Legal Services Commissioner's appointment can be "inferred" ... Fumbling around to find documents to prove that Steve Mark was validly appointed at the time he lodged complaints about personal injury advertising by Robert Bryden & Lee Hagipantelis ... Flurry at ADT hearing
The Administrative Decisions Tribunal is now reserved in the personal injury advertising case of Legal Services Commissioner v Hagipantelis - but not before interesting submissions that the commissioner, Steve Mark, was not validly appointed.
This case against the principals of personal injury shop Brydens has been kicking around the traps since 2008 and already has had trips to the Court of Appeal and the High Court.
The promotions and advertisements that are the subject of the case were catching the attention of the regulator from 2006.
The critical period is October 11, 2006 to August 25, 2010.
Originally there were six complaints by Steve Mark, three separate sets each for Robert Bryden and Bandeli Hagipantelis, however one set has been withdrawn.
Tom Molomby SC, for the two solicitors, requested evidence as to details of Mark's appointments as LSC.
On April 10, when the latest hearing kicked-off before deputy president David Patten and two other tribunes, Nick Beaumont, for the commissioner, tendered evidence that Mark was originally appointed in 1994, for a four year term.
There was further evidence that he was reappointed for three years on August 25, 2010.
Molomby said that did not "dispose of the issue". Mark needed to prove he was the commissioner at the time the complaints were lodged.
Molomby said he had raised the issue before the hearing but had not been given the information, adding:
"In the absence of evidence on the latter period no inference can be drawn [from] the earlier legitimate appointment ... It's an important issue. It's fundamental to the jurisdiction ... The tribunal cannot draw an inference that he's properly appointed."
Patten: "That shouldn't be difficult to prove, there must be records to prove that."
Beaumont contended this should not be allowed to hold-up the proceedings, but he would nonetheless check it out.
While objections to Mark's affidavit were being batted back and forth, Molomby had another crack at the jurisdictional issue before morning tea:
"I do have concerns about this matter proceeding in relation to this. This is a public hearing; the allegations against my client can be publicised. If this is not properly constituted, this should not be allowed.
The commissioner has had ample opportunity to produce evidence. It was raised before the last hearing. If it turns out he has not be properly appointed - the documents should be produced - we suffer prejudice.
If the documents aren't available in our submission the proper cause should be for the applicant to produce them as soon as possible.
There should be someone at the door of the court with the latter in their hand and the matter could proceed. We didn't want the proceedings to be derailed. There's some real prejudice to the respondents if it's not properly resolved …
The appropriate course is there should be a short adjournment for the applicant to satisfy this matter. Plainly this matter can't proceed if there's no jurisdiction."
Patten: "It's been before the appeal panel and Court of Appeal. The sort of prejudice has already ... potentially occurred."
Molomby: "A continuation of that would be further prejudice to which we are entitled to object."
Later that afternoon Beaumont tendered three letters relating to Mark's appointments.
One of the letters, dated June 4, 2003 from the attorney general, appointed the LSC for a further four years to August 24, 2008.
A letter from a Ms Neville, a public servant who looks after SES contracts, showed the appointment was rolled-over for a further two years from August 24, 2008 to August 25, 2010.
Molomby objected. The letter from Ms Neville did not show the appointment had gone before the governor-in-council and did not satisfy the requirements of the legislation. The letter was a "secondary document".
Beaumont: "The letter is admissible as a business record."
Patten was satisfied that everything was kosher.
"There must be enough here to establish it … I think can draw the necessary inference from the terms of that letter."
Phew. Steve Mark lives to fight another day.