New South Wales Supreme Court CITATION : Principal Registrar of the Supreme Court of New South Wales v Joseph Assi [2004] NSWSC 1123 HEARING DATE(S) : 15/11/04, 16/11/04, 17/11/04, 22/11/04 JUDGMENT DATE : 22 November 2004 JURISDICTION: Common Law Division JUDGMENT OF : Brownie AJ DECISION : Findings of contempt of court. CATCHWORDS : Legal practitioners - no question of principle Legal Profession Act 1987 (NSW) LEGISLATION CITED : Oaths Act 1900 (NSW) Property (Relationships) Act 1984 (NSW) Victims Support and Rehabilitation Act 1996 (NSW) CASES CITED : Law Society of New South Wales v Seymour [1999] NSWCA 117 PARTIES : Principal Registrar of the Supreme Court of New South Wales (Plaintiff) Joseph Assi (Defendant) FILE NUMBER(S) : SC 10611/04 COUNSEL : Mr RD Cogswell SC, Mr APL Naylor (Plaintiff) Litigant in person (Defendant) SOLICITORS : I V Knight (Crown Solicitor) (Plaintiff) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Brownie AJ Monday 22 November 2004 10611/04 Principal Registrar of the Supreme Court of New South Wales v Joseph Assi JUDGMENT 1 On 14 December 1994 the defendant was admitted as a legal practitioner. On 22 April 1999 the Law Society of New South Wales cancelled his practising certificate. Since that date he has neither held nor applied for a practising certificate. On 6 December 1999 Simpson J made declarations and orders in the following terms: (1) During the period 23 April 1999 to 23 September 1999 Joseph Assi acted as a solicitor and barrister in the state of New South Wales, without being the holder of a current practising certificate as a solicitor and barrister contrary to subsection 25(1) of the Legal Profession Act 1987; (2) During the period 23 April 1999 to 23 September 1999 Joseph Assi held himself out to be a solicitor without being the holder of a current practising certificate as a solicitor and barrister contrary to subsection 25(3) of the Legal Profession Act 1987. 2 Her Honour then ordered that Joseph Assi be restrained from (a) practising as a solicitor in New South Wales and (b) holding himself out to be a solicitor in New South Wales in circumstances where he does not hold a current practising certificate as required by section 25 of the Legal Profession Act 1987. 3 The minute of the declarations and orders was entered on 15 December 1999. On 17 March 2003 Barr J made further declarations and orders generally to the same effect but in respect of the defendant's conduct during the period 7 August 2002 to 25 November 2002. His Honour also directed the plaintiff to bring the present proceeding in which the plaintiff seeks declarations that the defendant is guilty of contempt of court in that he has breached the orders of Simpson J. 4 There are ten charges set forth in the summons - five for practising as a solicitor and five for holding himself out as a solicitor whilst not holding a practising certificate. The plaintiff accepts that she bears the onus of proof, that the standard of proof required is proof beyond reasonable doubt, and that she must affirmatively prove both that the defendant carried out activities that although not required to be carried out by a solicitor are usually carried out by a solicitor, and that when the defendant did those things, he did so in such a way as to lead to the reasonable inference that he was a solicitor. 5 She also accepts that the inference required to be drawn must be considered by reference to a reasonable person dealing with the defendant and with knowledge of the material activities of the defendant, including any statement by which the defendant represented that he was a solicitor entitled to so practice, and that the inference that the defendant was practicing as a solicitor was the only inference that could reasonably be drawn from his activities - see Law Society of New South Wales v Seymour [1999] NSWCA 117, at 19 and 21. Given the plaintiff's acceptance of these propositions, I need not say anything further about them. 6 The first question to be considered is whether it has been proved that the defendant had knowledge of the orders made by Simpson J. Pursuant to directions given earlier, the plaintiff had filed various affidavits before the hearing commenced on 15 November 2004, but the defendant had not done so. On that day he swore an affidavit denying having been served with the minute of the order and denying having received certain letters from the Law Society, and that led to some exploration of the chain of events. 7 Mr Collins is the manager of the Professional Standards Department of the Law Society. Without challenge, he said that on 15 November 1999 the court made consent orders in these terms:- 1. The defendant be restrained until further order of the court from (a) practising as a solicitor and barrister in the State of New South Wales without being the holder of a current practising certificate as a solicitor or barrister; (b) holding himself out to be a solicitor and barrister in the state of New South Wales without being the holder of a current practising certificate as a solicitor and barrister. 8 In an affidavit sworn on 12 February 2003 Mr Collins said that on or about 10 December 1999 he caused to be delivered to the defendant's last known address a letter advising of the orders made on 6 December 1999 and enclosing a draft minute of the order. That letter was addressed to the defendant at a unit at 61 Macquarie Street Sydney. Mr Collins also said that on or about 12 December 1999 he caused to be delivered to the defendant at the same address a letter enclosing a copy of the minute. 