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

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

The regulations in question were within the scope of the statutory powers, as 'advertisement that promotes the availability or use of legal services' falls within 'marketing legal services'; the legislative scheme permits disciplinary action irrespective of criminal proceedings; and no double jeopardy arises in disciplinary proceedings before the Tribunal based on overlapping regulations.

Jurisdiction
Australia
Judgment Date
15 April 2010
Procedural Posture
Appeal / Determination of Application for Leave to Appeal and Appeal
Outcome
Appeal dismissed with costs
Legal Topics
['administrative Tribunals' 'legal Practitioners—professional Misconduct' 'ultra Vires Regulations' 'advertisements and Marketing—legal Profession' 'disciplinary Proceedings Vs Criminal Prosecution' 'double Jeopardy in Regulatory Context']
['administrative Law' 'professional Discipline'] ['administrative Tribunals' 'legal Practitioners—professional Misconduct' 'ultra Vires Regulations' 'advertisements and Marketing—legal Profession' 'disciplinary Proceedings Vs Criminal Prosecution' 'double Jeopardy in Regulatory Context']

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Procedural Posture

Appeal / Determination of Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 ["Whether clause 24 of the Legal Profession Regulation 2005 and clause 75 of the Workers Compensation Regulation 2003 are ultra vires their parent statutes by exceeding the regulation making power regarding 'marketing' of legal services" 'Whether criminal proceedings must be instituted before disciplinary proceedings in the Tribunal' 'Whether the Commissioner’s application places legal practitioners in double jeopardy for the same conduct under two regulations']

Ratio Decidendi

The regulations in question were within the scope of the statutory powers, as 'advertisement that promotes the availability or use of legal services' falls within 'marketing legal services'; the legislative scheme permits disciplinary action irrespective of criminal proceedings; and no double jeopardy arises in disciplinary proceedings before the Tribunal based on overlapping regulations.

Court Disposition

Appeal dismissed with costs

Orders

  • ['Leave to appeal granted.' 'Appellants directed to file a notice of appeal within 14 days.' 'Appeal dismissed with costs.']