The Law Society of New South Wales v Stephen Gary Spring and Another [2007] NSWSC 1273 | Case summary

The Law Society of New South Wales v Stephen Gary Spring and Another [2007] NSWSC 1273 | Case summary | Zoe

The work done by Mr Spring 4 Mr Spring has made a speciality of advising parties to retail leases. In an affidavit made on 11 May 2007 he said this about himself - I am a retail specialist and retail lessee advocate and agent. I have been involved with retailing and retail property most of my life. I operate and charge my services solely through the First Plaintiff. I do not, nor have I ever held out to the public that I hold a legal practicing (sic) certificate or provide usual legal services. My area of speciality is only retail tenancy advocacy, negotiation, expert witness and dispute resolution for and on behalf of retailers. Most of my clients come via personal and professional recommendations, some from within the retail and legal industry, some from the various retail, property and business agencies. I have assisted numerous retail landlords and their tenants settle disputes ranging from simple to very complex. Clients range from small independents to national chains, legal firms and barristers. I also speak to retailers at various retail industry tenancy forums, for example the Franchise Associate of Australia ("FCA") and Jewellers Association. I have written press for the NSW Minster for Small Business regarding retail leasing and I have contributed to educational and information material published by the Retail Tenancy Unit of NSW such as the disclosure statements and retail tenant's guide. I write educational articles about retailing and retail leasing issues in popular industry magazines, assist various retail associations and their members with their retail tenancy issues and maintain an on-line presence for Inside Retailing. 5 The events out of which this action arises may be summarised as follows. Mrs Jocelyn Bond was principal of Saies-Bond & Associates Pty Limited (Saies-Bond). Saies-Bond entered into the lease of a portion of a shopping centre at Alexandria. The lessor was Armstrong Jones Management Pty Limited (AJM). Differences arose between Mrs Bond and AJM. AJM took possession of the leased premises and, on 27 January 2006, commenced proceedings in the Retail Leases Division of the Tribunal, claiming more than $360,000.00. 6 Mrs Bond did not know Mr Spring or ARLM. Someone suggested the names to her. She found an entry for ARLM in the telephone directory. The entry listed a telephone number and a website www.retail lease.com.au. She telephoned the listed number and spoke to Mr Spring. He supplied her with a number of documents, including a costs agreement. 7 On the same day Mrs Bond sent Mr Spring a letter confirming their conversation and enclosing a document she described as a "cross-claim", which she had apparently already filed in the Tribunal. 8 In an exchange of e-mail messages on 1 and 3 February 2006 Mrs Bond sent Mr Spring the draft of a letter she intended to send to the other side, proposing changes to the directions already made in the Tribunal for the preparation of the case. Mr Spring settled the letter, making some changes to it. 9 On 7 February Mr Spring sent e-mail messages to Mrs Bond expressing the opinions that the heart of her case was misrepresentation and that the claim needed to be amended and inquiring how Mrs Bond was progressing with the preparation of her affidavit. 10 At about the same time they had a telephone conversation about a claim for unconscionable conduct. 11 Mr Spring sent an amended draft affidavit on 8 February and on 10 February an e-mail setting out the steps that needed to be taken. There was this passage - Your urgent task, priority numero uno is to put all of the correspondence in descending date order.

As you can see, you are running it very tight and there is still the issue of the forthcoming hearing and that must be attended to get you more time and you need to issue subpoenas for production. There will be argument by ING on that but that is for another day. 12 On 22 and 23 February Mr Spring sent Mrs Bond successive drafts of an affidavit. On 27 February they discussed Saies-Bond's losses and the possibility of making an offer of settlement. Mr Spring drafted a letter for signature by Mrs Bond and transmission to the solicitors for AJM headed "Without Prejudice Save as to Costs". The body of the letter included these passages - I refer to the above proceedings. Please be advised I will be filing documents in accordance with the Tribunal's order. In the meantime, I submit an offer of compromise in accordance with the principles of Calderbank v Calderbank. On behalf of my company Saies-Bond Pty. Limited, I am prepared to accept $85,000 for full and final settlement on a no-fault, confidential basis for both proceedings. This offer is open for your client's acceptance up to the close of business Monday 6 March 2006. If the offer is not accepted, this letter will be relied upon for an application for costs against your client on an indemnity basis. 13 On 3 March Mr Spring, working from documents supplied by Mrs Bond and discussion they had had, sent a draft amended application. Mrs Bond filed it in the Tribunal on the same day. 14 Between then and 10 March, Mr Spring and Mrs Bond spoke about objections raised by the solicitor for AJM to a summons to produce documents served by Mrs Bond. Mr Spring advised on a draft response. The parties did not settle their differences on the summons to produce and the Tribunal heard argument on 24 March before giving judgment. Mr Spring argued the case for Saies-Bond. 15 On 30 March Mrs Bond sent Mr Spring a further draft affidavit and asked for advice. On 4 April Mr Spring responded and advised. On 6 April Mr Spring sent a further draft affidavit. The correspondence continued, with further advice and drafts. 16 At the request of the solicitor for AJM the Tribunal issued a summons to Mr Spring to produce his file. He did so but took objection. He attended the Tribunal and argued the issue, relying on Evidence Act s120. The Tribunal upheld his objection as inspection would have disclosed confidential communications made for the dominant purpose of preparation and conduct of the proceedings. 17 Between then and the hearing Mr Spring sent a number of e-mails, advising about things to be done and about topics on which witnesses ought to be asked questions. 18 On 15 and 16 May Mr Spring appeared for Saies-Bond in the hearing before the Tribunal. He cross-examined witnesses. The hearing was adjourned part-heard. 19 Between then and the adjourned the day he gave further advices on evidence. On 23 and 24 May the hearing continued and Mr Spring continued to appear for Saies-Bond. The evidence was completed but the hearing was adjourned part-heard to 21 June for submissions. 20 After that, differences arose between Mr Spring and Mrs Bond about her payment of his fees. On 20 June Mr Spring wrote to the Tribunal saying that he had ceased to act for Saies-Bond but that he had prepared written submissions and would send them to the Tribunal if appropriate. 21 On 21 June Mr Spring and Mrs Bond had a further conversation. They disagree about the form and, perhaps, the effect of it, but the result was that Mr Spring told the Tribunal that Mrs Bond had secured funding and that as a result he was representing Saies-Bond once again. He continued to appear and made submissions to the Tribunal. Once again the hearing failed to finish and was adjourned so that the representatives could file written submissions. 22 Thereafter Mr Spring offered further advice about written submissions and drafts. Substantial written submissions were filed on 14 July, drafted by Mr Spring. 23 On 17 July there was a conversation between Mr Spring and Mrs Bond. They disagree about what was said, but the result was that Mr Spring filed in the Tribunal a letter seeking leave to rely on further evidence. After that Mr Spring provided further advice and drafts for Mrs Bond. 24 On 13 November 2006 the Tribunal handed down its judgment.

