FEDERAL COURT OF AUSTRALIA

Australian Competition & Consumer Commission v Murray [2002] FCA 1252

TRADE PRACTICES – misrepresentation with respect to material aspect of business activity – will writing business – express or implied representations that business could be carried on lawfully – whether business contravened State legislation prohibiting legal practice by persons other than legal practitioners – whether contravention due to reasonable reliance on information supplied by another person

LEGAL PRACTITIONERS – will writing business conducted by person not a legal practitioner – attending at customer’s home with forms and explanatory material to enable customer to complete and sign will – representations that will valid and appropriate for customer’s circumstances – whether business lawful

Trade Practices Act 1974 (Cth) ss 59(2), 85

Legal Practitioners Act 1893 (WA) s 77

Legal Practice Act 1996 (Vic) s 314

Legal Practitioners Act 1981 (SA) s 21

Legal Profession Act 1993 (Tas) s 54(1)

Legal Profession Act 1987 (NSW) ss 48B, 48E

New York County Lawyers Association v Dacey 21 NY 2d 694 (1967) applied

Oregon State Bar v Gilchrist 538 P 2d 913 (1975) applied

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

Cornall v Nagle [1995] 2 VR 188 at 21 followed

Queensland Law Society Inc v Sande (No 2) [1998] 1 Qd R 273 mentioned

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v SIDNEY JAMES MURRAY

NO T29 OF 2001

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v WILL WRITERS GUILD PTY LTD

NO T30 OF 2001

HEEREY J

11 OCTOBER 2002

MELBOURNE

THE COURT ORDERS THAT:

1.                  All charges are found proved.

2.                  Questions of penalties and costs are adjourned to a date to be fixed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

THE COURT ORDERS THAT:

1. All charges are found proved.
2. Questions of penalties and costs are adjourned to a date to be fixed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     The Australian Competition and Consumer Commission (the Commission) has brought six charges alleging breaches of s 59(2) of the Trade Practices Act 1974 (Cth) (the Act) which provides as follows:

“Where a corporation, in trade or commerce, invites, whether by advertisement or otherwise, persons to engage or participate, or to offer or apply to engage or participate, in a business activity requiring the performance by the persons concerned of work, or the investment of moneys by the persons concerned of work associated with the investment, the corporation shall not make, with respect to the profitability or risk or any other material aspect of the business activity, a representation that is false or misleading in a material particular.”

Contravention of this provision is an offence: s 79(1)(a).

2                     The defendant Sidney James Murray was the director of the defendant Will Writers Guild Pty Ltd (WWG) and the individual who engaged in the conduct complained of.  It is alleged that in so doing he engaged in trade or commerce among the States and accordingly is subject to the extended operation given to s 59(2) by s 6(2) of the Act.  This aspect of the case is not in dispute.

3                     The business activity in question was providing wills for members of the public.  The defendants sold franchises or licences (the distinction is not presently material) to carry on such a business in a particular area which was either a State or a part of a State.  The licence carried with it the right to grant sub-licences for a smaller area.  The modus operandi of the business involved the provision of “will kits”, that is to say forms and descriptive and explanatory material, but also the provision of assistance.  It was an essential element of the way the business was to be run that the licensee would be present when the customer prepared and signed the will.  (I use the term “licensee” as comprehending the complainants themselves, any sub-licensees, and any employees or representatives of licensees or sub-licensees.)

4                     Generally speaking, legislation in each State relevant to this case (that is to say every State except Queensland) prohibits the carrying on of legal practice by persons not qualified to practise as legal practitioners in that State.  None of the complainants were so qualified. 

5                     The representation which the Commission says was false or misleading was that the business being licensed could be carried on lawfully.  It is accepted that such a representation was made, either explicitly or implicitly, by the defendants to each complainant.  The sole issue in the case (subject to the question whether a statutory defence is available) is whether that representation was false or misleading.  The Commission says that it was false or misleading because the business was prohibited by legislation of the State where each representation was made.

Documentation and modus operandi

6                     Some documents and other material are common to each of the charges.  The first was an audio tape recording which was provided by Mr Murray to complainants.  He told them that copies were to be provided to potential customers.  The tape was as follows:

“Here is a message to hand:  News flash, scientists have found, oh, this is incredible ladies and gentlemen, scientists have found a permanent cure for death itself.  I repeat, a miraculous cure for death has been found.

Ah, no it hasn’t, that will never happen.  But here’s something that must happen.  When your time comes, hopefully next century, you must have a will.  Its absolutely unforgivable not to have a current will.

In the next few minutes I’ll tell you why it’s just got to be done.  Then I’ll explain how the Will Writers Guild makes writing your will quicker, easier, less expensive and more convenient than seeing a solicitor. So sit back and relax while I tell you the facts.

A will isn’t a complicated legal document.  It’s simply a written list of straight forward instructions telling you executors what to do with your property when you die.  It’s only when people die without a will, called intestate, that it gets complicated – as you’ll hear in a moment.

Making a will is something everyone says they must get around to doing some day, yet unbelievably almost two out of every three Australians die without a will – even lawyers, believe it or not.  Due to their ignorance, apathy, or lack of foresight, the ones they love the most will probably suffer the most.  Whatever you do, don’t you be one of them.  Remember, if you die without a will, your estate may not automatically go straight to whom you think it should, be it your spouse and children, parents, brothers and sisters or other loved ones.  No.  It will go to whoever the rules of intestacy in your state say it should.  Think about that, and think about this, without a will if your loved ones try to contest the ruling, they’d have to go to court and fight it, probably against a relative.  Can you imagine how much of an emotional strain that would be for them, how long that could take, how much it could cost?  And if and when any money or property finally did get to them, the government and lawyers will certainly have taxed it quite heavily.  What a needless waste of time and money that would be, and all because you didn’t have an up to date will. 

The intestacy laws are precise and allow for no sentiment.  It will pay you to remember this – while getting married or divorced automatically cancels your will, separation has no effect whatsoever.  Here’s another extraordinary example – if a couple were killed in a motor vehicle accident, the law assumes that the elder of the two died first.  Therefore, if the husband is older, his estate would automatically pass to the wife, then because the wife is also dead, the combined estates would pass to the wife’s next of kin.  If the couple had no children, her family would get everything, and the husband’s family, nothing.  If you are not familiar with the law, it can be a real eye opener.

Anyone who is married and everyone over eighteen should have a will.  In it you can not only say exactly what is to happen to your property, you can also make thankyou gifts of money and gifts of personal belongings that may be special to you and the person to whom they are being given.  You can also make gifts to charities.  And more importantly, you can appoint guardians to look after your young children plus choose who you want to be your executors and trustees and more.

Making a will is not something you do for yourself, unless you count of course the peace of mind you get knowing your affairs are in order, no, you make a will for your loved ones, so that your spouse won’t suffer and that your children will have a future, including a decent and proper education.

I trust by now you’re thinking ‘he is  right, I wouldn’t be caught dead without a will.  I must try to make an appointment with my solicitor and then endeavour to find the time myself to see him.’  Right?  No, wrong.  From now on, there’s a much easier way, a quicker less expensive way.  A well trained will writer can achieve exactly the same result as a lawyer can, at a fraction of the cost, by using the Will Writers Guild special will writers program.  Your friendly profession will writer is a logical, no nonsense alternative to a lawyer.  He or she will take pride in helping you prepare, step by step, a will that is just as legally binding and every bit as good as any solicitor would prepare.  Even though a will has to be worded just so, and there cannot be the slightest mistake, your will writer can in fact prepare your will in a surprisingly short time.  For upmost convenience, a will writer, or trained consultant, can and will visit you in the comfort and privacy of your own home to save you even more time and make it even easier.

Unlike a solicitor, a will writer can come to see you when it suits you.  Before work, at night, on the weekend, whenever.  Don’t even think about getting a lawyer to do that – just imagine the cost if he did.  The will writers guild kit is a sensible and reliable alternative.  By following your will writers simple steps, you can’t go wrong.

