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

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

DIVISION: Legal Services Division

APPLICANT Legal Services Commissioner

FIRST RESPONDENT Robert Stanley Bryden PARTIES: 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

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

APLA Ltd v Legal Services Commission (2005) 224 CLR 322 CASES CITED: 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

APPLICANT N Beaumont instructed by L Muston, Assistant Commissioner, Legal Services Commissioner

REPRESENTATION: 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.

REASONS FOR DECISION 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 www.brydens.com.au, 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 proceedings were directed to be heard together and both came before this Tribunal on 15 December 2008 for hearing. 6 The Applicant sought leave to amend his pleadings and the Tribunal, after hearing argument, indicated that it was plain why the Applicant found it necessary to seek the amendments sought such that no further or exculpatory information was necessary nor appropriate to be led. The Tribunal formed the opinion that it was a matter of the process of this Tribunal and that the amendments met all the statutory and common law tests of fairness and lack of prejudice in the particular circumstances of this case. 7 The Tribunal granted leave to amend, such that the application before the Tribunal was the Amended Application filed that day in the Tribunal. The Tribunal indicated that it was fortified in its opinion by the terms of Administrative Decisions Tribunal Act 1997 Sections 88(1) and (2). There is no need at this stage to further refer to the reasons given by the Tribunal in its ex-tempore Decision granting leave to amend. 8 The matter then proceeded by way of argument relating to what was said to be double jeopardy in the phraseology used in Legal Profession Regulation Clause 24 and an argument was constructed in or to the effect that the regulation was invalid. 9 Counsel for the Attorney General orally submitted that the Tribunal must assume that the Regulation is valid and it was not within the power of this Tribunal to make declaratory relief. The Attorney General sought leave to file a substantive application seeking to refer a question of law to the Supreme Court. 10 In all the circumstances the Tribunal thought, in fairness, that an adjournment should be granted to enable the Attorney General to make submissions on this aspect. The proceedings were adjourned for further hearing to 14 April 2009; the Attorney General was directed to file and serve Written Submissions by 20 February 2009 and the Respondents to file and serve Written Submissions in reply by 20 March 2009. The Applicant indicated that he did not wish to be heard on this issue. Reference to Supreme Court 11 The Attorney-General has requested that the Tribunal refer to the Supreme Court of NSW the following question of law: "Whether cl. 24 of the Legal Profession Regulation 2005 is ultra vires the Legal Profession Act 2004". 12 In support of that request/submission the Attorney General, through his counsel, filed very detailed Written Submissions. Therein it was observed that the Respondents seek summary dismissal of the disciplinary proceedings brought by the Applicant on the basis that cl.24 of the Legal Profession Regulation 2005 "is ultra vires the power conferred by" Legal Profession Act 2004, Section 85. Similarly, in relation to the Work Place Injury Management and Workers Compensation Act 1998. 13 This application is brought pursuant to Administrative Decisions Tribunal Act 1997, Section 79A which is in the following terms: "79A Reference of questions of law to the Supreme Court (1) The Tribunal in proceedings at first instance may, of its own motion or at the request of a party, refer a question of law arising in the proceedings to the Supreme Court for the option of the Court if the President has consented in writing to the question being referred. (2) For the purposes of this section, proceedings at first instance are proceedings in the Tribunal for an original decision or the review of a reviewable decision. (3) The Supreme Court has jurisdiction to hear and determine any question of law referred to it under this section, (4) If a question of law arising in proceedings has been referred to the Supreme Court under this section, the Tribunal is not: (a) to give a decision in the proceedings to which the question is relevant while the reference is pending, or (b) to proceed in a manner, or make a decision, that is inconsistent with the option of the Supreme Court on the question. 5. Subsection (4) extends to an Appeal Panel of the Tribunal determining an appeal from a decision of the Tribunal in proceedings in which a question of law has been referred to the Supreme Court under this section." 14 The Submissions went on to deal with the history of Section 79A. It was noted that "no test for referral is articulated in the" Administrative Decisions Tribunal Act. Reference was made to certain cases which, it was submitted, indicated that various factors are relevant to the appropriateness of a referral, namely whether the question is purely one of law, whether "the question is of general importance and involves a substantial argument fit for consideration by the court"; the stage of proceedings, and therefore whether referral is premature; and consideration of expedition and economy. 15 It was observed that there was "no binding decision" on whether either of the clauses were ultra vires their relevant Acts. There was a decision of the High Court in APLA Ltd v. Legal Services Commission (2005) 224 CLR322 in which the High Court upheld the constitutional validity of former cl 139. It was submitted that the Respondents raised "a pure question of statutory construction"; that there was "no factual dispute that required determination by the Tribunal"; that the Respondents' application "raises a question of real significance to the regulation of the Legal Profession"; that there was some doubt or at least "a substantial question fit for judicial determination" arising out of the decision of Adams J in Council of the Law Society of NSW v. Australian Injury Helpline Limited [2008] NSW SC 627 as compared to the APLA case such that the Court of Appeal should be "free to consider the correctness or otherwise of a single Judge decision of the Supreme Court" in circumstances where this Tribunal was not and that therefore it should be "preferred that the Court of Appeal undertake the task of determining the question of law" ; and in any event "the Supreme Court's supervisory jurisdiction over legal practitioners …. as officers of the Court is a third factor indicating its particular fitness to answer the question of law". 