April 2008 were all served on the respondent on 29 May 2008.

65 As to the submissions in CIV 1377 of 2008 dated 12 August 2008, the Fang affidavit of 29 August 2008 annexes a copy of a letter dated 12 August 2008 from the solicitors for the applicant addressed to the respondent at '[an address in West Perth]'. That address in West Perth is that which Ms Fang included in a file note (Exhibit 3) of her conversation with the respondent of 14 November 2007, and is also shown as the address for the respondent 'c/- First International Merchant Bank (North America) Holdings Limited' in Exhibit 4. It is true that there is another address on the same street in West Perth given for the respondent care of 'First International Merchant Bank' in the witness summons of 12 February 2007. However, the information from the respondent as to his address in Exhibit 4 postdates the witness summons of 12 February 2007.

66 As I have previously indicated, the respondent was not at the hearing on 2 September 2008. Each of the deponents to the affidavits relied upon in the written submissions for the applicant attended, but of course they were not cross-examined. Thus I do not have any cross-examination by which to test the reliability of the accounts in their affidavits.

67 I understood all of those affidavits were to be taken as read into evidence before me. Accordingly, I consider I am in a position to evaluate the evidence in each of them by reference to the content of each with any assistance to be derived from relevant evidence in others. So evaluating them, I consider I have no reason to doubt the reliability of any of that evidence. In particular I consider I do not have any reason to doubt the reliability of the evidence of Mr Harris or Mr Cummings from the content of their affidavits I previously addressed.

68 I set out now my findings with respect to each of the contraventions in the order (by date of alleged commission) in which I set them out above.

Findings: the early February 2007 contravention

69 I find this alleged contravention of the 2003 Act s 128(b) to have been established beyond a reasonable doubt.

70 I begin by noting that counsel for the applicant did not contend that the use of 'lawyer' would of itself necessarily be sufficient to establish such a contravention. He gave the example of a law student in the company of other university students using the term to distinguish herself as a law student from students of other disciplines. Counsel said the matter was one of the context in which 'lawyer' was so used.

71 I agree, although there is very little authority on s 128(b) that either counsel or I could find on the point. However, in my view what authority there is in this state supports that approach.

72 That authority in this state is The Barristers Board v Palm Management Pty Ltd [1984] WAR 101, a prosecution which included an allegation of an offence under Legal Practitioners Act 1893 (WA) (the 1893 Act) s 80, committed by a Mr Nettleton in respect of documents which showed him as 'company lawyer'. The 1893 Act s 80, the offence charged and the approach taken by Brinsden J are shown at 110:

The only remaining question is the contempt pleaded in para 2, this time only against Nettleton involving the use in certain documents of the words 'company lawyer'. This contempt involves a breach of s 80 which states:-

'No person other than a practitioner shall in any manner hold himself out as or pretend to be or make or use any words or any name, title, addition, or description implying or tending to the belief that he is a practitioner or is recognised by law as such.'

There is no doubt Nettleton authorised the description of his occupation as company lawyer. When he first commenced to work with the company he was referred to as 'company solicitor' but he demurred at that description and suggested company lawyer, the work 'lawyer' being in his opinion an overall generic term which covers academics, people employed in the government, and people qualified in other jurisdictions. He was himself a graduate of the Adelaide Law School and had achieved admission at the time this contempt is alleged to have been committed, in the ACT, but he was not admitted as a practitioner of this state and so therefore was not a practitioner within the meaning of s 3. It is put up that the section is really only directed to a person who holds himself out as a practitioner, that is to clients and the public at large or a particular portion of it. The documents concerned, it was said, were internal documents and not of the nature that could have the effect of making any misrepresentation. It is my belief that the words used amount to making or using words implying or tending to the belief that Nettleton was a practitioner and was recognised by law as such. The documents were intended to be filed in the Corporate Affairs Office, and indeed probably were, and were therefore available for inspection. Furthermore, they may well have given the impression to the Corporate Affairs Office staff that they had been prepared by a lawyer, that is, a practitioner admitted and entitled to practise in the Supreme Court of Western Australia. The matter is one of impression and my impression is that the use of the description breaches s 80 and thus the contempt has been established.

