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A court criticised the West Australian Legal Practice Board for its decision to audit a compensation firm after it received a complaint that one of the legal assistants was allegedly holding himself out to be a lawyer.
Justice Fiona Seaward of the Supreme Court of Western Australia found the state’s Legal Practice Board made a jurisdictional error by “misconstruing and misdirecting itself” when it appointed an auditor to look into Accident Claims Lawyers’ (ACL) compliance with the Uniform Law.
In submissions to the Supreme Court, ACL argued that these minutes revealed the issues of concern to the board related to rules which impose conditions on solicitors only “and not on law practices”.
In response, the board argued section 256 of the Uniform Law allowed it to audit the compliance of solicitors and it had the power to “ascertain whether, and ensure that, appropriate safeguards were in place to maintain the integrity of legal services provided by ACL”.
Justice Seaward was satisfied an error had been made.
“I find that the board did, in fact, misconstrue [section] 256, and therefore misdirected itself as to the conditions, limits and purpose of the statutory power under [section] 256 of the Uniform Law.
“I also find that this misdirection has resulted in the board making the decision for an improper purpose, being the purpose of auditing compliance of the associates of ACL … and not for the purpose of auditing compliance of ACL,” Justice Seaward said.
The board’s first issue was that it had not identified concerns about ACL’s compliance, “but rather compliance of others”.
Similarly, the minutes concerned compliance by Australian legal practitioners or the principal of the law practice.
Justice Seaward added she would not accept the board’s submission that its powers allowed it to investigate if appropriate safeguards were in place to maintain ACL’s integrity, because it sought to “characterise … the decision at too high a level of generality”.
“The nature of the misconstruction of [section] 256 of the Uniform Law is of such significance to the decision that there is a realistic possibility that the decision could have been different if the error had not occurred,” Justice Seaward said.
“The board has, therefore, made a jurisdictional error when making the decision.”
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Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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