Most wills involve adults leaving a moderate amount of their property to a few people, usually their immediate family, close friends, and favourite charities.  As long as you know what you own, and who you care about, your will writer can easily help you match them up using the will writers guild special executors and memorandum sheets.

Even if you have a multi-million dollar estate or a lot of different beneficiaries, don’t be concerned.  The Will Writers Guild has its own duty solicitors hotline, so if you will writer ever needs anything double checked, your query will be answered straight away.

So there you have the facts.  If you are an adult or a married person who cares about what would happen to your loved ones, if, heaven forbid, you weren’t around to look after them in person, you must have an up to date will.  And as you’ve just heard the best way to go about making your will is to use a trained, professional, will writer.  Don’t put if off a second longer, do it right now.  Simply contact the person who gave you this cassette and arrange for a will writer to visit you any time you wish in the comfort of your own home.

Call now and the Will Writers Guild will put your mind at rest.”

(Emphasis added)

7                     The second document was a booklet entitled “Will Writers Guild A Complete Guild to Preparing and Making a Legal Will”.  The booklet has a blue cover and was referred to in evidence as “the Blue Book”.  In its original form the Blue Book does not bear the name of any author or publisher other than “Will Writers Guild”, which is apparently a trade mark owned by WWG.  The Blue Book commences with a disclaimer headed “Please read this” as follows:

“We have done our best to give you useful and accurate information in this book.  But please be aware that laws and procedures change constantly and are subject to differing interpretations.  If you are confused by anything you read here, or if you need more information, check with an expert.  Of necessity, neither the author nor the publisher of this book makes any guarantees regarding the outcome of the use to which this material is put.”

8                     In the Introduction it is said inter alia that “(m)ost people can make a Will with basic legal information.  All that is needed to make a will is contained in “The Will Writer Guild Kit”.  It is said that the kit has been written “so as to enable you to write a Will that is valid throughout this country”.  There is a brief definition of a will and discussions under the heading “Who Can Make a Will?”, “Executors Memorandum” (a list of documents in accordance with a form at the back), “What Can I Do in a Will?”, “The Correct Way in Which a Will Should be Written” and “Who Should I Have Witness My Will?”  There is a  discussion about changing a will in such circumstances as change of name or death of executor, divorce or additional children.  There is reference to disputes arising out of intestate estates being resolved in the courts, which is “an expensive and wasteful process and is best avoided by executing a carefully thought out and properly written Will”.  There are various miscellaneous comments about provisions for burial and donation of organs, leaving persons out of a will, the effect of marriage or divorce on a will, what subject matter should be included in a will, assets and possessions, property in joint names, executors and their role, bequests and the keeping of wills in a safe place. There are “Instructions for writing your Will”, including the giving of full name and address, the appointment of executors and guardians, funeral directions and some examples of specific and general bequests clauses.  There is a small glossary of words used in a will such as “codicil”, “devise” and “trust” and a sample will.  The booklet consists of twenty pages of text and another ten including such matters as details of funeral costs, letters to executor, funeral wishes etc. 

9                     The third document was a large envelope entitled “Live Will Forms” containing separate sheets, some of which are instructions and some of which are forms containing different options for testamentary provisions.  For example, “Gift option 1:  Gifts of money” provides a space to write the full name of the person or charity organisation to whom the customer wishes to make a gift, the relationship (son, niece etc) and whether the gift is to be made if the customer’s partner predeceases him or her etc. 

10                  The fourth document (referred to as the “Pro Forma Will”) was a form of will with blank spaces. 

11                  There was a “Security Envelope” which was a cardboard envelope for keeping the will. 

12                  A floppy disk containing a miscellaneous collection of documents about will writing was given to some complainants.

13                  Most complainants were given a copy of de Groot’s Wills Probate and Administration Practice (Victoria) by Robert D Sheppard and Patricia Duke.  This work is a substantial loose-leaf legal text complete with table of cases and table of statutes.  It has chapters on “The Making of a Will”, “Execution of Wills” and “The Construction of Wills” as well as chapters dealing with administration of estates.  Judging by its Preface, the work is addressed to “solicitors and clerks involved in the day-to-day administration of estates and the contentious issues which arise”.

14                  The attention of complainants was attracted by a newspaper advertisement which was in essentially the same form with minor modifications to suit the particular State.  The version used in Western Australia was as follows:

                        “BUSINESS OPPORTUNITY

                        FIRST TIME OFFERED

                        Exclusive W.A. controller

·           New and Exciting Industry

·           No Known Opposition

·           Extremely High Income

·           Suit Individual or Company

·           Approximately 60% of Adults require our Product and Services

·           If you have Marketing Skills and wish to be self-employed don’t miss this once only Opportunity

                        CAPITAL REQUIRED $37,500

                        Capital Returned approx 60 days

                        Enquiries National

                        Sales Manager

                        Tel Jim Murray

O8 9267 4888”

(Emphasis added)

15                  The complainants entered into a “Dealership Agreement”.  The agreement is between WWG (referred to as “the Guild”) and the licensee (referred to as “the dealer”).  It recites that:

“A       The Guild has developed a will writing kit which is to be marketed to the general public.

B          The dealer has requested the Guild to grant dealership rights to it for the territory contained in the Schedule hereto.

C         The Guild has agreed to grant a dealership to the dealer upon the terms and conditions as herein contained.”

16                  The text of the body of the Dealership Agreement was not exactly the same for all complainants, but the differences are immaterial.  By cl 1 the Guild granted to the dealer the rights to operate “the business” in the territory contained in the Schedule for a period of one year commencing on a given date and expiring on another date.  The term “business” was not defined.  Provision was made for annual renewal up to ten years.

17                  There were other documents executed, including trade mark licences and agreements for the supply of kits.  The terms of these are not relevant for present purposes.

18                  The business would operate in this way.  The tape would be played to potential customers.  If they agreed to avail themselves of the services offered, an appointment would be made for the licensee to attend at the customer’s home.  The customer would arrange for two persons to attend at the same time to act as witnesses for the execution of the will.  (These witnesses would themselves be potential customers and would, it was hoped, in turn introduce further witness/customers to the business, and so on.)  The customer would fill out the Live Will Forms and then transcribe those provisions in the Pro Forma Will.  The customer would then sign the will in the presence of the witnesses.  If required, the licensee would take away the will for storage in the Security Envelope.  The source of advice for the customer was, primarily at least, the Blue Book.  Mr Murray said to a number of the complainants that they should retain a local solicitor.  This solicitor’s function would be either to provide advice to the licensee, who would pass it on to the customer, or to advise the customer directly if “things got too difficult”.

Evidence of complainants

19                  With the exception of one complainant as to one issue, I am satisfied to the requisite criminal standard of the truthfulness and reliability of the complainants.  Mr Murray was not a witness who inspired confidence.  Where his evidence conflicts with that of the complainants I accept the latter, unless otherwise indicated.  However, the essential factual elements of the Commission’s case were not really in dispute.

20                  I shall deal with the evidence of the complainants in chronological sequence rather than in the numerical order of the charges.  The accounts given are not complete summaries of their evidence.  For example, I have largely omitted extravagant predictions given by Mr Murray as to the profit potential of the business, these matters not being relevant for present purposes.

Ferguson

21                  The complainant in charge 5 is Reginald Thomas Ferguson of Leeming in Western Australia.  Section 77 of the Legal Practitioners Act 1893 (WA) provides that no person other than a legal practitioner shall “directly or indirectly perform or carry out or be engaged in any work in connection with the administration of law, or draw or prepare any deed, instrument, or writing relating to or in any manner dealing with or affecting real or personal estate or any interest therein”.

