Legal Services Commissioner v Bryden (No 2)
[2009] NSWADT 131
•3 June 2009
CITATION: Legal Services Commissioner v Bryden (No 2) [2009] NSWADT 131 DIVISION: Legal Services Division PARTIES: APPLICANT
Legal Services CommissionerFIRST RESPONDENT
SECOND RESPONDENT
Robert Stanley Bryden
Bandell HagipantelisFILE NUMBER: 082005, 082006 HEARING DATES: 15 December 2008 and 14 April 2009 SUBMISSIONS CLOSED: 28 April 2009
DATE OF DECISION:
3 June 2009BEFORE: Molloy G - Judicial Member; Hale S - Judicial Member; Bubniuk L - Non-Judicial Member CATCHWORDS: Jurisdiction - ultra vires regulation LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Legal Profession Act 2004
Legal Profession Regulation 2005
Workplace Injury Management Act and Workers Compensation Act 1998
Workers Compensation Regulation 2003CASES CITED: Allison v General Council of Medical Education and Registration [1894] QBD750
APLA Ltd v Legal Services Commissioner (2005) 224 CLR322
Council of the Law Society of NSW v Australian Injury Helpline Limited [2008] NSW SC 627
Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSW CA349
Bailey v Bailey (1884) 13QBD 855REPRESENTATION: APPLICANT
N J Beaumont instructed by Lynda Muston, Assistant Commissioner, Legal Services CommissionerRESPONDENT
INTERVENOR
A J Lidden SC with him M Fraser instructed by T A Williams
M Nagy, barristerORDERS: 1. The Tribunal declares:
a)Regulation 24 of Legal Profession Regulation 2005 is not ultra vires the Legal Profession Act 2004
b)Regulation 75 of Workplace Compensation Regulation 2003 is not ultra vires the Workplace Injury Management Act and Workers Compensation Act 1998
c)Regulation 24 Legal Profession Regulation 2005 does not require a conviction to be recorded or found against a lawyer as a prerequisite to a disciplinary Application being brought and prosecuted in this Tribunal against that lawyer
2. These proceedings will be listed for directions before the Presiding Judicial Member at 9.30am on Monday 22 June 2009
3. Liberty to apply.
General 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 alleged breaches is that the Respondents, trading as “Brydens Law Office LP”, made certain assertions in breach of those specified Regulations that:
a) they carried out “Personal Injury” work;
b) 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”;
c) they practiced “Personal Injury Law since 1988”;
d) 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
e) 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 proceedings were directed to be heard together and both came before this Tribunal on 15 December 2008 for hearing.
6 In the Tribunal’s Decision Legal Services Commissioner v.Bryden and Hagipantelis [2009] NSWADT 76 the Tribunal recited the result of an Application to Amend Pleadings and dealt with the Application by the Attorney General to refer to the Supreme Court a question of law, namely:
“Whether cl. 24 of the Legal Profession Regulation 2005 is ultra vires the Legal Profession Act 2004”.
7 The Tribunal held that it had the power to determine that question and, in any event, it was proper that the proceedings commenced in this Tribunal should be heard in an orderly fashion and in accordance with the usual procedures and, for the reasons therein set out, declined to refer the question to the Supreme Court.
Current Proceedings
8 There are two primary issues of an interlocutory nature now placed before this Tribunal for determination, as follows:
a) Whether cl.24 Legal Profession Regulation 2005 is ultra vires
b) Whether proceedings may be brought in this Tribunal under cl,24 without first having succeeded in a criminal prosecution for the alleged offence; and whether cl.24 ought to be struck down or disallowed because of the “double jeopardy” inherent in its terms.
9 In order to answer those questions it is firstly necessary to set out, in detail, the relevant portions of the legislation.
The Legislation
10 We now set out the relevant sections and clauses as they apply to the issues before us:
Legal Profession Act 2004
Section 3 :
“The purposes of this Act are as follows:
a) to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of clients of law practices and the public generally.
b) to facilitate the regulation of legal practice on a national basis across State and Territory boarders”.
Section 83:
“Client access:
(1) ….
(2) Solicitors: Solicitors may accept any clients, subject to the solicitor’s rules and the conditions of any relevant practicing certificate.
(3) Contracts: a barrister or solicitor may enter into a contract for the provision of services with a client or with another legal practitioner …
(4) ….
(5) ….”
Section 84:
“84(1) A barrister or solicitor may advertise in any way the barrister or solicitor thinks fit, subject to any regulations under section 85.
(2) However, an advertisement must not be of a kind that is or that might reasonably be regarded as:
a) false, misleading or deceptive, or
b) in contravention of the Trade Practices Act 1994 of the Commonwealth, the Fair Trading Act 1987 or any similar legislation.
(3) A contravention by a barrister or solicitor of subsection (2) is capable of being professional misconduct or unsatisfactory professional conduct, whether or not the barrister or solicitor is convicted of an offence in relation to the contravention.”
Section 85:
“Regulation of advertising and other marketing services
(1) The regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services, including (without limitation) regulating or prohibiting any of the following:
a) advertising by a barrister or solicitor,
b) advertising by any person for or on behalf of a barrister or solicitor,
c) advertising by any person in connection with the provision of legal services,
d) advertising by any person of services connected with personal injury.
(2) The regulations under this section may create an offence punishable by a penalty not exceeding 200 penalty units.
(3) The Attorney General may direct a person in writing not to engage in conduct described in the direction if the Attorney General is satisfied that:
a) the conduct contravenes the regulations under this section, and
b) the person has been engaging in conduct of that or a similar kind.
(4) The Tribunal may, on application made under subsection
(5) direct a barrister or solicitor not to engage in conduct if the Tribunal is satisfied that:
a) the conduct contravenes the regulations under section 142 of the Workplace Injury Management and Workers Compensation Act 1998, and
b) the barrister or solicitor has been engaging in conduct of that or of a similar kind”.
(5) An application made to the Tribunal may be made under this section by the appropriate Council or the Commissioner.
(6) ….
(7) ….
(8) A person who contravenes a direction under this section is guilty of an offence. Maximum penalty: 200 penalty units.
(9) A contravention by a barrister or solicitor:
a) of a direction under this section or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998 is professional misconduct, or
b) of a regulation under this section (or under section 142 of that Act) is professional misconduct, but only if the regulation declares that the contravention is professional misconduct.
(10) ….
(11) ….
(12) In this section:
“personal injury” includes pre-natal injury, impairment of a person’s physical or mental condition or a disease.
Section 86:
Specialisation
(1) A barrister or solicitor must not advertise or hold himself or herself out as being a specialist or as offering specialist services, unless the barrister or solicitor:
a) has appropriate expertise or experience, or
b) is appropriately accredited under an accreditation scheme conducted or approved by Bar Council or Law Society Council.
(2) The Bar Council or Law Society Council is required to approve an accreditation scheme if directed to do so by the Attorney General.
Section 738
738 Regulations:
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) Without limiting the generality of subsection (1) the Governor may make regulations for or with respect to matters for or with respect to which legal profession rules have been or may be made.
(3) A regulation may create an offence punishable by penalty not exceeding 100 penalty units, unless another maximum is authorised by another provision of this Act to be included in relation to the offence concerned.
(4) A regulation may provide for the payment of a prescribed amount instead of a penalty that may otherwise be imposed for an offence against this Act or the regulations.
(5) ….
(6) ….
Workplace Injury Management and Workers Compensation Act 1998 :
Section 142
142 Regulation of Advertising
(1) 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 (without limitation) regulating or prohibiting any of the following:
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 connected to injuries.
(2) A regulation may not be made under this section except with the concurrence of the Minister administering the Legal Profession Act 2004.
(3) Any such regulation can impose a penalty not exceeding 200 penalty units for any contravention of the regulations.
(4) ….
(5) ….
(6) ….
(7) ….
Legal Profession Regulation 2005
Division 2 Promotion of Personal Injury Legal Services
Regulation 23
23 Definitions
In this division:
a) “advertisement” means any communication of information (whether by means of writing, or any still or moving image or message or audible message, or any combination of them) that advertises or otherwise promotes a product or service, whether or not that is its purpose or only purpose or whether or not that is its effect or only effect.
“Personal injury” includes pre-natal injury, impairment of a person’s physical or mental condition, and disease.
