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  4. Legal Services Commissioner v Raghoobar - [2023] QSC 41

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Legal Services Commissioner v Raghoobar[2023] QSC 41

Legal Services Commissioner v Raghoobar[2023] QSC 41

SUPREME COURT OF QUEENSLAND

CITATION:

Legal Services Commissioner v Raghoobar [2023] QSC 41

PARTIES:

Legal Services Commissioner

(Applicant)

v

Surendra Raghoobar

(Respondent)

FILE NO/S:

BS 12444 of 2022

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 March 2023

DELIVERED AT:

Brisbane

HEARING DATE:

13 February 2023

JUDGE:

Martin SJA

ORDER:

  1. 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:
  1. (a)
    providing legal advice in relation to proceedings or potential proceedings, whether in person or in writing;
  1. (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;
  1. (c)
    drawing documents on behalf of, or as agent of, parties to proceedings or potential parties to proceedings;
  1. (d)
    drafting submissions, whether oral or written, for parties or potential parties to proceedings to present in court;
  1. (e)
    conferring with parties to proceedings in relation to those proceedings; and
  1. (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.
  1. 2.
    I will hear the parties as to costs.

CATCHWORDS:

PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS AND DISQUALIFIED PRACTITIONERS – ACTING AS A SOLICITOR – where the respondent previously worked as a consultant to law firms – where the respondent did not hold himself out as a legal practitioner – where the clients were friends and acquaintances of the respondent – where the respondent stated that no legal advice could be provided – whether the respondent engaged in legal practice

Legal Profession Act 2007 (Qld), s 3(a), 6(1), 24

Cornall v Nagle [1995] 2 VR 188, cited

Felman v Law Institute of Victoria [1998] 4 VR 324, cited

Legal Services Commissioner v Bradshaw [2009] LPT 21, cited

Legal Services Commissioner v Walter [2011] QSC 132, cited

Dal Pont ‘Unauthorised practice of law’ (2018) 45(3) Australian Bar Review 224

COUNSEL:

C Duffy for the applicant

Litigant in person (respondent)

SOLICITORS:

Legal Services Commissioner for the applicant

Litigant in person

  1. [1]
    In this proceeding the issue is whether Mr Raghoobar has engaged in legal practice contrary to the provisions of the Legal Profession Act 2007 (Qld) (the LPA).
  2. [2]
    The Commissioner seeks orders restraining Mr Raghoobar from engaging in legal practice (when not qualified to do so) and seeks particular orders relating to the provision of legal advice, the creation of correspondence on behalf of parties, drawing documents on behalf of parties and giving advice to parties about court proceedings.

The Legal Profession Act 2007

  1. [3]
    Before considering the evidence, it is important that the environment in which this application is brought is set out.
  2. [4]
    One of the main purposes of the LPA is “to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally” – see s 3(a).
  3. [5]
    Section 24 of the LPA provides that:

“(1)A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.”

  1. [6]
    An Australian legal practitioner is an Australian lawyer who holds a current local practicing certificate or a current interstate practicing certificate – s 6(1) LPA.
  2. [7]
    The term “engage in legal practice” is given an inclusive definition in Schedule2 of the LPA, namely, it “includes practice law”.

What does it mean to “engage in legal practice”

  1. [8]
    Legislation similar to that contained in the LPA has been the subject of consideration in Victoria and Western Australia as well as in this State. It will assist the consideration of the circumstances in this case if I briefly set out the decisions which have considered this section or cognate sections.
  2. [9]
    In Cornall v Nagle,[1] J D Phillips J couched the meaning of ‘acting or practising as a solicitor’ in the following way:

“… I conclude that a person who is neither admitted to practise nor enrolled as a barrister and solicitor may “act or practise as a solicitor” in any of the following ways:

