The Law Society of NSW v Seymour [1999] NSWCA 117 | Case summary

1 PRIESTLEY JA: I agree with Fitzgerald JA. 2 STEIN JA: I agree with Fitzgerald JA. 3 FITZGERALD JA: Michael Thomas Seymour is a former solicitor whose name was removed from the roll of solicitors by order of this Court on 14 April 1982. On 27 June 1994, the Council of the Law Society of New South Wales commenced proceedings against Seymour by summons seeking, among others, orders restraining him from acting or purporting to act as a solicitor and from acting in breach of certain provisions of the Legal Profession Act 1987. On 5 September 1994, Blanch J made orders by consent that: 1 Seymour be restrained from acting or purporting to act as a solicitor; and 2 Seymour be restrained from acting in breach of any and all of the provisions of Pt 3A of the Legal Profession Act. 4 By a notice of motion filed on 10 October 1996, the Law Society sought orders that Seymour "be found guilty of contempt" of the Supreme Court and, "punished for the said contempt". The notice of motion was dismissed with costs on 2 December 1997 by a Judge of the Common Law Division. The Law Society has appealed, and Seymour has objected to the competency of the appeal. 5 Seymour's objection to the competency of the Law Society's appeal is based on the premise that the proceeding for contempt, in which the Law Society seeks to have Seymour "found guilty" and "punished", is a criminal proceeding. It was argued that Seymour has been "acquitted" of the "charge" of contempt, and that no appeal lies from such a verdict. I propose to postpone the latter question of its competency until after consideration of the Law Society's appeal on the merits. 6 Not all of the orders requested in its original notice of motion are still sought by the Law Society. The orders which it asks this Court to make are that: 1. Seymour be found guilty of contempt of the Supreme Court for failing to comply with the orders made by Blanch J on 5 September 1994 in that he acted as a solicitor contrary to the provisions of Pt 3A of the Legal Profession Act , 1987; (a) during the period August and October, 1995; (b) during the period January to August, 1996; and (c) during the period of January and February, 1996. 2. Seymour be punished for the said contempt. 3. Seymour pay the costs of the proceedings in the Common Law Division and this Court. 7 It is not clear to me what was sought to be achieved by the second order made by Blanch J by consent on 5 September 1994 or what is sought to be achieved by the reference in the orders sought from this Court to Pt 3A of the Legal Profession Act 1987. It is common ground that Seymour is not a solicitor and that he is guilty of contempt for his failure to comply with the first order made by consent by Blanch J on 5 September 1994 if he acted as a solicitor as alleged by the Law Society. Before this Court, Seymour did not argue that it was not open to the Court to conclude that he had acted as solicitor contrary to the first order made by Blanch J by consent on 5 September 1994 if the totality of his conduct merits that description. 8 The only evidence consisted of affidavits filed by the Law Society upon which the deponents were not cross-examined. Seymour had indicated almost a year before the hearing in the Common Law Division that he would not be "calling any evidence". The only dispute concerning the trial judge's factual findings is confined to his conclusions that Seymour did not act as a solicitor in any of the three transactions relied upon by the Law Society. It is accordingly convenient to set out, at length, the facts stated in the judgment under appeal. 9 The trial judge said: "The lease transaction The first matter complained of arises out of written and oral correspondence between Ms Anne Marie Goodrick, solicitor, and the defendant about a lease. Ms Goodrick swore an affidavit which was read in the motion. Hers was the only account of what happened, and she was not cross-examined. Between August and October 1995 Ms Goodrick acted for NE Christie (NSW) Pty Limited ("Christie") over the letting of premises owned by Christie at Unit 13, 7 Anella Avenue Castle Hill. On 3 August 1995 Ms Goodrick received from one, Darren Holland, a document called "Lease advice", containing particulars of the premises and other relevant matters. I assume that Mr Holland was Christie's agent. The lessor was named in the lease advice as Christie. The lessee was named as Anchor Pad (Aust) Pty Limited and the guarantor was Darrel Bertram. The document was obviously given and received as instructing Ms Goodrick to draw up a lease, though it did not say so in so many words. In the top right-hand corner of the document, under the typed heading "Solicitor Details", appeared the handwritten words - Send to: Michael Seymour Suite 19, 1 Gladstone Rd, Castle Hill 2154 On 8 August 1995 Ms Goodrick drew up a lease and wrote a letter to the defendant at the address indicated on the lease advice. She wrote that she acted for the lessor and understood that the defendant acted for the lessee. She asked him to have the lease executed and sent back to her with certain cheques. It appears from the letter that the same lessee already had a lease of certain premises at another address in Castle Hill from a lessor which might have been associated with Christie and for which Ms Goodrick acted. Ms Goodrick said in the letter that that lessor would consent to a surrender of that lease and asked the defendant to return it to her together with a surrender executed by the lessee. On 21 August 1995 Ms Goodrick sent a short letter to the defendant at the same address following up the earlier letter, because she had received no reply. Although Ms Goodrick wrote to the defendant at the address set forth in the lease advice she did not address him as a solicitor. I shall make further reference to that circumstance. The defendant wrote a letter in reply on 4 September 1995. It was on a printed form which showed the address to which Ms Goodrick had written, together with telephone and fax numbers. At the head of it appeared the words "Michael Seymour" followed by the letters "LLB". At the foot of the printed document, under a horizontal line, appeared the following words - Business Corporate Consultant Registered Migration Agent No. 61955 under the Migration Act 1958 The body of the letter was as follows "Re: Anchor Pad (Aust) Pty Ltd & N.E. Christie (NSW) Pty Limited Lease of Unit 13, 5-7 Anella Avenue, Castle Hill I refer to your letters of 8th and 21st August 1995, and advise that I have discussed this matter with Darrell Bertram. I note that the proposed commencing date his now changed from 18th September 1995, to 2nd October 1995. Work has not yet commenced on the alterations to the premises and it was only last Friday that the lessee signed the Development Application. I am instructed that there was an agreement between the parties for a rent free period of two months. There is however no reference to the rent free period in the lease. Please confirm the rent free period. With regard to the security deposit, I am instructed that your client holds a deposit of approximately $3,000 on premises currently leased from it at No. 1 Gladstone Road, Castle Hill. This deposit could be adjusted in relation to the monies payable under Clause 4 of the lease. With regard to clause 5(a), I am instructed to suggest that the period of 14 days should be changed to 30 days. Anchor Pad (Aust) Pty Limited has expended considerable monies in relation to the purchase and intended promotion of a new product. It is for this reason that the company wishes to move offices to more suitable premises. I am instructed to request that a provision be included in the lease giving the lessee the option to terminate the lease without penalty on two months' notice within 18 months from the date of the commencement of the lease. I look forward to your early reply." On 7 September 1995 Ms Goodrick wrote back to the defendant, addressing him as before. The relevant parts of the letter are as follows - "We refer to your letter dated 4 September 1995, and are instructed to advise as follows:- 1. Regarding commencement date, see our letter dated 5 September 1995. Work will not commence on the fitout to the premises until we are in receipt of an executed Lease. It is estimated that fitout work will take three (3) weeks, thus it is imperative we receive the executed Lease as soon as possible. 