22                  On 27 February 1999 Mr Ferguson noticed an advertisement in The West Australian in the terms already quoted.  He telephoned the number and spoke to a man he subsequently learned was Mr Murray.  In the course of the conversation Mr Murray said that seventy five per cent of the population did not have a will.  He said that his business was “unique in that we offer a very personalised service where we go to the people”.  An arrangement was made to meet a few days later. 

23                  The meeting, on 1 March 1999, was also attended by Mr Ferguson’s wife Helen.  Mr Murray supplied a sales analysis sheet showing projected income a will writer could make.  He said that Mal Chalmers, a solicitor, was “supporting and backing” the operation in Queensland.  Clients could be obtained from an existing client base (Mr Ferguson was an insurance and financial planner), radio or newspaper advertising and stores at shopping centres.  The concept was that will writers went to the client’s home and assisted them to complete information sheets contained in the Will Kit, but written in their own handwriting or in the writer’s handwriting.  This information would then be taken back to the office and transcribed onto a computer program.  He said these programs would be supplied on signing the contract to purchase the will writing business.  After the will had been completed the client had to then arrange for two witnesses to attend the signing of the wills at a later date and those witnesses would then become prospective clients.  For that reason the operator of the business would want to be present when the will was signed.  The price for the West Australian State distributor was $37,500 the first year and then $18,750 every year thereafter for a maximum of ten years.  The cost was to be $80 to $100 for a single will and $40 for a mirror will.  Storage was to be $10 per will per year. 

24                  Mr Murray played the tape.  He said that this had proved to be the most effective tool in obtaining new clients; ninety per cent of people that had listened to it had taken on the service.  He only had two tapes with him but he would get others before he left.  He said he would give full training and any assistance in the future, free of charge.  Mr Murray told the Fergusons that in running the business they were not to provide legal advice but could offer assistance by stating what the requirements were to make the will legal, such as no pin marks or staples and no whiteouts or corrections. 

25                  The following day Mr Ferguson rang Mr Chalmers who confirmed that he was acting for Mr Murray.  Mr Chalmers said Mr Murray was very ethical in his work and a good person.

26                  On 3 March the Fergusons had a second meeting with Mr Murray.  Mr Ferguson said that he had contacted Mr Chalmers and relayed what he had been told.  Mr Ferguson asked about the legal requirements and Mr Murray said that the concept did not in any way breach the legal acts in any State of Australia and was “completely legal and above board”.  He said that he had the support of Mal Chalmers “and his mate who was a QC”.  Both of these were “silently backing the project”.  The Fergusons said they were very interested but would like to think about it. 

27                  On the following day there was a further brief meeting.  Mr Murray asked if the Fergusons had made a decision.  Mr Ferguson said they were still very keen but had one other avenue to check and that was the Law Society.  Mr Ferguson deposed in his affidavit that Mr Murray reacted in a very aggressive and intimidating way.  He said that Mr Ferguson was “just wasting fucking time” and that he (Mr Murray) could not be bothered with procrastinations and people who could not believe and trust him.  He said he had obtained so much legal advice it “wasn’t funny”.  He said he had spoken to Mal Chalmers and if that wasn’t enough the Fergusons might as well forget it.  He said that people in the Public Trustee Office who wrote wills were not lawyers, you could get your will done at some real estate firms and there were will kits you could get in the mail.  Eventually Mr Murray convinced the Fergusons that it was unnecessary to seek further advice. 

28                  On 8 March Mr Ferguson telephoned Mr Murray and told him they would take the business.  Mrs Ferguson then had her first formal lesson on will writing with Mr Murray.  On the following day, 9 March, the Fergusons signed a Dealership Agreement.  On 10 March the Fergusons paid Mr Murray a cheque for $22,000 drawn on a bank and on the following day a further cheque for $15,000 drawn on a credit society.

29                  Mr Murray gave the Fergusons copies of the Blue Book and various documents contained in the floppy disk.  Mr Murray told the Fergusons that they should use Mal Chalmers initially if they encountered any problems that needed legal advice but from his (Mr Murray’s) experience this would occur only on the very odd occasion, if at all. 

30                  On 9 March the parties also signed an assignment of the WWG trade mark and on 15 March the Fergusons signed an agreement for the supply of will kits and took delivery of 200 kits and 200 audio tapes.

31                  In early May 1999 a solicitor friend of Mr Ferguson suggested he obtain an opinion from a barrister as the friend thought the business might be in breach of the Legal Practitioners Act.  Mr Ferguson obtained a written opinion dated 29 May 1999 from Mr C P Shanahan of counsel.  In essence, Mr Shanahan was of the opinion that the business contravened the Act and that the Fergusons should discontinue it.  Mr Ferguson immediately contacted Mr Murray who said that the lawyer giving advice must be a “fucking idiot” and that he had Queen’s Counsel’s advice to the contrary and he would supply a copy.  He asked Mr Ferguson to fax a copy of the opinion, which Mr Ferguson did.  However Mr Murray never forwarded the copy of the Queen’s Counsel’s opinion that he claimed he had.

32                  A few days later Mr Murray telephoned Mr Ferguson and said that he had given the solicitor the wrong instructions.  He said that the concept was not to write the wills out for the client but only to watch and assist the client with the completion of the will form that was in the kit.  Mr Ferguson told him that that was nowhere near the concept that Mr Murray had previously described and that no one was going to pay another person $100 to have them sit there and watch them complete a “two bob will form”.  Mr Ferguson asked what the computer programs were for then.  Mr Murray again swore at him and hung up. 

33                  Mr Ferguson telephoned back and told Mr Murray he would return all the will kits and that Mr Murray should return the money.  Mr Murray laughed at that and told Mr Ferguson that he had signed a binding agreement and that if he wanted he could sue.  Not long afterwards Mr Murray contacted Mr Ferguson again and said that he should not worry, that he had obtained further advice and that what the Fergusons were doing was not a problem anywhere else in Australia so it should be the same in Western Australia. 

34                  The Fergusons’ evidence differs from that of other complainants in that no other complainant suggested that the business proposed by Mr Murray involved two visits to the customer and preparation of the will by a computer program.  I do not regard this difference as a ground for disbelieving the Fergusons.  They were the first sales targets of Mr Murray.  On his own account he had the very barest acquaintance with information technology.  I formed the impression that Mr Murray would say anything to get a sale.  In his time in the witness box he displayed a combination of self-confidence and occasional belligerence which was consistent with the accounts given by complainants.

35                  In her evidence Mrs Ferguson described the training sessions.  The first of these lasted about two hours.  Mr Murray explained that in order for a will to be legal it must be signed by the testator in the presence of two witnesses who are over the age of eighteen years of age, of sound mind and not beneficiaries of the will.  He said that the people did not have to read the will but need only witness the signature of the testator.  All three parties must use the same pen.  The witnesses must give their names, addresses and occupations.  No pins or staples were to be used.  An additional piece of paper could be added to the prepared will if the need arose in which case they were to be signed by the testator and both witnesses at the end of each line by all three parties and then kept with the will.  Mr Murray showed her the Live Will Forms and explained each page in complete detail.  He showed her a couple of legal books but “only skimmed through these” as they were “more suited to the laws of the eastern States”.  He gave her a copy of the tape.  He said the tape was to be sent to the client before a visit.  He told her about Public Trustee companies and their role and their four per cent commission and of the need to appoint an executor trustee. 

36                  On the second training session, after the Dealership Agreement had been signed, Mr Murray again took Mrs Ferguson through the Live Will Forms and used various scenarios to assist her comprehension.  He also referred to what Mrs Ferguson described as “the legal books” (I take this to be the Blue Book) when necessary to help her understanding.  He had her write out her own will to see if she could cope.  They went through it and picked out pieces in order for her to better understand the concept of will writing.  Again that session lasted about two hours.  There were two more sessions.  At Mr Murray’s suggestion they agreed to go to the University of Western Australia’s law library to find books about the actual writing of wills.  On 11 March she and Mr Murray went to the university and found a book Rest Assured – a Legal Guide to Wills, Estates and Funerals published by Redfern Legal Centre Publishing.  Mr Murray gave her a copy of that book.

