Victorian Lawyers RPA Ltd v Bailey [2000] VSC 162

Supreme Court of Victoria|2000-04-26|Before: Ashley J

LEGAL PRACTITIONERS - unqualified person - "engage in legal practice" - representing or advertising qualification to engage in legal practice - Legal Practice Act 1996 ss.314, 316

This is an application by originating motion filed 13 September 1999 in which the plaintiff is Victorian Lawyers RPA Ltd and the defendant is Gary S. Bailey. In substance, the proceeding seeks an order that Mr Bailey be restrained from engaging in legal practice in Victoria, or from representing or advertising that he is qualified to engage in practice. The application is brought pursuant to s.316(1) of the Legal Practice Act 1996 (the Act).

Sub-section (1) of that section provides as follows:

"On application by an RPA or the Board, the Supreme Court, if it thinks fit, may grant an injunction restraining a person from engaging in legal practice, or representing or advertising that they are qualified to engage in legal practice, in contravention of s.314".

The plaintiff, then, is a competent plaintiff for the purposes of the section.

"A person must not engage in legal practice in Victoria unless the person -

(a) is a natural person who -

(i) is admitted to legal practice; and

(ii) holds a practising certificate".

Sub-section (2) of that section provides that -

"A person must not represent or advertise that they are qualified to engage in legal practice unless the person

(a) is a natural person who -

(i) is admitted to legal practice; and

(ii) holds a practising certificate".

I should refer also to sub-s.(4) of s.314. It provides that -

"For the purposes of this section engaging in legal practice may consist of a single act".

When the hearing of the application commenced this morning the plaintiff relied upon the affidavits of John Thomas Mazaris sworn 11 August 1999 and 25 February 2000, Joseph Ambrose Baravecchio sworn 4 October 1999, Phillip Dibdin sworn 5 August 1999, Bruce Valentine sworn 6 August 1999, Darryl Porter sworn 22 February 2000, Julijana Strojovski sworn 24 February 2000, and the various exhibits to the affidavits. In substance, the affidavits depose to Mr Bailey's conduct on various occasions in a period commencing in September 1997 or thereabouts, and extending up until late 1999.

In the course of the hearing it emerged that Mr Bailey had been prosecuted in the Magistrates' Court for breaches of s.314. A supplementary affidavit was sworn by Mr Baravecchio exhibiting certified extracts of orders made in the Magistrates' Court on 7 October 1999. The extracts are admissible in evidence pursuant to s.18(5) of the Magistrates' Court Act 1989. The burden of the extracts is that six informations were laid against Mr Bailey, that four of the informations were withdrawn, and that in respect of two informations Mr Bailey pleaded guilty, was convicted, sentenced and thereafter appealed. The two matters in respect of which he was convicted alleged respectively breaches of s.314 in the periods 13 February 1998 to 1 May 1998 and 18 May 1999 to 15 September 1999.

I indicated to Mr Randall of counsel, who appeared for the plaintiff, that in view of the fact that appeals are pending it would be undesirable for me to consider the present application insofar as it relied upon conduct alleged against Mr Bailey falling within the two periods to which I referred a moment ago. Mr Randall was content to proceed by relying upon conduct falling outside those two periods, and Mr Bailey did not object to the matter proceeding upon such a footing. For that reason, I have entirely disregarded the affidavit sworn by Mrs Stojkovski, and I have excluded from consideration a number of the exhibits to Mr Mazaris's first affidavit, as well as all the exhibits to his second affidavit.

It is convenient, next, to record the fact that I was told by Mr Randall this morning that Mr Bailey had not required any of the various deponents to attend for cross-examination. Mr Bailey did not then say that was not so. The deponents did not attend court, and, obviously, were not cross-examined.

This afternoon, Mr Bailey, who appeared unrepresented, and who had filed no affidavit in opposition to the matters deposed to in the affidavits filed on behalf of the plaintiff, sought, in effect, to give evidence from the Bar table. I permitted him to give viva voce evidence so that the matter could be put onto a proper footing.

In the course of his evidence Mr Bailey in substance accused two deponents, they having sworn that he had described himself as a solicitor, of lying. I do not think that he was prepared to concede a misunderstanding. At one stage he said that he had at some earlier time indicated that he wished to cross-examine those two persons as well as other deponents for the plaintiff. It is not clear to me whether he persisted in that assertion. Certainly he did not by what he said plainly then require the deponents to attend.

Further in the course of his evidence Mr Bailey indicated his wish to call Mr Harry Nowicki, a solicitor, to confirm that one of the deponents who had sworn that he, Mr Bailey, had described himself as a solicitor, had misstated (I use a neutral term) what he had said. After Mr Bailey had concluded his evidence, he in fact applied for an adjournment of the matter to call Mr Nowicki. I refused that application. It appeared to me to be a stalling tactic; or most charitably a decision late made - a decision that was improbably explained by Mr Bailey's assertion that he believed the plaintiff's case would extend beyond a day.