The ARLM website 25 Evidence was adduced about the website www.retaillease.com.au as it stood on 18 July 2007. The parties approached the hearing on the understanding that there was no significant difference between the statements it contained then and on the day Mrs Bond first saw it. 26 The Home Page contained these statements - Location Leases Landlords Disputes Feasibility Business for Sale Contact Us Links About Us Testimonials LEASE MANAGEMENT FOR SPECIALTY SHOPS Successful retailers know "location & lease" go hand in hand. Today's retail reality is fiercely competitive and requires broad ranging skills, experience and much effort. It's often 7 days, highly seasonal and consumers are fickle and demanding - but locational decisions will make or break the business! That's why smart retailers and chains store operators in food, hard or soft goods and apparel turn to us for help - we know what landlords, leasing agents and their lawyers don't want you to know! Location - choose very, very carefully… Few mistakes in retail are as permanent, unforgiving and potentially damaging as choosing the wrong location or negotiating the wrong lease - even the right site at a fair price, but in the wrong market will struggle. Don't gut feel it, minimise your risk! We'll use correct site selection principles to determine trade area dynamics, traffic flows, demographic and physcographic (sic) markets, space and fit out requirements and benchmark the evaluations for proper profit forecasting. More… Lease - an asset or liability? We know the pitfalls , tricks and traps! We'll negotiate your lease, determine restrictive clauses, assist at renewal and rent reviews as well as evaluate existing leases - and we'll check outgoings contributions, rent statements and landlord lease law compliance throughout the term of the lease. Don't go it alone or risk a chancy family lawyer, we know how unfair leases impact your bottom line. More… Landlord - strip shop or shopping centre? Don't get suckered into a bad deal! Retail property professionals make a majority of their income from representing property owners, not tenants - but we're different. Retailers, franchisees and franchisors use us for expansion, consolidation, site feasibility studies or acquiring existing retail businesses. In strip shops or shopping centres, we'll advise and look out for you. More… Feasibility - plan properly & prepare for profit… Do you truly know if sales and expenses estimates are realistic, or the actual capital you'll need before you fit out and stock up? Do you know when you're bound to pay rent, even if you're not trading - or your exposure to unpredictable rent increases making your business unviable? Can you profitably pay more rent than that of your competitors? Have you considered your debts if your lease is terminated, even through no fault of your own, or what key seasons must be profitable to cover slower month losses? More… Disputes - need help with a retail lease dispute? Forget 'lawyerfests'! Disputes with landlords can financially cripple smaller retailers, but most are rectifiable retail business issues, not legal problems. We'll represent you at informal meetings, mediation, Tribunals and Courts for types of retail lease problems such as breach of lease and lost profits claims. We only do retail lease disputes and are 'street' aware, 'alive' to the tricks and can distinguish 'half-truths' from the legal and retail reality - helping you and your landlord reach win-win outcomes. More… Location Leases Landlords Disputes Feasibility Business for Sale Contact Us Links About Us Testimonials Copyright 2002-3 - Australian Retail Lease Management retail lease shopping centre mall dispute retail lease shop tenant landlord mediation legal breach notice lessees lessee store site selection store location westfield ipoh schroders lend lease stocklands retail leases act tenancy matter land law unconscionable conduct derogation of grant quiet enjoyment covenants assignment relief from forfeiture 27 Under the heading "Disputes" there was this entry - Location Leases Landlords Disputes Feasibility Business for Sale Contact Us Links About Us Testimonials Disputes Whilst we believe in solving tomorrow's potential problems today, disputes between landlords and retail tenants happen all too often. With leasing law and landlord and retail tenant relationships ever more complex, specialist legal and retail advice is essential to solve your dispute. Having problems with your retail landlord? You should contact us sooner rather than later because we can troubleshoot before the dispute escalates. The problem might easily be solved! Clearly, retailers and landlords are much better off with a commonsense businesslike resolution or mediated settlement rather than a protracted Court imposed "solution". In the event of a serious disagreement with a landlord, we can provide specialist tenancy representation and advocacy for litigation. This focus becomes especially important when potential litigants have their entire business at risk, face expensive and protracted litigation or landlords are confronting relentless tenant churn. We advise disgruntled tenants claiming misleading, unconscionable or other illegal conduct, work with landlords and tenants (of differing ethnicities) in troubled centres, either informally using dispute resolution techniques or formally through mediation, tribunal and court processes. Our tenancy advocates have real world experience to advise "one off" retailers or chain store executives. We have settled many protracted disputes, bringing the parties together to move to new levels of retail understanding - thus forming a new foundation for a better future relationship. Conversely, where more appropriate, we have been involved in numerous cases where landlords and tenants have elected to go to Court - if this is you, we can advise accordingly. Location Leases Landlords Disputes Feasibility Business for Sale Contact Us Links About Us Testimonials Copyright 2002-3 - Australian Retail Lease Management 28 Under the heading "About Us" there was this entry - Location Leases Landlords Disputes Feasibility Business for Sale Contact Us Links About Us Testimonials About Us Site selection analysis and lease consultancies were once the province of large retailers who retained full time property departments - but smaller retailers need these skills too, even more so! Operating in Sydney and Melbourne, we span a range of legal, financial, commercial and economically oriented disciplines and recommend action as though we are spending our own money. How many consultants have implemented their own recommendations and built and managed retail developments and stores? - We have! As a result, we have a profound respect for risk/resources, returns on cash and sweat capital invested - an approach we think is critical to provide sound advice. · Our services include pre-lease condition reports, redecoration requirement checks, Torrens title registration checks, calculations of percentage rents, interest on security deposits and much more… · Perhaps your centre's undergoing, about to undergo, or recently been redeveloped? Are your problems falling on dear ears? · What's the true impact on the existing businesses? · Are the new shop sizes right, what about the rents? · What's the impact on G.L.A and G.L.A fraction contributions? · Selling a retail business? Need leasing advice? Using Our Services Q How do I engage Australian Retail Lease Management? A Either call us or send us an e-mail . A consultant will be in touch with you to discuss your needs or problem. Q Do I need my lawyer or accountant's involvement? A That all depends on your needs or problem. We can work with you direct on all matters, with your professional or directly on your behalf with landlords, leasing agents, their lawyers, representatives or other retailers. All our work and contact is totally confidential and we will immediately inform you of a conflict of interest or any other material matter that may compromise or impact on either yourself or us. Q How do you charge and at what rate? A It depends on the task at hand. A solution to a problem may be simple like writing a letter after discussion with you, or more complex site selection, lease negotiations and renewals, dispute resolution and litigation - they all have differing level of work at different skill levels. We'll advise you of rates and offer a ballpark figure of the work needed. You will receive a costs agreement; documented time spent on your matter and proper tax invoices. We bill weekly and accept Bankcard, Visa and Mastercard. Q Can you help me with specific retail problems? A We specialise in retail related marketing, property, location and leasing matters. We may be able to point you in the right direction for other services such as retail recruitment, inventory control, retail security etc, but first look at our helpful links page . Q Can you provide references? A Yes. We are happy to provide references from clients who use our services. Naturally, they will not talk about confidential arrangements, but feel free to ask them about our services. Q Do I receive special privileges if I'm a member of the Australian Retailers Association? A Yes. Paid up members of the Australian Retailers Association receive a 10% discount on all work and priority for urgent matters. Please provide your current member number and details for verification. Location Leases Landlords Disputes Feasibility Business for Sale Contact Us Links About Us Testimonials Copyright 2002-3 - Australian Retail Lease Management 29 On 12 June 2007 Mr Alfred Matalani, solicitor, statutory offences, professional standards wrote on behalf of the Law Society to Mr Spring, complaining that the website appeared to be in breach of s15(1) of the Legal Profession Act 2004. The letter concluded by stating that the purpose was to provide Mr Spring and Lolly Pops with an opportunity to forward written submissions why action should not be commenced immediately in this Court seeking declarations as to breaches of the Legal Profession Act and seeking injunctive relief. Some correspondence followed, and one result was that the entries on the website changed. In the extracts that follow, the changed passages appear in italics. 30 On 23 July 2007 the Home Page entry was as follows - Location Leases Landlords Disputes Feasibility Public Speaking Contact Us Links About Us Testimonials LEASE MANAGEMENT FOR SPECIALTY SHOPS Successful retailers know "location & lease" go hand in hand. Today's retail reality is fiercely competitive and requires broad ranging skills, experience and much effort. It's often 7 days, highly seasonal and consumers are fickle and demanding - but locational decisions will make or break the business! That's why smart retailers and chains store operators in food, hard or soft goods and apparel turn to us for help - we know what landlords, leasing agents and their lawyers don't want you to know! Location - choose very, very carefully… Few mistakes in retail are as permanent, unforgiving and potentially damaging as choosing the wrong location or negotiating the wrong lease - even the right site at a fair price, but in the wrong market will struggle. Don't gut feel it, minimise your risk! We'll use correct site selection principles to determine trade area dynamics, traffic flows, demographic and physcographic (sic) markets, space and fit out requirements and benchmark the evaluations for proper profit forecasting. More… Lease - an asset or liability? We know the pitfalls, tricks and traps! We'll assist you to negotiate your lease, determine restrictive uses , assist at renewal and rent reviews as well as evaluate existing leases - and we'll check outgoings contributions, rent statements and marketing compliance throughout the term of the lease. Don't go it alone or risk a chancy family lawyer, we know how unfair leases impact your bottom line. More… Landlord - strip shop or shopping centre? Don't get suckered into a bad deal! Retail property professionals make a majority of their income from representing property owners, not tenants - but we're different. Retailers, franchisees and franchisors use us for expansion, consolidation, site feasibility studies or acquiring existing retail businesses. In strip shops or shopping centres, we'll advise and look out for you. More… Feasibility - plan properly & prepare for profit… Do you truly know if sales and expenses estimates are realistic, or the actual capital you'll need before you fit out and stock up? Do you know when you're bound to pay rent, even if you're not trading - or your exposure to unpredictable rent increases making your business unviable? Can you profitably pay more rent than that of your competitors? Have you considered your debts if your lease is terminated, even through no fault of your own, or what key seasons must be profitable to cover slower month losses? More… Disputes - need help with a retail lease dispute? Forget 'lawyerfests'! Disputes with landlords can financially cripple smaller retailers, but most are rectifiable retail business issues, not legal problems. We'll represent you at informal meetings, mediation and the Administrative Decisions Tribunal for all types of common retail lease problems such as breach of lease and lost profits claims. We are not and do not act as your lawyer, but we specialise in retail lease disputes, are 'street' aware, 'alive' to the tricks and can distinguish 'half-truths' from the retail reality - helping you and your landlord reach win-win outcomes. More… Location Leases Landlords Disputes Feasibility Public Speaking Contact Us Links About Us Testimonials Copyright 2002 - 7 - Australian Retail Lease Management retail lease shopping centre mall dispute retail lease shop tenant landlord mediation legal breach notice lessees lessee store site selection store location westfield ipoh schroders lend lease stocklands retail leases act tenancy matter land law unconscionable conduct derogation of grant quiet enjoyment covenants assignment relief from forfeiture

