Camp v Legal Practitioners Complaints Committee
[2008] WASCA 253
•8 DECEMBER 2008
CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2008] WASCA 253
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 253 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:12/2008 | 11 SEPTEMBER 2008 | |
| Coram: | WHEELER JA MILLER JA BEECH AJA | 7/12/08 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | ALAN JAMES CAMP LEGAL PRACTITIONERS COMPLAINTS COMMITTEE |
Catchwords: | Legal practitioners Unprofessional conduct Natural justice Publication of scandalous allegations Turns on own facts |
Legislation: | Nil |
Case References: | Archer v Howell (No 2) (1992) 10 WAR 33 Camp v Legal Practitioners Complaints Committee [2007] WASC 309 Clyne v The New South Wales Bar Association (1960) 104 CLR 186 Harrison v Schipp [1999] NSWCA 443 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 Lancee v Willert [2008] WASCA 120 Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228 Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA 144; (2002) 26 WAR 483 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2008] WASCA 253 CORAM : WHEELER JA
- MILLER JA
BEECH AJA
- Appellant
AND
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : JENKINS J
Citation : CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2007] WASC 309
File No : CIV 1209 of 2007
(Page 2)
Catchwords:
Legal practitioners - Unprofessional conduct - Natural justice - Publication of scandalous allegations - Turns on own facts
Legislation:
Nil
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr M J McCusker QC & Mr R J Butcher
Respondent : Mr M H Zilko SC & Ms G L Roberts
Solicitors:
Appellant : Butcher Paull & Calder
Respondent : Legal Practitioners Complaints Committee
Case(s) referred to in judgment(s):
Archer v Howell (No 2) (1992) 10 WAR 33
Camp v Legal Practitioners Complaints Committee [2007] WASC 309
Clyne v The New South Wales Bar Association (1960) 104 CLR 186
Harrison v Schipp [1999] NSWCA 443
Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Lancee v Willert [2008] WASCA 120
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115
Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228
Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA 144; (2002) 26 WAR 483
(Page 3)
- WHEELER JA:
Factual background
1 This is an appeal from a decision of a single judge of the Supreme Court dismissing the appellant's appeal in relation to a complaint of unprofessional conduct. Much of the background is uncontroversial. Much of it is conveniently summarised in my reasons for decision in Re Coroner's Court of Western Australia; Ex parte Porteous (Ex parte Porteous) [2002] WASCA 144; (2002) 26 WAR 483 [50] - [55]. Because that summary is, as I understand it, disputed only in one respect, to which I will return, I reproduce it here:
Mr Lang Hancock died on 27 March 1992. Over a considerable period of time, the daughter of Mr Hancock, Mrs Rinehart, sought the holding of an inquest into her father's death. On 13 December 1999 the Coroner announced his decision to hold an inquest into the death of Mr Hancock. The inquest was formally opened, and a directions hearing held on 12 June 2000. Mrs Rinehart sought to have the Coroner make a finding that Mr Hancock's widow, Mrs Porteous, contributed to his death. Both Mrs Rinehart and Mrs Porteous were represented by counsel at the inquest. It appears that each of Mrs Porteous and Mrs Rinehart had a number of witnesses whom they considered to be relevant and whom they would seek to have the Coroner call as witnesses.
Mr Camp is a lawyer retained by Mrs Rinehart and, it appears, is a possible witness at the inquest. Considerable hostility exists between Mrs Porteous and Mrs Rinehart. Many allegations have been made, in litigation initiated by one or the other of them, concerning the financial affairs of Mr Hancock and of companies created by Mr Hancock. Even before his death, the affairs of Mr Hancock, who was a man of considerable wealth, were the subject of significant media attention. The circumstances of Mr Hancock's death had attracted intense media interest, and it was clear from the outset that there was likely to be considerable publicity surrounding the inquest. In Mr Camp's words, he was retained by Mrs Rinehart to meet with some journalists because she considered that there was 'a risk that the reporting of the inquest would be unfair from her point of view' if journalists were not fully informed of certain matters.
As part of the preparation for the inquest on behalf of Mrs Rinehart, a document entitled 'Chronology' was prepared ('the chronology'). It was considerably more than a simple chronology. It purports to be a detailed summary of a variety of events. The witnesses to those events are not always named, although one can infer, generally, that the person named in connection with the event is likely to be the witness in relation to it. In some instances, witnesses are not referred to by name, but designated by a letter of the alphabet. In the most colourful terms, the document details allegations which are broadly to the effect that Mrs Porteous was only
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- interested in Mr Hancock for his money, that she treated him cruelly when he was ill, and that she wished for and attempted to hasten his death.
It appears that prior to the inquest, a number of journalists were given access to files containing witness statements made by witnesses whom Mrs Rinehart wished to have the Coroner call. It appears that the statements were voluminous and that a journalist asked Mr Camp if a summary was available. At that time, he replied that there was no summary in existence but that one was being prepared and that he would provide it when it was available. It appears that he said this because he was aware that the chronology was being prepared, or that it was proposed to prepare a document of that kind.
