Respondents Found Guilty of Professional Misconduct for Violating Advertising Regulations

The Tribunal found the Respondents guilty of professional misconduct for breaching the Advertising Regulations 2005 and the Workers Compensation Regulation 2003. The Respondents were practicing solicitors who published advertisements that contravened these regulations.

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: [COMPANY] v [NAME] and [NAME] (No 2) [2012] NSWADT 112 Hearing dates: 10,11 and 12 April 2012 Decision date: 12 June 2012 Jurisdiction: Legal Services Division Before: Deputy President Patten N Isenberg, Judicial Member E Hayes, Non Judicial Member Decision: Each Respondent found guilty of Professional Misconduct. Catchwords: Alleged breach of Advertising Regulations - clear breach - no exception or defence proved - Professional Misconduct Legislation Cited: [NAME] 2005 Workers Compensation Regulation 2003 [NAME] Act 2004 [NAME] Act 1987 Cases Cited: [COMPANY] v [COMPANY] of NSW [2005] 224 CLR 322 [COMPANY] v [NAME] (No 2)[2009] NSWADT 131 [NAME] v [COMPANY] [2010] NSWCA 79 Rolfe v Willis [1916] 21 CLR 152 Category: Principal judgment Parties: [COMPANY] (Applicant) [NAME] (Respondent) [NAME] (Respondent) Representation: Counsel [NAME] (Applicant) [NAME] SC with [NAME] (Respondent) [NAME] (Applicant) T A Williams (Respondent) File Number(s): 082005 & 092022 082006 & 092023 092035 & 092036

