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[2010] WASC 4

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LEGAL PRACTICE BOARD -v- GIRAUDO [2010]

WASC 4

CORAM : HALL J

HEARD : 9 & 14 OCTOBER 2009

DELIVERED : 14 JANUARY 2010

FILE NO/S : CIV 1631 of 2005

CIV 1632 of 2005

BETWEEN : LEGAL PRACTICE BOARD

Applicant

AND

CLINTON GIRAUDO
Respondent

Catchwords:
Contempt of court - Legal work done by a person not a legal practitioner -
Appropriate penalty

Legislation:
Legal Practitioners Act 1893 (WA), s 76, s 77, s 78, s 81

Result:
Contempts proved
Fines imposed

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Category: B

Representation:

Counsel:
Applicant : Mr A T Macknay
Respondent : In person

Solicitors:
Applicant : McCallum Donovan Sweeney
Respondent : In person

Case(s) referred to in judgment(s):

Attorney-General v Quill Wills Ltd (1990) 3 WAR 500

Barristers' Board v Palm Management Pty Ltd [1984] WAR 101
Cornall v Nagle [1995] 2 VR 188
D'Alessandro & D'Angelo (a firm) v Bouloudas (1994) 10 WAR 191
Heedes v Legal Practice Board [2005] WASCA 166
Kennedy v Lovell [2002] WASCA 226
Legal Practice Board v Adams [2001] WASC 78
Legal Practice Board v Clohessy [2006] WASC 21
Legal Practice Board v Ferguson [2006] WASC 250
Legal Practice Board v Frichot [2006] WASC 230
Legal Practice Board v Said (Unreported, WASC, Library No 940608,
31 October 1994)
Legal Practice Board v Taylor [2005] WASC 242
Legal Practice Board v Tee [2009] WASC 5
Legal Practice Board v Tilley [2006] WASC 73
Maxwell v Murphy (1957) 96 CLR 261
Rodway v The Queen (1990) 169 CLR 515
Wood v Staunton (No 5) (1996) 86 A Crim R 183

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1 HALL J: In 2001 and 2002 Adrian Domney conducted an automotive

repair business. There were two separate disputes at this time relating to
the business, both of which resulted in proceedings in the Local Court.
Mr Domney was assisted in regard to these proceedings by Clinton
Giraudo, the respondent. Mr Giraudo is not, and has never been, a legal
practitioner. The Legal Practice Board (the Board) alleges that the
assistance provided by Mr Giraudo involved doing things that can only be
lawfully done by a duly certificated legal practitioner and that his conduct
was, therefore, in contempt of court.

2 Mr Giraudo accepts that he prepared court documents and letters for

Mr Domney, but says that this was only done as a secretary or scribe. He
says that he gave no legal advice and that it was Mr Domney who
controlled what was put in writing. He also accepts that he attended
conferences with Mr Domney and others, but says that he did so only in a
clerical capacity. He says that he became an employee of the business
and wrote letters and attended conferences in that role.

3 The issues for determination are:

1. What did Mr Giraudo do in relation to each of the two sets of
proceedings?
2. Did he breach the Legal Practitioners Act 1893 (WA) (repealed)
by doing those things?
Nature of the proceedings
4 The Board commenced two sets of proceedings in this court alleging
that Mr Giraudo is guilty of contempt. CIV 1631 of 2005 relates to an
action brought in the Local Court at Fremantle and CIV 1632 of 2005
relates to an action brought in the Local Court at Joondalup. By consent
of the parties, both matters were heard together.

5 The amended originating motions allege one contempt in each case

with alternative bases of liability. In each case it is alleged that
Mr Giraudo directly or indirectly:
(a) defended proceedings for Euro Automotives Australia
(Mr Domney's business) (Fremantle) (or carried on proceedings -
Joondalup);

(b) alternatively, acted as a solicitor for Euro Automotives Australia;

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(c) alternatively, performed, carried out or engaged in work in

connection with the administration of law in obtaining and acting
on instructions from Mr Domney;

(d) alternatively, drew or prepared or caused to be drawn or prepared

documents relating to the personal estate of Mr Domney, namely
letters; and
(e) alternatively, drew or prepared or caused to be drawn or prepared
documents relating to the court proceedings.
6 The wording of the allegations is drawn from the provisions of the
Legal Practitioners Act 1893 (WA) (repealed). That Act was in operation
at the relevant time and contains various provisions to the effect that legal
work may only be performed by a certificated legal practitioner.
7 The Legal Practitioners Act 1893 was superseded by the Legal
Practice Act 2003 which, in turn, was superseded by the Legal Profession
Act 2008 (WA) which came into operation on 1 March 2009. The repeal
of the Legal Practitioners Act 1893 does not affect the previous operation
of that Act or obligations created prior to the repeal: s 37(1)
Interpretation Act 1984 (WA). Changes to statute laws relating to rights
and liabilities do not operate retrospectively other than in relation to
matters of practice and procedure: Maxwell v Murphy (1957)
96 CLR 261; and Rodway v The Queen (1990) 169 CLR 515.
Accordingly, the Legal Practitioners Act 1893 is the relevant statute in
determining whether Mr Giraudo has committed contempts of court:
Legal Practice Board v Taylor [2005] WASC 242.

