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Pearson v The Legal Services Commissioner[2018] QDC 266

Pearson v The Legal Services Commissioner[2018] QDC 266

DISTRICT COURT OF QUEENSLAND

CITATION:

Pearson v The Legal Services Commissioner [2018] QDC 266

PARTIES:

MARK ANDREW PEARSON

(appellant)

v

THE LEGAL SERVICES COMMISSIONER

(respondent)

FILE NO/S:

D264/2017

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

17 December 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 November 2018

JUDGE:

Richards DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – Appeal against sentence – where the appellant did not appear - whether the appellant was served with the material – where the magistrate proceeded without the appellant - whether conduct amounts to a person carrying on or exercising the profession of law and thus “engage in legal practice” – whether a conviction should be recorded.

COUNSEL:

Mr M Campbell for the appellant
Ms D A Holliday for the respondent

SOLICITORS:

Mr M Campbell appeared on direct brief
The Legal Services Commissioner for the respondent

  1. [1]
    The appellant was charged on complaint made by a public officer with the simple offence of breaching s 24 of the Legal Profession Act 2007. On 5 September 2017 he failed to appear in the Magistrates Court for the hearing of the complaint and an application was made for the matter to proceed ex-parte pursuant to s 142A of the Justices Act 1886.  He was duly convicted of engaging in legal practice when he was not an Australian legal practitioner and was fined $1,500, ordered to pay costs of $2,000 and a conviction was recorded.  He subsequently applied to reopen the hearing and that was refused and he has accordingly appealed. 
  1. [2]
    The grounds of the appeal are as follows:
  1. This matter proceeded before Magistrate Previtera in the Magistrates Court at Brisbane on 5 September 2017 in the absence of the appellant/defendant.
  1. The appellant/defendant was never served personally with the complaint – sworn, and summons.
  1. The appellant/defendant corresponded with the complainant and/or his delegates in relation to the matters the subject of the complaint.
  1. In that correspondence the complainant and/or his delegates confirmed that personal service of proceedings of the complaint – sworn, and summons was required.
  1. Despite this acknowledgment the complainant sought to effect service of the proceedings by registered post.
  1. The appellant/defendant never received the proceedings by registered post.
  1. The appellant/defendant denies having engaged in legal practice when not entitled contrary to the allegations made in the complaint.
  1. Such a finding was made in civil proceedings in the Magistrates Court at Southport by Magistrate Sinclair in reasons delivered 25 August 2017.
  1. The Legal Profession Act enables the Legal Services Commissioner to prosecute persons engaged in legal practice when not entitled to do so.
  1. The Legal Profession Act provides a statutory limitation period for commencing proceedings of 12 months in respect of the subject matter of the complaint.
  1. The subject matter of the complaint alleged that the appellant/defendant engaged in legal practice on diverse dates between 16 January 2016 and 1 February 2017.
  1. The complaint – sworn, and summons was filed on 1 February 2017.
  1. Insofar as the complaint – sworn, and summons relied on matters allegedly occurring not within the 12 months prior to it being filed then the complaint – sworn, and summons is out of time.
  1. Pursuant to s 23C of the Justices Act the alleged offence occurred in the districts of Southport and this is the appropriate venue for this appeal to be heard and determined.
  1. In the premises of the matters detailed in paragraphs 1 to 13 above the appellant/defendant seeks the following orders:
  1. (a)
    The appeal be allowed.
  2. (b)
    The complaint – sworn, and summons filed 1 February 2017 be dismissed.
  3. (c)
    The respondent/complainant pay the appellant/defendant’s costs of and incidental to this appeal to be assessed if not agreed on the indemnity basis or alternatively the standard basis.
  1. [3]
    It would be immediately apparent that the grounds of appeal involve largely a recitation of factual complaints. However, it seems that the principle complaints are that firstly, that the appellant was never served in accordance with the Act, secondly, that the magistrate should not have proceeded ex-parte, thirdly, the matter proceeded outside the statutory limitation period for commencing proceedings and finally, that the magistrate should not have found that he was guilty of engaging a legal practice when not entitled.

Service of material upon the appellant

  1. [4]
    Pursuant to s 56(1) (a) of the Justices Act 1886 service of a summons is properly served in this matter either by serving it personally or “by posting (by means of registered post) a copy thereof addressed to the person at the person’s place of business or residence last known to the complainant at least 21 days before the date on which the defendant is by the summons required to appear”. 
  1. [5]
    The respondent initially tried to serve the summons personally but was unsuccessful and thereafter it was sent by registered post on 21 April 2017 to 5/61 Bauer Street, Southport requiring the appellant to appear on 16 June 2017. That address is the address on the notice of appeal and there is no contest that the defendant does live at that address. The case was adjourned until 5 September 2017 and further notification was sent to the appellant to that effect. It is clear that the appellant knew that the court case was on 5 September 2017 as he wrote to the court and to the respondent indicating that he had not been properly served and would therefore not appear in court on that date. He was further advised by the respondent following that notification that if he did not appear at that date an application would be made to proceed ex-parte pursuant to s 142A of the Justices Act 1886.
  1. [6]
    The appellant therefore clearly knew that the court case was about to be heard on 5 September and deliberately chose to refrain from appearing because of his belief that he had not properly been served.  As was noted in Warren v Legal Services Commissioner [2014] QCA 150:

“The object of all service is of course only to give notice to the party on whom it is made so that he may be made aware of and be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.”