REasons for decision 1Six applications by the [COMPANY] ([NAME]) for findings and orders against [NAME] and [NAME] (the Respondents) were called on for hearing before the Tribunal on 10 April. [NAME] appeared for the [NAME] and Mr [NAME] SC with [NAME] appeared for the Respondents. 2At the commencement of the hearing [NAME] applied, with the consent of [NAME], for the dismissal of 2 of the applications viz. those numbered 092035 and 092036. An order was made by the Tribunal accordingly. 3The remaining 4 matters 082005, 082006, 092022 and 092023 proceeded to a hearing at the conclusion of which on 12 April, the Tribunal reserved its decision on the question whether the Respondents should be found guilty of professional misconduct. 4It was not in issue that at all material times the Respondents practiced as solicitors in [NAME] under the name of [NAME]. 5On 11 October 2007, it came to the Applicant's notice that the Respondents' [NAME]: www.[NAME].com.au displayed, inter alia, the following material: "Our Services Protecting Your Future Conveyancing Personal Injury Debt Recovery Superannuation Litigation Unfair dismissal [NAME] has a proven track record and vast experience in plaintiff litigation particularly personal injury litigation. We are also experienced in commercial and properly law. [NAME] has been serving the people of Greater Sydney for over ten years. We are proud to be one of the largest law firms outside of the Sydney CBD. The [NAME] has a highly skilled and experienced team of solicitors and support staff who provide professional legal services across a number of areas of law. [NAME] .... Protecting your future" ................................................ "Our Services Personal Injury Conveyancing Personal Injury Debt Recovery Superannuation Litigation Unfair dismissal [NAME] is unable to provide information about the area of Personal Injury to the general community The [NAME] (Personal Injury Advertising] Regulation 2003 prohibits us from publishing any information about this area of our practice. You can submit a question through the Contact Us web page or simply call us. on (02) 9601 2444 [NAME] and [NAME] are all Accredited Specialists in the Injury Law." ......................................... Our Team Our Partners Our Philosophy Our Partners Our Associates [NAME] of Australia s best known and most respected lawyers founded the current [NAME] along with [NAME] 1994 [NAME] graduated in 1981 from Sydney University and has specialised in personal law since that time. Accredited Specialist in Personal Injury Law in 1993 [NAME] has worked on some of the most difficult and challenging personal injury cases in Australia [NAME] has is (sic) an elected Councillor of [COMPANY] of [NAME] joined the [NAME] in 1994 and with [NAME] has established a strong reputation as a respected lawyer prepared to fight to protect the rights of his clients and work hard to gain maximum compensation [NAME] has been practising Personal Injury Law since 1988 and became an Accredited Specialist in Injury Law in 1994 [NAME] is a member of the Injury Compensation Committee of [COMPANY] of NSW. ................................................ Our Team Our Associates Our Philosophy Our Partners Our Associates Senior Managing Associate - [NAME] became a Partner in 200 and is widely regarded as a leading advocate in protecting the rights of workers and gaining maximum compensation for people injured in industrial and workplace accidents. [NAME] graduated in 1994 and became an Accredited Specialist in Personal Injury Law in 2000. Associate - Togiao Kha Togiao is an Associate who has been with the [NAME] since she graduated in 1995. Togiao has compensation practice and assists people from all over NSW who have been injured in industrial accidents to protect their legal rights and gain maximum compensation. ........................... Our Services Conveyancing Personal Injury Debt Recovery Superannuation Litigation Unfair [NAME] has a proven track record and vast experience in plaintiff litigation particularly personal injury litigation. The [NAME] has a highly skilled and experienced Team of solicitors and support staff who provide professional legal services across a number of areas of law. At [NAME] we use the latest technology to ensure our staff can work efficiently with access to court and industry resources and advanced communication use of technology and our internal systems are designed to provide a professional service to our clients." 6The Applicant contends that the material referred to above constitutes a breach of Part 5 of the [NAME] 2005 and Part 18 of the Workers Compensation Regulation 2003. 7On 4 December 2007 there was drawn to the Applicant's attention an advertisement in the St [NAME] of 27 November 2007 which read: "[NAME] When winning is everything - don't settle for less [NAME] are personal injury accredited specialists. If you don't win, we don't get paid. Free call [PHONE] [NAME] Office Level 1, 621-635 the Kingsway, [NAME] 9525 2413 Bankstown, Blacktown, Cabramatta, Campbelltown, Canberra Liverpool, [NAME], Newcastle, Parramatta Sydney CBD Wollongong" 8A further advertisement published in the Sunday Telegraph TV Guide for the week commencing 9 December 2007 was drawn to the Applicant's attention. It read: "[NAME] When winning is everything We don't settle for less. [NAME] are personal injury accredited specialists, you can rely on [NAME] for maximum compensation. Free call [PHONE] If you don't win, we don't get paid. [COMPANY]. Bankstown, Blacktown, Cabramatta, Campbelltown, Canberra Liverpool, [NAME], Newcastle, Parramatta, Sydney CBD, Wollongong" 9The Applicant contends that each of the above advertisements also constitutes a breach of Part 5 of the [NAME] 2005 and Part 18 of the Workers Compensation Regulation 2003. 10In March 2008, the following material on the Respondents' web site came to the notice of the Applicant: [redacted] [NAME] are accepting a maximum of 50 clients for this action and the number of places is filling fast so don't miss out, call our national legal help line [PHONE] or click here fill out our contact form." 11Also in March 2008, there appeared on the Respondents' [NAME]: "[NAME] have been instructed by a number of women who have suffered as a result of the negligence of ex-doctor [NAME]. If you have been a patient of Mr [NAME] and have suffered as a result you should call [NAME] now as you have legal rights to compensation. At [NAME] we deal with you and your claim on an individual basis and not as just one small part of a mass claim, so don't be herded into just any law [NAME], make an informed legal choice call [NAME] and we'll ensure you receive the very highest standard of customised legal service. [NAME] are accepting a maximum of 50 clients for this action and the number of places is filling fast so don't miss out, call our national legal help line [PHONE] or click here fill out our contact form." 12Further material on the Respondents' [NAME] came to the Applicant's notice in August 2008: "When Winning is Everything News Update Legal Proceeding against [NAME] has now commenced work on behalf of dozens of women affected by the alleged negligence of [NAME]. We have written to the NSW Government on behalf of our clients and requested that they suspend the Civil Liability Act 2002 as it did for victims of the Waterfall train disaster which would otherwise operate to limit our clients' claims said [NAME]. Any person who wishes to discuss her particular circumstances in relation to this matter should call [NAME], the lawyer with carriage of these matters on [PHONE] or click her to fill out our contact form Users of Fosamax, Actonel & other Biphosphonates A report on the ABC's 7.30 report in December 2007 estimated that up to 500 Australian may have developed Osteonecrosis in recent years. As a result of this media scrutiny the Therapeutic Goods Administrator (TGA) has issued a directive to pharmaceutical companies to provide "clearer and more consistent information" regarding the risks of osteonecrosis. [NAME] is acting for a number of people who wish to pursue legal action against the manufacturer of these drugs in relation to their alleged failure to provide adequate warning labels in relation to any risks associated with taking them. Any person who has been taking Fosamax, Actonel or other bisphosphonate drug should contact [NAME] to discuss your circumstances with one of our Accredited Personal Injury Lawyers on [PHONE] Life can be unfair! And when things go seriously wrong you need lawyers you can trust on your side. Since 1972, [NAME] have been fighting for the rights of our clients, and as one of the largest law firms in Australia [NAME] has the highly skilled people an all other appropriate resources to take on the big insurance companies on your behalf. At [NAME] we're committed to making a real difference for our clients and we'll work tirelessly to deliver to you the maximum results. So, if your life has been turned upside down by someone else's negligence or actions, then [NAME] are the people to talk to. [NAME] - a law [NAME] you know - Lawyers you can trust!" 