“publish” means:
a) publish in a newspaper, magazine, journal, periodical,
directory or other printed publication, or
b) disseminate by means of the exhibition or broadcast of a photograph, slide, film, video recording, audio recording or other recording of images or sound either as a public exhibition or broadcast or as an exhibition or broadcast to persons attending a place for the purpose of receiving professional advice, treatment or assistance, or
c) broadcast by radio or television; or
d) display on an internet website or otherwise publicly disseminate by means of the internet, or
e) publicly exhibit in, on, over or under any building, vehicle or place or in the air in view of persons in or on any street or public place, or
f) display on any document (including a business card or letterhead) gratuitously sent or gratuitously delivered to any person or thrown or left in any premises or on any vehicle, or
g) display on any document provided to a person as a receipt or record in respect of a transaction or bet.
“solicitor” includes the following:
a) a partnership of which a solicitor is a member (but only if the business of the partnership includes business of a kind ordinarily conducted by a solicitor),
b) a solicitor corporation,
c) an unincorporated legal practice.
Regulation 24:
24 Restriction on Advertising Personal Injury Services:
(1) A barrister or solicitor must not publish or cause or prevent to be published an advertisement that promotes the availability or use of a barrister or solicitor to provide legal services if the advertisement includes any reference to or depiction of any of the following:
(a) personal injury,
(b) any circumstance in which personal injury might occur, or any activity, event or circumstance that suggests or could suggest a possibility of personal injury, or any connection to or association with personal injury or a cause of personal injury,
(c) a “personal injury legal service” (that is, any legal service that relates to the recovery of money, or any entitlement to recover money, in respect of personal injury).
Maximum penalty: 200 penalty units.
(2) A contravention of this clause by a barrister or solicitor is declared to be professional misconduct.
Note: A contravention of clause 75 of the Workers Compensation Regulation 2003 can also be a contravention of this clause.
(3) Evidence that a barrister or solicitor has been convicted of an offence under this clause or under clause 75 of the Workers Compensation Regulation 2003 is sufficient evidence of a contravention of this clause by the barrister or solicitor for the purposes of any proceedings under Chapter 4 (Complaints and discipline) of the Act.
Regulation 25:
25 Exception of certain advertisements by community legal centres.
This subdivision does not apply to the publication by or on behalf of a complying community legal centre of an advertisement that would constitute a contravention of clause 24 by reason only that it advertises or promotes services provided by the community legal centre in connection with:
(a) domestic violence, or
(b) discrimination, or
(c) sexual assault, or
(d) victims of crime.
Regulation 26:
26 Exception for advertising speciality:
(1) This subdivision does not prevent the publication of an advertisement that advertises a barrister or solicitor as being a specialist or offering specialist services, but only if the advertisement is published by means of:
(a) an entry in a practitioner directory that states only the name and contact details of the barrister or solicitor and any area of practice of accredited speciality of the barrister or solicitor, or
(b) a sign displayed at the place of business of the barrister or solicitor that states only the name and contact details or the barrister or solicitor and any accredited speciality of the barrister or solicitor, or
(c) an advertisement of an internet website operated by a barrister or solicitor publication of which would be prevented under this subdivision solely because it refers to personal injury or personal injury legal services in a statement of accredited speciality of the barrister or solicitor.
(2) In this clause:
“accredited speciality” of a barrister or solicitor means a speciality in which the barrister or solicitor is accredited under an accreditation scheme conducted or approved by the appropriate Council.
“practitioner directory” means a printed publication directory or data base that is published by a person in the ordinary course of the person’s business (and not by the barrister or solicitor concerned or a partner, employee or member of the practice of the barrister or solicitor).
Regulation 27 – Other Exceptions
This subdivision does not prevent the publication of an advertisement:
(a) to any person who is already a client of the barrister or solicitor (and to no other person), or
(b) to any person on the premises on the place of business of the barrister or solicitor, but only if the advertisement cannot be seen from outside those premises; or
(c) ….
(d) ….
(e) ….
(f) ….
(g) ….
Regulation 28
28 Responsibility for Employees and Others
For the purposes of this subdivision, evidence that a person who is an employee of a barrister or solicitor, or a person otherwise exercising functions in the barrister’s or solicitor’s practice, published or caused to be published an advertisement is evidence (in the absence of a evidence to the contrary) that the barrister or solicitor caused or permitted the publication of the advertisement.
Regulation 30
30 Double Jeopardy
A person who has been convicted of an offence under Part 18 of the Workers Compensation Regulation 2003 is not, if that offence would constitute an offence under this subdivision in respect of the publication of an advertisement, liable to be convicted of an offence under this subdivision in respect of that publication.
Workers Compensation Regulation 2003
Regulation 75
75 Restriction on advertising work injury services:
A lawyer or agent must not publish or cause or permit to be published an advertisement that promotes the availability or use of a lawyer or agent or provide legal services or agent services if the advertisement 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 suggests 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).
Maximum penalty: 200 penalty units.
Note: A contravention of this clause can also be a contravention of Part 14 of the Legal Profession Regulation 2002. A contravention of that Part by a lawyer constitutes professional misconduct.
Regulations 75A, 76, 77, 78, 78A and 79:
These regulations relevantly mirror the similar regulations set out above under the Legal Profession Act 2004.
11 Armed with the above legislation the Legal Services Commissioner (“the Commissioner”) brought proceedings in the Tribunal alleging breaches of the legislation, and it is now necessary to set out the allegations made by the Commissioner. It is important to understand that this Tribunal has not yet embarked upon a hearing of the allegations themselves, such that any observations made in this Decision are observations made purely for the purpose of this Decision and do not operate at all to determine the issues agitated by the Commissioner and resisted by the Respondents.
The Allegations
12 Although we set out above, in general terms, the allegations made by the Commissioner, the purpose thereof was to set the scene or give some flavour to this decision. It is appropriate now to set out in detail the allegations as pleaded by the Commissioner in the Amended Application that has been filed by leave granted 15 December 2008 (see ex-tempore decision of the Tribunal made that day and referred to in Legal Services Commissioner v. Bryden & Hagipantelis [2009] NSWADT 76 at [6-7]).
13 Firstly, the Amended Applications seek orders in each case that:
a) the relevant Respondents are “guilty of professional misconduct”,
b) they each “be fined”,
c) they each “be publicly reprimanded”, and
d) they each “pay the costs of and incidental to the filing and hearing of the Information (sic)”.
14 In each case there is one ground only pleaded in the following terms:
“The practitioner caused to be published an advertisement by way of display on the website accessed on 11 October 2006 in breach of Part 5, Division 2 of the Legal Profession Regulation 2005 and Part 18 of the Workers Compensation Regulation 2003”.
15 In support of this ground particulars were provided as follows:
“On 11 October 2006 the Commissioner initiated a complaint against the practitioner that he had breached Part 5 Division 2 of the Legal Profession Regulation 2005 and Part 18 of the Workers Compensation Regulation 2003 by way of display on the website by inclusion of the words:
Personal Injury (Our services)
Brydens Law Office LP has a proven track record and vast experience in Plaintiff litigation particularly personal injury litigation …” (Protecting Your Future).
“Robert has worked on some of the most difficult and challenging personal injury cases in Australia” (Robert Bryden’s profile)
“Robert graduated in 1981 from Sydney University and has specialised in personal injury law since that time”. (Robert Bryden’s profile).
“Lee has been practising Personal injury Law since 1988 …” (Lee Hagipanteliss’ profile)
“…is widely regarded as a leading advocate in protecting the rights of workers and gaining maximum compensation for people injured in industrial and workplace accidents.” (Mary Nguyen’s profile).
“Togia has a large Workers Compensation practice and assists people from all over NSW who have been injured in industrial and workplace accidents to protect their legal rights and gain maximum compensation (Togia Char’s profile).
Request for Particulars
16 Prior to the filing of the Amended Application (by leave) the lawyer for the Respondents delivered to the Commissioner a formal request for particulars. In his response the Commissioner asserted breaches of Part 5, Division 2 Legal Profession Regulation 2005, Part 18, Division 2 Workers Compensation Regulation 2003 and Section 85 Legal Profession Act 2004. He accepted that the “advertisements do not appear to breach any other Act or Regulation”. He asserted that various words would breach the Regulations, observed “that although the word “compensation” (on its own) would not ordinarily be considered to breach the regulations, it is subject to context. It (was his) submission that the context in which the word “compensation” is used … would breach the regulations”. The Commissioner in particular seized upon the words “personal injury”, “Personal Injury”, “compensation”, “people injured”, “industrial and workplace accidents”, “workers compensation”, “injured” and “compensation” where appearing in the particulars (set out above).