At the directions hearing, counsel representing Mrs Rinehart gave the Coroner a copy of the chronology, noting that he was not in a position at that time to 'vouch for the complete integrity of all the witness statements'. The chronology and some other documents which appeared to be annexed to it were received by the Coroner as an exhibit. It appears that they were received at that time on a somewhat limited basis. The Coroner commented that it should be received because 'that way everybody knows what we have got and we haven't got'. Amplifying that somewhat, he commented that it had been received ' ... so that everybody knows what's being spoken about, and so it's - when it's referred to on transcript, a copy will be available if anybody wants - wishes to see it at some future date, and that I'm accepting it on the basis that this is an indication of what's said on behalf of Mrs Rinehart ... '. A little later in that proceeding, when counsel for Mrs Rinehart sought to outline briefly the matters which Mrs Rinehart saw as warranting investigation, that course was strongly objected to by counsel appearing for Mrs Porteous. In ruling on whether counsel could make an opening of that kind, the Coroner said:
'I don't propose to allow you, Mr Hayes, to make effectively a speech at this stage summarising the case as you see it, or as your client might see it, particularly as, as you say, the evidence isn't all yet available. There may be errors in this material, and there certainly would be matters I'm sure that Mr Styant-Browne [counsel for Mrs Porteous] would wish to respond to and have concerns about contained in the chronology and in any summary of the case as it is being put. That doesn't mean that I propose to exclude for all time the right to say what you understand the case to be, but at this stage we're having a directions hearing in circumstances where the representative of one of the parties is at a very considerable disadvantage.
I don't have any problem with your referring to paragraph 3 of your submissions ... . I think that the press and the public are entitled to understand at least something of what you say. But my concern is particularly that if we start to traverse on the detail of allegations and so on some of that might be disputed by evidence. Witnesses
- aren't yet called. People might get quite a misleading impression of what the true state of affairs is ... '.
- It seems reasonably clear from the passage quoted that the Coroner understood that any opening would at least significantly overlap with the material contained in the chronology and that he considered it was not appropriate for that material to be referred in open court at that stage. The later reference to the right of the press and the public to understand 'at least something' of what was to be said on behalf of Mrs Rinehart carries with it the implication that the press and the public were not entitled, at that stage, to be provided with the detail of all of the allegations. However, no suppression order or other order restricting access to the chronology was made [50] - [55].
2 Shortly after the directions hearing, the practitioner, Mr Camp, made copies of the chronology available to, so far as he could recollect, four journalists. Another journalist he invited to go back to his chambers in order to obtain a copy of the chronology. A further journalist telephoned and asked him to fax a copy of the chronology to him, which Mr Camp did. Mr Camp knew this journalist only to speak to on the telephone; they had spoken in the past but they had never actually met. On the day following the directions hearing, articles appeared in a newspaper published in Sydney and a newspaper published in Melbourne, each of them bearing the name of this last journalist, and asserting that the coroner had been "told" or had "heard" certain allegations contained in the chronology.
3 In 2002, the Full Court of the Supreme Court heard an application seeking that Mr Camp be fined or committed for an alleged contempt of court in distributing that chronology. The only matter of fact which was really in issue at the hearing of that application concerned the question of whether Mr Camp intended that the chronology in question be published as a result of his actions. He gave evidence and was cross-examined about that matter. Although, in my view, Mr Camp's intention was ultimately not a critical issue, I set out briefly, in my reasons in Ex parte Porteous, the findings of fact which I would have made in relation to that issue. Those findings were:
It appears to me from Mr Camp's evidence that he did not make the material available with the conscious intention that it should be republished. It seems likely that he did not advert to the question at all or that, alternatively, he assumed without really considering the question, that it would not be republished at that stage. It is true that it was provided to journalists well in advance of the time at which any of the persons referred to in the materials would be likely to be called to give evidence, so that it would be of no immediate assistance in following their evidence. It is also
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- true that he had difficulty in articulating how the provision of the material to journalists would be of any assistance to them if they were not to republish it.
There are however a number of possibilities reasonably open, it seems to me. The maintaining of a good relationship with those journalists for the future, by the satisfaction of their idle curiosity, is not to be overlooked as a consideration. Further, knowledge of the whole thrust of the case which Mr Camp's client would present to the inquest might consciously, or unconsciously, influence the way in which those journalists might write about other aspects of the proceedings before the Coroner so as to provide greater 'fairness' from Mrs Rinehart's point of view. An aide memoir as to the likely evidence to be elicited from particular witnesses would be of assistance to busy journalists (particularly those not based in Western Australia) in deciding when it would be worthwhile attending what were likely to be protracted proceedings. It seems to me likely that considerations of these kind, rather than a desire for immediate publication, prompted Mr Camp to make the documents available.
However, as a matter of fact, there were features of the circumstances in which those documents were made available which gave rise to a real and significant likelihood that the documents, or portions of them, would be republished in the news media. Had Mr Camp adverted to the question at all (as in my view he ought to have done), that likelihood would have been apparent to him.
Those considerations are as follows. The status of the document was unclear; it had been marked as an exhibit and there was no suppression order in relation to it. It was provided without any warning that it should not be used. It was provided to journalists who may or may not have been in court to hear the Coroner's discussion with counsel about it, and in circumstances in which Mr Camp took no steps to ensure that they either had been in court or that they understood the gist of the exchange which had there taken place. Its inherently sensational nature meant that it was very likely that the media would wish to publish it. It was provided in some instances to journalists with whom Mr Camp had no prior association and about whose likely behaviour he could make no assumptions based on past dealings. The publication which in fact resulted seems to me therefore to have been a very likely consequence of the manner and circumstances in which the document was provided [59] - [62].
- Wallwork J agreed with those findings.