  1. (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. This is the test in Sanderson.
  1. (2)
    by doing something that is positively proscribed by the Act or by Rules of Court unless done by a duly qualified legal practitioner. Examples of such prohibitions in a statute are ss. 93 and 111 of the L.P.P.A.
  1. (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. For present purposes, it is unnecessary to go beyond the example of the giving of legal advice as part of a course of conduct and for reward.”
  1. [10]
    The meaning of “engage in legal practice” was considered by the Victorian Court of Appeal in Felman v Law Institute of Victoria[2] where Kenny JA said at 352:

“In my opinion, the expression to “engage in legal practice” in s. 314 and elsewhere signifies “to carry on or exercise the profession of law”. Reference to the definitions of “engage” and “practice” in the Oxford English Dictionary supports the view that this is the ordinary and natural meaning of the expression. The carrying on of the profession of law is done by none other than a “legal practitioner”. Accordingly, in my view, the expression “engage in legal practice” means “engage in legal practice as a legal practitioner”, the italicised words being implicit in the notion of legal practice.”

  1. [11]
    In Legal Services Commissioner v Bradshaw,[3] Fryberg J expressed the view that “engage in legal practice” and “practise law” are the professional equivalent of “carry on business”. His Honour said:

“One would look for evidence of continuity, of repeated acts; one would look for evidence of payment for those acts; one would look for evidence of seeking business from members of the public, or at least from other lawyers; one would look for evidence of a business system; one would look for evidence of maintaining books and records consistent with the existence of a practice; one would look for evidence of a multiplicity of clients. None of those things is in evidence before me.”[4]

  1. [12]
    The meaning of “engage in legal practice” was considered by Daubney J in Legal Services Commissioner v Walter.[5] Daubney J disagreed with Fryberg J’s equation of practising law with the carrying on of a business. His Honour said:

“[18]For my part, I would respectfully disagree with the equation of practising law with the carrying on of a business. I prefer the formulation of Kenny JA, and would hold that the terms “engage in legal practice” and “practise law” in the LPA invoke the notion of carrying on or exercising the profession of law, not the “business” of law.”

  1. [13]
    In Walter, Daubney J found that it was clear that the respondent had engaged in practice of:
    1. (a)
      advising parties to litigation in respect of matters of law and procedure;
    2. (b)
      assisting parties to litigation in the preparation of cases for litigation;
    3. (c)
      drafting court documents on behalf of parties to litigation;
    4. (d)
      drafting legal correspondence on behalf of parties to litigation; and
    5. (e)
      purporting to act as a party’s agent in at least one piece of litigation.
  2. [14]
    The respondent in Walter had also been paid to draw written submissions for an applicant in one proceeding.
  3. [15]
    His Honour found that these matters lay near the very centre of the practise of litigation, and were a contravention of s 24 LPA.
  4. [16]
    I agree with Daubney J’s formulation, that is, that one looks to whether or not a person has been exercising the profession of law. But, in examining the activities of a person alleged to have breached s 24 LPA, one should bear in mind the indicia listed by Fryberg J as they can assist in the assessment of the activities of such a person.

What was Mr Raghoobar doing?

