Legal Practice Board v Computer Accounting and Tax Pty Ltd

[2007] WASC 184
213 FLR 212

(Judgment by: Simmonds J)

Legal Practice Board
vComputer Accounting and Tax Pty Ltd

Court:
Supreme Court of Western Australia

Judge:
Simmonds J

Subject References:
Statutory Contempt Under Legal Practice Act, s 250
Corporation shown as public ac-countant and registered tax agent providing services for self-managed superannuation funds, includ-ing providing trust deeds
Whether engaging in legal practice contrary to s 123(1)
Whether s 123(1) applies to corporations
Whether corporation engaged in legal practice within s 4(b)
Whether corporation engaged in legal practice within s 4(c)(i)
Whether defence in s 124(3) applied
Whether reliance on advice in federal government publications relevant.

Legislative References:
Corporations Act 2001 (CTH) - 9; 206E
Income Tax Assessment Act (CTH) 1936 - 251L
Interpretation Act 1984 (WA) - 5
Legal Practice Act 2003 (WA) - 3; 4; 27; 45; 47; 48; 69; 70; 75; 76; 86; 87; 123; 124; 125; 250; 253(2)(a)
Legal Practitioners Act 1893 (WA) - 77

Case References:
Florida Bar v Town - (1965) 174 So 2d 395
Green v Hoyle - [1976] 2 All ER 633
Heedes v Legal Practice Board - [2005] WASCA 166
Hoffman v Chief of Army - (2004) 137 FCR 520
Legal Practice Board v Frichot - [2006] WASC 230
Legal Practice Board v Said - [2002] WASC 35
Ostrowski v Palmer - (2004) 218 CLR 493
Palmer v Ostrowski - [2002] WASCA 39
R v Jorgensen - [1995] 4 SCR 55
Re Matthews - (1938) 79 P 2d 535
The Barristers' Board v Marbellup Nominees Pty Ltd - [1984] WAR 335
The Barris-ters' Board v Palm Management Pty Ltd - [1984] WAR 101

Hearing date: 17 May, 6 June 2007
Judgment date: 13 August 2007

Judgment by:
Simmonds J

Introduction

[1] This is an application by originating motion for the respondent to be adjudged guilty of contempt and punished accordingly. The form of contempt is the statutory form under Legal Practice Act 2003 (WA), s 250. The conduct said to be such contempt is obtaining and acting on instructions for the preparation of a trust deed.

[2] The application raises issues of some nicety in the construction of the prohibitions in the Act, s 123 and s 125, as well as certain exceptions to the former. So far as counsel were able to determine, this is the first time those issues have arisen for determination, under what is relatively new legislation.

[3] The matter came before me on an originating motion which the applicant sought to amend by a notice of proposed amended notice of originating motion dated and filed 8 May 2007, that is, nine days before the initial hearing, and by a replacement or supplementary notice of proposed further amended notice of originating summons, handed up on the initial day of the hearing before me. I will say more about that aspect of the proceedings shortly.

[4] I first provide the background to this application, before setting out the relevant provisions of the Act, and describing the proceedings themselves and the evidence before me. I then deal with the issues in this case.

Factual background

[5] This background is drawn from what both counsel accepted was the evidence properly before me. That evidence comprises:

•
An affidavit of James Richard Kingsbury sworn 1 February 2007;
•
An affidavit of Mary-Anne Catherine Paton sworn 1 February 2007;
•
An affidavit of Yin Chieh Fang sworn 8 May 2007; and
•
Two affidavits of Angela Cecilia Frigger, one sworn 23 February 2007 (except paras 21 to 24 of that affidavit) and the other sworn 16 May 2007.

[6] The respondent is a company a director of which is Angela Frigger. Ms Frigger is a Fellow of the National Tax and Accountants' Association and a Registered Tax Agent. The other director is Hartmut Frigger. They were its directors at all material times.

[7] The respondent at all material times had a web site. At that website the respondent was at all material times shown as "Public Accountant Registered Tax Agent Fellow National Tax and Accountants' Association".

[8] A section of the web site, entitled "Partner Profiles", showed Ms Frigger and Hartmut Frigger. Mr Frigger was shown as having 20 years experience as a "process engineer". He "manages the family accounting and investment business and uses his own experience in investments in property, shares, managed funds and bonds to help others start a self managed investment portfolio".

[9] Another section of the website, entitled "Products", listed the following, among others:

Superannuation Trust Deed
We prepare and file the registration of your self-managed superannuation fund ("SMSF") and prepare a trust deed [for] just $330. We recommend a corporate trustee to ensure the fund may be converted to a pension fund when you retire."

[10] Yet another section of the website, entitled "Services", listed the following, among others:

Superannuation
A Self-Managed Superannuation Fund makes sense, if you want to look after your hard-earned cash, to ensure your retirement nest egg will be sufficient for your needs. MAKE sure you have at least $200,000 in the fund. Superannuation audit and return starts at $780.

[11] Yet another section of the website, entitled "Self-Managed Super Fund", said, among other things:

CAT Pty Ltd prepares the Trust Deed and Application Form for the Australian Taxation Office ("ATO"). A Tax File Number and ABN is issued by the ATO, and you are ready to start managing your own retirement.
Audits and tax returns, which are the required [sic] for SMSF to comply with the superannuation and tax law, are also completed by us.

[12] There is uncontradicted evidence of Ms Frigger, in her affidavit sworn 23 February 2007, in paras 7 and 8, as follows:

At some time in 2003 I obtained a pro-forma of a trust deed for self-managed superannuation funds from an Internet company known as 'cleardocs' [sic]. Cleardocs advised me and I verily believe that this deed complies with the Superannuation Industry Supervision Act 2003 and other relevant legislative and administrative requirements relating to Self-Managed Superannuation Funds, for which the Commissioner of Taxation has general administration.
I have been advised by the Superannuation section of the Australian Taxation Office and I verily believe that accountants may provide individual trustees a deed such as the one referred to [above] in order to set up a self-managed superannuation fund. The advice officer further advised me and I verily believe that this privilege is specifically covered in Section 251L of the Income Tax Assessment Act 1936 and is referred to on page 31 in a book entitled 'Self Managed Superannuation Funds -- DIY Super (extract front cover Annex AND page 31 'AF1') with further reference to a Fact Sheet No 2059 (Annex. 'AF2') and booklet "Role and responsibilities of trustees' (extract front cover and page 7 Annex. 'AF3')."

[13] I return below to certain statements appearing in "AF2".

[14] In August 2006, James Richard Kingsbury, having visited the respondent's web site, had a telephone conversation with Ms Frigger. Mr Kingsbury is a property consultant.

[15] There is some difference in the evidence before me as to who telephoned whom. The difference appears to me not to be material. There is no contest a telephone conversation did occur then, nor on the details of the conversation I reach next.

[16] In the telephone conversation Mr Kingsbury told Ms Frigger he wanted a trust deed prepared for the purposes of a private or self-managed superannuation fund. He told Ms Frigger who was to be the trustee. Ms Frigger told Mr Kingsbury a trust deed would be prepared within a few days.

[17] A few days later Mr Kingsbury visited premises from which Ms Frigger worked. He collected a trust deed headed "Kingsbury Family Super Fund Trust Deed". The printed document is 34 pages long, including Schedules. It includes the names of trustees of the fund. Mr Kingsbury also collected an invoice in the amount of $330. The invoice is headed "H & A Frigger", of the address at which the documents were collected, with the same email address as shown on the respondent's web site, and with the address of that website indicated. It is common ground that the ABN number shown on the invoice is that of the respondent. The invoice's payment instructions are for direct payment to an account name "A. Frigger". Mr Kingsbury at the point of collection of the trust deed paid to Ms Frigger the amount of $330 in cash.

[18] There are differences on the evidence before me as to what more, if anything, transpired at the point of the collection of the documents, and in particular, whether or not Mr Kingsbury had been told then or at any other time before then that it was the respondent which was providing the trust deed. I will return to these differences.

[19] However, it is common ground there is no evidence that:

•
Mr Kingsbury ever signed the trust deed;
•
separate property was ever set aside for the purposes of the trust deed; or
•
the trustees of the Kingsbury Family Super Fund took steps to obtain an ABN number from the Australian Taxation Officer, to obtain a tax file number or to be regulated under the Superannuation Industry (Supervision) Act (Cth), s 19.

[20] Below I return to the significance (if any) of these matters.

Relevant statutory provisions

[21] Legal Practice Act, s 123, at all material times read as follows:

(1)
A person must not engage in legal practice unless the person is a certificated practitioner.
Penalty: $10 000.
(2)
Subsection (1) extends to legal services provided by an incorporated legal practice or a multi-disciplinary partnership.
(3)
Nothing in subsection (1) is to be construed as preventing a person from --

(a)
appearing or defending in person in a court; or
[(b) deleted]
(c)
appearing for a person before a court, or providing advice or other services, if that appearance or the provision of that advice or service, is expressly authorised by a written law.

[22] Legal Practice Act, s 124, at all material times, read in material parts as follows:

(1)
In this section --
'work' means --

(a)
any work in connection with the administration of law;
(b)
drawing or preparing any deed, instrument or writing relating to or in any manner dealing with or affecting --

(i)
real or personal estate or any interest in real or personal estate; or
(ii)
any proceedings at law, civil or criminal, or in equity.
...

(3)
It is a defence to a charge under section 123(1) in respect of the doing of work to show that the person who did the work has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work so done (the 'unpaid work').
...

[23] Legal Practice Act, s 125, at all material times read as follows:

(1)
Subject to subsections (2), (4) and (5), a corporation must not provide legal services, or hold itself out, advertise or represent itself as providing, legal services.
Penalty: $25 000.
(2)
Subsection (1) does not apply to or in respect of --

(a)
an incorporated legal practice that has at least one legal practice director; or
(b)
a corporation that does not receive any form of, or have an expectation or promise of, pay or remuneration for the legal services it provides.

(3)
An incorporated legal practice does not contravene subsection (1) because it ceases to have any legal practitioner directors if --

(a)
a new legal practitioner director is appointed within the time prescribed by section 53(1); or
(b)
an employee or other person is appointed under section 53(3) to exercise the functions of a legal practitioner director.

(4)
A corporation may be exempted by the regulations from all or part of subsection (1).
(5)
A corporation may provide legal services if the only legal services that the corporation provides are legal services concerning a proceeding or transaction to which the corporation (or a related body corporate) is a party (in-house legal services) but that corporation must not hold itself out, advertise or represent itself as providing legal services.
Penalty: $25 000.