13This material was accompanied by a photograph of a seated man wearing a hard hat, apparently having his left arm attended to by another man. 14The Applicant contends that each of the above instances of material appearing on the Respondents' [NAME] constitutes a breach of clause 24 of the [NAME] 2005 and makes a similar contention in respect of an advertisement published in the Bega District News on 29 February 2008: "[NAME] "When winning is everything" Important Notice to the Victims of the "[NAME]". Have you been treated by [NAME]? If so you have legal rights! [NAME] are one of Australia's largest compensation law firms, and in response to the horrific allegations being made we will be sending a team of accredited specialists to Bega. Our lawyers will meet with you to discuss your individual circumstances. There is no charge whatsoever for the initial consultation and if we act for you in any claim we do so on a 'NO-WIN NO FEE' basis for our legal costs. If you don't win, we don't get paid." 15Each of the abovementioned alleged breaches of the [NAME] and the Workers Compensation Regulation was investigated by the Applicant who resolved, pursuant to s.537(2) of the [NAME] Act, that there was a reasonable likelihood that the Respondents would be found guilty of professional misconduct and that the matter should be referred to the Tribunal. They are variously the subjects of the outstanding 4 applications before us. 16The relevant provisions of the [NAME] are: 23 Definitions In this Division: "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. "personal injury" includes pre-natal injury, impairment of a person's physical or mental condition, and disease. "publish" means: (a) publish in a newspaper, magazine, journal, periodical, directory or other printed publication, or "solicitor" includes the following: (a) a [NAME] of which a solicitor is a member (but only if the business of the [NAME] includes business of a kind ordinarily conducted by a solicitor), (b) a solicitor corporation, (c) [NAME]. 24 Restriction on advertising personal injury services (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. 26 Exception for advertising specialty (1) This Subdivision does not prevent the publication of an advertisement that advertises a barrister or solicitor as being a specialist or offering specialist services, but only if the advertisement is published by means of: (a) an entry in a practitioner directory that states only the name and contact details of the barrister or solicitor and any area of practice or accredited specialty of the barrister or solicitor, or (b) a sign displayed at a place of business of the barrister or solicitor that states only the name and contact details of the barrister or solicitor and any accredited specialty of the barrister or solicitor, or (c) an advertisement on an internet [NAME] operated by the barrister or solicitor the publication of which would be prevented under this Subdivision solely because it refers to personal injury or personal injury legal services in a statement of accredited specialty of the barrister or solicitor. (2) In this clause: "accredited specialty" of a barrister or solicitor means a specialty in which the barrister or solicitor is accredited under an accreditation scheme conducted or approved by the appropriate Council. "practitioner directory" means a printed publication, directory or database that is published by a person in the ordinary course of the person's business (and not by the barrister or solicitor concerned or a partner, employee or member of the practice of the barrister or solicitor). 27 Other exceptions This Subdivision does not prevent the publication of an advertisement: (a) to any person who is already a client of the barrister or solicitor (and to no other person), or (b) to any person on the premises of a place of business of the barrister or solicitor, but only if the advertisement cannot be seen from outside those premises, or (c) in accordance with any order by a court, or (d) pursuant to a disclosure made by a law practice under Division 3 (Costs disclosure) of Part 3.2 of the Act, or (e) to the extent to which it relates only to the provision of legal aid or other assistance by an agency of the Crown and is published by or on behalf of that agency, or (f) to the extent to which it relates only to legal education and is published to members of the [NAME] by a person in the ordinary course of the person's business or functions as a provider of legal education, or (g) in accordance with any requirement imposed by or under a written law of the State. 28 Responsibility for employees and [NAME] For the purposes of this Subdivision, evidence that a person who is an employee of a barrister or solicitor, or a person otherwise exercising functions in the barrister's or solicitor's practice, published or caused to be published an advertisement is evidence (in the absence of evidence to the contrary) that the barrister or solicitor caused or permitted the publication of the advertisement. 29 Responsibility for advertisements published by [NAME] (1) For the purposes of this Subdivision, an advertisement is taken to have been published or caused to be published by a barrister or solicitor if: (a) the advertisement advertises or otherwise promotes the availability or use of the barrister or solicitor (either by name or by reference to a business name under which the barrister or solicitor practises) for the provision of legal services in connection with the recovery of money, or an entitlement to recover money, in respect of personal injury, or (b) the barrister or solicitor is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the referral of persons to the barrister or solicitor for the provision of legal services in connection with the recovery of money, or an entitlement to recover money, in respect of personal injury, or (c) the barrister or solicitor is a party to an agreement, understanding or other arrangement with the person who published the advertisement or caused it to be published that expressly or impliedly provides for the person to advertise on behalf of the barrister or solicitor. (2) This clause does not apply to an advertisement if the barrister or solicitor proves that the barrister or solicitor took all reasonable steps to prevent the advertisement being published. 30 Double jeopardy A person who has been convicted of an offence under Part 18 of the Workers Compensation Regulation 2003 is not, if that offence would constitute an offence under this Subdivision in respect of the publication of an advertisement, liable to be convicted of an offence under this Subdivision in respect of that publication. 17The Workers Compensation Regulation 2003 mirrors the provisions of the [NAME]. The principal prohibition contained in clause 75 provides: "75 Restriction on advertising work injury services 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 [NAME] 2002. A contravention of that Part by a lawyer constitutes professional misconduct. 18The High Court in [COMPANY] v [COMPANY] of NSW [2005] 224 CLR 322 upheld the constitutional validity of the [NAME] 2002 made pursuant to s.216 of the [NAME] Act 1987. The [NAME] 2005 made pursuant to s. 85 of the [NAME] Act 2004 is in almost identical terms to the earlier regulation. 19The Respondents asserted, in this case, that the Regulation was ultra vires the regulation making power conferred by s.85 of the Act, and that in any event, if valid, the Regulation required that there be a conviction for contravention before disciplinary proceedings could be taken against the solicitor concerned. Both these contentions were rejected by the Tribunal in earlier proceedings ([COMPANY] v [NAME] (No 2)[2009] NSWADT 131. The Tribunal's decision was upheld in the Court of Appeal ([NAME] v [COMPANY] [2010] NSWCA 79) and the High Court refused an application for special leave to appeal. 20At the hearing before us, [NAME] read the affidavits of [NAME] sworn respectively 29 February 2008 (2 affidavits); 13 October 2009; and 31 July 2009 (2 affidavits) and of [NAME] sworn 5 April 2011 (2 affidavits). [NAME], whose affidavits were largely formal in nature, was not required for cross-examination. 21Mr [NAME], Head of e.forensics and a "Computer Forensic Examiner", established himself, inter alia, as an expert in producing historic copies of [NAME] pages and his report was directed to establishing the state of the Respondents' [NAME] as it was from time to time. He explained : "The instructions I received were to carry out the following: a. Locate historical web pages for the [NAME], 'www.[NAME].com.au' b. Provide a screen shot for each and every page at monthly intervals from October 2006 until present. c. Prepare a report detailing the results and the procedures followed to obtain the material requested." 22Cross-examination of [NAME], in our opinion, did not undermine his testimony and we are satisfied that the material, alleged above to have appeared at various times on the [NAME] of the Respondents, did in fact so appear at, or about, the times that the publication was drawn to the attention of the Applicant. 23Mr [NAME] read the affidavits of [NAME] (22 December 2010 and 23 March 2012); two affidavits of [NAME] (14 January 2011 and 23 March 2012); two affidavits of [NAME] (21 August 2008 and 7 January 2011); and an affidavit of [NAME] sworn 14 January 2011. 24In his earlier affidavit, [NAME] said that he was admitted as a solicitor in July 1981 and since 1996 has practised in [NAME] with [NAME], under the [NAME] name "[NAME]". He said that at some unspecified time (apparently at the end of 2001), [NAME] was appointed as general manager of the [NAME], his duties including "to report to the partners and to look after day to day business matters which included advertising, computers, and other technological aspects of the [NAME]'s administration and the establishment and maintenance of one or more websites". 25Mr [NAME] explained his response to advertising restrictions imposed by regulation: "18. [NAME] and I gave directions to [NAME] that he was to ensure that all advertising complied with the new restrictions. He was directed to make whatever enquiries were necessary, and to obtain any approvals which might be necessary, to ensure that we did not breach the regulation or the guidelines.