8 In any event, the present proceedings were commenced before the

Legal Profession Act 2008 became operational and s 607 of that Act
provides that proceedings which were continuing at the time it came into
operation continue to have effect under the Legal Profession Act 2008
subject to the power of this court to direct how the proceedings should be
continued. Hereinafter reference to the relevant provisions will be to
those of the Legal Practitioners Act 1893 (the Act) unless otherwise
indicated.
What legal work may only be done by a lawyer?
9 Section 76 provides that no person other than a certificated legal
practitioner shall act as a solicitor or carry on legal proceedings.
Section 77 provides that no person other than a certificated practitioner
shall directly or indirectly perform or carry out or be engaged in any work

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in connection with the administration of the law or draw or prepare any

deed, instrument, or writing relating to or any matter dealing with or
affecting real or personal estate or any proceedings at law or in equity.
Section 78 provides that nothing in s 77 shall extend to make any person
liable to any penalty if such person satisfies the court 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.
Section 81 provides that every person who acts contrary to the terms of
the Act is guilty of a contempt of the Supreme Court and may be dealt
with accordingly by the court on the motion of the Board.
10 Matters of this type are dealt with as civil proceedings and the
procedures relevant to such proceedings apply: Heedes v Legal Practice
Board [2005] WASCA 166. However, the standard of proof is beyond
reasonable doubt: Heedes v Legal Practice Board; and Cornall v Nagle
[1995] 2 VR 188.
11 The purpose of s 76 and s 77 is to protect members of the public by
ensuring that legal work is carried out only by those persons who have
obtained a proper legal education, leading to appropriate qualifications
and who are subject to the disciplinary supervision of the courts in their
practice of the law: D'Alessandro & D'Angelo (a firm) v Bouloudas
(1994) 10 WAR 191, 207 (Malcolm CJ).
12 Section 77 prohibits anyone other than a certificated practitioner
from engaging in work in connection with 'the administration of law'.
That phrase was considered in Barristers' Board v Palm Management
Pty Ltd [1984] WAR 101. In that case, Brinsden J was of the view that
'administration of law' is to be read as meaning 'the practice of law' or 'the
practice of the law'. His Honour said that the practice of law includes the
giving of legal advice and counsel to others as to their rights and
obligations under the law and the preparation of legal instruments. If the
giving of advice and performance of services affects important rights of a
person under the law and requires some skill and knowledge of the law
greater than that possessed by the average citizen, then the advice and
services given constitute the practice of the law: Legal Practice Board v
Adams [2001] WASC 78 [28] (Hasluck J).

13 Work of a merely clerical kind such as filling out blanks in a printed

form or drawing instruments of a generally recognised type that does not
involve the determination of the legal effect of special facts and
conditions should not be regarded as legal work. However, that is to be
distinguished from the situation where an instrument is shaped from a

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mass of facts and conditions, the legal effect of which must be carefully
determined by a mind trained in the existing laws in order to ensure a
specific result and to guard against others. In such a case more than the
knowledge of the layman is required and a charge for such services brings
it within the practice of the law: Barristers' Board v Palm Management
[108] (Brinsden J).
14 Where a person, in preparing documents, exercises his mind as to
what is the appropriate form of words to accommodate the particular case,
this can be regarded as drawing or preparing a legal document: Cornall v
Nagle. A process of that kind goes beyond mechanical or clerical tasks
and is of a kind required to be performed by a solicitor: Attorney-General
v Quill Wills Ltd (1990) 3 WAR 500; and Legal Practice Board v Said
(Unreported, WASC, Library No 940608, 31 October 1994).
15 In Legal Practice Board v Adams the respondent prepared two writs
to commence actions in the Supreme Court. Hasluck J noted that the
respondent had played an active role in seeking to understand the facts
underlying the dispute and in then refining the claims in the form of draft
statements of claim. The respondent in that case purported to take
instructions and then gave a shape to the facts and matters conveyed to
him so that a claim could be advanced against a third party. His Honour
noted that the respondent exercised skill in formulating the statements of
claim in a way that would present the claims in their best light. This was
not acting in a mechanical or clerical manner but was exercising a degree
of skill as to what matters should be relied upon by the claimants in order
to obtain relief. His Honour held that a person acting essentially as a
solicitor who was the guiding intelligence behind the issue of a writ will
be regarded as indirectly suing out the writ.