31 Under the heading "Disputes" there was this entry - Location Leases Landlords Disputes Feasibility Public Speaking Contact Us Links About Us Testimonials Disputes Whilst we believe in solving tomorrow's potential problems today, disputes between landlords and retail tenants happen all too often. With retail landlord and tenant relationships ever more complex, specialist tenancy solutions are essential to solve your dispute. Having problems with your retail landlord? You should contact us sooner rather than later because we can troubleshoot before the dispute escalates. The problem might easily be solved! Clearly, retailers and landlords are much better off with a commonsense businesslike resolution or mediated settlement rather than a protracted Court imposed "solution". In the event of a serious disagreement with a landlord, we can provide specialist tenancy representation and advocacy for litigation in the Administrative Decisions Tribunal. Plus, if you need an expert for court or Tribunal, call us. This focus becomes especially important when potential litigants have their entire business at risk, face expensive and protracted litigation or landlords are confronting relentless tenant churn. As industry specialists , we advise disgruntled tenants claiming misleading, unconscionable or other illegal conduct, at hearings before the Administrative Decisions Tribunal , work with landlords and tenants (of differing ethnicities) in troubled centres, either informally using dispute resolution techniques or formally through mediation.* Our tenancy advocates have real world experience to advise "one off" retailers or chain store executives on options for the most acceptable commercial solution. We have resolved many protracted disputes, bringing the parties together to move to new levels of retail understanding - thus forming a new foundation for a better future relationship. Conversely, where more appropriate, we have been involved as client agents before the Administrative Decisions Tribunal and as expert witness in cases as where landlords and tenants have elected to go to Court and the Tribunals - if this is you, we can advise accordingly. Location Leases Landlords Disputes Feasibility Public Speaking Contact Us Links About Us Testimonials Copyright 2002-7 - Australian Retail Lease Management * Here the words "tribunal and court processes" were omitted.

