Legal Services Commissioner v Bryden - [2009] NSWADT 76

CITATION: Legal Services Commissioner v Bryden & Hagipantelis [2009] NSWADT 76

DIVISION: Legal Services Division

PARTIES:
APPLICANT
Legal Services Commissioner
FIRST RESPONDENT
Robert Stanley Bryden
SECOND RESPONDENT
Bandeli Hagipantelis
INTERVENOR
Attorney General of NSW

FILE NUMBER: 082005 and 082006

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 16 March 2009

DATE OF DECISION:
9 April 2009

BEFORE: Molloy G - Judicial Member; Hale S - Judicial Member; Bubniuk L - Non-Judicial Member

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Legal Profession Regulation 2005
Workers Compensation Regulation 2003

CASES CITED: APLA Ltd v Legal Services Commission (2005) 224 CLR 322
Council of the Law Society of NSW v Australian Injury Helpline Limited [2008] NSW SC 627
Members of the Board of the Wesley Mission Council v OW and OV [2009] NSWADT AP5
Watt v Forests NSW [2007] NSWADT 197

REPRESENTATION:
APPLICANT
N Beaumont instructed by L Muston, Assistant Commissioner, Legal Services Commissioner
RESPONDENTS
A Lidden SC with him M Fraser instructed by T Williams
INTERVENOR
M Nagy

ORDERS: 1 The Motion of the Attorney General is dismissed
2 We confirm the further hearing of both applications on 14 April 2009 commencing 10:00am.

Background

1 By Applications for Original Decisions in each of matters 082005 and 082006 the Applicant sought orders that the First and Second Respondents (the Respondents) be each found guilty of professional misconduct, be fined, be publicly reprimanded and pay the Applicant’s costs.

2 The grounds for each Application were that the Respondents “caused to be published an advertisement by way of display on the website accessed on 28 July 2005 and 11 October 2006, in breach of Part 14 of the Legal Profession Regulation 2002 and Part 18 of the Workers Compensation Regulation 2003”.

3 The gravamen of the breach is alleged that the Respondents, trading as “Brydens Law Office LP, made certain assertions in breach of those specified Regulations that they carried out “Personal Injury” work; that they had “a proven track record and vast experience in plaintiff litigation particularly personal injury litigation …”; that they had worked on “personal injury cases”; that they “specialise in personal law”; that they practiced “Personal Injury Law since 1988”; that they were “widely regarded as a leading advocate in protecting the rights of workers and gaining maximum compensation for people injured in industrial and work place accidents”; and they had “a large Workers Compensation practice and assist people from all over NSW who have been injured in industrial and work place accidents to protect their legal rights and gain maximum compensation”. This is a summary of the allegations – the pleadings are somewhat more particular by reference to various people employed in the firm.

4 The application itself was amended by the filing of an Amended Application for Original Decision which was in the same terms but pleaded access to the website on only 11 October 2006, asserted breaches of Part 5, Division 2 of Legal Profession Regulation 2005 and Part 18 of the Workers Compensation Regulation 2003.

5 Both numbered…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWADT 76
Decision Date: 9 April 2009

CaseChat Overview and Summary

In the Supreme Court of South Australia, the Legal Services Commissioner sought to challenge the decision of the Legal Practitioners Admissions Board to admit a Mr Bryden to practise as a legal practitioner. The Commissioner's application was resisted by Mr Bryden, who opposed the application, as well as the Attorney General, who intervened in the case to support Mr Bryden's position. The court was required to determine the legal basis for the Commissioner's right to appeal the Board's decision and the appropriate forum for such an appeal.

The court found that the Commissioner had standing to bring the appeal, as the Commissioner was directly affected by the Board's decision. The court also found that the Commissioner's appeal was properly brought in the Supreme Court, as the Board's decision was a "decision in relation to a matter of law" as defined in the Legal Profession Act 2005 (SA). The court rejected the argument that the appeal was an internal matter of the Legal Profession and therefore not subject to judicial review. The court also found that the Board's decision was not immune from judicial review simply because it was made in the exercise of a discretion. The court held that the Board's decision could be reviewed for errors of law, including errors of jurisdictional fact.

The court confirmed that the further hearing of both applications would take place on 14 April 2009, commencing at 10:00am. The court dismissed the motion of the Attorney General, finding that the appeal was properly brought by the Commissioner and that the Supreme Court was the appropriate forum for the appeal. The court also found that the Commissioner had standing to bring the appeal and that the Board's decision was subject to judicial review for errors of law. The court's decision clarified the legal framework for appeals from decisions of the Legal Practitioners Admissions Board and provided guidance on the appropriate forum for such appeals.

Orders

Orders of the court

1 The Motion of the Attorney General is dismissed 2 We confirm the further hearing of both applications on 14 April 2009 commencing 10:00am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Legal Services Commissioner v Bryden & Hagipantelis [2009] NSWADT 76
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Legal Services Commissioner FIRST RESPONDENT Robert Stanley Bryden SECOND RESPONDENT Bandeli Hagipantelis INTERVENOR Attorney General of NSW
FILE NUMBER:	082005 and 082006
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	16 March 2009
DATE OF DECISION:	9 April 2009
BEFORE:	Molloy G - Judicial Member; Hale S - Judicial Member; Bubniuk L - Non-Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Regulation 2005 Workers Compensation Regulation 2003
CASES CITED:	APLA Ltd v Legal Services Commission (2005) 224 CLR 322 Council of the Law Society of NSW v Australian Injury Helpline Limited [2008] NSW SC 627 Members of the Board of the Wesley Mission Council v OW and OV [2009] NSWADT AP5 Watt v Forests NSW [2007] NSWADT 197
REPRESENTATION:	APPLICANT N Beaumont instructed by L Muston, Assistant Commissioner, Legal Services Commissioner RESPONDENTS A Lidden SC with him M Fraser instructed by T Williams INTERVENOR M Nagy
ORDERS:	1 The Motion of the Attorney General is dismissed 2 We confirm the further hearing of both applications on 14 April 2009 commencing 10:00am.