What I have decided to do in determining the application is this: Although I consider that there was no reason at all why, if Mr Bailey wished to call Mr Nowicki, Mr Nowicki should not have been here today, I will not rely upon paragraph 3 of the affidavit of Phillip Dibdin, which affidavit contained an account of a conversation at which Mr Nowicki was allegedly present.

I make it clear that in deciding not to rely upon that paragraph of Mr Dibdin's affidavit, I am not preferring the evidence of Mr Bailey that the particular remark was not made to Mr Dibdin's evidence that it was made. Rather, I am simply putting the matter in dispute to one side. If I was to determine that matter adversely to Mr Bailey, in circumstances where, though with no real excuse, Mr Nowicki was not called to give evidence for the defendant, it might be thought unfair.

The material which is before me, subject to the inhibitions which I have identified, permits the following observations to be made and conclusions reached: First, in August 1997 Mr Bailey, operating under the title "Gary Bailey & Co., Advocates and Consultants" described his premises as "Law Offices, 1st Floor, 253 Lonsdale Street, Dandenong, Vic, 3175". Mr Bailey offered, as an explanation for his doing so, the fact that those premises were on occasions used by a solicitor. I am bound to say that that explanation struck me as sheer humbug.

Second, in September 1997 Mr Bailey furnished an account to a Mr Johnson, again on letterhead describing his premises in the way to which I referred a moment ago. The form of the account was, for anyone who has seen a solicitor's bill of costs, redolent of such a bill.

Mr Bailey gave evidence that the account was no more than an account for out-of-pocket expenses incurred by him as an industrial relations advocate. The amount of the so-called out-of-pocket expenses was $1,500. In fact, it is clear that the expenses were in large part not out-of-pocket expenses at all. They were professional costs.

What might have been said was that the expenses related to an appearance by Mr Bailey for the client in the Commonwealth Industrial Relations Commission, and that he was entitled to act in such proceedings by reason of a provision of the Workplace Relations Act 1996. Because of what might have been said, but was not said, by Mr Bailey, I attach little significance to the account.

Third, Mr Bailey wrote a letter to a Mr Perera, dated 15 September 1997. It said this, in part:

"Re H.M. Pentridge prison ats yourself. We refer to the above and pursuant to your instructions herein, for which we thank you, we now advise of a time and date for a barrister's conference which is as follows."

Then there was set out the name of counsel, the place, time and date of a conference. The letter concluded:

"If you have any queries regarding this matter, please do not hesitate to contact Mr Gary Bailey who possesses the care and conduct of your file."

Mr Bailey said in evidence that what he had done was to act as a friend for Mr Perera; and that he had not acted as a solicitor in referring the gentleman to counsel. I note that Mr Perera paid Mr Bailey a fee for the services rendered by Mr Bailey as a friend. The document, to my mind, bears the unmistakable appearance of a person assuming the role of a solicitor and arranging a conference with counsel.

Fourth, in December 1997 a complaint was issued out of the Magistrates' Court at Dandenong in which C & D Pine was plaintiff and Peter Theodore was defendant. The claim was for goods and services in an amount of $2,983. The document identified the plaintiff's address for service as Mr Bailey's then office in Walker Street, Dandenong. The document said this:

"If you pay the amount of $2,983 and costs of $362.50 to the plaintiff or the plaintiff's solicitor without giving notice of defence you may avoid further costs".

About this document, Mr Bailey noted that it did not refer either to G.S. Bailey & Co. or himself at all. He said that the plaintiff had chosen to use his, Mr Bailey's, business address. He, Mr Bailey, had nothing to do with the drawing of the document; but he directed or addressed the plaintiff to claim costs.

The document appears to be incomplete. I would expect it to have been signed either by the plaintiff or by someone on the plaintiff's behalf on a second page. Be that as may, it is significant, I think, that the document provided Mr Bailey's business address as an address for service and that the document referred to an amount plus costs which, if it was paid, might abbreviate the proceedings.

Under s.131 of the Magistrates' Court Act provision is made for costs orders in the Magistrates' Court. Order 26 of the Magistrates' Court (Civil Procedure) Rules 1989 (at the pertinent time then operative) referred the reader to a scale of costs set out in Appendix A of those rules. As might be expected, the scale of costs was entirely appropriate to a circumstance where a party was legally represented; not otherwise.

