find the latest legal job
Corporate Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Highly-respected, innovative and entrepreneurial Not-for-Profit · Competency based Board
View details
Chief Counsel and Company Secretary
Category: Generalists - In House | Location: Newcastle, Maitland & Hunter NSW
· Dynamic, high growth organisation · ASX listed market leader
View details
In-house Projects Lawyer | Renewables / Solar | 2-5 Years PQE
Category: Generalists - In House | Location: All Australia
· Help design the future · NASDAQ Listed
View details
Insurance Lawyer (1-3 PAE)
Category: Insurance and Superannuation Law | Location: Sydney NSW 2000
· Join a dynamic Firm · Excellent career growth opportunity
View details
In-house lawyer 1-4 PAE
Category: Generalists - In House | Location: Adelaide SA 5000
· Leading Brand · Report to a Dynamic Legal Counsel
View details
APLA battles PI advertising ban

APLA battles PI advertising ban

A NSW law banning the advertising of personal injury services discriminates against lawyers, according to the Australian Plaintiff Lawyers Association (APLA). The Association is, however, hoping…

A NSW law banning the advertising of personal injury services discriminates against lawyers, according to the Australian Plaintiff Lawyers Association (APLA). The Association is, however, hoping that a High Court challenge to the law will change all that.

APLA Ltd & Ors v Legal Services Commissioner of NSW & Anor, (see extract) which began last week, is the most important constitutional case on freedom of political communication in a decade, according to APLA.

When the NSW Government introduced the Legal Profession Regulation 2003, it effectively stopped communications between a lawyer and the general public “that have an effect of promoting the availability of the lawyers to perform personal injury legal services”, said APLA president Tom Goudkamp.

The case challenges the constitutional validity of NSW’s efforts at negligence law reform, according to APLA.

The Law Council of Australia (LCA) told Lawyers Weekly the case was important for freedom of communication. The current law “really prevents people finding out their rights in relation to personal injuries”, said LCA president Stephen Southwood QC.

The Association brought the action with national law firm Maurice Blackburn Cashman and NSW solicitor Bob Whyburn. Defendants are the NSW Legal Services Commissioner and the State of NSW.

Under the current law, introduced in 2003, it is both a criminal offence and professional misconduct for a lawyer to make a prohibited communication, Goudkamp said.

Prior to the reforms, NSW Attorney-General Bob Debus commented that Australia had adopted a culture of blame for even minor accidents. “Elements in the legal profession have encouraged a view that someone must always pay; that litigation is the way to solve a dispute,” he said in a report in The Sydney Morning Herald.

The reforms have reportedly achieved their stated aims, and claims to the District Court have fallen from 20,784 in 2001 to under 8,000 last year, the Herald reported.

But according to Goudkamp, the NSW Government assumed the insurance crisis, with its increase in premiums, was down to a “shmarmy of frivolous insurance claims”.

“But it was actually due to the poor performance of equity markets,” Goudkamp said. “These things run in cycles, the insurers were doing badly and now they are doing extremely well.”

LCA president Southwood agreed that insurance has had an enormous impact on the NSW Government. “[The current law] is built on a misconception that lawyers advertising caused the insurance crisis,” he said.

Now, the law is being challenged on a number of grounds. APLA argues it breaches implied rights to freedom of political communication in the Constitution by restricting public access to information about personal injury law. The plaintiffs also argue that the legislation infringes the freedom of interstate trade that is guaranteed by the Constitution.

At the first hearing of the case on Tuesday last week, Justice Kirby suggested he was concerned by regulations that prevented people from accessing legal assistance. He said that many people did not know their legal rights “and are very afraid of exercising them, are very fearful of the costs and rightly so … a regulation that stops people getting that is a matter of concern to me”.

In an interview with Lawyers Weekly following the hearing, Goudkamp he could not think of any other profession that is not allowed to advertise. “Even sex workers can advertise — it’s absurd,” he said.

Goudkamp said the ban prevents “activities such as a community legal centre lawyer visiting a high school legal studies class and informing students of their rights to access victims of crime compensation and workers compensation”.

“Ironically, the ban would not prevent corporate lawyers from going to the same class and explaining to the students the use of corporate structures to avoid liability,” Goudkamp said.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

APLA battles PI advertising ban
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Aug 22 2017
Professionals unite in support of marriage equality
The presidents of representative bodies for solicitors, barristers and doctors in NSW have come toge...
Aug 21 2017
Is your firm on the right track for gig economy gains?
Promoted by Crowd & Co. The way we do business, where we work, how we engage with workers, ev...
Scales of Justice, Victorian County Court, retiring judges
Aug 21 2017
Replacements named for retired Vic judges
Two new judicial officers have been appointed in the Victorian County Court, following the retire...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...