The standard of proof in unqualified practice cases

In Orrong Strategies Pty Ltd v Village Roadshow Limited [2007] VSC 1, Habersberger J considered the burden of proof required in a civil case in which contravention of s. 314 of the Legal Practice Act, 1996 (Vic.) was alleged. That was a criminal provision, providing for imprisonment for up to 2 years, and to breach it also amounted to a contempt of the Supreme Court of Victoria (s. 314(5)). It is a case in which one of Village Roadshow’s top managers sued Village Roadshow for remuneration allegedly owing to his consulting company, Orrong Strategies, and Village Roadshow unsuccessfully tried to invalidate theĀ  retainers for illegality in breaching the prohibition on unqualified practice. His Honour found:

‘821 It is clear that a contempt must be proved beyond reasonable doubt[121], but that is not this case. As [Village Roadshow] submitted, this is a civil proceeding in which [Village Roadshow] is seeking to resist Orrong’s monetary claims and to obtain repayment of monies by, in part, asserting that there has been a breach of s.314 of the [Legal Practice Act]. In relation to the Legal Practice Act claims [Village Roadshow] is not seeking imprisonment and/or the imposition of a fine. It is not even seeking a penalty or any order tantamount to disqualification from acting as a solicitor. Therefore, in my opinion, the applicable standard of proof in this part of the case is on the balance of probabilities but, as with the allegations of breaches of the corporations legislation or other serious misconduct, findings of contravention of the [Legal Practice Act] should not be made lightly, bearing in mind what the High Court said in Briginshaw as explained by Neat Holdings.’[122]

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