Apla Ltd v Legal Services Commissioner (Nsw)

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,Heydon J,McHugh J,Gummow J,Kirby J,Hayne J,Callinan J
• Judgment Date: 01 September 2005
• Neutral Citation: 2005-0901 HCA A,[2005] HCA 44
• Docket Number: S202/2004
• Date: 01 September 2005

[2005] HCA 44

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan AND Heydon JJ

S202/2004

Apla Limited & Ors

Plaintiffs

and

Legal Services Commissioner of New South Wales & Anor

Defendants

Representation:

S J Gageler SC with J K Kirk and P K Cashman for the plaintiffs (instructed by Maurice Blackburn Cashman)

No appearance for the first defendant

M G Sexton SC, Solicitor-General for the State of New South Wales with M J Leeming for the second defendant (instructed by Crown Solicitor for New South Wales) at the hearing on 5 and 6 October 2004

M G Sexton SC, Solicitor-General for the State of New South Wales with A M Mitchelmore for the second defendant (instructed by Crown Solicitor for New South Wales) at the hearing on 7 December 2004

Interveners:

D M J Bennett QC, Solicitor-General of the Commonwealth with R G McHugh and B D O'Donnell intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with S J Wright intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for Western Australia)

C J Kourakis QC, Solicitor-General for the State of South Australia with J C Cox intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia) at the hearing on 5 and 6 October 2004

C J Kourakis QC, Solicitor-General for the State of South Australia with A Rao intervening on behalf of the Attorney-General for the State of South Australia (instructed by Crown Solicitor for South Australia) at the hearing on 7 December 2004

P M Tate SC, Solicitor-General for the State of Victoria with S G E McLeish intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

P D T Applegarth SC with G R Cooper intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Solicitor for Queensland)

J Basten QC with G J Williams and R A Pepper for Combined Community Legal Centres' Group NSW Inc and Redfern Legal Centre Ltd as amici curiae (instructed by Public Interest Advocacy Centre) at the hearing on 5 and 6 October 2004

J Basten QC with R A Pepper for Combined Community Legal Centres' Group NSW Inc and Redfern Legal Centre Ltd as amici curiae (instructed by Public Interest Advocacy Centre) at the hearing on 7 December 2004

Constitution, Ch III, ss 92, 109.

Legal Profession Act 1987 (NSW), ss 38J, 216.

Legal Profession Amendment (Personal Injury Advertising) Regulation 2003 (NSW).

Legal Profession Regulation 2002 (NSW), Pt 14.

APLA Limited v Legal Services Commissioner (NSW)

Constitutional law (Cth) — Legal profession — Advertising of legal services — Validity of the Legal Profession Regulation 2002 (NSW), Pt 14 (‘the Regulations’) which prohibits advertising of legal services relating to claims in respect of personal injuries.

Legal profession — Barristers and solicitors — Whether the Regulations are designed to restrict advertising which promotes the use of a particular barrister or solicitor or any barrister or solicitor.

Constitutional law (NSW) — Extra-territorial power of the State of New South Wales — Whether Regulations aimed at the advertising of legal services in New South Wales which also apply to advertising that takes place outside New South Wales are valid.

Constitutional law (Cth) — Implied freedom of communication on government or political matters — Whether the restriction on advertising legal services relating to claims in respect of personal injuries effectively burdens the implied freedom of communication on government or political matters — Whether the implied freedom extends to prevent burdens by State law on communications related to the operation of the courts provided for in Chapter III of the Constitution.

Constitutional law (Cth) — Chapter III — Rule of law — Whether Chapter III of the Constitution implicitly prohibits any law of the Commonwealth or of a State or Territory which effectively burdens the capacity of litigants or potential litigants to receive information and assistance as may be necessary for them to assert their legal rights and approach courts exercising federal jurisdiction — Whether the Constitution supports a freedom to receive advice or information about the possible exercise of judicial power.

Constitutional law (Cth) — s 92 — Freedom of interstate trade and commerce, and interstate intercourse — Distinction between interstate trade and commerce, and interstate intercourse — Whether, where a law burdens interstate intercourse that occurs in or in relation to interstate trade and commerce, it is the trade and commerce limb of s 92 which applies — Whether the restriction on advertising by the Regulations imposes a discriminatory burden of a protectionist kind on interstate trade and commerce — Whether any impediment to interstate intercourse imposed by the Regulations is greater than reasonably required to achieve the object of the Regulations.