  1. [17]
    In 1995, Mr Raghoobar was awarded a Bachelor of Laws degree by the University of Kent. After he moved to Australia, he worked as a consultant for various law firms in the Central Queensland area including Kenny & Partners from 2010 to 2017 and Ramos & Co Lawyers from 2017 to 2019. He admits that he is not an Australian legal practitioner but says that he has never held himself out to be one nor has he engaged in the provision of legal services. Mr Raghoobar says that he was, among other things, merely proof-reading and editing documents drawn by his clients for use in court proceedings and providing some assistance to them.
  2. [18]
    On 27 April 2022 employees of the Commissioner attended at MrRaghoobar’s residential address and executed a search warrant. Documents were seized including 31document binders which were, in the main, labelled with the surname of a client and the subject matter, for example, “Matrimonial” or “Financial”. The documents related to 20 individuals and concerned 24 unique matters. They contained copies of documents filed in various courts, copies of correspondence to both the client and the other party in the matters, and tax invoices from a firm called SR Dep Services which is controlled by MrRaghoobar.
  3. [19]
    When the Commissioner’s employees were executing the search warrant MrRaghoobar told one of them that he had someone coming in for a trial. Soon after that, Ms Nicola McLellan arrived at the property and said that she was a client of Mr Raghoobar and that he was helping her with her trial and her documents.
  4. [20]
    The material which was seized included material relating to MsMcLellan’s court matter. A brief summary of what was found in that file includes:
    1. (a)
      invoices issued by the respondent through his business, SR DEP SERVICES, for tasks including conferences with client, reading documents from the opposing party, making notes for discussion, drafting letter to opposing party, reviewing the file, filing documents, preparing court documents, drafting letters and documents for client, researching case law, and reviewing client’s financial documents;
    2. (b)
      emails between the respondent and Ms McLellan discussing:
      1. an intention to review financial documents together during a meeting;
      2. the need to amend the application to proceed to a conciliation conference;
      3. requesting further financial documents, and potentially issuing a subpoena for these documents, from the opposing party;
      4. preparing and filing affidavits for Ms McLellan, including a response to the opposing party’s affidavit and an affidavit of disclosure;
      5. advising Ms McLellan not to contact the opposing party and that she should “leave it to [the respondent]”
      6. accessing the court portal to review and file documents for Ms McLellan;
      7. drafting and providing letters for Ms McLellan to send to the opposing party;
      8. arranging for service of documents on the opposing party;
      9. drafting a proposal for Ms McLellan to send to the opposing party;
      10. drafting an application and orders for Ms McLellan;
      11. requesting further financial and property information from Ms McLellan;
      12. drafting submissions; and
      13. outlining the benefit for Ms McLellan of appearing electronically for court, as the respondent can better assist her compared to having to sit in the back of the court room for an in-person matter;
    3. (c)
      brief notes from conferences with Ms McLellan;
    4. (d)
      written instructions and submissions for Ms McLellan to say during various court matters, including callovers and trial; and
    5. (e)
      written questions for Ms McLellan to ask during cross examination of witnesses at trial.
  5. [21]
    A large number of invoices were obtained during the execution of the search warrant and they provide a clear picture of what Mr Raghoobar was doing. I will not set all of them out but I will provide a sample which is consistent with the balance of the material:

Date

Client Name

Activities charged for

3 April 2022

Hammond

Chatting with client, going through all documents and emails and previous orders, parenting and financial, drafting submissions for client, drafting email to client, assisting client on Monday 4 April 2022 due care and consideration $550 but reduced to $275

6 March 2022

Warry

Chatting with client, reading notice from court, making amendments to consent orders, drafting letter for court, drafting letter for other party, emailing client, conference with client on Sunday, 6 March 2022, costs of express post, due care and consideration $550 but reduced to $285

21 February 2022

Courting

Chatting with client, reading documents, considering legislation, drafting letter to police, emailing client, conference for Tuesday 22 February 2022, due care and consideration $450 but reduced to $225

17 February 2022

McLeod

[Ms McLeod asked Mr Raghoobar to help her to update her will]

Chatting with client, emailing client, taking instructions at conference with client on Friday 18 February 2022, due care and consideration $300 but reduced to $150

6 February 2022

Rule

Chatting with client, taking notes, and reviewing court guideline, draft document for client, organise signing and filing, organise letter to other party, costs of express post, emailing client, conference with client on Monday 7 February 2022, due care and consideration $400 but reduced to $260

23 January 2022

Hammond

Chatting with client, reading email from court, reading orders, reading previous communication to other party, drafting emails to court x2 and to other party, emailing client, conference on Monday 24 January 2022, part costs, due care and consideration $350 but reduced to $75

10 January 2022

Hammond

Chatting with client, reading orders and file notes, drafting detailed proposal to other party, emailing client, conference with client on Tuesday 11 January 2022, due care and consideration, more than $450 but let’s say reduced to $275

8 December 2021

Hammond

Chatting with client, printing and reading orders, drafting detailed letter to other party, emailing client, conference on Thursday 9 December 2021, due care and consideration, more than $400 but let’s say $175