4 Steytler J (as his Honour then was) took a somewhat different view. His Honour's view of that evidence was as follows:
In my respectful opinion, it is difficult to understand how anyone could have been confident that none of the media representatives who were given a copy of the document would publish its contents. The document
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- was no ordinary chronology. Indeed, it hardly satisfied that description at all. It was a highly selective collection of sensational material in respect of a matter which had attracted extraordinary interest on the part of the media. Also, Mr Camp had not, himself, been in Court throughout the directions hearing. It was apparent from what he said in the course of cross-examination that he could not have been confident in his assessment that those to whom he gave the document had been in Court. In fact, the journalist who arranged for the publication of some of the contents of the document had not been in Court at the material time. There was also the potential for a journalist or journalists to think that, because the document had become an exhibit, its contents could be published, no formal suppression order having been made. Notwithstanding all of this, Mr Camp, an experienced lawyer, gave no warning to any of those present that the contents of the document should not be made public. He did not even ask the journalists, some of whom were not known to him, whether they had heard what had transpired in Court. Moreover, all of this occurred against a background in which Mr Camp had, as I have said, been brought in by Mrs Rinehart to liaise with the press and to do what he could, as he put it, to meet a risk that the reporting of the inquest would be unfair from Mrs Rinehart's point of view.
Wheeler J has mentioned that Mr Camp had difficulty in articulating how the provision of the material to journalists would be of any assistance to them if they were not to republish it. It is not surprising, in my opinion, that he should have had that difficulty. It is difficult, even, to know for what legitimate forensic purpose the document might have been tendered at that stage, or why counsel for Mrs Rinehart should then have sought to read from it, in open Court. The giving of evidence at the inquest was not imminent. Mr Camp acknowledged that, at the time, his expectation was that evidence would not be called at the inquest for at least another 6 to 12 months. Indeed, there was the prospect that some of the proposed evidence (part of which came from unidentified sources) would never be led at all, counsel for Mrs Rinehart having acknowledged that he could not 'vouch for the complete integrity of all witness statements'.
In all of these circumstances, the inference might be thought to be irresistible that Mr Camp gave the document to the assembled media representatives because, the document having been tendered but leave to read from it in open Court having been refused, he wished, in this alternative way, to make the contents of the document known to them in the hope that one or more of them would publish its contents.
That said, it is, I think, unnecessary to express any final conclusion in that respect because nothing turns, in my opinion, upon the question of Mr Camp's intention in this case, even if it had been said to amount to one to interfere with the administration of justice [9] - [12].
5 In the end, the Full Court unanimously considered that the publication of that material, in the particular circumstances and at the
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- particular time at which it was published, did not involve a real risk, as opposed to a remote possibility, that justice would be interfered with. The party bringing the application had contended that it was necessarily contempt to publish material calculated to bring about public "pre-judgment" of an issue, but the court took the view that that was not the law.
6 There are a number of further matters of fact which it is convenient to canvass at this stage. The allegations in the chronology were, as noted in Ex parte Porteous, very serious allegations of a very sensational and damaging nature against Mrs Porteous. There were some serious allegations made in the chronology against other persons also, but to a much lesser degree. The chronology was prepared and produced in the Coroner's Court a long time prior to the date at which it was likely that any evidence would be given. The material in the chronology did not include reference to anything which Mrs Porteous, or the other persons against whom allegations were made, might have had to say in response to them. It was, in effect, a summary of Mrs Rinehart's "case" against Mrs Porteous.
7 It does not appear to have been in dispute that, whatever the nature of the appellant's belief about the likelihood of republication, he did not formally advise any journalist that the chronology was provided "off the record", nor did he obtain any undertakings from any of them that they would not republish the allegations.
8 So far as the appellant's knowledge of the contents of the chronology was concerned, his affidavit and his evidence before the Full Court during the course of Ex parte Porteous was to the effect that he had not personally read the chronology. It was prepared by senior counsel from Melbourne, in conjunction with junior counsel and a solicitor other than Mr Camp. His evidence had been that he had read the witness statements upon which the chronology was based, and would have expected the chronology to reflect the content of those witness statements. However, before the Legal Practitioners Complaints Committee, he gave evidence to a different effect. He said that he had not read the witness statements (green AB 3, 7). Cross-examined about the affidavit he swore for the purposes of the proceedings in Ex parte Porteous, his evidence ultimately was:
[I]n light of my answer in that affidavit - I mean, I may have read one witness statement. I don't like to think that I'd say that on oath if - well, I mean, I may have read a witness statement but I most definitely hadn't read
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- through all of the witness statements. Maybe that one was so sensational someone showed it to me, but I don't remember reading it.
9 The "that one" to which Mr Camp was referring was a statement of a witness in the Philippines which he described as alleging in effect "some sort of conspiracy to murder" (green AB 15 - 16). When discussing that issue, the appellant also said that:
… on the occasions when the journalists would come and be sat down in the conference room to read all the witness statements, we would look at each other and go, you know 'we're not going to do this' or the journalists would say that and I never attempted it. Most of it was just banal nonsense.
10 A final relevant factual issue concerns the appellant's role in relation to the inquest. During the course of cross-examination, he was asked by the presiding member of the State Administrative Tribunal "and, Mr Camp, were you part of the legal team led by Peter Hayes QC?" (ie, the team retained in relation to the inquest). His answer was "Yes; yes". Asked by his own counsel what his role was on the "legal team", he said he was not briefed as counsel nor retained as a solicitor. However, he was "engaged on the basis - - because I had a very broad overview knowledge of events relating to corporate structures, and so on, right back".