9 In his affidavit of 15 November 2004 the defendant having denied receiving either of the letters of 10 or 12 December 1999, and he cross-examined Mr Collins, generally challenging Mr Collins' evidence about the delivery of these letters. Mr Collins spoke of a recollection of going to the Macquarie Street address with an envelope, which envelope plainly enough enclosed the letter of 10 December 1999 and the draft minute. That letter of 10 December was marked "by hand" and on the evidence it was the only letter so marked. Mr Collins described attempting to deliver the envelope to the defendant, leaving it with the concierge in the building for delivery of it by the concierge to the defendant. The letter of 12 December was apparently simply posted to the defendant. 10 The combination of the making of the order of 15 November 1999 1989 by consent, the delivery of the letter of 10 December to the concierge and the posting of the letter of 12 December to the defendant make it likely that the defendant knew of the terms of either or both of the orders of 15 November and 6 December, but these circumstances do not prove the matter beyond reasonable doubt. 11 On the defendant's case, by the time of the delivery or the posting of these two letters he had moved from the Macquarie Street address to an apartment at 68 Market Street, Sydney. By May 2000 the Law Society appears to have become concerned about the activities of the defendant, although the plaintiff did not attempt to prove this or the reasons for the apparent concern. However, the Law Society did instruct Burkhart & Co. to personally serve the defendant with a copy of the minute of the orders of 6 December 1999. Mr Ramshaw, a licensed commercial agent then employed by Burkhart & Co. says that he did effect personal service of the documents on the defendant on 10 July 2000 at Unit 3, 72 Bundarra Street Bellevue Hill, and he swore an affidavit to that effect on 13 July 2000. 12 For reasons not explained by the evidence, the Law Society sought further evidence about this service. On 21 July 2000 it wrote to Burkhart & Co. enclosing a photograph of the defendant. Thereafter on 24 July 2000 Mr Ramshaw swore a further affidavit identifying the person he had served by reference to this photograph. The defendant denies having been served as described by Mr Ramshaw. He says that he had lived at the Bellevue Hill address until 1996 but not thereafter, although his mother continued to live there. It appears to be the fact that he lived at the Macquarie Street unit between 1996 and 1999 thereafter at three different units in the building at 68 Market Street Sydney and more recently in a unit in Liverpool Street Sydney. 13 As the hearing progressed the plaintiff took the matter further. On 12 May 2000 the Law Society wrote to the defendant at the Bellevue Hill address enclosing a copy of a receiver's report and seeking a response within twenty-one days. On 20 July 2000 the Law Society wrote to the defendant again at the Bellevue Hill address, referring to the letter of 12 May 2000 and seeking a response. On 8 August 2000 the defendant wrote to the Law Society giving the Bellevue Hill address as his address and providing a response to the letters of 12 May and 20 July 2000. The defendant explained that his mother had forwarded these on to him, and that he had used the Bellevue Hill address when he replied because he did he not want people to know what his true address was. I accept the evidence of Mr Ramshaw and find that the minute of order was personally served by him upon the defendant. Mr Ramshaw swore the affidavits of 13 and 24 July 2000 promptly after the event. I see no reason to doubt either his truthfulness or the reliability of his evidence. I will say more later about the defendant. 14 Before going on to disputed matters I will deal with some matters that are not in dispute. From time to time the defendant prepared business cards for his own use on his computer. There are four of these in evidence. One given by the defendant to Ms Hu reads in part: Joe Assi BA LLB MA LLM (Syd), Lawyer, and it gives contact details including an address at 2607/68 Market Street Sydney. It bears a logo, perhaps a version of the scales of justice. Another, given by the defendant to Mr Napoli, is identical except that the logo is omitted. A third, also given to Mr Napoli, bears the logo and a different address 2905/68 Market Street. These three cards were handed over during the year 2001. A fourth card given by the defendant to Mr Zaher in 2002 omits the word "lawyer", bears a different logo, and gives the defendant's address as 2071/68 Market Street. 15 In 1998 when the defendant had a practising certificate, he apparently practised under name the of Janus Lawyers using note paper bearing a representation of the Roman god Janus as well his name, contact details, and university degrees. By 2001 he was using notepaper bearing a representation of Janus and his contact details but containing no printed reference to his name, calling, or university degrees. In 2002 and 2003 he was using different notepaper, containing the word "Assi" and his contact details but nothing printed suggesting that he was a lawyer. On the other hand, he appears to have routinely signed letters on these letterheads above the expression "J Assi BA LLB MA LLM (Syd)". 16 The defendant worked from his home units, that is, the three units at 68 Market Street, and he had framed certificates of his university degrees hanging on the wall there. In some senses, at least, the unit was arranged as if it was an office. There was a desk and a computer. 17 The first and second charges which are now brought concern the defendant's dealings with Mr Zaher, an accountant, who until recently was the lessee of premises at Campsie. In July 2002 he was in dispute with his lessor, he asserting and the lessor denying that he had validly exercised an option to renew the lease. Mr Zaher spoke to a neighbour, Mr Khordahi, who recommended to Mr Zaher that the latter retain the defendant, Mr Khordahi's nephew. According to Mr Zaher, Mr Khordahi described the defendant as a solicitor and, of course, this is only hearsay. 