17 The Commissioner relied upon the definition of “personal injury” and “work injury” to extend to “any circumstance in which personal injury (or work injury) might occur, or any activity, event or circumstance that suggests or could suggest the possibility of personal injury (or work injury), or any connection to or association with personal injury (or work injury) or a cause of personal injury (or work injury)”.
18 There were some further requests for further and better particulars, and responses, and the Commissioner clarified (letter 23 May 2008) that “although each bullet point (in the Particulars) individually constitute a contravention of the Regulations we consider them to form one advertisement (by way of display on the website on the same date) and therefore constitute a single ground in our Application for Original Decision”.
Preliminary Observations
19 It is necessary firstly to dispose of various arguments that were raised during the course of the hearing which, in our respectful opinion, do not affect the determination of the issues that we are asked to decide. We were given lengthy and detailed references to the definitions of “advertise”, “advertisement”, “marketing” (and various derivatives eg “marketing problem” and “marketing strategy” and “promote”). In our opinion, and save as to some references below, it is not necessary for us to examine or decide upon the meaning or meanings to be ascribed to the relevant words in the legislation – this, if necessary, can await further determination when the facts are properly before the Tribunal and the issue asserted by the Commissioner is heard on its facts.
20 Similarly, the Attorney through his counsel provided to this Tribunal a list of cases which referred to the ability or jurisdiction of a tribunal to determine the validity of regulations. Again, and because of our decision 9 April 2009, there is no need for us to refer further to those cases in any sort of detail save that it was conceded, we think, that there was no actual authority binding upon this Tribunal one way or the other. It was submitted that this Tribunal must proceed on the basis or presumption that the regulations are valid and it was not within the power of this Tribunal to make declaration to the contrary.
21 It seems to us, however, that it would be quite inappropriate and perhaps even improper, for a statutory tribunal to blindly accept that a regulation was valid without at least some effort to determine its validity. One can test this argument by the principle reductio ad absurdum: for example, if a regulation was made under the Legal Profession Act (“the Act”) which required every lawyer to wear a blue ear-ring when practising law then, even if the Act itself made such a provision or permitted the Governor to promulgate a regulation to that effect, one might not unreasonably argue that such a regulation (or section of the Act) was ultra vires. So, it seems to us, that a tribunal, when considering an argument that a regulation is valid or invalid or made within power or ultra vires, should at least turn its attention to the issue. A tribunal is not a mere cipher or a rubber stamp.
Approach to be taken
22 In order to answer the questions posed by the Respondents the Tribunal proposes to:
a) review the relevant statutes;
b) review relevant decided cases;
c) to set out the various questions posed; and
d) deal with them seriatim.
The Law
The Statute
23 The starting point when considering the construction of a statute, or a contract, is the source document itself. In the case before the Tribunal it is primarily the Legal Profession Act 2004 (“the Act”) and the Legal Profession Regulation 2005 (“the Regulations”).
24 Starting at Section 3 the Act makes it plain that the Parliament intended to regulate legal practice. Firstly, “in the interest of administration of justice”; secondly, “for the protection of clients of law practices”; and thirdly, the protection of “the public generally”. Those are the bases of the Act and on those foundations the Parliament has constructed one of the most voluminous acts in this State.
25 As part of that edifice the Parliament has, in the Act itself, set out, often in fine detail, restrictions and entitlements that control or affect the practice of law in this State and the relationship between lawyers and the relationship between lawyers and their clients. In addition, the Parliament has enacted detailed regulations and practice rules, all in fine detail. The totality of the legislative package leads this Tribunal to conclude, and clearly conclude, that the Parliament intended to create a detailed regime for the practice of law. Why lawyers are singled out for this treatment is not clear but, that having been said, that is clearly the intent of the legislation, the regulations and the various rules. There is no need to trawl through the details because it is plain from a perusal of the legislation, Regulations and rules the clear intent of the Parliament.
26 Sections 81 and 82 make it plain that persons practising as barristers and solicitors practise subject to the relevant rules and, obviously, subject to the Act and the Regulations.
27 Section 83 makes it plain that lawyers may accept any clients, but subject to the various rules and the conditions of their relevant practicing certificates. Section 83 also extends the relationship to that between lawyers.
28 Section 84 makes it plain that a lawyer may advertise in any way he or she thinks fit, subject however to what would now be regarded as normal restrictions, namely that such advertisements should not be “false, misleading or deceptive” or be in contravention of the Commonwealth Trade Practices Act or the NSW Fair Trading Act. Should an advertisement be false, misleading or deceptive or be in contravention of either of those Acts then the conduct of the lawyer “is capable of being professional misconduct or unsatisfactory professional conduct, whether or not the barrister or solicitor is convicted of an offence in relation to the contravention”. Pausing at this point, there are two aspects arising from Section 84(2) and (3):
a) Firstly, the lawyer does not need to be convicted of an offence in relation to the contravention but, and importantly, if he or she is convicted of an offence that does not stop the lawyer from being found guilty of professional misconduct or unsatisfactory professional conduct.
b) Secondly, the contravention of sub-section (2) is not of itself professional misconduct or unsatisfactory professional conduct, but rather is capable of being so found. Clearly, the circumstances would need to be examined to see whether the lawyer’s conduct in breaching sub-section (2) is so capable – one can imagine circumstances where a contravention of the Commonwealth or State Acts would not constitute professional misconduct or unsatisfactory professional misconduct – each case would need to be determined on its particular facts. But the important point is this: the contravention of sub-section (2) is not automatically by statute professional misconduct or unsatisfactory professional conduct.
29 The other restriction on advertising in Section 84(1) is that such advertising is “subject to any regulations” made under section 85. So, one does not simply look at section 84 for advertising restrictions but rather one needs also to look at Section 85.
30 Section 85 starts off with the heading “Regulation of Advertising and Other Marketing of Services”. Subsection (1) permits regulations to be made “regulating or prohibiting conduct … that relates to the marketing of legal services”. In Section 4 of the Act “legal services” is defined as “work done, or business transacted, in the ordinary course of legal practice”. Thus, so it seems to us, the Parliament has reserved unto itself the power to make regulations regulating or prohibiting conduct by (relevantly) lawyers that relates to the marketing of “work done, or business transacted, in the ordinary course of legal practice”. Argument relating to that definition is not before us and we do not propose to embark upon an analysis of that definition. But it is important to make the point that the opening words of Section 85(1) are not restrictive, because what follows are these words: “including (without limitation) regulating or permitting any of the following …” such that, so it seems to us, regulations can be made within the terms of sub-section (1) but outside the terms of the further sub-sections (a)-(d) inclusive. These sub-sections deal with advertising and it may be (but without deciding) the word “marketing” may include activities other than advertising.
31 Whatever may be the position it is plain from section 85(1) that the regulations may make provision “regulating or prohibiting any of …” :
a) advertising by a barrister or solicitor;
b) advertising by any person on behalf of a barrister or solicitor;
c) advertising by any person in connection with the provision of legal services;
d) advertising by any person of services connected with personal injury.
Thus it seems that the regulations may regulate or prohibit advertising by a lawyer whether or not that advertising deals with “services connected with personal injury”. In other words, it is arguable that the Parliament has reserved to itself the right to make regulations relating, not only to advertising in the general sense but also conduct “that relates to the marketing of legal services”.
The alternative view, which we adopt, is that the words in the sub-sections are limited by the words “relates to the marketing of legal services” such that if a regulation or prohibition as envisaged does not “relate to the marketing of legal services” then it would unarguably be ultra vires. For example, it would be drawing a long bow to, by regulation under Section 85, prohibit a solicitor from wearing a blue ear-ring, and claim that “related to the marketing of legal services”.
32 The issue before us is really section 85(1)(d) which, on the pleadings, is the subsection relied upon by the Commissioner to bring these proceedings against these Respondents, the Commissioner asserting that this sub-section coupled with the Regulations (as to which see below) is statutory professional misconduct.
33 The next important sub-section is section 85(2). This provides:-
“The regulations under this section may create an offence punishable by a penalty not exceeding 200 penalty units”.
An offence is a crime. As a general rule the standard of proof is to the criminal standard, ie. beyond all reasonable doubt. There is good reason for that: a finding against a respondent lawyer may well result in a criminal conviction and a possible fine. That is a serious matter.