[24] The provisions of s 123 and 125 just quoted need to be read with certain definitions in Legal Practice Act, s 3, as follow:

In this Act, unless the contrary intention appears --
...
'certificated practitioner' means --

(a)
a legal practitioner who holds a current practice certificate; or
(b)
an interstate practitioner who practises in this State;

...
'corporation' means --

(a)
a company within the meaning of the Corporations Act;
(b)
an industrial organisation incorporated under a law of the Commonwealth or a State; or
(c)
any other body corporate, or body corporate of a kind, prescribed by the regulations;

'Corporations Act' means the Corporations Act 2001 of the Commonwealth;
...
'engage in legal practice' has the meaning given by section 4;
...
'incorporated legal practice' means a corporation that provides legal services as provided by section 47;
...
'legal practitioner' means a person --

(a)
who is admitted as a legal practitioner, whose name is on the Roll of Practitioners and who is not a disqualified person; or
(b)
who is an interstate practitioner who practises in this State;

'legal practitioner director' means a director of an incorporated legal practice who is a legal practitioner permitted under the
laws of this State or any other State to practise on his or her own account as a legal practitioner;
...

[25] Legal Practice Act, s 4, all material times read as follows:

A person engages in legal practice if the person directly or indirectly --

(a)
whether in the name of that person or that of any other person --

(i)
sues out any writ or process;
(ii)
commences, carries on, solicits, defends, or appears, in any action, suit, or other proceedings in any court of civil or criminal jurisdiction in this State; or
(iii)
acts as a barrister or solicitor of the Supreme Court in any cause, matter or suit, information or complaint, civil or criminal, or under any commission for the examination in this State of witnesses, or others, issued by any court in or out of this State;

(b)
performs or carries out or is engaged in any work in connection with the administration of law; or
(c)
draws or prepares any deed, instrument, or writing relating to or in any manner dealing with or affecting --

(i)
real or personal estate or any interest in real or personal estate; or
(ii)
any proceedings at law, civil or criminal, or in equity.

[26] Legal Practice Act, s 47, at all material times read as follows:

(1)
Subject to subsection (2) and sections 48(3), 69(6) and 70(3), if a corporation provides legal services in this State (whether or not it provides other services) it is an incorporated legal practice.
(2)
Subsection (1) does not apply in respect of a corporation if --

(a)
the corporation does not receive any form of, or have an expectation of, a fee, gain or reward for the legal services it provides;
(b)
the only legal services that the corporation provides are legal services concerning a proceeding or transaction to which the corporation (or a related body corporate) is a party (in-house legal services);
(c)
the only legal services that the corporation provides are services that --

(i)
are not legally required to be provided by a legal practitioner; and
(ii)
are provided by an officer or an employee who is not a legal practitioner;

or
(d)
the regulations so provide.

Note: Under section 123, the prohibition on engaging in legal practice except as a certificated practitioner extends to legal services provided by an incorporated legal practice.

[27] Legal Practice Act, s 250, at all material times read as follows:

Without limiting the operation of other provisions of this Act, a person who contravenes --

(a)
the terms of this Act, or any provision of or obligation imposed under this Act; or
(b)
an order of the Complaints Committee,

is guilty of a contempt of the Supreme Court and may be dealt with accordingly by the Supreme Court or a Judge in Chambers on the motion of the Complaints Committee or the Board.

[28] It is also established that none of the respondent, Ms Frigger or Mr Frigger has ever been a "certificated practitioner" under the Legal Practice Act.

[29] A further provision, invoked by the respondent, is Income Tax Assessment Act 1936 (Cth), s 251L, which at all material times read:

(1)
Subject to this section, a person who is not a registered tax agent must not knowingly or recklessly demand or receive any fee for:

(a)
preparing or lodging on behalf of a taxpayer a return, notice, statement, application or other document about the taxpayer's liabilities under a taxation law; or
(b)
giving advice about a taxation law on behalf of a taxpayer; or
(c)
preparing or lodging on behalf of a taxpayer an objection under Part IVC of the Taxation Administration Act 1953 against an assessment, determination, notice or decision under a taxation law; or
(d)
applying for a review of, or instituting an appeal against, a decision on such an objection; or
(e)
on behalf of a taxpayer, dealing with the Commissioner or a person who is exercising powers or performing functions under a taxation law.

Penalty: 200 penalty units.
Note: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.

(5)
A person shall not be entitled to sue for, recover or set-off any fee which he is prohibited by this section from demanding.
(6)
Subsection (1) does not apply to the provision of a BAS service on behalf of a taxpayer by:

(a)
a member (except a student member or retired member) of a recognised professional association; or
(b)
a bookkeeper working under the direction of a registered tax agent; or
(c)
where the BAS service is under Part 2-5 in Schedule 1 to the Taxation Administration Act 1953 -- a person who provides payroll services to an employer; or
(d)
where a BAS service relates to imports or exports to which an indirect tax law (within the meaning of subsection 995-1(1) of the Income Tax Assessment Act 1997) applies -- a customs broker licensed under Part XI of the Customs Act 1901.

(7)
A BAS service is any of these:

(a)
preparing or lodging an approved form about a taxpayer's liabilities, obligations or entitlements under a BAS provision;
(b)
giving advice about a BAS provision;
(c)
dealing with the Commissioner or a person who is exercising powers or performing functions under a taxation law in relation to a BAS provision.

(8)
Subsection (1) does not apply to the provision of any of these services on behalf of a taxpayer by a barrister or solicitor who is acting in the course of his or her profession:

(a)
preparing or lodging a notice, application or other document about the taxpayer's liabilities under a taxation law;
(b)
giving advice about a taxation law;
(c)
preparing or lodging an objection under Part IVC of the Taxation Administration Act 1953 against an assessment, determination, notice or decision under a taxation law;
(d)
applying for a review of, or instituting an appeal against, a decision on such an objection or undertaking any litigation or proceedings about a taxation law;
(e)
while acting for a trust or a deceased estate for which the barrister or solicitor is the trustee or legal personal representative, preparing or lodging a return or statement about the trust's or estate's liabilities, obligations or entitlements under a taxation law;
(f)
dealing with the Commissioner or a person who is exercising powers or performing functions under a taxation law about any of the matters specified in paragraphs (a) to (e).

(9)
A member of a recognised professional association can provide BAS services through an entity for:

(a)
if the member is a partner in a partnership -- the partnership; or
(b)
if the member is a director or employee of a company -- the company.

(10)
A defendant does not bear an evidential burden in relation to a matter specified in subsection (6) or (8).

[30] I have already indicated that Ms Frigger is a registered tax agent.

[31] However, the direct relevance of this provision was not pressed by the respondents in argument, in my view rightly so. This provision, in my view, simply includes allowance for relief for registered tax agents from the prohibition in the provision. It does not purport to provide relief, for registered tax agents, or any one else, from any other prohibition, whether under federal or state law, including other prohibitions of the same conduct as that prohibited by s 251L.

[32] Still less does that provision authorise registered tax agents or any other person to engage in any conduct, such that it might be contended Legal Practice Act, s 123(3)(c), applies.

[33] In any event, the federal statute is not a "written law" for the purposes of that paragraph: Interpretation Act 1984 (WA), s 5, "written law", read with "Act".

[34] Whether there might be some indirect relevance of the provision is reached below.

These proceedings

[35] By notice of originating motion dated 2 February 2007, the applicant sought the following orders:

1.
The respondent is guilty of contempt of the Supreme Court under section 250 of the Legal Practice Act 2003 ('Act') and be punished for such contempt.
2.
The respondent do pay applicant's costs of and incidental to this originating motion, to be taxed if not agreed.

[36] The grounds for the application are given as follows:

That on or about 28 August 2006, in contravention of section 123 of the Act, the respondent, not being a certificated practitioner under the Act:

1.
directly or indirectly performed or carried out or was engaged in work in connection with the administration of law in obtaining and acting on instructions from James Richard Kingsbury ... to establish a superannuation fund and to do all things necessary to establish and set up such a fund; and
2.
in the course of carrying out the instructions referred to in paragraph 1 above, drew or prepared a deed, instrument, or writing relating to or dealing with or affecting real or personal estate or an interest therein, namely, the Kingsbury Family Super Fund Trust Deed dated 1 July 2006.

[37] With the originating summons, and referred to in it, were the affidavits of Mr Kingsbury sworn 1 February 2007, and of Ms Paton, also sworn 1 February 2007. Ms Paton was the Secretary and General Manager of the applicant.

[38] By consent orders dated and filed on 20 March 2007, the originating motion dated 2 February 2007 was adjourned to a special appointment with an estimated duration of two hours. The respondent was to file and serve any answering affidavit on or before 3 pm, 5 April 2007. The applicant was to file and serve any affidavit in reply on or before 3 pm, 19 April 2007. The applicant was to file and serve written submissions and a list of authorities on or before 3 pm, 19 April 2007. The respondent was to file and written submissions and a list of authorities on or before 3 pm, 26 April 2007. The hearing was listed for 10.30 am, 21 March 2007.

[39] Also on 20 March 2007, the affidavit of Ms Frigger sworn 23 February 2007 was filed.

[40] By consent orders dated 5 April 2007 and filed on 17 April 2007 the same orders as those in the document of 20 March 2007 were set out. At the hearing before me, there was no explanation given of the duplication.

[41] On 8 May 2007 four documents were filed by the applicant.

[42] One was a minute of proposed amended notice of originating motion, dated 8 May 2007. The changes, in the grounds of the application, were as follow:

•
changing "on or about 28 August 2006" to "between 25 and 28 August 2006" for the date of contravention of Legal Practice Act, s 123; and
•
changing, in the form of the contravention numbered "1.", "to establish a superannuation fund and to do all things necessary to establish and set up such a fund" to "for the preparation of a trust deed".

[43] It will be seen there are no changes to the fundamental character of the application. It is perhaps a closer question in that respect for the notice of proposed further amended notice of originating motion. In any event, I was told at the first day of the hearing before me that the respondent had consented to the amendments referred to.

[44] Another document filed by the applicant on 8 May 2007 was the affidavit of Ms Fang sworn 8 May 2007. Ms Fang deposes she is a solicitor employed by the solicitors for the applicant. The Fang affidavit relates to a search of the registered companies, businesses, reservations, trusts, non-registered entities type with Lawpoint, on "H & A Frigger", and a search of the Australian Business Register type, on the respondent.

[45] Another document filed by the applicant on 8 May 2007 was a document headed "Applicant's Outline of Submissions", dated 8 May 2007.

[46] The fourth document filed by the applicant on 8 May 2007 was a document headed "Applicant's List of Authorities".

[47] It will be noted that the Fang affidavit, considered as an affidavit in reply for the applicant, was filed almost three weeks after the date provided for in the orders of 20 March and 5 April 2007.

[48] It will also be noted that the applicant's outline of submissions and list of authorities were also filed almost three weeks after the date provided for in the orders of 20 March and 5 April 2007.

[49] An outline of submissions for the respondent was provided to the Court on the afternoon before the first day of the hearing before me. An affidavit was provided to the Court sworn in opposition to the application. The affidavit was that of Ms Frigger sworn 16 May 2007. The affidavit relates to a publication, on the web site of the Australian Taxation Office ("ATO"), of an application form, with introductory commentary, for an ABN and tax file number, and to elect to be regulated under the SIS Act, s 19.

