Australian Injury Helpline v WorkCover Authority of NSW

[2005] NSWSC 116

CITATION:	AUSTRALIAN INJURY HELPLINE & ANOR v. WORKCOVER AUTHORITY OF NSW [2005] NSWSC 116
HEARING DATE(S):	7/2/05; 8/2/05; 16/2/05; 24/2/05
JUDGMENT DATE :	28 February 2005
JURISDICTION:	Civil
JUDGMENT OF:	Greg James J at 1
DECISION:	The application is dismissed. The plaintiffs are to pay the defendant's costs.

CATCHWORDS:	Interlocutory relief - injunction to restrain compliance with notice to produce documents under statutory power in aid of investigation - whether enabling regulation constitutionally invalid - free speech - implied right of political discussion - s.109 inconsistency contrary to a Chapter III implication - whether giving of notice beyond power - whether notice givers belief must incorporate exculpatory assurances of the object of investigation - arguable case and balance of convenience - case unsufficiently arguable.
LEGISLATION CITED:	Judiciary Act 1903 Workplace Injury Management & Workers Compensation Act 1988 Trade Practices Act 1974
CASES CITED:	Coco v. The Queen (1994) 179 CLR 427 Beckwith v. The Queen (1976) 135 CLR 569 Nationwide News Pty. Limited v. Willis (1992) 177 CLR 1 AMP Society v. Golden (1986) 160 CLR 330 Castlemaine Tooheys Limited v. State of South Australia (1986) 161 CRL 148 Lange v. The ABC (1997) 189 CLR 520 Seven Network v. ACCC (2004) FCAFC 267 W A Pines v. Bannerman (1980) 41 FLR 175 Australian Securities Commission v. Zarrow (1991) 32 FCR 546
PARTIES:	AUSTRALIAN INJURY HELPLINE & ANOR v. WORKCOVER AUTHORITY OF NEW SOUTH WALES
FILE NUMBER(S):	SC No. 30109 of 2004
COUNSEL:	Plaintiff: N. Perram Defendant: W. Muddle
SOLICITORS:	Plaintiff: Henry Davis York Defendant: I.V. Knight

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LIST

GREG JAMES, J.

MONDAY 28 FEBRUARY 2005

No. 30109 of 2004

AUSTRALIAN INJURY HELPLINE LIMITED & ANOR v. WORKCOVER AUTHORITY OF NEW SOUTH WALES

JUDGMENT

HIS HONOUR:

The course of the proceedings

1 Application was made to me as Duty Judge by the plaintiff to continue an injunction obtained from Dunford, J. on 10 December 2004 restraining the defendant, by itself, its officers or agents, from opening the sealed envelope marked “Documents produced by Furzer Crestani on 10 December 2004 in answer to WorkCover’s s.238AA Notice” containing documents delivered on behalf of Furzer Crestani Services (“Furzer Crestani”) that afternoon to the defendant by Henry Davis York, the plaintiff’s solicitors.

2 That injunction was originally granted until 4.00 pm on Wednesday 15 December 2004. Subsequently, the matter came before me on 7 February 2005. It was heard, to some extent, that day, subject to my Duty Judge commitments and again the following day. It had been stood over on 15 December 2004 to 7 February 2005, the injunction having been continued during that time by consent.

3 On 7 February 2005, when the matter was stood over to 8 February, the defendant, by its counsel, gave an undertaking in accordance with the terms of the injunction until 5.00 pm on 8 February or order of the court. By consent, on that occasion, I made orders allowing an employee of the plaintiffs’ solicitors to have temporary access to the documents for the purpose of ascertaining their general content. On 8 February, the matter was further stood over. The parties provided written submissions and a written form of the undertaking to my chambers. Subsequently, the parties provided me with further written submissions and it was not necessary for oral argument in the matter to resume.

4 I made orders noting that the undertaking continued until 16 February 2005. On 16 February, after further oral argument, the matter was stood over to 24 February and the undertaking, which is in the terms of the injunction, continued until 4.00 pm on Monday 28 February. Due, however, to the late provision of the further written submissions and the pressure of court business, it became necessary for me to extend the injunction until it was possible to deliver this judgment and until 4.00 pm on Monday 28 February 2005.

5 Despite the length of argument and the size of the exhibit, Exhibit “TLH1” to the affidavit of Thomas Leslie Hollo sworn 10 December 2004, the issues between the parties fall within a narrow compass but the hearing of the matter had been complicated by the raising by the plaintiff of questions which might have been thought to have Constitutional significance. Notices were given under s.78B of the Judiciary Act 1903 and the Attorney General of New South Wales, on behalf of that State, intervened in the proceedings for the purpose of putting submissions relating to the matters asserted to arise under the Constitution or involving its interpretation. Notwithstanding this, I am asked to determine the application on an interlocutory basis applying the familiar principles of ascertaining whether there is an arguable case and where lies the balance of convenience.

