Raghoobar v Legal Services Commissioner
[2023] QCA 191
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- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
- Raghoobar v Legal Services Commissioner[2023] QCA 191
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Raghoobar v Legal Services Commissioner[2023] QCA 191
Raghoobar v Legal Services Commissioner[2023] QCA 191
SUPREME COURT OF QUEENSLAND
CITATION: | Raghoobar v Legal Services Commissioner [2023] QCA 191 |
PARTIES: | SURENDRA RAGHOOBAR (appellant) v LEGAL SERVICES COMMISSIONER (respondent) |
FILE NO/S: | Appeal No 4953 of 2023 SC No 12444 of 2022 |
DIVISION: | Court of Appeal |
PROCEEDING: | General Civil Appeal |
ORIGINATING COURT: | Supreme Court at Brisbane – [2023] QSC 41 (Martin SJA) |
DELIVERED ON: | 22 September 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 September 2023 |
JUDGES: | Bowskill CJ and Dalton JA and Buss AJA |
ORDER: | Appeal dismissed, with costs. |
CATCHWORDS: | PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING AS SOLICITOR – where at first instance the appellant, after an application was brought by the respondent, was restrained by injunction from engaging in legal practice – where the appellant contended that he was not engaging in legal practice, but was merely assisting people, who were friends and acquaintances, in relation to legal matters, for example by assisting them to draft submissions and letters, make amendments to court documents and understand the court process – where, on appeal, the appellant contended that the trial judge erred in finding that he had engaged in legal practice, erred in giving undue weight to the evidence of the respondent, and erred in giving no weight, or little weight, to the evidence of the appellant – whether the appellant engaged in legal practice Legal Profession Act 2007 (Qld), s 6(1), s 24, s 24(1), s 703 Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29, cited |
COUNSEL: | The appellant appeared on his own behalf C M Doyle for the respondent |
SOLICITORS: | The appellant appeared on his own behalf Legal Services Commission for the respondent |
- [1]BOWSKILL CJ: Being concerned that the appellant, who is not an “Australian legal practitioner”,[1] was engaging in legal practice contrary to the prohibition in s 24(1) of the Legal Profession Act 2007 (Qld), the respondent brought an application under s 703 of the Act seeking an injunction to restrain the appellant from engaging in such conduct. After hearing the application on 13 February 2023, Martin SJA made the following order on 28 March 2023, for the reasons published on the same date:[2]
- “1.Pursuant to section 703(2) of the Legal Profession Act 2007 (Qld), the respondent is restrained from engaging in legal practice in the State of Queensland when not an Australian legal practitioner. In particular, the respondent is restrained from:
- (a)providing legal advice in relation to proceedings or potential proceedings, whether in person or in writing;
- (b)corresponding or communicating on behalf of parties to proceedings or potential parties to proceedings, or drafting correspondence or communications for parties or potential parties to proceedings to send themselves in relation to such proceedings;
- (c)drawing documents on behalf of, or as agent of, parties to proceedings or potential parties to proceedings;
- (d)drafting submissions, whether oral or written, for parties or potential parties to proceedings to present in court;
- (e)conferring with parties to proceedings in relation to those proceedings; and
- (f)attending at, or appearing in, court on behalf of parties to proceedings, including negotiating or mediating litigation matters on behalf of any party to proceedings.”
- [2]The appellant was ordered to pay the respondent’s costs of the proceedings below on the standard basis.
- [3]The appellant appeals the decision, on the grounds:
- “1.That the learned Judge erred in giving undue and excessive weight to the evidence put forward by the Respondent.
- 2.That the learned Judge erred in failing to give any, or otherwise, gave little or insignificant weight to the evidence put forward by the Appellant.
- 3.That the learned Judge erred in finding that the Appellant had engaged in legal practice within the definition of the Legal Profession Act 2007 (Qld).
- 4.That the learned Judge, accordingly, erred in making the Order dated 28 March 2023 in favour of the Respondent.”
- [4]On the appeal, the appellant seeks orders, first, that the order made on 28 March 2023 be “quashed” and, secondly, that the matter be relisted for a re-hearing.
- [5]At the hearing of the application before Martin SJA, the respondent relied upon affidavits from a number of people, none of whom were required for cross-examination. The appellant also relied upon affidavits from a number of people, including himself. Only the appellant was required for cross-examination.
- [6]It may be observed, from the transcript of that cross-examination, that there was not a great deal of dispute about the underlying facts – apart from the contention by the appellant that, where he had used the word “drafting” in the invoices he was cross-examined about, he really meant to say “assisted in drafting”.