Reference 22D
11 The reference before the tribunal read as follows:
THAT the practitioner Alan James Camp was on or about 12 June 2000 guilty of unprofessional conduct in that he provided to several journalists a chronology relating to proceedings then on foot in the Coroner's Court which contained allegations of serious misconduct on the part of Mrs Rose Porteous prior to the death of her then husband, Langley George Hancock, when he knew that the conduct of Mrs Porteous in relation to her husband's death was a matter to be considered by the Coroner.
PARTICULARS
1. The practitioner was employed by Hancock Prospecting Pty Ltd or Mrs Gina Rinehart as at 12 June 2000.
2. The practitioner's duties included, inter alia, providing legal advice on various matters raised with him by Mrs Rinehart or other officers of Hancock Prospecting Pty Ltd.
3. One of the above duties included dealing with members of the press who were following proceedings then in the Coroner's Court regarding the death of Mr Hancock in order to ensure that any
- public reporting of those proceedings would be fair from Mrs Rinehart's point of view.
- 4. The chronology contained allegations, inter alia, that Rose Porteous, the widow of Mr Hancock, was only interested in Mr Hancock for his money, that she had extra-marital affairs in the period leading up to Mr Hancock's death when he was unwell, that she treated him cruelly when he was unwell, and that she wished for and attempted to hasten his death by various means.
5. By distributing the chronology as he did, the practitioner sought to further Mrs Rinehart's interests in connection with the coronial inquest by unfair means, namely by casting aspersions on Rose Porteous.
Meaning of reference 22D - tribunal proceedings
12 Particular 5 was amended a number of times during the course of the proceedings leading up to the reference and during the course of the hearing of the reference. Initially, it had read:
By distributing the chronology as he did, the practitioner sought to further Mrs Rinehart's interests by casting aspersions on Rose Porteous for which the practitioner had no or no sufficient basis in the information then in his possession.
13 Amendments made in stages led to the final form of particular 5 set out above. It is difficult to discern why, precisely, the amendments were made. There was considerable discussion during the course of the proceedings about the relevance of particular 5 and about what it meant.
14 In discussing an earlier form of amendment, which omitted any reference to the inquest, counsel for the appellant submitted that if one looked at the substantive part of the reference, rather than the particulars, it was analogous to an allegation of contempt, in that the gravamen of the reference appeared to be the practitioner's knowledge that Mrs Porteous' conduct would be considered by the coroner (ts 20/12/04, pages 5 - 6). Counsel emphasised the last two lines of the reference: "when he knew ... ". Counsel for the appellant then submitted that the allegation of "unfair means" was embarrassing, as it was not clear what the expression "unfair means" was intended to convey, and as it was logically not connected to the gravamen of the reference. There was then a discussion about whether it would have been appropriate for the appellant to have sought particulars at an earlier time, if he did not understand the reference.
15 In oral submissions in reply to those issues, counsel for the respondent submitted to the tribunal, in essence, that his "primary
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- position" was that the appellant had sought to enhance the interests of Mrs Rinehart and damage those of Mrs Porteous "in relation to the coronial inquiry ... by either influencing people who may wish to come and give evidence, by influencing the way in which the press and the media portray the events in the inquiry or whatever". Alternatively, if the tribunal did not find that intention, the submission was that particulars 1 to 4 would nevertheless constitute unprofessional conduct. That alternative submission was not developed any further.
16 Counsel for the appellant then pointed out that there was no particular alleging that the appellant had intended to influence people who might wish to give evidence. Counsel submitted that that would be a "very different reference" and would be a contempt of court.
17 In the end, it was suggested that appellant's counsel might be better able to deal with the question of whether or not the reference was embarrassing, and what the reference meant, after the opening of the complaint. There was no objection to that course.
18 In opening, counsel for the respondent set out briefly the history of the distribution of the chronology to the journalists. He explained that contempt proceedings were brought against the appellant and that those proceedings were unsuccessful. He noted that the answer of the appellant, in relation to this reference, was to the effect that findings of the Full Court in Ex parte Porteous were a complete answer to the complaint and exonerated him. Counsel for the respondent then said:
We say, with respect, that that misunderstands the nature of unprofessional conduct and that the two are totally unrelated. One requires the criminal standard of proof. The other requires the higher degree of persuasion, civil standard of proof, these proceedings, and they both take a different approach to matters which contravene the relevant standards which are applicable to either contempt of court on the one hand and unprofessional conduct on the other. We will refer to the well-known authorities on unprofessional conduct and compare them to what is sought for what needs to be established in respect of contempt proceedings .... (ts 18)
19 I would understand by that, that counsel was saying two things. First, that the fact that the appellant had been found not guilty of contempt did not mean that he could not be found guilty of unprofessional conduct, since the standard of proof for contempt proceedings was a different, and higher, standard. Second, as I understand it, he was suggesting that there was some difference in the nature of what had to be proved in order to establish unprofessional conduct on the one hand and contempt on the
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- other, and suggesting that he would, at some stage, come back to explain what that difference was.
20 We have only been provided with portions of the transcript, but both the appellant and the respondent have referred us to, and provided us with, what they allege to be relevant portions of the transcript before the tribunal. It does not appear from them that, on that day, counsel for the respondent returned to explain the difference between unprofessional conduct and contempt, for the purpose of this reference.
21 Much later, on 20 July 2006, when having a discussion which appears to have been directed to the question of proposed cross-examination of the appellant, the respondent's counsel put to the tribunal that "We're saying that by distributing this chronology therein lay the unfair means". Members of the tribunal noted that it was part of the complaint that the appellant knew that the conduct the subject of the chronology was "a matter to be considered by the coroner". Counsel for the respondent agreed, but went on to say that particular 5 would be an "aggravating factor".