The issues

6 On 25 November 2004, an authorised officer of the defendant issued a notice under s.238AA of the Work Place Injury Management & Workers Compensation Act 1998 (the Act) to a firm of accountants, Furzer Crestani, requiring them to produce certain documents. Those accountants are accountants to the plaintiff and all of the documents required were documents relating to the affairs of the plaintiff. The documents had been placed in the sealed envelope and delivered to the defendant by the solicitors for the plaintiff, as is referred to in the injunction granted by Dunford, J.

7 The notice served on the accountants is in the following terms:-

“I, Peter Alderton, being an authorised officer of the WorkCover Authority of New South Wales, am conducting an investigation (‘my investigation’) into whether advertisements (within the meaning of the Workers Compensation Regulation 2000 (the ‘Regulation’)) published since 1 September 2003 in the name of AIHL, including on television and the internet, are in contravention of Clause 75 of the Regulation and in relation thereto the following subsidiary matters:-
(a) whether AIHL is an agent within the meaning of the Workplace Injury Management and Workers Compensation Act 1988 (the ‘Act’);
(b) whether AIHL receives any fee or reward in connection with any claim for compensation under the Act;
(c) whether any lawyer or agent has caused or permitted such advertisements to be published;
(d) whether and to what extent AIHL is funded, financed or rewarded by any agent or lawyer;
(e) whether AIHL is an agent for any lawyer or acts in accordance with the instructions of any lawyer or in the interests of any lawyer; and
(f) the identity of persons who might have been involved in or able to give evidence in relation to such contravention.
I believe on reasonable grounds that you are capable of producing the following documents in relation to my investigation and DO BY THIS NOTICE pursuant to s.238AA of the Act require the company to produce to me by delivery to:-
Level 1, 60-70 Elizabeth Street, Sydney at or before 5.00 pm on 10 December 2004
all documents which are within your possession, custody or power and which fall within one or more of the following categories:-
1. Financial statements for each financial year ending after 22 November 2000 of AIHL and also of each trust of which it is a trustee.
2. All documents evidencing or recording the financial receipts (and whether capital, income or otherwise) of AIHL since 22 November 2000 whether received by AIHL in its own right or as trustee of any trust.
3. All documents evidencing or recording the goods, products or services sold or other consideration provided by AIHL, in return for the receipts referred to in category 2.
4. All documents evidencing or recording the composition of AIHL’s panel of solicitors since 22 November 200 including, without limitation, any changes thereto.
5. All documents evidencing or recording the referral of any injured person to a lawyer (as defined in the Regulations) by AIHL, and whether through any officer, servant, agent or otherwise, since 22 November 2000.
6. All documents evidencing or recording the publishing (within the meaning of the Regulation) of or payment for any advertisement (within the ordinary meaning of that word) since 22 November 2000.
7. All documents evidencing or recording the identity of each person who has at any time since 22 November 2000 been an officer, employee, legal advisor or agent of the Company.
In this notice ‘document’ has the meaning it has within the Act, namely any record of information, and includes:-
(a) anything on which there is writing, or
(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them, or
(c) anything from which sounds, images or writing can be reproduced with or without the aid of anything else, or
(d) map, plan, drawing or photograph.
Dated: 25 November 2004 Signed:_______________”

8 Section 238AA of the Act provides:-

“1. An authorised officer may, by notice in writing served on a person who is, on reasonable grounds, believed by the authorised officer to be capable of giving information, producing documents or giving evidence in relation to a possible contravention of this Act or the 1987 Act or the regulations under those Acts require the person to do any one or more of the following things:
…
(c) to appear before an authorised officer at a time and place specified in the notice and give either orally or in writing any such evidence and produce any such documents.
2. A notice under this section must contain a warning that a failure to comply with the notice is an offence.
3. An authorised officer may inspect a document produced in response to a notice under this section and may make copies of, or take extracts from, the document.
4. An authorised officer may take possession and retain possession for as long as is necessary for the purposes of this Act, of a document produced in response to a notice under this section if the person otherwise entitled to possession of the document is supplied, as soon as practicable, with a copy certified by an authorised officer to be a true copy.
…
7. In the section, ‘authorised officer’ means an officer of the Authority authorised by the Authority for the purposes of this section.
8. A person must not:-
(a) without reasonable excuse, refuse or fail to comply with a requirement under this section, or
(b) in purported compliance with a requirement under this section, give information or evidence or produce a document knowing it to be false or misleading in a material particular.”