32 Under the heading "About Us" there was this entry - Location Leases Landlords Disputes Feasibility Public Speaking Contact Us Links About Us Testimonials About Us Site selection analysis and lease consultancies were once the province of large retailers who retained full time property departments - but smaller retailers need these skills too, even more so! Operating in Sydney and Melbourne, we span a range of business disciplines and recommend action as though we are spending our own money. How many consultants have implemented their own recommendations and built and managed retail developments and stores? - We have! As a result, we have a profound respect for risk/resources, returns on cash and sweat capital invested - an approach we think is critical to provide sound advice. · Our services include pre-lease condition reports, redecoration requirement checks, Torrens title registration checks, calculations of percentage rents, interest on security deposits and much more… · Perhaps your centre's undergoing, about to undergo, or recently been redeveloped? Are your problems falling on dear ears? · What's the true impact on the existing businesses? · Are the new shop sizes right, what about the rents? · What's the impact on G.L.A and G.L.A fraction contributions? · Selling a retail business? Need leasing advice? Using Our Services Q How do I engage Australian Retail Lease Management? A Either call us or send us an e-mail . A consultant will be in touch with you to discuss your needs or problem. Q Do I need my lawyer or accountant's involvement? A That all depends on your needs or problem. We can work with you direct,* with your professional or directly on your behalf with landlords, leasing agents and their lawyers, advisors and representatives. All our work and contact is totally confidential and we will immediately inform you of a conflict of interest or any other material matter that may compromise or impact on either yourself or us. Q How do you charge and at what rate? A It depends on the task at hand. A solution to a problem may be simple like writing a letter after discussion with you, or more complex site selection, lease negotiations and renewals, dispute resolution and expert help or representation before the Administrative Decisions Tribunal - they all have differing level of work at different skill levels. We'll advise you of rates and offer a ballpark figure of the work needed. You will receive a costs agreement; documented time spent on your matter and proper tax invoices. We bill weekly and accept Bankcard, Visa and Mastercard. Q Can you help me with specific retail problems? A We specialise in retail related marketing, property, location and leasing matters. We may be able to point you in the right direction for other services such as retail recruitment, inventory control, retail security etc, but first look at our helpful links page . Q Can you provide references? A Yes. We are happy to provide references from clients who use our services. Naturally, they will not talk about confidential arrangements, but feel free to ask them about our services. Q Do I receive special privileges if I'm a member of the Australian Retailers Association, COSBOA or the Franchise Council of Australia? A Yes. Paid up members of those Associations receive a 10% discount on all work and priority for urgent matters. Please provide your current member number and details for verification. Location Leases Landlords Disputes Feasibility Public Speaking Contact Us Links About Us Testimonials Copyright 2002-7 - Australian Retail Lease Management * Here the words "on all matters" were omitted.