2. You are correct, there is an agreement for a rent free period of two months and thus the following clause is to be added to the Lease as Clause 7. "7. Not withstanding any other provision herein, the Lessee shall not be required to commence payment of monthly rental until 2 December 1995". 3. We are instructed that the Lessor holds $1,286 as security deposit on the premises at 1 Gladstone Road Castle Hill, thus it will require the remainder of $3,714.00 to be provided together with the Lease. We would regard the deposit currently held as part of the first instalment. 4. Your requested amendment to Clause 5(a) is not agreed. 5. Your request for a provision that the Lessee be entitled to terminate with eighteen (18) months of commencement is not agreed. Please amend the Lease according to the above and arrange for execution promptly so that Fitout may commence in time for the commencement date on 2 October 1995." Reminder letters were sent, addressing the defendant in the same manner, on 18 and 25 September 1995. A short letter was sent on 6 September 1995, addressing the defendant in the same manner and enclosing a copy of some strata plan by-laws. On 3 October 1995 the defendant replied by facsimile transmission, using the same printed document. The body of the letter was as follows - "In reply to your letters I advise that the lease documents have now been executed. Clause 5(a) has been amended. I am instructed to request that the commencing date for the payment of rent be 15th January 1996. On your confirmation of this the documents will be returned to you together with the cheques requested in your letter of 8th August 1995." The defendant sent a further letter by the same manner on 9 October 1995, the body of which was as follows - "I advise that the lease documents have been executed but before forwarding same to you I wanted to discuss a number of amendments, having regard to the agreed amendments between the parties. I understand that you are away this week and your secretary has asked me to confirm the amendments in writing. 1. The lease as submitted refers to a commencing date of 18th September 1995, and a terminating date of 17th March 1999. Please clarify the commencing date. I am advised that the lessee proposes to take occupation on 1st November 1995, but rent will be payable as and from 1st January 1996. 2. With regard to item 8 in the schedule I assume that both review dates will be 1st January 1997 and 1st January 1998. 3. Clause 4 obviously has to be amended. I note that the lessor holds a security deposit of $1,286 and as suggested in your letter of 7th September 1995, the balance of $3,714 could be paid as the 2nd instalment. I assume by that, this payment will be due on 1st January 1996. I look forward to hearing from you at your earliest convenience." On 10 October 1995 Ms Goodrick replied, addressing the defendant as before, saying that the lease would commence on 1 November 1995 and that the rental commencement would be 1, not 15, January 1996. Ms Goodrick asked the defendant to add those dates to the executed lease and send it back as soon as possible. On 17 October 1995 the defendant replied again by facsimile transmission. The body of the letter was as follows - "In reply to your letter of 10th October 1995, I enclose: 1. Lease documents; and 2. Fitout Exhibits duly signed; 3. Bank cheque for $370.90; 4. Cheque for $741.00 for your fees. Would you please confirm when the lease has been registered." On 23 October 1995 Ms Goodrick wrote the defendant a letter, the body of which is as follows - "We refer to your letter dated 17th October, 1995 and acknowledge receipt of the enclosures thereto. While most of the amendments you have made to the Lease are in order with our previous correspondence, the matter of the Security Deposit is not correct. As we pointed out in our letter of 7th September, 1995 we regard the $1,286.00 currently held as part of the first instalment. Therefore, your client should pay I immediately the sum of $1,214.00 to complete payment of the first instalment. The second instalment will remain at $2,500.00 which will be due on 1st November 1995. In addition, you have made changes to the dates in Item 8 which are incorrect. The CPI Review Date will be 1st November, 1996 and the Market Review Date will be 1st November, 1997. We will correct the Lease accordingly. We look forward to receipt of your client's cheque in the sum of $1,214.00 immediately. We will then arrange for execution of the Lease by the Landlord, stamping and registration." On 5 September 1995 Ms Goodrick telephoned the defendant at the number shown on his letterhead. The following conversation took place - Defendant: " Michael Seymour" Ms Goodrick: "Anne Goodrick, Michael, I was wondering what is happening in this matter between NE Christie and Anchor Pad at Annella Avenue?" Defendant: "I've sent you a letter about it." Ms Goodrick: "Can you tell me what the problems are?" Defendant: "My client needs a two months rent free period. They've already paid Christies a $3,000 security deposit which should be credited to this matter." Ms Goodrick: "I don't think Anchor Pad ever did pay the security deposit for the previous lease." Defendant: "I'm instructed that they have." Ms Goodrick: "I'll check that. Is there anything else?" Defendant: "We want an escape clause after 18 months. This a new business venture for my clients and it might go bad." Ms Goodrick: "I'll have to get instructions but I think the answer will probably be no." Defendant: "I believe the start date will be 2 October." Ms Goodrick: "That's right I will get instructions about the rest and get back to you." On 27 October 1995 Ms Goodrick had a further telephone conversation with the defendant in which the following was said - Defendant: "I am ringing in response to your letter dated 23 October. My client agrees that the changes you propose are correct. They will pay the $1,214 to Christies direct. Would you finalise the lease and get it stamped and registered?" Ms Goodrick: "Fine, I'll get that done." … The transfer of an interest in a patent application. Between December 1995 and late 1996 Mr WJ Henty, solicitor, acted on behalf of Headland Securities Pty Limited and other interested persons over the transfer of an interest in a patent application. It appears that one, Mr Larkin, was an inventor and that North Securities Pty Limited and Headland Securities Pty Limited agreed to promote and market Mr Larkin's inventions. Mr Larkin may also have granted a mortgage over his interest in a patent application in order to secure the repayment of borrowed money. Mr Ross Macarthur wanted to purchase the whole or part of Mr Larkin's interest in the patent application. Other interested persons appear to have been Mr Moore and Mr Cameron. Mr Henty, acting for all parties, drew up an Assignment of Patent Co-Owners Agreement and a Limited Guarantee Agreement. The defendant was consulted by Mr Macarthur and wrote a series of letters to Mr Henty. Copies were annexed to an affidavit of Mr Henty. The letterhead used by the defendant was the one he had used to write to Ms Goodrick. In a letter dated 17 January 1996 the defendant said this - "Re: Macarthur, Larkin, Norths Securities Pty Ltd & Others - Patent I advise that I have been consulted by Ross Macarthur who has handed to me copies of an Assignment of Patent Co-Owners Agreement and a Limited Guarantee Agreement prepared by your firm. I understand that you are acting for all parties in respect of these agreements but Mr. Macarthur has asked me to raise certain matters with you for consideration by the other parties to the agreement. Mr. Macarthur and Mr. Larkin are close friends. I am instructed that other agreements have been entered into between the same parties in relation to the same patent and patent applications although Mr. Macarthur was