BETTS and LEGAL PROFESSION COMPLAINTS COMMITTEE
[2018] WASAT 55
•27 JUNE 2018
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: BETTS and LEGAL PROFESSION COMPLAINTS COMMITTEE [2018] WASAT 55
MEMBER: PRESIDENT, JUSTICE J C CURTHOYS
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 27 JUNE 2018
FILE NO/S: VR 150 of 2017
BETWEEN: TREVOR STANLEY JOHN BETTS
Applicant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent
PAUL BLACKMAN
Second Respondent
Catchwords:
Legal professional privilege - Waiver of privilege - Exempt matter - Complying with LPCC inquiry
Legislation:
Freedom of Information Act 1992 (WA), Sch 1, cl 7
Legal Profession Act 2008 (WA), s 409(1), s 410(1)(d), s 410(1)(e), s 413, s 414, s 415, s 425, s 435, s 467, s 468, s 469
Legal Profession Conduct Rules (2010), r 9(2), r 9(3)(g), r 50
State Administrative Tribunal Act 2004 (WA), s 3, s 32(7), s 32(7)(a), s 160
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| First Respondent | : | N/A |
| Second Respondent | : | N/A |
Solicitors:
| Applicant | : | Birman & Ride |
| First Respondent | : | Legal Profession Complaints Committee |
| Second Respondent | : | MDS Legal |
Case(s) referred to in decision(s):
Ashfield Municipal Council v RTA [2004] NSW SC 917
Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101
DSE Holdings Pty Ltd v Interlan Inc (2003) 127 FCR 499
Goldberg v Ng (1995) 185 CLR 83
Mitsubishi Electric Pty Ltd v Victorian Workcover Authority (2002) 4 VT 332
REASONS FOR THE DECISION OF THE TRIBUNAL:
Introduction
On 11 July 2007, the Legal Profession Complaints Committee (LPCC) dismissed a complaint made by Mr Trevor Stanley Betts against Mr Paul Blackman, a legal practitioner (the Decision).
The LPCC was satisfied that there was no reasonable likelihood that the practitioner would be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct.
Mr Betts now seeks a review of the LPCC's decision by this Tribunal.
In the course of providing information to the LPCC, Mr Blackman provided information that was subject to legal professional privilege.
In the interim proceedings before this Tribunal, Mr Betts sought production of certain documents (the Documents) as follows:
[P]ursuant to sec 69(2) of the SAT Act deliver to the Tribunal of:
1.2.1the redacted parts of documents 37 and 42 listed in referred to in Volume 1 of the Sec 24 bundle of documents filed on 20 October 2017; and
1.2.2documents 12, 13, 14 and 15 listed in Part B of Volume 4 of the Sec 24 bundle of documents filed on 20 October 2017
To enable the Tribunal to determine whether the documents are privileged or protected material for the purposes of the review.
The question is whether the Documents should be disclosed to Mr Betts in these proceedings.
It is important to note that Mr Betts was not Mr Blackman's client.
Mr Blackman's client was Sunlea.
It is also important to note that legal professional privilege is a rule of substantive law.
The relevant legislation
Legal Profession Act
Section 409(1) of the Legal Profession Act 2008 (WA) (LP Act) provides:
A complaint may be made under this Part about an Australian legal practitioner's conduct to which this Part applies.
Section 410(1)(d) and s 410(1)(e) of the LP Act provide:
(1)A complaint about an Australian legal practitioner may be made by
(d)any legal practitioner; or
(e)any other person who has or had a direct personal interest in the matters alleged in the complaint.
Section 413 of the LP Act provides:
Practitioner to be notified of complaint
(1)The Complaints Commission must ensure that, as soon as practicable after a complaint is made, written notice of the making of the complaint, the nature of the complaint and the identity of the complainant is given to the Australian legal practitioner about whom the complaint is made.
…
(4)The notice must also inform the practitioner of any action already taken by the Complaints Committee in relation to the complaint.
(5)The notice must also inform the practitioner of the practitioner's right to make submissions to the Complaints Committee, unless the Complaints Committee advises the practitioner that the Complaints Committee has dismissed or intends to dismiss the complaint.
(6)Nothing in this section requires the Complaints Committee to give written notice under this section to the practitioner until the Complaints Committee has had time to consider the complaint, seek further information about the complaint from the complainant or otherwise undertake preliminary inquiries into the complaint, and properly prepare the notice.
Section 414 of the LP Act provides:
Submissions by practitioner
(1)The Australian legal practitioner about whom a complaint is made may, within a period specified by the Complaints Committee, make submissions to the Complaints Committee about the complaint or its subject matter or both.
(2)The Complaints Committee may at its discretion extend the period in which submissions may be made.