9 In the light of the correspondence, it may be accepted that the issue of the notice to the plaintiffs’ accountants is a step in the investigation of the plaintiffs.

The orders sought

10 The plaintiff contends that it is an essential jurisdictional prerequisite for the valid issue of the notice that there be the existence of reasonable grounds for, and an actual belief by, an authorised officer that the recipient of the notice is capable of producing documents in relation to a possible contravention of the Act or the 1987 Act or the Regulation under those Acts. It contends that for constitutional reasons and on a proper construction of the Act and Regulation, it was not open to the authorised officer to issue the notice. It seeks orders which would have the effect of quashing the decision to issue the notice and setting it aside. At the present interlocutory stage, it seeks the construction of the injunction restraining the Authority from having access to the information in the documents supplied in response to the notice.

11 To achieve the effect I have referred to in the amended summons are sought orders in the nature of certiorari to set aside the notice and other orders, with which I am not concerned on this application. One of those orders, however, should not pass without being noted. It also sought an injunction restraining the defendant from further investigating the first plaintiff in relation to the matters set out in the defendant’s letter of 21 January 2004.

12 There has not been, before me, any submission made on behalf of the defendants as to the form of the orders sought. The matter has proceeded with an absence of technicality and it appears to be accepted that if I concluded that the issue of the notice was beyond power, an order might be drafted in the appropriate form whether that is in accordance with the orders as sought in the amended summons or whether some further assistance with the appropriate form might be required.

Urgency

13 It is said that the matter is of some considerable urgency as, if the envelope is opened and the defendant has access to its contents, the entire object of the litigation is determined and that even though, before me, the proceedings are merely interlocutory, the plaintiffs would suffer irretrievable harm, that is to say, unless the injunction were granted, they would be deprived of the opportunity for a final hearing and the opportunity to obtain relief on the final hearing because the object of the final hearing would have been frustrated.

14 For the defendant, it is asserted, that the matter is of some considerable urgency in that, by s.247 of the Act, proceedings for an offence against the Act, the 1987 Act or the Regulations, may only be instituted within the period of two years after the act or omission alleged to constitute the offence. Since the notice was dated 25 November 2004 and the correspondence refers to advertisements at least as early as September 2003, there is a limited time left within which for the defendant to further investigate matter so old using the machinery under the Act. I was informed that the defendant had continued to advertise so that if the advertisements are an offence those offences are continuously being committed on the web and on televisions at least daily.

The affidavit evidence

15 All the evidence was by affidavit and one exhibit. There was no oral evidence either in chief or by way of cross-examination.

16 In the affidavit of Thomas Leslie Hollow of 10 December 2004, Mr. Hollo gave evidence that he had been informed by the second plaintiff, Gary Michael Whelan, that the first plaintiff operates a business that refers people who have suffered personal injury in their workplace to a solicitor on the first plaintiff’s panel of solicitors. The panel of solicitors then provides legal advice in relation to whether that person may make a claim for compensation in respect of the injury. Mr. Hollo says that he is informed by the second plaintiff that the first plaintiff does not charge any fee to a person whom it refers to a solicitor in relation to a personal injury suffered in the work place, and further that he is informed by the second plaintiff and believes that the first plaintiff conducts its business by advertising its services principally through television and radio media with limited print media advertisements being published from time to time. I was informed from the bar table in the course of the argument that 700 or more television advertisements had occurred so far.

17 In the balance of that affidavit, Mr. Hollo refers to correspondence and notices between the WorkCover Authority, the plaintiffs and the plaintiffs’ solicitors. In referring to that material, Mr. Hollo referred to the pending case in the High Court of Australia concerning the constitutional validity of provisions in the Legal Profession Regulation 2002 (NSW) which prohibits legal practitioners from publishing advertisements relating to personal injuries. Although it was accepted, during argument, that that case did not concern directly the subject matter of the present proceedings, it will be necessary to return to it when considering the constitutional matters that were raised. A copy of the further amended statement of claim in those proceedings is contained in the exhibit “TLH1” at pp.38 to 49. Mr. Hollo deposes to the High Court having reserved its decision in that matter.

18 In his further affidavit of 15 February 2005, Mr. Hollo deposes to having been informed by Mr. Whelan, the second plaintiff, that all information relating to the first plaintiff, provided by him to Furzer Crestani on behalf of the first plaintiff, is strictly and confidential except to the extent that Furzer Crestani has filed statutory returns; that it is Furzer Crestani’s practice to first require Mr. Whelan’s authorisation prior to disclosing any information with which it is being provided relating to the affairs of the first plaintiff.