not a party to those agreements. However these agreements have a direct bearing upon Mr. Macarthur's interest in his proposed acquisition and dealings with Mr. Larkin. Monies have already been advanced by Mr Macarthur to Mr. Larkin in anticipation of the agreement being executed and upon certain representations and promises made by Mr. Larkin. Would you please identify the previous agreements in existence between the parities (sic). I understand there are two agreements, a Patent Mortgage dated 20th March 1995 and an Assignment of Patent Co-Owners Agreement dated 21st April 1995. I only have a copy of the first page of the Deed dated 21st April 1995, and would be grateful if you would provide me with a copy of the whole of that Deed. In addition would you also advise what further agreements, if any, have been entered into between Mr. Larkin, North Securities Pty Ltd and Headlands Securities Pty Ltd in relation to the Patents referred to in those documents or for that matter, any other parties. The Patent Mortgage refers to monies lent to Mr. Larkin and I would be pleased if you would confirm: The amount of the monies lent Details of any repayment of the said monies Confirmation that there is no default by Mr. Larkin under the terms of the Patent Mortgage or otherwise. Confirmation that your costs have been paid and that all deeds of 20th March and 21st April 1995 have been stamped. On my instructions North Securities Pty Ltd and Headlands Securities Pty Ltd were to promote and market the inventions of Mr. Larkin, the subject of patents, etc. They had the expertise in this regard, Mr. Larkin didn't. I would be pleased if you would indicate what steps have been taken in this regard by your clients and what steps have been taken to register the patents overseas, in order to protect the invention. Concerning the Agreements you recently prepared, Mr. Macarthur has asked me to raise with you: 1. In relation to the limited guarantee, Mr. Macarthur requires an agreement by the principals of that agreement, to an assignment to him of the debtor's interest in the patent in the event that Mr. Macarthur as guarantor is called upon to pay the loan monies to the principal and/or meet Mr. Larkin's default. This is not an unreasonable request, given Mr. Larkin's financial circumstances and Mr. Macarthur's risk in the venture. In addition he requires to be given ample and reasonable notice of any default and ample time in which to pay to the principals the monies the subject of the default or to rectify the default. I am instructed to suggest that a period of 60 days in the circumstances would not be unreasonable time frame. 2. With regard to the assignment of the Patent Co-Owner's Agreement, Mr. Macarthur requires a proviso to be added to Clause 9 in words to the effect: "Provided always that if any of the parties should embark upon a negotiating process to sell their respective interest in the Patent or to enter into any licence agreement in respect thereof then immediate notice of such negotiations shall be given to the other parties to this agreement and that full disclosure of negotiations be provided." Would you also advise me of any matter concerning these patents which ought in the circumstances be properly disclosed to Mr. Macarthur. I look forward to your comments on the above." In a letter dated 6 June 1996 the defendant said this - "RE: Macarthur, Larkin North Securities Pty Ltd & Others - Patents I acknowledge receipt of your facsimile transmission of 15th May 1996 and 6th June 1996 both of which have been passed onto my client for instructions. I understand Mr. Macarthur has forwarded to you a cheque for $315 as requested and accordingly I would be pleased to receive copies of the Agreements in question. These are of course the Agreements referred to in your facsimile transmission of today's date." On 14 June 1996 the defendant wrote a letter in the following terms - "Re: Macarthur, Larkin, North Securities Pty Ltd & Others - Patents I refer to my letter to you of 6th June 1996, and again request that you forward to me copies of the agreements in question. I have made previous requests for copies of these agreements. I also note you have not replied to my letter of 17th January 1996, apart from advising me that my letter had been passed onto your clients for instructions. I again request a reply to the matters raised in that letter. Please also provide me with a copy of the Notice given by Mr. Larkin on 9th November 1996. (I assume you mean 1995.) They view you take in respect of the transfer of an interest in the patent differs from the view expressed by Button Hawdon & McMahon, Solicitors, for Mr. Larkin. (See letter 9th May 1996.) You say that "Mr. Larkin wrote to Mr. Moore in terms which did not comply with Clause 8.1(b) of the Deed". Please explain why Mr. Larkin's letter did not comply with Clause 8.1(b). You say that "Mr. Cameron did not ever receive an offer in writing". You do not suggest that he was unaware of the offer; nor do you explain his silence or that of Mr. Moore's in relation to the offer. As to your comment in relation to no "written communication" to Headland Securities Pty Ltd, Mr. Moore is Headland Securities Pty Ltd. I understand that in respect of the agreements to which you refer, you acted for all parties notwithstanding the obvious conflict of interest given the financial and commercial inequality between the parties. The terms of the agreements, on my instructions, were weighted in favour of Messrs. Moore and Cameron and Headland Securities Pty Ltd. You refer to a memorandum dated 4th December 1995. I do not have a copy of that memorandum and request that you forward me a copy of this document when forwarding copies of the other agreements. Did you prepare this document? Did you act for all parties referred to in the memorandum? Please explain how this memorandum varied the Deed of 21st April 1995, which you also say "was not consummated". Are you saying this memorandum was never executed by the parties? Mr. Larkin was the inventor without funds and the commercial experience and know how to develop and promote the invention. Mr. Moore for whom you act and on whose instructions I am advised prepared the relevant agreements is an economics graduate a qualified accountant former stock broker and a person of considerable business and finance acumen. Before Mr. Moore became involved in this matter with Mr. Larkin and Mr. Macarthur I understand he undertook some research and inquiries in relation to the product/invention and saw a "golden opportunity" for himself and his company. His own figures of projected sales and profit reflect this - a copy is attached. Mr. Moore envisaged raising capital on this venture from the public and valued a 10% shareholding at $39m. It was a joint venture where clearly no one party would take advantage of the other or in any way act dishonourably towards one another. Mr. Macarthur has at all times acted in good faith and in reliance upon the fact that Larkin (on independent legal advice) was entitled to sell his remaining interest of 25% in the patent. The offer made to your clients on 9th November 1995, was ignored. As the position now stands the parties have an equal 25% interest in the patent. Your clients may well view the sale price as a bargain price, but this only reflects the economic circumstances of Mr. Larkin and your clients' failure to take the initiative when they were, it appears, all well aware of. Larkin's offer. It is a bit late to complain now on a missed opportunity. There is also the question of waiver and estoppel in this instance and any action you clients might take would in the circumstances be unfair and not in the interest of the company or its shareholders. One could be forgiven for suggesting that to seek the declaration threatened would be pure bully boy tactics. As far as Mr. Macarthur is concerned any legal action taken would be vigorously opposed. Mr. Macarthur will as a Director of Contratech Pty Ltd continue to act in the best interest of the company and its shareholders. The company will continue to "be used as the marketing vehicle" for the patent. On my instructions