The Fremantle proceedings - CIV 1631 of 2005

16 The Board relied upon an affidavit of Mr Domney who was called
and cross-examined by Mr Giraudo. Mr Domney's evidence was that he
had first met Mr Giraudo in about May 2001 after being referred to him as
a patent attorney. At that time Mr Domney was seeking to obtain a patent
for a water filter that he had developed. At the first meeting Mr Giraudo
told Mr Domney that he was involved in 'the legal business'. He told
Mr Domney that he was a patent attorney and an international patent
consultant and that he could therefore give legal advice. Mr Domney then
told Mr Giraudo about a number of debts that were owed to him.
Mr Giraudo advised that he could help Mr Domney recover these debts
and prepare all the necessary court documents.

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17 Later the same year, in or around September 2001, Mr Domney had a

dispute with a firm of customs brokers. The dispute related to costs for
the importation and cleaning of a shipment of mechanical parts.
Mr Domney asked Mr Giraudo if he could help in resolving the dispute
and Mr Giraudo said that he could. Mr Giraudo then prepared a letter to
the customs brokers dated 21 September 2001. The text of this letter is
important. It reads as follows:
I represent Euro Automobil Australia and I am today in receipt of your
letter dated September 20, 2001 per Jean Galea. Adrian has engaged me to
help resolve this matter.

I have been working through the facts and the issues to seek to determine
exactly what has happened and who is liable for what. There are seven
parties involved here and I am still unravelling the details.

I have further questions for Adrian but he is in a meeting. Until I have the
answers to these questions I am not in a position to give you a formal
reply. However, I am giving this close, careful and immed iate attention.

A formal reply will be sent to you on Monday 24 September 2001 so

kindly do not place this account in the hands of your solicitors at this time.

18 Mr Giraudo filed a responding affidavit in the present proceedings

and gave evidence denying that he had ever represented himself as having
legal skills. He said that he had referred to himself as 'an intellectual
property consultant' and accepted that he had told Mr Domney that he
might be able to help him recover a debt but denied saying that he could
prepare any court documents.

19 When cross-examined regarding the letter of 21 September 2001

Mr Giraudo accepted that he had prepared and signed the letter. When
asked about his use of the word 'represent' he said that he had used it in a
lay person's sense 'in the nature of mediating between the two parties to
resolve their dispute'. He said that his purpose was to determine the facts
and not any further than that. He said that all he intended to do with the
facts was to document them so that the two parties could see what the
truth was and then be able to arrive at their own conclusion as to who was
responsible for what.
20 These claims are not consistent with the terms of the letter. The
reference to Mr Giraudo being engaged to help resolve the matter strongly
suggests that he was to do more than merely record facts. As he makes
clear in the second paragraph of the letter, as well as determining exactly
what had happened, he had also been engaged to determine issues of

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liability. I do not accept Mr Giraudo's evidence as to his limited role. In

my view, his role from the outset was more significant than merely a
clerical one. The nature of that role is made clear by subsequent
documents.
21 On 24 September 2001 Mr Giraudo wrote a further letter to the
customs brokers. In this letter he set out under a heading 'Background' the
relevant facts in regard to the dispute. Then, under the heading 'The
Issues' he set out a number of propositions relating to liability. These
include asserting that a third party had assumed liability for the shipment
of parts and that the appearance of Mr Domney's business name on
shipping documents did not override the liability of the third party. He
asserted that Mr Domney's business had no liability in respect of
quarantine costs and that those costs were the responsibility of either the
third party or of a business in Malaysia that had sold and consigned the
parts. In concluding the letter he referred to Mr Domney's business as his
client.

22 This letter goes well beyond merely recording the relevant facts. It
considers and makes assertions in respect of the legal consequences of
those facts. It is consistent with Mr Giraudo providing a legal analysis
beyond that which would be expected of a lay person.

23 In evidence, Mr Giraudo accepted that the matters under the heading

'The Issues' were contentions that had been drawn from the facts but he
claimed that these were contentions that had simply been dictated to him
by Mr Domney. He said he referred to Mr Domney as his client because
he saw himself as an intellectual property consultant. He accepted that
this matter had nothing to do with intellectual property but said that he
simply chose to use language adapted from his experience as a patent
attorney when he wrote the letter.
24 I do not accept the evidence of Mr Giraudo in this regard. In my
view it is plain that in this letter he was representing his views as to legal
issues on behalf of Mr Domney. His use of the word 'client' was intended
to give the impression that Mr Giraudo was representing Mr Domney in
respect of this legal dispute and that he had authority to do so.

25 The customs brokers instructed solicitors who wrote a letter of

demand to Mr Domney. In response, Mr Giraudo wrote to the solicitors
on 15 October 2001. In that letter he stated:

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I represent Euro Automotive Services Australia and have been asked to

deal with the matters raised in your letter. Please send all further
correspondence in this matter to me.