Page

37                  The complainant in charge 6 is Ronald Charles Page of Werribee in Victoria.  Section 314 of the Legal Practice Act 1996 (Vic) provides that a person not admitted to legal practice “must not engage in legal practice in Victoria”.

38                  On 24 March 1999 Mr Page saw an advertisement in The Age which was in the same terms as The West Australian advertisement except that it referred to “Exclusive Vic Controllers”.  He telephoned Mr Murray and arranged to meet him at a hotel in Melbourne.  In the course of the telephone conversation Mr Murray told him that the business involved writing wills for people.

39                  Sometime in the following month Mr Page met Mr Murray at an hotel.  Mr Murray spoke about the WWG system.  He said that it was an untapped market and really the only competition was solicitors.  They were very lazy people and don’t like writing wills.  There were also trust companies but they don’t write many wills.  He said there was nothing in the market place to compete directly with what WWG was doing.  WWG’s system was cheaper than using a solicitor.  Whilst trust companies did not charge for a will they took a percentage of the estate for administration.  Mr Murray told Mr Page that he could buy the right to half of Victoria and sell off areas to business people who could get their own will writing team going. 

40                  During the meeting Mr Murray played the tape.  He said:

“When you attend to have a client sign their will you should give each witness a copy of the cassette tape and arrange to pick it up from them at a later date.”

41                   Mr Murray said that he would organise a duty solicitor to operate twenty-four hours a day to be established in Melbourne.  This solicitor would assist with any questions that Mr Page could not answer. During the meeting Mr Murray gave Mr Page a copy of the tape, a will kit and other material including the sales analysis.  The will kit contained the Live Will Forms, the Blue Book and Pro Forma Will.  Mr Murray said that to obtain regular business all you have to do is “work the witnesses”.  You write wills for the witnesses and in turn they then speak to their witnesses.  He said he had built up the WWG system over a long period in conjunction with its solicitor Mal Chalmers.  He said, “You don’t write the will for clients, you can assist them to fill out their will but you don’t write it for them”.  He showed Mr Page a draft Dealership Agreement, territory agreement, supply agreement and trade mark assignment.  He said that Mr Page would have to sign these documents if he purchased the territory and he could in turn use these documents to sell off sub-areas. 

42                  On 8 May 1999 on behalf of the Page Family Trust Mr Page signed a Dealership Agreement, territory agreement and supply agreement and trade mark assignment.  The territory agreed on for Mr Page was that part of Victoria west of a line between Echuca and Melbourne but excluding that part to the south west of Horsham.

43                  Mr Page gave Mr Murray a cheque for $65,000 payable to WWG.  Mr Murray gave him one hundred copies of will kits, tapes and the Blue Book as well as a computer disk and a copy of de Groot.

44                  In cross-examination Mr Page agreed he was told by Mr Murray that the customers would write the questions themselves “and if they had any questions we would help them”.  He said that he was told that the role of the Blue Book was to provide them with information that they needed to know to fill out the will.  The advantage in having the will writer present was that he would suggest to the customer first to fill out the Live Will Form for the purpose of organising their thoughts.  He was asked:

“Q.      Did he suggest to you that you would give them the Blue Book and if they had any questions, that you would suggest to them that they refer to the Blue Book?

A.         Well, we were there to help them with the answers as per the – if they didn’t understand the Blue Book.   

Q.                 Well I am going to ask you whether Mr Murray – Mr Murray will say what he told you was that when you were there and you were asked questions by the purchaser about filling out the will, he told you to direct them to the Blue Book?

A.         That’s not how I understand it. 

Q.        Are you able to say that you remember him not saying that?

A.         Yes.

Q.        What then was the purpose of the Blue Book? Do you remember?

A.         It was a guide I suppose.

Q.        What did Mr Murray tell you was the purpose of the Blue Book?

A.         Well it was a guide.  It followed the Live Wills and the rough draft and, as I said, people would fill them out.  If I had any questions, that’s where we came into it.”

Greene

45                  The complainant in charge 4 is Robert Owen Greene of Casterton in Victoria.

46                  On 10 April 1999 Mr Greene saw an advertisement in The Age which was in the same terms as that seen by Mr Page.

47                  About a week later Mr Greene telephoned the number given and spoke to Mr Murray.  He asked Mr Murray what type of business it was.  Mr Murray was “somewhat guarded but said it involved writing wills for people”.  Arrangements were made for Mr Greene and his wife Jean to meet Mr Murray in Melbourne.  In the course of the telephone conversation Mr Murray said words to the effect that sixty per cent of Australians do not have a will and that Mr Greene could become a principal controller and have will writers and consultants working for him and that this would provide him with a considerable income.  As to the return of capital mentioned in the advertisement, Mr Murray said this was done by selling off sub- areas.  He said that in Western Australia the person who bought the business had received his licence fee back in twenty-one days.

48                  On 23 April Mr and Mrs Greene met with Mr Murray at a hotel in Melbourne.  The meeting took almost four hours.  According to Mr Greene, Mr Murray was reluctant to hand over any material until the deposit was paid.  He said very little about the business.  It was a very disconnected meeting at which a number of irrelevant matters were discussed.  However, a price was fixed for an area.  The price of $17,500 was agreed on for south-west Victoria and south-east South Australia. 

49                  The following morning Mr and Mrs Greene told Mr Murray they were interested in proceeding.  They met again and Mr Murray produced a copy of the Blue Book and showed them a will kit but gave them little other information.  He played the tape for them.  He said he would provide between two and eight hours of training.  He said there was not a great deal involved in writing wills as most of them fell into the category of a simple document.  He said if you got people with trusts or a complex situation you should step aside and refer them to a solicitor.  He said that apart from a situation where trusts were involved, will writing was quite simple.  He gave them the sales analysis document.  He told them about the number of appointments that could be made during the day.  Mr Greene asked Mr Murray about competition and Mr Murray said, “There is nobody else doing the same type of thing, there’s only solicitors who prepare wills and will kits you can buy”.  Mr Greene asked Mr Murray about competition from will kits and Mr Murray said that the majority of will kits are bought and never used.  There are various reasons for this.  People make a mistake and they have to buy another will.  Mostly they don’t get around to doing anything so the kit just lays in a drawer somewhere.  Mr Murray spoke about the stream of income from will storage facilities.  Mr Greene asked how he would advertise for clients.  Mr Murray said that distributing the tape was by far the best way of promoting the business.  He would only need to hand out one hundred tapes to bring in forty to fifty responses with most appointments being for a husband and wife.  The “most exciting” part about the business was that every client needed two witnesses so witnesses should always be asked if they had a will.  Most don’t so the writer would get two more appointments.

50                  Mr Greene agreed to pay a deposit of $2500 for the business. 

51                  A few days later, after their return to Casterton, Mr Greene arranged for Mr Murray to visit the town, which he did on 4 May 1999.  Before coming to Casterton Mr Murray had forwarded a Dealership Agreement, trade mark assignment and a supply agreement together with territory maps.  Mr and Mrs Greene signed these documents.

52                  On 5 May the Greenes gave Mr Murray a bank cheque for $9,000 drawn on the National Australia Bank funded from cash drawn from Mrs Greene’s account at that bank.  Mr Greene deposed that “the remaining $6,000 was paid in cash and after discussion between Murray and myself it was agreed to alter the amount shown on the Dealership Agreement from $17,500 to $11,500”.  The Dealership Agreement in fact shows the sum of $17,500 crossed out and $11,500 inserted with initials. 