19 In his affidavit, Mr. Hollo gave evidence that the first plaintiff alleges that the material contained in the envelope on the basis in particular of the description provided by Ms. Nguyen and the knowledge of the plaintiffs that the documents contain information confidential to the first plaintiff, which the first plaintiff is concerned to maintain confidential. Annexed to Mr. Hollo’s affidavit is a description of the contents of the documents in general terms such as to support the proposition that the documents are the documents of the first plaintiff and are likely to be of that class of documents which it might regard as confidential. I note also, of course, that that very same nature of the documents well illustrates why the defendant might wish to obtain access to them for the purposes of its investigation.

20 Mr. Hollo’s affidavit continues to depose to there being an agreement between Furzer Crestani and the first plaintiff by which all right, title and interest in the documents is transferred for consideration to the first plaintiff for more abundant caution. The matter proceeded on the basis that the first plaintiff claimed confidentiality in the documents which it wished to maintain together with a proprietary interest. The documents include hard copy documents, being essentially financial statements, and a CD ROM containing MYOB accountant software which was described by Ms. Nguyen following the structure of the software. The documents include financial reports, schedule of wages paid, receipts and payments – lawyers details, Australian Injury Helpline Limited pay as you go payment summary statement for the year ended 30 June 2003. The CD ROM documentation contains accounts lists, general ledgers, balance sheets, profit and loss accounts, period and budget spread sheets, account transactions, profit and loss documentation, general journal, the activity summary, the activity detail, job transactions, jobs list, session audit trial report, general journal entries, banking information, tax code reports, reconciliation reports, GST reports, banking reports, the cash disbursements journal, the cash receipts journal, a record of cheques and deposits, analysis summaries, reconciliation summaries, sales summaries, customer and sales details, including invoices, returns and credits, details of GIST customers and GIST sales, the sales and receivables journal, the accounts lists, the card lists, the jobs list and the sales register.

21 At pp.5 to 6 of the exhibit “TLH1” appears a letter asserting the making of the advertisements signed by Mr. John Watson, the Acting Chief Executive Officer of WorkCover and addressed to Mr. Gary Whelan, the second plaintiff, in his capacity as a director of the Australian Injury Helpline Limited, the first plaintiff. It refers to a television advertisement shown on 16 September 2003 advertising the services of the Australian Injury Helpline and attaches a transcript of the television advertisement. It and that transcript note that the advertisement states that “Australian Injury Helpline are not lawyers”. The letter and the transcript state that the first plaintiff can “put you in touch with the right professionals to help you win the compensation you deserve”. Mr. Watson asserts that the first plaintiff would fall within the definition of “agent” in s.131 of the Act.

22 Mr. Watson further refers to the Australian Injury Helpline website, the content of which he sets out in the letter. That website refers to work injuries which might entitle persons to compensation if they have been injured at their work place. It says:-

“All of Australian Injury Helpline’s ‘panel’ Solicitors are specialists in personal injury law and are contracted to supply you with an unrivalled service.”
“We can provide you with free legal advice whether you could be entitled to compensation and put you in contact with the right legal representation.”

23 Mr. Watson says:-

“These statements may constitute the publishing of an advertisement within the meaning of clause 74 of the Workers Compensation Regulation 2003.
I am writing to advise you that the publishing of these television and internet advertisements is likely to be in breach of clause 75 of the Workers Compensation Regulation 2003.”

24 Thereafter, Mr. Watson sets out clause 75 and refers to the maximum penalty for breach of it. Attached to Mr. Watson’s letter is a transcript of two advertisements being apparently advertisements that appear on The first contains statements that the Australian Injury Helpline is a free service and that the first plaintiff “won’t take a percentage of your claim” “it’s a free service” and “they will be the answers you need”. The second advertisement includes the closing words, “Remember, it’s a free service. Get the answers you need and get the compensation you deserve. Make that one call now.” The second advertisement plainly refers to the content of the first advertisement. In that first advertisement, specific reference is made to the prospect of seeking compensation for someone else’s negligence causing an accident and injury which it was asserted “it can happen anywhere – at work, at school, when you’re out and about”. The tenor of the advertisements is to solicit persons to contact the first plaintiff to make a claim for compensation for injury arising by reason of someone else’s negligence which injury occurs at places which include at work and that the first plaintiff will not charge them for doing so.

