Hagipantelis v Legal Services Commissioner of New South Wales [2010] NSWCA 79 (15 April 2010)

Last Updated: 16 April 2010

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Hagipantelis v Legal Services Commissioner of New South Wales [2010] NSWCA 79


FILE NUMBER(S):
2009/00298448

HEARING DATE(S):
23 February 2010

JUDGMENT DATE:
15 April 2010

PARTIES:
Bandeli Hagipantelis (First appellant)
Robert Stanley Bryden (Second appellant)
Legal Services Commissioner of New South Wales (First respondent)
Attorney General for the State of New South Wales (Second respondent)


JUDGMENT OF:
Spigelman CJ Allsop P Handley AJA

LOWER COURT JURISDICTION:
Administrative Decisions Tribunal

LOWER COURT FILE NUMBER(S):
082005
082006


LOWER COURT JUDICIAL OFFICER:
G Molloy and S Hale (Judicial Members) and L Bubniuk (Non Judicial Member)

LOWER COURT DATE OF DECISION:
3 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Legal Services Commissioner v Bryden (No 2) [2009] NSWADT 131

COUNSEL:
J Ireland QC with M Fraser (First appellant)
N J Beaumont (First respondent)
M Leeming SC with M Nagy (Second respondent)


SOLICITORS:
T A Williams (First appellant)
Legal Services Commissioner (First respondent)
Crown Solicitor’s Office (Second respondent)


CATCHWORDS:
ADMINISTRATIVE LAW - administrative tribunals - Administrative Decisions Tribunal (NSW) - Legal Profession Act and Regulation - professional misconduct - not necessary that criminal proceedings, where available, be brought prior to disciplinary proceedings in the Tribunal
PROFESSIONS AND TRADES - lawyers - complaints and discipline - prohibition on marketing legal services in respect of personal injury - meaning of “advertisement” and “marketing” - Legal Profession Act s 85 and Legal Profession Regulation cl 24

LEGISLATION CITED:
Legal Profession Act 2004
Workplace Injury Management and Workers Compensation Act 1988


CASES CITED:
Dilworth v Commissioner of Stamp Duties [1899] AC 99
Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328
Legal Services Commissioner v Bryden (No 2) [2009] NSWADT 131
Macleod v ASIC [2002] HCA 37; (2002) 211 CLR 287
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Sherritt Gordon Mines Ltd v Commissioner of Taxation (Cth) [1977] VR 342
The Council of the Law Society of New South Wales v Australian Injury Helpline Limited [2008] NSWSC 627; (2008) 71 NSWLR 715

TEXTS CITED:


DECISION:
1 Leave to appeal granted.
2 Direct the appellants to file a notice of appeal within 14 days.
3 Appeal dismissed with costs.



JUDGMENT:

- 17 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2009/00298448

SPIGELMAN CJ

ALLSOP P

HANDLEY AJA

Thursday 15 April 2010

Hagipantelis v Legal Services Commissioner of New South Wales

Judgment

1 SPIGELMAN CJ: Proceedings were instituted in the Administrative Decisions Tribunal of New South Wales by the Legal Services Commissioner (“the Commissioner”) alleging that each of the applicants was guilty of professional misconduct within the meaning of the Legal Profession Act 2004.

2 Before the Tribunal the applicants contended that each of the regulations which they are alleged to have contravened was ultra vires the statute. Secondly, they contended that proceedings in the Tribunal should not be instituted unless criminal prosecutions for an alleged offence have first been determined. Finally, they asserted that a double jeopardy issue arose because of the fact that they are alleged to have contravened two separate regulations.

3 The Administrative Decisions Tribunal rejected the applicant’s contentions. (See Legal Services Commissioner v Bryden (No 2) [2009] NSWADT 131.) The applicants seek leave to appeal and, if leave is granted, to proceed on four grounds of appeal.

4 The respondents consented to the grant of leave. The issues raised are of significance for the administration of the Legal Profession Act, and accordingly, leave should be granted.

5 The grounds of appeal are:

“1 The Tribunal erred in finding, and declaring, that clause 24 of the Legal Profession Regulation 2005 is not ultra vires the Legal Profession Act (2005).

2 The Tribunal erred in finding, and declaring, that clause 75 of the Workplace Compensation Regulation 2003 is not ultra vires the Workplace Injury Management Act 1998 and Workers Compensation Act 1987.