33 Under the heading "Leases" there was this entry - Location Leases Landlords Disputes Feasibility Business for Sale Contact Us Links About Us Testimonials Leases There's no such thing as a simple lease transaction! A changing and challenging retail leasing environment imposes new obligations on both retailers and landlords and naturally, retailers often ask their family lawyer for leasing and franchising advice - but that's only a part solution. Today's retailers need a team approach. Here's why… For most professionals, retail leasing is an insignificant part of their practice. Many think leases are "standard" and landlords are inflexible with a "take it or leave it" attitude. In practice, tenancy arrangements are negotiable - providing you know what to ask! Many retailers simply "gut feel it". They think retailing is tough enough without wading through the complex maze of verbiage that constitutes a modern lease. But your lease is a long-term pledge - your pledge, not your advisors - and obtaining proper advice is essential prior to signing up! In our experience, few lawyers truly understand trade area dynamics, gross profit margin analysis or occupancy cost ratios for a particular business type. They cannot judge if you should "walk away" if the deal isn't a good one, or negotiate dispassionately for better terms which is essential when you are setting up shop. As retail tenancy experts, our Retail Lease CoachTM service advises you and other professionals. If you know little about property capitalisation rates, stock market and unit trust expectations or the massaging of assert values and how they directly relate to a retailer's bottom line, how can advisors working in isolation help you? Has your professional adviser really considered your position if your new site is a "dog" - unprofitable at any rent? Have they thought about the impact of external factors like diminished pedestrian flow, changing customer types, average spend variations, stock turns requirements or say, if a food court you'll rely on has enough seating? - all matters learned from experience at the retail "coal face". If your advisors don't know the true effect of restrictive usage clauses, changes in tenancy mix or the value of retail benchmarking, how can they properly help when you really need it? "A lease is not intended to be either a mental exercise or an essay in literature: it is a practical document dealing with a practical situation." Levermore v Jobey (1956) 1 WLR 697 at 708 PER Danckwerts LJ Location Leases Landlords Disputes Feasibility Public Speaking Contact Us Links About Us Testimonials Copyright 2002-7 - Australian Retail Lease Management

73 Procedure of the Tribunal generally (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so - to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. (5) The Tribunal: (a) is to act as quickly as is practicable, and (b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and (d) in the case of a hearing - may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and (e) may require a document to be served outside the State, and (f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and (g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and (h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance. …

39 Senior counsel for the Law Society submitted first that the work done by the defendants for Saies-Bond and the work they said in the website that they were available to do was legal practice. As such it could, by the force of s14(1), be done lawfully only by an Australian legal practitioner. By virtue of s15(1) any person not an Australian legal practitioner was prohibited from representing or advertising an entitlement to do such work. Since Mr Spring was not an Australian legal practitioner, the defendants were in breach of ss14 and 15. There were also breaches of ss137, 138 and 142. 40 The work done comprised the preparation of an amended application and summons to produce, drafting correspondence to be sent to the solicitors for the other side, drafting and amending correspondence to be sent to the Tribunal, corresponding with solicitors and the Tribunal, drafting and amending affidavits, providing legal advice on costs, on statutory causes of action and on jurisdiction, advising how to proceed at the hearing and how to conduct it, advising on settlement and drafting submissions, as well as attending the Tribunal, appearing there and adducing evidence, including by cross-examination, and making oral argument and submissions. 41 Senior counsel drew attention to the importance which Parliament attaches to the prohibitions in ss14 and 15 of the Legal Profession Act in light of the detailed statutory regime for the issue of practising certificates. That, it was submitted, is no mere formality, but serves an important function in the administration of the legal profession. Professional standards are thereby upheld, to the benefit of members of the public. Reference was made to Mee Ling v Law Society of New South Wales [1974] 1 NSWLR 490; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470. The effect of the regime is that only those who have the necessary legal knowledge, are of good character and are otherwise fit and proper persons to practise are issued practising certificates. And the regime requires that those who have practising certificates be insured. For the same reasons, although the courts have power to dispense with the requirement that a litigant before them appear personally or by a legal practitioner, they exercise it sparingly: Damjanovic v Maley (2002) 55 NSWLR 149. 42 It was submitted that the consequences of a breach of the prohibition on practising without a practising certificate are serious. A criminal penalty might be imposed on a contravener. There is no entitlement to recover payment for work so done. Any payment for work so done may be recoverable as a debt due to the payer. 43 On the other hand, there is no requirement in the Retail Leases Act or the Administrative Decisions Tribunal Act that an "other agent" who, under s77C Retail Leases Act, represents a party in the Tribunal, has to demonstrate the attainment of any particular standard of knowledge or probity. There is no requirement in s71 Administrative Decisions Tribunal Act that the agent by whom a party may be represented has to be shown to have achieved any such standard. There is no requirement in either Act that the agent representing a party must be insured. 44 In the circumstances, it was submitted, the words "represented by an agent" in s71 Administrative Decisions Tribunal Act and the equivalent words in s77C Retail Leases Act should be construed narrowly so as to limit the permitted representation to "actual, physical appearances in the Tribunal". Sections 14, 15, 71 and 77C could be "reconciled" in a particular way. There was this submission - A party in the ADT is entitled to be represented by an agent, as long as that person is not engaged in legal practice within the meaning of the LP Act. This means that in proceedings before the Tribunal, a director or employee can represent a company without leave being granted, as long as the director or employee is authorized by the company to appear. By reason of the exception in section 14(3)(a) from the prohibition in section 14(1), an employee of a party may engage in legal practice (by advising his or her corporate employer as to matters of law, drafting pleadings etc, and also by appearing on its behalf) as long as the employee is doing so in the ordinary course of his or her employment and receives no fee, gain, or reward for so doing other than his or her ordinary remuneration. 45 The result, it was submitted, is that the following categories of conduct on the defendants' part were prohibited - (a) any appearance, for a fee prior to 2 June 2006, and with or without a fee after 2 June 2006, before the ADT involving the application of legal expertise including, but not limited to: i. making oral submissions at an interlocutory or a final hearing (including, in relation to the production of documents pursuant to a notice to produce or subpoena. and in relation to the admissibility of any evidence); and ii. calling, examining or cross-examining a witness. (b) drafting or settling, for a fee prior to 2 June 2006, and with or without a fee after 2 June 2006, any of the following documents: i. originating process or pleadings (including points of claim, defence and cross-claim);