26 Mr Giraudo maintained in evidence that he was not using the word

'represent' to convey that he was providing any legal services. When it
was put to Mr Giraudo that the letter makes no reference to him being a
mediator he said that he would draft the letter differently if he had his
time again. He said he was only trying to assist Mr Domney and gave no
thought to any trouble that he might get himself into. He accepted,
however, that he charged Mr Domney for his services in writing these
letters and that it was the only income that he had at that time. The letter
of 15 October 2001 goes on to state that Mr Domney's business denies
liability in relation to the matter. Again, Mr Giraudo claimed that in
making this statement he was simply putting what Mr Domney had told
him.
27 In my view, it is absurd for Mr Giraudo to assert that he was only
acting as an amanuensis for Mr Domney. The plain meaning of the letter
is that Mr Giraudo was conveying his own views, albeit on behalf of
Mr Domney. It is clear that Mr Domney was relying on Mr Giraudo to
contribute his own skills and abilities in endeavouring to resolve the legal
dispute.

28 On 16 October 2001 the solicitors for the customs brokers wrote to

Mr Giraudo and asked him to make clear in what capacity he was
representing Mr Domney's business. On 19 October 2001 Mr Giraudo
wrote to Mr Domney attaching a copy of the solicitors' letter and setting
out a number of options for dealing with the dispute. Those options were
to sue the third party; pay the customs brokers the money they were
seeking; or fight the legal action that the customs brokers were
threatening. He then stated that he was not skilled or qualified to assist in
court matters. He then recommended making an approach to the third
party to accept liability and attached a draft letter to the third party for that
purpose. When it was put to Mr Giraudo in cross-examination that in this
letter he was suggesting a strategy for dealing with the claim that had been
made against Mr Domney, he said:
I suppose I was conveying what I would do in attempting to resolve the
matter and again arriving at the truth at what had happened.

29 Mr Giraudo accepted that the letter set out options and a

recommendation but said that his purpose was to find a solution based
upon the facts and to use a logical approach to see what the various

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options may be. He said that with the benefit of hindsight he would not
choose to write a letter like this again and that the letter was poorly
crafted. By this I took Mr Giraudo to mean that, whilst the letter might
give the impression of providing legal advice, that was not his intention.
30 Although Mr Giraudo persistently denied that the letter of
19 October 2001 contained any advice of a legal nature, it is my view that
that evidence is entirely inconsistent with the words of the letter. The
letter gives advice for resolving a legal dispute and shows an appreciation
of the fact that Mr Domney was likely to require and rely upon that
advice. As to the reference in the letter to not being skilled or qualified to
assist with court proceedings, this only aggravates the circumstances by
showing that Mr Giraudo was conscious of the need for qualifications.
The best inference that could be drawn for him is that he may have been
mistaken as to where the boundary lay regarding the need for
qualifications. However, subsequent conduct shows that he did not feel
constrained from continuing to assist Mr Domney when court proceedings
were commenced by the customs brokers.
31 On the same day as his letter to Mr Domney, 19 October 2001,
Mr Giraudo also wrote to the solicitors for the customs brokers. In that
letter he responded to the request for advice as to the capacity in which he
was acting. He stated:
I am a consultant helping Mr Domney in a number of matters that have
arisen from his business dealings with Malaysia. My purpose is to resolve
all of these matters.

32 He then referred to a need to receive 'further instructions' from

Mr Domney. He went on to refer to liability and to suggest that a third
party was responsible for the shipment and not Mr Domney.

33 It would appear that there was an offer to the customs brokers to pay
part of the amount that they were seeking and on 24 October 2001
Mr Giraudo wrote to the solicitors for the customs brokers confirming the
nature of the offer. In particular, he stated that the offer was not an
acceptance of liability for the total amount sought and referred again to
the assertion that the third party was liable. He then stated:
In our view the existence of Mr Domney's name on the shipment
documents is insufficient to rest liability with him given the other facts in
this case. What then is the substance of your case? If you have any
precedent in this matter kindly refer to it in your reply. Failing receipt of
any compelling law to support your case we will be defending any suit that
you may bring.

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34 In the final paragraph of the letter Mr Giraudo refers to the fact that
the solicitors had issued a summons before receiving his letter of
16 October and that he intended to bring that to the attention of the court
in the consideration of costs.
35 Again, the only reasonable interpretation of this letter is that it is
making representations as to the law. These are representations being
made by Mr Giraudo, albeit on behalf of Mr Domney. There is nothing to
suggest that Mr Domney is the author of the letter, quite the contrary.
Furthermore, by inviting the lawyers for the customs brokers to provide
the legal basis for their client's claim and any 'precedent' that supports it,
Mr Giraudo is seeking to argue the legal merits of the dispute.

36 The summons issued by the solicitors for the customs brokers was
filed in the Fremantle Local Court and a pre-trial conference was held
there. Mr Giraudo attended this pre-trial conference with Mr Domney.
When asked in cross-examination about his role he said:
In my mind I wasn't there to negotiate for Adrian; he was there to negotiate
for himself, and indeed he did. I was there to find out more of what the
position of [the customs brokers] was because it wasn't clear to me. They
weren't communicating with me as much as to what their side of the
situation was, so I wasn't able to help Adrian come to some kind of
settlement in the matter. So I was looking for any way that I could sit
down with them to learn what their problem was (ts 91).