34 The importance of section 85(2) is that it permits the Regulations to create an offence punishable by a penalty not exceeding 200 penalty units. This is to be contrasted with section 738, the general regulation section of the Act. There is no need to examine each sub-section of this section 738 except to observe that in sub-section (3) it is stated that a “regulation may create an offence punishable by a penalty not exceeding 100 penalty units …” – the importance of this, as will be seen, is that the regulation relied upon by the
Commissioner creates an offence “punishable by a penalty not exceeding 200 penalty units” such that it must follow that the regulation relied upon by the Commissioner is not a regulation made under Section 738 but rather a regulation made under section 85(2).
35 This conclusion is fortified by sub-sections (3) – (7) (which relate to directions been given by the Attorney General to (relevantly) lawyers not to engage in the conduct so described, coupled with power in this Tribunal to direct a lawyer not to engage in such conduct; an application can be made to the Tribunal by the relevant Council or the Commissioner and the Tribunal is to deal with the matter initially ex parte). But the important point is this: in sub-section (8) a person who contravenes a direction under section 85 “is guilty of an offence” and the maximum penalty is “200 penalty units”.
36 What follows from all this? Firstly, there is created under section 85(8) a statutory offence for which the maximum penalty is 200 penalty units. There is no need to rely on any regulation – it is clearly set out in the statute. Secondly, it is plain that the Parliament regarded a breach of section 85 in a much more serious way than it would regard a breach of a regulation made under section 738.
37 Nextly, and importantly, subsection (9) makes it plain that a contravention of a direction made under section 85 or under section 142 of the Workplace Injury Management and Workers Compensation Act 1998 “is professional misconduct”. It is plain from the legislation that if a lawyer breaches a direction, either a direction by the Attorney General under subsection (3) or a direction by the Tribunal under sub-section (4), then the lawyer is guilty of “professional misconduct” by statute. It is odd, to say the least, that there is nothing in sub-section (9), or elsewhere, that requires the lawyer to be served with any direction such that, at least on its face, a lawyer might be guilty of professional misconduct without even knowing that the Attorney General or the Tribunal had made a direction under section 85. This is so notwithstanding sub-section (11) which provides that a direction under section 85 “may be amended or revoked”; and is reinforced by sub-section (10) which provides that the “Attorney General is not required, before giving a direction under this section, to notify the person to whom the direction is given or any other person who may be affected by the direction” and sub-section (7)(c) which requires this Tribunal ‘to conduct an initial ex parte hearing for the purpose of determining whether to issue a direction pending the final determination of the matter”.
38 The reason that we have been to so much trouble in analysis of section 85 is, not so much to make any final determination in relation to some of the issues that may arise from its implementation, but rather to emphasise that the Parliament has regarded advertising by members of the legal profession in a rigorous manner which differs from other persons and professions in our community. Lawyers are required to comply with the Commonwealth Trade Practices Act and the NSW Fair Trading Act. Not only are they required to not engage in “false, misleading or deceptive” advertising, but also are governed by section 85 and the promulgated regulations thereunder. So, lawyers have been identified as a specific class of persons and the Parliament has made it plain that it regards sections 84 and 85 as so important as to warrant the imposition of 200 penalty units, both by the Act itself and, as we shall see, by the regulations made under section 85.
39 Before considering the relevant regulation it is educative to look at a couple of other sections of the Act. Firstly, reference should be made to section 86 which restricts a lawyer from advertising or holding him or herself out “as being a specialist or as offering specialist services” unless the lawyer has “appropriate expertise and experience, or … is appropriately accredited under an accreditation scheme …”. In other words, a lawyer can advertise as being a specialist or as offering specialist services provided he or she satisfies one or both of those requirements. That having been said, however, it is plain that section 86 is subject to 85, such that an advertisement that a lawyer is a specialist or offers specialist services can be subject to section 85 and the regulation power thereunder. Secondly, all of sections 81 through to 90 are sections under Division 9 of the Act which is titled “Practice as a Barrister or Solicitor”. There are, indeed, other Divisions and sections of the Act that deal with the business of practice as a lawyer but Division 9 clearly regulates aspects of legal practice that the Parliament thought were important enough to make special provision.
40 It is now appropriate to look at Legal Profession Regulation 2005, regulation 24. This regulation is under Division 2, titled “Promotion of Personal Injury Legal Services”. We have set out above, in detail, the Regulations that we regard as important to consider, for this reason: in our opinion the Regulations, taken as a whole, and whether made under section 85, alternatively section 738, evidence an intention by the Parliament to seriously regulate advertising in relation to the provision of legal services in personal injury matters. So, for example cl.25 provides an exemption for certain types of publications by a Community Legal Centre; cl.26 provides for restricted publications in practitioner directories, the place of business of the lawyer and (importantly) does not prevent the publication of an advertisement that advertises a lawyer being a specialist or offering specialist services by means of “an advertisement on an internet website operated by (the lawyer) the publication of which would be prevented under this subdivision solely because it refers to personal injury or personal injury legal services in a statement of accredited speciality of (the lawyer)”. This is an important sub-regulation because an “accredited speciality” is defined (in cl.26(2)) as “a speciality in which the (lawyer) is accredited under an accreditation scheme conducted or approved by the appropriate Council”. In other words, so it seems to us, cl.26(1)(c) permits a lawyer to say on his/her website that he/she is an accredited specialist in personal injury law. If this is a correct interpretation then whatever cl.24 may say certainly cl.26(1)(c) permits a limited advertisement that only relates to specialist accreditation and not to the provision of legal services in personal injury matters.
41 Nextly, cl.27 also grants certain exceptions to cl.24. In this decision we seek to focus on cl.27(b) which makes it plain that the publication of an advertisement “to any person on the premises of a place of business of (a lawyer)” is not prohibited “but only if the advertisement cannot be seen from outside those premises”. So, a lawyer can put up in his/her place of business a poster advertising personal injury legal services and have that seen by all persons (clients or otherwise) who come into his/her office, even though some or all of those persons may not be seeking damages for personal injury, provided that the advertisement “cannot be seen from outside those premises”. So, presumably, one can advertise to one’s own clients, and advertise to other persons who enter your premises, provided that the advertisement cannot be seen from outside those premises. Thus, the Parliament seems to be saying that those clients and those persons are members of the public who do not need to be “protected” under cl.24.
42 Moving on: cl.28 provides that a lawyer accepts responsibility for his/her employees or, indeed, agents and others who publish a prohibited advertisement, in the absence of evidence to the contrary. To similar effect cl.29. We shall address cl.30 later in this decision.
43 The purpose of the above recitation relating to the Regulations is to indicate that cl.24 (which we shall now address) is part of a legislative scheme which seeks to regulate, not by total but rather by discrete and targeted processes, advertising legal personal injury services.
44 Now turning to cl. 24. This regulation firstly creates a criminal offence (cl.24(1)). The maximum penalty is 200 penalty units. That penalty is consistent with the regulation making power granted under section 85 of the Act. A lawyer can be prosecuted under that sub-regulation and end up with a criminal conviction and an appropriate fine. The Parliament clearly regarded the publication of advertisements promoting the availability or use of a lawyer to provide personal injury legal services as a serious matter, so serious that it could well result in a criminal conviction.
45 Secondly, cl.24(2) provides that should a lawyer breach cl.24(1) then that contravention “is declared to be professional misconduct”. This type of professional misconduct is often described as “statutory professional misconduct”. Similarly, a contravention of cl.75 Workers Compensation Regulation 2003 “can also be a contravention of this clause”. Cl.75 Workers Compensation Regulation 2003, not only makes it plain that a lawyer cannot publish an advertisement that promotes the availability or use of a lawyer to provide legal services depicting work injury etc; and the Note to that regulation states:
“A contravention of this clause can also be a contravention of Part 14 of the Legal Profession Regulation 2002. A contravention of that Part by a lawyer constitutes professional misconduct”.