  1. [7]
    Finally it is noted that, in any event, even if the appellant did not receive the summons by registered post, [although I do not accept that was the case], the fact that it was sent amounts to proper service. In Gem Po-Chioh Cheong v Webster ex-parte Gem Po-Chioh Cheong [1986] 2 Qd R 374 the Court of Appeal held (at p 375):

“By virtue of s 39(4) of the Acts Interpretation Act 1954 to 1977, the parenthesis in s 56(1)(a) is deemed, by virtue of the reference to registered post, to provide that service may be effected by certified mail service.  It follows that the summons in this case was properly served by posting a copy addressed to the respondent at what the complainant swore to be the respondent’s address last known to him and he gave as his means of knowledge that the address was that appearing in the current certificate of registration under the Main Roads Act 1920 to 1965 of the vehicle concerned.  The date of posting was more than 21 days before the return date of the summons.  Service was effected on April 22 1985 and the fact that the copy summons has been returned unclaimed cannot affect this position …”

Further (at p 377):

“As has been seen, s 56 provides a number of modes of service which may well not lead to the process coming to the notice of the defendant.  Actual receipt by the defendant is not a requirement of any of the modes of service provided save personal service.”

It is clear from the affidavit material tendered that the appellant was properly served and further he was aware of the hearing date of this matter and chose deliberately not to attend.

Should the magistrate have proceeded in the absence of the appellant?

  1. [8]
    The affidavit material filed in the Magistrates Court indicated that the appellant was given fair notice that if he did not appear on 5 September 2017 an application would be made to proceed in his absence. The affidavits detailed the attempts at personal service and then the service by registered post. All documentation had been served on the appellant by the time of the hearing as well as being served by email. Further, the magistrate was no doubt comforted by the fact that it is clear the appellant knew that the hearing was listed for 5 September 2015 and that he was simply choosing not to appear rather than being unaware that the matter was on.
  1. [9]
    Section 142A of the Justices Act 1886 provides that a case of this type, namely a simple breach of duty made by a public officer, can proceed in the absence of the accused in certain circumstances.
  1. [10]
    The defendant did not appear. He was aware of the hearing and notice was sent by registered post. The magistrate was given the outline of proceedings as well as the affidavits of service and a copy of the civil judgment dismissing a claim filed by the appellant for payment of money by Mr Dixon whom he assisted in a legal action against the Bendigo and Adelaide Bank. In that civil judgement the magistrate made findings of fact in relation to the appellants’ behaviour in assisting Mr Dixon and commented that in his view the appellant was likely acting in a legal capacity towards Mr Dixon.
  1. [11]
    The magistrate adjourned to read the affidavits, the written submissions and the judgement and then returned to the court indicating that she would proceed ex-parte in the exercise of her discretion. The submissions which were tendered outlined the basis of the case alleged by the respondent and in my view that, together with the affidavits, all of which had been served on the complainant, were sufficient for the magistrate to proceed.

Was there sufficient grounds to find the offence proven?

  1. [12]
    It is common ground that the defendant was not an Australian legal practitioner. In fact he had never studied law. Certainly whatever happened, happened within this jurisdiction in Queensland. The question was whether he was engaged in legal practice.
  1. [13]
    Mr Dixon borrowed a large sum of money from Bendigo and Adelaide Bank against his home. He borrowed that money for share purchases and lost a large amount of money such that he defaulted on the loan and the bank foreclosed on the house. They sold the house and sued Mr Dixon for the balance of monies owing. Mr Dixon believed the house had been sold for an undervalue.
  1. [14]
    Mr Dixon met the appellant in late 2013 via a blog site where persons who had similar issues were exchanging information. He was apparently a person at special disadvantage because he was suffering from psychological, visual and audio impairment. The appellant and Mr Dixon exchanged emails and information.
  1. [15]
    Mr Dixon commenced proceedings against the bank in 2015 and the appellant played an active role in those proceedings.  In particular between 16 January 2016 and 24 February 2016 the appellant assisted in preparation of the case, drafted court documents including an amended statement of claim and a reply to the defence and drafted legal correspondence.  Mr Dixon was successful in obtaining settlement from the bank but then the appellant brought an action in the Magistrates Court suing him for $140,000 for the work that he had done due to his expectation of payment on the successful outcome.  He said there was an agreement for payment of 50 per cent of the settlement.  The defendant filed material and an affidavit swearing that he had drafted the court documents and legal correspondence in Mr Dixon’s case but later denied that.
  1. [16]
    There is no definition of “engage in legal practice” in the Legal Profession Act 2007 but it has been previously considered.  The question turns on whether the appellant “carried on or exercised the profession of law and accordingly can be said to have practised law.”[1] 
  1. [17]
    It was held by Magistrate Sinclair in deciding the associated civil action that the appellant had engaged in legal practice by “advising parties to litigate in respect of matters of law and procedure, assisting preparation of the case, drafting court documents, drafting legal correspondence and purporting to act as the party’s agent (by filing documents for Mr Dixon).
  1. [18]
    In Legal Practice Board v Adam [2001] WASC 78 Hasluck J stated:

“Where a person in bringing in documents which are intended to affect legal rights or to be used in legal proceedings into existence exercises his mind as to what is the appropriate form of words to accommodate the particular case, then this can be regarded as drawing or preparing a legal document.  A process of that kind goes beyond mechanical or clerical tasks and these are the kind required to be performed by a solicitor.”