37 When asked what he was going to do when the customs brokers

stated their position at the pre-trial conference he said he was going to do
nothing, because that had nothing to do with him. He said he simply
wanted to act as a catalyst and naively believed that he could achieve that.
He said he did not say anything at the pre-trial conference other than
answering a question which came from the presiding officer as to whether
he was an employee or a solicitor. He said that he denied being a solicitor
but asked to remain present because Mr Domney would ask him after the
meeting how he felt about what had occurred. I then asked Mr Giraudo
the following questions:
Why did you think he would ask you about what had been said?---Because
it seemed to me that he would ask me about a lot of things that he was
doing, so for that reason I believed that he would probably ask me, and
also I wished to remain in that room so I could hear what was being said so
I could find out more of the other side of the dispute.

But are you, by that, conceding that you knew Mr Domney would look to
you for advice in regards to what had occurred at the pre-trial
conference?---Simply my take on it, my opinion, my feelings about what

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had been said, more to the extent of if something was to happen next - if
Adrian wasn't aware of what had happened in the pre-trial conference, then
I would not be in a position to be able to assist Adrian any further.

As to what might happen next. Is that what you are saying?---Adrian

wanted me to stay in that room and it was very clear to me that that's what
he wanted to happen. I mean, I was sitting there and the magistrate asked -
sorry, the clerk asked his questions and he was going to eject me from the
room, but I could see that Adrian wanted me to stay in that room so I could
hear what had been said (ts 92 - 93).

38 Despite Mr Giraudo's valiant attempts to portray his presence at the

pre-trial conference as being only that of a passive observer, it is apparent
that he was there to assist Mr Domney and fully expected that
Mr Domney would seek his advice as to how he should proceed. This
reflects both the role played by Mr Giraudo and that Mr Domney relied
upon him. He was not an impartial observer, but an advisor on how to
resolve this legal dispute.
39 In January 2002 Mr Giraudo prepared an eight page court document
entitled 'Particulars of Defence' and a three page document entitled
'Chamber Summons'. He said that in preparing these documents he used
other documents he had seen as precedents to obtain the necessary format
for the Local Court. Mr Giraudo said that the contents of these documents
reflected what Mr Domney had told him and that his only role was to
place the factual matters into a chronological order. He said he spent
many hours with Mr Domney getting the details correct. It was put to
Mr Giraudo that he was also assessing the issue of liability and in
particular whether Mr Domney was liable and he said:
Most likely. It seemed to me, as I said before, there were things that
Adrian wasn't telling me and it seemed that most likely he was more
involved in what had happened than he was telling me.

I'm just asking you what you were doing and what I am suggesting to you
is that on 21 September you were working through the facts and the issues
to seek to determine exactly what had happened and who was liable for
what?---That's what it says, and I was undertaking all of that with Adrian
to work out those details.

Including the issue of forming a view as to who was liable for

what?---That's true, and it's something that Adrian and I were doing
together (ts 115).

40 Throughout his evidence, Mr Giraudo appeared to be under the

mistaken impression that if all of the factual material upon which the
letters and documents he created were based came from Mr Domney, his

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role could be described as secretarial in nature. In truth, however, it was

clear from the evidence that whilst Mr Domney had provided the factual
history, Mr Giraudo had placed that history into a logical format; had
drawn conclusions as to the legal consequences; and had given advice and
made recommendations in regard to those consequences.

41 Whilst Mr Domney accepted that he had reviewed some of the

documents and confirmed their correctness, it is apparent that this was in
regards to the factual details. Mr Domney said in evidence, and I accept,
that he was unfamiliar with court documents and relied upon the advice of
Mr Giraudo.
42 It was no answer to the Board's allegations for Mr Giraudo to say
that he was not the sole author of the documents which he prepared in the
sense that Mr Domney had some input into them. By analogy where a
lawyer acts upon the instructions of his or her client, the client provides
some input into the documents that the lawyer prepares. That does not
mean that the client is the author of the documents. The important
distinction is that a lawyer applies some independent skill in how to
present the material provided to him or her by his client and in giving
advice and making representations as to the legal consequences.
Mr Giraudo acted in a similar way in respect of Mr Domney.

43 Whether the documents were adequately prepared and whether the

advice given was correct or not is not to the point. In the chamber
summons, Mr Giraudo recorded that he was helping Mr Domney albeit
that he was not a lawyer. The chamber summons also stated that neither
Mr Giraudo nor Mr Domney were very familiar with the procedures of the
Local Court. None of that detracts from what Mr Giraudo did.
44 On 16 April 2002 Mr Giraudo wrote to the customs brokers and set
out an offer on behalf of Mr Domney to settle the proceedings.
Subsequently on 10, 13 and 17 June, Mr Giraudo wrote to the solicitors
again conveying an offer to settle the proceedings. Each of those letters
was marked 'without prejudice'. Mr Giraudo said he used those words
because he had seen them on solicitors' letters when had worked as a
patent attorney and believed them to be appropriate, though he had no real
understanding of their meaning or effect. In each of these letters he uses
the word 'instructed' in referring to the offer. Again, although he denies
that the use of this word was intended to convey that he was in any sense
acting as a legal representative and asserts that the word was poorly
chosen, when viewed in the context of his conduct the word was entirely
apt.