46 The distinction between work done for a fee before 2 June 2006 and with or without a fee afterwards was made because, until they were removed by amendment effective from 2 June 2006, s14(1) contained the words "for fee, gain or reward". 47 Counsel expressly withheld any complaint about the defendants' appearances - …insofar as they do not involve the application of legal expertise, such as appearances at directions hearings and call-overs for the purpose of setting timetables and obtaining hearing dates, since such appearances do not amount to engaging in legal practice within the meaning of the (Legal Profession Act). 48 It was submitted that any wider construction of the provisions of the Administrative Decisions Tribunal Act and the Retail Leases Act would be inconsistent with the general prohibition in ss14 and 15 of the Legal Profession Act. Parliament did not intend that litigants engaged in proceedings in the Tribunal be disentitled to the protection otherwise afforded to litigants in New South Wales. So much, it was submitted, is plain from s13 of the Legal Profession Act. Is there an inconsistency between ss14 and 15 Legal Profession Act and s71 Administrative Decisions Tribunal Act and s77C Retail Leases Act? 49 The fundamental rule of construction of statutes is that a statute is taken to mean what it says. In Mills v Meeking (1989-1990) 91 ALR 16 Mason CJ and Toohey J, with whom Brennan J agreed, said at 21 - If the language of a statute is ambiguous or uncertain, a risk of injustice will bear upon the construction to be given to words used. But, if the language is not ambiguous or uncertain, a court will apply its ordinary and grammatical meaning unless to do so will give the statute an operation which obviously was not intended. 50 Where the words used would permit alternative constructions, regard must be had to s33 Interpretation Act 1987 (NSW). The section is as follows - 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

51 Speaking of the asserted effect of a later statute upon an earlier, Gaudron J said, in Saraswati v The Queen (1990 - 1991) 172 CLR 1 at 17- It is a basic rule of construction that, in the absence of express words, an earlier statutory provision is not repealed, altered or derogated from by a later provision unless an intention to that effect is necessarily to be implied. There must be very strong grounds to support that implication, for there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other. See Butler v Attorney-General (Vict.) (1961) 106 CLR 268, per Fullagar J at 276, and per Windeyer J at 290. More particularly, an intention to affect the earlier provision will not be implied if the later is of general application (as is the provision by which indecent dealing is constituted an offence under the Act) and the earlier deals with some matter affecting the individual (as does the limitation provision in s78). Nor will an intention to affect the earlier provision be implied if the later is otherwise capable of sensible operation. The position was stated by Lord Selborne in Seward v The "Vera Cruz" (1884) 10 App.Cas. 59, at 68, as follows: "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so". 52 Even so, counsel for the Law Society submitted that the context of the words and the purpose of the statute may sometimes provide a more reliable guide than the literal or grammatical meaning of the words. Reference was made to Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [78]. 53 The functions of advising on evidence, drafting and settling letters and affidavits and making oral and written submissions are, in actions before courts and tribunals, the stuff of barristers' and solicitors' work. See generally The Council of the New South Wales Bar Association v Davison [2006] NSWSC 65; Felman v Law Institute of Victoria [1993] 4 VR 324; Cornall v Nagle [1995] 2 VR 188. As senior counsel for Mr Spring conceded, much of what Mr Spring did would be characterised as engaging in legal practice. It may be accepted that the work that Mr Spring did was legal practice as contemplated by ss14 and 15 of the Legal Profession Act. 54 No fine distinction need here be made between legal practice engaged in for the purposes of s14 and any represented entitlement to engage in such work for the purposes of s15. Senior counsel for both sides realistically accepted that if the Law Society were successful under s14 it should succeed also under s15. If it should fail in part, it should fail totally. 55 My first impression upon reading the sections under consideration is that they are not on their face inconsistent. S14(1) prohibits anyone who is not an Australian legal practitioner from engaging in legal practice in New South Wales. Subs (2)(b) provides that the prohibition does not apply to legal practice engaged in under the authority of a law of New South Wales or of the Commonwealth. The Administrative Decisions Tribunal Act and the Retail Leases Act are laws of New South Wales. S71 of the former Act authorises representation by an agent in proceedings before the Tribunal, subject to the power of the Tribunal in subs(2) to order that the parties may not be represented by an agent of a particular class for the purpose of making oral submissions to it. S77C of the latter Act provides, despite s71 of the former, that where proceedings concern a lease within the purview of the Act, the parties may appear in person or be represented by a lawyer or other agent, thereby removing the power of the Tribunal to make an order about representation under s71(2) of the former Act. A person who represents a party before the Tribunal engages in legal practice. So the Administrative Decisions Tribunal Act and the Retail Leases Act amount to a law under whose authority such an agent may engage in legal practice. By virtue of subs 14(2)(a) of the Legal Profession Act, subs 14(1) does not apply. 56 There is no doubt, as senior counsel for the Law Society has submitted, that generally the intent of the Parliament in the Legal Profession Act is to reserve the engagement in legal practice to Australian legal practitioners having practising certificates. But it is also clear that the Parliament recognises exceptions under the authority of its own laws or the laws of the Commonwealth Parliament other than the statutes now under consideration. Examples of exceptions made by the New South Wales Parliament are - 1. Anti-Discrimination Act 1977 . S98 is as follows - 98 Rights of appearance and representation