73 I consider that the 'impression' referred to draws in the context in which the relevant representation or representations is or are made, as his Honour indicates, in my view, by his reference to the use of the document. At the same time, I consider that his Honour allows for the possibility that a representation (such as that a person is a 'lawyer') might have been made in a context in which the person to whom the representation is directed has or has had other dealings. Those dealings for that person considered as a reasonable person, might colour the representation. Such colouring would in the terms of both the 1893 Act s 80 and the 2003 Act s 128(b) give the 'name', 'title', 'addition' or 'description' used the character of one 'implying or tending to the belief that the person is a legal practitioner or is recognised at law as a legal practitioner'. Alternatively, they might be considered to be part of a 'description' comprising the elements making up the context.

74 This view of the matter derives from his Honour's reference to the suggestion put to him that the documents were only 'internal' ones, and thus might be 'not of the nature that could have the effect of making any misrepresentation', and his response in terms of a contrast between that and the context in which the documents were in fact to be used.

75 Further, I consider (although his Honour does not address this aspect of the matter) the reference to 'impression' means the relevant context may include that of the dealings between the person using the 'name', 'title', 'addition' or 'description' and the person at whom that use was directed, in accordance with the offence as alleged and proved.

76 In this respect, I consider Palm Management supports the same approach to the 2003 Act s 128(b) as was taken with respect to the corresponding prohibition in the legislation in Victoria to the 2003 Act s 128(b) in Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, 195 (J D Phillips J). That authority concerned, among other things, the prohibition in an injunction of the defendant from 'using any name or title implying that he is qualified to practise as a Solicitor', terms of which corresponded to prohibitions in Legal Profession Practice Act 1958 (Vic), s 90(7) and s 92(1)(a). I note also Kekatos v Council of the Law Society of New South Wales [1999] NSWCA 288 [21] (on count 10) and [90] - [96] (Giles JA), [1] (Handley JA) and [2], [3] (Powell JA), which I consider is to the same effect on the corresponding prohibition under the corresponding NSW legislation.

77 It is important I note that Cornall has been referred to in authorities both in Victoria (see for example Law Institute of Victoria Ltd v Lydia Maric & Home Conveyancing Reservoir Pty Ltd [2008] VSCA 46) and elsewhere including this state (see for example Legal Practitioners Board v Ferguson [2006] WASC 250) in relation to what under the 2003 Act is the prohibition in s 123(1), which reads:

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

Penalty: $10 000.

78 It will be noted that that prohibition is not only in different terms from that in the 2003 Act s 128(b), but also carries a different (and higher) maximum penalty.

79 The present proceedings are not for any contravention of 2003 Act, s 123(1). However, it seems clear that conduct caught by s 128(b) might form part of conduct in contravention of s 123(1). See on that possibility Re Sanderson, Ex parte Law Institute of Victoria [1927] VicLawRp 57; [1927] VLR 394, 397 (Cussen J), quoted from in Law Society of NSW v Seymour [1999] NSWCA 117 at [16] (Giles JA). I return to Seymour at a number of points below.

80 In the case of the present alleged contravention, I note the evidence in the Harris affidavit of 11 April 2008 of the conversation in which the person he met identified himself to Mr Harris as a 'lawyer' [4], who was 'representing a client' [5], and who was requesting some video surveillance footage that was 'required as evidence in his client's case' [6]. In my view these forms of identification together constituted or produced the contravention of s 128(b) alleged.