Mr. Macarthur declines to "transfer his shares to the other parties". On 19 June 1996 this letter followed - "Re: Macarthur, Larkin, North Securities Pty Ltd & Others - Patents I refer to previous correspondence and in particular my letter of 14th June 1996. On my instructions Mr. Cameron for whom you act phoned Mr. Larkin twice on Monday evening and once on Tuesday morning in when he sought to influence him repudiating the agreement he entered into with Mr. Macarthur on 17th May 1995, for the sale of 25% of Mr. Larkin's interest in Patent Application PCT/AU95/000624 entitled "Contra Rotating Rotor Unit". That agreement has of course been concluded. I am told that Mr. Cameron put the following inducements to Mr. Larkin, namely (a) that time be extended to him for the repayment of loan monies by a further 12 months: (b) that he would be paid $25,000 to refund to Mr. Macarthur; and (c) that his legal fees would be paid. Mr. Larkin and Mr. Macarthur have been friends for approximately 8 years and notwithstanding the temptation, Mr. Larkin has informed Mr. Macarthur that he has no intention of reneging on the agreement concluded between them. Your clients' attempts in the circumstances to have Mr. Larkin repudiate his agreement with Mr. Macarthur are not only improper but actionable and in this regard Mr. Macarthur reserves his position. Would you please request Mr. Cameron to cease making any further such advances. A recent search on Contratech Pty Ltd with the Australian Securities Commission reveals: 1. Incorporation on 1st March 1996. 2. The directors are Warren Moore, Ross Macarthur and Ronald Cameron, all of whom were appointed on 1st March 1996. 3. The allotment of 50 ordinary shares for cash at $1.00 per share. 4. That the 50 ordinary shares were allotted Bryan Larkin on 1st March 1996. 5. That the form 207 (allotment of shares) was signed by Mr. Warren Moore and dated 1st March 1996, and in which he declared "that shares have been allotted to more than 500 people". On my instructions shares in the company should have been allocated as follows: Larkin 50 Shares Cameron 55 Shares Moore 55 Shares Macarthur 40 Shares With regard to Mr. Macarthur's shares he forwarded the company a cheque for $40 on 28th March 1996. Would you please clarify the shareholding of the company, in particular the declaration that shares have been allotted to more than 500 people. Mr. Macarthur has no knowledge of any such allotment. I also await copies of the documents previously requested. … P.S. Have just received your letter of today's date by facsimile transmission. A copy has been forwarded to Mr. Macarthur for instructions." On 24 June 1996 the defendant wrote the following letter - "Re: Macarthur, Larkin, North Securities Pty Ltd & Others - Patents I refer to my letter to you of 19th June 1996, and am advised that Mr. Cameron has again telephoned Mr. Larkin and sought to influence him in repudiating the agreement concluded with Mr. Macarthur on 17th May 1996. I am further advised that my status was raised with Mr. Larkin during this discussion in an endeavour to also influence him in siding with the interests of your clients. Mr. Larkin is aware of my status, which has of course no relevance to the issues in question. You are aware that I am not the holder of a current practising certificate. As to your letter of 19th June 1996 1. Your letter does not fully and properly address the matters referred to in my letter to you of 14th June 1996. Please do so. 2. Whilst your letter, and other correspondence, refers to the agreements and other memoranda, you are yet to provide me with the copies of these documents. Would you please do so without any further delay so that I might properly examine the questions your letters continue to raise. 3. You claim that my "communication" with you "is not privileged" and is defamatory of Warren Moore for which you seek "an apology and complete withdrawal". The allegation is denied but having regard to the threat of legal action I request you indicate: (a) the defamatory matter complained of (b) the basis upon which privilege does not exist (c) details of the publication of the defamatory matter (d) the damage allegedly suffered by Warren Moore and (e) What it is you precisely require to be withdrawn. 4. I am instructed that Ron Cameron has known Brian Larkin for a number of years. When the question of developing the patent was raised with Ron Cameron, he advised, so I'm told, that he was without the necessary funds to develop and promote the patent and as a consequence introduced Warren Moore to the parties. 5. Paragraph 2 of your letter concedes that no objection was taken to Ross Macarthur purchasing "20% of PM 8421 for $20,000". This proposal which you say was put by Mr. Moore on 4th December 1995, was after Mr. Larkin's letter of 9th November 1995. With regard to the guarantee of $20,000 this was something Mr. Macarthur was reluctant to agree to as your clients were already secured as to the remainder of Larkin's interest in the Patent under the Patent Mortgage. In addition it was viewed as an unreasonable condition. Your clients obviously declined Mr. Larkin's offer and came back with another proposal which involved inter alia their consent to Mr Macarthur taking up "20% of PM8421 for $20,000". It's a bit late in the day to now start objecting and threatening legal action. 6. Mr. Macarthur is the owner of 25% of PM 8421 and will take all steps necessary to protect that interest. 7. In paragraph 8 of your letter you refer to a debt of $62,821.74 as at 30th November 1995, owing by Larkin to your clients. In the last paragraph on page 3 you say "Our clients have already advanced in the order of $65,000 invested in this technology and their time, effort and energy". (a) Is this the same money referred to in paragraph 2? (b) If not, please provide details of the monies alleged to have been expanded by your clients "in this technology" in addition to the monies lent to Larkin. 8. At the bottom of page 2 you say "thus the legal position would appear relatively well documented and straight forward". What is the legal position you draw from the facts recited in paragraphs 1 to 8 of your letter? Messrs. Larkin, Macarthur, Moore and Cameron each hold a 25% interest in the patent and all have a vested interest in the success of its development. It is obviously in the interest of all concerned to advance one another's interest in the patent and its commercialisation without unnecessary legal action. Certainly Mr. Macarthur will do nothing to prejudice the venture and the threat of legal action is not in the best interest of the parties to this venture. I await your early reply." The defendant wrote the final letter on 6 August 1996, asking Mr Henty to reply to recent correspondence. Telephone conversations took place between Mr Henty and the defendant as well about the supply by Mr Henty to the defendant of documents concerning a patent application. However, Mr Henty made no notes of them and could not remember precisely what was said. … The family law property dispute Ms Katherine Ann Crawford, a solicitor, began acting for Mrs Helen Macarthur in relation to the settlement of a family law property dispute between Mrs Macarthur and her husband Ross Macarthur, the man for whom the defendant acted in the negotiations with Mr Henty. On 21 November 1995 Ms Crawford wrote Mr Macarthur a letter in the following terms - "Yourself and Your Wife We act on behalf of your wife who has sought our advice in relation to matters arising out of your separation. It is certainly our client's desire to resolve any of these matters between you as quickly and amicably as possible and with a minimum of legal expense. We have advised our client that in order to have constructive settlement discussions it is important that as much detail as possible be obtained about the assets and financial resources of each of you. We have also advised our client that it is necessary in these matters from each party to make full and frank disclosure of their financial position. To that end we would ask that you take this letter to your legal representative and have that person provide