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45 Mr Giraudo issued three invoices to Mr Domney dated 28 December

2001, and two of 15 May 2002. There is some overlap and the invoices
also include matters other than the Fremantle court proceedings. In
relation to the Fremantle matter the total amount charged by Mr Giraudo
is approximately $1,125 (not including GST or disbursements).

46 The invoices contain narrations as to the services provided. Those

narrations put beyond doubt the nature of the work that Mr Giraudo did.
For example, in the 28 December 2001 invoice, there is reference to
services in discussing court matters; in preparing letters and advising
Mr Domney in respect of them; in preparing and lodging the particulars of
defence; and in receiving and considering letters from the solicitors of the
customs brokers.
47 On the basis of the evidence I find that Mr Giraudo was not a duly
certificated practitioner at any material time (a fact he does not dispute).
He held himself out as acting on behalf of Mr Domney in the Fremantle
proceedings and corresponded with both the customs brokers and their
solicitors, including making representation as to the law and its
application. He reviewed and prepared court documents and attended to
their filing and service. He gave advice to Mr Domney regarding the
options available to him and made recommendations as to the best course.
He attended a pre-trial conference with the intention of thereafter advising
Mr Domney. He made offers to settle the proceedings on Mr Domney's
behalf and held himself out as Mr Domney's independent advisor in this
regard. He met with Mr Domney on frequent occasions and did so in
order to obtain instructions. He acted on those instructions in relation the
proceedings. He provided these services to Mr Domney for reward.
48 In the circumstances the only reasonable inference that can be drawn
is that Mr Giraudo defended the local court proceedings for Mr Domney's
business. I am satisfied beyond reasonable doubt that he was acting
essentially in the role of a solicitor who was the guiding intelligence
behind the defence. In doing so, he breached s 76(1) of the Act and
ground 1(a) of the amended originating motion is made out.
49 The matters I have already referred to also establish that Mr Giraudo
acted as a solicitor in the Fremantle proceedings by, for example,
providing legal advice for reward; preparing court documents; and
advancing offers of settlement. A person may be found to have acted as a
solicitor by doing something which, although not required to be done
exclusively by a solicitor, is usually done by a solicitor and by doing it in
such a way as to justify the inference that the person doing it is a solicitor:

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Cornall v Nagle (210 - 211). This also involves a breach of s 76 and,

were it necessary to do so, I would find that the alternative ground 1(b) of
the amended originating motion is proven beyond reasonable doubt.

50 I find that Mr Giraudo obtained and acted upon instructions from

Mr Domney in defending the Fremantle proceedings. Since the
administration of law includes representing another before the courts and
giving legal advice in regard to the preparation of legal instruments, I am
satisfied beyond reasonable doubt that Mr Giraudo performed work in
connection with the administration of law and is therefore in breach of
s 77 of the Act. Accordingly, if it were necessary to do so, I would find
ground 1(c) of the amended originating motion proven.

51 Mr Giraudo drew and prepared writings in the form of letters that

related to Mr Domney's alleged liability to the customs brokers. These
letters, in particular those of 24 September 2001, 15 October 2001,
19 October 2001 and 24 October 2001, evidently required the use of the
intellect to compose them. They could not reasonably be described as
letters dictated by Mr Domney. Accordingly, I am satisfied beyond
reasonable doubt that Mr Giraudo drew or prepared letters affecting the
personal estate or interest of another person contrary to s 77 of the Act
and that ground 1(d) of the amended originating motion is made out.

52 In the course of carrying out instructions from Mr Domney,

Mr Giraudo prepared the particulars of defence and chamber summons
dated 18 January 2002 relating to proceedings in the Local Court. Again,
I find that this work on the part of Mr Giraudo involved the exercise of the
intellect and was not merely a secretarial task. In preparing these
documents he arranged the information and presented it with a view to
advancing the case for Mr Domney. He was therefore in breach of s 77 of
the Act and were it necessary to do so I would find that the alternative
ground in the amended originating motion, ground 1(e), is established
beyond reasonable doubt.
The Joondalup proceedings - CIV 1632 of 2005
53 In December 2001 to January 2002, Mr Domney undertook
mechanical repairs on a car owned by a Mr Bowen. There was a dispute
regarding payment and in about February or March 2002 Mr Domney
issued a summons in the Local Court at Joondalup. On 9 April 2002
Mr Domney received a letter from Mr Bowen's solicitors advising that the
summons was to be defended. He then requested Mr Giraudo to take over
the conduct of the summons and represent him in the proceedings.