19. I do recall that it was necessary to withdraw and to dramatically change advertising which the [NAME] had been running prior to the new regulations because it was clear that such advertising did not comply. At considerable cost, we cancelled a television advertising campaign which was then running and replaced it with a completely revised version which, based upon [NAME]'s enquiries and report to us, was compliant.

20. While I was generally aware that it was not permissible to describe the services which the [NAME] offered in terms which describe them as "personal injury" services, I did not understand at that time, or indeed at any time until after I was notified of the present complaints, that it was alleged to be not permissible to refer to the fact that members of the [NAME] were accredited specialists in personal injury law. I recall that I had seen other firms advertising themselves as accredited personal injury specialists, a [COMPANY] brand.

21. As part of the process designed to ensure compliance, I requested [NAME], and subsequently his successors [NAME] (previously manager of [NAME]) and [NAME] (previously manager of [NAME]) to monitor advertisements made by other firms who were prominent practitioners in the area of personal injury law. Part of the reason for so doing was to try to get an idea what the general approach to compliance was within the profession.

22. Following the introduction of the advertising regulations I was approached by other practitioners about breaches of the regulations by one [NAME] in particular. This issue was also raised by my partner. As a result I spoke to [NAME] at [COMPANY]. Not long after that discussion, Mr [NAME] arranged a meeting attended by myself, Mr [NAME], a member of his staff, the Commissioner, [NAME] and [NAME] of the [COMPANY]'s office. We met a (sic) room on the 2nd floor of [COMPANY] building. The subject of the discussion was the question of interpretation of the regulations, and establishing a mechanism whereby practitioners could ascertain what was permitted so as to enable compliance. A system was set up by the [COMPANY], which we directed our manager to use. I probably did make notes of the discussion but I have not retained them. 23. [NAME] left the [NAME] in December 2004. After a period of time he was replaced by [NAME] and subsequently [NAME] as general manager. [NAME] served in that role from about 2006 until January 2010 when we found it necessary to sever the connection.

24. The instructions to [NAME] were much the same as those which had been given to his predecessors and directing (sic) him to ensure that we were fully compliant in all advertisements which he arranged and to utilise [COMPANY] system." 26In respect of the material on the [NAME]'s [NAME] deposed, in effect, that he left it to the [NAME]'s manager to ensure that the Regulations were complied with. He conceded that [NAME] may have provided him with drafts but he had no recollection of him doing so. He could not recall ever accessing the [NAME] himself. 27He said that each of the advertisements complained of was arranged by [NAME]. He continued: "I was not consulted by [NAME] before he created and placed the ads. In relation to the Fosamax matter, which is the subject of Ground 5, this was not the sort of work [NAME] does or was seeking to do. Had I been aware of the advertisements I would not have approved publications unless they had been approved by [COMPANY]. It was not within [NAME]'s authority to place advertisements or conduct advertising campaigns without our knowledge or without [COMPANY]'s approval process being followed." 28In his more recent affidavit he said: "When I became aware that rules relating to the advertising of personal injury were to be introduced, I said to our general manager [NAME] words to the effect of: "The government is introducing new laws to regulate advertising. We're going to have to make sure our ads are fixed up so that they comply. You'd better get right on top of that and make any necessary changes." Soon after the meeting referred to in paragraph 22 of my affidavit, I said to [NAME] words to the effect of: "[COMPANY] has set up a system so that we can check whether advertisements comply with the rules. Make sure that you check with [COMPANY] that they're OK before they are run." I said words to the same effect to our later general managers [NAME] and [NAME]." 29He also corrected an "error" in paragraph 20 of his previous affidavit reproduced above: "I refer to paragraph 20 of my affidavit. On reflection, I believe that there is an error in that paragraph. I think now, having considered the email from [NAME] that is page 47 of the affidavit of [NAME] of 29 February 2008, that I probably became aware as a result of reading that email that there was a restriction on using the fact of personal injury accreditation in advertisements." 30In this later affidavit, [NAME] said that since 2004 his [NAME], in effect, has extensively advertised its services in the print media, including in languages other than English, on radio and on television. He concluded the affidavit: "Through my own involvement in our advertising campaigns, and my own observations of our advertising otherwise, as well as the content of discussions from time to time with [NAME], our general managers, and occasionally other staff, I believed that the instructions that I had given as attested to in paragraph 3 above were being followed." 31In his affidavit sworn 14 January 2011, [NAME] said that his first name is [NAME] but he is known as "[NAME]". He was admitted as a solicitor in 1989 and became a partner in [NAME] in May 1994. He has been a partner continuously since. 32In relation to the [NAME]'s [NAME] said: "Beyond joining in the decision that it would be to the [NAME]'s benefit for it to have its own [NAME], I played no part at all in the creation of the [NAME] or in the drafting or approval of any text or pictorial images for the [NAME]. I do not recall accessing the [NAME]'s [NAME] until I became aware of the fact that it was the subject of a complaint by the [COMPANY]. The creation and establishment of the [NAME] was the responsibility of the [NAME]'s general manager who at that time was a [NAME]. [NAME] is no longer employed by the [NAME]. [NAME] had responsibility for matters relating to any advertisements placed on behalf of the [NAME]." 33He testified specifically in relation to personal injury advertising: "12. My partner [NAME] and I discussed the ban on personal injury advertising on a number of occasions both between ourselves and with [NAME].