25 Also attached is the transcript of the television advertisement of 16 September 2003 said to have been shown on Channel 10 in Sydney. That advertisement specifically says “if you’ve been injured at work … then you deserve compensation. Call the Australian Injury Helpline now on 1800 223 363.” It too asserts that the Australian Injury Helpline are not lawyers and they “won’t take part of your payout”. It says, “and it’s a free service – that’s right free”. It too plainly solicits persons who might have been injured at work to contact Australian Injury Helpline to be put in touch, without charge, with lawyers with a view to the receipt of advice and the prosecution of a claim for compensation for work place injury.

26 In reply to Mr. Watson’s letter, Mr. Whelan wrote a letter of 4 February 2004. In his letter Mr. Whelan asserts that, given the way the first plaintiff goes about its business, it does not and cannot fall within the definition of “agent” within s.131 of the Act. It was asserted that no breach could occur of clause 75 again because the first plaintiff was not an agent as defined. It was in that context that the notice to which I have already referred was issued.

Scheme of the Act and Regulation

27 The parties provided me with extensive and most helpful written submissions which were supplemented by detailed oral argument. Those submissions turned crucially upon the provision of the Act and the Regulation.

28 The proper construction Clause 75 of the Workers Compensation Regulation 2003 is critical to the determination of the application. It provides:-

“A lawyer or agent must not publish or cause or permit to be published an advertisement that includes any reference to or depiction of any of the following:-
(a) work injury,
(b) any circumstance in which work injury might occur, or any activity, event or circumstance that suggests or could suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury,
(c) a ‘work injury service’ (that is, any service provided by a lawyer or agent that relates to recovery of money, or any entitlement to recover money, in respect of work injury).”

29 Clause 75 is contained in Part 18 of the Regulations. That Part is headed “Advertising of Workers Compensation Services”. That Part does not contain any definition of “agent”, although the note to that Part does refer to that term. It says:-

“Expressions used in this Part have the same meaning as in Division 8 of Part 2 of Chapter 4 of the 1998 Act.
An agent is a person who acts, or holds himself or herself out as willing to act as agent for a person for fee or reward in connection with a claim, but does not include a legal practitioner. Lawyer means a legal practitioner …”

30 The note continues:-

“Each of the following activities is considered to constitute acting as agent for a person in relation to a claim:-
(a) advising the person with respect to the making of a claim;
(b) assisting the person to complete or prepare or completing or preparing on behalf of the person any form, correspondence or other document concerning a claim;
(c) making arrangements for any test or medical examination to determine the person’s entitlement to compensation;
(d) arranging referral of the person to a lawyer for the performance of legal work in connection with the claim.”

31 Division 8 of the Act is headed “Prohibited conduct relating to touting for claims”. Definitions appear in s.131. Section 131(1) provides in this Division:-

“Agent means a person who acts, or holds himself or herself out as willing to act, as agent for a person for fee or reward in connection with a claim, but does not (unless the Regulations otherwise provide) include a legal practitioner.”

32 Claim is defined as meaning a claim for compensation under the Act. Lawyer means a legal practitioner. Section 131(3) is in the same terms as appears on the note at the commencement at Part 18, except that it includes:

“(e) any other activity prescribed by the Regulations.”

33 Section 131(4) provides “the Regulations may provide that persons who engage in specified activities are not to be regarded as agents for the purpose of this Division”. By s.133, an agent who engages in prohibited conduct is guilty of an offence. Various kinds of conduct are prohibited by s.132 as prohibited conduct. It is common ground that none of that conduct applies to claims of the general kind here made, since protected claims essentially refer to hearing loss claims and a claim for the provision of a hearing aid and any other claims declared by the Regulations to be a protected claim.

34 It might, of course, be possible that within the general claims referred to in the advertisements, such claims might occur. However, the proceedings before me have not gone ahead on the basis that interlocutory relief might be denied on the basis that the claims referred to in the advertisement might include a claim to which s.132 applies.

35 Section 142 provides that the Regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of services to be provided by a lawyer or agent in connection with claims for compensation under this Act or claims for work injury damages, including s.142(1)(a) advertising by a lawyer or agent, (b) advertising by any person for or on behalf of a lawyer or agent, (c) advertising by any person in connection with the provision of those services, (d) advertising by any person of services connected with injuries. Power is provided to make a Regulation imposing a penalty not exceeding 200 penalty units for any contravention of the Regulations.

36 Section 238(b) provides that possible self-incrimination does not constitute grounds for failing to produce the document.

37 In the plaintiff’s submissions, the essential question is whether the first plaintiff falls within the definition of agent in s.13, or at least whether it is fairly, since the advertisements that have been published include reference to work injury and a service provided by lawyers that relate to recovery of money or any entitlement to recover money in respect of that work injury, that is, a work injury service which would otherwise be caught by Clause 75. It is common ground that none of the exceptions provided for by Clause 77 apply, nor the exceptions provided for practitioner directories or specialist practitioners under Clause 76.