Thus it can be seen that a contravention of cl.75, where the advertisement goes past “work injury” and enters the realm of “personal injury” then it clearly constitutes statutory professional misconduct under cl.24 Legal Profession Regulation 2005. It is interesting that cl.24 makes no reference to “work injury” such that, presumably, the Parliament was seeking to differentiate between “work injury” and “personal injury” such that a breach of cl.75 Workers Compensation Regulation 2003 may, in itself and depending upon the words used in the advertisement, constitute, or not constitute, a breach of cl.24 Legal Profession Regulation 2005. Presumably, the Parliament aimed to differentiate between these two matters because the Note to cl.24(2) does not create a contravention of cl.24 (by way of breach of cl.75 Workers Compensation Regulation) but simply states that such a breach of cl.75 “can” also be a breach of cl.24. It might have been better to simply state: “a contravention by a barrister or solicitor of clause 75 of the Workers Compensation Regulation 2003 is also a contravention of this clause”, particularly where cl.24(3) provides that evidence of a conviction under cl.75 “is sufficient evidence of a contravention” of cl.24 by the lawyer. It may be that the proper reading of cl.24(3) requires one to effectively disregard the Note in cl.24(2) and give effect to cl.24(3) such that a conviction of an offence under cl.75 Workers Compensation Regulation is evidence of a contravention of cl.24. Finally, the Note to the Workers Compensation Regulation refers to Legal Professional Regulation 2002, not 2005.
46 Cl.24(3) also provides that a conviction under cl.24(1) is “sufficient evidence” of a contravention by a lawyer of cl.24(1) for the purposes of disciplinary proceedings under Chapter 4 of the Legal Profession Act. Chapter 4 deals with “Complaints and Discipline” and, in section 497, gives a non-exclusive definition of “professional misconduct”; and in section 498 conduct that is capable of being “professional misconduct” is, inter alia, (section 498(1)(a)) “conduct consisting of a contravention of this Act, the regulations or the legal profession rules”.
47 Nextly, and importantly, section 498(2) provides that conduct “of a person consisting of a contravention referred to in subsection (1)(a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention”. This is an important subsection because the Respondents submitted that there was some form of double jeopardy implicit in cl.24. But it is plain, in our view, that section 498(2) provides that where there is “conduct consisting of a contravention of this Act, the regulations or the Legal Profession Rules” within section 498(1)(a), then that conduct is capable of being unsatisfactory professional conduct or professional conduct whether or not the lawyer is convicted of an offence in relation to the contravention of section 498(1)(a). Thus it must follow, in our opinion, that cl.24 not only creates a criminal offence (if so proved to the relevant standard) but also states clearly that a contravention of the clause “is declared to be professional misconduct”. It therefore must follow that firstly, one does not require a conviction as a pre-requisite to a finding of statutory professional misconduct but rather one only needs to prove, to the standard that applies in this Tribunal, a contravention of cl.24(1); secondly, cl.24 creates two separate paths available to the Commissioner or the relevant council to follow. We shall refer to this later in this decision. And this leads us to the argument on “double jeopardy”.
48 It was submitted by the Respondents that they should not be subject to double jeopardy: ie, that it was inherently wrong for the Commissioner to assert a contravention of cl.24 without firstly having prosecuted the Respondents, or the Respondents should not be made liable to a professional conduct hearing and then still be liable to the possibility of a criminal prosecution as well. When this proposition was put to counsel for the Commissioner the Tribunal was informed that the position on behalf of the Commissioner was that he could commence criminal and civil proceedings at the same time (or presumably at different times), that the regulation provided two parallel streams for different purposes – one for criminal purposes and one for professional conduct purposes, the latter for the protection of the public (although one would have thought that a criminal prosecution would also be for the protection of the public) – and it may well be that in the case of dual proceedings one may be stayed in order to avoid prejudice.
49 Reliance was placed on Legal Profession Act Section 600 which provides that a “complaint can be made and dealt with even though the (lawyer) concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint”; Section 689A, which is an important section because it deals with the “functions of commissioner in relation to advertising offences” and provides, in sub-section (1) that in “addition to the commissioner’s other functions, the commissioner may institute prosecutions for an offence against section 85 (Regulation of advertising and other marketing of services) or regulations made under that section”, and sub-section (5) which provides that section 689A “does not limit any powers that may be exercised apart from this section by the commissioner …” (in other words, bringing proceedings in this Tribunal); section 498(1)(a) (to which we have made detailed reference above); and section 537 which makes it obligatory (by the use of the word “must”) for the Commissioner, after having completed an investigation of a complaint against a lawyer, must “commence proceedings in the Tribunal …” or dismiss the complaint or deal with the complaint “by caution, reprimand, compensation order or imposition of conditions”.
50 With respect to those submissions this Tribunal would entirely agree. It seems to us that cl.24 does in fact give to the Commissioner (and the relevant Council) two heavy-duty avenues in actions against lawyers advertising personal injury and work injury services. The Commissioner and any relevant Council would be entitled, in our opinion, to proceed down either, or both, of the paths permitted under cl.24. There is therefore no “double jeopardy” but rather the Parliament has regarded this type of advertising as so serious as to warrant, not only professional conduct proceedings but also criminal proceedings. This view is supported by cl.24(3) which provides that evidence that a lawyer “has been convicted of an offence under (cl.24 or cl.75 Worker Compensation Regulation) is sufficient evidence of a contravention” of cl.24 by the lawyer for the purposes of disciplinary proceedings in this Tribunal. What cl.24(3) does not say is that the conviction is a prerequisite. Rather, what it says is that if a lawyer has been convicted of an offence then also the lawyer can have disciplinary proceedings taken against him/her and the Commissioner or relevant Council can rely upon the conviction as evidence of the contravention of cl.24 which, by cl.24(2), is declared to be professional misconduct.
51 Although we understand, and have carefully considered, the submissions made on behalf of the Respondents, we are of the respectful opinion that, and having regard to the law generally (to which we make reference below) and although it may be said to be unfair, unworkable, a misuse of the cl.24 power, and that the subject matter is not sufficiently reprehensible to warrant a criminal conviction, in our opinion, the Parliament has clearly, for whatever reason, directed its mind to advertising for personal injury work and work injury work and enacted the legislation/regulations that it has in order to limit, monitor and regulate that type of advertising.
Ultra Vires
52 The Respondents submitted that cl.24 was ultra vires, or beyond the rule-making power, or beyond section 3 Legal Profession Act. The Respondents relied upon a decision of Adams J in Council of the Law Society of NSW v. Australian Injury Helpline Ltd [2008] NSWSC 624, in particular [24]. The Respondent submitted that His Honour’s observations in [24] provided sufficient reasoning for this Tribunal to hold that cl.24 was beyond the rule-making power permitted by section 85. It was submitted that section 85 is ‘inconsistent with the general regulation making power and is therefore the only regulation making power in the Act concerning advertising” and that “promoting the availability or use of a barrister or solicitor to provide legal services is wider than marketing, and for that reason cl.24 is also ultra vires and void”.
53 We shall address the Helpline case later in this decision. However, at this point, it is sufficient to make these observations: section 84 is specifically made “subject to any regulations under section 85”; section 85 quite specifically, and in detail, deals with “regulation of advertising and other marketing of services” and makes it plain (section 85(1)) that the “regulations may make provision for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services” , and the balance of section 85(1) is non-inclusive. It is therefore plain to this Tribunal that the regulatory power in section 85(1) is not limited to advertising for “services connected to personal injury” but rather “regulating or prohibiting conduct (our emphasis) by any person that relates to the marketing (our emphasis again) of legal services. “Conduct” incorporates, but is not limited to, advertising. “Marketing” clearly includes advertising. Thus it is plain that the regulatory power under section 85 includes power relating to advertising but also, and importantly, includes power “with respect to regulating or prohibiting conduct” that relates to “marketing”.
54 In those circumstances, and without considering any caselaw, it seems to us that cl.24 is clearly within the regulatory power created under section 85(1). Indeed, cl.24 was clearly envisaged by section 85(2) and, perhaps for better assurance, section 85(1)(d) (enabling regulations with respect to “advertising by any person of services connected with personal injury”) and is clearly within the regulatory/prohibition power in section 85(1).
Relevant Caselaw
55 The Tribunal now proposes to address various cases relied upon by the Commissioner, the Respondent and/or the Attorney General. In so doing and as part of its analysis the Tribunal proposes to refer to the relevant details of the cases and then express its opinion and then move on to the next case.