Fifth, in a proceeding filed in the Magistrates' Court at Dandenong on 6 May 1998 a Mrs Paule claimed an amount of $3,708 from Big J (Aust) Pty Ltd. The claim was said to be for "breach of contract/agreement". The document stated that the plaintiff's address for service was "G.S. Bailey & Co., 32 Walker Street, Dandenong, Vic, 3175". It was signed by G.S. Bailey & Co. immediately above this direction: "To be signed by the plaintiff or the plaintiff's solicitor". The document asserted that if the defendant paid the amount of the claim and costs of $368 to the plaintiff or the plaintiff's solicitor without giving notice of defence, then further costs might be avoided.

About this document, Mr Bailey said that it left the situation quite open for the plaintiff to engage a legal practitioner. As I understood it, he said that the amount of costs was inserted in case the plaintiff thereafter engaged a solicitor. I am bound to say that among the improbable pieces of evidence that I have heard in nearly ten years on the Bench that ranks high.

Sixth, between 25 January 1999 and 12 April 1999 two advertisements and a business profile appeared in a newspaper circulating in the Dandenong area. The business profile referred to "Lawyers, G.S. Bailey & Co." One of the newspaper advertisements was a composite advertisement identifying a solicitor in the top portion and Mr Bailey in the bottom portion. The second advertisement essentially separated the first composite advertisement into two pieces.

Mr Bailey gave evidence that the business profile was inserted without his knowledge or contribution; that he sought to have the description of G.S. Bailey & Co. as lawyers retracted, but the newspaper publisher did nothing about it. About the advertisements, he said this: that they clearly distinguished between the solicitor on the one hand and he as an industrial relations expert on the other.

I am strongly inclined to think that the newspaper advertisements, whether in the composite or separated form, did attempt to convey Mr Bailey's status as a legal practitioner, notwithstanding what might be thought to be the carefully crafted way in which they were drawn. But I am not prepared to make a finding against Mr Bailey in this proceeding on the footing that the advertisements are decisive or even important in that determination. Indeed, I will go further and put them to one side. Being cautious, I will take the same view with respect to the business profile to which I referred a few moments ago.

Seventh, G.S. Bailey & Co. said this in a letter dated 29 January 1999 sent to a firm of solicitors concerning an industrial relations matter:

"We now put your client ... on notice that if he does not desist in such conduct, we have instruction (sic) to issue legal proceedings in the Magistrates' Court of Victoria without further notice".

Mr Bailey gave evidence that the real intent of the letter was to convey the situation that the client had given instructions to issue legal proceedings in the circumstances described, but that this would be done by the client engaging a law firm. That explanation seems to me to be quite unconvincing having regard to the form of the letter.

Eighth, in a lease of the premises at Walker Street, Dandenong, signed by Mr Bailey and dated November 1997, the use of the premises was described this way: "solicitor's office". I understood Mr Bailey to explain that portion of the lease by saying that Mr Nowicki attended the premises twice a week and that the Law Institute was aware of the situation. It seems to me to be a most improbable explanation for the description of the premises as a "solicitor's office" that an office that was used, on Mr Bailey's account, five days a week in connection with industrial relations advocacy and twice a week by a visiting solicitor should be described as a solicitor's office.

Ninth, Mr Porter, in his affidavit sworn 22 February 2000, said that Mr Bailey described himself as an industrial relations solicitor. Mr Bailey denied that he had so described himself. Mr Porter was not required to attend for cross-examination.

As will be evident, I was not much impressed by Mr Bailey's evidence generally. Certainly in documents adduced in evidence he was careful not to describe himself in terms as a solicitor. But I think it is likely that such care was not invariably taken in oral contact with clients; or at least (and this is all I find) not in the case of Mr Porter.

Tenth, Mr Valentine deposed by paragraph of 2 of his affidavit sworn 6 August 1999 that on a second occasion when he consulted Mr Bailey concerning a possible unlawful dismissal he was told by Mr Bailey that "legal proceedings should be started but that he needed $500"; and that he in fact paid Mr Bailey $500.

Proceedings were commenced in the Magistrates' Court at Dandenong. The initiating document was signed by Mr Valentine but, as he deposed, not prepared by him. It claimed an amount of $1,390.65 for breach of contract. The plaintiff's address for service was given as 32 Walker Street, Dandenong. There was reference to payment of the claimed amount and specified costs in order to avoid further exposure to costs.

Concerning the Valentine matter, Mr Bailey gave evidence that he did tell Mr Valentine that legal proceedings should be started, and that Mr Valentine would need to go to the Magistrates' Court. He, Mr Bailey, lodged the complaint for Mr Valentine, but not on the latter's behalf. An amount was claimed for costs in case Mr Valentine engaged lawyers.

About that explanation, I repeat the conclusions which I expressed in connection with the complaint initiated by Ms Paule against Big J (Aust) Pty Ltd.