[50] On 17 May 2007, the first day of the hearing, I was provided with a notice of proposed further amended originating motion. I was told the applicant had provided the document to the respondent earlier that morning. The respondent confirmed to me it had not, and would not, consent to the amendments sought, or at least to the principal amendment.

[51] The changes to the notice of originating motion proposed by the notice of proposed further originating motion were the same as those in the notice of 8 May 2007 (but with certain changes consequential on the next change), with the addition of the following new ground:

2.
That, between 25 August 2006 and 30 January 2007, in contravention of section 125 of the Act, the respondent advertised or represented itself as providing legal services, namely, the preparation of trust deeds for self-managed superannuation funds.

[52] At the hearing before me, it emerged that there might be difficult issues in determining whether or not to permit the amendment sought to be made. As I will indicate, the procedure for statutory contempt is civil procedure, which might allow for greater flexibility in that regard. However, in such procedure there are of course limits to what might be allowed, on the day of hearing, in recasting the grounds for the relief sought. I indicated to the parties that I would require to be addressed on the considerations I should employ in that regard.

[53] In the event, the applicant indicated it would not press the amendment sought, and was content to rely on the notice of 8 May 2007, to the changes in which, as I have indicated, the respondent had consented.

[54] The hearing before me proceeded accordingly, over two dates, 17 May 2007 and 6 June 2007.

The procedure for statutory contempt

[55] Two recent decisions of the Court, one in the Court of Appeal, and one in the General Division, describe the procedure sufficiently for my purposes.

[56] In Heedes v Legal Practice Board [2005] WASCA 166, Roberts-Smith JA, Owen and Wheeler JJA agreeing, said this, at [54], in an appeal concerning a conviction for what Roberts-Smith JA said was a contempt "charged pursuant to s 128 and s 250 of the [Legal Practice Act]" (at [5]):

Contempt is a unique offence, in that not only is it the only criminal offence which still exists in this State at common law, but it cannot be prosecuted on indictment and is dealt with by the civil processes of the court, albeit that it must be proved beyond reasonable doubt ( R v Lovelady ; Ex parte Attorney-General [1982] WAR 65 at 66-67 and 69; R v Eades (No 2) (1991) 6 WAR 532; Witham v Holloway (1995) 183 CLR 525).

[57] In Legal Practice Board v Frichot [2006] WASC 230, Hasluck J had before him proceedings for contempt for breach of obligations contained in the predecessor to the Legal Practice Act, the Legal Practitioners Act 1893 (WA), but which his Honour said were proceedings in which he "must refer to s 250 of [the Legal Practice Act] ... in dealing with motions for contempt and giving consideration to matters of penalty". After referring to Heedes (supra), in the respect just quoted, and after referring to Roberts-Smith JA's reference to O 55 r 2 concerning committals for contempt, Hasluck J said this, at [20]:

It emerges, then, that the allegations, the subject of the motions before me, must be proved by the applicant beyond reasonable doubt. However, the procedure for acquainting the respondent with the case against him and for allowing to him an opportunity to be heard is determined by O 55 of the Rules of the Supreme Court. The relevant provisions of that Order allow for the complaint to be advanced by way of an originating motion supported by affidavit evidence. This was the procedure adopted in respect of each of the motions before me.

[58] It will be noted that Legal Practice Act, s 250, allows for an application for punishment for contempt to be made to a judge in chambers.

[59] It will be seen that the procedure adopted in Frichot (supra) and allowed for by the Legal Practice Act, s 250, was that adopted in the proceedings in this case.

The issues framed by the parties' outlines

[60] Those issues appear to me to be the following:

1.
Does the prohibition in Legal Practice Act, s 123(1), read if necessary with s 123(2), apply to corporations?
2.
If it does, was the conduct in this case engaging in legal practice within the Legal Practice Act, s 123(1) read with s 4(b) or (c)(i)?
3.
Was the respondent, directly or indirectly paid or remunerated or promised or expected payment or remuneration for that work within s 124(3)?
4.
Is it relevant Ms Frigger was induced, by statements of the Australian Taxation Office, to believe she was, as an accountant who was a registered tax agent, could lawfully provide the trust deed?

[61] As will be seen, particularly the first issue raises questions of considerable novelty and difficulty. Considering that issue requires some substantial canvass of a range of the provisions in the Legal Practice Act that introduced to this State provision for the conduct of legal practice by a corporation.

Does the prohibition in Legal Practice Act, s 123, apply to a "corporation"?

[62] Counsel for the respondent submitted to me that Legal Practice Act, s 123, when read with s 125, and with the provisions of the legislation concerning becoming a "legal practitioner", only prohibits natural persons engaging in legal practice. Any other legal person is not caught by s 123(1).

[63] At the very least, counsel submitted, the prohibition in s 123(1) does not apply to a "corporation" within the meaning of the Legal Practice Act.

[64] If either submission is correct, then the grounds for the present originating motion, both in its original form and as amended, cannot be made out. The grounds are set out as required by Form 64, under O 54 r 5(1), the procedure that as I have indicated has been followed for this prosecution for statutory contempt. Those grounds, it will be recalled, put the contravention by the respondent as one of Legal Practice Act, s 123. While there may be a contravention of s 125 -- which does apply to a "corporation", which "must not provide legal services" -- that has not been laid as a ground of the present prosecution. I did not understand counsel for the Board to disagree with this conclusion.

[65] I consider that the prohibition in Legal Practice Act, s 123 does indeed not apply to a "corporation".

[66] My principal reason for so concluding lies in the "unless" clause in Legal Practice Act, s 123(1), when read with s 125, and a range of other provisions in the legislation, having to do with an "incorporated legal practice". It will also be necessary to take account of the regulatory scheme for the "multi-disciplinary partnership".

[67] As will become evident, the resultant picture of the regulatory schemes of the legislation for a "corporation" is one of some considerable complexity which is not assisted by some apparent infelicities in the drafting. However, I will indicate why in my view that constructional conclusion best fits with the provisions reviewed, and thus is to be preferred.

[68] I should add that I was not referred to any extrinsic material that might assist me in my task. My own research did not reveal any such material.

The " unless " clause in s 123(1 )

[69] The "unless" clause in Legal Practice Act, s 123(1), describes when the prohibition in that provision has no application. That description is of a "person" who "engages in legal practice" and who is a "certificated practitioner". I reach the meaning of the phrase "engages in legal practice" later in my reasons. My concern now is "person" and "certificated practitioner".

[70] There is no definition of "person" in the Legal Practice Act. There is one in Interpretation Act 1984 (WA), s 5, "person", which is as follows:

In this Act and every other written law --
...
'person' or any word or expression descriptive of a person includes a public body, company, or association or body of persons, corporate or unincorporated ...

[71] However, it was common ground before me that this meaning must yield to any sufficient indications of any other meaning in the relevant legislation. Are there any such indications here?

[72] This in my view requires me to take particular account of the phrase "certificated practitioner", as well as Legal Practice Act, s 125, and certain other provisions of the legislation to which a consideration of s 125 leads.

[73] The phrase "certificated practitioner" is defined in Legal Practice Act, s 3, which I reproduced above, but which I set out again:

In this Act, unless the contrary intention appears --
...
'certificated practitioner' means --

(a)
a legal practitioner who holds a current practice certificate; or
(b)
an interstate practitioner who practises in this State ...

[74] The terms "interstate practitioner", "legal practitioner" and "practice certificate" are also defined in Legal Practice Act, s 3, as follows:

In this Act, unless the contrary intention appears --
...
'interstate practitioner' means a person --

(a)
who has been admitted to legal practice in another State;
(b)
who is not a local practitioner;
(c)
who holds a current interstate practice certificate; and
(d)
whose principal place of practice is in that State;
...

'legal practitioner' means a person --

(a)
who is admitted as a legal practitioner, whose name is on the Roll of Practitioners and who is not a disqualified person; or
(b)
who is an interstate practitioner who practises in this State ...

'practice certificate' means a practice certificate issued by the Board under Part 5;" ...

[75] A number of terms used in the first two definitions just set out are themselves defined: see Legal Practice Act, s 3, "practitioner", "local practitioner", and "interstate practice certificate". However, in my view none has a bearing on my task.

[76] In my view, it is apparent from Legal Practice Act, Pt 4, that only a natural person is capable of being "legal practitioner" within the meaning of s 3, "legal practitioner", (a). Indeed, I took this to be conceded by counsel for the Board.

[77] Legal Practice Act, Pt 4, is concerned with admission of legal practitioners. There are a range of ways in which a person may be "qualified to be admitted as a legal practitioner". These ways are described in s 27(2) and some of them, it seems to me, are ways which a body corporate (such as a "corporation") would be incapable of pursuing. See, for example, s 27(2)(a), concluding words, on service for the prescribed term under articles of clerkship. However, it is not altogether apparent to me that there is no way within that range in which a body corporate might not be qualified for admission: see the breadth of s 27(2)(b).

[78] At the same time, all of the ways in which a "person" may be "qualified to be admitted as a legal practitioner" are, by Legal Practice Act, s 27(2), opening words, made subject to s 27(1), which is as follows:

A person cannot be admitted as a legal practitioner unless the person has reached the age of 21 years.

[79] It does not seem to me that requirement is capable of sensible application to a body corporate.

[80] It thus appears to me that the definition in Legal Practice Act, s 3, "legal practitioner", (a), does not apply to corporations. If that is so, then this is a context in which "person" is restricted to a natural person.

[81] It is a closer question whether the definition in Legal Practice Act, s 3, "legal practitioner", (b), for an "interstate practitioner", is capable of broader application. At first sight this would depend on the requirements for admission in the other jurisdiction. However, it would seem to me to be odd to make the possibility of the application of the exception to the prohibition in s 123, so far as a corporation is concerned, depend on its status under the laws of another jurisdiction in which it has its principal place of business.

[82] At the same time, however, it might be argued that the application of the prohibition in s 123(1) should not be made to depend simply on the possibility of the application of the exception in the unless clause. Thus, the prohibition is capable of application to a natural person who is younger than 21 years old. Indeed, there was no doubt that under the Legal Practitioners Act, replaced by the Legal Practice Act, a corporation could contravene the prohibitions in the former on persons other than a "certificated practitioner" engaging in the specified forms of legal practice notwithstanding that a corporation could not become a "certificated practitioner": see eg The Barristers' Board v Palm Management Pty Ltd [1984] WAR 101 and The Barristers' Board v Marbellup Nominees Pty Ltd [1984] WAR 335.

[83] I agree that the possibility of compliance is not determinative of the present issues. However, I consider that the exception in the unless clause, when read with the scheme of the legislation with respect to the conduct of a "corporation" within the meaning of the Legal Practice Act, a scheme which had no counterpart in the Legal Practitioners Act, indicates that the prohibition in s 123(1) was not intended to apply to such a body.