22 In further explaining what the respondent contended was the meaning of this reference, counsel said, on 20 July 2006 (ts 69 - 70):
The reference says that he was guilty of unprofessional conduct in providing to the journalists a chronology relating to proceedings then on foot which contained allegations of serious misconduct on the part of Mrs Rose Porteous when he knew - - when he knew that the conduct of Mrs Porteous in relation to her husband's death was a matter to be considered by the coroner. So if I go to [particular] 5, by distributing the chronology as he did, the practitioner sought to further Mrs Rinehart's interests by unfair means; namely, by casting aspersions on Mrs Porteous, which - - whose conduct was the subject of the coronial inquiry. So we would say that they are most certainly connected, notwithstanding our opponent's view of it, and, secondly, we don't see it as a separate reference. We see it as a material particular of the reference.
23 He went on to say shortly thereafter, in answer to questions from one tribunal member seeking to ascertain more precisely what was meant by "unfair means":
Well, we're obviously having a difference of view about it, but can I say this? At the end of the case I will say something about unfair means. There is a decision of the Queensland Court of Appeal about unfair means. It's also in our professional conduct rules. (ts 70)
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24 The appellant's counsel then submitted that it seemed to be an unstated premise of the reference that the appellant's purpose in handing out the chronology was to have it republished, since it was difficult to see how people who may wish to give evidence would be influenced unless the material was published. He sought to ascertain whether the allegation was that the chronology was given out in order that it might be published. After the luncheon adjournment, the tribunal suggested that the words "in connection with the coronial inquest" might be inserted between the word "interests" and the words "by unfair means". The appellant's counsel indicated that that would bring the particular in line with the reference, and the respondent's counsel said that he did not "have a problem" with it. That brought this reference to its final form.
25 Unfortunately, the question of what the "unfair means" might be, and how it was that Mrs Rinehart's interests would be furthered by the distribution of the chronology, and the question of what, if anything, it was suggested the appellant's purpose in distributing the chronology might have been were not the subject of any resolution. At one point during the course of a discussion with the appellant's counsel on the same day, the chairman of the tribunal suggested that surely it would be unprofessional to "go around dishing out proposed witness statements to the media" before evidence had even been called. However, the appellant's counsel replied that "that's a different case". No-one contradicted counsel's observation.
26 Reading the submissions and the questions of the tribunal as a whole, in relation to the understanding of this reference, it is not easy to see precisely why it was suggested that it was important that the question of Mrs Porteous' conduct was to be the subject of consideration by the coroner. It was, as the exchanges above make clear, the respondent's primary position that the appellant intended to influence some people by handing out the chronology; the two groups nominated were potential witnesses and journalists, although there seems to have been some other undefined possibility contemplated by the words "or whatever": see [15]. The written submissions on behalf of the respondent, before the tribunal, suggested that it was not necessary that the appellant intend to further Mrs Rinehart's interests by unfair means. As I understand it, it was submitted by the respondent that it was sufficient if his intention was to further Mrs Rinehart's interests, and the means adopted by him were, in fact, as found by the tribunal, unfair. However, how the distribution of the chronology would further her interests, and what the appellant intended to do, seem to have been the subject of no precise allegation, other than the suggestion of an intention to "influence", to which I have
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- referred above. Moreover, so far as the transcript put before us reveals, the respondent's alternative case, based on particulars 1 to 4 only, was never articulated in a manner which identified the gravamen of the case. Further, the alternative case would need to have accommodated the closing words of the reference "when he knew ...".
27 In written closing submissions exchanged at or before the hearing on 21 July 2006, the respondent contended that handing out the chronology containing allegations of serious misconduct by Mrs Porteous was, in itself, sufficient to constitute unprofessional conduct, referring to Harrison v Schipp [1999] NSWCA 443 [27] - [28]. The appellant's written submissions dealt only with what counsel for the appellant had contended throughout the hearing was the only reading of the reference.
28 In the course of oral closing submissions on 21 July 2006, members of the tribunal put an alternative characterisation of the reference to counsel for the appellant. He responded by contending that that was not the case against the appellant (see ts 18 - 24, 21/7/06). The tribunal did not suggest that counsel should make submissions on the substance of the alternative characterisation of the reference, in case his submissions that that was not the case against the appellant were not accepted.
29 It is most unfortunate that the reference proceeded in a manner which suggests that the parties may have been at cross-purposes about what, precisely, the reference was intended to convey, and where the tribunal does not appear to have articulated plainly its understanding of the case which, in its view, the appellant was required to meet. I return to these issues later.
The tribunal's reasons
30 The reasons of the tribunal in relation to this reference are, with respect, unsatisfactory. They record the fact that it was common ground, as it must have been, that the chronology in fact contained very sensational material concerning Mrs Porteous. At [122], the tribunal records the submission made on behalf of the respondent that particulars 1 to 4 alone would be sufficient to support the reference, but does not refer to the reasoning which the tribunal understood to support that submission.
31 Paragraphs [126] to [136] inclusive merely record the evidence of Mr Camp. No finding is made in relation to any aspect of that evidence. Paragraph [134] notes, but does not resolve, the conflict between what was said in Mr Camp's affidavit in the Full Court and his evidence before the tribunal, concerning the question of whether or not he had read the
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- witness statements. At [138], the tribunal records its acceptance of the submission, made on behalf of the appellant, that "it would be very difficult for this Tribunal to make findings of fact different from those made by the Full Court". No reason is recorded for that finding, which in my view is in error. At [139] - [150] inclusive, a variety of submissions are summarised, again without making any finding concerning them.