18 In his affidavit Mr Zaher described a telephone conversation he had with the defendant after his conversation with Mr Khordahi. Mr Zaher said to the defendant: "Are you a solicitor?" The defendant said: "Yes, but I don't do conveyancing. I just do commercial disputes." Mr Zaher said: "I am having a problem with my landlord. He wants to sell the building and is threatening to evict me but I have exercised an option to renew. What are my chances of succeeding?" The defendant said: "You have a very good case. I can act on your behalf and the fee would be $10,000 for legal fees and $2,000 for court filing. If you win, you will recover all this money from the landlord." 19 In his affidavit the defendant denied that the conversation was as Mr Zaher described it. According to the defendant, Mr Zaher introduced himself and said that Mr Khordahi had given the defendant his telephone number. Mr Zaher continued: "I have a shop next door to his and he told me that you are helping him against the landlord." The defendant said: "Yes, I know that the landlord is trying to kick all the tenants out. I am familiar with my uncle's lease and I am helping him out." Mr Zaher said: "Can you also help me?" The defendant said: "Come over and I will see what I can do for you." 20 When the defendant cross-examined Mr Zaher putting this version of the conversation to him, Mr Zaher did not accept it. Mr Zaher said in answer to a direct challenge, that the defendant did say that he was a solicitor. Mr Zaher's evidence on this occasion is not precisely the same as his evidence in his affidavit. The defendant in submissions criticised Mr Zaher saying that it was quite unlikely that in the first telephone conversation between the defendant and Mr Zaher the defendant expressed a view about Mr Zaher's prospects of success, but on the evidence it seems plain that the defendant had in fact discussed the matter with Mr Khordahi, at least. 21 I prefer Mr Zaher's evidence to that of the defendant. In particular, I accept Mr Zaher's evidence that the defendant told him that he was a solicitor and that he would act as a solicitor for Mr Zaher. I accept also that when on 7 August 2002 Mr Zaher went to the defendant's home unit or office, the defendant introduced himself as a solicitor and that he handed the defendant the card already mentioned, referring to the degrees of Bachelor and Master of Laws. Mr Zaher observed four or five certificates on the wall of the unit, including one that he said was a certificate referring to the degree of Bachelor of Laws. Mr Zaher said, and I accept, that in the initial conversation the defendant said that Mr Zaher had a very good case as against his lessor and that his fee would be $10,000 for legal fees and $2,000 for court filing, that if Mr Zaher succeeded he would recover all this money from the landlord. In later telephone conversations the defendant repeated his advice that Mr Zaher's chances of success were good. 22 I accept also that when Mr Zaher went to the defendant's home he said to the defendant: "So you work from the home?", and the defendant then said: "Yes. I don't run my business like other solicitors. I don't take on family law or migration or conveyancing. I just handle trade and commercial disputes, like your matter. This affords me the luxury of being able to work from home." 23 Mr Zaher said and I accept that the defendant then discussed his fees in the way I have already summarised. The defendant continued by saying that if the case was resolved without going to court his fees would be calculated at $300 per hour up to a maximum of $3,000. The defendant then agreed to a request that this agreement, including the last passage that I mentioned, be put into the writing and the defendant agreed to amend an existing draft service agreement so as to do that. Mr Zaher then went to his bank and obtained a cheque for $10,000 drawn in favour of Joe Assi Trust Account. He returned to the defendant's unit and gave him that cheque. I accept Mr Zaher's evidence that would he not have done so if he had not thought the defendant was a solicitor. He thought that because the defendant was a solicitor Mr Zaher's money would be protected because the defendant would be insured. 24 The defendant then printed out from his computer a receipt. The receipt is on the defendant's notepaper that I mentioned earlier and is marked "trust receipt". It is in the sum of $12,000 and is described as money held in trust for Zaher & Associates. A little later the defendant telephoned Mr Zaher to say that the cheque was for $10,000 whereas the receipt was for $12,000. Nothing now turns on this. 25 On 14 August, Mr Zaher telephoned the defendant to inquire about progress. The defendant said that he had written to the lessor's solicitors and he later faxed to Mr Zaher a copy of a letter dated that day, addressed to Mr Gilles, the solicitor for the lessor. 26 On 15 August, the defendant wrote to Mr Zaher. In general terms, that was a letter aptly described as either containing legal advice of the type usually given by solicitors or recording advice of that nature or both. It was written in the language of lawyers. It referred to "our advice from counsel" and it spoke in terms of gathering evidence for the possible litigation. 