(3)The Complaints Committee must consider the submissions made within the permitted period before deciding what action is to be taken in relation to the complaint.
Section 415 of the LP Act provides:
(1)The Complaints Committee may dismiss a complaint [summarily] if
(a)further details are not given, or the details of the complaint are not verified, as required by the Complaints Committee under section 412; or
(b)the complaint is vexatious, misconceived, frivolous or lacking in substance; or
(c)the conduct complained about is the subject of another complaint; or
(d)it is not in the public interest to deal with the complaint having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll on which the practitioner was enrolled.
…
(3)The Complaints Committee may dismiss a complaint under this section without completing an investigation if, having considered the complaint, the Complaints Committee forms the view that the complaint requires no further investigation.
Section 425 of the LP Act provides:
Dismissal of complaint
After an investigation of a complaint against an Australian legal practitioner is completed, the Complaints Committee may dismiss the complaint if satisfied that
(a)there is no reasonable likelihood that the practitioner would be found guilty by the State Administrative Tribunal of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to do so.
Section 435 of the LP Act provides:
Review of Complaints Committee decision
(1)Subject to subsection (2), a person aggrieved by
(a)a decision of the Complaints Committee to dismiss a complaint; or
(b)a decision made by the Complaints Committee under section 426,
may apply to the State Administrative Tribunal for a review of the decision.
(2)If the Complaints Committee, in its reasons for its decision, specifically finds the complaint
(a)to be trivial, unreasonable, vexatious or frivolous; or
(b)in the case of a complaint purporting to be made under section 410(1)(e), to be a matter in which the complainant does not have, or did not have, a direct personal interest,
the person aggrieved cannot apply to the State Administrative Tribunal for a review of the decision without the leave of the Tribunal.
Sections 467, 468 and 469 of the LP Act provide:
467. Confidentiality of client communications
An Australian legal practitioner must comply with a requirement under this Part to answer a question or to produce information or a document, despite any duty of confidentiality in respect of a communication between the practitioner and a client.
468. Claims of privilege
If, in any investigation or proceedings under this Part, a person properly claims privilege in respect of any information
(a)the Complaints Committee or the State Administrative Tribunal may require that person to disclose that information; and
(b)if any information adverse to the interests of that person is then disclosed, no question or answer relating to that information may be used in or in connection with any procedures or proceedings other than —
(i)those relating to the complaint or investigation concerned; or
(ii)those resulting from a report or disclosure under section 589.
469. Waiver of privilege or duty of confidentiality
(1)If a client of an Australian legal practitioner makes a complaint about the practitioner, the complainant is taken to have waived legal professional privilege, or the benefit of any duty of confidentiality, to enable the practitioner to disclose to the Complaints Committee or the State Administrative Tribunal any information necessary for dealing with or investigating the complaint.
(2)Without limiting subsection (1), any information so disclosed may be used in or in connection with any procedures or proceedings relating to the complaint.
LPCR
Rule 9(2) of the Legal Profession Conduct Rules 2010 (WA) (LPCR) provides:
A practitioner must not disclose client information to a person other than the client unless the person is —
(a)an associate of the practitioner’s law practice; or
(b)a person engaged by the practitioner’s law practice for the purposes of providing legal services to the client; or
(c)a person employed or otherwise engaged by an associated entity of the practitioner’s law practice for the purposes of providing administrative services to the client.
Rule 9(3)(g) of the LPCR provides:
Despite subrule (2), a practitioner may disclose client information to a person if
(g)the disclosure of the information is necessary to respond to a complaint or a proceedings brought against any of the following
(i)the practitioner;
(ii)the practitioner’s law practice;
(iii)an associated entity of the practitioner’s law practice;
(iv)a person employed by one of the persons referred to in subparagraphs (i) to (iii).
Rule 50 of the LPCR provides:
Dealing with regulatory authority
(1)In this rule
regulatory authority means a local regulatory authority and an interstate regulatory authority.
(2)A practitioner must be open and candid in his or her dealings with a regulatory authority.
(3)A practitioner who is requested by a regulatory authority to provide comments or information in relation to the practitioner’s conduct or professional behaviour must
(a)respond to the request within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow); and
(b)provide in writing a full and accurate account of his or her conduct in relation to the matters covered by the request.
SAT Act
Section 32(7)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides:
The Tribunal
(a)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 a proceeding[.]
Section 160 of the SAT Act provides:
(1)The Tribunal is to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is returned to the person by whom it was provided when no longer required by the Tribunal.
(2)The Tribunal is to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is not disclosed in any way other than to
(a)a sitting member of the Tribunal; or
(b)a person to whom disclosure is allowed under subsection (3).
