Legal Practice Act 2003 (WA), s 250

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

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

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

Attorney-General v Quill Wills Ltd (1990) 3 WAR 500

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

Legal Practice Board v Adams [2001] WASC 78

Legal Practice Board v Heedes [2004] WASC 260

Legal Practice Board v Mullally [2003] WASC 225

Legal Practice Board v Rogers [1999] WASC 106

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

The Barristers' Board v Marbellup Nominees Pty Ltd & Ors [1984] WAR 335

1 BLAXELL J: This is an application by the Legal Practice Board for orders that each of the respondents be punished for the following conduct which constituted a contempt of court:

"1. ... neither of them being duly certified legal practitioners, did during the period from in or about September 2002 to in or about March 2003, at Perth, directly or indirectly:

(a) perform, carry out or engage in work in connection with the administration of law in obtaining and acting on instructions from Adrian James Murphy (Murphy) and AMFM Distribution Pty Ltd to effect:

(i) the transfer by Murphy of his rights and entitlements under a License Agreement to sell and supply products to Brian Thornton;

(ii) the retirement of Murphy as Trustee of the Murphy's Family Trust and the appointment of AMFM Distribution Pty Ltd as Trustee of the Murphy's Family Trust; and

(iii) the transfer by Amaton Investments Pty Ltd of its rights and entitlements under a Deed of Assignment to sell and supply products to Allan Charles Bradshaw and Colleen Gladys Bradshaw.

(b) in the course of carrying out the instructions referred to in sub-paragraph 1(a) above, did draw or prepare or cause to be drawn or prepared deeds, instruments and writings relating to or dealing with or affecting personal estate or an interest therein, namely:

(i) a document executed in or about late 2002 entitled 'License Agreement' between Murphy as trustee for Murphy's Family Trust trading as AMFM Distribution Services and Brian Thornton;

(ii) a document dated 21 January 2003 entitled 'Deed of Retirement and Appointment' between Murphy as retiring trustee, Murphy as appointor and AMFM Distribution Pty Ltd as incoming trustee; and

(iii) a document dated 28 March 2003 entitled 'Deed of Assignment' between AMFM Distribution Pty Ltd as trustee for Murphy's Family Trust as licenser, Amaton Investments Pty Ltd as assignor and Allan Charles Bradshaw and Colleen Gladys Bradshaw as assignees."

2 The respondents each admit the alleged conduct and also that the same constitutes a contempt of court. Accordingly, the only issue to be determined is the question of the appropriate penalties.

3 At all material times the first respondent ("Mr Tilley") was a certified practising accountant with an incorporated practice which was conducted in the name of the second respondent. Mr Tilley held appropriate professional qualifications as a member of the Australian Society of Accountants, a Fellow of the Taxation Institute of Australia, a registered tax agent, and as an authorised financial planner under the Corporations Act. One of Mr Tilley's clients was Mr Adrian Murphy who conducted a business distributing dairy products and other products on behalf of the "Harvey Fresh" organisation. Mr Murphy initially conducted this business as trustee for the Murphy's Family Trust, but he later incorporated AMFM Distribution Pty Ltd to act as trustee in his stead.

4 As Mr Murphy's business expanded he decided to sell various distribution runs. He sought advice from Mr Tilley as to how he should go about this and was told that an agreement would need to be signed each time a distribution run was sold.

5 In June 2002 Mr Murphy reached agreement with Mr Brian Thornton of Amaton Investments Pty Ltd for the sale of a particular distribution run (being "the Mandurah Delivery Round") for a total sum of $115,000 (comprising $72,000 for a "licence fee" and $50,000 for a vehicle which was to be used in delivering products).

6 Mr Murphy then asked Mr Tilley how this agreement should be formalised, and at the latter's request prepared and forwarded written details of the various matters that had been agreed. Mr Tilley then prepared a ten page draft "License Agreement" dated 19 September 2002 which he faxed to Mr Murphy.

7 When preparing this draft License Agreement, Mr Tilley drew upon documents in his office which were of a similar nature and which had been prepared at various times by legal practitioners. He considered that these were a standard type of agreement which could simply be replicated and made available to Mr Murphy by varying names, addresses, and particular terms.

8 Mr Murphy accepted that the draft License Agreement was appropriate for his purposes and had the document executed and returned to Mr Tilley. Mr Tilley then lodged the completed agreement with the Office of State Revenue and arranged for Mr Murphy to attend to pay stamp duty.

9 On 17 December 2002 Mr Tilley forwarded to Mr Murphy an account for professional services totalling $1100 which included the following items:

"Preparation of draft agreement for review by the parties to the License Agreement.

Binding a finalised agreement and liaison with the Office of State Revenue, including supply of relevant details for assessment of stamp duty."

10 In about January 2003 Mr Murphy asked Mr Tilley to arrange for the appointment of AMFM Distribution Pty Ltd as trustee of the Murphy's Family Trust in substitution for himself. In response to these instructions Mr Tilley drafted a three page "Deed of Retirement and Appointment" which was executed by the parties on 21 January 2003. Mr Tilley's previous account dated 17 December 2002 had included an item "Review of trust deed of Murphy's Family Trust and business name AMFM Distribution Services", but a subsequent account for professional services (dated 21 April 2003) totalling $2332.24 included the additional item:

"Attendance to deed of resignation and appointment in respect of the Murphy's Family Trust."