[84] Most notably for my purposes the scheme comprises Legal Practice Act s 125, as well as certain provisions in Legal Practice Act, Pt 6 "Business Structures", Div 1 "General" and Div 2 "Incorporated Legal Practices".

The prohibition in s 125

[85] Legal Practice Act, s 125, is a prohibition of certain conduct of a "corporation". I have previously set out s 125. The prohibition in s 125 is in the form that a "corporation must not provide legal services".

[86] The term "corporation" is defined in Legal Practice Act, s 3, "corporation", as follows:

In this Act, unless the contrary intention appears --
...
'corporation' means --

(a)
a company within the meaning of the Corporations Act;
(b)
an industrial organisation incorporated under a law of the Commonwealth or a State; or
(c)
any other body corporate, or body corporate of a kind, prescribed by the regulations.

[87] The term "company" in the Corporations Act 2001 (Cth) is defined (in s 9) to mean, broadly, an entity registered under that legislation or its predecessors. Bodies corporate not so registered but registered under other legislation, whether of this country or elsewhere, would be a "corporation" only under (b) or (if suitable regulations had been made) (c).

[88] It follows, it seems to me, that s 125 has no application to a "person" which is a body corporate not within s 3 "corporation". I return below to the question whether or not s 123 has application to such a "person".

[89] However, unlike "corporation", the term "provide legal services" used in s 125(1) is not defined. As I will conclude below, there is, at the very least, however, a substantial overlap between the application of the words in s 123(1), "engage in legal practice", and the application of the words in s 125(1) just quoted. It might seem curious that the legislature prohibits the same or much the same conduct by a corporation in two different provisions, attracting, it may be noted, different monetary penalties.

[90] The prohibition in Legal Practice Act, s 125(1), is by its terms made subject to s 125(2), (4) and (5), which in s 125(2)(b) and (5) have points of similarity with the exceptions in s 123(3) and 124(3) and (4). It might be argued that s 125(2), (4) and (5) represent the exceptions for corporations to the application of the prohibition in s 123 also. However, that is hardly apparent from the terms of s 125(1), which makes them exceptions to its prohibition. Further, the terms of that (undefined) prohibition, "provide legal services", are different from the terms of the prohibition in s 123(1), "engage in legal practice". That phrase is itself defined, as I have indicated. The definition does not use any of the language of "provide legal services" other than "legal".

[91] The difference in the statutory language makes the argued for conclusion difficult to arrive at, in my view.

[92] That is, at first blush, Legal Practice Act, s 125, might seem to be the counterpart, for a "corporation", to s 123, for a person who is not a "corporation". It is not in contest that the respondent is a "corporation" within the meaning of the Legal Practice Act.

[93] I consider that that conclusion draws support from other provisions in the Legal Practice Act with respect to the provision of legal services by a "corporation".

The provisions to do with business structures, particularly the " incorporated legal practice "

[94] Legal Practice Act, Pt 6, provides in detail for the cases of "Incorporated legal practices" (Div 2) and "Multi-disciplinary partnerships" (Div 3). My focus here is on the "incorporated legal practice". I deal with the "multi-disciplinary partnership" in the next section of these reasons.

[95] However, I should note that Pt 6 begins with s 45 (in Div 1), which reads as follows:

(1)
Subject to this Act, a certificated practitioner may engage in legal practice under any form of business structure recognised by law including, but not limited to --

(a)
a practice on his or her own account;
(b)
a partnership; or
(c)
a corporation.

(2)
Nothing in this section authorises a person to do any thing the person is prohibited from doing under this Act or any other law under which the person is incorporated or the person's affairs are regulated.

[96] Legal Practice Act, s 47(1), provides for the "incorporated legal practice" as follows:

(1)
Subject to subsection (2) and sections 48(3), 69(6) and 70(3), if a corporation provides legal services in this State (whether or not it provides other services) it is an incorporated legal practice.

[97] It will be noted that only a "corporation" may be an "incorporated legal practice".

[98] However, as is apparent from s 47(1), a "corporation" providing "legal services in this State" is not an "incorporated legal practice" if any of s 47(2), 48(3), 69(6) and 70(3) applies. Those provisions in my view, when read with certain other related provisions in Legal Practice Act, Pt 6, Div 2, sufficiently for my purposes indicate the nature of the scheme of regulation for the "incorporated legal practice".

[99] Legal Practice Act, s 47(2), is as follows (with the Note to the subsection):

Subsection (1) does not apply in respect of a corporation if --

(a)
the corporation does not receive any form of, or have an expectation of, a fee, gain or reward for the legal services it provides;
(b)
the only legal services that the corporation provides are legal services concerning a proceeding or transaction to which the corporation (or a related body corporate) is a party (in-house legal services);
(c)
the only legal services that the corporation provides are services that --

(i)
are not legally required to be provided by a legal practitioner; and
(ii)
are provided by an officer or an employee who is not a legal practitioner;

or
(d)
the regulations so provide.

Note: Under section 123, the prohibition on engaging in legal practice except as a certificated practitioner extends to legal services provided by an incorporated legal practice.

[100] As will be apparent when the note is compared with Legal Practice Act, s 123(2), the note is simply a form of cross-reference. In any event, s 5 of the Act provides that "Notes do not form part of this Act".

[101] It will further be noted that s 47(2) is very similar to s 125(2)(b), although the wording differs at a number of points, the significance of which is not apparent to me. It will be seen, however, that s 125(2)(a) would have no application to a situation covered by s 47(2); at the same time, such a situation would likely be excepted from s 125(1), by s 125(2)(b).

[102] Legal Practice Act, s 48(1), provides that an "incorporated legal practice" may "provide any service or conduct any business" that a corporation may "lawfully" provide or conduct.

[103] This is subject to s 48(2), for regulations that prohibit an "incorporated legal practice" or "related body corporate" (defined by reference to the definition in the Corporations Act: Legal Practice Act, s 3, "related body corporate") from providing a service or conducting a business of the kinds specified by the regulation. The only such regulations at present prohibit an "incorporated legal practice" providing a managed investment scheme.

[104] Legal Practice Act, s 48(1), is also subject s 48(3), which provides that a "corporation" ceases to be an "incorporated legal practice" if it contravenes s 48 or any regulation made under s 48.

[105] It will be seen then that s 48 confirms that an "incorporated legal practice" may provide any services or conduct any businesses that it can "lawfully" provide or conduct, which would appear to extend beyond the provision of legal services. But the "incorporated legal practice" ceases to be an "incorporated legal practice" if it contravenes s 48. If it ceases to be an "incorporated legal practice", it would not be able to take advantage of the exception from s 125(1) in s 125(2)(a).

[106] However, as I will shortly indicate, even if it has not ceased to be an "incorporated legal practice", a corporation may still not be able to take advantage of s 125(2)(a).

[107] Legal Practice Act, s 69, provides that the State Administrative Tribunal ("SAT") may make an order disqualifying a "corporation" from providing legal services in the State for a stipulated period. SAT may do this (s 69(1)) if a ground for disqualification "has been established" and disqualification "is justified". One of the grounds is that a "legal practitioner director or a legal practitioner who is an officer or employee" of the corporation has been found "guilty of unsatisfactory conduct" (s 69(3)(a)). A corporation that is disqualified ceases to be an "incorporated legal practice" (s 69(6)).

[108] I have previously set out the definition of "legal practitioner director" in s 3. Every "incorporated legal entity" is required to have a "legal practitioner director" subject to provision for lack of such a person for a period not exceeding seven days, and subject to appointment of a certificated practitioner by the Legal Practice Board to exercise the functions of a legal practitioner director (s 51(1)).

[109] It will be noted that an incorporated legal practice may not have been disqualified, and may not have a legal practitioner director in circumstances not involving a contravention of the requirement for one; however, if its conduct is caught by s 125(1), it will not be able to take advantage of s 125(2)(a). That might be because it did not at the time of the conduct complained of have a "legal practice director". I note in passing that the latter term is not defined in the Legal Practice Act. I consider that, from the context, it is clear that "legal practitioner director" was meant, and I so construe s 125(2)(a).

[110] In such a case, however, the incorporated legal practice would be able to resort to the exception in s 125(3), which draws on s 51, above. That is to say, if it could so resort, it would not be caught by s 125(1).

[111] Finally, Legal Practice Act, s 70, provides that SAT may make an order disqualifying a person from "managing a corporation that is an incorporated legal practice" for the period SAT stipulates. SAT may do this if it is satisfied the person is a person who "could be disqualified" from managing corporations under Corporations Act, s 206E, and the disqualification is justified. Corporations Act, s 206E(1)(a)(i), provides that the Court may disqualify a person from managing corporations for the period the Court considers appropriate if the Court is satisfied the disqualification is justified where the person:

(i)
has at least twice been an officer of a body corporate that has contravened this Act while they were an officer of the body corporate and each time the person has failed to take reasonable steps to prevent the contravention ...

[112] A corporation ceases to be an "incorporated legal practice" if a person who is the subject of such a disqualification order is an "officer" of the corporation (s 70(6)).

[113] There are other provisions regulating the "incorporated legal practice" than those I have described. However, in my view it is evident that conformity with those parts of the scheme I have described determines the availability to a corporation that is an "incorporated legal practice" of the exception to s 125(1) to be found in s 125(2)(a). That exception saves from the prohibition in s 125(1) the provision of legal services by such a corporation for pay or remuneration (compare s 125(2)(b)) that are not "in-house legal services" (see s 125(5)).

[114] There is no counterpart to s 125(2)(a) in the exceptions to s 123, however. The consequence would appear to be that, if s 123 also applied to a "corporation" that was an "incorporated legal practice", and if the "incorporated legal practice" was in conformity with the regulatory scheme such that it could claim the exception in s 125(2)(a), it could nonetheless be prosecuted for an offence under s 123. It does not appear that it could argue that, where the legal services were provided only by certificated practitioners, it should be seen to fall within the "unless" clause in s 123(1). That provision only applies to the "person" in question, and that person, on the reading presently under consideration, being the "corporation", would be the "incorporated legal practice".

[115] The result I have just described would, it seems to me, sit oddly with Legal Practice Act, s 45, and with the provisions for an "incorporated legal practice" in s 47 read with the other provisions to which I have referred. Both s 45 and s 47 appear to me to contemplate (without compelling the conclusion) that the forms of activity they describe are not (without more) in contravention of the Act. That would be consistent with s 125, taking account of s 125(2)(a) read with s 125(3). It would be odd if that were inconsistent with s 123.

[116] The oddity is avoided by concluding that the effect of the inclusion of s 125 in the Legal Practice Act is to carve out of s 123 a person who is a "corporation".