32 The tribunal "notes" a number of aspects of the complaint and particulars, at [151]. Paragraph [152] records the respondent's reliance upon Harrison v Schipp; while the tribunal does not expressly accept that the case is relevant, the following paragraphs suggest that the case was relied on to reach the tribunal's conclusions. No attempt is made, however, to relate it to the terms of the complaint.
33 The findings of the tribunal appear to be contained in [153], [156] and [158] - [161] inclusive of the tribunal's reasons for decision. I set those out below:
In our opinion it was unprofessional conduct for the practitioner to distribute to the press a summary or chronology of proposed witness statements, before any such evidence had been given, containing what can only be described as very damaging allegations against Mrs Porteous. We find that the complaint has been established.
…
The practitioner has admitted that he handed out the chronology, and that chronology contains allegations of alleged serious misconduct. In our view, it is not necessary that the practitioner should have read the chronology. He knew the general nature of at least some of it from his knowledge of the statements from which it was taken. In the contempt proceedings, he submitted an affidavit to the effect that he had read the witness statements. The practitioner said that although he had not read the chronology, he had assumed it would accurately reflect the witness statements he had seen previously.
…
The fact that the chronology was prepared by senior and junior counsel in the East goes to penalty rather than proof of the charge. We are satisfied that even if Mr Camp had not read all the statements, he knew enough to know that he should not have handed out the chronology to the media in advance of the evidence being given.
It is important that the chronology contained most serious allegations against Mrs Porteous. They were terrible accusations. It was unprofessional in our view to hand them to the media in advance of any evidence of that nature having been given.
(Page 16)
- In our view it is not necessary for particular 5 to be established to constitute an offence of unprofessional conduct. We are satisfied that Mr Camp knew enough about what was in the chronology for him to be found guilty of unprofessional conduct as alleged in this charge.
We agree that it was not established that Mr Camp handed out the chronology in order in [sic to] inflict damage on the opposite party, but what was important were the allegations about Mrs Porteous. It did not matter that he did not intend to do it to advance Mrs Rinehart's interests as alleged in particular 5 [153] - [161]. (Underlining in original)
34 It can be seen that the tribunal made very limited findings. It found that the chronology contained very serious - indeed "terrible" - allegations against Mrs Porteous. It found that the appellant had handed it out. It found that the appellant knew "enough" about what was in the chronology for his conduct in handing it out to amount to unprofessional conduct. Negatively, it found that it was not established that Mr Camp handed out the chronology "in order [to] inflict damage on the opposite party". It is not entirely clear what is meant by this phrase. It appears to have found, implicitly, that he did not intend to advance Mrs Rinehart's interests.
35 Importantly for the present appeal, it should be noted that the tribunal made no findings whatever in relation to certain issues. Although reference was made to his affidavit in Ex parte Porteous, there was no finding concerning whether or not the appellant had read all, or the majority of, the witness statements from which the chronology was prepared. There was not even a finding concerning whether he had read the witness statement of the witness from the Philippines, which he conceded that he had probably seen, although [158] appears to assume at least some reading. There was no finding, on the other hand, about whether he had obtained any knowledge of the contents of the chronology through discussions with counsel who had prepared it. There is no finding concerning what, even in general terms, that knowledge may have been. There was no finding concerning the question of whether the appellant had turned his mind to the question of whether republication of the chronology, or portions of it, in the news media, was probable or possible. There was, of course, no finding concerning what, if anything, the appellant believed about the likelihood of republication. There was no finding concerning the question of what steps, if any, the appellant took in order to ensure that there was no republication. There was no finding concerning what the appellant's purpose was.
36 Importantly, there was no finding concerning the appellant's purpose in handing out the chronology. Theoretically at least, the practitioner may
(Page 17)
- have had some proper purpose in making the material available, although it is difficult to imagine what that could be. The transcript provided to us suggests, however, that his purpose was the subject of almost no evidence-in-chief, or cross-examination, before the tribunal.
The appeal to Jenkins J
37 The appellant appealed from the decision of the tribunal to a single judge of this court on the following grounds:
1. The Tribunal erred in law in finding the Applicant guilty of unprofessional conduct as the release of a summary of evidence by the Applicant did not of itself constitute unprofessional conduct absent malice or improper purpose.
2. The Tribunal's reasons were inadequate, or alternatively the procedure adopted by the Tribunal was unfair, in that the Tribunal held that the elements of contempt in Ex parte Porteous were different to [sic] the elements of the Reference.
Particulars
- The Tribunal erred in failing to:
(a) identify what the relevant elements were;
(b) make any findings in respect of the elements; and
(c) give reasons that explained how the elements differed; and
(d) give reasons that explained how the Tribunal reached its decision in the absence of any findings as to what the elements were.