8 December 2021

Anderson

Chatting with client, amending submissions, drafting letter to other party, emailing client, conference on Wednesday 8 December 2021, due care and consideration, more than $250 but let’s say $110

21 November 2021

Hammond

Chatting with client, reading documents various, including orders and family report, drafting document for client, emailing client, conference on Monday 22 November 2021, organising and serving of documents, due care and consideration, more than $350 but let’s say $125

16 November 2021

Hammond

Chatting with client, reading previous orders, reading family report, drafting and amending initial application and drafting orders sought, emailing client, conference with client on Wednesday 17 November 2021, due care and consideration more than $550 but let’s say $225

4 October 2021

McLellan

Chatting with client, re-reading documents, drafting submissions for mention, assisting on mention, emailing client, due care more than $400 but reduced to $120

8 September 2021

McLellan

Chatting with client, drafting further document for conciliation conference, reading appraisals from real estate agents, emailing client, conference with client Thursday 9 September 2021, due care more than $350 but reduced to $175

18 August 2021

McLellan

Chatting with client, drafting document for client, drafting reply to letter from other side, emailing client, conference with client on Wednesday 18 August 2021, due care more than $550 but reduced to $200

15 August 2021

Hammond

Chatting with client, reading previous orders, reading documents including affidavit, amending initial application, amending final orders, drafting letter for other party, conference with client Monday 16August 2021, emailing client, due care more than $550 but reduced to $300.

  1. [22]
    In Mr Raghoobar’s affidavit he describes what he did when he finished employment at Ramos & Co Lawyers. He said that he received a number of calls and messages from friends and acquaintances seeking his assistance and help in their matters, given his previous employment with law firms. He said that “most matters were legal but other matters were personal, financial or otherwise”. Because of his personal circumstances he chose to commence his own business in order to have work flexibility. He says his business was set up solely for the purpose of providing help and assistance to friends and acquaintances with the hope that he could earn sufficient income to support his children and meet his financial commitments. He says that he would tell them that he was a consultant “and that all the services I can provide them with, in those matters which are of a legal nature, would be limited to providing them with assistance and help in their matters”. He said he made it very clear that he could not provide them with advice and could only assist them insofar as “understanding the process, assisting them with checking their letters and forms, or otherwise, assisting them with checking their documents, whether those matters were of a family law nature, civil nature or business or personal nature.”
  2. [23]
    Mr Raghoobar said, and this was not disputed, that he did not represent himself as a lawyer. He did not sign documents for his clients.
  3. [24]
    The fact that Mr Raghoobar expressly told his clients that he is not a legal practitioner has no effect on whether his conduct amounted to engaging in legal practice. I agree with this summation by Professor Dal Pont who explains:

“… what is clear is that the relevant inquiry is not informed by subjective considerations. Whether or not the person who has (allegedly) breached the unauthorised practice proscription actually intended to do so, or appreciated that this would be the outcome, is irrelevant. The inquiry is an objective one. It follows that the mere fact that a person who acts on behalf of another in a legal matter describes himself or herself by some not expressly legal title is no defence to a charge of unauthorised legal practice if he or she performs work that is in breach of the law.”[6]

  1. [25]
    Mr Raghoobar attached to his affidavit a document said to be a statement of HelenaMackey. She was one of Mr Raghoobar’s clients. In her statement she said:

“Mr Raghoobar’s assistance to me has been limited to explaining to me the court process, checking my documents, checking my correspondence, assisting me with checking and helping me amend these documents for the court and correspondence to return and obtaining fee exemption, when applicable, and generally, being a support person when needed.

Mr Raghoobar has given me options about how to move forward with settlement of both parenting and financial matters because although he has a law degree, he is not an admitted legal practitioner and he has never, at any time, purported to be one to me.”