27 Later Mr Zaher agreed upon some compromise with his lessor, and sought a refund of the $10,000 he had paid to the defendant. There is a dispute about that and the resolution of that dispute does not bear directly upon the questions to be decided now. 28 If the matter had to be decided, simply by reference to these documents and to the evidence of Mr Zaher and of the defendant, I would accept the evidence of Mr Zaher. But the plaintiff's case is far stronger than that. 29 On 19 October 2004, the defendant pleaded guilty to a charge upon indictment that, on 7 August 2002, by deception, namely falsely representing to Mr Zaher that he was a person legally permitted to practise as a solicitor, he dishonestly obtained for himself the sum of $10,000. That plea seems to me to effectively dispose of any question whether the defendant represented himself to Mr Zaher to be a person legally permitted to practice as a solicitor. 30 But there is also a pattern of conduct described by Mr Zaher and by Mr Gilles to which I will refer shortly and, in addition, there are the conflicts between the evidence of the defendant on the one hand, and the other witnesses in the case on the other hand, particularly as to the pattern of the defendant's conduct as to what he said to others about his status and how he held himself out to others about his status. 31 Mr Gilles is a solicitor of some 30 years' experience who acted for Mr Zaher's lessor. On 14 August 2002, the defendant wrote to each of Mr Gilles and the lessor's estate agent on the letterhead of Assi described earlier, signed in the way described earlier. The letters were substantially to the same effect, written in the language of solicitors commencing by saying that "we act for" Mr Zaher, referring to him as "our client", and asserting the exercise of the option to renew the lease. 32 On 16 August, Mr Gilles replied, addressing his letter to Messrs Assi Solicitors. Later there was a telephone conversation between Mr Gilles and the defendant discussing whether the option had been validly exercised. Mr Gilles said, and I accept, that he believed that the defendant was a solicitor acting for Mr Zaher and he explained why. He said that the defendant had never said that he was not a solicitor. 33 The plaintiff points persuasively to the concatenation of circumstances that were likely to have led Mr Zaher and Mr Gilles to infer, as they did, that the defendant was a solicitor. He told Mr Zaher he was a solicitor. He repeatedly and quite effectively used his degrees to show that he had legal qualifications and in circumstances such as would suggest that he was a solicitor. 34 He wrote letters and conducted conversations in relation to the dispute between lessee and lessor using the language of solicitors in such a way as to convey the impression that he was acting for Mr Zaher and that he represented Mr Zaher's interests in relation to the dispute. 35 He spoke to Mr Zaher about different kinds of legal work distinguishing between the legal work he did and the legal work he did not do and he communicated with both Mr Gilles and the estate agent as if he was a solicitor. He also charged Mr Zaher a fee. In the circumstances I think I should avoid making any finding about that, except to the extent necessary for the resolution of the present case. 36 As I said earlier, I accept the evidence of Mr Zaher about this, that is, I accept that the work that the defendant did for Mr Zaher was done for a fee. 37 The defendant said that he pleaded guilty to the charge I mentioned earlier as part of some plea-bargaining. Assuming that to be true, it does not take away the significance of the plea. It was an admission in the most serious of circumstances of the constituent elements of the charge. It was a plea made by someone with two Law Degrees and two other university degrees who had practised as a solicitor for some years at least. 38 The only inference that might reasonably have been drawn from the defendant's conduct by a reasonable person knowing of the material activities of the defendant was that he was acting as a solicitor and that he purported to provide legal services and thereby held himself out as a solicitor. 39 There is no question but that he did not have a practising certificate at the relevant times. I find that the first and second charges are proved. 40 The third, fourth, fifth and sixth charges concern the dealings of the defendant with Mr and Mrs Afram in relation to two separate transactions. In about late 1994, Mr and Mrs Afram met the defendant. He acted for Mr Afram in that he completed a protection visa application for him. According to Mrs Afram, he declined to represent her in relation to a dispute concerning the custody of a child by a former marriage, explaining that he did not do Family Law work, and he referred her to another lawyer. According to the defendant, he acted for her in a Family Law matter in 1996. From 1994 onwards, the defendant, from time to time, spoke to Mr Afram when Mr Afram had some legal question. 41 Whatever the true position concerning the dispute between Mrs Afram and the defendant as to whether he acted for her, it is clear enough that things were said and done during the period when the defendant had a practising certificate, leading Mr and Mrs Afram to believe, as was the fact, that he was a solicitor and was entitled to practise as a solicitor. 42 The transaction, the subject of the third and fourth charges, concerns a dispute between Mr and Mrs Afram and Mr Spinak, a solicitor, about the fees charged by Mr Spinak to Mr and Mrs Afram concerning some earlier litigation. It is common ground that the defendant spoke to Mr Spinak by telephone and later at a meeting and that, at the meeting, Mr Spinak agreed to reduce the fees that he had charged. 43 On the plaintiff's case, the defendant acted as solicitor for Mr and Mrs Afram and held himself out as a solicitor in doing this work for a fee, whilst on the defendant's case he "acted purely as a mediator/friend and not as a solicitor", and whilst Mr Afram gave him some money in respect of this work, this was not paid or sought as a fee. Mr and Mrs Afram say that the defendant did not tell them that he was not a solicitor and I accept their evidence, preferring it to that of the defendant. 