Constitutional law (Cth) — s 109 — Inconsistency between certain Commonwealth Acts and the Regulations — Whether the Regulations impair or detract from a Commonwealth scheme of legislation and the rights, remedies and jurisdiction contained in such legislation.

ORDER

Questions asked in the special case answered as follows:

(1) Q. Is Part 14 of the Regulation invalid in whole or in part by reason that it:

(a) impermissibly infringes the freedom of communication on political and governmental matters guaranteed by the Constitution;

(b) impermissibly infringes the requirements of Ch III of the Constitution and of the principle of the rule of law as given effect by the Constitution;

(c) impermissibly infringes the freedom of interstate intercourse or alternatively trade and commerce guaranteed by s 92 of the Constitution;

(d) exceeds the legislative powers of the State of New South Wales by virtue of the nature of its extra-territorial operation;

(e) exceeds any powers to make regulations under the Legal Profession Act, by virtue of the nature of its extra-territorial operation;

(f) is inconsistent with the rights, duties, remedies and jurisdiction conferred, regulated or provided for by:

(A) ss 39(2), 39B, 55A, 55B, 55D, and 78 of the Judiciary Act 1903 (Cth);

(B) Divisions 1 and 2 of Part III and Part IVA of the Federal Court of Australia Act 1976(Cth);

(C) ss 52, 53(a), 74B, 74D, 75AD, 82, 86 and 87 of the Trade Practices Act 1974 (Cth);

(D) Parts II, IV, V and VI of the Safety, Rehabilitation and Compensation Act 1988(Cth), together with Parts IV and IVA of the Administrative Appeals Tribunal Act 1975 (Cth);

(E) Parts 4, 6 and 7 of the Superannuation (Resolution of Complaints) Act 1993 (Cth), together with Parts 27 and 28 of the Superannuation Industry (Supervision) Act 1993 (Cth).

A. No.

(2) Q. If yes to any part of (1), does Part 14 of the Regulation validly prohibit:

(a) the First Plaintiff from publishing an advertisement in the form of Annexure A to the Amended Statement of Claim;

(b) the Second Plaintiff from publishing:

(i) an advertisement in the form of the three advertisements which are Annexure B to the Amended Statement of Claim;

(ii) on its website, material substantially in the form of the material contained in Annexures C and D to the Amended Statement of Claim;

(iii) a letter in the form of Annexure E to the Amended Statement of Claim to group members of the group on behalf of whom proceedings are brought in Federal Court proceedings N932 of 2001.

(c) the Third Plaintiff from publishing an advertisement in the form of Annexure F to the Amended Statement of Claim?

A. Does not arise.

(3) Q. If yes to any part of (2), ought the declaratory relief sought in the Amended Statement of Claim be withheld in the discretion of the Court by reason of the facts set out in paragraph 17 in relation to the advertisements which the plaintiffs say they wish to publish but which have not in fact been published?

A. Does not arise.

1 Gleeson CJ AND Heydon J. The plaintiffs challenge the validity of regulations, made under the Legal Profession Act 1987 (NSW) (‘the Legal Profession Act’), which prohibit the advertising of legal services relating to claims for damages, compensation, or other legal entitlements arising out of personal injuries. Such services are described compendiously in the regulations as ‘personal injury services’. In Australia, as in the United States of America, the legal profession is organized and regulated primarily on a State or Territory basis, but such regulation must conform to the requirements of the Commonwealth Constitution 1. The plaintiffs contend, on a number of grounds, that the New South Wales regulations are contrary to the Constitution and therefore invalid or, alternatively, are inconsistent with federal laws, and, by virtue of s 109 of the Constitution, are inoperative to the extent of the inconsistency.

The regulations

2 The regulations in question were made with effect from 23 May 2003. At the time, the Legal Profession Act, in s 38J, provided that a barrister or solicitor may advertise in any way that the barrister or solicitor thinks fit. That permission was qualified by reference to advertising that was false, misleading or deceptive, that contravened certain specified Commonwealth or State legislation, or that contravened any regulations made under the Legal Profession Act. Legislative removal of earlier professional restrictions on advertising by lawyers was partly related to National Competition Policy Agreements between the Commonwealth and the States. In 2002, however, New South Wales modified its policy on advertising by lawyers and, in Pt 14 of the Legal Profession Regulation 2002, made under the general regulation-making power contained in s 216 of the Legal...