3 The Tribunal erred in finding, and declaring, that clause 24 of the Legal Profession Regulation 2005 does not require a conviction to be recorded or found against a legal practitioner as a prerequisite to a finding that a legal practitioner is guilty of professional misconduct in respect to a contravention of clause 24 of the Legal Profession Regulation 2005 or clause 75 of the Workplace Compensation Regulation 2003.

4 The Tribunal erred in failing to find that the proceedings placed the legal practitioner in double jeopardy in that the respondent is seeking findings of contraventions of both clause 24 Legal Profession Regulation 2005 and clause 75 Workers Compensation Regulation 2003 based upon the same publication.”

The Ultra Vires Issue

6 It is convenient to consider Grounds 1 and 2 together. The issue in each case turns on identical language.

7 Clause 24 of the Legal Profession Regulation 2005 states:

“24(1) A barrister or solicitor must not publish or cause or permit 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 the 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 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.”

8 The word “advertisement” is defined in cl 23 as follows:

“advertisement means any communication of information (whether by means of writing, or any still or moving visual 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 and whether or not that is its effect or only effect.”

9 With respect to Ground 2, the alternative regulation is in parallel terms. Clause 75 of the Workers Compensation Regulation 2003 states:

“75 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 to 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 suggest the possibility of work injury, or any connection to or association with work injury or a cause of work injury,

(c) a work injury service (that is, any service provided by a lawyer or agent that relates to recovery of money, or any entitlement to recover money, in respect of work injury).

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.”

10 Clause 74 sets out the definition of “advertisement” in the same terms as are set out at [8].

11 The first relevant regulation making power is found in s 85 of the Legal Profession Act. It is also pertinent to set out s 84:

“84 Advertising

(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 1974 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.

85 Regulation of advertising and other marketing of 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.

...

(9) A contravention by a barrister or solicitor:

...

(b) of a regulation under this section (or under section 142 of that Act [the Workplace Injury Management and Workers Compensation Act 1998]) is professional misconduct, but only if the regulation declares that the contravention is professional misconduct.”

12 I note that cl 24(2) makes the declaration for which s 85(9)(b) provides.

13 The Workplace Injury Management and Workers Compensation Act 1988 (“the WIM Act”) makes parallel, but not identical, provision to s 85 of the Legal Profession Act. Section 142 provides:

“142(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 of services connected with 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.

...”

14 The applicants’ contention that each of the regulations is ultra vires the regulation making power turns on the proposition that the prohibition on “advertising”, as defined in each of the regulations, overlaps with but extends beyond the relevant regulation making power. This is because that power requires any such regulation to relate to “the marketing of legal services”. The contention is that an “advertisement” can extend beyond the scope of “marketing”.

15 There is support for the applicants’ contention in the judgment of Adams J in The Council of the Law Society of New South Wales v Australian Injury Helpline Limited [2008] NSWSC 627; (2008) 71 NSWLR 715, where his Honour said:

“[21] The most crucial aspect of the grant of regulatory power is that the [Legal Profession Act] authorises regulations that relate to the ‘marketing of legal services’. Specific examples are given in wide terms. The phrases ‘relates to’, ‘in connection with’ and ‘connected with’ have very wide application indeed. It seems to me, however, that it is essential that the regulations be confined to conduct relating to matters that comprise two vital linked elements: ‘marketing of legal services’.

[22] Before moving on to consider the implications of this point, I should deal with a submission made by Mr Lindsay SC for the Society concerning the interpretation of s 85(1). He submitted that each of the examples in paras (a) to (d) stood as independent authorisations of the regulation making power, relying on the words ‘without limitation’ in parentheses in the opening words. I do not agree. If this interpretation were correct, it would mean, for example, that a regulation could be made, relying on par 1(d) prohibiting doctors from advertising their skills or a hospital from advertising its emergency services. I do not think that this could possibly have been the intention of the Parliament. The words in parentheses make it clear that the matters referred to in pars (a) to (d) are examples of the general class referred to in the opening words and should not be interpreted to limit the application of that general language.

...

[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’ nor ‘conduct relating to marketing’ although it seems that the draftsperson of the Legal Profession Regulation 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 Regulation is limited to the statutorily 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 informing, since the phrase in the definition is ‘advertising or otherwise promoting’, it seems to me, as I have said, 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 Regulation’s grasp exceeds the limits imposed by the Act.”

16 In my opinion this reasoning should not be followed. I will refer particularly to the Legal Profession Regulation, but the following analysis applies equally to the Workers Compensation Regulation.

17 The definition of “advertisement” in cl 23 of the Regulations makes it clear that the word “advertise”, and its derivatives, are deployed in the sense of communications which ‘promote’ particular legal services. That is implicit in the use of the word “otherwise” before the word “promotes” in the formulation “advertises or otherwise promotes” of the definition.