44 I note that the defendant did not cross-examine Mrs Afram. 45 The plaintiff contends that the work that the defendant did in this connection for the fee that Mr and Mrs Afram speak about was work of the kind usually done by solicitors. Whilst I consider that this is more likely than not correct and that the defendant did the work in question for a fee, as Mr Afram said, I do not think that these matters have been proved beyond reasonable doubt. 46 Quite understandably, Mr Afram's account of what was said at the meeting that he, the defendant, and Mr Spinak attended, when agreement was reached for the reduction of the fees charged by Mr Spinak, is cast in terms of generalities, so that the necessary finding of proof beyond reasonable doubt cannot properly be made. I find that the third and fourth charges are not proved. 47 The fifth and sixth charges relate to a transaction concerning the proposed purchase of a residential property at Condell Park in the name of Mrs Afram. Mr and Mrs Afram negotiated with an estate agent, Mr Ayoub, about a possible purchase and, on a Saturday afternoon in October 2002, he called at their home with a partially completed form of contract. 48 They paid him $1,000 on account of the deposit and he asked Mr Afram for the name of Mrs Afram's solicitor. Mr Afram then telephoned the defendant in the presence of his wife. Mr and Mrs Afram described the conversation, or at least Mr Afram's part in it, in different words. Mr Afram said that he said to the defendant, "Do you know a lawyer who can do a conveyance for me?" He said that the defendant replied, "Yes, I can do it. I do conveyancing." 49 Mrs Afram said that she heard her husband say, "Joe, we are buying a house. Will you act as our solicitor in relation to the purchase?" On the defendant's version, he agreed to help the Aframs, but not as a solicitor and not for a fee. 50 Either the next day or on the following Monday, the defendant called at their home and had a conversation with them in which he spoke about the procedures involved, what expenses they would incur, what time frames would be involved and whether Mrs Afram should pay a deposit of 20 per cent of the purchase price as she was inclined to do or the ordinary 10 per cent. 51 After this conversation, the defendant took away with him the form of contract that Mr Ayoub left on the Saturday. That form had been signed by Mrs Afram. All that is in evidence is the front page of a conventional form of contract for the sale of land. There was a box in the form where there should have been inserted the name and address and other contact details of the purchaser's solicitor or the purchaser's licensed conveyancer. When Mr Ayoub saw Mr and Mrs Afram, he completed this box by inserting the name "Joe Assi & Company" and also "attention Joe Assi" and some other details, but did not mark the box so as to record whether Joe Assi & Company were the solicitors or the licensed conveyancers for the purchaser. The defendant was not a licensed conveyancer. 52 A complication of the case is that, although the first page of the contract was apt for a contract for the sale of land, it appears that, behind that first page, there was a form of contract apt for the sale of business. 53 The solicitor for the vendor was Mr Bouzanis. He took the defendant to be a solicitor and dealt with him on that basis. He wrote a series of letters addressed to Joe Assi & Company Solicitors and the defendant did not, on any occasion, until some time in January 2003, say that he was not a solicitor or that he was not a practising solicitor. 54 There is no dispute as to what happened until some time in January. According to the defendant, he then had a conversation with Val, a clerk or secretary in Mr Bouzanis's office, and said he was not a solicitor. This does not accord with the account of Mr Bouzanis which I prefer, but I doubt that this detail matters. 55 Initially, there were communications between Mr Bouzanis and Mr Assi, the defendant, generally of the kind which usually occur between solicitors for vendors and purchasers in what might be described as a common conveyancing transaction. Later, when a dispute arose, there were dealings between Mr Bouzanis and Mr Assi of the kind which usually occur between solicitors for vendors and purchasers in relation to a disputed conveyancing transaction. 56 Once again, it is not necessary to make any finding about what seems to be disputed concerning the sum of $103,000 said to have been paid by or on behalf of Mrs Afram or perhaps Mr and Mrs Afram, to the defendant. This sum evidently represented the payment of 20 per cent of the intended purchase price plus a sum for stamp duty, and for other expenses, including, according to Mr and Mrs Afram, a fee payable for the defendant. Because I do not need to make a finding about those matters for the purpose of resolving the present case, I do not do so. 57 I accept the evidence of Mr Bouzanis and I accept the evidence of Mr Afram. I regard them both as truthful and reliable witnesses. I repeat: Mrs Afram was not cross-examined. 58 Whenever there is a dispute between the evidence of Mr Bouzanis, Mr Afram and Mrs Afram, and the evidence of the defendant, I prefer the evidence of Mr Bouzanis or Mr or Mrs Afram. 59 During January 2003, the vendor raised with the Aframs a question of whether the defendant was a solicitor. Mr Afram said - and I accept - that he spoke to the defendant who said, "Don't listen to them. They are bullshitting." 