  1. [26]
    One of Mr Raghoobar’s clients, Mr Rule, swore an affidavit in which he said that he sought Mr Raghoobar’s “assistance and guidance in settling parenting and financial matters”. He said that the assistance included helping him “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), and generally, helping me understanding the Court process.”
  2. [27]
    Another of Mr Raghoobar’s clients, Ms McLellan, swore an affidavit and said that MrRaghoobar’s assistance to her had been limited to him helping her with checking documents she had drafted, helping her with checking correspondence she had drafted, helping her with court requirements, helping her with applying and obtaining fee exemptions, and helping her understand the court process and giving her options on how to move forward with her matter. She refers to a court appearance when MrRaghoobar was her “support person”. The solicitor for the other party in that matter has filed an affidavit in which she sets out what occurred on that day. It is unnecessary to go into the detail of that but I do note that Ms McLellan deposes that:

“I say that if Ms O'Gorman had any concerns about Mr Raghoobar being present with me at the trial, then she and her Counsel should have declined putting or exchanging offers with me, and should have informed me, and Judge Demack, that the matter needed to proceed to a proper argument with cross-examination.”

  1. [28]
    For a person who has not received legal advice, she summarised the position in a well-informed way.
  2. [29]
    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:
    1. (a)
      assisted with the creation of applications and affidavits;
    2. (b)
      drafted other documents for use in court;
    3. (c)
      advised parties to litigation in respect of matters of law and procedure and assisted them in the preparation of their cases for litigation;
    4. (d)
      drafted correspondence to be sent by the parties to their opponents in the litigation; and
    5. (e)
      charged clients for the work has done.
  3. [30]
    Mr Raghoobar has, on any view of the matter, engaged in legal practice.

Orders

  1. [31]
    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:
    1. (a)
      providing legal advice in relation to proceedings or potential proceedings, whether in person or in writing;
    2. (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;
    3. (c)
      drawing documents on behalf of, or as agent of, parties to proceedings or potential parties to proceedings;
    4. (d)
      drafting submissions, whether oral or written, for parties or potential parties to proceedings to present in court;
    5. (e)
      conferring with parties to proceedings in relation to those proceedings; and
    6. (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. [32]
    I will hear the parties as to costs.

Footnotes

[1][1995] 2 VR 188, 210.

[2][1998] 4 VR 324.

[3][2009] LPT 21.

[4]Ibid, 14.

[5][2011] QSC 132.

[6]Dal Pont, ‘Unauthorised Practice of Law’ (2018) 45(3) Aust Bar Rev 224, 239.

Close

Editorial Notes

  • Published Case Name:

    Legal Services Commissioner v Raghoobar

  • Shortened Case Name:

    Legal Services Commissioner v Raghoobar

  • MNC:

    [2023] QSC 41

  • Court:

    QSC

  • Judge(s):

    Martin SJA

  • Date:

    28 Mar 2023

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QSC 4128 Mar 2023Orders made on application of Legal Services Commissioner restraining respondent from engaging in legal practice: Martin SJA.
Appeal Determined (QCA)[2023] QCA 19122 Sep 2023Appeal dismissed: Bowskill CJ (Dalton JA and Buss AJA agreeing).
Special Leave Refused (HCA)[2024] HCASL 108 Feb 2024Special leave refused: Gordon and Steward JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

Cases Cited

Case NameFull CitationFrequency
Cornall v Nagle (1995) 2 VR 188
2 citations
Jump To
Cite 1 - (1995) 2 VR 188
Cite 2 - (1995) 2 VR 188
Felman v Law Institute of Victoria [1998] 4 VR 324
2 citations
Jump To
Cite 1 - [1998] 4 VR 324
Cite 2 - [1998] 4 VR 324
Legal Services Commissioner v Bradshaw [2009] LPT 21
2 citations
Jump To
Cite 1 - [2009] LPT 21
Cite 2 - [2009] LPT 21
Legal Services Commissioner v Walter [2011] QSC 132
2 citations
Jump To
Cite 1 - [2011] QSC 132
Cite 2 - [2011] QSC 132

Cases Citing

Case NameFull CitationFrequency
Raghoobar v Legal Services Commissioner [2023] QCA 191 2 citations
1

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