53                  I reject Mr Greene’s evidence as to the $6,000.  The balance sheet of the Greene’s business for the relevant year shows the rights to the will writing business valued at $11,500.  Mr Greene’s explanation was that he happened to have $6,000 in cash and Mr Murray agreed to take it.  Moreover, Mr Greene said, he thought he would get an advantage because the renewal fee of fifty per cent would correspondingly less.  Mr Murray on the other hand said that the sum of $17,500 has been agreed in Melbourne but when he arrived in Casterton Mr Greene “surprised the hell out of me” and offered $11,500 saying that was all the funds that were available.  Mr Murray said there was a little bit of a heated situation and the meeting “basically terminated”.  They had even started at that stage to complete the documentation.  But he thought he had come that far he would stay in Casterton for the night and think about it.  It was on the following day that he agreed to the $11,500.

54                  On this point I think Mr Murray’s account is much more likely.  Mr Greene in his affidavit speaks of Mr Murray’s visit to Casterton extending over two days, 4 and 5 May 1999.  Mr Murray’s version is a rational explanation of what would otherwise seem unlikely.  If it was just a matter of completing documentation, there is no logical reason why Mr Murray would want to spend two days in Casterton.  Also Mr Greene gave conflicting accounts, at one stage saying that the $6,000 was handed over in cash and another that it was paid into Mr Murray’s bank account as a deposit. 

55                  I am satisfied that Mr Greene has been deliberately untruthful in relation to this issue.  Nevertheless I otherwise accept his account of his dealings with Mr Murray. 

Boylon

56                  The complainant in charge 3 is John Martin Boylon of Reynella East in South Australia.  Section 21(1) of the Legal Practitioners Act 1981 (SA) makes it unlawful for a person other than a legal practitioner to “practise the profession of the law”.  Section 21(2)(a) provides that, without limiting the generality of subs (1), a person practises the profession of law if, acting for fee or reward, the person “prepares any will or other testamentary instrument”.  Section 21(3)(f) provides that it is not unlawful for an unqualified person to engross an instrument for fee or reward.  Section 21(4)(ba) provides that a person prepares an instrument if the person takes instructions for the preparation of such an instrument. 

57                  On 24 April 1999 Mr Boylon saw an advertisement in The Adelaide Advertiser.  It was in the usual form, referred to “Exclusive SA Controller” and indicated capital required was $47,500. 

58                  A few days later Mr Boylon telephoned the number and spoke to Mr Murray who said he was then in Victoria.  He made an arrangement to meet Mr Boylon in Melbourne.  In the telephone conversation Mr Boylon asked what type of business was it and Mr Murray said that it was a business which “provides people with wills”.  He would provide more information when the Boylans made “some level of commitment”.

59                  On 1 May 1999 Mr Boylon and his wife Margaret travelled to Melbourne and met Mr Murray at a hotel.  Mr Murray said the business had been started in Queensland and was going very well.  He had already sold a licence in Western Australia and the person who bought the licence there had already sold off a number of sub-areas and recovered his capital quickly. 

60                  At the meeting Mr Murray gave Mr and Mrs Boylon a copy of the Blue Book, the sales analysis and some of the documents from the floppy disk.  Mr Boylon asked him how Mr Murray’s will writers were operating and Mr Murray said:

“Basically they use the Live Will Forms guiding clients through these forms and getting them to complete their wills”.

61                  Mr Murray played the tape. He said it was a valuable marketing tool and should be given to prospective clients to enable them to make up their mind about having a will drawn up. 

62                  Mr Boylon raised the question of the legality of the business.  Mr Murray said there was nothing illegal in assisting people to complete their wills.  Mr Murray said that he was selling a business and not just the business of selling will kits.  He said the difference between the WWG approach and selling a will kit was that WWG provided a service which ensures people make a will. 

63                  Mr Murray said that there was a gap in the market between will kits which relied on the purchaser to complete the document themselves and the services provided by solicitors and trustee companies.  Solicitors “charged high dollars” to prepare wills.  Trust companies did not charge for preparing the will but acted as trustee and took a percentage of the estate as a fee.  He added “many people don’t like going to a solicitor and don’t like the Public Trustee; that’s where WWG comes in”.  Mr Boylon asked about training and Mr Murray said this would be carried out over three half day sessions after the agreement had been signed. 

64                  There was some delay while the Boylons made other enquiries, including speaking to Mr Ferguson who told them that he had sold off three of the areas in Western Australia and the fourth sale was still going through. 

65                  On 24 May 1999 the Boylons met with Mr Murray and signed the Dealership Agreement.  Mr Murray told them that because he had sold off the south-eastern territory of South Australia he would include the Northern Territory and Broken Hill in the South Australian area for the same price.  The Boylons also signed the territory allocation agreement, supply agreement and trade mark assignment.  They gave Mr Murray a personal cheque for $47,500.  Mr Murray handed over about 200 will kits each of which contained the Blue Book, Live Will Forms and a will Security Envelope.  He gave them 197 tapes and a floppy disk.  He took them through a practice presentation to a prospective client.  He said that if they needed a backup they should arrange to have a duty solicitor assist. 

66                  On the second day of training Mr Murray handed them a copy of de Groot pointing out there was a section on precedents and preparation of wills.  When they observed that the book was for Victoria and not South Australia Mr Murray said “It doesn’t matter, it’s all the same”. 

67                  In mid-July Mr and Mrs Boylon received from Mr Murray multiple copies of two stickers.  The first sticker said “Will Writers Guild, GUIDE TO PREPARING A WILL by M I Chalmers, Solicitor (Qld)”.  Mr Murray instructed them to place the sticker on the inside front cover of the Blue Book.  The second sticker said:

“Disclaimer.  This document is a general explanation of complex matters and as such will never amount to a substitute for proper legal advice.  If there are matters which require explanation, the answers for which you can’t find here, then you should seek the advice of a solicitor”.

Mr Murray said this sticker should be placed on the back page of the Blue Book. 

68                  In cross-examination Mr Boylon agreed that Mr Murray had said not to actually give legal advice.  He agreed that the system was to get customers to fill out the Live Will Form first to ensure they were organised in their mind how they were going to deal with their estate and then write the will itself.  If they had any questions they were to be referred to the Blue Book for their answers.  Mrs Boylon gave evidence to the same effect.

Vesigner

69                  The complainant in charge 1 is Jason Martin Vesigner of Lindisfarne in Tasmania.  Section 54(1) of the Legal Profession Act 1993 (Tas) makes it an offence for a person who is not admitted as a legal practitioner to “practise as a legal practitioner”: par (a) or “for fee or reward, prepare or assist in preparing any…will…”: par (f).

70                  On 16 June 1999 Mr Vesigner saw an advertisement in The Mercury in the usual form.  It stipulated the capital required as $37,500.

71                  Mr Vesigner telephoned Mr Murray at the number given.  He asked what type of business it was.  Mr Murray said it was a will writing business and that he had developed a proven method for promoting, writing, storing and up-dating wills.  He said that sixty per cent of Australians do not have a will and this provided a big potential market and opportunity.  The Public Trustee and solicitors were the alternative ways for people to make wills.  The Public Trustee made wills free but charged a percentage for administering the estate.  A solicitor usually involved two appointments in the client’s own time.  The WWG system provided a cheaper, more flexible way of creating a will because people could be seen in their own homes at a time suitable to them.  There was some discussion about will kits that were available at newsagents and other outlets but Mr Murray said the WWG method had more advantages because it was tailored to the client’s needs.

72                  Mr Vesigner expressed interest and met Mr Murray the following day at an hotel in Melbourne.  Mr Murray played the tape, which he said was to be played to potential clients.  He produced the sales analysis and discussed the way the business could be promoted.  He said he would provide two or three days training as a will writer as part of the package and 100 will kits and 100 cassettes.  He also said that he would provide computer software and intellectual property as well as de Groot which, he explained, was cross-referenced to the Blue Book.  He said that Mr Vesigner could employ will writers who could be trained to market, promote and write wills for clients. If they had any queries they should be directed to him or Mal Chalmers.  He said that he recommended that Mr Vesigner seek the services of a young solicitor or one who was just starting out in the area.  If he did that, it would be for the purpose of referral clients or obtaining advice.  He said, “If things get too difficult you should hand it over to a solicitor”. 