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54 On 16 April 2002 Mr Giraudo wrote to the solicitors acting for

Mr Bowen and stated that he was an employee of Mr Domney's business
and had been delegated to handle this matter. It would appear that the
idea of Mr Giraudo being an employee arose out of the question that was
put by the clerk at the pre-trial conference in relation to the Fremantle
matter regarding Mr Giraudo's status. Mr Giraudo said that he and
Mr Domney discussed that if he was an employee he would be able to
provide more of the assistance that Mr Domney wanted. It would also
provide Mr Giraudo with a basis for attending pre-trial conferences.

55 Other than Mr Giraudo's assertions that he was an employee, there is

little objective evidence to support that claim. In fact, the evidence is very
much against it. All of the letters that Mr Giraudo wrote are on his
personal letterhead, some of which bore the title 'Intellectual Property
Consultant' and he was not paid as an employee. In fact, for both the
Fremantle matter and the Joondalup matter Mr Giraudo issued invoices to
Mr Domney that bore an ABN number and charged GST. To the extent it
is necessary to do so, I find that Mr Giraudo was not an employee in
providing services to Mr Domney in regard to the Fremantle and
Joondalup proceedings.
56 On 9 May 2002 Mr Giraudo prepared and filed a document entitled
'Full Particulars of Claim'. The document, whilst signed by Mr Domney
for the applicant, states that it was prepared by Mr Giraudo and gives his
home address. In evidence Mr Giraudo said that he was not the sole
author of this document and that it was prepared with considerable input
from Mr Domney. He said that the process was very similar to that in
relation to the Fremantle proceedings in that he had extensive discussions
with Mr Domney to determine the relevant facts and to set them down in
writing. He says that it was Mr Domney who chose what to put in and
what not to put in. On the other hand, Mr Domney says that the document
was drafted for him by Mr Giraudo without any input from him.
57 Similar conflicting evidence is given in regards to a defence, set-off
and counterclaim that was also prepared and filed in the Joondalup Local
Court. It is not my understanding that Mr Domney intended to suggest
that he provided no information at all to Mr Giraudo rather, as he accepted
in evidence, he provided the raw information that enabled Mr Giraudo to
prepare these documents. I am however satisfied that it was Mr Giraudo
that chose the format and wording that is contained in the documents and
that in doing so he intended to apply the type of skill and judgment that
would be utilised by a solicitor.

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58 On 2 July 2002 Mr Giraudo wrote to the solicitors for Mr Bowen in

regard to discovery. An affidavit of discovery had been filed by the
defendant in the proceedings and the letter made reference to that
affidavit. The letter asserted that discovery was not complete and that a
25 page expert report relating to the engine that had been repaired had not
been provided. The letter then asks for 'further and better discovery'.
Mr Giraudo conceded that those words were his and that he had seen
those words somewhere before and believed they were appropriate in the
circumstances.

59 The letter then goes on to state:

With regard to the filing of a fresh defence kindly note that at the pre-trial
conference the Clerk of Courts was prepared to accept the defence as
lodged as the full particulars of defence. We suggested to the Clerk that
any decent solicitor would wish to have the opportunity to correct the
defence as lodged since, in our opinion, it was misleading and that any
solicitor would not wish to make misleading statements to the court.
Therefore, it was upon our insistence that the defendant be given an
opportunity to correct the defence.

As a professional courtesy, in the interest of serving the public interest and

not taking advantage of technicalities we are prepared to allow you to
lodge a fresh Defence and/or Counterclaim. We will of course expect the
same treatment, courtesy and lenience from you - quid pro quo.

With regard to the issue to filing a new defence we discussed this with you
on May 23 when I served our discovery and Full Particulars of Claim on
you. Why did you not act on the new defence at that time? When will
your fresh Defence and/or Counterclaim be lodged?

We are sure that you will now act diligently to complete the fresh Defence
and/or Counterclaim, and provide us with access to the physical evidence
as requested hereinabove forthwith.

60 Although Mr Giraudo denied that by this letter he was assisting

Mr Domney by dealing with the defendant's lawyers in regards to the
legal proceedings on matters of procedure and process, the letter is not
capable of any other reasonable interpretation.
61 Mr Giraudo issued two invoices on 15 May 2002 in relation to the
Joondalup matter which also relate to the Fremantle matter and other
matters. In relation to the Joondalup matter the amount charged was
approximately $850 (not including GST or disbursements). Again, the
wording of the invoices reflects the real nature of the work undertaken as
extending well beyond the secretarial role claimed by Mr Giraudo.