(3)The Tribunal, with the consent of the President, may allow a party, or a representative of a party, to have access to information, or inspect a document, to which a certificate under section 159(2) applies on any conditions the Tribunal thinks fit except that a person cannot be given access to matter that the Tribunal considers to be exempt matter, or allowed to inspect a document that the Tribunal considers to be an exempt document.
Under s 3 of the SAT Act:
1)protected matter means, inter alia, exempt matter or an exempt document;
2)exempt matter means matter that is exempt under Sch 1 to the Freedom of Information Act 1992 (WA) (FOI Act); and
3)exempt document means a document that contains exempt matter.
Under cl 7 of Sch 1 to the Freedom of Information Act 1992 (WA), 'exempt matter' includes matter which would be privileged from production in legal proceedings on the ground of legal professional privilege.
The exchange of correspondence
On 5 September 2016, Mr Blackman wrote to the LPCC:
Dear Ms Thipthorp.
EE; MR T BETTS
I refer to your letter dated 16 August 2016,
I am sending with this letter, a memorandum containing my responses to complaints 1 to 8 inclusive, together with two volumes of accompanying documents.
In relation to the provision of my memorandum and enclosures to Mr Betts', in circumstances where Sunlea is still suing Mr Betts in the Sunlea Proceedings, I object to the privileged documents, at Tabs 1.3, 14, 17, 18, 49, 57, 58 and 63 being provided to Mr Betts or anyone on his behalf whilst the Sunlea Proceedings are still on foot.
I also object to those paragraphs of my: memorandum which record the substance of legal advice given- by Junior and Senior Counsel to my firm, advice given by my firm to Mr Steinier and instructions given by Mr Steinier to this firm, being provided to Mr Betts or anyone, on his behalf.
Please let me know if I can be of further assistance.
On 12 September 2016, Mr Blackman advised the LPCC that the particular paragraphs he objected to being provided to Mr Betts were:
Response 3:Paragraph 3(t) on page 24;
Submission 3: Paragraph 3(b) on page 26;
Response 4:Paragraph 4(b) on page 27;
Response 4:Paragraph 4(q) on page 30;
Response 4:Paragraph 4(t) on page 30;
Response 5:Paragraph 5(e) on page 33;
Submission 5: Paragraph 5(c) on page 34;
Response 6:Paragraph 6(i) on page 36;
Response 7:Paragraph 7(b) on page 40;
Response 7:Paragraph 7(d) on page 41.
On 22 December 2016, Mr Blackman explained his objection to the LPCC:
Tab 10: The draft affidavit accompanied an email by which Tottle Partners sought instructions from their client.
Tab 11: The draft affidavit accompanied an email by which Tottle Partners sought legal advice from Senior Counsel.
Tab 12: The draft affidavit accompanied an email by which the client's agent communicated his instructions on the draft.
Tab 50: The draft affidavit accompanied an email by which Tottle Partners sought instructions from their client.
I also wish to extend my objection based on legal professional privilege to the following parts of my submissions:
Page 18: the last sentence of each of paragraphs (n) and (o) on the basis that those parts reveal instructions from the client's agent and legal advice from Senior Counsel, respectively.
Page 20: the words from "however" in paragraph (c) on the basis that the words reveal legal advice from Senior Counsel.
Page 20: the whole of paragraph (f) on the basis that the words in that paragraph reveal instructions from our client.
Mr Blackman clearly made and maintains a claim for privilege.
The Decision contained the following relevant passages:
17.In submissions to the Committee the practitioner referred to Mr Steinier's affidavit and the Application for Leave being prepared by a senior associate under his supervision and that both counsel and Sunlea's accountant had reviewed the affidavit.
…
31.The practitioner then sought advice from junior counsel in the matter.
…
37.As to correcting the omission, although the Committee accepted that the practitioner had intended to do so by way of affidavit evidence and that due to Mr Pollock not proceeding with his application and the proceedings being stayed, there may have been limited opportunity to do so by way of affidavit in the relevant proceedings, the Committee considered that the practitioner's explanation was deficient and expressed concern that the practitioner did not otherwise follow up on that intention. That was particularly given the comments by counsel he engaged at the directions hearing on 29 September 2015 foreshadowing that action would be taken. Although given the, stay of proceedings, it may not have been appropriate to do so by an affidavit in those proceedings, the practitioner could still have corrected the omission and apologised by other means such as writing to the court and the Committee expressed concern that he did not do so.
…
41.The practitioner stated that he could not recall why Mr & Ms Phan had not been specifically named in the Application for Leave. However, his view and that of counsel, who settled the endorsement on the Writ of Summons, was that the claim against Mr & Ms Phan was incidental to the central dispute and the payment to them had been disclosed in the Application for Leave, such that the proceedings against the Phans derived from and were within the scope of the leave to pursue the central dispute.