us with a full statement of your financial circumstances together with providing us with access to all paperwork that you have in possession which reflects your financial circumstances. It would also be of assistance if a statement was provided setting out details of each of the financial entities in which you or your wife have some interest or hold positions. You should include in the documents provided a copy of any documents relating to ownership of the property at 7 Park Road, Kenthurst. We look forward to hearing from your legal representative within 14 days." On 12 December 1995, no reply had been received, a follow-up letter was written. On 8 January 1996 the defendant wrote Ms Crawford the following letter - "Re: Macarthur v Macarthur Family Law Matter Your Ref: KAC.KES 952685 I advise that I have been consulted by Mr. Macarthur in relation to your recent correspondence. Although I have a copy of your letter of 12 December 1995, I do not have a copy of your letter of 21st November 1995. That letter was unfortunately mislaid by Mr. Macarthur. In recent months my client has made a number of overtures to his wife for a reconciliation. Given the nature of your instructions Mr. Macarthur has now come to terms with the situation and proposes to shortly commence proceedings for a dissolution of the marriage. Your client recently commenced proceedings in the Parramatta Local Court against her husband for apprehended violence under Part 15A of the Crimes Act. These proceedings were dismissed in December when the Magistrate found the proceedings to be frivolous. The stress of these unfortunate proceedings and the breakdown of a long marriage has affected Mr. Macarthur's health. He recently suffered a stroke and was discharged from Fairfield District Hospital prior to Christmas. He accordingly wishes to resolve all property matters with his wife amicably and sensibly. Preferably without litigation. Would you therefore indicate your client's wishes as to the terms of any property settlement. I am instructed that: Previous offers to Mrs. Macarthur for her financial support have been rejected. Mr. Macarthur is unaware as to how his wife is supporting herself and can only assume she is in receipt of some social security benefit. Mrs. Macarthur is unemployed and resides in her mother's home in Preston Avenue, Five Dock. I understand her mother is an elderly lady and is presently in hospital. Mr. Macarthur resides in the matrimonial home and will continue to support and pay for his children's educational, medical and other expenses. In addition he proposes to pay the mortgage payments on the property plus rates and taxes, etc. I look forward to your early reply and advice as to your client's financial circumstances. Given Mr. Macarthur's present ill health, it is essential this matter be resolved without litigation. He is under doctor's orders to avoid stress." On 10 January 1996 Ms Crawford sent the following letter to the defendant - "Macarthur Thank you for your letter dated 8 January 1996. I enclose a copy of our letter to your client dated 21 November 1995. It would assist in settlement of this matter if you could provide the information requested. We will otherwise seek our client's instructions in relation to your letter and advise you further as soon as possible." On 5 February 1996 the defendant replied as follows - "Re: Macarthur v Macarthur Family Law Matter Your Ref: KAC.KES 952685 I refer to previous correspondence and set out the following financial details. 1. Mr. & Mrs. Macarthur are equal (and only ) shareholders in the following companies: (a) Liquid Waste Management Pty Ltd. This Company has no assets and no liabilities. It no longer trades. (b) Queensland Fuel Haulage Pty Ltd. Its assets comprise a Prime Mover and Trailer and a Jaguar motor vehicle. The vehicles are under lease and the pay out figure would roughly equal present market value. (c) Zamitelle Pty Ltd. Its assets comprise: (i) Tarago Van valued at approximately $10,000 (unencumbered). (ii) Daf Twin Steer truck with vacuum tank, valued at approximately $40,000 (unencumbered). 2. Mr. Macarthur has an interest in a Superannuation Fund managed by the AMP Society. He is not aware of the value of his interest in the Fund. He is the sole beneficiary. 3. Rathau Pty Ltd as trustee for the Ross William and Helen Leona Macarthur Family Trust is the registered proprietor of the former matrimonial home at 7 Park Road, Kenthurst, N.S.W. The beneficiaries of the trust are the 4 children of the marriage in equal shares. Market Value $490,000 Mortgage to Teachers Health Investments 285,000 $205,000 Contents of home, assessed at 50,000 $255,000

Mr. Macarthur has an interest (speculative investment) in 2 inventions. No determinable value. On my instructions Mr. Macarthur is paying the mortgage payments on behalf of Rathau Pty Ltd of $2,422.50 per month and is also paying for the support and educational expenses of the children of the marriage. Mrs. Macarthur is not contributing to these expenses. I look forward to your advice regarding Mrs. Macarthur's financial circumstances and her requirements." On 14 February 1996 Ms Crawford sent an offer, marked "without prejudice", in the following terms - "Macarthur We refer to your letter dated 5 February 1996. We are instructed by our client that she would be prepared to resolve the matter on the following basis: 1. That your client pay to her the sum of $30,000.00 within one month of the date of Orders. 2. That the home at 7 Park Road, Kenthurst be sold and our client receive the sum of $180,000.00 from the net proceeds of sale after repayment of the mortgage. 3. That our client transfer to your client all her interest in the companies. 4. That your client release our client from any guarantees relating to the various companies in which she currently has any liability. 5. That your client otherwise indemnify our client in relation to any debts associated with the companies. 6. That your client deliver to our client at his cost of the following items of household furniture: i. Desk. ii. Sewing cabinet. iii. Typist chair with beige fabric. iv. Dressing table and long mirror. v. Fiona's bed (not the broken one). vi. Mattress. vii. Wardrobe and desk. viii. A share of the family photographs including those of her family alone and photographs of the children. 7. That your client pay our client's legal costs of the proceedings. We are further instructed as follows: Raphael Pty Limited owns the DAF twin steer truck. The Tarago van is currently in the sole name of our client and is not owned by Zamitelle Pty Limited. Our client is also concerned about present arrangements for the children. We are instructed that your client has told the children that unless they live with him he will terminate payment of their school fees. In particular we understand that the child Fiona who is now 17 years of age is currently living with friends and that it is her wish to continue to do so. We are instructed that notwithstanding her age and her wish your client has similarly told Fiona that if she does not live with him he will not pay her school fees. If this has occurred we would submit that is clearly inappropriate to place this kind of pressure on any of the children particularly Fiona. Our client is concerned as to the emotional effect upon the children and our client requests that your client cease dealing with the two issues of the children's residence and their continued attendance at school in this way. We would ask that you confirm that your client will continue to pay the school fees continuing throughout the secondary schooling of the children and a minimum of four years tertiary education for each. Please also confirm that he will attend to payment of medical and clothing and expenses for the children. Clearly given our client's current financial position she is not able to do so. We look forward to recept of your client's instructions in relation to the above as soon as possible." The defendant replied on 20 February 1996 in the following terms - "Re: Macarthur v Macarthur Family Law Matter Your Ref: KAC.KES 952685 I have discussed in brief your letter of 14th February 1996, with Ross Macarthur. He is distressed at the nature of your client's demands, which if accepted would leave without any assets. He sees your client's proposition as totally contrary to a sensible resolution and the offer is rejected. In addition, is not in the best interest of the children. The attitude expressed by your client through your letter is at odds with her apparent wish for a reconciliation. Mr. Macarthur has attended, at your client's request, two recent counselling sessions. I would request therefore that your client reflect upon her demands and seriously review her proposals if she wishes to resolve this matter sensibly. You are yet to let me have details of your client's financial circumstances." The defendant wrote on the letterhead that I have already described. In her letters to the defendant, Ms Crawford never referred to him as a solicitor." 