- [7]The dispute was as to how the activities that were being undertaken by the appellant were properly to be characterised.
- [8]For the respondent, it was said he was engaging in legal practice.
- [9]The appellant said he was not – he was merely assisting people, some of whom he had known for a long time, in relation to legal matters (mainly matters of a family law nature, some civil matters, a domestic violence matter and lesser criminal matters) by assisting them, for example: to update a will or prepare an enduring power of attorney, to make submissions to police prosecutions, meeting with them to “discuss what the issues are… and telling them what their options are and helping them with … their documents and … correspondence”, to draft submissions for court, when a client is appearing at court mentions, to make amendments to consent orders, to draft letters to be sent to the other parties, or to the court, considering legislation and drafting letters, assisting with the preparation of court documents, reading “family reports” in family court matters and assisting a client to draft documents for or letters to the court, reading court orders and affidavits, amending court documents, drafting documents for a conciliation conference, reading real estate agent appraisals in order to provide “my view of it” to the client in the context of a family law property proceeding, and helping clients with “understanding the court process”[3] – for all of which the appellant charged his “clients” a fee, the invoices for which make reference to “due care and consideration”.
- [10]Towards the end of the cross-examination of the appellant, the following exchange took place:
“In essence – in essence, you’re claiming that you – the business that you were running didn’t amount to you engaging in legal practice; is that right?---Well, it depends on how – what the definition of legal practice is. I’ve definitely helped people in their legal problem. I’ve definitely helped them in achieving an outcome, but I don't agree that I was engaging in legal practice. I accept that I was helping people in legal problems, but I don 't accept that I was engaging in legal practice.
You agree, though, that you had a multiplicity of clients who you were helping with legal problems?---Yes.
That you drafted submissions for them?---I assisted them in drafting submissions.
That you drafted emails for them and letters to the other party?---Well, I assisted them in drafting and going through it together with them and then sending it through with the approval of that person, whether it was his friend or an acquaintance. It was – nothing was ever done without their knowledge and permission.
Mr Raghoobar, is that not exactly how legal practice works, from your experience?--- It does, but at the end – but at the end of the day, I was still – I’m not engaging in legal practice because I’m running my own business. Now, if the – if the matter was legally related – if it was someone that I – you know, it’s people that I know, people that I trust, people that trust me, have known me for a long time, and at the end of the day, if I’m helping them, yes, I do charge a fee for it, but if I’m helping them because they can’t afford big law firms or they can’t afford big lawyers, I don’t see what the harm is because I’m not providing advice. I’m not telling them to sign something that they don’t want to sign. I’m not telling them to – as an example, to – or representing them in court or signing an affidavit and putting my name at the bottom of the affidavit, stating that I drafted that document for them. I’ve never done any of this stuff.”
- [11]The appellant reiterated that he had always been “above board” with his clients, in terms of explaining to them that he could not sign documents for them, or represent them in court. He said he would tell them about his law degree, and his employment history as an articled clerk and then an employed lawyer working for various law firms, but that “the minute I switched from the firm to operating by myself, it would – becomes an issue. That’s why I was – I made it very clear to them what I can and can’t do”.[4]
- [12]In addition to his own evidence, the appellant relied upon affidavits from three of his clients, Ms McLellan, Mr Rule and Ms Hammond, who all said that the appellant had “never provided me with legal advice”. Ms McLellan, whom the appellant “assisted and helped” for 18 months in relation to a family law proceeding, said in her affidavit that:
“Mr Raghoobar’s assistance to me has been limited to him helping me with checking documents I drafted for the Court, helping me with checking correspondence I have drafted for the other party or to the Court, helping me with court requirements, helping me with applying and obtaining fee exemptions, and helping me understand the court process and giving me options on how to move forward with my matter.”
- [13]Mr Rule, to whom the appellant provided “assistance and guidance” in settling parenting and financial matters in relation to a family law proceeding, for about 10 months, said:
“Mr Raghoobar’s assistance to me has included assisting me with understanding various communication between myself and my former wife, assisting me by checking and verifying my documents of a Court nature, helping me with checking and amending certain documents for the Court, checking communication and emails I have drafted, helping me with the technological side of things (such as laptop and comm portal[5]), and generally, helping me understanding the Court process.”