38 The plaintiff asserts on a reading of the letter from Mr. Watson, the Acting CEO of WorkCover of 21 January 2004 that the factual material underlying the issue by Mr. Alderton of the notice was as contained in Mr. Watson’s letter and particularly, it is said, that that factual material included the contents of the advertisement and that the contents, in particular, the content that refers to there being no fee and no proportion of the claim being deducted, are true. It is asserted therefore that there is an arguable case that Mr. Alderton’s belief at the time of the issue of the notice was on the basis of the matters referred to in the advertisement and their truth, not on any further or additional matter.

39 It is asserted that there is an arguable question to be tried whether the definition of agent in s.131 extends to a person who publishes advertisements of the kind referred to in the attachments to the letter but in which it is asserted that the service is free. It is further asserted that the words “as agent for a person for fee or reward” in connection with a claim envisages the fee or reward moving from that person, “the consumer” to the agent.

40 Reliance is placed on various decisions referring to the concept of reciprocity as bearing upon the relationship between an agent and a person for whom that agent might act. Secondly, it was argued that although the reward for an agent might in some circumstances come from a third party, it is difficult to contemplate a holding out of such an arrangement and that textually, s.131 does not admit of in grafting that extended meaning upon the term agent as it is there used. It is submitted that the words, “for fee or reward” are governed by the words “holds himself or herself out as willing to act”. On that basis, it is submitted that the fee or reward must move from the consumer. Thirdly, it is submitted there is a right of free speech arising from the Constitution which either might not validly be infringed, having reference to the necessity for the courts of the Federation to operate and for persons to have access to the practitioners in those courts so that they might bring their claims in the courts and also that the Act should be construed or read down so as to ensure the protection of that right. Fourthly, that since Clause 75 is penal in nature, any ambiguity in its construction should be interpreted in favour of the plaintiffs and reliance is placed upon Coco v. The Queen (1994) 179 CLR 427 and Beckwith v. The Queen (1976) 135 CLR 569.

41 It is asserted that there is an arguable case and that on the balance of convenience, the consequences to the plaintiff of a failure to maintain the injunction are such that it remains a necessity until final hearing.

42 In support of the plaintiffs’ argument, he pointed to the absence of any affidavit from Mr. Alderton who issued the notice as to his state of mind and the material upon which he relied. As to the third matter, both as to the direct constitutional question, that is, the claim of a right of free speech, including the right to advertise, asserted to arise under the principal in Nationwide News Pty. Limited v. Willis (1992) 177 CLR 1 and the implication from Chapter 3 of the Constitution said to arise which it is asserted confers a right of access to the courts which extends to allowing the advertising of services such as these.

43 In oral and his latest submissions, the plaintiff supplemented earlier constitutional arguments by adding a further. It made reference to the prospect of there being injured persons who might be entitled to claim for injuries including work place injuries in the exercise of Federal jurisdiction conferred upon State courts pursuant to s.39(2) of the Judiciary Act 1903 and s.77 of the Constitution whose access to the courts and who’s rights to a fair hearing would be impeded.

44 Particular reference was made to possible application to the courts under the Trade Practices Act 1974. It was asserted that an inconsistency to which s.109 of the Commonwealth Constitution applies would arise between the relevant provisions of the Act and its Regulations and the conferral of Federal jurisdiction on the State court analogous to that referred to by the High Court in AMP Society v. Golden (1986) 160 CLR 330.

45 It was asserted that Clause 75 was invalid for each of those three reasons. It was asserted that, even though the proceedings before me were interlocutory and the plaintiffs’ counsel declined the opportunity for me to deal with the proceedings on a final basis, the court should entertain the arguments in particular because the proceedings commenced by the Australian Plaintiff Lawyers Association to which have I referred at the commencement of the this judgment, in the High Court of Australia, had been fully heard and judgment had been reserved.

46 Submissions went so far as to assert that I should read the transcript in the High Court and prognosticate upon the prospects of New South Wales losing the case. Indeed, that it would be a relevant matter for me to determine, applying Castlemaine Tooheys Limited v. State of South Australia (1986) 161 CLR 148 at 154, the probability of New South Wales losing that action.