42.The Committee noted that the action against Mr & Ms Phan had later been dismissed by consent with no order as to costs on 5 September 2013. That was following the practitioner receiving further information concerning the Phans role and Counsel's further advice in respect of the matter.
…
51.The practitioner said he was again of the belief that the claim against Mr Travaglini was an incidental aspect to the central dispute the subject of the Application for Leave and was derived within its scope and he had drafted the Writ with endorsed Statement of Claim against both Troika and Mr Travaglini, which senior counsel settled.
…
53.The Committee was of the view that the evidence before it was supportive. The Committee accepted that the practitioner formed the belief that the proceedings against Mr Travaglini were an incidental aspect of the central dispute in respect of which leave was granted and were justified by that leave. In the circumstances (including the involvement of counsel), the Committee considered that there was no reasonable likelihood that the practitioner would be found guilty of unsatisfactory professional conduct or professional misconduct. The Committee noted that the matter was resolved with Mr Travaglini and the action overall was resolved in Sunlea's favour.
…
72.The Committee had no reason to doubt, the practitioner's stated intention as at July 2015 or that he had not sought the advice of senior counsel and that he had proposed an application to the Supreme Court. Indeed, the Committee was provided with evidence that confirmed the practitioner's position.
…
87.The trust account records of Tottle Partners confirm that the following payments were made from, funds held in trust on behalf of Sunlea on the instructions of Mr Steinier:
•$44,789.32 for Tottle Partners' fees on 22 April 2013
•$57,689.60 for Tottle Partners' fees on 17 October 2013
•$127,944.42 for Tottle Partners fees on 9 January 2014
•$18,788.00 for the fees of counsel, Mr J Thomson SC on 5 June 2014
•$54,335.26 for Tottle Partners fees on 17 September 2014
•$6,006.00 for the fees of Mr J Thomson SC on 22 May 2015
…
91.The practitioner submitted that he considered that as section 236 and 237 of the Corporations Act empowered a person to conduct proceedings in the name of a company, by implication, they are empowered to do all things necessary and incidental to conduct the proceedings. He also submitted that while the court in Justice Martino's decision delivered on 16 March 2016 in COR 146 of 2012 ultimately took a different view, this does not mean that his view (and therefore also counsel's) was unreasonable.
…
93.Following communications with a legal officer of the Committee, on or about 18 June 2015 the practitioner consulted independent senior counsel regarding the matter.
94.On about 18 June 2015 the practitioner reversed the payment to Mr J Thomson SC of $6,016 (paying those fees from his firms general account).
…
100.The practitioner submitted that it was his honest belief that the use of the funds held in trust for the DCUT could be used to satisfy the security for costs orders. This was based on the practitioner's views expressed above (concerning sections 236 and 237 of the Corporations Act). The practitioner in his submissions also stated that it was also the belief of counsel that the use of the funds held in trust for the DCUT could be utilised to satisfy the order.
It is apparent that in reaching its decision, the LPCC relied on the documents for which Mr Blackman claimed privilege. The issue is whether Mr Blackman can invoke a claim of privilege in proceedings before this Tribunal when Mr Betts seeks a review of the LPCC's decision.
Analysis
Mr Blackman listed the Documents in Schedule 1 to his submissions. The Schedule identifies each paragraph of the Documents, the page number in which the relevant paragraph appears in Part B of the Bundle and a brief description of the content of the paragraph.
Mr Blackman submitted:
a)The issue for determination in the interim application is whether the Documents are exempt matter, as that term is defined in s 3 of SAT Act; and
b)Accordingly, if any of the Documents would be privileged from production in legal proceedings on the ground of legal professional privilege, the Tribunal is proscribed from granting any person other than a sitting member access to, or inspection of, that matter.
Mr Betts submitted that it is incumbent upon the Tribunal to ensure that all relevant material is disclosed to enable it to determine all of the relevant facts in a proceeding (see SAT Act s 32(7)).
The Tribunal notes that the obligation is to disclose relevant material to the Tribunal rather than to the parties. Section 160 of the SAT Act recognizes that documents provided to the Tribunal will not in all circumstances be provided to the other party.
Mr Betts also made submissions concerning the principles of legal professional privilege, none of which are contentious. The concept of legal professional privilege is well understood. It is unnecessary to deal with those submissions.
Mr Betts correctly submitted that the onus is on the practitioner (that is, the person claiming privilege) to provide sufficient facts (by way of evidence or argument) to justify the claim: Mitsubishi Electric Pty Ltd v Victorian Workcover Authority (2002) 4 VT 332.
Mr Betts submitted that he was at the disadvantage of not having seen the Documents in question. He further submitted, '[h]owever, both are described as being communications from the Practitioner to the LPCC. On this basis it seems unlikely that they are capable of attracting privilege'.