36 Representation of parties (1) Except as provided by this section, a party in any proceedings has the carriage of his or her own case and is not entitled to be represented by any person. (2) A party may, in accordance with the regulations, apply to the Tribunal for permission to be represented by a person in the proceedings or in part of the proceedings. The Tribunal may approve any such application and make an order permitting the party to be represented. (3) In any proceedings where an amount is claimed or disputed, a party is not entitled to be represented by an Australian legal practitioner if the amount does not exceed $10,000 (or such other amount as may be prescribed by the regulations) unless the Tribunal is of the opinion that the exceptional circumstances of the case warrant such representation. (4) If a party has been granted legal assistance under Division 2 of Part 2 of the Fair Trading Act 1987, the parties in the proceedings are entitled to be represented by an Australian legal practitioner. (5) Except as otherwise provided by the regulations, a person is not entitled to demand or receive any fee or reward for representing a party in any proceedings. This subsection does not apply to or in respect of an Australian legal practitioner. 4. Community Land Management Act 1989 . S93(3) is as follows - 93 Appearance before Tribunal … (3) Representation before the Tribunal may be by an Australian legal practitioner, or by an agent authorised in writing. 5. Strata Schemes Management Act 1996 . S193(2) is as follows - 193 Representation before the Tribunal … (2) Representation before the Tribunal may be by an Australian legal practitioner, or by an agent authorised in writing. 6. Industrial Relations Act 1996 , dealt with later in this judgment. 7. Greyhound and Harness Racing Administration (Appeals) Regulation 2004 . Reg 25 provides - 25 Hearings in absence of a party and representation at hearings (1) The Tribunal may hear an appeal in the absence of a party to the appeal.

(2) The Tribunal may grant leave for each party to be represented by a lawyer or agent at the hearing. 57 Mention should be made of two recent decisions in the New South Wales Industrial Commission. In Deluux Pty Limited v Mini-Tankers Pty Limited [2007] NSWIRComm 101 in which it was held that s166 Industrial Relations Act should be construed subject to s14 Legal Profession Act. S166 is as follows - 166 Representation of parties (1) A party to proceedings before the Commission may appear personally or be represented by an Australian legal practitioner or by an agent who is not such a practitioner. (2) However, a party is not entitled to be represented in conciliation proceedings by a person who is an Australian legal practitioner or an agent who is an industrial agent without the leave of the Commission. (3) The leave of the Commission is not required if the Australian legal practitioner represents an industrial organisation (or any of its members) and is an officer or employee of the organisation. (4) The leave of the Commission is also not required if the Australian legal practitioner represents a State peak council and is an officer or employee of the State peak council. (5) The Commission may allow any party appearing before it the services of an interpreter. 58 A summons was filed on behalf of an applicant in the Industrial Commission by a company which was not a legal practitioner. The principal of the company was not qualified either. The respondent moved to strike out the proceedings because they had not been instituted by the applicant itself or through the services of an Australian legal practitioner. 59 The Industrial Relations Commission of New South Wales is established under s145 Industrial Relations Act. It is assigned functions by s146. Some members of the Commission are judges. Others are not: they are called commissioners. S153 delineates certain functions which may be exercised only by the Commission in Court Session. When it sits in Court Session the Commission is known as the Industrial Court of New South Wales. So constituted, it is a superior Court of record whose status is equivalent to that of this Court.