18 The offence creating provision in cl 24(1) expressly picks up this language by referring to publication of “an advertisement that promotes the availability or use of a barrister or solicitor providing legal services”. In my opinion, where the connotation of the word advertisement is a communication that “promotes” the “availability or use” of legal services, it falls squarely within the concept of “marketing” in s 85(1). This analysis applies equally to s 142 of the WIM Act.

19 Adams J, in Australian Injury Helpline Limited, sought to restrict the concept of marketing to a “proposed sale by the marketer”. His Honour said that it does not encompass the act of “commending or encouraging”, which he suggested was within the broader sense of “advertising”. I can see no reason to restrict marketing to a proposed sale. “Promotion” of the availability of a service is a form of “marketing”.

20 In any event, s 85(1) goes on to identify “advertising by a barrister or solicitor” as falling within the scope of the regulation making power in s 85(1) by reason of the words “including (without limitation) ...” in the chapeau to s 85(1). The word “including” is often used by way of enlargement or, alternatively, by way of clarification. (See Dilworth v Commissioner of Stamp Duties [1899] AC 99 at 105; Sherritt Gordon Mines Ltd v Commissioner of Taxation (Cth) [1977] VR 342 at 353.8.) In my opinion, pars (a)-(d) were inserted to make it clear that advertising fell within the regulatory scheme.

21 Adams J rejected the proposition that pars (a)-(d) could be interpreted “to limit the application” of the “general language” (ie, the words “marketing of legal services”). His Honour held these paragraphs to be “examples” of that “general class”. Even so, the purpose of these specific references was to ensure that the regulation making power extends to conduct answering the description of ‘advertising’, even if there may be circumstances in which the concept of ‘advertising’ could be broader than “marketing”.

22 Even if I had been of the view that ‘advertising’, in the sense of promotion, was not encompassed entirely within the scope of the words “marketing of legal services”, the reference to “advertising” in each of pars (a)-(d) of s 85(1) puts the matter beyond doubt. This analysis also applies to s 142 of the WIM Act.

The Criminal Prosecution Issue

23 Under the third ground of appeal, the applicants contend that, prior to instituting proceedings in the Tribunal for a disciplinary offence, the Commissioner should first have instituted criminal proceedings. They contend that the Commissioner was seeking to avoid the criminal standard of proof and the other requirements inherent in criminal proceedings by taking proceedings before the Tribunal. They submit that the very existence of a criminal offence, with a specified remedy, indicates that it is not open for the Commissioner to seek an alternative remedy by way of disciplinary proceedings. They further submit that the effect of the legislative scheme is that, upon a conviction being recorded, the Tribunal is relieved of its duty to make a finding as to whether or not professional misconduct has occurred by reason of the deeming provision in cl 24(2), which I have set out at [7] above.

24 The legislative scheme, in the Legal Profession Act, for the handling of complaints can be briefly outlined:

A complaint may be made “about an Australian legal practitioner’s conduct” (s 503(1)(a));

A complaint may be summarily dismissed by, relevantly, the Commissioner (s 511);

A complaint “must be investigated” under Pt 4.4 of the Act (s 525(1));

After the completion of an investigation the Commissioner, relevantly, “must” take one of three steps, relevantly, commencing proceedings in the Tribunal under Ch 4 of the Act (s 537(1));

The Commissioner “must commence proceedings in the Tribunal ... if satisfied that there is a reasonable likelihood that the practitioner will be found by the Tribunal to have engaged in unsatisfactory professional conduct or professional misconduct” (s 537(2));

Provisions is made for the commencement and conduct of hearings in the Tribunal (Pt 4.8 of the Act);

The law of evidence applies to a hearing into a question of professional misconduct (s 558(1));

After the completion of the hearing if “the Tribunal is satisfied that the practitioner has engaged in ... professional misconduct” it may “may make such orders as it thinks fit” (s 562(1)).

Further detailed provision is made in s 562(2)-(8) specifying a range of specific orders able to be made, which it is unnecessary to set out.

25 The appellants’ contention that criminal proceedings must first be instituted would mean that the Tribunal does not need to reach the state of ‘satisfaction’ within s 562(1). The application of cl 24(2) and (3) will have the consequence that the Tribunal can proceed directly to the exercise of its discretion to make orders within s 562(2)-(8).

