Legal Services Commissioner v Bryden (No 2) [2009] NSWADT 131

Legal Services Commissioner v Bryden (No 2) [2009] NSWADT 131

Regulation 24 of the Legal Profession Regulation 2005 and Regulation 75 of the Workplace Compensation Regulation 2003 are valid and not ultra vires their parent legislation. Regulation 24 does not require a criminal conviction as a prerequisite to disciplinary proceedings in the Tribunal; the statute provides parallel avenues for criminal and professional sanction, and this does not amount to impermissible double jeopardy.

Parties
Applicant: Legal Services Commissioner; First Respondent: Robert Stanley Bryden; Second Respondent: Bandell Hagipantelis; Intervenor: M Nagy
Jurisdiction
Australia
Judgment Date
03 June 2009
Procedural Posture
Disciplinary/administrative Application / Interlocutory Decision/declaratory Orders on Ultra Vires and Double Jeopardy Arguments
Outcome
Interlocutory declarations (regulations valid; no prerequisite conviction required); proceedings to be listed for further directions.
Legal Topics
Statutory Interpretation, Ultra Vires Regulation, Professional Misconduct, Advertising Legal Services, Double Jeopardy
Administrative Law Legal Profession Statutory Interpretation Ultra Vires Regulation Professional Misconduct Advertising Legal Services Double Jeopardy

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Parties

Legal Services Commissioner

Applicant

Robert Stanley Bryden

First Respondent

Bandell Hagipantelis

Second Respondent

M Nagy

Intervenor

Procedural Posture

Disciplinary/administrative Application / Interlocutory Decision/declaratory Orders on Ultra Vires and Double Jeopardy Arguments

Legal Issues

  1. 1 Whether Regulation 24 of Legal Profession Regulation 2005 is ultra vires the Legal Profession Act 2004
  2. 2 Whether Regulation 75 of the Workplace Compensation Regulation 2003 is ultra vires the Workplace Injury Management Act and Workers Compensation Act 1998
  3. 3 Whether Regulation 24 requires a conviction as a prerequisite to a disciplinary application

Ratio Decidendi

Regulation 24 of the Legal Profession Regulation 2005 and Regulation 75 of the Workplace Compensation Regulation 2003 are valid and not ultra vires their parent legislation. Regulation 24 does not require a criminal conviction as a prerequisite to disciplinary proceedings in the Tribunal; the statute provides parallel avenues for criminal and professional sanction, and this does not amount to impermissible double jeopardy.

Court Disposition

Interlocutory declarations (regulations valid; no prerequisite conviction required); proceedings to be listed for further directions.

Orders

  • Regulation 24 of Legal Profession Regulation 2005 is not ultra vires the Legal Profession Act 2004.
  • Regulation 75 of Workplace Compensation Regulation 2003 is not ultra vires the Workplace Injury Management Act and Workers Compensation Act 1998.