73                  On Saturday 26 June 1999 Mr Murray and his wife Rhonda came to Hobart and met Mr Vesigner and his partner Joanne O’Neill and later had dinner.  Mr Murray said that he would grant them the whole State which would enable them to sell off sub-areas.  They went to dinner on the following night and met again on Monday 28 June.  Mr Murray mentioned there was a computer program available to assist will writers.  Mr Vesigner expressed interest in this.  He told Mr Murray that he had been to see his bank for finance but the loan had not been approved at this stage. 

74                  On 21 July Mr Vesigner and Ms O’Neill received bank approval for a loan.  On the following day Mr Murray returned to Tasmania to finalize the agreement.  He came to their home on Saturday 24 July and a Dealership Agreement was signed.  The agreement was made between WWG and the company Jakym Pty Ltd.  The territory allocation was for the whole of the State of Tasmania.  An agreement for supply of 100 will kits at $12.50 was also signed.  On the same day Mr Vesigner handed Mr Murray a cheque for $37,500 payable to WWG.  Funds were provided for this cheque by Jakym through a loan secured over property owned by Mr Vesigner and Ms O’Neill and also guaranteed by them.  When the agreement was signed Mr Murray handed over the forms to be used and de Groot.  He also gave them the floppy disk and a number of will kits.  Mr Vesigner spoke to Mr Murray about obtaining legal advice and setting up a company.  Mr Murray said that because the business was in opposition to solicitors most would not be happy about advising.  He made the point that only a solicitor can legally prepare a will for a fee but they could get around this by selling the will kit.  He also said that a will did not become a legal document until it was signed, which got around the legal requirement. 

75                  In cross-examination Mr Vesigner agreed that Mr Murray told him to refer the customer initially to the Blue Book.  Mr Murray also said “that we could refer them and answer any questions relating to the Blue Book to the de Groot manuals that he supplied”.  Mr Vesigner did not recall being told not to give legal advice.  If they had any customer queries that they could not answer they were to direct them to Mr Murray or Mr Chalmers for his advice.  If a will appeared to be complex they were to refer the customer to a duty solicitor.  According to Ms O’Neill, during the discussions about the system Mr Murray was “always vague and ambiguous about how you got the information from the Live Will Forms into a completed will ready to be signed”. 

Fisher

76                  The complainant in charge 2 is Andrew Martin Fisher of Kirrawee in New South Wales.  Section 48B of the Legal Profession Act 1987 (NSW) prohibits a person without a practising certificate from acting as a barrister or solicitor.  Section 48E(2) provides that a person must not directly or indirectly do any “general legal work” for a fee unless the person is a barrister or solicitor.  The term “general legal work” is defined in s 48E(1), relevantly for present purposes, as including

“… the work involved in drawing, filling up or preparing an instrument or other document that:

(a)       is a will or other testamentary instrument,”

77                  On 25 September 1999 Mr Fisher saw an advertisement in The Sydney Morning Herald.  It was substantially in the usual form.  However, it did not specifically refer to NSW.  It stipulated a capital requirement of $65,000.  Mr Fisher telephoned the number given and spoke to Mr Murray.  Mr Murray told him that WWG had been operating in Queensland for some time and he wanted to establish it in other States and Territories.  He stressed the best way to approach the business was to buy a territory and sell off sub-territories.  He referred to the operation as a will writing business. 

78                  On 28 September Mr Fisher, together with his proposed business partner Mr Paul Mansfield, met with Mr Murray at an hotel in Sydney.  Mr Fisher asked Mr Murray how the business operated.  He said, “You go out and help people to do their wills”.  There was more talk about the territory and selling of sub-territories. 

79                  A further meeting with Mr Murray took place at a hotel in Darling Harbour on 6 October 1999.  At this meeting Mr Murray produced the Blue Book.  He said the idea was to use the Blue Book “to assist people to make a will through the use of the WWG kit”.  He advised Messrs Fisher and Mansfield to arrange for their own duty solicitor, someone they could refer to if they came across a complex matter in which they needed legal advice.  He said that they would be competing with solicitors and the Public Trustee for will writing business.  He said “You buy the kits from me and go out, sit down with a client and assist them to write a will”.  He said that the biggest selling point was the tape, which provides information to prospective clients about the need to have a will.  This was then followed up by making an appointment to go to the customer’s house to assist them in the preparation of their will.  This was the competitive advantage as against solicitors because you actually go to the customer.  Mr Murray gave them the sales analysis, played the tape and said it should be left with potential clients.  He said, “You advise clients how to put together a legal will, sit down with them and help them through the process”. 

80                  On 7 October 1999 Mr Fisher and Mr Mansfield signed a Dealership Agreement.  Their area, designated A, was, roughly speaking, the northern half of the Sydney metropolitan area, extending to Palm Beach in the north and Katoomba in the west.  On 7 October they paid $65,000 and also signed a territory allocation agreement, a trade mark assignment and a supply agreement for one hundred kits.  On 3 November they paid an additional $65,000 for New South Wales territories B and C.  Area B was the southern metropolitan area down to Camden.  Area C was the rest of New South Wales and the Australian Capital Territory.  Mr Murray provided 1000 kits containing the Blue Book, folders of the Live Will Forms and Pro Forma Will forms and some of the documents in the floppy disk.  He did not tell Mr Fisher or Mr Mansfield that there were any restrictions or limitations about the legality of non-lawyers writing a will.  The only qualification he ever made was that clients should be referred back to the Blue Book.  He gave them a copy of Butterworths Wills Probate and Administration Manual and a sheet with cross-references.

81                  In February 2000 Messrs Fisher and Mansfield ran an advertisement for the sale of territories in The Canberra Times.  As a result they were contacted by the ACT Law Society and told that what they were doing appeared to be a breach of the Legal Practitioners Act.  Mr Fisher rang Mr Murray and said that they had struck this problem.  Mr Murray said he knew about the Act and he gets around this problem by selling the whole kit to clients.  By selling the will kit for the total price you are not actually charging for the advice you are providing.  It is illegal to charge for the advice, you sell them the kit and don’t charge for legal advice.  Mr Fisher expressed concern about purchasing the will writing business.  Many customers would find it difficult to accept that they should pay $135 for a will kit.  This was the first time that there had been any mention about the legality of the business.

Mr Murray’s evidence

82                  In his affidavit Mr Murray described how he had become aware of will writing systems promoted by newspapers in the United Kingdom.  In relation to the WWG business he said that “the package to be sold to the customer” consisted of the Blue Book, Live Will Forms, the Pro Forma Will, Security Envelope and the tape.  The licensees were to be given a copy of the floppy disk for their general information but it did not form part of the package or the marketing material.  Mr Murray said that the method “for marketing the kit” was to be that the prospective customers played the tape and if they were interested they were to be given the Blue Book.  The customer is later contacted and an arrangement made to meet him at a particular time with two witnesses available.  The sales person attends prior to that time and the customer is “encouraged” to complete the Live Will Forms because that means he will not make a mistake when he is completing the relevant information in the Pro Forma Will.  If a customer makes a mistake on the Pro Forma Will it would be necessary to repeat.  The customer should complete and sign the Pro Forma Will and the witnesses sign as witnesses.  He told each licensee that they should not give legal advice.  He denied saying that a computer program would be supplied or that Live Will Forms were to be completed by the salesperson.

The boundaries of legal practice

83                  It is common ground that the selling of will forms, with or without accompanying instructions and advice, does not per se infringe statutory prohibitions of legal practice by non-lawyers.  The question is whether the business promoted by the defendants went further and amounted to practising law.  It is also accepted that there is no relevant difference in substance between the various State statutes.  Some of those statutes not only prohibit legal practice by non-lawyers but as well, and more specifically, the preparation for fee or reward of wills.  However, it is sufficient for present purposes to deal with the more general prohibition common to all jurisdictions.