81 I consider that a reference to 'my client' is not one that would of itself give rise the implication or the tendency referred to in the 2003 Act s 128(b): see Seymour [10] (Giles JA) (quotation from decision of trial judge) and [22] - [23] (Giles JA). However, the combination of the respondent's reference to 'his client' with his references in this case to himself as a 'lawyer' and his statement he was concerned as to the importance of the video footage he had requested as 'evidence in his client's case' to an officer of the agency holding that footage is a use proscribed in s 128(b). I consider the combination is a 'description' within that provision, or alternatively that 'lawyer' in the context in which it was used was the use of a 'name', 'title' or 'description' within that provision.

82 There is not in this case the use of a 'name', 'title' or 'description' with qualifications which would leave a reasonable person at whom the use was directed uncertain as to whether or not the user was a legal practitioner: compare Cornall 196 (on using 'attorney' followed by 'appointed under the Instruments Act').

83 In that respect, I have carefully considered the evidence in the Harris affidavit of 4 October 2007, [7], [8] and [9] above, concerning his suspicion from the conduct of the respondent at each of Mr Harris' meetings with him, as well as the later telephone conversation with him, that the respondent might not be a 'lawyer'.

84 I do not consider this is evidence that the respondent's words in context were not ones implying or tending to the belief he was a legal practitioner. The beliefs of the person at whom the conduct is directed may be relevant, if not determinative: Seymour [10] (Giles JA). However, Mr Harris' evidence is not that he was uncertain as to what the name, title or description the respondent used meant, but rather that he was suspicious as to whether or not what they meant was the fact. I do not consider that his suspicions are evidence that a reasonable person in his position would be uncertain as to what to believe from the name, title or description used by the respondent.

85 I should note that at the hearing on 2 September 2008 I considered in particular the evidence that the person Mr Harris met in early February was the respondent. In my view that evidence establishes beyond a reasonable doubt he did indeed meet with the respondent. That evidence is in the Harris affidavit of 11 April 2008, and is of the name by which the person introduced himself; of Mr Harris meeting the same person on two subsequent occasions as I have indicated; and of that person on the first of those occasions producing to Mr Harris, and then on the later such occasion inquiring after, the witness summons of 12 February 2006 (annexure 'DH1' to that affidavit). That document is in the same name (with the addition of a middle name or initial); seeks the production of video surveillance footage; and bears a signature apparently identical with the signature of the respondent on Exhibit 4. While all of this is circumstantial evidence, it is evidence which in combination makes any hypothesis that the person Mr Harris met on those three occasions was not the respondent one that is not 'reasonable' in the sense explained in Burke v The Queen (1997) 96 A Crim R 334 (WACCA) 336 (Malcolm CJ); see also 352 - 353 (Walsh J). It thus satisfies the standard for making, based on circumstantial evidence, a determination necessary before a finding of guilt in a criminal case can be arrived at: see R v Hillier [2007] HCA 13; (2007) 228 CLR 618.

Findings: the mid February 2007 contravention

86 I also find this alleged contravention of the 2003 Act s 128(b) to have been established beyond a reasonable doubt.

87 Here I note that the person Mr Harris met whom he had previously met did not again refer to a 'client', for whose 'case' certain video footage was required as 'evidence'. Indeed the witness summons of 12 February 2007 he produced for Mr Harris to pass on to Mr Cummings, in the area alongside 'Claimant', had as the entry the name by which he had previously identified himself to Mr Harris with the addition of a middle name. However, I do not consider on the evidence this would have caused Mr Harris, had he noted that entry, to have doubted he was dealing with a legal practitioner. This is in view of the prior dealing Mr Harris had had with the respondent, which was in fact specifically referred to by Mr Harris in his conversation with the respondent on this second occasion (see the Harris affidavit of 11 April 2008 [9]).

88 Indeed the production of the witness summons of 12 February 2007, a legal document, in my view forms part of the context which causes me to conclude that there was the contravention alleged.

89 Below I consider the details for the respondent in that document and conclude they do not in combination constitute or produce the contravention there considered. Here, however, there is additional context not alleged for the purposes of that contravention. That context, for Mr Harris had he read the details for the respondent, would in my view have coloured those details.