16 It was also submitted that "the referral is not premature"; that there were "considerations of expedition and economy (in) favour (of) a referral"; that the "question of validity of the Regulations is of critical significance to the conduct and regulation of the legal profession … as well as to the individual Respondents" and that an "application for leave to appeal from a decision of the Tribunal must be considered likely"; such that a "referral to the Court of Appeal at this stage will provide a more efficient means of disposing of this important question". In any event, it was submitted that "a referral may well result in a saving in time and cost" such that a referral would "narrow the issues in contest, meaning that the parties and the Tribunal need (not) expend time or costs on addressing the complex jurisdictional question" at this level. 17 Finally, it was submitted that the Respondents' "argument on the workers compensation regulation" will therefore stand or fall with their challenge to cl 24 of the Legal Profession Regulation 2005" such that it was considered "unnecessary". Submissions of the Respondents 18 Firstly the Respondents suggested that, if the Tribunal was of a mind to accede to the application of the Attorney General, then three questions should be referred to the Supreme Court under Section 79A, as follows: a. Whether clause 24 Legal Profession Regulation (2005) is ultra vires the Legal Profession Act (2004). b. Whether clause 75 Workers Compensation Regulation 2003 is ultra vires its governing acts. c. Whether a finding that a legal practitioner is guilty of professional misconduct or unprofessional conduct on the basis of a contravention of clause 24 Legal Profession Regulation (2005) or clause 75 Workers Compensation Regulation 2003 is open to the Tribunal in circumstances where the legal practitioner concerned has not been convicted of an offence pursuant to either of those regulations. 19 The Respondents did not "dispute that the above questions are matters of some significance"; but the Tribunal had "already spent a day hearing oral argument and further time considering the arguments of the parties"; that the Tribunal had "ruled on a number of other legal questions raised by the Applicant" and the Respondents in the course of the hearing and that in those circumstances there would be "no opportunity for the parties to appeal same until the end of the proceedings and so there is a prospect of duplication in that one of the parties may wish to appeal already determined questions of law at a later stage". In any event, it was submitted that "if and when the matter is determined on the merits, further questions of law may arise and be subject of appeal". 20 It was submitted that the Attorney General did not seek to intervene in the Helpline case and that "no appeal was brought from the decision of Adams J". More importantly, "the fact that the Tribunal is bound by the ratio of (Helpline) cannot be determinative of this application. Otherwise every case would bypass the usual appeal process and be dealt with in selected parts by the Court of Appeal". It was said that the "usual process should be adhered to in this case" whereby "the parties await the outcome of the (Tribunal) proceedings before considering any appeals". 21 The Supreme Court's supervisory jurisdiction over legal practitioners would not be relevant where the Tribunal "has a specialised jurisdiction in that area"; that there were no consideration of expediency and economy; that the "scope for delay, confusion and duplicity of proceedings is enormous and the costs will rise accordingly"; therefore "the preferable course is for the (Tribunal) to determine all questions in the proceedings, and that any appeal proceeds in the normal way". It was further submitted that if the Tribunal was of a mind to accede to the Attorney General's application then any such referral "be made on the condition that the Attorney General pay the (Respondent's) costs of the proceedings in the Supreme Court". Tribunal's Opinion 22 The Tribunal has a very clear view about its duty and its role in the judicial process and, in particular, the role of the Tribunal in exercising power in this Division. The Tribunal is clearly of the opinion that the proper process is through this Tribunal. After all, that is the job of this Tribunal (see Members of the Board of the Wesley Mission Council v. OW and OV [2009] NSWADT AP5). Whether a regulation is ultra vires or not is to be determined in accordance with law, precedent and statutory interpretation. This Tribunal is as well placed as anyone to determine matters of public importance. Indeed, such matters are often determined in this and other Divisions of this Tribunal. A good example is Watt v. Forests NSW [2007] NSWADT 197. 23 The core business of this Tribunal is protecting the public interest and this is why many Divisions of this Tribunal are constituted inclusive of a lay member. It is the Attorney General himself who appoints those lay members. 24 Although we appreciate the significance of the issue raised by the Respondents and although we appreciate the force of the submissions made on behalf of the Attorney General, we are unable to see any reason why this Tribunal should not proceed to hear, in an orderly fashion and in accordance with the usual procedures, the matters that are brought before it. One would not unreasonably expect that, whatever be the ultimate result, there would likely be an appeal by one party or another and it would no doubt be of assistance to the Appeals Panel or any subsequent appeals Court to have the benefit of our views having heard all the arguments and having reviewed all the facts. 25 This is a specialist Tribunal; this is a specialist Division within that Tribunal set up for a quite specific purpose pursuant to the provisions of the Legal Profession Act 2004. Indeed, its constituted members are of long-standing and seniority and we are of the view that it is in the interests of justice that the proceedings continue before us and questions of law not be referred pursuant to Section 79A. 26 We decline to make the orders/directions sought by the Attorney General. 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.