- [14]The appellant also “assisted” Ms Hammond in relation to financial and parenting proceedings. Ms Hammond says:
“Mr Raghoobar has never provided me with legal advice, nor appeared for me in Court neither has ever signed any documents on my behalf, rather, his assistance has been restricted to checking documents I have drafted for the Court, checking correspondence I have drafted, helping me obtaining court fee exemptions, helping me understand the more complex documents, and generally, helping me understand the Court system, which can be overwhelming for anyone who is not used to it.”
- [15]Included as an annexure to one of the appellant’s affidavits was a copy of an unsworn statement from another client, Ms Mackey.[6]
- [16]The evidence of the respondent included the contents of five folders relating to Ms McLellan’s family law matter, seized at the time of the execution of the warrant; evidence from a solicitor who represented Ms McLellan’s husband in those proceedings, about what she observed on a particular court date; and evidence of a sample of the large quantity of seized material – including some material relating to particular clients’ matters, and a folder containing 59 invoices.
- [17]Before turning to address the grounds, it is important to note that the appellant does not challenge the finding below as to what it means, as a matter of law, to “engage in legal practice”. Relevantly, Martin SJA found, by reference to authority, that to “engage in legal practice” means to carry on or exercise the profession of law, which includes doing things usually done by a legal practitioner, such as advising parties to litigation in respect of matters of law and procedure, assisting parties to litigation in the preparation of cases for litigation, drafting court documents or legal correspondence on behalf of parties to litigation and purporting to act as a party’s agent in relation to litigation. His Honour also found that, whilst carrying on or exercising the profession of law is to be distinguished from the “business” of law, indicia of carrying on a business are relevant to the assessment of the activities of a person in this context. Importantly in the present case, Martin SJA also endorsed the view that the relevant inquiry is not informed by subjective considerations (that is, whether the person intended to breach the unauthorised practice proscription, or, one might add, whether the person told their clients they were not a legal practitioner) – the inquiry is an objective one. I agree with the principles as articulated by Martin SJA in the decision below.
- [18]As to ground 1, the appellant submits that the evidence relied upon by the respondent does not establish that he engaged in legal practice. For this argument, he reiterates the point he made below, that he was merely “assisting a number of friends and acquaintances for which he was properly invoicing them for his services”. In support of that, he cites his own protestations, and Ms McLellan’s assertions that he was “just helping with the trial”. The appellant also emphasises that his clients were fully aware he was not a legal practitioner or a solicitor. Further, in support of his submission that the respondent did not, at the hearing below, demonstrate that he had engaged in legal practice, the appellant refers to his own responses in cross-examination.
- [19]In my view, a combination of the documentary material in evidence, including the invoices, and the answers given by the appellant in cross-examination, amply supported the conclusion reached by the primary judge, that the appellant “has, on any view of the matter, engaged in legal practice”.[7] As Martin SJA said, at [29] of the decision:
- “Mr Raghoobar’s argument was that he had not provided legal advice, but the material is replete with examples of that being done. His own material obtained pursuant to the search warrant shows that he was ‘assisting his clients to understand the court processes and what was needed to be done or appropriate to be done’. He has:
- (a)assisted with the creation of applications and affidavits;
- (b)drafted other documents for use in court;
- (c)advised parties to litigation in respect of matters of law and procedure and assisted them in the preparation of their cases for litigation;
- (d)drafted correspondence to be sent by the parties to their opponents in the litigation; and
- (e)charged clients for the work [he] has done.”
- [20]All of those things are apparent from what the appellant has said himself. His protestation, that he merely “assisted” with drafting submissions, letters and court documents is artificial – it does not matter if the “client” provided a first version, or had input, he was plainly involved in drafting those documents. It is also disingenuous for the appellant to say he did not “advise” his clients. Plainly, in all the various help and assistance that he gave, he was providing advice as to what to do and how to do it.
- [21]There is no basis on which it could be said the learned primary judge erred, in the manner described under either ground 1 or ground 2, in making the finding at [30] of the decision. It was not a matter of placing “weight” on evidence from the respondent or the appellant – the finding was essentially based on material seized from the appellant, including the invoices, and what he said in his oral evidence when cross-examined. When the relevant principles are applied to those facts – which are, as already noted, essentially undisputed – the conclusion reached is unquestionably correct.
- [22]The appellant makes three further points, under ground 2. First, that the primary judge allowed the respondent’s counsel to cross-examine him on invoices in relation to files, in circumstances where the files themselves were not before the court, despite the appellant raising this as a matter of complaint at the hearing. Secondly, that the primary judge “did not seem to be taking any notes or write comments down” during the appellant’s submissions, but appeared to be “clearly taking notes and writing comments” during the submissions by counsel for the respondent. And, thirdly, that those two things support the inference that “there was a clear perception of bias or favoritism [sic] by the Learned Judge towards the Respondent”.