13. I did not keep any file notes of my discussions with either [NAME] or my partner [NAME] and as a result I am not now able to be specific as to where and when they occurred and precisely what was said. The best I am able to say is that the discussions with [NAME] took place at regular intervals during the time of his employment with the [NAME] which was from 2002 until December 2004 and my discussions with [NAME] in relation to personal injury advertising have continued on a regular basis since 2002 until the present time. 14. [NAME] and I expressed the view to each other, and we directed [NAME] that all advertising had to comply with the regulations.

15. In relation to the [NAME], it is possible that [NAME] delivered to me some paper work containing a draft of the text which he proposed to submit for the [NAME] creation. However, I have no recollection of receiving such material and commenting on it beyond the instructions which I gave to [NAME] in relation to advertising generally.

16. I do not recall any specific changes to the [NAME] being brought to my attention between the creation of the [NAME] and the date the [NAME] was said to be accessed by the [COMPANY].

17. Apart from [NAME] who left the [NAME] in December 2004, the [NAME] has employed [NAME] and [NAME]. Relevantly, the most recent appointment was that of a [NAME] who was employed from 2006 until January 2010 when [NAME] and I found it necessary to terminate his services. 18. [NAME] and I jointly and individually gave instructions to [NAME] and to [NAME], and all other administrative staff members who had any involvement in advertising that no advertisements were to be created or published which did not comply with the regulatory requirements in relation to personal injury advertising.

19. I did not personally keep any file notes or other records of any conversations on the subject, or copies of any memos which I may have provided to [NAME] or [NAME] or other staff members on the same subject.

Accordingly, it is not possible for me to be specific as to exactly what was said and when. I do say, however, that I am quite clear in my recollection that [NAME] directions were given both by [NAME] and myself to anybody to whom relevant responsibility was delegated to ensure that there was no breach of the regulations.

20. On a number of occasions to my knowledge, advertising proposals were submitted to [COMPANY] of NSW for comment.

21. I have seen some documents produced by the [NAME] comprising emails from [NAME] to [COMPANY]. Ms [NAME] was employed as a Marketing & Business Development Manager at that time.

22. The practise of submitting advertisements to [COMPANY] was developed to ensure compliance with directions given by [NAME] and I that it was necessary to ensure that all advertisements complied with the advertising regulations.

23. I do not know where Ms [NAME] (sic) is these days. 24. [NAME] informed me, and I verily believe that he also spoke to representatives of [COMPANY] and the Legal Services Commission to ensure compliance.

25. While I did not view the [NAME], I did see other advertisements which were placed by [NAME] and possibly [NAME] on behalf of the [NAME]. I was generally aware that the expression "personal injury accredited specialists" appeared in our advertisements. In reliance upon the direction, and what I understood to be the steps taken by [NAME] and other members of the staff to ensure compliance, it did not occur to me that the use of those words alone might be prohibited. In fact I thought that we had approval but I cannot now be sure of the reason why I thought that other than the general practices which had been established. [COMPANY] had developed the accreditation process in the early 1990s, and it did not occur to me that describing a practitioner as an accredited specialist could amount to professional misconduct. The scheme was designed to assist the public to identify legal practitioners who worked in particular fields.

26. I remember attending a meeting in about 2003 with [NAME] and the [COMPANY] at the Commissioner's office at which a discussion took place in relation to some print advertising that was then proposed by the [NAME]. The purpose of that meeting was to discuss with the Commissioner what was permissible and what was not permissible for the advertising we proposed to submit. I do not now remember which advertising was under discussion but my best recollection is that the Commissioner confirmed that there appeared to be no objection to the advertising on the basis of the personal injury advertising regulations.

27. It was my clear and [NAME] belief and understanding based upon various statements made to me by [NAME] and by [NAME] that there had also been written communication with [COMPANY] and possibly with the [COMPANY] to ensure compliance with the regulatory requirements. Application 092023 28. I do not recall seeing the advertisement referred to in this Application until after I received notification of the complaint which had been initiated by the Office of the [COMPANY].

29. Searches have revealed that [NAME] copied an email to me at about 9.15am on 28 February 2008 containing the text of an advertisement. Annexed and marked 'A' is a copy of the said email. On 28 February 2008 I was in Sydney instructing in a case and I do not know when I would have received Annexure 'A'. It appears that the advertisement was placed shortly after Annexure 'A' was sent. Annexed and marked 'B' is a copy of an email to the Bega Times sent at 1.17pm on 28 February 2008 placing the advertisement.

30. There are differences between Annexure 'A' and Annexure 'D' to the Application of the Commissioner. Had I been aware of the contents of Annexure 'A' at the time the advertisement was being prepared I would have thought it complied.

31. I had no knowledge at all of the material concerning Fosamex (Ground 5) until I became aware of the complaint. Such matters, involving product liability class actions, do not fall within the sphere of matters undertaken by the [NAME] and I would have rejected any request for approval to place the ads if I had been given any notice of it.