Mr Blackman submitted that:
The Privileged Matter consists of statements of communications which fall into two categories. One category comprises communications between the agent of Sunlea and its solicitor (the last sentence of paragraph (n) on page 18 of the Submissions and paragraph 6(i) on page 36 of the Submissions). The other category comprises communications between Sunlea's solicitor and its counsel (all other paragraphs).
Mr Betts further submitted that:
The nature and terms of each of the communications comprising the Privileged Matter establish that the dominant purpose of each communication was to enable Sunlea's solicitors and/or counsel to give Sunlea legal advice, and for use in existing or anticipated litigation.
As is evident from the categories correctly described by Mr Blackman and the correspondence set out above, the Documents are privileged. Privilege is claimed, not in the communications from Mr Blackman to the LPCC but rather from the Documents that form the basis for those submissions. To the extent that the submissions rely on the privileged Documents the submissions arise from those Documents.
Waiver
If the material is privileged, Mr Betts contends that Mr Blackman, by his conduct, has waived any such privilege by volunteering them to the LPCC in support of his defence to the allegations of misconduct.
Mr Betts submitted that:
Voluntary disclosure of the gist, substance or conclusion of legal advice will usually amount to a waiver of that advice in circumstances where the disclosure is for the purpose of seeking an advantage by promoting the strength of a position or case. This is because it would be inconsistent and unfair, having disclosed the substance of advice to the other party, to then seek to protect the rest of that advice which may not be as advantageous to the disclosing party. Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 at 104 (Bennett).
Mr Betts further submitted that:
(a)When the conclusion of a piece of legal advice is expressed in a letter to another party, privilege may be waived even if the letter asserts privilege is not being waived. A court considered it was inconsistent with maintaining privilege for a client to use an extract from a particular piece of legal advice as a positive means of reinforcing to another party a position the client asserted in their ongoing dialogue. Ashfield Municipal Council v RTA [2004] NSW SC 917 (Ashfield).
(b)Issue waiver occurs where an element of a cause of action relied upon is the party's state of mind: the party is taken to have waived privilege in respect of legal advice received before or at the time of the relevant events that is material to the formation of that state of mind. Telstra Corporation Ltd v BT Australasia Pty Ltd (1995) 85 FCR 152 at [168] (Telstra); Ampolex Ltd v Perpetual; Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at [413] (Ampolex).
Mr Betts further submitted:
Imputed waiver is based on some act of the Practitioner involving a limited disclosure of the material, in this case, to the LPCC, with the caveat that privilege is maintained. The governing consideration then is whether 'fairness shall cease whether he intended that result or not' (see Goldberg v Ng (1995) 185 CLR 83 per Deane, Dawson, Gaudron JJ at 96.1 (Goldberg)).
Mr Blackman submitted:
(a)At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. The privilege exists to protect the confidentiality of communications between lawyer and client. It is the client who is entitled to the benefit of the confidentiality, and who may relinquish that entitlement. It is the inconsistency between the conduct of the client and the maintenance of the confidentiality which effects a waiver of the privilege (Mann v Carnell [1999] HCA 66 [28]; (1999) 201 CLR 1 (Mann)).
(b)Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect (Mann [29]).
(c)What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and the maintenance of the confidentiality; not some overriding principle of fairness operating at large (Mann [29]).
(d)Disclosure by a client of confidential legal advice received by the client, which may be for the purpose of explaining or justifying the client's actions, or for some other purpose, will waive privilege if such disclosure is inconsistent with the confidentiality which the privilege serves to protect (Mann [34]).
Mr Blackman submitted that the disclosure of the Documents by him to the LPCC was not voluntary in the sense contended for by Mr Betts.
Mr Blackman submitted that he provided the submissions and the letter to the LPCC in circumstances where he:
1was doing so at the express written request of the first respondent (Volume 1 Bundle document 34 (Request Letter));
2was authorised to disclose information confidential to his client, Sunlea, which was necessary to respond to the applicant's complaints (Rule 9(g) LPCR);
3was required under the LPCR to:
(i)be open and candid in his dealings with the first respondent (Rule 50(1));
(ii)respond to the Request Letter and provide in writing a full and accurate account of his conduct in relation to the matters covered by the first respondent's request (Rule 50(2));
4was expressly reminded of his obligations under Rules 50(1) and 50(2) in the Request Letter;
5disclosed the Privileged Matter in order to comply with his professional obligations under the LPCR to provide in writing a full and accurate account of his conduct in relation to the matters covered by the Request Letter;
6made a claim of privilege on behalf of Sunlea in relation to the Privileged Matter within the Submissions (attachments ATM 1 ATM 3 of the Macknay Affidavit); and
7was exposed to a breach of Rule 50 of the LPCR and disciplinary sanction if he failed to provide in writing a full and accurate account of his conduct in relation to the matters covered by the Request Letter.