10 In discussing the rival arguments presented with respect to the "lease transaction", the trial judge said: "Counsel [for the Law Society] pointed to a number of features to show that the defendant had done what would ordinarily have been done by a solicitor. In all the letters the defendant wrote, the letters "LLB" appeared after his name, signifying that he was formally educated and qualified in law, as solicitors are. He used the language of solicitors. For example, in the letter of 4 September 1995 he repeatedly used the expression "I am instructed". He also used that expression in the letter of 3 October 1995. He requested or suggested amendments to the lease, a legal document. For example, in the letter of 4 September 1995 he suggested the enlargement of an important period of time and the inclusion of an option for the lessee to terminate the lease on conditions favourable to it. If accepted, those amendments would have had substantial legal consequences. He discussed amendments in the other letters as well, particularly in the one written on 9 October 1995. During the conversation of 5 September 1995 he referred to his "client" and his "instructions", as a solicitor might. He negotiated on behalf of his client for the inclusion in the lease of terms which might produce legal consequences more favourable to his client than the ones then on offer. I have no hesitation in concluding that in treating in this manner with Ms Goodrick, the defendant did work that solicitors ordinarily do. The contrary was not suggested. The critical question for the court, therefore, is whether the defendant did what he did in such a way as to justify the reasonable inference that he was a solicitor. That must be proved beyond reasonable doubt. … Counsel for the plaintiff submitted that the combined effect of the legal language used by the defendant, the subject matter of the communications and the use by the defendant of the letters "LLB" was that a lay person would consider that the words were written and spoken by a solicitor. The test, it was submitted, was what such a lay person would consider about the matter and that what persons actually connected with the matter, for example Ms Goodrick, thought about it was irrelevant. I do not think that it would be correct to state the test in that manner. In my opinion what the Court must do is consider the practical effect of the conduct complained of. I take the purpose of the legislation to be to protect members of the public in their dealings with persons who, not being solicitors, might pretend or appear to be solicitors. I see no utility in a rule that requires consideration only of what a lay person who had nothing to do with the case and who read and heard nothing that was written or said might have thought about those matters if informed about them. The question whether in all the circumstances the things the defendant wrote and said led to the reasonable inference that he was a solicitor - that he professed to be a solicitor - is one for the Court. However, because the question is a practical one, evidence about the belief of individuals concerned with the case, whilst it may not determine the result of the inquiry, is, I think, relevant. I propose to take into account evidence about the state of mind of those who dealt directly with the defendant or were otherwise concerned with the case. [Emphasis added] The defendant described himself on his letterhead as a business or corporate consultant and as a registered migration agent. None of those statements implied that he was a solicitor. The subject matter of the defendant's letters and conversations - negotiation over the terms of a lease - was something with which a business or corporate consultant might be concerned. Nothing in the defendant's letters suggests more knowledge than would be held by a business person dealing with a commercial lease. I do not think that the use of terms like "my client" and "my instructions" is inappropriate for business or professional people other than solicitors. Such people no doubt have clients and instructions. Seen in the context in which they were used, I do not think that the letters "LLB" implied that the defendant was a solicitor. It seems to me to be legitimate for a business person, advising corporate clients, to make known in correspondence that he has a formal legal qualification. It is commonly done by professional people. An accountant who is not a solicitor but who has a legal qualification may well inform correspondents of that fact. It will often be relevant for such a person to make known that he or she understands legal matters. The defendant was an agent registered under the Migration Act. Such agents need to understand the Migration Act and cognate law, and I think it relevant for an agent who has a law degree to say so. I do not think that such a statement would of itself imply that the maker was a solicitor. I do not think that the defendant intended by his use of the letters "LLB" to imply that he was a solicitor. …" 11 In discussing the arguments concerning the "the transfer of an interest in a patent application", the trial judge said: Counsel for the plaintiff pointed to the defendant's use of legal language throughout the correspondence and to his entering upon negotiations in legal matters, for the most part in writing on a letterhead in which he described himself as qualified in law. In the letter of 17 January 1996 the defendant required, on behalf of his client, that a proviso be added, and set out the wording of it. It was submitted by counsel for the plaintiff that the defendant drafted the proposed proviso, though I would hesitate to infer that fact. In the letter of 14 June 1996 the defendant asserted the existence of a conflict of interest among Mr Henty's clients, citing what might be seen as legal reasons. He referred to questions of waiver and estoppel. In the letter of 19 June 1996 he referred to Mr Cameron's repudiation of an agreement with Mr Macarthur and to the actionable nature of Mr Cameron's asserted attempts to repudiate his agreement with Mr Larkin. He asserted the reservation by Mr Macarthur of his position. In the letter of 24 June 1996 he referred to the subjects of repudiation, improper influence and privilege. It was submitted that in writing these letters the defendant was doing work ordinarily done by solicitors. I think that I should accept that submission, even though such negotiations may also be made by persons other than solicitors, for example, business consultants and, perhaps, patent attorneys. I would not assume that only solicitors and barristers know about waiver, estoppel and conflicts of interest. So, as before, the substantial question for the Court is whether the defendant wrote his letters in such a way as to justify the reasonable inference that he was a solicitor. [Emphasis added] Nowhere in Mr Henty's affidavit did he state that he believed that the defendant was a solicitor. In the defendant's letter of 24 June 1996, reference was made to a conversation between Mr Cameron and Mr Larkin in which Mr Cameron spoke to Mr Larkin about the fact that the defendant was not the holder of a current practising certificate. It may be inferred from the letter that Mr Cameron knew the fact, though it