32. So far as I can ascertain all of the advertisements referred to in this application were placed by [NAME] without authority from either my partner or myself." 34Mr [NAME]' second affidavit largely replicated the later affidavit of [NAME] in relation to the [NAME]'s extensive advertising regime. He also said: "In speaking to [NAME] or other staff members on the subject of my [NAME]'s advertising as attested to in paragraph 18 of that affidavit I said words to the following effect: "It is most important that we comply with the regulation on advertising. All advertisements to be placed on behalf of the [NAME] must be checked prior to publication with [COMPANY] or the [COMPANY]. Advertisements must not be placed without approval from them." 35The affidavit concluded with these paragraphs: "Copies of local newspapers such as the [NAME] and [NAME] containing our [NAME]'s advertisements were supplied to our office, and from time to time I looked at the [NAME]'s advertisements in those papers. From my own direct observation of the advertising placed on behalf of the [NAME], and from discussions that I held with [NAME] and with staff from time to time, I was of the [NAME] and clear belief that my instructions about checking the contents of proposed advertisements with [COMPANY] and/or the [COMPANY] were being followed." 36Mr [NAME] said that he was employed by the [NAME] from about late 2001 to December 2004 as General Manager. As such, his responsibilities included marketing and practice development. In relation to advertising, [NAME]'s affidavit of 25 August 2008 said: "6. At some point in 2002 I recruited, and engaged on behalf of the [NAME], a lady by the name of [NAME] to work in the area of marketing. Her specific responsibilities were business development and marketing, including advertising and establishing networks to promote the business and the business development of the practice.

7. Ms [NAME] was the person who had the initial task of drafting material for inclusion on the [NAME]'s [NAME]. She also had the task of preparing drafts of any proposed advertisements.

8. All drafts of proposed advertising or [NAME] content matters prepared by Ms [NAME] were referred to me for review.

9. After I revised the drafts submitted to me by [NAME] I would take them personally to [NAME] and [NAME]. I do not recall [NAME] sending anything back in the way of a memorandum or changes, although it might have happened rarely. [NAME], however, normally sent me back a marked-up version with suggested changes.

10. Periodically there would be proposed changes, or if there was any matter of significance which came to my attention, it would be brought to the attention of the partners in much the same procedure as is described above.

11. Any advertising, or any matters relating to the [NAME]'s [NAME] content which related in any way to advertising or marketing of work related to personal injuries was regarded as a matter of particular significance, and was always discussed by me with both [NAME] and [NAME].

12. The reason that the matter was significant was that [NAME] and [NAME] were aware that there were restrictions on what was permissible to be advertised in relation to personal injury work because of the regulations made under the [NAME] Act. I know that to be the case because I had numerous discussions with both [NAME] and [NAME]. Each of them said to me on a number of occasions words to the effect: "You need to make sure that everything we do complies with all of the regulations. Make sure that anything we say or do in our advertising or on the [NAME] relating to personal injuries satisfies [COMPANY] and the Legal Services Commission ".

13. Because of the instructions I had received I was particularly attentive to attempting to ensure that we complied with the regulatory requirements. I am not a lawyer. In order to make sure that the work which I recommended to the partners for adoption was not in breach of the regulations, it was my practice, whenever there was any new advertising or change to [NAME] content relating to personal injury work, to contact [COMPANY] or the [COMPANY] for advice.

14. I recall that on one or possibly two occasions, [NAME] and I attended a meeting with [NAME] for the purpose of obtaining his advice as to what was permissible and was not permissible under the Regulation. Any parts which were said not to be permissible were deleted.

15. I recall also that I sent to [COMPANY], on a number of occasions, drafts of what we proposed to publish to ensure that it was compliant. [COMPANY] sometimes provided verbal advice and sometimes wrote back to us to tell us whether it was acceptable or not.

16. I think we also sent some drafts to the [COMPANY] for comment but I cannot now be sure and I do not have access to the files, having changed my place of employment. I do recall that I did receive verbal and written advice from [NAME] at [COMPANY]. [NAME] informed me that the Legal Services Commission and [COMPANY] had a list of approved words and phrases. I cannot now recall whether that was said to me in a conversation or in response to one or more of our written communications." 37Mr [NAME] was not required for cross-examination. 38Ms [NAME] commenced employment with [NAME] in June 2007 as Client Enquiry Coordinator and Personal Assistant to the then Chief Executive Officer of the [NAME]. She deposed as to her role in relation to the [NAME]'s advertising: "3. In my role as PA to [NAME] I was involved in liaising with various newspaper and radio organisations for the placement of advertising on behalf of the [NAME].

4. To my understanding all advertising material utilised by the [NAME] at that time and up until [NAME]' departure in January of 2010, was drafted by [NAME].

5. The advertisements as drafted were provided to me and in turn I would place the advertisements with either the radio stations and/or the newspapers. 6. [NAME] gave directions as to what the text contained within the advertisement was to include. On occasions an external provider, [NAME], was engaged to assist in the formatting of the advertisement.

7. These advertisements included the advertisements that were placed in the Vietnamese Sunrise Daily and the newspapers concerning the [NAME] ads. The text for these advertisements was drafted by [NAME] but [NAME] was engaged to format the advertising.

