Queensland compensation law advertising restrictions unfair

03 March 2012 By Lawyers Weekly

Queensland's newly appointed Attorney-General, barrister and first-time MP, Cameron Dick, can expect an early call for action from the state's personal injury lawyers. They want the state to…

Queensland's newly appointed Attorney-General, barrister and first-time MP, Cameron Dick, can expect an early call for action from the state's personal injury lawyers. They want the state to repeal draconian laws which forbid "no win, no fee" advertising. Gold Coast injury compensation lawyer Bruce Simmonds looks at the issue

One of the surprises in the aftermath of the Labour election victory in Queensland last month was the shock decision by Attorney-General Kerry Shine to stand down from his post.

Premier Anna Bligh promptly appointed first-time MP Cameron Dick to replace him, elevating him to attorney-general status before he had even sat in the State Parliament. Sometimes, politics in Queensland is like this.


Dick, once attorney-general of the South Pacific nation island of Tuvalu, faces some huge challenges, the most pressing of which is an urgent need to repeal restrictive advertising restrictions on "no win, no fee" legal services.

Queensland lawyers working in the "no win, no fee" injury compensation field are seething at the iniquity of advertising restrictions which muzzle them while giving competing interstate law firms operating in Queensland an unfair advantage.

Although Queensland's personal injury advertising restrictions extend to internet websites, they do not cover interstate firms which are outside the realm of the Queensland Legal Services Commission, which polices the legislation.

Consequently, law firms in Victoria which operate aggressively in Queensland, can tout for "no win, no fee" business via their websites, while Queensland firms are unfairly muzzled by the state's draconian laws.

The Personal Injury Proceedings Act 2002 (PIPA) and the Civil Liability Act of 2003 rewrote the book on injury compensation claims in Queensland.

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The law changes which muzzled personal injury lawyer advertising came after a sophisticated lobbying campaign from the insurance industry which blamed its own financial woes on lawyers and a blowout in supposedly frivolous injury compensation claims.

State politicians bent to a kneejerk reaction and enacted legislation which, among various things, imposed restrictions on the advertising of personal injury services. These restrictions included both what advertisements could say, where they could be published and even what photographs could be included.

Lawyers and even the state's top law officers have argued that the restrictions went too far, limiting the rights of victims, but nothing has changed. The state government repeatedly ignores the issue.

The advertising restrictions on personal injury lawyers are contrary to trade practices legislation because they represent a constraint upon lawyers. Other professions are not subject to advertising restrictions. Significantly, insurers can advertise their claims without restraint.

But the legal profession has no such rights. The Sunshine State bans any material - be it text or images - which might encourage a person to make a claim for compensation or damages, or use the services of an advertising solicitor or a specific legal practice, to make a claim.

Thus Queensland's injury compensation landscape imposes an iniquitous system designed to limit payouts, benefit insurers and deprive injury victims of their right to know their options.

A law firm can do "no win, no fee" work - but is not allowed to say anything other than that fact.

The Civil Liability Act covers compensation for matters such as slip and fall, motor vehicle and medical negligence and it is in this latter area that the iniquity of Queensland's compensation laws is highlighted.

Compensation claims of less than $30,000 are not entitled to any costs contribution. The public is disadvantaged at every turn by this legislation.

Injury compensation work is one of the most maligned and misunderstood specialties within the legal profession.

As a WorkCover and compensation lawyer, I support measures to protect the rights of the public. People who have been injured due to another person's negligence have a right to seek compensation. However, funding a compensation case can be a financial burden for the victim.

The "no win, no fee" service should help them, but some lawyers apply a loose interpretation to the term "no fee".

It should mean no cost whatsoever to the client unless the case succeeds. However some lawyers argue that the "fee" only relates to their professional fee and the client is liable for any costs and disbursements - and that's where the advertising restrictions can work against the victim and in favour of an unscrupulous lawyer.

How can the public know what sort of lawyer they are engaging for their case? Because of the restrictions on "no win, no fee" advertising, the public has no way of knowing which lawyers to avoid, or who will give them a fair service.

There are cases of people who have taken their matter to certain law firms, only to cop a substantial bill later because they did not realise the firm did not offer "no win, no fee" services and this was not clearly explained to them.

While the Queensland advertising ban was imposed ostensibly to deter "frivolous" claims, the ban ignores the reality that law firms offering "no win, no fee" services do not accept frivolous cases which have no chance of success.

New Attorney-General Cameron Dick should urgently move to scrap the "no win, no fee" advertising ban because it deprives the public of its right to know about access to legal services.

The law restricting personal injury advertising in Queensland is too restrictive and needs urgent change.

Bruce Simmonds is a commercial and litigation partner of Parker Simmonds Solicitors on Queensland's Gold Coast. He has practised extensively in commercial law and personal injuries.

Queensland compensation law advertising restrictions unfair
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