84                  A number of United States authorities provide helpful assistance.  In New York County Lawyers Association v Dacey the court was concerned with a book “How to Avoid Probate!” which included various forms for trusts, wills and related documents.  This publication was held by the Appellate Division of the Supreme Court of New York to infringe the New York statute: 283 NYS 2d 984 (1967). However, the dissenting judgment of Stevens J was adopted by the Court of Appeals when that decision was reversed:  21 NY 2d 694 (1967).  Stevens J said (at 997):

“It cannot be claimed that the publication of the legal text which purports to say what the law is amounts to legal practice.  The mere fact that the principles or rules stated in the text may be accepted a particular reader as a solution to his problem, does not affect this.  Courts and lawyers continuously use and cite texts for this very purpose.  So also with forms.  The publication of a multitude of forms for all matter of legal situations is a common place activity and their use by the bar and the public is general.  In fact, many statutes and court rules contain the forms to be used in connection with them.  Apparently it is urged that the conjoining of these two, that is, the text and the forms, with advice as to how the forms should be filled out, constitutes the unlawful practice of law.  But that is the situation with many approved and accepted texts.

Dacey’s book is sold to the public at large.  There is no personal contact or relationship with a particular individual.  Nor does their exist that relation of confidence and trust so necessary to the status of attorney and client.  This is the essential of legal practice, the representation and the advising of a particular person in a particular situation.  The lectures of a law school professor are not legal practice for the very reason that the principles enunciated or the procedures advised do not refer to any activity in immediate contemplation though they are intended and conceived to direct the activities of the students in situations which may arise.  Moreover, there is no claim here as there was in the Connecticut proceeding [a case in that state also involving Mr Dacey] that Dacey, in effect, prepared instruments tailored to his customers.”

(Emphasis added)

85                  To the same effect the Supreme Court of Oregon said in Oregon State Bar v Gilchrist 538 P 2d 913 (1975) at 919:

“We conclude that in the advertising and selling of their divorce kits the defendants are not engaged in the practice of law and may not be enjoined from engaging in that part of their business.  We further conclude, however, that all personal contact between defendants and their customers in the nature of consultation, explanation, recommendation or advice or other assistance in selecting particular forms, in filling out any part of the forms, or suggesting or advising how the forms should be used in solving the particular customer’s marital problems does constitute the practice of law and must be and is strictly enjoined.”

86                  Of direct importance for the present case is the decision of Ipp J of the Supreme Court of Western Australia in Attorney-General (WA) v Quill Wills Ltd (1990) 3 WAR 500.  Quill Wills was attempting to establish in Western Australia the business of selling “will making franchises”.  The system involved the franchisee making an appointment to consult with a client, giving the client a brochure describing the system and then visiting the client.  The franchisee was instructed to declare to the client that he was not a legal adviser or authorised to provide legal advice.  At the interview the client was to be given a booklet called “The Quill Will Maker” which was largely a questionnaire.  The booklet invited the client to select those clauses which were particularly relevant to his or her present circumstances.  Each of the clauses was briefly described.  Instructions were given as to how clauses were to be chosen and completed.  Information was given about the meaning of various terms and how the clauses affect the proposed disposition of the estate.  Once the questionnaire had been completed the franchisee would use a computer program to produce a will by feeding in data from the questionnaire.  The franchisee would then take the engrossed will to the client and supervise the execution of it by the client and witnesses.  The witnessing procedures were explained in detail in a separate pamphlet given to the client.

87                   Ipp J proceeded on the basis that, in the light of an express term in the franchisee’s agreement prohibiting legal advice, it had not been established that oral legal advice outside the terms of various documents would be given.  The plaintiff’s case nevertheless was that by giving the brochure, the Quill Will Maker, the witnessing pamphlet and certain other documents, and saying nothing more than was in those documents, the franchisee would thereby be giving legal advice.  His Honour (at 508) regarded as important the representation made in the various publications to the effect that a will produced by the system would be valid.  Also his Honour considered that the client was not simply given the opportunity to select some out of a number of clauses.  The Quill Will Maker attempted to apply the clauses to the particular circumstances concerning each particular client.  Moreover, the client was told that the use of the bank of clauses would result in a valid will.  His Honour said (at 509):

“The overall effect of the system is an attempt to apply the facts (that is, the wording of the particular clauses concerned, and the potential combinations thereof) to the law of wills, followed by the formation of a conclusion, namely that the will will be valid. That is, in essence, the process by which legal advice is given.”

88                  Further, his Honour considered (at 518) that the Quill Will Maker was full of explanations of terms and instructions that contained legal advice.  These were not given in the abstract but as definitions of words and phrases to be used in clauses that the client was invited to select for inclusion in the will.  That was undoubtedly legal advice.  Moreover the witnessing pamphlet was advice given with reference to the execution of wills produced by the system and as part of the will making services supplied.  It also constituted legal advice. 

89                  His Honour then turned to the question, by whom is the advice given?  His Honour concluded that in assuring the client of the validity of the will, instructing the client what to do to ensure that validity, and explaining the terminology used, Quill Wills was giving advice itself.  His Honour said (at 512):

“The franchisee by handing the documents to the client also adopts, endorses and identifies himself with the advice contained therein and in fact gives it himself”. 

90                  His Honour then dealt with the question as to whether the franchisee “draws or prepares” the will within the meaning of the relevant West Australian statute.  It was argued that the franchisee was only carrying out a clerical or mechanical task and that the clients would be making their own selection of clauses without any guidance from the franchisees.  His Honour (at 513) thought it was a case

“… where an instrument has been mechanically produced by a person, without any application of his own intellect, but by using material created by the intellectual activity of another.  Where, in such circumstances, the producer of the instrument adopts, endorses and identifies himself with the material created by the other person, and assumes responsibility for it, the producer, in my opinion, directly or indirectly draws or prepares an instrument within the meaning of s 77.”

91                  His Honour noted (at 514) that the Quill Will clauses had been settled by legal practitioners and the franchisee adopted, endorsed and identified himself with the preparation of the clauses. The services rendered by the legal practitioners became part of the business of of the franchisee who accepted responsibility for the will provided.  The work done by the legal practitioners was marketed as part of the franchisee’s own business.

92                  Reference might also be made to the decision of J D Phillips J of the Supreme Court of Victoria in Cornall v Nagle [1995] 2 VR 188.  The facts of that case were not as close to those of the present case as those in Quill Wills but it is worth noting that J D Phillips J said (at 210):

“… if one sets himself up, although without any legal qualifications, as competent to give legal advice in matters affecting rights and obligations under the law and then indulged in a course of conduct involving the giving of such advice for reward, then that conduct would necessarily involve a contravention of the prohibition on ‘acting or practising as a solicitor’…”

Was the business unlawful?

93                  Counsel for the defendants argued that the business was not unlawful.  Wills were not prepared by the licensee because the customers wrote out their own wills.  Further, the licensees did not give the customer legal advice.  It was not enough, counsel said, that there might be a temptation to give legal advice, to which temptation licensees might sometimes succumb.

94                  I do not accept this argument.  It was an essential element of the modus operandi that the licensee be physically present at the customer’s home or other convenient location.  The object of the licensee’s attendance on that occasion was not just the giving of abstract information as to legal rules, or the handing over of documents or forms, but the production of a valid will appropriate to the individual circumstances of the customer: see Dacey.  This is the essence of legal practice, the advising of a particular person in a particular situation and the production of a document which affects legal rights and which is tailored to the particular needs of that person.