8. Formatting of the advertising was necessary so as to comply with the requirements of the medium where the advertisement was to be placed." 39According to her affidavit, [NAME] ceased to have responsibility for advertising about mid 2008 when such responsibility, at the direction of [NAME], was assumed by his son, [NAME] who also became employed by the [NAME]. She said that the employment of both [NAME] and [NAME] was terminated in January 2010. 40Although [NAME] was present at the hearing and gave short evidence in chief, [NAME] did not wish to cross-examine her. He did, however, cross-examine extensively both [NAME] and [NAME]. We regret to have to say that neither, in our opinion, was an impressive witness. They seemed to us less than frank and overly defensive in seeking to justify as adequate the level of supervision they exercised in respect of the [NAME]'s advertising. They also seemed surprisingly casual in their attitude towards complaints made by the Applicant. 41By way of reply to the evidence relied upon in the Respondents' case, [NAME] read the affidavit of [NAME] sworn 19 October 2009. At the time, she had been employed by [COMPANY] in its [NAME] since late 1990. 42In relation to [NAME]'s affidavit sworn 21 August 2008, she said: "The Office of the [COMPANY] ([COMPANY]) and [COMPANY] have never published a list of words and phrases that are approved for use in advertising personal injury legal services. However, the [COMPANY] have agreed on a non-exhaustive list of words and expressions which would seem to give rise to a breach of the regulations that govern solicitors' ability to advertise personal injury legal services. This list has been published on [COMPANY]'s [NAME] since, I believe, late 2003 or early 2004 and was substantially revised in June 2007. Since the publication of that list, it has been my practice when I receive enquiries from legal practitioners in relation to advertising personal injury legal services to refer them to that list." 43She said that she searched [COMPANY]'s Ethics Data Base for the period 2001 to 2004 using the words "[NAME]", "[NAME]", "[NAME]", and "Advertising". The following results were produced: (a) a letter from [COMPANY] to [NAME] dated 24 June 2003 (omitting formal parts): "I refer to your facsimile letter of 13 June 2003, enclosing the transcripts of [NAME]' proposed advertising campaign for the [COMPANY]'s review. This matter was discussed at a meeting with the [COMPANY] on 23 June 2003. At that meeting, the Commissioner expressed the view that the proposed advertising would not be in breach of any of the provisions of the new [NAME] (Personal Injury Advertising) Regulation 2003 and the Workers' Compensation (General) Amendment (Work Injury Advertising) Regulation, 2003. While the [COMPANY] accepts that the advertising may not breach the regulations, it seems appropriate to convey to you my reservations. In this regard, it is appropriate to make some general comments about the effect of a breach of the regulations and the [COMPANY]'s role. You should be aware that the [NAME] (Personal Injury Advertising) Regulation, 2003 provides that a contravention will be an offence and will also constitute professional misconduct. Therefore, in relation to any published ad the [COMPANY] may, pursuant to Section 54 of the [NAME] Act, 1987 institute a prosecution or other proceedings for a breach of the Regulation." (b) An exchange of letters and emails in October 2003 relating to transcripts of proposed radio advertising, which included an email from [COMPANY] stating that the transcripts do not "appear to raise any breach of the Regulations". (c) A letter from [COMPANY] to [NAME] dated 23 April 2002: " I refer to my facsimile transmission of 15 April 2002 and to our telephone conversation yesterday. I confirm that the Ethics Committee has considered your proposed advertising and, accepting the reservations reflected in my earlier communications, has resolved to inform you that in its view your proposed advertisements "involve advertising for personal injury work and therefore would not comply with the [NAME] (Advertising) Regulation 2002." 44Ms [NAME] concluded her affidavit with these paragraphs: "Having undertaken the above searches, I have no recollection or knowledge of any further correspondence or communications between [NAME] and me other than a recollection of a telephone conversation or some telephone conversations, the details of which I am unable to recall. Finally, I have been shown a copy of extracts from the [NAME] as at 11 October 2006, a copy of which is annexed at pages 23 to 27 and marked "MC5". To the best of my knowledge and belief, I have never considered or expressed a view on the contents of these 5 pages." 45The [NAME] extracts referred to by [NAME] are those set forth in paragraph 5 of these reasons. 46In fairness to the Respondents, we should record that annexed to [NAME]'s affidavit of 29 February 2008 sworn in the matter concerning [NAME], are a series of very difficult to read emails between [NAME] and [NAME] dated July and August 2006, which obviously relate to efforts by [NAME] to seek guidance from [NAME] as to the content of advertising material. 47Ms [NAME] was not required for cross-examination. 48At the outset of the hearing, [NAME] indicated that he put the Applicant to proof of the fact that [NAME] was at all relevant times the [COMPANY]. He had given ample notice of this to the Applicant. Upon that issue and after hearing legal argument, we admitted into evidence as business records, a letter from the Attorney General to [NAME] dated 4 June 2003 and a letter from a [NAME] to [NAME] dated 26 August 2008. Those documents satisfy us that [NAME] was the [COMPANY] at all relevant times and, indeed, [NAME] in closing did not make any submission to the contrary. 49In his closing submissions, [NAME] pointed to the breadth of the definitions in clause 23 of the [NAME] and submitted that there can be no doubt as to the publication of impermissible material. He contended that the primary purpose of clauses 28 and 29 was to ease the proof of breach. He submitted that clause 29(2) could not apply on the facts and that in truth the Respondents "washed their hands" as evidenced by their lack of response to the Applicant's letters from October 2006 onwards. 50He submitted that there was no reason to think that the procedures established while [NAME] was General Manager of the [NAME] continued under [NAME], who, on the Respondents' own admissions, was not required to put drafts of advertisements or transcripts before them. He drew attention to the Respondents' failure to adduce evidence from [NAME], who was Chief Executive for 4 years up to January 2010 and said that no reason was given for the absence of [NAME] except that his services were terminated as from the end of 2009. 51Putting the evidence of the Respondents at its highest, so [NAME] submitted, there was demonstrated a flaw in the system of checking advertisements against possible breaches of the Regulations, in that each advertisement, the number of which was under their control, should have been personally checked. 52Mr [NAME] submitted that no inference should be drawn from the absence of [NAME] because as the employment of him and his son was terminated he was unlikely to be "in the Respondents' camp". 