90 As to the identity of the person Mr Harris met on this second occasion, for the same reasons as those referred to for the previous contravention I find it established to the criminal standard that that person was the respondent.

Findings: the contravention by the witness summons of 12 February 2007

91 I do not find this alleged contravention of the 2003 Act s 128(b) to have been established beyond a reasonable doubt, although the matter is one I consider very close to the line.

92 It is important I note again the terms of the alleged contravention. In particular, I should note that the audience for the document is not referred to as Mr Harris, to whom the summons is not directed in any event, but rather 'persons reading the summons'. I consider this to be a reference to persons such as officers of the Magistrates Court for which the summons was taken out, the person to whom the document was directed (Mr Cummings), and others who would properly have access to it, being persons with no other information as to Mr Tee than that in it. Indeed the Cummings affidavit does not refer to any other acquaintance with Mr Tee than that provided by the witness summons of 12 February 2007.

93 I have already indicated that the witness summons of 12 February 2007 does not indicate on its face that the respondent was acting for any one else. Nor does the document anywhere use 'lawyer'.

94 However, the witness summons of 12 February 2007 does use the words quoted in ground 3 of the originating motion in CIV 2100 of 2007 which it is alleged, when considered 'collectively', constitute the contravention alleged. At the same time in my view the words are used in ways which when considered as a whole prevent me finding that contravention to the relevant standard.

95 The ways in which the words are used in my view must be seen from the relevant part of the witness summons of 12 February 2007, which is in the portion of the lower part of the document, being the entries alongside 'Requesting party details'. That portion appears as follows:

This summons is issued at the request of: THE APPLICANT [signature appears]

96 A signature appears largely across the box containing the entry 'THE APPLICANT'. That signature is very similar to that of the respondent in Exhibit 4.

97 In view of that entry and that signature, as well as the 'reference number' (including 'JT') appearing on the document, I do not consider on the evidence before me there is room for any doubt that the respondent prepared and issued the document.

98 Nor is there any reason to doubt that the reference to 'James H Tee' is a reference to the respondent.

99 I turn to consider the entries referred to in relation to the present alleged offence. Although the offence alleged is that they 'collectively' represent a contravention, I consider it useful first to consider them individually. I find support for that approach in Cornall 194 - 196.

100 There is evidence in the Breisch affidavit of 21 September 2007 [8] which I have previously quoted, but which for convenience I set out again, that in her

experience as a legal practitioner, the reference 'JT/crimlit.99120207.DOC' in the summons is a reference of a type commonly used by legal practitioners in court documents and suggests to me that:

(a) the summons was prepared by a person whose initials were 'JT'

(b) the matter was a criminal litigation matter; and

(c) the client's reference or file number was 99120207.'

101 However, this is not evidence that such a reference is one that would of itself mark the user as a legal practitioner and thus represent a contravention of the 2003 Act s 128(b). Others might use such a reference. The contrary was not put to me by counsel for the applicant.

102 The reference to a 'PIL', apparently obtained from 'Harvard Law School', also does not of itself represent such a contravening use. Again, the contrary was not put to me. As a matter of 'impression' (Palm Management at 110) a representation that a person held a university degree even from a law school, let alone from a foreign law school, would not necessarily constitute a contravention of the 2003 Act s 128(b). See also Seymour [10] (Giles JA) (quotation from trial judge) and [23] (Giles JA). There is in my view a recognised distinction between the academic qualification and the practical one represented by the status of 'legal practitioner' within the 2003 Act s 3: see the 2003 Act s 27 (qualifications for admission as a legal practitioner).

103 However, it might be that a representation that a person is a 'notary public' might on its own more easily represent the use of a 'title' or 'description' of the character referred to in the 2003 Act s 128(b).