95                  The attendance of a licensee was accompanied by a warranty, principally conveyed by the tape, that the will produced would not only be legally valid, but suitable for the particular customer.  The tape was a critical factor both in selling the business to the complainants and for them in turn to obtain custom. After mention of the problems caused by intestacy, the tape details the advantages of a will.  The customer is told:

“In it you can not only say exactly what is to happen to your property, you can also make thank you gifts of money and gifts of personal belongings that may be special to you and the person to whom they are being given.  You can also makes gifts to charities.  And more importantly, you can appoint guardians to look after your young children plus choose who you want to be your executors and trustees and more.”

96                  Having informed the customer that a will can meet the customer’s particular needs and circumstances, it is said that the will writer “can achieve exactly the same result as a lawyer can”.  The will writer is an “alternative to a lawyer” who will “take pride in helping you prepare, step by step, a will that is just as legally binding and every bit as good as any solicitor would prepare”.  The tape states that the will writer “can in fact prepare your will in a surprisingly short time”.  This is a fair description of the way the system operates. While the customer may physically write out the will, he or she does so at the direction of the licensee conveyed through the provision of the Blue Book and the Live Will Forms and the Pro Forma Will.  The licensee takes responsibility for the finished product: cf Cornell v Nagle at 205. 

97                  Moreover, the Blue Book contains legal advice, explanations and instructions to be conveyed in the context of the licensee’s attendance on the customer.  It is given to a particular person for that person’s will, essentially no differently from the giving of oral advice.  I think that would be so even if one accepted that the fanciful scenario advanced by the defendants might actually take place, that is to say the customer raises a legal query and the licensee dumbly refers the person to the Blue Book.

98                  As the advertisement stated, the business involved not just the sale of will forms and instructions but the provision of a service, a fact reflected in the amount of the charge Mr Murray suggested be made.

99                  I am therefore satisfied that the business sold to the complainants is not one which could be lawfully carried on.  The Commission’s case of misrepresentation is made out.

Section 85 defence

100               The defendants relied on the defence provided by s 85(1)(b) of the Act.  It is a defence if the defendant establishes

“that the contravention in respect of which the proceeding was instituted was due to reasonable reliance on information supplied by another person.”

101               Section 85(2) requires notice to be given of such a defence.  Notice was given by a letter dated 1 July 2002 from the defendants’ solicitors which stated that the defendants would assert that any contravention

“was due to a reasonable reliance on information supplied by Malcolm Ion Chalmers, solicitor, of 1156 Gold Coast Highway, Palm Beach, Queensland 4221”.

102               The onus is on the defendants to establish this defence on the balance of probabilities.

103               The defendants called Mr Chalmers who gave evidence that he had prepared the Blue Book, the Live Will Forms and Pro Forma Will.  He was asked in examination-in-chief whether Mr Murray mentioned any features of how he proposed to market the business.  Mr Chalmers said:

“Well that was – the marketing was basically left to him but he did mention he was going to have – when the witnesses were present – he was going to have the sales person there with a view of on selling will kits to them as well.  That was sort of a marketing ploy.”

104               Mr Chalmers’ work on the documents was done in around October and November 1998.  In mid June 1999 he was again consulted by Mr Murray with respect to the legality of the sale of will kits.  Mr Murray told him about the opinion from a barrister in Perth and also a West Australian decision.  Shortly afterwards Mr Chalmers obtained a copy of the Quill Wills decision.  He suggested Mr Murray should get counsel’s opinion on it although he “still felt that the way I was instructed the wills were going to be marketed was different to that in Quill Wills in any event”. 

105               Mr Chalmers sought the advice of Mr Gary J Radcliff of counsel.  Mr Chalmers was particularly busy at the time and he simply faxed through a copy of Quill Wills and arranged for Mr Murray to see Mr Radcliff in his chambers.  Mr Chalmers himself was not present.  He subsequently received a written advice from Mr Radcliff dated 28 June 1999 and sent a copy of that to Mr Murray.  Mr Chalmers had a subsequent discussion with Mr Radcliff, the substance of which was that Mr Chalmers’ name should appear as the author of the Blue Book.  Mr Radcliff also suggested a further disclaimer:

“This document is a general explanation of complex matters and as such will never amount to a substitute for proper legal advice.  If there are matters which require explanation the answers for which you can’t find here then you should seek the advice of a solicitor.”

106               In his written advice Mr Radcliff says that Mr Murray “explained the nature of his business”.  The licensee acquires a number of “will kits” which contain the Blue Book, the Live Will Forms and the Pro Forma Will.  Mr Radcliff says:

“In the process of providing the will kit, a will ‘salesman’ has the assistance of a tape recording which takes approximately six minutes of listening time.  The tape recording essentially explains the benefits of having a will and demonstrates the simplicity of obtaining a will for oneself using the benefits of the Will Writers Guild product.”

107               Mr Radcliff’s advice is somewhat equivocal.  He was not called as a witness by the defendants.  The inference to be drawn from his advice is that he did not hear the tape or read a transcript of it but relied on the description of it by Mr Murray.  After referring to the comparable Queensland legislation Mr Radcliff says:

“As was discussed by Mr Murray, the nature of the preparation of the will is substantially an event which occurs merely as a consequence of the purchase of a package.  It is suggested by Mr Murray that the client is, in fact, the author of the deed or will and in the course of making decisions based upon the material put before him or her, the client entirely prepares the document. 

If this is found to be the case then on an overview, it appears that Mr Murray would be correct and that the client is the author of the document.  However the difficulties do not end there.”

108               Mr Radcliff goes on to point out that what he refers to as “the guide” (presumably the Blue Book) contains a substantial number of facts which can only be described as the giving of legal advice.  He thinks that is very analogous to the matters raised in Quill Will.  After referring to a Queensland decision Queensland Law Society Inc v Sande (No 2) [1998] 1 Qd R 273 Mr Radcliff says:

“I have highlighted in the Guide to Preparing and Making a Legal Will the elements of advice contained therein which would offend the provisions of the Legal Practitioners Act in that the advice stated therein does constitute a giving of legal advice and when this is compared with giving of advice by the salesmen of the product could be reduced merely to administration then there is less likelihood of the Law Society attempting to prevent this product from being distributed. 

I am of the opinion that if the legal advice can be proffered separately and authored by a qualified person, the product could be sold on the basis of being one of the exceptions explained by Justice Ipp in the Quill Wills case (at 507).”

109               I find the s 85(1)(b) defence is not made out.  Any reliance by Mr Murray on the advice of Mr Chalmers was not reasonable because Mr Murray did not provide full and accurate instructions.  In particular, Mr Chalmers was not aware that the tape was to be played to the prospective customer and had never heard the tape or read a transcript of it.  Mr Chalmers was not aware that Mr Murray’s system involved the conduct of the “will writer” as described in the tape and in particular “help(ing) you match up them using the Will Writers Guild special executors and memorandum sheets”.

110               According to Mr Chalmers, his understanding from what Mr Radcliff told him was that he (Mr Radcliff) saw as the most important factor it being made clear that a qualified solicitor was the author of the Blue Book.  He was asked:

“Q:      Was it your understanding that at least part of the reasoning behind that was that if it was simply the book being sold as part of the kit and the book being given to the purchaser of the kit and the purchaser of the kit preparing their will based on the book, that the mere presence of the sales person at the signing would not amount, within the test in the Quill Wills case, to the salesmen warranting the legality of the will?”

A::       That my understanding.  Yes.

Q:        Does that accurately summarise the legal issue that Mr Radcliff was

            endeavouring to overcome?

A:        Yes.”

111               The Radcliff opinion and any verbal advice flowing from it from Mr Chalmers to Mr Murray can only be relevant to the charge relating to Mr Fisher, the representations to the other complainants having already been made.  In any event I am not satisfied that Mr Radcliff was given full and accurate instructions by Mr Murray as to how the scheme would operate, particularly in relation to the tape.

Orders

112               I find all charges proved.  Questions of penalties and costs are adjourned to a date to be fixed.

Associate:

Dated:              10 October 2002