  1. [19]
    Further in Cornall v Nagle [1995] 2 VR 188, J D Phillips J considered it unnecessary to go beyond an example of the giving of legal advice as part of a course of conduct as an example of the category of conduct of doing something that is required to be done only by those with the necessary training and expertise.  He noted:[2]

“In my opinion the giving of legal advice, at least as part of a course of conduct and for reward can properly be said to lie at or near the very centre of the practice of law, and hence the notion of acting or practising as a solicitor … if the public is to be adequately protected from those lacking relevant qualifications, then, in the context of a regulated legal profession, the giving of legal advice professionally is, I think, to be regarded as exclusively the province of those properly trained in the law and having the necessary expertise.  It is thus something required to be undertaken only by the legally qualified, and not by those not properly qualified.  Nor, if the protection of the public is to be adequate can that protection be left to depend upon whether the unqualified one declares that he has no legal training …”

  1. [20]
    On the facts as disclosed in the submissions and supported by the findings of fact by the magistrate in the civil judgment, it is clear that there were sufficient grounds to find that the appellant had engaged in legal practice.

Did the matter proceed within the 12 month limitation period?

  1. [21]
    The offence of engaging legal practice requires consideration of a course of conduct over time rather than an analysis of each occasion on which the appellant acted. Over a period of time the appellant assisted in the preparation and drafting of documents and legal correspondence. The basis of the charge involves the whole of his conduct. The offence is not complete until the end date of the conduct. Although the dates spread for the offence was between 16 January 2016 and 1 February 2017, there was no further action taken by the appellant after 24 February 2016. Time ran from the 24 February 2016. However, as the summons was issued on 1 February 2017, the prosecution was commenced well within time. There is no merit in this ground.

Appeal against sentence

  1. [22]
    The appellant has sought to add as a ground of appeal that in relation to the sentence imposed, that a conviction should not have been recorded. In particular he relies on sections 9 and 12 of the Penalties and Sentences Act 1992, and by way of comparison, Reichman v Legal Services Commissioner [2017] QDC 158 where a penalty was imposed.
  1. [23]
    Reichman involved 12 offences by a young man who had completed a law degree but had not been admitted as a solicitor and who had a previous conviction when he was in his second year of law. On that occasion a $1,500 fine was imposed and a conviction recorded. 
  1. [24]
    In this case the appellant is 54 years of age. He had no previous convictions. The offence was obviously serious although ultimately Mr Dixon was successful in obtaining settlement from the bank. Whether that was with the assistance of the plaintiff or despite the assistance of the plaintiff it is impossible to judge. Mr Dixon was a vulnerable person suffering from psychological, visual and audio impairment who relied on the appellant. The scheme of the Act is protective in nature.[3]
  1. [25]
    Mr Dixon was the subject of legal action by the bank and as a consequence of the appellant assisting him he was also sued by him for $140,000. There was a civil trial where he was examined and cross examined. After the claim was dismissed the appellant suggested that Mr Dixon had given false evidence.[4] This is indicative of his lack of remorse in relation to his offending. Costs were awarded to Mr Dixon on a standard basis but it is likely he was left with some legal fees as a result of having to defend this action.
  1. [26]
    In his favour, the appellant did not advertise his services or seek out Mr Dixon. Mr Dixon was not under the impression that the appellant was in fact a lawyer. He did however prey on Dixon’s vulnerability to extract an agreement of a speculative fee of 50% of up to 2.5 million dollars. This was in circumstances where a trained lawyer could have provided services at a much lower cost.
  1. [27]
    In my view this was scurrilous behaviour. While it would have been within range for the magistrate to decline to record a conviction, given the remorseless persistence with which the appellant pursued his victim for payment it cannot be said that the recording of a conviction was outside the appropriate sentencing range.

The appeal is dismissed. I will hear submissions as to costs.

Footnotes

[1] Legal Services Commission v Walter [2011] QSC 132 at paragraph 28.

[2] Cornall v Nagle [1995] 2 VR 188 at 208.

[3] See s 22 of the Legal Profession Act 2007 which sets out the purposes of part 2.2 of the Act within which this offence lies.

[4] See the statement of Darielle Campbell dated 18 August 2017: Exhibit DGC–5.

Close

Editorial Notes

  • Published Case Name:

    Mark Andrew Pearson v The Legal Services Commissioner

  • Shortened Case Name:

    Pearson v The Legal Services Commissioner

  • MNC:

    [2018] QDC 266

  • Court:

    QDC

  • Judge(s):

    Richards DCJ

  • Date:

    17 Dec 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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