does not appear whether what he said was news to Mr Larkin. Mr Larkin was not called to give evidence and I infer that his evidence would not have assisted the plaintiff. The passage in the letter ended with the observation that Mr Henty himself was aware that the defendant was not the holder of a current practising certificate. Mr Henty gave no evidence to suggest that that was not the position. None of Mr Henty's letters to the defendant was annexed to his affidavit. I infer that if his letters had been put into evidence they would not have assisted in the proof that Mr Henty or any relevant person believed the defendant to be a solicitor with a current practising certificate. No evidence was called from Mr Macarthur. I infer that his evidence would not have assisted the plaintiff's case. Not only is there no evidence that anyone believed, as a result of anything he wrote or said, that the defendant was a solicitor. The preponderance of evidence seems to suggest that everybody concerned with these matters was aware that the defendant was not in fact a solicitor. [Emphasis added] The dispute about which the defendant and Mr Henty exchanged letters went to court when the solicitor for Headland and Mr Cameron filed a statement of claim in which Mr Macarthur and Mr Larkin were the defendants. Mr Macarthur instructed Mr Salier of the firm Piggott Stinson Stuart Thom to file a defence, and that was done. It may be assumed that Mr Macarthur continued to be represented in that manner. If the defendant had taken any step in Mr Macarthur's defence, the plaintiff would have adduced evidence of it. It thus appears that the defendant acted for Mr Macarthur only for the second of the three stages of the proceedings. In the first stage, Mr Henty drafted the assignment and the guarantee … the third the third stage work [was] done by Mr Salier … I think it significant that when the services of a solicitor were mandatory, Mr Macarthur appointed or approved the appointment of a solicitor to represent him, but that when they were optional he chose the services of the defendant. This circumstance, taken together with the other facts in the case, suggests very strongly to me that Mr Macarthur knew that the defendant was not a solicitor. I do not think that the defendant acted such a way as to justify the reasonable inference that he was solicitor. …" 12 In discussing the arguments concerning the "family law property dispute", the trial judge said: "I conclude that in writing his letters, the defendant did work normally done by a solicitor. One would not normally expect a business or corporate consultant, much less a migration agent, to be negotiating about a family law dispute. However, these letters were written during the time that the defendant was acting for Mr Macarthur over his differences with Mr Henty and his clients over the transfer of rights in the patent application. I think that that circumstance may explain why the defendant took part in proceedings of this kind. I think that it is proper to conclude that if the matter went on to a settlement in the Family Court of Australia, the defendant played no part in it. I think that Ms Crawford would have said so if that had been the case. I assume that Ms Crawford has set out in her affidavit the whole of the part played by the defendant. It follows that he played only a limited part in the negotiations. Ms Crawford did not assert any belief that the defendant was a solicitor and, as I have said, she never addressed him as a solicitor. I conclude that she never believed that he was a solicitor. Neither Mr nor Mrs Macarthur was called, and I infer that if they had been called, their evidence would not have demonstrated the existence of the relevant belief. I do not think that anybody connected with the case formed that belief, and in my opinion no reasonable person could have done so. I am not satisfied that … what the defendant did justified the reasonable inference that he was a solicitor. " [Emphasis added] 13 The Law Society's grounds of appeal, including ground c(ii) which it sought leave to add during the course of the hearing in this Court, are as follows: "His Honour erred in holding that the respondent was not acting as a solicitor in the circumstances of this case and was therefore not guilty of contempt of Court for the following reasons: (a) His Honour applied the wrong test to determine whether the respondent was acting as a solicitor when he relied on the subjective view of those persons the respondent dealt with in carrying out transactions for his clients. (b) His Honour made wrong inferences of fact in the circumstances of this case by: (i) deciding that the use of LLB in the circumstances the respondent's letterhead was not holding out by him that the respondent was a solicitor or qualified to act as a solicitor; (ii) failing to infer that the respondent had drafted the proviso in his letter of January 1996; (iii) inferring that non lawyers would be familiar with legal terms such as waiver, estoppel and conflicts of interest and thereby failing to infer that the respondent's use of these terms in his letters constituted or was a factor in constituting his acting as a solicitor because he was engaging in negotiations involving legal technicalities; (iv) by failing to infer that the language such as "instructed" and "client" used in the correspondence generated by the respondent together with the appearance of LLB beside his name on his letterhead raised the inference that in the circumstances, the respondent was acting as a solicitor. (c) His Honour should have held that the respondent was acting as a solicitor in breach of the orders of Blanch J of September 1994 and of the provisions of s 48B(1) and 48(c) of the Legal Profession Act, 1987 and was therefore in contempt of Court by: (i) applying the correct test to determine whether a person was acting as a solicitor which requires the objective evaluation of the conduct of that person in accordance with the test propounded by Cussen J in Re Sanderson, Ex parte Law Institute of Victoria 91927) VLR 394: (ii) alternatively, applying the third test propounded by Phillips J at page 210 in Cornall v Nagle [1995] 2VR 188 and making findings of fact that what the respondent did in each of the three transactions (the subject of the evidence was required to be done only by those who have the necessary training and expertise in the law, in order that the public might be adequately protected; (iii) inferring that the respondent's conduct in using LLB after his name on his letterhead taken with the fact that he acted for parties in transactions in which solicitors normally acted, his use of technical legal language and words such as "instructed" and "client" in his correspondence and his drafting of a proviso for his client when viewed in their totality and proper context, raised the inference that the respondent was acting as a solicitor." 14 The point which ground (c)(ii) seeks to raise is based upon the opinion expressed by Phillips J in Cornall v Nagle (1995) 2 VR 188. that, for the purpose of a prohibition in s 90 of the Victorian Legal Profession Practice Act, a person not admitted to practise or enrolled as a barrister or solicitor might act or practise as a solicitor in any of the following ways - (1) by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor. (2) by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner. The Law Society did not allege that any of Seymour's activities were of this character. (3) by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law. 15 I would refuse leave to amend the notice of appeal to add ground (c)(ii). In my opinion, the third proposition extracted from Cornall v Nagle (1995) 2 VR 188. is too widely stated, and, taken literally, extends to a variety of activities legitimately carried on by legally qualified persons, including judges, legal academics and arbitrators, who are not acting or practising as a solicitor, or purporting to do so, when carrying out those activities. As the trial judge recorded, this proceeding was conducted below by the Law Society on the footing that, if Seymour is guilty of contempt, it is because his conduct meets the description set out in the first proposition taken from Cornall v Nagle, (1995) 2 VR 188. which Phillips J derived from the judgment of Cussen J in Re Sanderson, Ex parte Law Society of Victoria. (1927) VLR 394, 397. See also Law Society of New South Wales v Hart (unreported, Newman J, 7 July 1993). Subject to what follows, that is the basis upon which the question whether Seymour acted as a solicitor should be considered by this Court. See Chilcotin Pty Ltd v Cenelage Pty Ltd (19991) NSWCA 11. 