56 The first case relied upon by the Respondents, and their lynchpin, is the Helpline case: this was a decision of Adams J 20 June 2008. Proceedings were brought by the Law Society against the defendant alleging that the defendant had “advertised the provision of legal services contrary to Legal Profession Regulation 2005 and (had) engaged in legal practice or represented that it (had) engaged in legal practice contrary to ss14 and 15 of the Act”. The defendant’s business (at [2]) was “the referring of injured persons to lawyers on a panel maintained by it, obtaining fees for work associated with the referrals, which is undertaken in a manner that enables the successful plaintiff to obtain payment for the work from the unsuccessful defendant by way of a disbursement payable as part of a costs order”. The service was advertised on a website, the website contained “personal injury advertising” and it was claimed (at [3]) that injured persons were encouraged to use the defendant and its panel because “the lawyers on its panel are highly respected in personal injury litigation” and “they will conduct the litigation, if undertaken, not only with efficiency but also keeping the client fully informed of each step in the process”. In the final wash-up an injunction was granted against the defendants from engaging in conduct in breach of sections 14 and 15 Legal Profession Act 2004.
57 However, as part of the decision, His Honour concluded that regulation 34 Legal Profession Regulation 2005 was not authorised by the Legal Profession Act “and is invalid”. It was to that issue that the attention of the Tribunal was directed.
58 His Honour found at [11] that the Legal Profession Act contained “a general regulating-making power in section 738 and a specific regulation-making power concerning “the marketing of legal services in s.85”. The case itself, however, did not involve any lawyer – rather the defendant, being neither a barrister or solicitor, “its conduct so far as advertising is concerned is governed by sub-division 3 of division 2 of the Regulation” and the relevant clause was cl.33. His Honour concluded at [18], that the regulation-making power of s.738 of the Act (save as to s.738(2) which authorised the control of advertising by lawyers) “the control of advertising for legal services by others could not, I think, be “carrying out or giving effect to” the Act”.
59 His Honour then turned to s.85 which, he said, “made specific provision for regulations dealing with the marketing of legal services” and expressed the opinion, at [21], that “it is essential that the regulations be confined to conduct relating to matters that comprise two vital linked elements: “marketing of legal services”. His Honour then went on then to consider the word “marketing” at [24] and concluded “that the word connotes, in substance the proposed sale by the marketeer, or someone on whose behalf the marketeer is acting, of a product or service and urging the audience to buy”.
60 His Honour went on to say [24] “each case will inevitably be one of fact and degree but the test must be whether the regulation is limited to the statutorily defined conduct and, if similes are used in place of the statutory language, whether they remain inside the connotation of the statutory language. Accepting that “advertising” must mean more than mere informing, since the phrase in the definition is “advertising or otherwise promoting”, it seems to me … that this is considerably wider in scope than “marketing”. In short “promoting” means commending or encouraging; it does not involve any notion of sale – in short, any notion of a market. If, on the other hand “advertising” is not an example of promoting, but stands independently, so that it means merely informing, then the regulation moves even further outside the statutory authority. On either construction, therefore, the regulations grasp exceeds the limits imposed by the Act”.
61 Adams J placed strong reliance on the observations of McHugh and Kirby JJ in APLA v. Law Society of NSW (2005) 224 CLR 322. We shall come to this decision in a moment. But doing the best we can with Helpline His Honour held that cl.34(1) was ultra vires the Legal Profession Act because, effectively, the words used in cl.33 and 34 were too wide and were not authorised by s.85.
62 The key to understanding Helpline is to recognise that the defendants were not lawyers. The advertising prohibition arose out of cl.34(1)(b) which provided that a “person must not publish or cause to permit to be published a personal injury advertisement if the advertisement:
a) advertises or otherwise promotes the availability or use of a barrister or solicitor … to provide legal services, whether or not that is its purpose or only purpose and whether or not that is its effect or only effect, or
b) includes any reference to or depiction of the recovery of money or a claim for money, or any entitlement to recover money or claim money, in respect of personal injury.
A maximum penalty “200 penalty units” applied. His Honour Adams J reviewed the definition of “advertisement” and “publish” in cl.23 and concluded that “the control of advertising for legal services by others could not be “carrying out or giving effect to” the (Legal Profession Act)”. At [20] His Honour observed that he was “not here concerned with any constitutional invalidity, merely with the question of whether the regulation is validly made within the authority given by the Act”, and emphasised that “the reach of the Regulation (and suggested) that it grasps conduct significantly beyond that relating to the marketing of legal services”.
63 So, His Honour focused on the words “carrying out or giving effect to this Act” in s.738(1), and “the marketing of legal services” in s.85(1) and concluded that in both cases cl.34, at least as it applied to non-lawyers, was ultra vires in “that cl.34(1)(b) was deliberately drafted to apply to services that were by no means limited to legal services” [29].
64 It is important to note that Adams J. found, not only that cl.34(1) was ultra vires the Legal Profession Act but, in addition, cl.34(2) and (3) were also ultra vires and therefore void. Cl.34(2), although it referred “specifically to lawyers”, did not refer to them “in respect of their conduct or functions” (at [31]) and, if it could be supported, “this must be by reference to s.85(1) of the Act, since there is nothing in the Act, the carrying out or effectuation of which might be assisted by it, subcl 34(2) must, therefore, also fall” and cl.34(3) must also fall (or fail) because it depends upon the survival of the other subclauses.
65 It was submitted that cl.34 “is relevantly similar to cl.24 and for the reasons expressed by Adams J (in Helpline) at [24] is wider than authorised under s.85 …”.
66 It is therefore appropriate to see precisely what Adams J said at [24]. Before getting to [24] His Honour looked at the regulation making power found in s.85(1) which, and doing the best that we can, seemed to His Honour to be limited to “conduct by any person that relates to “the marketing of legal services …” (our emphasis); then looked at cl.34(1) which referred to “personal injury advertisement”, then considered the definitions of “advertisement” and “publish” in cl.23 and concluded at [21] “that it is essential that the regulations be confined to conduct relating to matters that comprise two vital linked elements: “marketing of legal services”.
67 His Honour then made the following observations at [24]:
“[24] Accepting that publish means, in effect, the public dissemination of information and that what is prohibited is the promotion of a product or service, such a communication may nevertheless not amount to “marketing”or “conduct relating to marketing” although it seems that the draftsperson of the regulations might have thought that the definitions of advertisement and publish did so. The mere public discussion of the desirability of involving lawyers in personal injury litigation, even if that discussion promoted the use of lawyers in the sense that it is commended or encouraged will not, without more, amount to marketing or to conduct relating to marketing. Nor would the objective imparting of information about legal services amount to marketing, even if the effect would be that the use of legal services was encouraged. Marketing, as it seems to me, requires more. The Macquarie Dictionary defines the word as: “The act of buying or selling in a market”. The Oxford English Dictionary defines it as: “The action or business of bringing or sending a product or commodity to market; (now chiefly, Business) the action, business, or process of promoting and selling a product, etc, including market research, advertising and distribution”. It seems to me that the word connotes, in substance, the proposed sale by the marketeer, or someone on whose behalf the marketeer is acting, of a product or service and urging the audience to buy. Of course, charities might engage in marketing in the hope of attracting donations, but this is not different in principle. Each case will inevitably be one of fact and degree but the test must be whether the Regulations is limited to the statutory defined conduct and, if synonyms are used in place of the statutory language whether they remain inside the connotation of the statutory language. Accepting that “advertising” must mean more than mere information, since the phrase in the definition is “advertising or otherwise promoting means commending or encouraging; it does not involve any notion of sale – in short, any notion of a market. If, on the other hand, “advertising” is not an example of promoting, but stands independently, so that it means merely informing, then the Regulation moves even further outside the statutory authority. On either construction, therefore, the Regulation’s grasp exceeds the limits imposed by the Act”.
68 The difficulty that we see is this: s85 permits regulations to be made “for or with respect to regulating or prohibiting conduct by any person that relates to the marketing of legal services” but it goes on to include “(without limitation regulating or prohibiting … advertising by a barrister or solicitor” … and “advertising by any person in connection with the provision of legal services” … and “advertising by any person of services connected with personal injury”.
69 His Honour’s reasoning, at [24], proceeds from the basis that “marketing” “connotes in substance the proposed sale by the marketeer, or someone on whose behalf the marketer is acting, of a product or service and urging the audience to buy”. He then formed the view that “advertising” was “considerably wider in scope than “marketing” and then seized upon the word “promoting” or “promotes” (in cl.24(1)(a) and the OED definition) and concluded that the regulation “moves even further outside the statutory authority”.