- [23]As to the first matter, there was no reason why the appellant could not be asked questions in cross-examination about invoices that were in evidence, without the actual file to which any particular invoice related being before the court. As the evidence explains, some 31 document binders of material were seized from the appellant’s home during the search. What was put in evidence was a sample of that material only. That sample persuasively made the case that the appellant was, unlawfully, engaging in legal practice. The invoices were part of that sample. They were documents produced by the appellant, and he was well capable of answering questions about the words used in them.
- [24]It is unnecessary to address the second matter in any detail. The proceedings were being transcribed; the judgment was reserved; and the primary judge would have had access to the transcript in the course of preparing the decision. How, when and to what extent a judicial officer makes notes in the course of a hearing is entirely a matter for them, impossible for a person appearing by video-link (as the appellant did at the hearing) to properly comment on, and not relevant in any way to the determination of this appeal.
- [25]It follows, in relation to the third matter, that there is no foundation for any complaint of apprehended bias. The relevant test is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[8] The test involves an inquiry that begins with the need to identify what it is said might lead the judge to decide the case other than on its legal and factual merits. Nothing has been identified which could support such a conclusion. A review of the transcript of the hearing, and the decision, reveal nothing that would support such a conclusion.
- [26]Grounds 3 and 4 essentially challenge the finding made, that the appellant had engaged in legal practice, within the meaning of that phrase where used in the Legal Profession Act 2007. For the reasons already given, in my view this conclusion was amply supported by the evidence from the appellant’s records, and what he said, before the court below.
- [27]Dealing with some of the particular points raised by the appellant: The appellant appears to proceed on the basis that the evidence of his clients, Ms McLellan, Mr Rule and Ms Hammond, was not accepted, and submits that is unfair, in circumstances where the respondent did not challenge their evidence. That is incorrect. Their evidence was not challenged, nor was it rejected by the primary judge. He separately complains that the primary judge “totally ignored” the evidence of Ms Hammond, because it is not expressly referred to in the decision. A judge is not obliged to make reference to all the evidence which is before them in their reasons, and it is not to be inferred that the primary judge ignored the evidence because it is not expressly referred to. Ms Hammond’s evidence was in any event essentially in the same terms as that of Mr Rule and Ms McLellan which was expressly referred to. The extent to which the evidence of the clients could affect the ultimate conclusion was limited, given that it is an objective, not a subjective, inquiry. The primary judge was right to conclude that the fact the appellant had told his clients he was not a legal practitioner “has no effect on whether his conduct amounted to engaging in legal practice”.[9] The passages set out above from each of the affidavits of Ms McLellan, Mr Rule and Ms Hammond (which are essentially mirrored in the unsworn statement of Ms Mackey) support the conclusion reached, that the appellant was engaging in legal practice, despite his protestations to the contrary.
- [28]It is not to the point that the appellant might have told these clients he was not a legal practitioner. They were not in a position to know that he should not be “assisting” them with their legal matters in the manner that he was. They were not to know that, because they were dealing with a person who was not a legal practitioner, they had none of the protections that a consumer of legal services otherwise has, by virtue of the regulatory regime that supervises legal practitioners.
- [29]Not only has the appellant engaged in legal practice, in breach of the prohibition in s 24 of the Legal Profession Act 2007, he demonstrates a concerning lack of insight into why that is a serious matter. It is appropriate that he be restrained by court order from engaging in conduct that would breach that prohibition.
- [30]For those reasons, the appeal ought to be dismissed, with costs.
- [31]DALTON JA: I agree with the order proposed by Bowskill CJ and with her reasons.
- [32]BUSS AJA: I agree with the Chief Justice.
Footnotes
[1] See s 6(1) of the Legal Profession Act 2007 (Qld).
[2]Legal Services Commissioner v Raghoobar [2023] QSC 41.
[3] All of these examples are taken from the appellant’s evidence during cross examination: see AB 2110 to AB 2123.
[4] AB 2124.
[5] It may be inferred “comm portal” is a reference to the Commonwealth Courts Portal – which, incidentally, the appellant was logged into, on behalf of Ms McLellan, at the time the search warrant was executed at his home: see Clements, AB 20.
[6] AB 2092-2093.
[7] Decision at [30].
[8]Charisteas v Charisteas (2021) 273 CLR 289 at [11].
[9] Decision at [24].