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62 Whilst Mr Giraudo's conduct in relation to the Joondalup matter was

more limited than in the Fremantle matter, I nonetheless find that he did
undertake work of a significant legal type whilst not a duly certificated
legal practitioner. In particular, he wrote to solicitors for the defendant
stating that he was handling the matter on behalf of Mr Domney's
business. He drafted, amended, lodged and served court documents on
behalf of Mr Domney. He met with Mr Domney to obtain instructions
and acted upon those instructions in prosecuting the Joondalup
proceedings. He charged Mr Domney for these services.

63 Accordingly, I find beyond reasonable doubt that Mr Giraudo was

acting essentially as a solicitor who was the guiding intelligence behind
the prosecution of the Joondalup proceedings and was therefore carrying
on those proceedings contrary to s 76 of the Act. Accordingly,
ground 1(a) of the amended originating motion is made out.

64 For similar reasons, were it necessary to do, I would find that each of
the alternatives in ground 1(b) - (e) is also established beyond reasonable
doubt.
65 I should note that at the hearing of this matter Mr Giraudo submitted
that Mr Domney should not be believed. He cross-examined Mr Domney
and also relied upon affidavits of Mr Robert Smith regarding unrelated
business dealings. Much of this evidence was excluded as being
irrelevant. To the extent that Mr Domney's credibility was in issue I
found him to be a truthful witness. In any event my findings in this matter
rely almost entirely on the documents (that were not in dispute).

Conclusion
66 In respect of each of CIV 1631 of 2005 and CIV 1632 of 2005, I
have found that Mr Giraudo breached s 76 and s 77 of the Act.
Accordingly, the Board is entitled to the relief sought in the amended
originating motion alleging contempt of court and Mr Giraudo must be
punished for contempt of the Supreme Court of Western Australia in the
manner allowed for by s 81.

Penalties
67 Under the Legal Practitioners Act 1893, the penalty was at large:
Legal Practice Board v Ferguson [2006] WASC 250 [5]. Section 81
provided that a person guilty of contempt 'may be dealt with accordingly'.
Under the Legal Practice Act 2003 the maximum penalty for a breach of
the equivalent provision was a fine of $10,000 but the penalty for

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contempt remained at large. Under s 12(2) of the Legal Profession Act

2008 the maximum penalty for a breach of the relevant provision is
$20,000.

68 The Sentencing Act 1995 (WA) does not apply to punishment for a
contempt of court: see s 3(3)(a). However, it is appropriate that the court
should give consideration to sentencing principles in the Sentencing Act
when dealing with a contempt of this nature: Kennedy v Lovell [2002]
WASCA 226 [6] (Malcolm CJ), [48] (Murray J), [55] (Steytler J); Legal
Practice Board v Frichot [2006] WASC 230; and Legal Practice Board v
Tee [2009] WASC 5.

69 Having regard to the principles set out in s 6 of the Sentencing Act,

any penalty imposed must be commensurate with the seriousness of the
offence. When imposing a fine, the court should take into account as far
as practicable the means of the offender and the extent to which the
payment of a fine will burden the offender: s 53 Sentencing Act.
70 In Wood v Staunton (No 5) (1996) 86 A Crim R 183, 185
(Dunford J) some of the factors relevant to imposing penalty for contempt
were set out:

1. the seriousness of the contempt proved;

2. whether the contemnor was aware of the consequences to himself
of what he did;
3. the actual consequences of the contempt on the relevant trial or
inquiry;
4. whether the contempt was committed in the context of serious
crime;
5. the reason for the contempt;
6. whether the contemnor has received any benefit by indicating an
intention to give evidence;
7. whether there has been any apology or public expression of
contrition;
8. the character and antecedents of the contemnor;

9. general and personal deterrence; and

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10. denunciation of the contempt.

71 In the present case the applicant submits that an appropriate penalty

in respect of each of CIV 1631 of 2005 and CIV 1632 of 2005 is a fine of
$2,000.
72 The conduct was deliberate and continued over several months.
Mr Giraudo's attempts to characterise his conduct as being that of a mere
clerk were unconvincing and casuistical. Whilst his defence of these
proceedings is not an aggravating feature, I am entitled to take into
account that he has not accepted that his conduct was in breach of the Act
and has not, therefore, shown any appropriate insight into his own
conduct. It is difficult to determine whether Mr Giraudo's conduct
resulted in any adverse consequences. It should be noted, however, that
he charged for his services when he had no right to do so. I also take into
account that these proceedings have been delayed in reaching a resolution,
through no fault of Mr Giraudo. Having regard to fines imposed in other
cases the fines that have been suggested by the Board appear to be an
appropriate reflection of the seriousness of this conduct: Legal Practice
Board v Taylor [43] - [47]; Legal Practice Board v Ferguson [16], [18];
Legal Practice Board v Clohessy [2006] WASC 21; Legal Practice
Board v Tilley [2006] WASC 73; and Legal Practice Board v Tee.

73 It is necessary, however, to consider Mr Giraudo's means to pay and

whether the effects of a fine can be mitigated if necessary by providing
further time to pay. Accordingly, I will hear from the parties as to the
form of the orders and as to whether any other orders are required.

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