[117] I should note that this conclusion is not the consequence of s 123 and s 125 otherwise being overlapping prohibitions, as both counsel conceded they would be if "person" in s 123 were read as counsel for the Board contended. Such an overlap does not make the provisions inconsistent, such that there must be resort to a means of giving effect to one over the other. The two provisions do not prohibit identical conduct: indeed, the higher penalty in s 125 might be explained on the basis that s 125 covers a wider range of conduct, including advertising and holding out, than appears, at first blush at least, to be covered by s 123. See Hoffman v Chief of Army (2004) 137 FCR 520, Fed Full Ct, Black CJ, Wilcox and Gyles JJ, at [11]. If it were necessary to do so, I would have given effect to s 123 over s 125, at least in respect of an "incorporated legal practice", on the principle that the general should yield to the particular, because of s 123(2), to which I return shortly: cf Hoffman at [12]. Below I will indicate my conclusion that, on the evidence as I have it, I would have found the respondent was an "incorporated legal practice", putting aside, however, the matter of its lack of a legal practitioner director.

[118] However, counsel for the Board put to me that the application of s 123 to a corporation able to take advantage of s 125(2)(a) could be avoided in another way, which did not involve construing "person" to exclude a "corporation". The latter construction was to be disfavoured as one the legislature could have provided for expressly, but did not. If there were another approach that could be followed to achieve the result of avoiding the apparent oddity referred to then that approach to that provision should be followed.

[119] I was referred for this purpose to Legal Practice Act, s 48(1), above. The use of the word "lawfully" in that provision, counsel for the Board said, should be taken to be a reference, not only to activity which is made lawful for the corporation under other law than the Legal Practice Act, but also activity which was made lawful for the corporation by another provision of that legislation. The provision in s 125(2)(a) was just such another provision.

[120] I do not agree. It seems to me that "lawfully" is more readily to be understood as a reference to other law than the Legal Practice Act, rather than an exception to another provision in that same legislation (s 123).

[121] Further, the construction contended for would have effect that regulations might be made under s 48(2) prohibiting certain forms of provision of legal practice by an incorporated legal practice or a related body corporate. This would not sit altogether comfortably with the specific inclusion in the general regulation making power in s 253(2)(a) of "regulations as to legal services provided by incorporated legal practices".

[122] Finally, the construction contended for creates the difficulty of accounting for s 123 itself. The very question posed by s 48(1) is whether or not the corporation may "lawfully" provide the services or conduct the business which provision or conduct might otherwise be unlawful under s 123.

[123] Before leaving the question of the construction of Legal Practice Act, s 123, I should further consider the particular relevance of s 123(2). As will become apparent, for this and another reason, having to do with the use elsewhere in the legislation of the word "person", this requires me to take account of the "multi-disciplinary partnership".

The " multi-disciplinary partnership "

[124] There are, as I have indicated, provisions for multi-disciplinary partnerships in Legal Practice Act, Pt 6, Div 3. There is a counterpart, for multidisciplinary partnerships, to s 47, for "incorporated legal practice", in s 74, which reads (with its "Note") as follows:

A multi-disciplinary partnership is a partnership between one or more legal practitioners and one or more other persons who are not legal practitioners, where the partnership business includes the provision of legal services as well as other services.
Note: Under section 123, the prohibition on engaging in legal practice except as a certificated practitioner extends to legal services provided by a multi-disciplinary partnership.

[125] I make the same observation in respect of that "Note" as I did of the corresponding one to s 47, above.

[126] There seems no reason to doubt that "persons" in s 74 includes "corporations": see s 87(2)(c). I return to this point below.

[127] Part 6, Div 3, contains a scheme of regulation for a "multi-disciplinary partnership" with strong points of similarity to that for an "incorporated legal practice", allowing for the view of a partnership that involves seeing its partners, rather than the firm, as a legal person, and for the inapplicability of the Corporations Act to a multi-disciplinary partnership. Thus, s 75 is the counterpart of s 48, s 76 of s 51, s 87 of s 69, and s 86 of s 70.

[128] There is also, of course, no separate provision corresponding to s 125 for multi-disciplinary partnerships. Consistently with the view of the legal personality of a partnership as I have indicated, the application of s 123 (or s 125, for that matter) to the multi-disciplinary partnership would depend on the application of the provision to the partners, and, as will be seen, others who engage in legal practice under the firm.

The argument from s 123(2 )

[129] In evaluating whether or not Legal Practice Act, s 123, applies to corporations, counsel for the applicant pointed out to me that account needs to be taken of the words of s 123(2). That provision, quoted in full earlier, states that s 123(1) "extends to legal services provided by an incorporated legal practice or a multi-disciplinary partnership".

[130] Counsel appeared to put to me (although the point is, it seems to me, obscured by para 9 of the applicant's outline of submissions in reply handed up at the hearing of 6 June 2007) that the word "extends" would appear to one of construction (for greater certainty), or application, so as to ensure that acts done by a person in the course of engaging in legal practice that is also the provision of legal services by a corporation or a multi-disciplinary partnership are caught by s 123(1).

[131] However, in my view the better view of s 123(2) is that it is be construed as a provision to ensure that a "person" otherwise caught by s 123(1) does not escape the requirement to be a certificated practitioner or meet an exception simply because their engagement in legal practice is also the provision of legal services by an incorporated legal practice or a multi-disciplinary partnership.

[132] The provision of legal services by an incorporated legal practice is otherwise regulated as I have indicated. The provision of legal services by a multi-disciplinary partnership is also otherwise regulated, in somewhat the same way, also as I have indicated. It seems to me to be the intention of the legislature that the "persons" through whom those services are provided are caught by s 123(1), to the extent that provision is engagement in legal practice, whether or not the relevant regulatory scheme has been complied with. It is clear that a person may engage in legal practice "under any form of business structure" (s 45(1), opening words).

[133] This leaves for determination who is a "person" for the purpose of this construction of s 123(2). Counsel for the Board reminded me that "person" is used in at least one other, related, provision of the legislation to include "corporation", namely, s 74, on a "person" who is a partner in a "multi-disciplinary partnership", as I have indicated. However, I do not consider that to be decisive. The word "person" is it seems to me capable of being used in different senses in different, even related, provisions of the same legislation. I have already indicated one context in which "person" appears to me to be so used, in the definition in s 3 of "legal practitioner".

[134] For the reasons I have previously given, it seems to me that "person" is being used in s 123(1) in a sense not including a "corporation".

[135] It follows the present proceedings would have to be dismissed.

[136] In view of the conclusion I have just reached, it is not strictly necessary for me to go further, to determine whether or not, if s 123 was capable of application to the respondent, the Board had proved beyond a reasonable doubt that it had engaged in legal practice and its conduct was not excepted. However, I should indicate my findings in those respects, in the event that I am in error on the construction of s 123, and in deference to the submissions put to me, particularly by counsel for the respondent.

[137] It appears to be common ground that such a determination involves considering the application to the conduct in this case, in accordance with the appropriate standard of proof, of two limbs of Legal Practice Act, s 4, on "engages in legal practice", the subjects of the two numbered grounds of the amended notice of originating motion, and, in relation to both, the exception to the application of s 123 in s 124(3). For reasons I will explain, it is further appropriate to consider the bearing on these proceedings of certain advice, in written and oral forms, received by the respondent through Ms Frigger, from the Australian Taxation Office, and to which my attention was drawn by counsel for the respondent.

Does Legal Practice Act, s 4(b ), apply in this case ?

[138] It appears to be common ground that the amended notice of originating motion, ground 1, makes consideration of s 4(b) necessary.

[139] I have previously quoted that provision. For ease of reference, I set out that provision again, together with the corresponding provision in the predecessor provision to s 4(b), Legal Practitioners Act, s 77, in part. That provision in that part was the subject of a number of authorities to which my attention was called by both counsel.

[140] Legal Practice Act, s 4(b), provides as follows:

A person engages in legal practice if the person directly or indirectly --
...

(b)
performs or carries out or is engaged in any work in connection with the administration of law; ...

[141] Legal Practitioners Act, s 77, in material part, as at 31 December 2003, the day before the Legal Practice Act (except Pt 8) came into force, provided as follows,

(1)
No person other than a certificated practitioner shall directly or indirectly perform or carry out or be engaged in any work in connection with the administration of law ...

[142] Both counsel directed my attention to and spent some time drawing from two decisions of Brinsden J on charges of contempt by reference to this part of Legal Practitioners Act, s 77. One was Palm Management (supra), of 21 June 1983; the other was Marbellup Nominees (supra), of 5 April 1984. Both decisions concerned charges against incorporated entities, as well as those acting for them. The business of the entity in Palm Management included the provision of tax minimisation advice and preparation of the necessary documents to give effect to the advice for a fee. The business of the entity in Marbellup was that of taxation and business consultant. In both cases agents or employees of the entity approached a business and advised its principals that they could minimise their taxation position by the use of a structure using a trust with a corporate trustee to run the business and a superannuation deed. In Palm Management a deed of settlement with the corporate trustee for the family of the partners in the former partnership business was to be used; in Marbellup , the trust of the business was to be a unit trust with the units held on individual family trusts for each of the principal shareholders and staff members of the former incorporated business. In both cases the advice was accepted, and various documents were prepared and certain transactions completed on the basis of those documents. In both cases the corporation charged was convicted; however, in one case the charges against the employee of the corporation charged with it were dismissed.

[143] As will become apparent, in this section of my reasons and the next, both decisions contain much useful discussion of the language in the Legal Practitioners Act, s 77(1), corresponding both to Legal Practice Act, s 4(b) and to s 4(c)(i). Both counsel appeared to be of the view that what was said in the two decisions that was material to their respective arguments obtained for the current legislation. Neither counsel cited to me any authority that had explored the meanings of s 4(b) and s 4(c)(i) in the current legislation.

[144] In my view, there is sufficient similarity in the relevant language of the two Acts such that the apparent position of counsel as to the two cases is appropriate, at least on the facts of this case as I find them to be. However, it may be that this would not hold on other facts, and so I would not want to be understood to be saying there is no difference between the concepts described in the provisions in the two Acts.

[145] It is of some assistance for my purposes to set out the charges in each of the two cases that are relevant in the present connection.

[146] In Palm Management (supra) the charges relevant in the present connection were against the company and a person who appears to have been an employee of the company and whose work was to supervise the preparation of the memorandum and articles of association of the corporate trustee and of the deed of settlement, but not of the superannuation trust deed. The charges were that the respondents directly or indirectly did (at 102):

... perform, carry out or engage in work in connection with the administration of law in obtaining and acting on instructions from [the partners] to transfer their partnership business ... to a company ... as trustee for [the family trust] and in the process establishing and settling the said trust and setting up an accompanying superannuation scheme for the said company.

