AS LAWYERS WEEKLY was going to press, the Australian Plaintiff Lawyers Association (APLA), national law firm Maurice Blackburn Cashman and NSW solicitor Bob Whyburn were in the process of filing a case in the High Court naming the NSW Legal Services Commissioner as the respondent.
The trio of litigants is seeking to overturn the NSW Government’s restriction on advertising personal injury legal services, on a number of grounds, including that it breaches the implied right to freedom of political communication contained in the Constitution.
“Our Constitution and the objectives of this organisation make it pretty mandatory for us to proceed with this,” said APLA CEO, Eva Scheerlinck. “Preserving access to justice is what we’re all about and these regulations are sure as hell going to make it a lot more difficult for people to find information about their rights, let alone an appropriate person to represent them.”
In May 2003, the NSW Government banned advertising personal injury services. As a result of the ban, public access to information about personal injury law is now greatly restricted, APLA said. The public now has no direct means of knowing of their legal rights and/or any changes to the law that may affect them if they are injured.
The reasoning behind the action being brought jointly is so that the case, if it proceeds, will be as far-reaching as possible. Maurice Blackburn and Cashman is a legal practice incorporated in Victoria. Bob Whyburn is a NSW solicitor.
The NSW District Court has seen a sharp decline in the number of statements of claim filed since the regulations were introduced. Dr Peter Cashman, general counsel at Maurice Blackburn Cashman said, “This legislation prevents injured people from having access to justice . . . The Government has clearly gone too far.”
NSW Legal Services Commissioner Steve Mark said: “Where actions are taken and where there is a question as to whether any piece of litigation is vague or not vague, the issue of clarification by a court is quite appropriate.
“At this stage we’re awaiting developments . . . we act as a model litigant as far as government agencies should, even though I’m an independent statutory authority . . .we don’t try and waste the court’s time or the other parties’ time with any shenanigans, we’ll play it with a straight bat.”