53He contended correctly, we think, that when the Regulation was altered in 20002/3, the Respondents demonstrated highly commendable endeavours to comply with what was required. He submitted that we should find that when [NAME] was General Manager, a reasonable system was established and that we should conclude that the system was continued under [NAME]. 54Whether or not the Respondents acted responsibly in what they believed was the public interest or, as some evidence suggested, in a manner similar to that of other solicitors is not, of course, relevant to our consideration of the issue whether it has been established that the Respondents breached the Regulations and therefore were guilty of professional misconduct. 55Initially, this question requires us to consider the terms of the advertisements complained of against the terms of the Regulations. For convenience we will confine our attention to the [NAME] as, in the circumstances of this case, breach of the Workers Compensation Regulation will necessarily be a breach of the [NAME]. 56In relation to each advertisement as defined in clause 23 of the Regulation published by a barrister or solicitor, which promotes the availability or use of such barrister or solicitor, the requirement is that it must not contain a reference to, or a depiction of, the matters listed in sub-paragraphs 24(1)(a)(b) and (c). 57As it seems to us: (a) The material displayed on the [NAME] referred to in paragraph 5 above self-evidently infringed the prohibitions contained in clause 24 of the Regulation. (i) by its references to "personal injury"; (II) by its reference to "vast experience in plaintiff litigation particularly personal injury litigation"; (iii) by its statement "[NAME] and [NAME] are all "Accredited Specialists in the Injury Law"; (iv) by its other references to person practising Personal Injury Law being Accredited Specialists in Injury Law; (v) by its reference to [NAME] being "widely regarded as a leading advocate in protecting the rights of workers and gaining maximum compensation for people injured in industrial and workplace accidents; (vi) by its reference in relation to [NAME] "has compensation practice and assists people from all over NSW who have been injured in industrial accidents to protect their legal rights and gain maximum compensation. (b) In our opinion, the advertisement reproduced in paragraph 7 above infringes clause 24 of the Regulation by its reference to "personal injury accredited specialists". As the advertisement complained of was in a newspaper, none of the exceptions provided for by clause 26 of the Regulation applies. (c) For similar reasons, in our view, the advertisement reproduced at paragraph 8 above infringes clause 24 and none of the exceptions apply. (d) The material on the [NAME]'s [NAME] headed "[NAME]", reproduced in paragraphs 10 and 11 above relates to the availability of the [NAME]'s legal services in respect of personal injury as defined in clause 23, which may be actionable as a consequence of the activities of [NAME] medical practitioner, [NAME]. On this basis, the [NAME] clearly infringes clause 24 of the Regulation. (e) The [NAME] material reproduced in paragraph 12 promotes or offers services of the [NAME] in respect of personal injury caused by [NAME] and also to persons who have suffered personal injury as a consequence of consuming various biphosphonate drugs. On this basis it, in both respects, contravenes clause 24 of the Regulation. (f) The advertisement reproduced in paragraph 14 infringes clause 24 of the Regulation in that it promotes the availability of the services of the Respondents in respect of personal injuries within the definition caused by [NAME]. 58It was argued that the exception provided for by clause 29(2) applies. However, as [NAME] pointed out, and we agree clauses 28 and 29 are primarily evidentiary provisions designed to facilitate proof of offences committed against clause 24. 59But, accepting that clause 29(2) provides the Respondents with a "defence", they must satisfy the requirement that they "took all reasonable steps to prevent the advertisement being published". This is a question of fact to be considered in light of principles derived from previous decisions upon similar wording. In Rolfe v Willis [1916] 21 CLR 152 the issue was whether a licensed publican had proved that he and the persons employed by him took all reasonable steps to prevent drunkenness on the premises. At page 155 Griffith CJ, reading the judgment of the Court, said: "In our opinion the phrase "reasonable steps to prevent drunkenness" means such steps as ought reasonably to be taken by way of precaution against the occurrence of drunkenness on the premises under any circumstances that may reasonably be anticipated, and to prevent its continuance when its existence is discovered." 60In our opinion, the concept of reasonableness and the language of clause 29(2) itself requires, as [NAME] in effect submitted, that initially at least there be a focus on the particular advertisement in question. 61In other words, it is not sufficient to rely on general instructions given to staff as to the need to comply with the Regulation. In our view, there must be a system, in place and enforced, which is designed to ensure that every fresh advertisement published on behalf of the [NAME] is, before publication, scrutinised by a competent person for compliance with the Regulation. Only then will it be relevant to conduct an enquiry as to whether the system represented "all reasonable steps". 62Whatever may have been the position when [NAME] was the [NAME]'s General Manager, in our opinion it is clear that under the management of [NAME] there was no system in place and enforced which was designed to ensure that each new advertisement published was checked against the Regulation. It seems clear that by 2006 when [NAME] commenced his employment, the Respondents, who may well have told him to ensure that the regulations were complied with, left it entirely to him to do so. This, in our view, [NAME] not being a lawyer, was a gross abdication of their responsibilities and comes nowhere close to constituting "all reasonable steps". It is telling that neither Respondent seems to have looked at the [NAME]'s [NAME]. 63We are comforted in our findings adverse to the Respondents by the absence from the witness box of [NAME], as we do not regard the fact that his employment was terminated as a circumstance sufficient in itself to explain his absence. Proof of "all reasonable steps", as we have indicated in our opinion, required evidence specifically directed to the impugned advertisements. In the absence of [NAME], there was none. 64As there was no issue as to the advertisements, set forth earlier, being published and no issue as to the responsibility of the Respondents for what was published in accordance with clauses 28 and 29 of the Regulation (absent proof of the requirements of clause 29(2)), we must inevitably find in accordance with clause 24(2) that the Respondents are guilty of Professional Misconduct. 65Those are the only findings we make as the matter requires a further hearing on penalty. For the purpose of fixing such a hearing date, the matter will be listed for mention at 9.30am on 13 June 2012.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2012