16 In Sanderson (1927) VLR 394., Cussen J said (1927) VLR, at p 397.: "… if a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor - if he combines professing to be a solicitor with action usually taken by a solicitor - I think he then does act as a solicitor." Earlier, his Honour had said (1927) VLR, at p 396. : "I do not think it is advisable that I should endeavour to lay down any precise rule as to when a person acts as a solicitor, nor do I say that, merely because a person does a thing usually done by a solicitor, but which may be done by someone else, he will be guilty of an offence [of acting as a solicitor contrary to] … s 87 [of the Imperial Acts Application Act 1923]; nor do I wish to decide at present that if he merely professes to be a solicitor, but does no act in pursuance of that pretence, he will be guilty of an offence under the section." 17 In the absence of any suggestion that Seymour "professed" to be a solicitor, there are two questions which must both be answered in the affirmative according to Sanderson (1927) VLR 394.before he can be found guilty of contempt; namely: 1. Did he perform activities which, although not required to be done by a solicitor, are usually performed by a solicitor? 2. If he did perform such activities, did he perform those activities in such a way as to lead to the reasonable inference that he was a solicitor? There are a number of points involved in those questions which require clarification. 18 While some activities regularly performed by solicitors are also frequently lawfully performed by persons who are not solicitors, For example, by accountants, merchant bankers, financial advisers, etc. other activities regularly performed by solicitors, including activities which may be lawfully performed by a person who is not a legal practitioner with a current practising certificate, might seldom, if ever, be performed by any person who is not a solicitor. Although activities which fall into either category are material, an affirmative answer to the second question drawn from Sanderson (1927) VLR 394. will likely often be difficult to arrive at if the only relevant activities are in the first category and are limited in their number and nature. There is no policy justification for including activities which may be lawfully carried out by any person who does not act as though he or she has a status which he or she does not possess within the monopoly of legal practitioners with practising certificates. 19 Contempt must be proved beyond reasonable doubt. Witham v Holloway (1995) 183 CLR 524 Furthermore the inference that a person was acting as a solicitor must be the only inference which can reasonably be drawn from his or her activities. Shepherd v R (1990) 170 CLR 573; Knight v R (1992) 175 CLR 495. In the context of this case, the second question is whether a person who has performed activities which, although not required to be done by a solicitor, are usually performed by a solicitor, did so in such a way that the only inference which could reasonably be drawn from his conduct was that he was a solicitor. 20 While it is possible for a person who is not a solicitor to act as a solicitor by a single action, For example, announcing in court that he or she appears as a party's solicitor to represent the party. the question whether a person has acted as a solicitor will frequently fall for determination by reference to a course of conduct. Analogous questions arise in other contexts; eg, whether a person is carrying on a business, or is a money lender. This is such a case. The Law Society's allegation of contempt against Seymour must be decided on the basis that he performed all activities described by the trial judge in the period between August 1995 and August 1996, and that those were his only material activities for present purposes. As earlier noted, the Law Society did not submit that any of Seymour's activities were prohibited to persons other than legal practitioners with current practising certificates. 21 The inference required by the second question based on Sanderson (1927) VLR 394. must be considered by reference to a reasonable person with knowledge of the material activities, which will include any statement by which the person performing the activities misrepresents that he or she is a solicitor or explains that he or she is not a solicitor. The reasonable person to be considered is a person dealing with the person alleged to have acted as a solicitor. When activities may lawfully be carried out by a person who is not a solicitor, his or her knowledge that the person with whom he or she is dealing is aware that he or she is not a solicitor, even if not based on his or her acknowledgment of the true position, makes it difficult, if not impossible, to be satisfied that the only reasonable inference open is that he or she acted as a solicitor. 22 The substance of the Law Society's case can be briefly summarised. Seymour represented clients in three quite different transactions in which he performed activities regularly, but not always, performed by solicitors, and he did so in a manner and using language usually adopted by solicitors. He commented on the terms of documentation and, on one occasion See the letter dated 17 January 1996 from Seymour in the "patent transaction"., he drafted a provision. He conducted negotiations, and debated contentious legal issues. It is implicit in what occurred that he was probably advising his clients on matters involving legal issues. Although there is no direct evidence that he charged for his services, that also seems probable from the diverse nature of his activities and his references to "clients". On the other hand, his clients did not pay him any other money; e.g., funds which a solicitor would be required to pay into a trust account. 23 As appears from Seymour's letter of 24 June 1996 to Mr Henty, at least the principal parties to the "patent transaction" were aware that Seymour was not a solicitor as a result of his acknowledgment or confirmation of that fact. That is a matter of considerable significance. Seymour's notification to those with whom he was dealing that his activities were not being carried on by him as a solicitor removes that transaction from consideration as part of his activities for the purpose of deciding whether he acted as a solicitor in the material period. Only the "lease transaction", in which his participation was quite consistent with his being a "Business Adviser", as stated on his letterhead, and his very limited involvement in the "family law dispute", from which he withdrew when it became litigious, remain. In both those transactions, and indeed in the "patent transaction", there was nothing which described him as solicitor. On the contrary, his letterhead indicated otherwise. 24 In my opinion, it cannot be concluded from the circumstances proved by the Law Society that the only reasonable inference from Seymour's activities is that he acted as a solicitor. Accordingly, Seymour did not, by those activities, breach the consent orders made by Blanch J on 5 September 1994. The Law Society has failed to prove that, by virtue of those activities, he is guilty of contempt. 25 Even if the Law Society's appeal is competent, it fails. There is no purpose in considering the question of competency, since the law was amended by the insertion of subss 101(5) and (6) and s 101A in the Supreme Court Act 1970 by s 3 and Schedule 1 of Act 111 of 1996. 26 I would therefore dismiss the appeal. The Law Society must pay Seymour's costs.

The Law Society of NSW v Seymour

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