47 It was those submissions that produced the intervention of the Attorney General of New South Wales. It was argued by the Solicitor General, who appeared on the Attorney General’s behalf, that it would usually be undesirable that a finding of invalidity be made in relation to a Statute on constitutional grounds in the course of interlocutory proceedings; that normally a court would, applying Castlemaine Tooheys case, in considering the balance of convenience assume the validity of the Statute. Further it was put that the constitutional questions should not be decided unless it were unavoidably necessary to do so, but lest the balance of the plaintiff’s submissions were unsuccessful, it was argued that none of the advertisements had anything to do with the discussion of Governmental or political matters in the sense referred to in Lange v. The Australian Broadcasting Corporation (1997) 189 CLR 520. I agree.

48 So far as the subject matter of the ability of individuals to approach lawyers to make claims for compensation for work injuries and to be advised by persons or agents of that entitlement, I do not see that those matters relate so directly to the matters of political discussion to which Lange’s case refers that the implied freedom of communication there discussed would apply to them. There may be questions relating to debate concerning the political appropriateness of penalising such conduct or proscribing such conduct, but that is a different matter.

49 I accept the submissions made by the Solicitor General that no such wide implication arises under Chapter 3 of the Constitution such as to restrict the States from regulating how persons might advise others in relation to the making of claims which might be brought in courts in which Federal jurisdiction is invested. I accept the submission that the regulation of the advertising of legal services deals with conduct that is anterior not only to the making of claims, but to the formation of the lawyer/client relationship. It follows that I am unable to see any fairly arguable basis for the asserted s.109 inconsistency. Here we are dealing with provisions which regulate the making of advertisements of a certain kind and the receiving of fees or rewards for doing so.

50 The provisions do not prevent the bringing of claims, do not restrict access to the courts and otherwise than as preventing the making of such advertisements, do not restrict freedom of speech and, in particular, do not restrict freedom of political discussion.

51 I regard the constitutional points taken as so clearly to be decided in favour of the defendant and the submissions made by the Solicitor General to the extent that I do not regard those points as fairly arguable such as to raise the prospect that on an application for interlocutory relief they necessitate relief be granted to the plaintiffs on the balance of convenience.

52 So far as the reserved decision in Australian Plaintiff Lawyers’ Association & Anor v. State of New South Wales is concerned, I decline to prognosticate as to what course the High Court might take. I do not see that it is appropriate on this application for interlocutory relief before me that I be asked to foretell what course the High Court might take, nor do I see the case as so sufficiently analogous to the present that any question arises of preserving the status quo pending the determination in that case.

53 It follows from what I have said concerning the constitutional points, that I see no fairly arguable basis to read down or narrowly construe for any constitutional reason the provisions of the Act and Regulations.

54 I return to the plaintiff’s arguments concerning the applicability of the statutory provisions. It was argued that Clause 75 did not expressly refer to a person acting on behalf of a lawyer or agent and that, therefore, the power conferred by s.142 to regulate and prohibit advertising by any person for or on behalf of a lawyer or agent, s.142(1)(b), had not been exercised. Thus it was submitted that the word “agent” should be strictly construed according to the “orthodox principles relating to the construction of penal statutes” so as not to include such a person unless that person squarely fell within the Act’s definition of agent.

55 I am content to proceed with the interlocutory application on that basis, although it was submitted on behalf of the defendant that the Act was wide enough to catch a person so advertising either philanthropically or on a gratuitous basis or possibly in hope of some later voluntary benefit in recognition of the advertisement. Such was not, however, the final basis upon which the matter proceeded on behalf of the defendant.

56 In summary, the plaintiff argued that the notice was in excess of power since it was necessary for the authorised officer to believe that the recipient was capable of producing documents relating to a possible contravention; that the authorised officer, Mr. Alderton, issuing the notice could not have had that belief since he was restricted to the matters of fact asserted in the letter from the Acting Chief Executive Officer and the advertisement transcripts attached thereto; that those matters included that the plaintiff was acting for free; that in those circumstances there was no fee or reward or, at least, no fee or reward coming from the consumer to the plaintiff such as to constitute the plaintiff, an agent, within the statutory definition. It was put that all this was at least sufficiently arguable to warrant, where the balance of convenience, as here, falls to be considered in the light of irremedial harm to the plaintiff, the continuation of the injunction.

57 I accept that the plaintiff has demonstrated a sufficient interest and the prospect of such harm for the purposes of considering the balance of convenience.

58 As to urgency, no information was placed before me as to how quickly a final hearing might occur, so that I have no real way to gauge precisely what effect there might be of failing to make an order on the two year limit for investigation. But one year has already gone and I find that, were I to make an order, it could be expected that the substantial part of the remainder would go.

