Hagipantelis & Anor v Legal Services Commissioner & Anor

[2010] HCATrans 237

[2010] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S113 of 2010

B e t w e e n -

BANDELI HAGIPANTELIS

First Applicant

ROBERT STANLEY BRYDEN

Second Applicant

and

LEGAL SERVICES COMMISSIONER

First Respondent

ATTORNEY GENERAL FOR THE STATE OF NSW

Second Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 3 SEPTEMBER 2010, AT 12.26 PM

Copyright in the High Court of Australia

MR B. W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS M. FRASER, for the applicants. (instructed by TA Williams)

MR M. J. LEEMING, SC:   May it please the Court, I appear with my learned friend, MS M. J. NAGY for the Attorney, the second respondent. (instructed by Crown Solicitor’s Office)

MR N. J. BEAUMONT:   May it please the Court, I appear for the first respondent. (instructed by Office of the Legal Services Commissioner (NSW))

GUMMOW J:   Yes, Mr Walker.

MR WALKER:   Your Honours, it may be convenient if I were to go first to the provisions which the Chief Justice conveniently sets out, if I may start at page 48 of the application book.  That is section 85.  It follows and is recognised by the provisions of subsection 84(1) which held out liberty of advertising, but immediately subjected it to regulations under section 85.  One moved therefore to section 85.  That authorised, provided power for the making of regulations:

for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services –

That last expression, “that relates to the marketing of legal services”, must be at the heart of my argument –

including (without limitation) regulating or prohibiting –

(a), (b), (c), (d).  We proffer ‑ ‑ ‑

HEYDON J:   Do you have trouble with the word “advertising” in each of those paragraphs?

MR WALKER:   Your Honour, I may ultimately have trouble with “advertising” in each of those paragraphs, but the ‑ ‑ ‑

GUMMOW J:   What do you say about Mr Leeming’s double‑pronged dagger at page 79, paragraph 3 – “two key propositions”?  Do you accept that there are two key propositions?

MR WALKER:   I accept number (1), and though it is not necessary, it is certainly true we have advanced number (2), and it follows that I seek to counter the terse and complete rejection of them by my learned friend.  May I simply say this in answer to Justice Heydon’s earlier question.  What I was about to say was that we proffer as the only reading permitted by this provision for regulations to be made that what follows, that is, “including (without limitation)”, is obviously a list which, as the expression “without limitation” suggests, is not going to be the whole of and is not to be treated as limiting the main or principal description of the scope of regulations, namely:

regulating or prohibiting conduct by any person that relates to the marketing of legal services –

So that the conduct which follows is conduct - kinds of conduct that relates to the marketing of legal services comprising of advertising, advertising, advertising, advertising.  As to (c) and (d), it may be relatively straightforward to see that they are themselves likely mostly to be within the notion of the marketing of legal services.  But simple consideration of the possibilities that your Honours will have seen in practice under 1(a) shows that advertising need not relate to the marketing of legal services.  Advertisements have been published for many years indicating the impending retirement or retrenchment of various forms of legal practice, none of which could be seen to be relating to the marketing of legal services.  There are other announcements ‑ ‑ ‑

GUMMOW J:   Why not?

MR WALKER:   They do not market.  They do not advance anything for sale at all.  They are ‑ ‑ ‑

GUMMOW J:   They say we are losing Mr Bloggs ‑ ‑ ‑

MR WALKER:   No, quite the opposite.

GUMMOW J:   ‑ ‑ ‑ we have got Ms Jones coming in and she will be just as good or better.

MR WALKER:   If one is talking about the availability of Ms Jones coming in, then I am bound to say that the availability of legal services is the subject of that.  It is however, we submit, an error to suppose that all advertisements are necessarily commercial or mercantile, assuming that those are words which assist in understanding the notion of marketing of legal services.  In our submission, they are.  The word “marketing” will suffice to do that.  Similarly, they need not be directed to the promotion of services.  I have already referred to retirement announcements. 