104 Under the Public Notaries Act 1979 (WA) s 7(2) a person to be 'qualified to be appointed a Public Notary' must satisfy the Chief Justice that the applicant is, among other things:

(a) ... on the Roll of Practitioners under [the 2003 Act] and is not pursuant to that Act under suspension from practice

105 It will be noted here, however, that the representation was in terms 'Notary Public', rather than 'Public Notary', although so slight a difference might not prevent the representation having the character that the qualification would suggest. However, the difference was accompanied by the further qualifiers '(NY) CD (NYC)'. In my view those qualifiers with that difference would significantly affect the capacity of the words to have themselves the offending character in the 2003 Act s 128(b). See Cornall 196 (on 'attorney'), to which I referred earlier.

106 The references to 'General Counsel' and 'General Notary' are ones that of themselves might also more readily than the references to a file and a law school qualification be seen to have that offending character. However that might be, they are qualified in the present context by their character here as part of a section of the document indicating where the respondent could be contacted, not or not clearly the respondent's name, title or description. That significantly reduces their tendency otherwise to represent the respondent (as it might be suggested the words, considered on their own, might do) as 'General Counsel' and 'General Notary'.

107 I must now consider 'collectively' the references that I have analysed individually to determine whether or not I find the offence alleged proved beyond a reasonable doubt. In doing so I must consider the qualifications referred to as part of the context in which the use of the terms quoted in the allegation occurred. See the use of that approach in Cornall 194 - 196.

108 So considered, I do not consider the offence proved beyond a reasonable doubt. The terms in the context of their use and considered collectively do not in my view have the offending character in the 2003 Act s 128(b).

109 True it is that, as counsel for the applicant put to me, the matter should be approached in a common sense way, without undue technicality or narrow focus on the precise terms of the representation relied upon. This is supported by the reference in Palm Management at 110 to the matter as one of 'impression'. However, I consider that the 'impression' is one formed after the relevant context is considered, being the context made relevant by the offence as alleged and proved.

110 This last point is illustrated by my earlier finding of the offence in the use of the name, title or description in mid February 2007. I there considered that the witness summons of 12 February 2007 was a part of the relevant context which produced that finding. For the present offence, however, I consider as I have said that I must ignore the position of Mr Harris and his prior dealings with the respondent.

111 Rather, my focus has to be one solely on the terms of the witness summons of 12 February 2007. Those terms, when considered in combination, in my view, do not satisfy me to the criminal standard that they give rise to the implication or tend to the belief that the respondent was a 'legal practitioner' or 'recognised at law as a legal practitioner'.

Findings: the contravention of later in February 2007

112 I find this alleged contravention of the 2003 Act s 128(b) to have been established beyond a reasonable doubt.

113 Here I note that the person Mr Harris met whom he had previously met on two occasions again did not refer to a 'client', a 'case' or 'evidence'. However, that person again said he was a 'lawyer' and drew in the prior dealings between himself and Mr Harris by specifically referring to the 'tapes he had summonsed Mr Cummings to produce' [14]. The latter reference removed any reason to doubt that that person was again making a use of the sort referred to in the 2003 Act s 128(b).

114 As to the identity of the person Mr Harris met on this third occasion, for the same reasons as those referred to for the previous two occasions I find it established to the criminal standard that that person was the respondent.

Findings: the contravention of 20 July 2007

115 I find this alleged contravention of the 2003 Act s 128(b) to have been established beyond a reasonable doubt.

116 Here as I was reminded by counsel for the applicant there was a reference by the person who spoke to Mr Bradley to that person being a 'lawyer from Wittingham and Associates' [3].

117 However, there is no evidence of prior dealings between Mr Bradley and that person, nor any evidence of what Mr Bradley understood by that person's reference to 'Wittingham and Associates', or that person's having 'previously been dealing with Steven Cummings of the City of Perth'. I particularly note that of course a person with legal qualifications who is not a legal practitioner may do work for a business which would not require that person to be a legal practitioner: see Seymour [10] (Giles JA) (quotation from trial judge) and [23].