70 This Tribunal is unable to embrace that logic. S.85(1) uses the word “relates to” when referring to “marketing of legal services”. It is the use of the word “relates” that makes it plain that the Parliament wished to embrace the concept of “marketing” in its widest sense. Secondly, His Honour relied upon the OED definition which includes “the action, business or process of promoting and selling a product, etc, including market research, advertising, and distribution”. If, “marketing” includes “advertising” then clearly advertising in caught by section 85(1).
71 Helpline was directed to a claim against a non-lawyer in relation to another regulation. Clause 34(1)(b) was a regulation deliberately drafted to apply to services that were not limited to legal services. Regulation 23 is expressly limited to the provision of legal services. Cl.34 was framed far too widely such that it fell outside the regulation making power in section 85, and is phrased in an entirely different fashion, prohibiting any person, whether a barrister or solicitor or not, from publishing or permitting to be published a personal injury advertisement if the advertisement:
“(a) advertises or otherwise promotes the availability or use of a barrister or solicitor (whether or note a particular barrister or solicitor) to provide legal services, whether or not that is its purpose or only purpose and whether or not that is its effect or only effect, or,
(b) includes any reference to or depiction of the recovery of money or a claim for money, or any entitlement to recover money or claim money, in respect of personal injury”.
72 It seems to us that the Helpline decision should be confined to its facts and the circumstances that were before Adams J. One can understand – clearly understand – His Honour’s reluctance to uphold cl.34. It was far too wide. But that reasoning does not apply to cl.24. This regulation is limited to barristers and solicitors – thus it is confined in a way that cl.34 was not. Mind you, s.85(1)(c) and (d) are not themselves limited to members of the legal profession – rather the words used are “any person” – so, although clearly those words embrace members of the legal profession they would also embrace the public generally. That argument can await another day.
73 It seems to the Tribunal that, although Helpline is helpful (no pun intended), it is not determinative of the issue before the Tribunal. The difficulty that confronts the Respondents is that Helpline is directed to a claim against a non-lawyer. Although ultimately the Law Society was successful, it succeeded on another ground, namely breaches of sections 14 and 15 of the Act. We do not think Helpline is of assistance to the Respondents.
74 The next primary authority relied upon was APLA Limited v. Legal Services Commissioner [2005] CLR 322, [2005] HCA 44. This was really a constitutional case. The members of APLA Ltd were lawyers. The appellant wished to place in various newspapers and a telephone directory certain advertisements concerning the legal rights to compensation of persons who had been injured and the availability of information concerning such legal rights from members of the appellant.
75 The debate between the parties and ventilated in court arose out of Legal Profession Act 1987 s.216 and Part 14 of the Legal Profession Regulation 2002. Generally speaking Part 14 “prohibited the publication of an advertisement for legal services which referred to personal injury”.
76 It seems to this Tribunal that the arguments advanced in the High Court were peculiarly constitutional and peculiarly in relation to the Commonwealth Constitution; such that the prohibition was not in breach of that Constitution, neither did the prohibition prevent respective litigants from obtaining advice from lawyers.
77 Save as to what follows, the Tribunal does not find it necessary to review in any further detail the APLA decision. It is peculiarly a Commonwealth Constitutional decision.
78 Gleeson CJ and Hayden J, commencing at [1] reviewed in detail the various regulations and, absent Commonwealth constitutional arguments, appear to have assumed that the regulations were otherwise valid. At [25] Their Honours said this:
“Whatever the policy merits of these changes to the regulatory environment in which lawyers practise, the restraints on conduct effected by the regulations in issue in this case are not significantly different from restraints that applied by virtue of professional self-regulation throughout most of the twentieth century. All that is new is the limitation of those restraints to personal injury services”.
79 At [31] Their Honours said:
“The question for this Court is not whether the uninhibited promotion of legal services will increase what is sometimes described as access to justice. There are policy arguments for and against allowing lawyers to advertise. One argument in favour of such advertising is that it makes legal services more accessible to some citizens, and thereby increases awareness of rights and assists in enforcement of rights. We are concerned, however, not with such questions of policy, but with a legal question which is to be resolved, not as a matter of opinion or personal preference, but as a matter of judgment upon a defined issue”.
80 And, at [44] and [45] their Honours said this:
“[44] Preventing lawyers from advertising does not impair the federal legislation referred to in the case stated. Indeed, most of the legislation was originally enacted at a time when restriction on advertising by lawyers was the generally accepted professional standard. None of the federal legislation depends for its efficacy upon the unrestricted promotion of legal services. The rights, powers and jurisdictions created have full legal effect and operation regardless of whether, at any given time, the States or Territories permit or restrict advertising by lawyers.
[45] The argument for the plaintiffs appears to be based upon the motive of the New South Wales Parliament, or of the regulation-making authority. That is irrelevant. If the regulations are inconsistent with federal legislation, then they are inoperative to the extent of the inconsistency. It does not matter why they were promulgated. If they are not inconsistent with federal legislation, then they are not inoperative. Again, it does not matter why they were promulgated.”
81 There is no need to refer to other portions of the Judgment of the High Court.
82 Strictly speaking, there is no need for this Tribunal to refer to other authorities. It seems to us that cl.24 is clearly within the regulation making power in ss84 and 85. S.84(1) in its terms makes it plain, coupled with s.85(1) and (2). S.85(1) clearly speaks of “regulating or prohibiting conduct by any person that relates to the marketing of legal services” (in those very wide terms to which we have made reference above) and includes “advertising by a barrister or solicitor” (again in those very wide terms), “advertising by any person in connection with the provision of legal services” and “advertising by any person of services connected to personal injury”. Nothing, so it seems to us, could be plainer. Regulation 24(1) prohibits a “barrister or solicitor” from (inter alia) publishing “an advertisement that promotes the availability or use of a barrister or solicitor to provide legal services if the advertisement includes any reference to … personal injury … any circumstance in which personal injury might occur … a “personal injury legal service” … that relates to the recovery of money, or any entitlement to recover money, in respect of personal injury …”.
83 This Tribunal is of the clear view that cl.24 is valid. It is of the same view when it comes to cl.75 Workers Compensation Regulation 2003. Cl.75 is clear in its terms. The source of the regulation making power is to be found in the Workplace Injury Management and Workers Compensation Act 1998, section 142, set out above. For the purposes of the arguments as advanced it seems to us that there is no difference in phraseology or legal principle and we agree with the submission made by counsel for the Commissioner to the effect that “that accordingly Clause 75 of the Regulation is valid for the reasons submitted in the case of Clause 24 of the Legal Profession Regulation mutatis mutandis”. Consequently, in our opinion cl.75 is valid.
Power of this Tribunal
84 In the course of argument it was submitted that this Tribunal had no power at all to determine the validity or invalidity or severance of any regulation or section. We confess we had difficulty in understand that argument. We agree with the submissions of the Respondents to the effect that the Tribunal is required to apply the law. Regulations which are ultra vires the regulation making power of the governing legislation are not the law and so cannot be applied. Furthermore, it was submitted that it “would be ridiculous, and perhaps wrongful, conduct on the part of the Tribunal to purport to apply a regulation it considered invalid”. Indeed it would be an impossible obligation to impose upon a Tribunal and its members to be asked to simply rubber stamp a regulation, or legislation, that was ultra vires. That is not the job of this Tribunal. If it is suggested that somehow the Tribunal should simply enforce the law as it stands, without examining, or disregarding, its validity, then that may well create severe injustice. Although it seems to be the law that the courts reserve unto themselves the power to determine constitutional validity (see, for example Attorney-General (NSW) v. 2UE Sydney Pty Ltd [2006] NSW CA349) there may be occasions where parties may not have the resources nor the inclination to challenge legislation in the courts and thus, absent an enquiring Tribunal, an injustice may be visited upon one or more of the parties due to a failure by the tribunal to recognise that the law that it is asked to apply is, or maybe, ultra vires. It is, happily, not necessary for this Tribunal to venture further down that path, having regard to the conclusion that it has reached that the regulations are valid.
Double Jeopardy
85 The Respondents submitted, and strongly submitted, that the Commissioner could not commence and maintain proceedings in this Tribunal without having first obtained a conviction under cl.24(1).
86 It will be remembered that cl.24(1) imposes a “maximum penalty: 200 penalty units”. This is a criminal law penalty. A prosecution under cl.24(1) requires proof to the criminal standard, a different standard that applies in this Division.