26 The term “professional misconduct” is defined in s 497, which distinguishes between conduct involving a “substantial or consistent failure” to perform in accordance with a standard of “competence and diligence”, on the one hand, and conduct that would breach a “fit and proper person” standard, on the other. Section 498(1)(a), which is expressed not to limit s 497, identifies as conduct “capable of being ... professional misconduct” the following:

“498(1)(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules.”

27 The legislative scheme makes provision for the interrelationship between disciplinary proceedings and criminal proceedings. Section 498(1)(c) identifies a particular set of criminal convictions which, in accordance with the chapeau to s 498(1) are “capable of being professional misconduct”. That paragraph provides:

“498(1)(c) conduct in respect of which there is a conviction for:

(i) a serious offence, or

(ii) a tax offence, or

(ii) an offence involving dishonesty.”

28 It is clear that, with respect to the matters identified in s 498(1)(c), the legislation is concerned with a conviction in the normal criminal courts. The issue on the third ground of appeal is whether, as a matter of statutory interpretation, criminal proceedings must be instituted prior to the Tribunal exercising its jurisdiction. The legislative scheme makes further provision for the interrelationship between criminal and disciplinary proceedings.

29 Section 498(2) provides:

“498(2) 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.”

30 Section 600 provides:

“600 A complaint may be made and dealt with even though the Australian legal practitioner concerned is the subject of proposed or current criminal or civil proceedings relating to the subject-matter of the complaint.”

31 Further provision is made in s 689A, which provides:

“689A(1) 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.

(2) If the Commissioner suspects on reasonable grounds that a person (whether or not an Australian lawyer) may have committed an offence against section 85 or regulations made under that section, the Commissioner or a person authorised by the Commissioner may conduct an investigation in relation to the matter.

(3) The Commissioner or authorised person has and may exercise, in relation to the matter referred to in subsection (2), the same powers as an investigator has under Chapter 6 (Provisions relating to investigations) in relation to a matter that is the subject of a complaint under Chapter 4 (Complaints and discipline).

(4) Accordingly, the provisions of Chapter 6 apply in relation to the matter referred to in subsection (2), and so apply with any necessary modifications and as if a reference to an Australian lawyer included a reference to a lay person.

(5) This section does not limit any powers that may be exercised apart from this section by the Commissioner or by any other person.”

32 Section 689A(5) makes it clear that the Commissioner’s role with respect to the investigation and handling of complaints is maintained, notwithstanding his or her institution of prosecutions with respect to contraventions of regulations made under s 85 of the Act.

33 The provisions of Ch 6 with respect to complaint investigations, referred to in s 689A(3), include powers to:

Require the subject of an investigation to produce documents, provide written information or otherwise assist or co-operate (s 660(1));

Require associates or former associates of the lawyer to grant access to documents or to provide information relating to the affairs of the lawyer (s 660(2));

Authorise an investigator to enter premises with the consent of the occupier or pursuant to a search warrant and to search and seize material (ss 662, 663 and 664).

34 Section 724 relevantly provides:

(1) This section applies to a requirement under:

...

(c) a provision of Chapter 6 (Provisions relating to investigations) to produce documents, provide information or otherwise assist in, or co-operate with, an investigation.

(2) The validity of the requirement is not affected, and a person is not excused from complying with the requirement, on the ground of:

...

(b) privilege against self-incrimination, or

...

(3) If, before complying with the requirement, the person objects to the body or person to whom the notice, document or information is required to be given on the ground that giving it may tend to incriminate the person, the notice, document or information is inadmissible in evidence in any proceeding against the person for an offence, other than:

(a) an offence against this Act, or

...”

35 A distinctive feature of cl 24(1), when compared with most other contraventions of the Act and regulations, is found in cl 24(2). Unlike the usual case of proceedings before the ADT, upon a finding that a “contravention” of cl 24(1) has occurred, the conduct is, by force of the regulation itself, “declared to be professional misconduct”.

36 There are some other similar provisions. Failure by a legal practitioner to comply with a requirement made by an investigator is professional misconduct (s 671(1)). In addition, an Australian lawyer, whether or not under investigation, must comply with a requirement under s 660 and failure to do so is professional misconduct (s 676(3) and (4)).

37 I note that a contravention of cl 75 of the Workers Compensation Regulation, which I have set out at [9] above, does not have any such effect. However, nothing appears to turn on this distinction.

38 The effect of cl 24(2) is to take away from the Tribunal any need to make a decision as to whether or not the conduct satisfies the concept of professional misconduct within s 497. This limits the ability of the Tribunal to make a finding that it is “satisfied” within the meaning of s 562(1) that conduct of that kind occurred. Such satisfaction is the legislative trigger for the making of the orders set out in s 562.

