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

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

The Tribunal declined to refer the questions of law because the proper process was for the specialist Legal Services Division of the Tribunal to hear and determine the matters brought before it in the ordinary way. The Tribunal considered itself well placed to determine questions of public importance, including questions of validity, in accordance with law, precedent and statutory interpretation, and considered that any appeal would be assisted by the Tribunal's views after hearing all arguments and reviewing the facts.

Jurisdiction
Australia
Judgment Date
09 April 2009
Procedural Posture
Applications for Original Decisions Seeking Findings of Professional Misconduct Against Legal Practitioners / Decision on the Attorney General's Motion/request to Refer a Question of Law to the Supreme Court Under Administrative Decisions Tribunal Act 1997, Section 79 A; Further Hearing of the Applications Confirmed
Outcome
The Attorney General's motion/request for referral was dismissed; the further hearing of both applications was confirmed.
Legal Topics
['professional Misconduct' 'legal Practitioner Advertising' 'reference of Questions of Law to the Supreme Court' 'ultra Vires Regulations' 'tribunal Procedure' 'statutory Interpretation']
['legal Profession' 'administrative Law'] ['professional Misconduct' 'legal Practitioner Advertising' 'reference of Questions of Law to the Supreme Court' 'ultra Vires Regulations' 'tribunal Procedure' 'statutory Interpretation']

Case Brief

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Procedural Posture

Applications for Original Decisions Seeking Findings of Professional Misconduct Against Legal Practitioners / Decision on the Attorney General's Motion/request to Refer a Question of Law to the Supreme Court Under Administrative Decisions Tribunal Act 1997, Section 79 A; Further Hearing of the Applications Confirmed

Legal Issues

  1. 1 ['Whether the Tribunal should refer to the Supreme Court of NSW the question whether cl. 24 of the Legal Profession Regulation 2005 is ultra vires the Legal Profession Act 2004.' 'Whether the Tribunal should instead determine the legal questions raised in the disciplinary proceedings in the ordinary course.' 'If a referral were made, whether additional questions concerning clause 75 Workers Compensation Regulation 2003 and findings of professional misconduct or unprofessional conduct without conviction should also be referred.']

Ratio Decidendi

The Tribunal declined to refer the questions of law because the proper process was for the specialist Legal Services Division of the Tribunal to hear and determine the matters brought before it in the ordinary way. The Tribunal considered itself well placed to determine questions of public importance, including questions of validity, in accordance with law, precedent and statutory interpretation, and considered that any appeal would be assisted by the Tribunal's views after hearing all arguments and reviewing the facts.

Court Disposition

The Attorney General's motion/request for referral was dismissed; the further hearing of both applications was confirmed.

Orders

  • ['The Motion of the Attorney General is dismissed' 'We confirm the further hearing of both applications on 14 April 2009 commencing 10:00am.']