(Page 18)
39 As to ground 1, her Honour noted that the respondent had proved all of its allegations save for those to be found in particular 5 (Camp v Legal Practitioners Complaints Committee [2007] WASC 309 [46]). The question which her Honour then had to consider, which in her view overlapped with the matters agitated in support of ground 2, was the question of whether it was open to the tribunal to find the appellant guilty of unprofessional conduct if particular 5 of the reference was not made out. In relation to that issue, her Honour made the following findings:
I accept that the Tribunal did not have to specifically refer to Kyle's case. Neither did a highly experienced Tribunal, as this one was, determining disciplinary proceedings have to elaborately detail basic principles of law. Nevertheless, there were legal and factual issues involved in the Tribunal's decision and the Tribunal's reasons needed to identify those issues and explain its decision in respect to them. For example, it was necessary for the Tribunal to determine whether either limb of the statement in Kyle's case was applicable, and, if not, what other notion of unprofessional conduct it applied.
In my opinion the Tribunal failed to do this. A reader of the Tribunal's reason[s] for decision would understand that the appellant's conduct in handing out the chronology was unprofessional because it was done before evidence was given at the inquest [153], the chronology contained 'very damaging' [153] and 'terrible' accusations against Mrs Porteous [159] and the appellant knew the general nature of the allegations contained in the chronology [156]. Further, the reader would be aware that the Tribunal found that this was unprofessional conduct even though the appellant did not intend to inflict damage on Mrs Porteous or to advance Mrs Rinehart's interests. On the other hand, a reader would not know whether the appellant was found to have acted unprofessionally in the course of legal practice or not, whether his conduct fell short of a standard and, if so, what standard, whether his conduct was disgraceful or dishonourable or whether the conduct was unprofessional for some other reason [58] - [59].
40 Her Honour then considered the legal principles bearing upon the appellant's conduct. She referred to the "second limb" of the test enunciated in Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 as being relevant. In order to apply that, she considered it was necessary to decide what standard was expected of legal practitioners at the time in relation to their dealings with the media. She referred to the Professional Conduct Rules of the Law Society r 4.5, to the case of Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228, and to Clyne v The New South Wales Bar Association (1960) 104 CLR 186. Her Honour drew from those materials, the principle that even the privilege to make sensational and potentially very damaging comments
(Page 19)
- about another person in court must not be abused because of the ruinous consequences that might follow. Her Honour then considered that:
It follows that it is of even greater importance that when practitioners speak out of court about a client's case that they maintain standards of decency and fairness by not making allegations which may have 'ruinous consequences' to the person attacked and which the practitioner does not believe can be substantiated by credible evidence. This is especially so in circumstances where the practitioner has no duty to his client, as may exist in court, to make such allegations [65].
However, it is conduct falling below the standard of professional conduct observed or approved by members of the legal profession of good repute and competence for a practitioner to make the allegations that were contained in the chronology out of court, prior to any evidence of them being given in court and without any real belief in their credibility or a belief that there was credible evidence to justify or support the allegations.
The final issue for determination is whether the distribution of the chronology not only fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence but whether it did so 'to a substantial degree'? In my opinion, this criterion was also met for a number of reasons, these being:
1. the very serious and damaging nature of the allegations made in the chronology;
2. the number of journalists to whom it was distributed;
3. its distribution after the Coroner had refused to allow it to be read in open court;
4. the failure of the appellant to obtain undertakings from the journalists that they would not republish the allegations;
5. the failure of the appellant to read the chronology or the witness statements on which it was based;
6. the distribution of the chronology well before any supporting evidence would be given for the allegations in the chronology; and
7. the appellant's belief at the time that many of the allegations in the chronology were 'banal nonsense' [71] - [72].
42 It appears to me that there are a number of factual matters contained in her Honour's findings in [71] and [72] which are not factual findings made by the tribunal. It appears to me that it was not open to her Honour
(Page 20)
- to make those findings, turning as they did upon issues of credit, without having heard the witnesses.
43 The first such finding is that the appellant lacked "any real belief" in the credibility of the allegations in the chronology or, perhaps alternatively, lacked a belief that there was credible evidence to justify or support those allegations. It is true that, in the passages of transcript which have been supplied to us, there is nothing to suggest that the appellant had any reason to believe that all of the material contained in the chronology had a basis in credible evidence. It seems to have been common ground that he had been in court when senior counsel advised the coroner he was unable to "vouch for the complete integrity" of the witness statements. In any event, whether he was aware of any particular matters contained within the chronology or not, it would appear that the evidence summarised was evidence of witnesses many or all of whom the appellant had not personally interviewed or met, and he was plainly aware that their evidence had not been given on oath or tested in cross-examination. It is therefore difficult to see how he could have had any belief in the credibility of the allegations, let alone a reasonable belief. However, against those objective considerations must be set whatever the appellant had to say, during the course of his evidence, about the chronology and the witness statements, and about his discussions with others concerning those statements, assessed in the light of his demeanour.
44 So far as [72] of her Honour's reasons is concerned, the matters numbered 1, 2, 3, 4 and 6 appear to be matters of objective fact or matters which were not in contention before the tribunal or before her Honour. The fifth finding, that the appellant failed to read the chronology or the witness statements upon which it was based, was a finding which it does not appear to me that the tribunal made. Its finding was also that the appellant knew "enough" about the contents of the chronology, so that it was not open to her Honour to make the finding one way or the other about whether the appellant had read either the witness statements or the chronology.
45 So far as item 7 is concerned, it is not entirely clear from the printed page what the appellant's reference to "banal nonsense" was intended to convey; whether the witness statements as a whole, the inquest process or possibly the prurient interest in those details apparently displayed by the media and the public. It may well have been clear to the tribunal, but the tribunal made no explicit finding concerning that matter. It was therefore not open to her Honour, in my view, to rely upon that matter.
