The Supreme Court of Victoria has, again, been asked to consider what constitutes “legal work”. In Dr Claire Noone, Director of Consumer Affairs Victoria v Peter Mericka & Ors  VSC 101, handed down this week, the court looked at issues including whether a legal practitioner was exempted from being required to hold a real estate licence when carrying on some aspects of work usually undertaken by Real Estate Agents.
What are considered ‘ordinary functions’ of a legal practitioner?
In considering whether the (limited) solicitor exemption under the Estate Agents Act 1980 (Vic) [“the Act”], applied to aspects of the sale of real estate, the Court examined Section 5 (2) (e) of the Act.
S5 (2) (e) exempts conduct “for the purpose only of carrying out the ordinary functions of an Australian legal practitioner”.
Sifris J, relying on precedent from Cornall v Nagle (2 ) recited “…the giving of legal advice, at least as a part of a course of conduct and for reward, can properly be said to lie at or near the very centre of the practice of law…” and from Leary v Federal Commissioner of Taxation (3) in part
“…whether his services are sought with respect to the operation of taxing statutes, the provisions of contract, charges under the criminal law or any other of the varied fields of professional concern…”.
His Honour found that the defendants’ activities did fall within the bounds of the Act, and that the activities went beyond ”… the ordinary functions of an Australian legal practitioner”.
Practitioners need to consider what parts of conveyancing practice represent “ordinary functions” of a legal practitioner.
What constitutes legal work a vexed question
It is also, perhaps, timely to remind our Real Estate Agent friends, that they are not entitled to advise in relation to contracts, draft special conditions or do more than “fill in the blanks” of the joint REIV / LIV contract for sale of land.
Tax agents and accountants, likewise, should be reminded that they are not be permitted to provide advice of the impact of tax legislation in their role as tax advisors as this would seem to be legal practice as defined in the cases above.
The exact nature of what constitutes legal work has been a vexed question for some time, and we are still without a definitive judicial ruling.
Whilst we remain without any comprehensive definition of what constitutes legal work, we should stand resolute against non-lawyers undertaking what we know to be legal work.
Lawyers who undertake conveyancing work are encouraged to read the full judgment in this case.
I welcome your comments on this issue.