[147] In Marbellup (supra) the charges relevant in the present connection were against the company, an individual who was "the principal" (at 337) of the company, and another individual who was an employee of the company and whose duties included interviewing prospective clients and then assisting them in furthering whatever they might agree to as a result, as well as a further individual against whom Brinsden J found no evidence of a contempt had been provided. The charges were that the respondents directly or indirectly did (at 336-337):

(a)
... carry out or engage in work in connection with the administration of law in obtaining and acting on instructions from [the business] to establish [the unit trust] and in addition to establish [the family trusts] and to do all things necessary to establish and set up each of those [trusts].
(b)
... carry out or engage in work in connection with the administration of law in obtaining and acting on instructions from [the business] to terminate an existing superannuation scheme and to set up a fresh superannuation scheme for [the unit trust] by insurance policies which the respondents would arrange and procure.

[148] I note that the charges in Marbellup (supra) do not have the language of the charges in Palm Management (supra) of the "process" actually followed in "acting on instructions".

[149] In Legal Practice Board v Said [2002] WASC 35, Parker J said this, at [12], of Palm Management (supra), at 107:

The decision of Brinsden J in [ Palm Management (supra)] at 107 is generally accepted as confirming that the expression 'administration of law' in s 77(1) is to be read as meaning 'the practice of law'. Thus, in respect of litigation of the type comprehended by s 76(1), there is much scope for overlap between s 76(1) and s 77(1).

[150] The passage referred to from the judgment of Brinsden J in Palm Management (supra), at 107 on the matter of overlap indicates, in my view, that the overlap was not restricted to matters of litigation:

Of course, by reason of the provisions of s 76 and the other provisions of s 77, a large portion of the work involved in the practice of the law is specifically provided for, but the phrase is meant to cover all such work involved in the practice of law not otherwise provided for.

[151] I particularly note Brinsden J's indication, at 107, that "what may be included in the practice of the law is, I think, well illustrated in [ Florida Bar v Town (1965) 174 So 2d 395]". Brinsden J set out (at 107-108) the following quotation from the holding in Florida Bar v Town (1965) 174 So 2d 395 at 397:

... the preparation of charters, by-laws and other documents necessary to the establishment of a corporation, being the basis for important contractual and legal obligations, comes within the definition of the practice of law as defined in [ State ex rel Florida Bar v Sperry (1962) 140 So 2d 587, at 591]. The reasonable protection of the rights and property of those involved requires that the person preparing such documents and advising others as to what they should and should not contain possess legal skill and knowledge far in excess of that possessed by the best informed non-lawyer citizen.

[152] Apparently also in connection with the practice of law, but by reference to what was not included in the term, Brinsden J also referred to Re Matthews (1938) 79 P 2d 535, apparently with approval, as follows (at 108):

... the court held that work of the mere clerical kind, such as filling out of skeletal blanks or drawing instruments of generally recognised and stereotype forms effectuating the conveyance or encumbrance of property, such as a simple deed or mortgage not involving the determination of the legal effect of special facts and conditions, should be generally regarded as the legitimate right of any layman because it involves nothing more or less than the clerical operations of the now almost obsolete scrivener. (The scrivener was eliminated in England by the 1804 Act.) The court went on to say that where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing law in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required and a charge for such services brings it definitely within the term 'practice of the law'.

[153] The holding in Palm Management (supra) with respect to the charge I have set out above was, as to the company, as follows (at 108):

I have not the slightest doubt that the advice tendered to [the partners] and the performance of work consequent upon the acceptance of that advice, affected important rights of [the partners] under the law and that that advice and the drawing of documents pursuant to it involved the possession of legal skill and knowledge of the law greater than possessed by the average citizen. What is complained of amounts to the company being engaged, directly or indirectly, in the practice of law.

[154] As I will also indicate below, in connection with Legal Practice Act, s 4(c)(i), the documents so used were drawn or prepared in the sense that ( Palm Management (supra), at 109) the company "caused precedents to be prepared" and, "through its instructions to [the individual I reach next], caused those precedents to have application to [the partners]"

[155] As to the employee of the company also charged, Brinsden J found the case not to be made out, as he had not taken any part in advising the partners or obtaining any instructions from them, acting throughout upon instructions from his superiors.

[156] In Marbellup (supra) Brinsden J at 340 referred to the views he had expressed in Palm Management (supra) that "the administration of law" meant the same as "the practice of law" or "the practice of the law".

[157] The holding in Marbellup with respect to the charges set out above as to the company concerned was as follows:

If [the company] through its servants or agents had confined itself to advising on business, tax, or accountancy matters and doing work strictly in connection with that advice it would not have brought itself within s 77, but in my view it has done so by doing all the work necessary to achieve its advice involving as it did recommending the institution of a trust system, preparing the deeds of trust to effect its advice, and having those deeds executed. All this latter work was clearly work involving complex legal problems fit only to be performed by a certificated legal practitioner. There may be around town, as I was told, precedents similar to the ones used in this case but adapting those precedents to a particular case involves doing work in connection with the administration of law. The same view must be taken in relation to the work done in connection with obtaining and acting on instructions to terminate an existing superannuation scheme and to set up a fresh scheme involving as it did the preparation and execution of the superannuation deed.

[158] Earlier in the same paragraph, Brinsden J said this (at 340):

In this particular case the facts established to my satisfaction are that [the company] through its agents and servants caused the respective deeds of trust to be prepared by making in each case the precedent adapt to the particular need by inserting as for example in the unit trust deed the name of the founder and the trustee and by listing the names and addresses of the original unit holders and their respective entitlement, and in respect of each family trust the name of the settlor, the trustees, and the various particulars of each schedule. Similar considerations apply to the superannuation trust deed. In my view what was done amounted to drawing or preparing a deed relating to, dealing with or affecting personal estate or any interest therein.

[159] While this passage might be read -- as counsel for the Board urged I read it -- as referring to the counterpart in Legal Practitioners Act, s 77(1), to Legal Practice Act, s 4(c)(i), which I reach below, I consider that in fact Brinsden J was amplifying what he meant by his reference to preparing the trust deeds and the superannuation deed as part of what he found to be the "administration of law" by the company. I would find what he had to say, divorced from considerations of the context of the use of the instruments, to be difficult otherwise to reconcile with what he had to say in Palm Management as to work of a clerical nature.

[160] As I will also indicate below, the principal of the company had "somehow acquired" two precedents of a unit trust and a family unit trust, and he had consulted a solicitor to advise "whether they would fit the ordinary situation" (339). Under the arrangement come to with that solicitor, the precedents would be used by (339):

... photostating them, filling in the relevant details to make each of them fit the particular case, have them executed, and then forwarded to [the solicitor] for checking and stamping.

[161] However (339):

[a]s it turns out it is abundantly apparent no attempt was made by any person to see if these particular precedents matched the need of the particular individual or company concerned. As [the principal of the company and the consultant to it referred to above] saw it, because [the solicitor] had passed with his approval the precedents it was quite in order for the trusts to be executed without any consideration as to whether they actually met the requirements of the executants. Now the most casual examination of these various trusts shows them to be complicated documents requiring the most careful consideration as to whether they met the particular client's need. No such consideration in this case was ever given by anybody.

[162] The holding in Marbellup (supra) as to the two individuals, one of whom was the principal of the company and the other of whom was a consultant with the duties I have described, was that both were also guilty on the charges in question here. The principal was guilty as the controller of the company. The other had (at 342) "nothing to do with the preparation of the any of the documents complained of, although he did participate in the execution of some of them". However, he was guilty with the principal as he was (at 342) "an equal participator" with him "giving the advice and doing certain acts in the knowledge of how [the company] would go about providing the necessary documents for the execution of the advice". I will return to the latter holding shortly.

[163] Counsel for the respondent put to me that the charge in the present case had not been made out in respect of s 4(b), and that both Palm Management (supra) and Marbellup (supra) were distinguishable. They were distinguishable on the basis that there was no evidence that the trust deed in this case had been executed or any action had been taken with reference to the document, such as a setting apart of property for the purposes of the trust deed. There was indeed, as I have indicated, no such evidence in this case.

[164] Further, unlike either Palm Management (supra) or Marbellup (supra), on the evidence what was provided in the present case was a product, a trust deed. On the evidence the advice given to Kingsbury to establish the private superannuation fund for which that product was required was given by his accountant, not by the respondent. There were a number of steps to be taken to set up such a fund beyond obtaining the trust deed. Those steps were accepted before me to be, apart from the execution of the trust deed and the setting aside of property for the benefit of the members of the fund under the deed, the obtaining of an Australian Business Number and tax file number, as required by the SIS Act, together with the making of an election for the fund to be regulated under that federal legislation. There was, as I have indicated, no evidence that any of those other steps had been taken.

[165] There was some difference on the affidavits as to what advice, if any, Ms Frigger provided to Mr Kingsbury when he picked up the trust deed. The conflicts appear to be these.

[166] The trust deed is dated "1 July 2006". Mr Kingsbury deposes (para 9) that Ms Frigger advised him she had used 1 July 2006 "for financial purposes", without telling him what those purposes were. Ms Frigger in her affidavit of 23 February 2007 deposes (para 12) that "at no time" did she tell him she "had used 1 July 2006 for financial purposes in the document".

[167] The trust deed (Kingsbury affidavit, Annex "JRK1") contains a Schedule B in which each of Mr Kingsbury and his wife is shown as a "Nominated Dependant" of the other. Mr Kingsbury deposes (para 10) that Ms Frigger advised him that she had prepared the trust deed on that basis "with a 100% total benefit in the event that either of us should predecease the other". Ms Frigger in her affidavit of 23 February 2007 deposes that (para 13):

[a]t no time did I advise Mr Kingsbury in regards to beneficiary nominations. Mr Kingsbury advised me that the superannuation fund was for himself and his wife and each wanted to make the other beneficiary.

[168] Mr Kingsbury deposes (also in para 10) that Ms Frigger told him "both my wife and I had to sign on the execution page of the Deed and that we had to lodge the signed Deed at the Australian Taxation Office to obtain a tax file number", while also telling him "that the accounts of the fund had to be audited yearly". Ms Frigger then "handed the Deed to me". Ms Frigger deposes in her affidavit of 23 February 2007 (paras 15, 16 and 17) that "at no time" did she provide any such advice.

[169] Finally, Mr Kingsbury deposes (in para 12) that as he was leaving Ms Frigger said "to let her know if I had any queries in relation to the Deed". Ms Frigger in her 23 February 2007 affidavit (para 18) says "at no time" did she say such a thing to him.

[170] I do not consider any of these differences to be material for my purposes. Nor do I consider it material for my purposes that Ms Frigger did not arrange for Mr Kingsbury to execute the trust deed, and none of the other steps referred to create the superannuation fund had been taken.

[171] It seems to me that on the evidence before me I should find beyond a reasonable doubt that the provision of the trust deed involved the respondent "directly or indirectly" performing, carrying out or engaging in any work in connection with the practice of law. While true it is that the trust deed was shown on the website for the respondent as a "Product", it was, like the trust deeds in Marbellup (supra), a "complicated document". It was a document that the respondent required a few days to complete in accordance with the instructions of Mr Kingsbury. There is no evidence before me that the respondent had explained it was simply performing a clerical function of completion of a commercially available document.