Now, it follows from that that were we correct in saying that there must be marketing attributes to the advertising which follows in (a), (b), (c) and (d), not just any advertising by a barrister, but advertising that relates to the marketing of legal services, one then comes back to the way in which that invitation in section 85 was taken up by the regulation that was made.  Could I take your Honours to page 46 of the application book, where the definition of clause 23 has, on any view of it, some curious attributes.  Could I start at the end?  After having referred to what might be called the substance of the definition, namely:

any communication . . . that advertises or otherwise promotes a product or service –

there follow words which entirely lift any limits, semantic or otherwise, that might have been applied by that description:

that advertises or otherwise promotes a product or service –

because that is said to follow –

whether or not that is its purpose . . . and whether or not that is its effect -

You can have something that has neither the purpose nor effect of advertising or otherwise promoting, and it is within the definition of “advertisement”.  With respect, on the face of that definition in clause 23, we have here something which explicitly severs any relation to conduct that relates to the marketing of legal services.  It is as if the bare words “advertising by a barrister or solicitor” is enough to cover, regardless of the evident mischief, if that be the right word, seen in section 85(1) as the object of regulations that may be made, namely:

conduct . . . that relates to the marketing of legal services -

Your Honours, when one then comes back to page 52 of the application book in the reasons of the Chief Justice, there is there discussion of what the Tribunal called the helpful remarks of Justice Adams in Helpline, the reasoning of which is overruled by this decision.  In paragraph 21, the Chief Justice’s reasons do not, with respect, identify any error in what Justice Adams said concerning the role of paragraphs (a) and (d), but he does go this far to say that:

the purpose of these specific references was to ensure that the regulation making power extends to conduct answering the description of ‘advertising’, even if there may be circumstances in which the concept of ‘advertising’ could be broader than “marketing”.

Bearing in mind that the regulations in question, and the provisions of course, are apt to define standards against which sanctions for misconduct and other professional discipline, let alone the possibility of offences, might be committed, in our submission, that is a reading of section 85 which permits of a severance of the very thing, namely relating to the marketing of legal services, which is announced at the head of section 85(1) to be the ground for granting regulation-making power.

In paragraph 22 of the Chief Justice’s reasons, the point is then made that the use of the word “advertising”, his Honour says:

the reference to “advertising” in each of pars (a)-(d) of s 85(1) puts the matter beyond doubt.

That means, of course, that his Honour is holding that even if advertising goes beyond promotion, then those words again, notwithstanding the requirement or the description of the regulation-making power as one that relates to the regulation of conduct that relates to the marketing of legal services as being within power, in our submission, that reverses the approach to a reading of these provisions which were capable of, and did create, conduct per standards that bring in train penal or quasi‑penal outcomes and for those reasons there is reason to doubt its correctness.

This was a point, namely whether regulations in such terms were within power, that is, the power granted by section 85 that the court noted as not being the subject of being an issue in APLA.  I cannot rely upon any of those observations as demonstrating any particular reason why the outcome in APLA casts any light on why there should be a grant of special leave now, but I do draw to attention that though these provisions have been through the mill in this Court, they have certainly not been attended to by this Court in relation to what might be called the teeth of the exercise, namely the regulations under section 85.

Your Honours, finally, in our submission, the invidiousness of the definition of “advertisement” in clause 23 to which I have drawn attention, namely that something has to be spotted as advertising or otherwise promoting:

whether or not that is its purpose . . . and whether or not that is its effect -

and one which is deserving of attention as a regulation that has to fit within power.  That, in our submission, is a prime candidate for doubt as to whether anything in section 85 went so far.  For those reasons, in our submission, this is a case in which there should be a grant of special leave.

GUMMOW J:   We have your written submissions, Mr Leeming.  We do not need to hear from you any further.  We do not need to hear from you either, Mr Beaumont.

The decision of the New South Wales Court of Appeal was correct.  Special leave will be refused with costs.

We will adjourn until 2.15.

AT 12.37 PM THE MATTER WAS CONCLUDED