60 At about the same time, Mr Bouzanis checked the position with the Law Society. Nevertheless, as the defendant points out, Mr Bouzanis continued to deal with him. I do not see that this point takes the defendant anywhere further forward. Mr Bouzanis had to deal with someone. 61 The plaintiff points to the number of matters that would reasonably have led Mr Afram, Mrs Afram and Mr Bouzanis to think, as they all did, that the defendant was a solicitor, properly practising as such. He told Mr Afram that he did conveyancing and later he rebutted the suggestion that he was not entitled to do that. Mr and Mrs Afram paid to the defendant, or in accordance with his advice, a large sum of money believing that he was a solicitor. 62 He attended at the Aframs' home in late October 2002, gave advice of the kind that a solicitor doing conveyancing work would give to clients with no prior experience in buying a property. He wrote to Mr Bouzanis noting his law degrees and using language such as lawyers usually use in conveyancing transactions. The defendant did nothing to contradict the impression that he was a solicitor, at least until some time in January 2003. He did nothing to contradict the impression obviously gained by Mr Bouzanis that he was a solicitor. 63 The case against the defendant on these matters is overwhelming and I find that the fifth and sixth charges have been proved. 64 The seventh and eighth charges relate to the defendant representing Mr Napoli, primarily in relation to a claim made against him under Division 8 of Part 2 of the Victims Support and Rehabilitation Act 1996, for the restitution of compensation paid to someone who had previously been assaulted by Mr Napoli. 65 The defendant had represented Mr Napoli in a Family Law context in 1997 and in relation to the assault charge in question in 1998. In 2001, Mr Napoli learnt of the claim for restitution, telephoned the defendant and then called upon him. 66 The defendant then gave Mr Napoli the business card I mentioned earlier, and Mr Napoli said that, on this occasion, he saw a framed certificate on the defendant's wall, he thought a certificate from the Law Society. 67 At the defendant's request, Mr Napoli had brought with him the letter demanding restitution. There was a conversation during which Mr Napoli says - and I accept - he asked the defendant to represent him and the defendant agreed. The defendant then advised Mr Napoli that there was a risk that he would be ordered to pay restitution and that Mr Napoli's home unit might be taken from him in order to satisfy the restitution order, and he advised Mr Napoli to create a trust in favour of his children so as to put the home unit property beyond the reach of his creditors. 68 Later the defendant prepared a form of trust deed. Mr Napoli says that, at the request of the defendant, he paid the defendant $11,240 on account of stamp duty in connection with the trust deed, and suggests that the defendant misappropriated that money and that a purported record of the payment of that sum for stamp duty is a forgery. I do not need to decide these matters and I do not attempt to do so. 69 I note, however, that the defendant gave to Mr Napoli two receipts on the note paper I described earlier, describing the money as held in trust. 70 The defendant takes the point that the trust deed is incomplete in that there was a blank space to be completed by inserting the name of a settlor and having the settlor execute the deed. 71 He attributes to Mr Napoli a hatred of Mr Napoli's former wife and of the victim of the assault that led to Mr Napoli being prepared to do anything rather than pay money to his former wife or to the victim, but it is not easy to see how that could have been correct, considering the claim that was then pending against Mr Napoli, not for payment to the victim, but for restitution in respect of the money previously paid to the victim out of the statutory fund. 72 In any event, the defendant says that he advised Mr Napoli that there was a good chance of reducing the amount in respect of which restitution would be ordered, and that he reached an agreement with Mr Napoli that he would appear for him on the hearing before the Victims Compensation Tribunal, and that whatever he saved out of the sum $24,000 then claimed against Mr Napoli would be the amount of the defendant's fee, and that if he did not succeed in reducing the amount of $24,000 then claimed, the defendant would charge no fee, and there would be no fee charged in respect of the trust deed. The defendant then witnessed Mr Napoli's signature to the deed. 73 The defendant wrote a letter to the manager of the Tribunal seeking an adjournment. This was on the letterhead entitled "Assi" that I described earlier, and the defendant's signature to the letter was followed by a listing of his degrees as I described earlier. The letter was written in the language usually used by solicitors, arguing a case for an adjournment and arguing for a reduction of the amount in respect of which an order for restitution was to be made, and demanding access to the file held by the tribunal. 74 On the day of the adjourned hearing Mr Napoli completed an affidavit setting out his financial circumstances and the defendant purported to witness that affidavit as a solicitor. As the plaintiff points out, only a solicitor with a practising certificate is authorised to act in this way. See the Oaths Act 1900 s27 (1). The defendant says that did he not appreciate that he had to have a practising certificate for this purpose, but this does not seem to me to be a good answer. The form of affidavit which he used required Mr Napoli's signature to be witnessed by a Justice of the Peace or by a solicitor and he completed it, so that he purported to witness it as a solicitor. He held himself out to be a solicitor and to be entitled to do that as a solicitor. 