[172] On the evidence before me, of the trust deed itself (which nowhere indicates its source), of the completion for the respondent of the details to produce the form in which it was delivered to Mr Kingsbury, of the time referred to, and of the superannuation fund services of the respondent referred to on its website of which a trust deed, shown as a "Product", appears as a part, I do not consider an inference that the respondent was simply performing the function referred to is reasonably open. Rather it was providing a product adapted to and suitable for the purpose for which the document had been sought from the respondent.

[173] True it is that, unlike Palm Management (supra) and Marbellup (supra), there was no evidence the relevant document here had been executed nor (I am prepared to find) was there sufficient evidence that the respondent had even advised as to its execution. However, the document was in a form ready for execution, and was produced in that form as I have indicated.

[174] It seems to me, from Florida Bar (supra) and Re Matthews (supra) as considered in Palm Management (supra), and the conviction of the consultant in Marbellup (supra), on a charge which did not involve an allegation of execution of the documents referred to in that charge, that advising as to or procuring execution is not required for an offence of the present sort if the practice of law is otherwise shown. While advising as to, and then procuring, execution will undoubtedly be evidence of the practice of law, it does not seem to me that they are required in a case such as the present.

[175] The analogy of the sale and purchase, to a customer who had simply walked into a stationery shop, of a precedent, including as I understood the submission a complex precedent, was pressed on me by counsel for the respondent. Such a transaction clearly did not involve the practice of law, he submitted.

[176] I do not need to consider under what circumstances, if any, such a sale might involve the shop in a contravention of Legal Practice Act, s 4(b). That is because the transaction with respect to the trust deed in this case is not analogous to the transaction in the stationery shop, by reference to the evidence in the paragraph before last.

[177] I note one further matter in the affidavit of 23 February 2007 of Ms Frigger. In para 11 she deposes that:

[a]t no time during my telephone conversation with Mr Kingsbury, nor during his visit to my office, did I advise Mr Kingsbury that the Respondent was providing him with the document.

[178] In argument before me counsel for the respondent appeared to invoke this paragraph in relation to the matter of whether or not the respondent had been paid or remunerated or promised or expected pay or remuneration for the work done. I deal with that matter separately below. I note that the only reference to the respondent that might be found on the tax invoice used in the transaction with Mr Kingsbury was the respondent's ABN. Its name does not appear anywhere on the document.

[179] However, I took the submissions of counsel for the respondent just referred to include a submission that there was no evidence or insufficient evidence that the respondent had engaged in the relevant conduct in relation to the trust deed.

[180] However, I do not consider that the evidence, in Ms Frigger's affidavit of 23 February 2007 and the tax invoice, leaves me with a reasonable doubt that the respondent did not in fact engage in the relevant conduct in relation to the trust deed. Mr Kingsbury in his affidavit deposes he used the telephone number from the respondent's website to make the initial contact with Ms Frigger. Ms Frigger was one of the directors of the respondent. The respondent's website referred to the availability of a trust deed at the price charged to Mr Kingsbury. The name "H & A Frigger" on the tax invoice was not a registered business name, while the account name in which payment was to be made was "A Frigger". The telephone/fax and mobile numbers and email address under "H & A Frigger" were those shown on the respondent's website for the respondent. And the web address shown under "H & A Frigger" was that of the respondent's website. This evidence taken together leads to me to find beyond a reasonable doubt that the respondent provided the trust deed through Ms Frigger.

Does Legal Practice Act, s 4(c)(i) apply in this case ?

[181] It appears to be common ground that the amended notice of originating motion, ground 2, makes consideration of s 4(c)(i) necessary.

[182] I have previously quoted that provision. For ease of reference, I set out that provision again, together with the corresponding provision in the predecessor provision to s 4(c)(i), Legal Practitioners Act, s 77, in part. That provision in that part was the subject of a number of authorities to which my attention was called by both counsel.

[183] Legal Practice Act, s 4(c)(i), provides as follows:

A person engages in legal practice if the person directly or indirectly --
...

(c)
draws or prepares any deed, instrument, or writing relating to or in any manner dealing with or affecting --

(i)
real or personal estate or any interest in real or personal estate ...

[184] Legal Practitioners Act, s 77, provided on 31 December 2003, the day before the coming into force of the Legal Practice Act (except Pt 8), as follows (with the material words emphasised):

(1)
No person other than a certificated practitioner shall directly or indirectly perform or carry out or be engaged in any work in connection with the administration of law, or draw or prepare any deed, instrument, or writing relating to or in any manner dealing with or affecting real or personal estate or any interest therein or any proceedings at law, civil or criminal, or in equity.

[185] Again, both counsel directed my attention to Palm Management (supra) and Marbellup (supra). I have previously set out details of the facts of those cases, and referred to their relevance to the application in this case of Legal Practice Act, s 4(b) and s 4(c)(i).

[186] Again, it is of significance for my purposes to set out the charges that are relevant in the present connection in each of the two cases.

[187] In Palm Management (supra), the charge relevant in the present connection was that the company and the employee I referred to (102):

in the course of carrying out the instructions referred to in subparagraph (a) above did draw or prepare the following deeds, instruments or writings relating to, dealing with, or affecting real or personal estate or an interest therein, namely:

(i)
Memorandum and Articles of Association of [the corporate trustee],
(ii)
Deed of Settlement for the [family trust],
(iii)
Superannuation Trust Deed by [the corporate trustee].

[188] In Marbellup (supra), the charge relevant in the present connection was that the company and the individuals previously referred to (337):

(c)
In the course of carrying out the instructions referred to in subparagraph (a) and (b) above, did draw or prepare Deeds, instruments or writings relating to, dealing with or affecting real or personal estate or an interest therein namely: --

(i)
Memorandum and Articles of Association of [the corporate trustee];
(ii)
Superannuation Trust Deed by [the corporate trustee];
[(iii) to (xii): Deeds of Settlement for the various family trusts in the case].

[189] In relation to the application of the material part of Legal Practitioners Act, s 77(1), I note the following from Said (supra), at [15] and [17]:

It has been generally accepted in this State that in the particular context of s 77(1) the notion of drawing or preparing a document involves 'the use of the intellect to compose the document, the use of the brain to select the correct words, to put them in the correct sequence so that the document expresses the intention of the parties'; see Green v Hoyle [1976] 1 WLR 575 at 581, per Widgery LCJ and [ Palm Management (supra)] per Brinsden J at 109-110. It is on this basis that in this State the mere routine filling up of a document which is in the form of a precedent has been generally regarded as merely a 'clerical' or 'ministerial' function, and that more than this is required to constitute the 'drawing' or 'preparing' of a document for the purposes of s 77(1). As was said by Hasluck J in the Legal Practice Board v Adams [2001] WASC 78] at [30]:
It is apparent from Cornall v Nagle [1995] 2 VR 188] that where a person in bringing documents 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 is of a kind required to be performed by a solicitor.
...
It is to be noted that in the context of s 77(1) the drawing or preparing of the writings there specified need not be undertaken in the practice of the law or in connection with the administration of law to come within the proscription of the provision. It is enough that such a writing is drawn or prepared by a person who is not a certificated practitioner. Of course, it must be kept in mind that by s 77(2) there are exceptions, which include the paid or articled clerks of certificated practitioners.

[190] I note that there is language corresponding to Legal Practitioners Act, s 77(2) in Legal Practice Act, s 124(2).

[191] The holding in Palm Management (supra) with respect to the charge I have set out above was, as to the company, as follows (at 108):

In my view, notwithstanding the Full Court's reservation of its opinion as to whether the drawing of a memorandum and articles of a limited liability company does necessarily relate to, deal with, or effect real or personal estate within the meaning of s 77, as expressed in Barristers' Board of Western Australia v Opie [1971] WAR 99, I am of the opinion in this case that the company is guilty of the contempt alleged in that it did cause its servants or agents to draw or prepare the documents complained of and that each of those documents does relate to, deal with, or affect personal estate or an interest therein.

[192] This holding needs to be considered in the light of the holding as to the employee also charged for the same offence. The case against him was considered not to have been made out, as (at 109) he:

had nothing whatever to do with the drawing or preparation of the of the superannuation trust deed. Both the other two documents were based on precedents, one of which the evidence discloses, had been prepared by a solicitor. The work that [the employee] did was of a clerical nature. So far as the memorandum and articles of association is concerned he seems to have inserted the company's name and caused the common seals of the two subscribers to be affixed to the memorandum and articles. With the deed of settlement he has caused to be inserted the names of the parties, the amount settled, the name of the family trust and the particular in the schedule.

[193] Having concluded it would be "stretching the concept" to apply to the work done by the employee the view I have indicated is associated with Green v Hoyle [1976] 2 All ER 633 at 638, per Widgery LCJ in the quotation from Said (supra) above, Brinsden J went on in Palm Management (supra) as follows (at 109-110):

Undoubtedly the company drew or prepared the documents because it, through its agent (probably the managing director), caused precedents to be prepared and through its instructions to Nettleton caused those precedents to have application to the Sambells. In those circumstances it seems appropriate to say that the company selected what it thought to be the correct words and put them in the correct sequence so that the documents expressed the intention of the parties to them. This reasoning seems in line with my earlier decision in The Barristers' Board v Tranter Corp Pty Ltd [1976] WAR 65 and Re Universal Guarantee Pty Limited ; ; Ex parte Law Institute of Victoria [1954] VLR 650. Had it been shown by the evidence that Nettleton had exercised judgment, that is, exercised his own mind as to what was the appropriate form of words in each particular document, then the applicant may well have made out its case.

[194] In Marbellup (supra) the holding with respect to the charge set out above as to the company and the two individuals referred to was that the charge was made out as to all of the documents except the memorandum and articles.

[195] So far as the memorandum and articles were concerned, Brinsden J indicated he was prepared to accept the respondent's evidence that what was involved was a shelf company, adding that (341):

[t]he incorporation of a shelf company may not involve the administration of law for it may be regarded as work of a routine and clerical nature not requiring legal expertise: R v Nicholson (1979) 96 DLR (3d) 693. The decision that a particular shelf company would be suitable as a trustee company of a particular unit trust and adapting that company to that purpose which work if done by a non-certificated practitioner would amount to doing work in the administration of law may be regarded as part of the acts complained of in (a) of the originating motion [above].

[196] So far as the other documents were concerned, Brinsden J referred to what he had said in relation to the other charges in relation to the "administration of law", matter which I set out above.

[197] I conclude, on the evidence I referred to in connection with my response to the respondent's argument that it was simply providing a product with respect to which it was performing a clerical function, that the respondent had drawn or prepared a deed related to or dealing with an interest in real or personal estate or any interest in real or personal estate within Legal Practice Act, s 4(c)(i). It seems to me from the authorities that the absence of execution or advice as to execution is not fatal and indeed is less likely to be significant in the present context: see Marbellup (supra), at 340-341; and Said (supra), at [17].