The Tribunal is a statutory body established by the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). It has functions conferred upon it both by that Act and certain other Acts including, relevantly, the Retail Leases Act 1994. The Tribunal exercises its functions by sitting in a number of distinct Divisions, for which the ADT Act makes provision. The relevant division for present purposes is the Retail Leases Division, the composition and functions of which are set out in Pt 3B of Sch 2 of the ADT Act. 63 Since both Industrial Court judgments to which I have referred expressly stopped short of finding any inconsistency between s166 and s14 as affecting proceedings in any part of the Industrial Commission not a court, neither assists the Law Society's case, and it is unnecessary to consider whether they were correctly decided. 64 There seems to me to be a discernible pattern of legislation in New South Wales providing in tribunals, however described, that deal with special classes of business for parties to be represented by agents other than Australian legal practitioners. The intentions stated in the enabling legislation typically refer to cost and the time needed to hear cases, simplicity versus complexity, law versus fact and to amounts likely to be at issue. Copies of the Hansard record of speeches made in Parliament on the introduction of Bills for the Administrative Decisions Tribunal Act and the Retail Leases Act were put into evidence, but I do not need to refer to them beyond saying that the intentions so expressed are consistent with this pattern. 65 Section 71 Administrative Decisions Tribunal Act was considered in Kondos & Another v Citadin Pty Limited, a decision of the Appeal Panel of the Tribunal. The first appellant, Mr Kondos, was principal of the second appellant, The Lease Police, which held itself out as an advocacy and advice service to tenants in shopping centres. It represented Citadin in an action in the Tribunal, and because of the way they handled the case, the appellants were ordered to pay costs. They appealed. The President of the Tribunal, O'Connor DCJ, said this in delivering the judgment of the Appeal Panel at [3] - [4] - Section 71 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) deals with representation before the Tribunal. It reflects a more relaxed approach to non-lawyer representation than is found in the ordinary courts where leave to appear must be obtained by a non-lawyer representative (see, e.g. District Court Act 1973, s 43(1)(b)). 66 His Honour then set out the section and continued - It will be seen that a party has a right to appear by way of an 'agent', and no distinction is drawn between a legally qualified advocate and one who is not legally qualified: s 71(1). On the other hand, the Tribunal has a power to order that parties to the proceedings may not be represented by an agent 'of a particular class for the purpose of the presentation of oral submissions to it.' This power is yet to receive any close scrutiny in this Tribunal. When read in conjunction with the list of factors given in sub-s (3) the Tribunal would appear to have a broad power to curtail the appearance before it of advocates, both legally trained and not legally trained, especially if the matter is a complex one. Cases in the Retail Leases Division often have a degree of legal and factual complexity. See generally Damjanovic v Maley (2002) 55 NSWLR 149 on factors relevant to the exercise of the discretion not to grant leave to appear to non-lawyers in the ordinary courts, esp per Stein JA at [69]-[88]. 67 In my opinion his Honour's remarks describe an approach and practice in the Tribunal entirely consistent with the meaning of the legislation. They are designed to deal as simply and cheaply as possible with such of the business of the Tribunal as is susceptible to the treatment described. 68 It may have been because there was no available argument about the business of the Tribunal based on the "court/commission" dichotomy that had appeared in the Industrial Commission cases that senior counsel for the Law Society, faced with the apparently plain conferment of authority by s71(1)(b), resorted to an argument for the dissection of the meaning of "representation" and for the allocation of its component parts as available to be done only by Australian legal practitioners or by any person, qualified or unqualified. The distinction may have been based on the degree of legal knowledge required to do the task to be allocated, though that was not altogether clear. In this way distinctions were drawn between the categories of conduct I have summarised at paras 44 and 45 above. 69 It was submitted that where a broad concept of agency has been intended, statues have used language other than that of representation. For example, Rule 6.9 Uniform Civil Procedure Rules [2005], provides - 6.9 How appearance entered (cf SCR Part 11, rule 3)

Note. Appearance may be withdrawn: see rule 12.5. 70 I do not think that this comparison supports the Law Society's contention. I do not think that the meaning of "enter an appearance" can bear upon the meaning of "represent" as it is used in the two Acts under consideration. The entry of an appearance, as referred to in the Uniform Civil Procedure Rules, refers to an act which may convey that a party intends to take part in the proceedings, but it scarcely conveys more than that. In other circumstances the word might have a more restricted meaning. So a barrister may appear for a party on one occasion but not on the next. I do not think that the meaning of "represent" can be ascertained by reference to the meaning of the expression "enter an appearance" as used in the Uniform Civil Procedure Rules or elsewhere. 71 The words "represent" and "representation" are not defined. In my opinion they should be construed in a broad and practical way. A party to proceedings in the Tribunal appoints a representative not to do some things and not others but to take on the case and see it through to a conclusion. One would not say of a legal practitioner representing a party in the Tribunal that the practitioner was engaged to perform some functions of representation but not others. 72 To represent is to fill the place of another in some respect or for some purpose; to be a substitute in some capacity for a person or body; to act for another by deputed right: OED(2) XIII 658. By the same authority, representation means the fact of standing for or in the place of some other thing or person, especially with a right or authority to act on their account, substitution of one person or thing for another. 73 The terms of s71(2) make clear that representation includes the presentation of oral submissions. 74 In my opinion the Law Society's submissions should not be accepted. S71 Administrative Decisions Tribunal Act means what it says. It is a statutory authority for a party in proceedings in the Tribunal to be represented for all purposes in the proceedings by an agent, including an agent who is not an Australian legal practitioner. S14(2) Legal Profession Act makes express exceptions for compliance with its requirements. S71 is such an exception. There is no conflict between the sections and no warrant for reading down the plain meaning of s71 and s77C Retail Leases Act. 75 It follows that the work done by Mr Spring was done in accordance with an exception to the requirements of s14 Legal Profession Act and that there has been no breach of that section. By the proper concession of senior counsel for the Law Society, there has been no breach of s15 by reason of the advertisements on the ARLM website and no other breach of any provision of the Legal Profession Act. 76 The summons is dismissed. 77 I order the Law Society to pay the defendants' costs.

The Law Society of New South Wales v Stephen Gary Spring and Another

At a glance

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Judgment (103 paragraphs)

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