39 Mr N Beaumont, who appeared for the Legal Services Commission, submitted that the deeming effect of cl 24(2) only occurs if the relevant conduct constituting a contravention of the regulation has been proven to the satisfaction of the Tribunal. On this submission, when applied to a contravention of a regulation made pursuant to s 85(1), involving conduct which is declared to be professional misconduct pursuant to s 85(9)(b), s 562(1) should be understood to mean that the Tribunal is satisfied that such conduct occurred.

40 This is, in my opinion, the correct meaning of the provisions when read together. Section 85(9)(b) expressly envisages a regulation which deems conduct to be professional misconduct. There are other provisions, to which I have referred, which have the same effect. (Specifically, s 671(1) and s 676(4).) The relevant ‘satisfaction’ on the part of the Tribunal under s 562(1) must be read and interpreted together with these other express provisions.

41 In my opinion, s 562(1) requires the Tribunal to be ‘satisfied’ that the practitioner was “engaged in” conduct which is “professional misconduct” as defined both in s 562(1) itself in other sections of the Act or in regulations authorised by the Act. In substance, the other sections and regulations extend or clarify the “definition” in s 562(1).

42 In coming to this conclusion, I have had regard to a number of aspects of the legislative scheme:

Section 600 expressly provides that “a complaint may be made and dealt with” despite the fact that criminal proceedings are proposed.

Section 498(2) expressly provides that conduct in contravention of a regulation is “capable of being professional misconduct”, even if there is no conviction.

Section 498(1)(c) expressly contemplates the existence of a prior conviction for the serious offences there listed, as distinct from s 498(1)(a) which refers generally to “conduct consisting of a contravention of this Act”.

Section 689A(1), which authorises the Commissioner to institute prosecutions for an offence against s 85 and regulations made there under, expressly provides, in s 689A(5), that that section does not limit powers that the Commissioner may otherwise exercise, relevantly pursuant to his power to place a matter before the Tribunal for determination.

Section 724(3) expressly contemplates that, in the course of exercising powers to conduct an investigation, the privilege against self-incrimination is not available, but a person can invoke its protection so as to render any response inadmissible in evidence in subsequent criminal proceedings other than for offences against the Act.

43 The combined effect of these matters is, in my opinion, such as to lead to the rejection of the appellant’s contention that criminal proceedings are a prerequisite to the institution of any disciplinary proceedings in the Tribunal. No doubt, if there is any prospect of criminal proceedings being instituted, the Tribunal would not conduct a hearing. However, that is not this case.

44 By force of s 731(3) of the Legal Profession Act, proceedings for an offence against that Act may be brought within 12 months of the alleged offence. By force of s 247(2) of the Workplace Injury Management and Workers Compensation Act, proceedings for a contravention against that Act or regulation may be instituted within a period of two years after the act or omission said to constitute the offence. Each of these periods of limitation has now expired.

45 This ground of appeal should be rejected.

The Double Jeopardy Issue

46 This fourth ground of appeal is based on the proposition that the application by the Commissioner to the Tribunal purports to rely on a contravention of two distinct regulations under two legislative regimes. If the Commissioner, or any other person, had instituted criminal proceedings which separately charged the two offences, the prosecutor would be put to an election in the Court. Clause 30 of the Legal Profession Regulation and cl 79 of the Workers Compensation Regulation, reciprocally provide that a person convicted under the other Regulation is not liable to be convicted under that Regulation.

47 The issue is whether or not there is any relevant double jeopardy in the context of the proceedings before the Tribunal. “Double jeopardy” is not a concept with a single meaning. (See, eg, Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [9]; Island Maritime Ltd v Filipowski [2006] HCA 30; (2006) 226 CLR 328 at [41].) Indeed, it is a term “of notoriously imprecise meaning and application” (Macleod v ASIC [2002] HCA 37; (2002) 211 CLR 287 at [42]).

48 Double jeopardy is a value, but it is not some kind of freestanding right which can be deployed to modify an otherwise applicable statutory provision. It has no relevant work to do in the present context save, perhaps, at the penalty stage. It would not be appropriate to increase the penalty because two identical regulations were contravened. That stage has not been reached.

Conclusion

49 The orders I propose are:

1 Leave to appeal granted.

2 Direct the appellants to file a notice of appeal within 14 days.

3 Appeal dismissed with costs.

50 ALLSOP P: I agree with the Chief Justice.

51 HANDLEY AJA: I agree with the Chief Justice.

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LAST UPDATED:
15 April 2010