Mr Blackman further submitted that he did not disclose the gist of the advice to the LPCC; he fully disclosed the Documents to the LPCC. The component of a partial (but advantageous) disclosure was not present.
Mr Blackman further submitted that the second and third components to the conduct referred to in Mr Bett's submission are related. The conduct involves both the purpose of seeking an advantage by promoting the strength of a case in the disclosure of the advice, and the attempt to protect the rest of the advice on the basis of privilege; that is, the conduct involves an inconsistency which has the potential to cause unfairness by the selective disclosure of material.
Mr Blackman submitted he did not engage in conduct of the nature referred to in Mr Bett's submission because the purpose in disclosing the Documents was to comply with his professional obligation to provide a full and accurate account of his conduct; further, there was no attempt on his part to withhold any part of Documents from the LPCC. There was no selective disclosure of material of the type required.
Mr Blackman submitted that therefore, none of the elements of the conduct required to make out Mr Betts' submission were present in this case.
Mr Blackman submitted that in both Bennett v Chief Executive Officer of the Australian Customs Service (2004) 140 FCR 101 (Bennett) and Ashfield Municipal Council v RTA [2004] NSW SC 917 (Ashfield) the disclosing party volunteered the gist or conclusion of legal advice to an opposing party, but then sought to maintain privilege over the advice itself.
Mr Blackman submitted that neither Bennett nor Ashfield has any relevant application to this matter. The ingredients of a partial disclosure of privileged material for the purpose of advantage, coupled with the withholding of the rest of the advice to avoid disclosure of those parts of the advice which might qualify, or derogate from, those parts disclosed, are not present in this case. The disclosure of the Documents to the LPCC was complete, and there has not been any attempt by him to withhold any Documents from the LPCC.
Mr Blackman further submitted he:
has also not attempted to obtain an advantage by the disclosure of the gist or conclusion of advice to the applicant in order to promote the strength of his case in answer to the complaint or the strength of his client's case in the litigation. There has not been a disclosure of any of the Privileged Matter to the applicant, nor its gist.
Mr Blackman further submitted he:
has not in any way acted inconsistently with the maintenance of the confidentiality of the Privileged Matter. The second respondent's disclosure to the first respondent of the Privileged Matter was on the basis of, and consistent with, maintaining the confidentiality of the Privileged Matter, while discharging his professional obligation under the LPCR. As referred to earlier, the second defendant has not engaged in the type of selective disclosure such as occurred in the Bennett and Ashfield cases.
Mr Blackman submitted:
The consideration of fairness is related to the perceived inconsistency of a party's conduct, rather than some overriding principle of fairness operating at large (Mann [29]). Given that the second respondent has not acted inconsistently, the issue of fairness does not arise for consideration. In any event, the disclosure of the Privileged Matter to the first respondent did not give rise to any unfairness.
Unfairness does not arise when a party is required to disclose documents to a disciplinary body. A practitioner who properly complies with his obligation to make full disclosure cannot be said to act unfairly in meeting the disclosure requirement by the LP Act and the LCPR.
The Tribunal accepts that Mr Blackman has not made selective disclosure. Accordingly, it cannot be said that Mr Blackman's actions are unfair and inconsistent in the sense that that term is used in Bennett.
Mr Blackman submitted:
(a)The applicant then refers to issue waiver, and cites Telstra and Ampolex. The learned author of Cross has questioned the application of the principles expressed in these cases, given that they precede Mann and the High Court's stress on the need for inconsistency between the client's conduct and the confidentiality of the communication, triggering scrutiny of the communications rather than the state of mind (Cross [25010]; see also DSE Holdings Pty Ltd v InterlanInc (2003) 127 FCR 499 at [59] and [95] per Allsop J).
(b)In any event, even if the principles drawn from Telstra and Ampolex were considered to be authoritative, they do not apply to the circumstances of this matter.
(c)In Telstra, the Court concluded that where a party relies on a cause of action in civil litigation, an element of which is the party's state of mind, the party is taken to have waived privilege in respect of legal advice which the party had, before or at the time of the relevant events, material to the formation of that state of mind. In Ampolex, Giles CJ expressed the principle as, having exposed to scrutiny their corporate states of mind to which their legal advice is likely to have contributed, the relevant parties could not withhold the advice from their opponent in the civil litigation in which they were engaged.
(d)However, the second respondent did not provide the Privileged Matter to the first respondent in circumstances where the second respondent relied on a cause of action which contained, as an element, his state of mind; nor did he expose his state of mind to an opponent. Rather, he gave a full and accurate account of his conduct to the first respondent as the regulator in accordance with his professional obligations, which necessarily involved disclosure of his state of mind.