11 In early 2003 Mr Brian Thornton decided to sell the Mandurah Distribution Round that he was operating under licence from Mr Murphy. Accordingly, Mr Thornton advertised the round for sale and reached agreement with Mr Allan Bradshaw for the latter to purchase the same for the sum of $115,000. They formalised this agreement by filling in a standard business sale agreement form printed and supplied by the Real Estate Institute of WA (Inc).

12 This agreement was executed, and a deposit of $1000 was paid on 1 March 2003. It was a term of the agreement that settlement would take place on 27 March 2003, at which time there would be an assignment of the distribution license from Mr Thornton to Mr Bradshaw.

13 At Mr Murphy's instructions, Mr Tilley then prepared a four page "Deed of Assignment" which was executed by the parties on 28 March 2003. On 21 April 2003 Mr Tilley forwarded to Mr Bradshaw an account for professional services totalling $660 in respect of "special work" being:

"Discussions with Adrian Murphy in respect of the assignment of the Mandurah round.

Review of License Agreement and preparation of draft Deed of Assignment.

Attendance generally thereto."

14 Mr Tilley's letter enclosing the account stated that:

"Our work was undertaken for our client Mr Adrian Murphy, however pursuant to clause 4.2 of the Deed of Assignment, it is your responsibility to pay the costs associated with the preparation of the Deed."

15 On 19 May 2003 Mr Bradshaw attended on Mr Tilley and requested an itemised account. Mr Bradshaw also asked who prepared the documents and was told by Mr Tilley:

"I prepared the documentation and this is my invoice ... that's the time it took to prepare the documentation."

Mr Tilley and/or the second respondent received payment in respect of all three accounts rendered.

16 At the time that the above events took place, s 77(1) of the Legal Practitioners Act 1893 ("the old Act") provided:

"No person other than a certificated practitioner shall directly or indirectly perform or carry out or be engaged in any work in connection with the administration of law, draw or prepare any deed, instrument, or writing relating to or in any manner dealing with or affecting real or personal estate or any interests therein or any proceedings at law, civil or criminal or in equity."

17 Clearly, Mr Tilley breached these provisions by drawing and preparing each of the three documents being the draft License Agreement, the Deed of Retirement and Appointment, and the Deed of Assignment. Furthermore, to the extent that Mr Tilley advised Mr Murphy on the need for these documents, he also engaged in work in connection with "the administration of law". In this regard, Brinsden J held in Barristers Board v Palm Management Pty Ltd [1984] WAR 101, 107 that the expression "the administration of law" is to be read as meaning "the practice of law". His Honour also approved the following test for determining whether the giving of advice for reward constituted the practice of law:

" ... It is safe to follow the rule that if the giving of such advice and performance of such services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the persons giving such advice possess legal skill and a knowledge of the law greater than that possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law." (ibid at 107)

18 As was noted by Malcolm CJ in D'Alessandro & D'Angelo v Bouloudas (1994) 10 WAR 191, 207, s 77 is aimed at protecting members of the public by ensuring that legal work is carried out only by persons who have obtained a proper legal education, have appropriate qualifications, and who are subject to the disciplinary supervision of the courts in their practice of the law.

19 All of the relevant conduct by Mr Tilley in breach of s 77 was carried out on behalf of the second respondent. Accordingly, both respondents were guilty of contempt of the Supreme Court and are liable to be dealt with in accordance with s 81 of the old Act. Although the old Act was repealed on 1 January 2004, s 37(1) of the Interpretation Act 1984 has the effect that liability still attaches for the respondents' breaches of s 77. However, procedurally, the motion comes before the court pursuant to s 250 of the Legal Practice Act 2003 ("the new Act").

20 I have been referred to a number of prior decisions of this Court where penalties were imposed for similar contempts. Almost invariably, fines were imposed and the quantum was generally of a mild to moderate amount. However, many of these decisions were made at a time when the maximum possible fine was the sum of $2000. As a result of amendments to the old Act the penalty at the time of the present contempts was at large.

The factors influencing penalty in the present instance

21 I consider that the present contempt of court can be fairly regarded as a moderately serious example of its kind. It occurred over a period of approximately six months and involved three separate episodes of conduct. The respondents received payment for the work done in breach of the old Act, although not to the extent of the full amounts in the accounts rendered. In this regard I accept that some of the work was of an accounting nature and that it is not possible to determine the quantum of fees improperly charged.

22 There are some significant mitigating factors. I accept that the contempt was committed in ignorance of the law and that Mr Tilley was motivated by a desire to be of service to his client by bringing about the legal rearrangements thought to be necessary at a minimal cost.

23 Furthermore, the present contempt aside, Mr Tilley appears to be a man of exemplary character, and I have received numerous personal references attesting to the high regard in which he is held in the community. I also note that Mr Tilley has made a significant contribution to the community over a number of years as a coach and umpire of junior sporting teams.

24 Notwithstanding submissions on behalf of the respondents to the contrary, I consider it inevitable that both respondents should be fined, they being separate entities that have jointly committed the contempt. Having regard to the relative gravity of the contempt combined with the mitigating factors I have referred to, I consider that the fines should be of moderate severity with each being of the same amount.

25 In all of the circumstances each respondent will be fined the sum of $2000. There will also be an order that the respondents pay the applicant's costs of the motion to be taxed.