75 The defendant appeared on the hearing before the tribunal. His opponent, Mr Pinzuti, commenced by telling the presiding magistrate, Ms Grant, that the defendant, a solicitor, represented Mr Napoli. There was a pause, but the defendant said nothing to correct this misstatement. At a number of points thereafter Mr Pinzuti referred to the defendant as his learned friend and the magistrate referred to the defendant at one stage as Mr Napoli's counsel and at another stage to the defendant as Mr Napoli's solicitor. The defendant said nothing on any of these occasions to disabuse either the learned Magistrate or Mr Pinzuti of their misconception. The defendant argued the case as if he was a solicitor and succeeded in the sense that he persuaded the Magistrate that the amount of restitution should be only $12,500. He presented an argument about the law. 76 The defendant's conduct on this day was really an egregious breach both of the order made by Simpson J and of the law more generally. The defendant argued that it was not necessary for him to be a solicitor or to be a solicitor with a practising certificate in order that he be entitled to appear before the Tribunal. He said that he had looked up the statute before going to the Tribunal on that day. 77 The only relevant provision in the Victims Support and Rehabilitation Act which might lead someone such as the defendant to think that he was entitled to appear is section 38 which provides in brief that schedule 2 of the Act has effect. Clause 12 of the schedule provides in sub-clause 3 that an applicant for statutory compensation is entitled to be represented on any hearing under this Part by a legal practitioner or by leave of the Tribunal by an agent. Mr Napoli was not in the position of an applicant for statutory compensation, but that point can be put aside. Even if the defendant thought he was entitled to appear as an agent, he needed the leave of the Tribunal, and he did not seek it. Even if the statute is not the sole source of a right to appear as agent or otherwise as a non-lawyer, the defendant needed the leave of the Tribunal, and he did not seek it. To the contrary, the defendant wrote to the Tribunal before the hearing a letter on a letterhead and signed in such a way as to be holding himself out to be a solicitor. He completed a form for use in proceedings before the Tribunal, signing himself as a solicitor. When his appearance was announced on the basis that he was a solicitor he did nothing to disabuse Mr Pinzuti or the Magistrate. 78 I find that he both acted as a solicitor and held himself out as a solicitor and that the only inference that might reasonably have been drawn by any of Mr Napoli, Mr Pinzuti, or the learned magistrate, was that he was acting as a solicitor and holding himself out to be a solicitor, that is a solicitor with a practising certificate. 79 In the case of Mr Napoli there are further matters which I will mention if only briefly. He had known the defendant earlier as a solicitor with a practising certificate. I accept Mr Napoli's evidence that the defendant did not tell him that he was not entitled to so practise any longer. Mr Napoli also had had the defendant give him advice of the kind usually given by solicitors. The defendant drew the trust deed for him. The defendant took money from him on account of stamp duty and gave him a receipt prepared in a way which one usually finds with solicitors. I find that the seventh and eighth charges are proved. 80 The ninth and tenth charges concern Ms Hu. She was involved in a way not established by the evidence with some business involving selling flowers in restaurants and she met the defendant whilst so engaged. She gave him her telephone number and later he telephoned her. There is a difference between the two of them as to what was said in the initial conversation and then in the telephone conversation. But it is not in dispute that, at her invitation, he called at her home on the night of the telephone conversation and that a sexual relationship which lasted for two months or thereabouts started then, and either in the initial conversation at the restaurant or in the initial telephone conversation she discussed with him a dispute that she had with her former fiancé, Mr Theodossiou. There were, it seems, two separate strands to that dispute, one concerning what she described as money she gave him for an investment and the other a claim for property adjustment arising out of their de facto relationship. 81 In relation to the first of these disputes, Ms Hu was then represented by a Mr Colquhoun, solicitor, and in the second by a solicitor named James who worked for Mr Bouzanis, the solicitor for the vendor of the property that Mrs Afram contracted to buy. Ms Hu says that she believed from the beginning that the defendant was a solicitor and she trusted him. She says that he had told her at the restaurant that he was a solicitor and when asked his specialty in law he said, "Everything. Family law, Immigration." I should add that it is obvious that English is not Ms Hu's first language, nor for that matter is it the first language of Mr Napoli or Mr Afram. 82 On the day after the defendant went to the home of Ms Hu, she saw him at his office by appointment, that is, at his apartment in Market Street. She saw a desk there and a certificate on the wall that she thought established that he was a lawyer. The defendant conducted a property search from his computer and gave her a printout of a document, apparently recording details of the properties registered in the name of Mr Theodossiou. The defendant gave her a business card containing the word "Lawyer". There was a discussion about fees. Ms Hu quotes the defendant as saying that American lawyers would charge 30 per cent of the money the defendant recovered from Mr Theodossiou, but because he was Ms Hu's friend, he would only charge her 20 per cent, and she agreed. 