Eleventh, also in connection with Mr Valentine's claim, I note that on 1 September 1998 Mr Bailey's office wrote to Mr Valentine enclosing a photostat copy of a letter dated 31 August 1998, directed to Mr Valentine's previous employer. That letter said this, in part:

"We advise that unless we receive your cheque in the sum of $1740.65 (which includes $350 for present out-of-pocket expenses) within (7) seven days from the date hereof, legal proceedings shall be issued against your company in the Magistrates' Court of Victoria without any further notice".

It appears to me that Mr Bailey's role in connection with the proceeding which was in fact issued is best understood when reference is had to the letter of demand.

I am left in absolutely no doubt, on the material to which I have referred, insofar as I have explicitly accepted it, that on a considerable number of occasions commencing in about September 1997 Mr Bailey has, within the meaning of s.314(1)(a) and (2)(a) of the Act, both engaged in legal practice in Victoria and represented or advertised that he is qualified to engage in legal practice, and that he has done so, as Mr Baravecchio's first affidavit shows, whilst neither being admitted to legal practice nor holding a practising certificate.

Mr Bailey submitted that maybe he had made mistakes along the way. He said that it did "not look too good" on the face of it, but that I should look below the surface and see that what he was concerned to do was to assist workers who had been wrongly dealt with by their employers.

Mr Randall told me that his client is aware that in the industrial relations field there are unqualified advocates on both sides of the fence, and that his client has not sought to inhibit their activities so long as they have not trespassed into legal practice.

Mr Bailey's response was that industrial advocates are commonly employed either by trades unions or employer organisations, and that such persons are to an extent shielded against the risk that they might face proceedings such as this.

It is not for me, today, to mark out the limits to which a person such as Mr Bailey may permissibly go in acting as an industrial relations consultant or advocate. It should be agreed that such a role legitimately exists. The Workplace Relations Act permits, in some circumstances, a person to appear by an agent as distinct from counsel or a solicitor. See also Felman v. The Law Institute of Victoria; Felman v. Glennen [1998] 4 V.R. 325 particularly at 350 and 352.

It is my concern, today, to determine whether Mr Bailey's conduct in the past has infringed s.314 of the Legal Practice Act, and whether in all the circumstances an injunction should go.

The conduct relied upon by the plaintiff, and which I have found to be established, in some instances has had an industrial relations context; but not in all instances. Even where it has been conduct occurring in an industrial relations context, it has been conduct for the most part involving the institution of proceedings - not in the Industrial Relations Commission, but in a court. In cases where proceedings have been commenced, work undertaken by Mr Bailey or his staff has on the face of it been solicitor's work. Solicitor's costs have been claimed. In connection with court matters, s.100(6) of the Magistrates' Court Act is pertinent.

Further, in the case of one client, I am satisfied that Mr Bailey represented himself to be a solicitor. Again, I consider that the import of stationery used by Mr Bailey in earlier times, notwithstanding what might be thought to have been some care in its preparation not to describe him as a legal practitioner, was in substance a representation that he was qualified to engage in legal practice.

As I said, I do not doubt that the conduct which I have found to be established evidences conduct proscribed by s.314. It is unnecessary, the infraction being so clear, to analyse the authorities. It is enough to say that I have taken account of the judgment of Kenny, J.A., in Felman at 349-352; and as well, have had regard to discussion by Phillips, J. of the position established under the earlier legislation in Cornall v. Nagle [1995] VicRp 50; (1995) 2 V.R. 188, particularly at 208-210, and to my own analysis of that legislation in Glennen v. Nagle (unreported, 19 June 1996) at pp 4-8.

A question arises whether, notwithstanding that offending conduct has been established, I should grant an injunction. There is, no doubt, an element of discretion about the matter. I am not unmindful of the difficulties that Mr Bailey says he may face if an injunction is granted; in particular, the uncertainty of knowing in advance whether work he might perform in the industrial relations field would or might offend against the injunction.

On the other hand, the conduct of which the plaintiff complains has, for the most part, focused upon activities of Mr Bailey which are quite different in kind to the activities concerning which he submitted that there might be uncertainty. Moreover, the offending conduct has been quite persistent, and such as justifies action on the part of the court - action whose object is to protect the public, not the legal profession. I consider it probable that circumstances in which Mr Bailey acted in the past in contravention of s.314 will arise again in the future. I decline to accept Mr Bailey's sweeping allegations that the attention of the plaintiff, the media and private investigators has driven him out of business - never to return.

In my opinion, then, the plaintiff should have an injunction, and it should be expressed this way:-

That Gary Stephen Bailey be restrained from engaging in legal practice in Victoria and be restrained from representing or advertising that he is qualified to engage in legal practice, unless and until he is admitted to legal practice and holds a practising certificate.

Legal Practice Act 1996

Magistrates' Court (Civil Procedure) Rules 1989

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