59 Further, I accept as the defendant has submitted:-

“There is no legal or equitable chose in action to prevent an individual, much less a corporation, being investigated. It is not unlawful for the defendant or its inspectors to investigate possible breaches of the Workplace Injury Management & Workers Compensation Act (the ‘Act’) and the Workers Compensation Regulation (together the ‘Workers Compensation Legislation’). Indeed it has a statutory duty to do so pursuant to s.22(1)(a) of the Act. Whether or not certain facts, when ascertained and proved, amount to an offence is a matter for the criminal court in any prosecution. It is not a matter to be determined by a civil court as a pre-requisite to the investigation.”

60 As appears later in the defendant’s written submissions:-

“The defendant has a statutory duty to investigate possible contravention, not to accept the assurance of a suspect or other person that no breach has occurred. In any event, if it be the fact, that no fee passes from the consumer to the agent, that does not obviate the power to investigate. Investigation to ascertain the facts is the very purpose of the power “

61 In argument, that proposition was amplified and it was put to me and I accept that it was not necessary for the authorised officer to believe that on the facts known to him a contravention of the Act or the 1987 Act or the Regulations had occurred, much less that the facts were as set out in the advertisement or in the correspondence. It was merely necessary for that officer to believe that the recipient of the notice is capable of producing documents in relation to a possible contravention. (I interpolate that it may be, though it is not necessary in this case to decide, that this would require some degree of suspicion on the officer’s part. Plainly here there was a degree of suspicion.) It is not necessary here to determine whether “agent” is as was put and I accept it that circumscribed in its meaning as the plaintiff submits. Proceeding for the moment on the basis that it is so circumscribed in meaning, it is still open to the defendant to seek to ascertain what the facts are and whether the plaintiff’s contention that it falls outside the definition of agent is correct.

62 The defendant is not bound to proceed on the plaintiffs’ assertion in the advertisement that it receives no fee. Nor is it necessarily the case that the investigation is aimed at or solely at the first defendant. Indeed the matters stated in the notice as the matters the investigation includes, show the ambit, the matter to which the contents of the documents may relate and the breadth of the information sought. They and that information sufficiently has a nexus with possible contraventions such that the content of the notice could not be said to exceed the object for which the notice giving power was inserted in the Act. I accept the contentions of the defendant and, in particular, am assisted by the passages cited from Seven Network v. ACCC (2004) FCAFC 267 and W.A. Pines v. Bannerman (1980) 41 FLR 175.

63 I further accept that there was no necessity for the defendant to put on evidence to show some additional and further basis for a belief that the plaintiff fell within the definition of agent. (See the decision of Spender, J. in Australian Securities Commission v. Zarrow (1991) 32 FCR 546.)

64 It was for the plaintiff to show that it was at least arguable that it could not factually or legally be suspected of possible contravention or was indeed not the proper subject for investigation for any possible contravention and that its accountant was not a person who might reasonably be believed to be capable of producing documents in relation to a possible contravention by the plaintiff or indeed anyone else.

65 I conclude that there is no evidence before me sufficient to found the prospect that the notice was issued in abuse of the power conferred by the Act or for some purpose extraneous to the Act even proceeding on the view of the construction of the term “agent” submitted by the plaintiff.

66 Although the views that I have already come to render it strictly unnecessary to go further, I should indicate that I am not persuaded that the provisions of the Act do not extend to persons who publish advertisements referring others to lawyers for such claims and who receive a fee or reward from the lawyers rather than the “consumers” for so referring them. It seems to me that there is a very strong argument that the definitions in the Act of agent extend to such persons, particularly when regard is had to s.131(3).

67 It is possible that at the final hearing of a prosecution, questions will arise as to whether the plaintiff might be caught by the definition of agent. That is a different thing to my considering whether or not such a prosecution might be brought to enable that question to be determined. At this stage, I am not considering even that, but merely whether a sufficient arguable case, having regard to the balance of convenience, has been made out that a notice apparently validly issued for the investigation of circumstances which might, on an available statutory construction, show a possible breach of the Act, should be set aside and the investigation into apparently relevant material to a prosecution for a possible contravention halted.

68 Even having regard to the lower standard appropriate to the interlocutory preservation of the plaintiffs’ rights, rather than that applicable at a final hearing, I am not satisfied that the injunction should be continued. In reaching that conclusion, I note that s.243 of the Act creates an offence of disclosure of information obtained under the Act except in specified circumstances and further note that the defendant has given to the court an undertaking that the documents in the envelope will not, without further leave of the court, be used by it for any purpose other than the investigation of possible contraventions of Clause 75 of the Workers Compensation Regulation 2003, thus the use of the documents and their contents will be appropriately confined.

69 I conclude that the application should be dismissed. The plaintiffs are to pay the defendant’s costs.

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