87 We were referred to Pearce and Gettes on “Statutory Interpretation in Australia”, 6th Ed at [5.35]. Here the learned authors referred to an observation by Brett MR in Bailey v. Bailey (1884) 13QBD 855 at 859 where His Lordship said:
“It is an old and well known rule of construing statutes that when a special remedy is given for the failure to comply with the directions of a statute that remedy must be followed, and not other can be supposed to exist”.
88 A number of additional authorities were cited, but none of them, and the observation in Bailey, seem to us to refer to the way in which the Parliament has enacted this regulation.
89 What this regulation does is two things: firstly, it creates a criminal offence, punishable by fine; secondly, its states that a contravention of the clause “is declared to be professional misconduct”. The use of the word “contravention” may lead one to conclude that it means a criminal contravention. We do not read it in that way. Cl.24(1) is clearly a prohibition, whether or not supported by a criminal conviction. This is plain from cl.24(3) which states that evidence of a conviction “is sufficient evidence of a contravention of this clause by the barrister or solicitor for the purposes of …” disciplinary proceedings in this Tribunal. What cl.24(3) does not say is that evidence of the conviction is the only evidence of contravention – rather it simply says that it is evidence of such contravention. That does not, in its own words, preclude evidence being obtained by methods other than a successful prosecution. In other words, a successful prosecution under cl.24(1) is not the only avenue available to the Commissioner (or the relevant Council) such that, so it seems to us, the Commissioner (as in this case) can bring these proceedings without having to travel down the criminal prosecution path.
90 The Respondents submitted that there were “sound policy reasons why a criminal conviction should be obtained before embarking on disciplinary proceedings”. It was submitted that in “pursuing a finding of professional misconduct based solely upon a contravention of the regulation … the Commissioner is asking the (Tribunal) to find that conduct which may be intrinsically quite proper is somehow inimical to the interests of administration of justice and to be conduct in respect of which the solicitor’s clients and the wider public require protection”.
91 It was further submitted that in exercising the jurisdiction in this Division, the Tribunal is carrying out a task that is “inherently protected” and that in the circumstances of cl.24 the Tribunal “may act only on the basis of a conviction, which is statutorily declared to be professional misconduct (such that) upon proof of the conviction … (the Tribunal) is relieved of any duty to make a finding pursuant to s.562(1) and may proceed directly to a consideration of s.562(2)”.
92 To proceed otherwise would be “unfair” because it would “bypass the double jeopardy provisions”.
93 This is a fairly powerful argument because, under s.660 legal practitioners are required to co-operate with an investigation and may be required to produce documents, provide written information, or otherwise assist in or co-operate with an investigation; such that “in circumstances where disciplinary proceedings precede or (are) concurrent with criminal proceedings, the legal practitioner may well be compromised (in relation to) his or her conduct of the criminal proceedings.”. Reference was made to s.724 which, in its terms, seem to abandon the concepts of legal professional privilege, privilege against self-incrimination and any other duty of confidence, such that, even if a person objects to providing documents or information on the ground of self-incrimination and even though the document or information is “inadmissible in evidence in any proceeding against the person for an offence” it is specifically stated that such is not inadmissible in relation to “an offence against this Act” which would, in its terms, embrace s.85.
94 So, it was submitted, if “the disciplinary proceedings depend upon the outcome of criminal proceedings … then the Commissioner would need to gather evidence in the normal way which does not require the legal practitioner to assist in proving the charge against him or her … in disciplinary proceedings the legal practitioner is required to answer the application and to file and serve any evidence in support of his or her case. This is not a requirement in criminal proceedings, and the need to answer, or desirability of answering, the case in the (Tribunal) may put the prosecutor on notice of any defence the legal practitioner may wish to rely upon or, alternatively, provide a springboard in the criminal investigation process”. In addition, it was also admitted that there could well be “the prospect of inconsistent findings as between the (Tribunal) and the Local Court or Industrial Relations Commission, with the possibility that subsequent criminal proceedings may represent a collateral attack on some or all of the findings of the disciplinary tribunal”.
95 Clearly, there is a certain tension between the normal proceedings in this Tribunal and the criminal type of proceedings envisaged by s.85 and cl.24. However, it seems to us that:
a) s.85(1) permits the regulations to prescribe or proscribe conduct.
b) that conduct, relevantly to the matter now before us, includes conduct by a barrister or solicitor.
c) that conduct is conduct of a professional nature which may, or may not, be regarded as professional misconduct.
e) s.85(2) permits the regulations to create a criminal offence.
f) s.85(9) provides that a contravention of a regulation made under s.85 “is professional misconduct” but, and importantly, only if the regulation declared that the contravention is professional misconduct”. In other words, the regulation may well be silent on whether the conduct contravention is or is not professional misconduct.
g) cl.24(1) creates a criminal offence.
h) cl.24(2) declares that offence to be statutory professional misconduct.
i) a conviction is sufficient evidence of a contravention of cl.24(1) for the purposes of disciplinary proceedings.
96 What all this means is that a legal practitioner can be fined twice for the same conduct; once in the criminal courts and once again in the Tribunal (s.562(4)(a)).
97 But does all of this mean that cl.24(1) only creates a criminal offence? In the view of the Tribunal the answer to that question must be: No. In our opinion cl.24(1) creates a conduct prohibition as well. Thus, a breach of cl.24(1) is a breach of a statutory conduct rule that applies to barristers and solicitors. Although it is true that arguments by analogy are not logically valid, reference can be made to Legal Profession Act s.255, for example. This section provides that a law practice must hold trust money “exclusively for the person on whose behalf it is received” and must disburse such trust money “only in accordance with a direction given by a person”. S.255(1) provides that a breach of that requirement leaves one open to a “maximum penalty: 50 penalty units”. But in our view that is not the only remedy available – s.255(1) creates, not only a criminal offence, but also a rule of professional conduct. Indeed, one may wonder why it is there in those terms because it is already a rule of professional conduct and also is an equitable rule relating to trust money. Clearly, it is there to create the criminal penalty as well such that a breach of s.255(1) constitutes professionally inappropriate conduct and criminal conduct. Understandably so.
98 Similarly, a breach of cl.24 results in a breach of professional conduct and a criminal offence as well.
99 A breach of s.255 can result in a criminal prosecution, with an appropriate fine; and appropriate proceedings in this Tribunal which may well result in, inter alia, yet another fine or other exercise of power by this Tribunal under s.562.
100 It is plain to us that the Parliament intended to create, not only a criminal offence but also a rule of professional conduct. This may well lead to a form of “double jeopardy”, a punishment twice for the same conduct, but in different jurisdictions and for different purposes (our emphasis). The Parliament clearly thought that a breach of cl.24 was one that would merit a criminal prosecution as well as a professional conduct complaint to this Tribunal. The purposes are different and the remedies are different. For the reasons that we have stated above the Parliament clearly thought that advertising by barristers and solicitors in breach of cl.24 ought to result in, inter alia, criminal prosecution – if a breach of s.255 relating to trust money can result in a maximum penalty of 50 penalty units, how much more serious must Parliament have regarded a breach of advertising in cl.24, coupled with s.85, where the penalty is 200 penalty units?
101 Finally, it is plain that Parliament itself did not regard the “double whammy” possibility as constituting some sort of “double jeopardy” – it clearly bore this in mind when enacting cl.30, directing its mind to the possibility of two prosecutions arising out of the same factual circumstances and ensuring that did not happen; but there is nothing, so it seems to us, that would operate to require the Commissioner or a Council to elect and nothing to require there to be a criminal conviction as a prerequisite to an adverse professional conduct finding.
102 The Tribunal is clearly of the opinion:
a) cl.24 and cl.75 are not ultra vires;
b) cl.24 does not deprive this Tribunal of jurisdiction to find a contravention of that regulation without first obtaining a conviction.
103 The proceedings should be re-listed at a convenient time for further directions before the Presiding Judicial Member in accordance with the Orders below.
ORDERS
1. The Tribunal declares:
a) Regulation 24 of Legal Profession Regulation 2005 is not ultra vires the Legal Profession Act 2004.
b) Regulation 75 Workplace Compensation Regulation 2003 is not ultra vires
the Workplace Injury Management Act and Workers Compensation Act 1998.
c) Regulation 24 Legal Profession Regulation 2005 does not require a conviction to be recorded or found against a lawyer as a prerequisite to a disciplinary Application being brought and prosecuted in this Tribunal against that lawyer.
2. These proceedings will be listed for directions before the Presiding Judicial Member at 9.30am on Monday 22 June 2009.
3. Liberty to apply.
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