118 If matters rested there, I would not consider that the only reasonable inference as to the meaning of the references was that the person's reference to a prior dealing in the context of the reference to a firm was to a prior dealing by that person as a legal practitioner.

119 Further, I note that the request for 'video footage' related to a later time than that the subject of the witness summons of 12 February 2007, to which no express reference was made in the evidence of Mr Bradley [4].

120 Nor, unlike the first, second and fourth offences, was there any reference to legal proceedings, evidence and a client which might colour any of the references I have so far referred to.

121 However, I have also noted the reference by the person with whom Mr Bradley was speaking to that person preparing 'the necessary paperwork' for a request to obtain video footage from the city, which 'prompted' Mr Bradley's question of him whether he was a 'lawyer', and his response 'yes'. That sequence, in my view, indicated both Mr Bradley's understanding that the reference to 'the necessary paperwork' was to a matter to which the status of a 'lawyer' was relevant, and the confirmation by the person with whom Mr Bradley was speaking that that person was a 'lawyer'. In my view that confirmation in the context of the other references I have referred to has been shown beyond reasonable doubt to have been the use of a name, title or description contravening the 2003 Act s 128(b). Alternatively those references together constituted the use of a 'description' of that sort.

122 I also find there is no reasonable doubt that the person with whom Mr Bradley was speaking was the respondent. I consider that the evidence of Mr Bradley of that person's identification of himself as 'James Tee' [3] and of his reference to previous dealings with Mr Cummings in combination makes any hypothesis that the person Mr Bradley spoke to on this occasion was not the respondent one that is not 'reasonable' in the sense explained in Burke at 336.

123 I have concluded that the respondent is guilty of the statutory contempt alleged in respect of the first, second, fourth and fifth offences above.

124 This brings me to two further matters, of penalty and costs, including costs reserved in respect of prior hearings.

125 As to penalty, at the present hearing it was not contended any penalty imposed for any offence found to have been committed should be other than a fine up to the amount referred to in the 2003 Act s 128(b) of $2,500. The only written submissions as to penalty with which I was provided (see submissions in CIV 2100 of 2007, [13] and [14]) appear to be in such terms. However, counsel for the applicant did not press on me that, in the event of any findings of guilt I made, I should proceed to determine penalty without a further opportunity for the respondent to appear and make submissions.

126 I should also note it is not immediately apparent to me that under the 2003 Act s 250 there is any restriction, to a fine, on my power to impose a penalty. I note that in other cases of proceedings for statutory contempt in respect of contraventions of s 123 which included allegations of contraventions of s 128 the court imposed custodial terms. See the authorities referred to in Frichot (S) [106], where the matter is addressed but appears to be left for further argument. I note also Legal Practice Board v Frichot [2006] WASC 230 (S2), particularly [41] - [46] (Hasluck J), where in his decision in the subsequent proceedings his Honour reviews the principles which he considered should guide his determination as to penalty.

127 In any event, it seems to me that, in view of the absence of the respondent, as well as the character of the submissions before me and the position of counsel for the applicant, there should be a further hearing as to penalty preceded by service on the respondent of more detailed submissions as to my powers as to penalty and the penalty I should impose, including how I should approach questions of the totality of the offending I have found in this case.

128 Further, there are matters of costs that now fall to be addressed, including costs of the previous hearings the costs of which were reserved. In that regard I note the chronology of events dated 1 September 2008 handed up at the hearing. Counsel for the applicant indicated to me that that chronology could usefully be supplemented with a further column indicating what orders as to costs were made at the hearings there referred to.

129 It follows in my view that (see Frichot (S) [108] where similar allowance was made) I should, following the handing down of these reasons for decision, make directions for the service of these reasons and other orders of a programming nature providing for submissions as to penalties and costs (including a revised form of the chronology referred to) and a further hearing as to penalties and costs.

130 I will hear from the parties as to the directions in those respects I should make.