Cox v Witt [2005] NSWLC 1

Local Court of New South Wales

CITATION: Cox v Witt [2005] NSWLC 1 JURISDICTION: Civil PARTIES: Kenneth Alan Cox Frank Raleigh Witt FILE NUMBER: 4255/04 PLACE OF HEARING: Downing Centre DATE OF DECISION: 04/26/2005 MAGISTRATE: Magistrate H Dillon CATCHWORDS: Procedure - Lawyers - Persons may not act as lawyers without a practising certificate - Legal Costs paid to unqualified persons may be recovered as a debt LEGISLATION CITED: Legal Profession Act 1987 s 48B, s48C CASES CITED: REPRESENTATION: Mr D Gasic (Counsel) instructed by Williams Woolf & Zuur Lawyers Mr B Dennis (Advocate) of Dennis & Co Solicitors ORDERS: 1. Verdict and Judgment for plaintiff in sum of $13,000.00; 2. Interest to be calculated on sum of $5,000.00 from 30 March 1995 to present; on a further $5,000.00 from 8 September 1995 and on a further $3,000.00 from 15 August 1996.; 3. Question of costs is reserved.

JUDGMENT

1. The plaintiff, Mr Cox, brings this action seeking to recover a sum of $13,000 that he alleges is due to him by Mr Witt, the defendant, pursuant to s.48B of the Legal Profession Act 1987 ("the Act"), on account of Mr Witt performing legal work while unqualified to do so. At the relevant times, Mr Witt had been suspended from practice.

2. The relevant parts of s.48B provide: (1) A natural person must not act as a barrister or solicitor and barrister unless the person holds a current practising certificate . Maximum penalty: 20 penalty units… (4) If a person contravenes this section: (a) no action lies for the recovery of costs in respect of anything done in the course of the contravention, and (b) if any such costs have been paid, the amount paid may be recovered as a debt owed by the person to the other person who paid them. 3. Mr Witt concedes that he did certain work for Mr Cox and that he received certain moneys from Mr Cox for work he performed but he denies that he performed legal work for Mr Cox or that he held himself out to be or did anything to suggest that he was a legal practitioner. Background 4. Mr Witt was a barrister. His practising certificate, however, was cancelled on 24 December 1992 following proceedings in the Legal Profession Disciplinary Tribunal. On 22 July 1996, the Legal Services Tribunal found that Mr Witt had acted as a solicitor without a valid practising certificate. That Mr Witt had no practising certificate at the relevant time is not disputed. 5. Mr Cox works in the construction industry. In 1995, he unsuccessfully represented himself in a case in the Land and Environment Court. He was anxious to appeal against the decision. He was referred by a solicitor called Ms Yvonne Woon to Mr Witt. He saw Mr Witt at the offices of Laurence J Treanor & Co, Solicitors ("Treanors") in West Ryde in March 1995. The terms of that discussion are disputed and will be considered below but it is not disputed that Mr Witt gave Mr Cox certain advice. Mr Cox also handed over a cheque in the sum of $5000 on 30 March 1995 payable to Treanors. That cheque was paid into the National Australia Bank account of Commercial Lawyers Pty Ltd ("Commercial Lawyers") on 3 April 1995. The directors of Commercial Lawyers included Laurence John Treanor and Mr Witt. (Mr Witt's de facto wife, Sonya Salkild, was company secretary.) 6. On 19 May 1995, Treanors sent Mr Cox a letter. It began, "We refer to our conference on 18 May 1995 and advise as follows…" The letter then referred to a consultation (by Treanors) "with senior counsel who is an expert in matters before the L&E Court". The letter then went on to advise that there were grounds for an appeal on ten counts. Treanors then went on to advise that an application for review of the decision at first instance would be prepared and filed the following week and requested $10,000 for work done and anticipated. The plaintiff alleges that the letter was initialled by Mr Witt. A Notice of Grounds of Appeal was prepared for the Court of Appeal and provided to Mr Cox. 7. On 13 June 1995, Treanors wrote to a junior barrister, Mr Mario Sindone, briefing him to advise on the prospects of an appeal. That letter was signed by Mr Laurence Treanor. On 13 June 1995, Mr Treanor had a conference with Mr Sindone concerning two matters, one of which was the Cox appeal. He drafted a letter of advice concerning the grounds of appeal (of which he thought there were none). On 30 June 1995, Mr Sindone appears to have sent out his memorandum of fees for the advice he had given. In relation to Mr Cox's matter, he charged no fee for the written advice because of the simple nature of the matter. He received his fees on 30 April the following year (with an apology for the delay). 8. On 8 September 1995, Mr Cox gave Mr Witt a further cheque payable to Treanors in the sum of $5000. That cheque was credited to the account of Sonya Salkild at the Bondi Junction branch of the St George Bank on 11 September 1995.