(e)The position where a party to civil litigation, through their pleading or other conduct, puts their state of mind in issue in the action so as to give rise to a question of waiver, is entirely different from a legal practitioner, called upon to honestly and fully explain his conduct for the purposes of a disciplinary investigation, who is required to disclose his client's privileged information. Any principle of waiver which might arise in the former circumstance is not applicable in the latter circumstance. Otherwise, the protection afforded to clients by legal professional privilege would be seriously weakened by a waiver brought about by their lawyer doing no more than complying with their professional obligations, and without the client having done anything at all.
The Tribunal agrees with Mr Blackman's submissions that his state of mind is not relevant to the disclosure of the documents. Mr Blackman's position in discharging his obligations to the Tribunal is not analogous to a cause of action where a party's state of mind is in issue.
Mr Betts' submissions relied heavily on Goldberg v Ng (1995) 185 CLR 83:
In Goldberg a solicitor the subject of a complaint of unprofessional conduct volunteered privileged documents to the Law Society of NSW in his defence, stipulating that they were confidential and privileged and not to be used for any other purpose. The question then arose as to whether fairness dictated that the privileged documents be disclosed to the former clients (the Ngs) in related equity proceedings in the Supreme Court of NSW.
The majority held that:
... it would be unfair if the fact that Mr Goldberg saw fit to rely, in answer to Mr Ngs complaint to the Law Society, upon privileged communication to his solicitor in relation to the equity proceedings should have the effect that the Ngs were deprives of access to, impossible use of, the substance of that answer. That unfairness is heightened in the present case, where in the absence of access to the material before the Law Society, one can only speculate about why the Complaints Committee concluded that Mr Ngs complaint that Mr Goldberg had failed to account for $100,100 allegedly paid on account of professional costs did 'not involve a question of professional misconduct or unsatisfactory professional conduct'. (ibid p 102.1).
Mr Blackman submitted:
(a)Finally, [Mr Betts] relies on imputed waiver, which he says involves limited disclosure of the material to, in this case, the first defendant, with the caveat that privilege is maintained. He then submits that the governing consideration is 'whether fairness [requires that his privilege] shall cease whether he intended that result or not', and cites Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 (Goldberg).
(b)Goldberg predates Mann. While Goldberg was referred to in Mann, the High Court was not asked to, and accordingly did not, reconsider it or earlier authorities on the subject (Mann [30]).
(c)Based on the principles found to apply in Goldberg, the critical question is whether the second respondent's disclosure of the Privileged Matter to the first respondent gives rise to a situation where ordinary notions of fairness require that the second respondent be precluded from asserting that the unredacted Submissions and the Letter are protected from production from inspection in the proceedings in the Tribunal (Goldberg [98]).
(d)The facts in Goldberg bear superficial similarities to the facts of this matter. In both cases, a solicitor was the subject of complaints to the regulator and claimed privilege over material that was provided to the regulator in response to the complaints. The majority of the High Court found that the relevant documents were not privileged from production to the Ngs, as it would be unfair if the fact that Mr Goldberg's decision to rely, in answer to the complaints to the regulator, upon privileged documents in the equity proceedings brought against him by the Ngs should deprive the Ngs of access to, and possible use of, the substance of that answer (Goldberg [102]).
(e)However, there are significant differences between the facts in Goldberg and this matter. They include the following:
1.the Ngs had sued Mr Goldberg in equity seeking the repayment of funds paid to his wife that were also the subject of their complaint to the regulator;
2.the Ngs had been Mr Goldberg's client and the complaint of misconduct was therefore made by the solicitor's client, whereas the complaint made in the present proceedings is by the applicant who was a defendant in civil proceedings brought by the second respondent's client.
A complaint by a client concerning their solicitor's conduct does not normally give rise to any issues of privilege, because the client is taken to have waived privilege by the complaint. The issue of privilege arose in Goldberg v Ng because Mr Goldberg chose to answer the complaints by providing the regulator with documents in which he claimed his own privilege.