[198] The necessary element of the use of the intellect to compose the document so that it expresses the intention of the parties is to be found in this case in the respondent's decision to use the Cleardocs document adapted by the completion of the details indicated to meet Mr Kingsbury's order. It was put to me by counsel for the respondent that it had not been established beyond a reasonable doubt that a superannuation trust deed, or at least the superannuation trust deed from Cleardocs, was not like the memorandum and articles of a shelf company. Whether or not superannuation trust deeds, or those from a supplier like Cleardocs, are to be so analogised, it seems to me that the relevant analogy in the circumstances of this case is with the selection and adaptation of a particular shelf company as suitable for the purpose of the person dealing with the provider of the deed: see Marbellup at 341. I particularly refer in this connection with the evidence in this case to which I referred above in connection with the argument for the respondent that it had not been shown beyond a reasonable doubt that the respondent had not simply been performing a clerical function of completion of a commercially available document.

[199] I note again the argument for the respondent that it was not shown beyond a reasonable doubt that the trust deed had been provided by the company. I will not repeat why I disagree with that argument.

Does Legal Practice Act, s 124(3) have any application in this case ?

[200] I have previously set out s 124(3). For convenience I set out the provision out again, with the corresponding provision in the Legal Practitioners Act.

[201] Legal Practice Act, s 124(3) provides as follows:

(3)
It is a defence to a charge under section 123(1) in respect of the doing of work to show that the person who did the work has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work so done (the unpaid work).

[202] Legal Practitioners Act, s 78, provided as at 31 December 2003 as follows:

(1)
Nothing in section 77 shall extend to make any person liable to any penalty if such person satisfies the Court or a Judge thereof, as the case may be, that the person has not directly or indirectly been paid or remunerated or promised or expected pay or remuneration for the work or services so done.
(2)
Where such person directly or indirectly receives, expects, or is promised pay or remuneration for or in respect of other work or services relating to, connected with or arising out of the same transaction or subject-matter as that to which the said first-mentioned work or services shall relate, the provisions of this section shall not apply.

[203] I note that under the latter provision it appears to have been accepted the onus of proof lay on the respondent: see Marbellup (supra), Brinsden J, at 342. My view is that the same position applies under Legal Practice Act, s 124(3), in view of the language "it is a defence that". I would take the view that the burden is to be discharged on the balance of probabilities.

[204] In my view the respondent in this case has not discharged the burden of proof that the defence applies. I refer again to the evidence of Ms Frigger's affidavit of 23 February 2007, par 11, and the tax invoice, annexure "JRK3", to the Kingsbury affidavit, on which counsel for the respondent relied in this connection. Indeed, the reasons I gave in my discussion of that evidence for concluding that it did not give rise to a reasonable doubt that the respondent had engaged in the relevant conduct in relation to the trust deed apply equally here, so as to cause me to conclude that it has been shown beyond a reasonable doubt that payment, in cash, was made to the respondent, through Ms Frigger.

Is reliance on statements of the ATO relevant in this case ?

[205] It was not in contest that the respondent, through Ms Frigger, relied upon the advice from the Australian Tax Office.

[206] Counsel for the respondent referred me to Annex "AF1" to the affidavit of Ms Frigger of 23 February 2007, which is a publication from "Australian Government Australian Taxation Office" entitled "DIY SUPER IT'S YOUR MONEY ... BUT NOT YET!", published in July 2004. This publication refers to another publication, a "fact sheet", no. 2059, entitled "Setting up a self-managed superannuation fund", one of whose "[t]opics covered" is referred to as "obtaining a trust deed". Annexure "AF2" is that "fact sheet", which contains under the heading "Obtain a trust deed" the following (emphasis supplied):

The first thing you need to do is to have a trust deed prepared which evidences the existence of the trust and establishes the rules of operation for the fund. An accountant, solicitor or legal service company may prepare the deed. You should ensure that the deed is correctly drafted to achieve the fund's objectives.

[207] Counsel for the respondent also referred me to Annex "AF3" to the affidavit of Ms Frigger of 23 February 2007. This is another publication of the "Australian Government Australian Taxation Office", and is entitled "Roles and responsibilities of trustee". Under the heading "Setting up a self-managed superannuation fund" the following appears (emphasis supplied):

There are a number of trust law and legislative requirements involved in setting up a self managed superannuation fund. If you are thinking about setting up a fund, it may be useful to consult a professional adviser before committing to this option. Many accountants, solicitors and superannuation specialists also have packages and kits to simplify the process.
The major steps involved in setting up a self-managed superannuation fund begin with the establishment of a trust.

[208] I also note the affidavit of Ms Frigger of 23 February 2007, para 8, which, in addition to referring to the three publications above, says this:

I have been advised by the Superannuation section of the Australian Taxation Office and I verily believe that accountants may provide individual trustees a deed such as the one referred to in para 7 in order to set up a self-managed superannuation fund. The advice officer further advised me and I verily believe that this privilege is specifically covered in Section 251L of the Income Tax Assessment Act 1936 and is referred to [in the three publications above].

[209] Counsel for the respondent put to me that reliance on the three publications, at least, was a defence. He sought to distinguish Ostrowski v Palmer (2004) 218 CLR 493 for this purpose.

[210] Ostrowski (supra) was a case involving a prosecution of the lessee of a commercial fishing licence for conduct in contravention of Fish Resources Management Regulations 1995 (WA), reg 34. That regulation, made under Fish Resources Management Act 1994 (WA), prohibited the holder of such a licence fishing for rock lobsters in the area described in the table to the regulations. The respondent had fished in that area. Prior to doing so, he had visited the Fremantle office of Fisheries Western Australia, which appears to have been accepted to be the relevant government department. He had sought the relevant regulations for the zone to which his licence related for the fishing season in question. That licence covered fishing for rock lobsters. After having being told to return for the regulations for that season, he had done so, to be provided, by an "office lady" at the public counter, with documents from which it was accepted he could infer he had been provided with a complete set of those regulations. In fact, they did not include reg 34.

[211] The High Court reinstated the respondent's conviction. The respondent's mistake was characterised as "a mistake that resulted in ignorance of the existence of the prohibition contained in reg 34" (per Gleeson CJ and Kirby J, at [13]); "a mistaken belief that an activity is lawful or authorised" (McHugh J, at [59]); and a mistake as to whether or not it was permissible for him to fish as and where he did (per Callinan and Heydon JJ, at [90]). This was a mistake to which Code s 22, rather than Code s 24, related.

[212] Before me there was no argument addressed to whether or not Code s 22 has an application to an offence under Legal Practice Act, s 250, made punishable as a common law contempt; and, if it did not, whether or not the common law had a doctrine with the same application as the law described in Ostrowski (supra). There seems no reason to consider the common law would be materially different (see Ostrowski , per Gleeson CJ and Kirby J, at [2]-[4]); in any event, it is seems to me that s 22 and s 24 are made applicable to offences against Legal Practice Act, s 250, by Code, s 36.

[213] Both counsel proceeded before me on the basis that the relevant principles were those in Ostrowski (supra). Counsel for the respondent sought to distinguish the case in two ways.

[214] One was that the belief in the present case was that what the respondent was doing was lawful. There was no question here of a belief being induced that there was no prohibition on what the respondent was doing, as in Ostrowski . Rather, the belief being induced was that what the respondent was doing was lawful, presumably as part of the activities it was lawful for an accountant, or at least one who was a registered tax agent, to conduct.

[215] I accept for the purposes of this argument that the publications referred to together with the advice received from the ATO and Income Tax Assessment Act, s 251L did indeed induce the belief referred to. While I do not consider the statutory provision ought reasonably to have induced that belief, for the reasons I previously gave, and, if it were material (in view of the position of the parties, I do not consider it is material in this case), I would accept without deciding that, with the advice and the publications, the statutory provision was part of a body of material that could reasonably induce such a belief. Such a belief was in my view mistaken, and the contrary was not pressed on me.

[216] However, I do not consider the belief so described distinguishes this case from Ostrowski (supra). The varying descriptions of the mistaken belief in that case seem to me apt to cover a belief of the sort in this case, in McHugh J's decision expressly so. Nor would such a distinction in my view be easily justified on the reasoning in Ostrowski . There does not seem to be a reason to distinguish between a belief that the law does not contain a prohibition of an activity, and a belief that the law contains an authorisation or permission to act. There is, however, an aspect of the distinction between the two pressed on me to which I will need to return, below.

[217] The second ground of distinction of Ostrowski (supra) put to me by counsel for the respondent was that in that case the mistake was induced by what had been provided by a single person, at the public front desk of an office of the relevant government department. Here the mistake had been induced by what could be called official publications of the relevant government department, and indeed by federal legislation.

[218] Again, I do not consider the distinction suggested is a material one. There is nothing in Ostrowski (supra) to which my attention was drawn, and nothing my reading of the case revealed, indicating it was of any significance that the information had come to the fisher as it had, from an individual at that level in an office of the Department, as opposed to from a source that might be considered the Department itself. Again, however, there is an aspect of the distinction pressed on me to which I must return.

[219] That aspect goes to a third matter, not put to me by counsel for the respondent, but which I should briefly address. In part, it arises out of the distinctions he sought to draw. It is that of "official inducement to act". It was a matter which it appears was accepted could not be raised in the appeal in Ostrowski (supra), as it had not been raised at the trial. See the joint judgment of Callinan and Heydon JJ, at [91]. As the matter was not put to me, at least in those terms, there was no exploration of the principle before me. However, I consider I should address it.

[220] I note that in the Full Court of this Court, in Palmer v Ostrowski [2002] WASCA 39, per Olssen J, Malcolm CJ agreeing, at [83]-[97], Steytler J agreeing on this point, at [30], the Court indicated it did not need to determine whether or not there was any such principle applicable under the Code. It might be such a principle, if it so applied, might arise where a person was able to show that person had purportedly been authorised by a government department to do what he had done, where that department did not have the authority to authorise that person so to act. See R v Jorgensen [1995] 4 SCR 55, referred to by Olssen AUJ in Palmer , at [87]-[92], where the Supreme Court of Canada discussed the principle, but concluded they did not need to determine if it applied under the Criminal Code, RSC, 1985, c C-46, so that the mistake was one of mixed law and fact such that it would operate as a lawful justification or excuse.

[221] I note that the "advice" received by Ms Frigger from the "officer" of the "Superannuation section of the Australian Taxation Office" was that accountants "may provide" a trust deed, and that "this privilege" was "specifically covered" by the statutory provision. However, it seems to me that this is not an authorisation of the sort I have just described. Rather it is advice as to the law -- in this case the effect of federal law. In that case it seems to me that such advice is no different to erroneous advice as to the law relevant to a particular case brought to the attention of a government department. The latter was the situation in Ostrowski (supra).

Conclusion and orders

[222] It follows from my principal conclusions that the present application must be dismissed.

[223] I will hear from the parties as to the orders I should make accordingly.

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