83 The defendant's version is quite different. He says that he explained that whilst he was a lawyer he was not a solicitor or a barrister and that he could not officially act for her, and that he would help her reach a commercial arrangement with Mr Theodossiou whilst her current lawyers continued to represent her. His version about the conversation about fees is different but he agrees that he said he would do this work for 20 per cent of the money recovered. It is common ground that the defendant then negotiated with Mr Theodossiou. 84 On the defendant's case, Ms Hu was not happy with either of her solicitors but he urged her to continue to use them and said he was not a solicitor. He borrowed money from her and repaid it, and he negotiated with Mr Theodossiou on her behalf. Eventually, he says, he referred Ms Hu to another solicitor, Ms Sharah, who acted for Ms Hu. However, apart from the word of the defendant, all that the evidence shows that Ms Sharah did was to see Ms Hu once and to give to her a certificate under the provisions of section 47 (1)(d) of the Property (Relationships) Act 1984. I accept the evidence of Ms Hu and prefer it to that of the defendant. 85 On Ms Hu's evidence, the defendant said that he was a solicitor, gave her a card identifying himself as a lawyer and recording his law degrees, discussed her affairs in a way in which solicitors usually act, advised her about her affairs in such a way, asked her to see him in his office which was also his home and where there was displayed a certificate recording qualifications in law, spoke of being able to act for her in relation to her disputes with Mr Theodossiou, carried out a real property search, and at times spoke in terms of the technicalities of the litigation, all in the way usually to be found with solicitors. Generally speaking, he acted in such a way as to make a reasonable person in her position infer that he was a solicitor entitled to practise as such. In particular, I accept Ms Hu's evidence and reject the evidence of the defendant. As to the circumstances in which he came to have Ms Sharah give to Ms Hu the certificate I have mentioned, I find that he and not Ms Sharah advised Ms Hu about the settlement with Mr Theodossiou. I find the ninth and tenth charges proved. 86 The defendant acknowledged that he had designed his business cards. He agreed that the circumstances in which he had done that, the circumstances in which he dealt with his clients, that is, Mr Zaher, Mr and Mrs Afram, Mr Napoli and Ms Hu, coupled with the design of the cards and the certificates displayed on the wall of his office where that was relevant, and the giving of legal advice would create the overwhelming impression that he was a practising solicitor unless he communicated to the clients explicitly the fact that he was not. His case is that he did tell each of the five clients that he was not a practising solicitor. I do not accept this evidence. 87 He also said that at one stage he had changed the design of his business cards to remove the word "lawyer" from them as otherwise people seeing the cards might be misled into thinking that he was a practising solicitor or barrister. I can only say that that is obviously correct. At another stage he said that in his mind there was a clear distinction between his charging fees and charging legal fees. None of the clients I have mentioned said anything to the effect that this had been made clear to them. The defendant said at a number of points that he had done things that solicitors usually do; for example, expressing legal opinions, writing letters and so on, but he said that solicitors do not have a monopoly to do these things. That much is plainly right, but it does not answer the question posed in the case. 88 As I said a moment ago, I do not accept the defendant told his five clients that he was not a solicitor or not a practising solicitor. All five gave evidence to the contrary. It is plain, too, that he caused each of Mr Bouzanis, Mr Gilles, Mr Pinzuti, and Magistrate Grant to think that he was a solicitor or in the case of the learned magistrate either a solicitor or a barrister and entitled to practise as such. There seems to be a perfectly clear pattern to the defendant's conduct in such a way as to cause reasonable people dealing with him to think that he was a solicitor entitled to practise as such. 89 I make the declarations sought in paragraphs 1, 2, 5, 6, 7, 8, 9, and 10 of the summons, but not paragraphs 3 or 4. That leaves for consideration what orders if any ought to be made. (Adjournment) 90 In addition to the declarations I made this morning, I order the defendant to pay the plaintiff's costs of the proceedings. I make the following further orders: I order that Joseph Assi be restrained from (a) practising as a solicitor in the State of New South Wales and, (b) holding himself out to be a solicitor in New South Wales in circumstances where he does not hold a current practising certificate as required by section 25 of the Legal Profession Act 1987. 91 I direct the Registrar, when settling a minute of this order, to endorse the minute in the manner required by Part 42 rule 8 sub-rule 3. 92 I record for the purpose of Part 42 rule 8 sub-rule 6 (a), that the defendant, Joseph Assi, is now present in court. 93 Otherwise the proceedings are adjourned until 10am on 2 December. I certify that paragraphs 1 - 93 are a true copy of the reasons for judgment herein of the Hon. Acting Justice Brownie given on 22 November 2004 ___________________ Susan Piggott Associate 22 November 2004 Last Modified: 11/29/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.