However, a complaint by a party concerning the conduct of a solicitor acting for an opposing party in civil litigation would often give rise to issues of privilege. If the solicitor's response to such a complaint operated as a waiver of their client's privilege, making such complaints could become a routine tactic in civil proceedings to obtain access to privileged material;
3.Rule 50 of the LPCR prescribes a duty on practitioners to provide a full and accurate account of their conduct. In comparison, in Goldberg v Ng, the High Court said that there was nothing to suggest that Mr Goldberg would be seen as guilty of professional misconduct if he declined to produce the privileged documents to the regulator (100);
4.the privilege asserted by Mr Goldberg was his own privilege, related to his litigation with the Ngs, whereas the privilege asserted by the second respondent is Sunlea's privilege. Therefore, the waiver found by the High Court in Goldberg v Ng was a waiver by the party whose privilege was in issue. The waiver alleged here is not a waiver by Sunlea, but rather a waiver by the second respondent of Sunlea's privilege;
5.Mr Goldberg chose to provide his response to the regulator in privileged documents produced for the purposes of the equity proceedings brought against him by the Ngs. The content of that response could have been provided in a form which was not privileged, and, if it had been, it could have been capable of being used by the Ngs in the equity proceedings. The second respondent provided the Privileged Matter in his response so as to comply with his professional duty to provide a full and accurate account of his conduct. He could not provide the Privileged Matter in a form which was not privileged; and
6.in Goldberg v Ng, the issue being litigated was the Ngs' right to inspect documents produced under subpoena by the regulator in the equity proceedings between them and Mr Goldberg. In this case, the issue being litigated is the second defendant's claim of Sunlea's privilege over the Privileged Matter, first made in respect to the complaint dealt with by the first defendant and now maintained in the review of that matter.
(f)The issues which the High Court considered as being relevant to fairness in Goldberg included the following (Goldberg [100101]):
1.general considerations relating to the importance of the part played by legal professional privilege in the administration of justice, including that the documents were provided by Mr Goldberg to the regulator on the basis that privilege would be retained;
2.the equity proceedings and disciplinary investigations were different emanations of the same dispute;
3.if Mr Goldberg had been found guilty of professional misconduct, it was possible that the Ngs would not have had to persist with the equity proceedings;
4.the documents given to the regulator by Mr Goldberg were available for such internal use as the regulator chose to make;
5.the provision of documents by Mr Goldberg to the regulator was voluntary and for the calculated purpose of having Mr Ngs complaint resolved adversely to Mr Ng;
6.if Mr Goldberg had not elected to make use of the privileged documents to rebut the complaint to the regulator, the Ngs would have been able to make use of Mr Goldberg's response; and
7.if Mr Goldberg had been required to provide a written response to the complaint, as was the usual procedure, it would not have been protected by privilege (as the privilege which had been claimed was Mr Goldberg's privilege arising from the use of documents prepared for the purposes of the equity proceedings).
(g)With the exception of the general considerations relating to the importance of privilege in the administration of justice and the privileged material being available for internal use as chosen by the regulator, none of these issues have application in this matter. The considerations which led to the High Court finding that fairness required disclosure of the privileged documents to the Ngs was borne of conduct by Mr Goldberg, the party whose privilege was in issue, choosing to make voluntary disclosure of the documents to the regulator in a privileged form, when a response to the complaint in another form would not have been privileged. Those are not considerations in this matter.
The Tribunal accepts Mr Blackman's submissions on Goldberg which accurately reflect the relevant principles. In particular, the Tribunal notes that Mr Betts was not Mr Blackman's client. Mr Blackman's disclosure was not voluntary. He was obliged under the LP Act and the LPCR to disclose the information. Sunlea has not waived its privilege. In Goldberg, there was no requirement equivalent to r 50(3) of the LPCR which provides that when required by the LPCC, a practitioner must respond.
Mr Blackman submitted:
In the context of disciplinary proceedings concerning lawyers, Professor Dal Pont says that the disclosure by a lawyer of privileged material in response to a disciplinary charge does not constitute a breach of legal professional privilege: Lawyers' Professional Responsibility (5th Ed.) [10.90]; see also r 9(g) Legal Profession Complaints Conduct Rules 2010 (WA) (LPCR) which permits a practitioner to disclose confidential client information to a person, the disclosure of which is necessary to respond to a complaint or proceeding brought against the practitioner. Professor Dal Font also says that even disclosures compelled by statute must yield to claims that the communication in question is subject to legal professional privilege, unless the statute ousts the privilege: Lawyers' Professional Responsibility (5th Ed.) [10.80].
The Tribunal agrees with Professor Dal Pont's statement. It would be inherently unjust if compliance with a professional statutory obligation to the LPCC led to a waiver. Legal professional privilege is a substantive rule of law that is not displaced by compliance with a party's statutory obligations unless that is the clear meaning of the statute. That is decidedly not the case with the LP Act and the LPCR.
Conclusion
The Tribunal finds that the Documents are properly the subject of a claim of legal professional privilege by Mr Blackman on behalf of Sunlea.
Unless Sunlea's privilege in the Documents has been waived, it is exempt matter under the SAT Act.
There has not been any express implied or imputed waiver of Sunlea's privilege in the Documents.
Mr Betts is not entitled to access the Documents.
Mr Bett's application for inspection of the Documents is dismissed.
Orders
1.The application is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JUSTICE J CURTHOYS, PRESIDENT
27 JUNE 2018
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