(Page 21)
Appeal to Court of Appeal
46 From her Honour's decision, the appellant appeals to this court. There are five grounds of appeal. So far as grounds 3 and 4 are concerned, they attack particular aspects of her Honour's findings in [72], discussed above. They are made out, but only to the extent to which I have indicated above. Ground 4 also attempts to counter the proposition that the allegations in the chronology were serious and damaging, in [72] point 1, by suggesting that there was no evidence that the allegations were not accurate. However, it is not the case that a practitioner is entitled to publish material, no matter how scandalous or defamatory it may be, unless there is evidence to suggest it is inaccurate; rather, a practitioner has the duty to refrain from such publication unless it is necessary to publish such material in the interests of the practitioner's client and the practitioner has some instructions or some material before him or her suggesting that there is a credible basis for such allegations.
47 Ground 5 asserts that her Honour erred in failing to take into account "as held in Ex parte Porteous" that the appellant might have had "good reasons" for distributing the chronology. Two of the "good reasons" suggested are that there may have been a desire to maintain good relations with journalists or that the summary would be an aide memoire to assist busy journalists in deciding when to attend protracted hearings. Neither of those considerations would be a "good reason" to publish material of this kind. A third possible reason suggested is that the appellant's client may have had an interest in informing journalists to ensure "fair media coverage from her perspective". Whether this would be a good reason depends upon what "fair media coverage" from the appellant's client's perspective would involve. If it meant merely that the media shared the client's apparently firm views about the alleged misconduct of Mrs Porteous, that again would not be a "good reason" for publication. However, as I have noted already, the tribunal made no positive finding about what the appellant's reasons for distributing the chronology were.
48 In any event, grounds 3 to 5 inclusive appear to have been accepted by the appellant's counsel, at the hearing of the appeal, as being largely subsumed within grounds 1 and 2. Grounds 1 and 2 read as follows:
1. Her Honour erred in law in failing to hold (as the Appellant contended):
1.1 The only allegation raised by the Reference was that the Appellant was guilty of unprofessional conduct in distributing the Chronology because he knew that it
- contained allegations of conduct by Mrs Porteous in relation to her husband's death when that was a matter to be considered by the Coroner. Essentially, that was an allegation that the Appellant's conduct posed a risk to the administration of justice, and was therefore unprofessional.
- 1.2 That this allegation raised issues all of which had been determined in the Appellant's favour by the Full Court in Ex parte Porteous (2002) 26 WAR 483.
1.3 That the Tribunal had erred in law in finding the Appellant guilty of unprofessional conduct (Tribunal Reasons [159]) on the ground that the Chronology was given to media in advance of the evidence summarised in it being heard by the Coroner, when it contained 'most serious' and 'terrible' accusations against Mrs Porteous. That was not the allegation which the Appellant faced.
- 2. Her Honour erred in law by proceeding to decide the appeal without giving to the Appellant notice of the basis upon which she proposed to deal with the matter, or the opportunity to adduce evidence and be heard on the issues on which Her Honour based her decision, which issues were not raised by the Reference.
Particulars
- Her Honour decided against the Appellant [72] on the basis of
i) the 'very serious and damaging' nature of the allegations in the Chronology;
ii) the number of journalists to whom it was distributed;
iii) its distribution after the Coroner had refused to allow it to be read in open Court;
iv) the failure of the Appellant to obtain undertakings from journalists;
v) the failure of the Appellant to read the Chronology, or the witness statements on which it was based;
vi) the distribution of the Chronology before the proposed evidence which it summarised was given in the Coroner's Court;
vii) the Appellant's belief at the time that many of the allegations in the Chronology were 'banal nonsense'.
(Page 23)
49 I have already dealt with ground 2. In my view, points i) - iv), and vi) are all matters of objective fact which were known to the appellant and in relation to which there was no need for her Honour to give the appellant an opportunity to be heard. However, I accept that it was not open to her to make findings in relation to ground 2 v) and vii). I do not think that these errors alone would necessarily require the appeal to be allowed. That is because, if it was open to her Honour to find that the appellant had either recklessly or knowingly distributed a chronology containing serious and defamatory allegations about a person, at a time when there was no good reason for him to do so, which allegations had come to his notice in his capacity as a legal practitioner, then it seems to me that that conduct would be unprofessional and that it would not matter whether the appellant had read the chronology or not, provided only that he was aware that it contained some very serious allegations against Mrs Porteous.
50 However, the allegation which I have summarised above, and which is the allegation referred to in shorthand in ground 1.3 of the grounds of appeal, is, as that ground points out, not the allegation which the appellant faced. The tribunal was required to afford procedural fairness to the appellant: Archer v Howell (No 2) (1992) 10 WAR 33. In the context of a disciplinary hearing against a professional person charged with misconduct in a professional respect, procedural fairness requires that, before the hearing of the charge, the defendant be given sufficient particulars to enable him or her to consider his response, make inquiries and gather evidence, and prepare for the hearing: Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 [57].
51 If the respondent intended its alternative case (based on particulars 1 to 4 alone) to capture the allegation I have summarised above at [26], in my respectful opinion, it failed to articulate that case sufficiently clearly to make it fair for the appellant to be found guilty on that basis. The articulation at the point of closing submissions came too late. Moreover, such a reading of the reference does not fit easily with the language of the reference. The reference directs attention to the circumstance that the appellant knew that the subject matter of the chronology was a matter to be considered by the coroner.
52 In my view, from the whole of the material to which I have earlier referred in [25] to [26], the appellant could reasonably have extracted only these two allegations:
(Page 24)
- (1) That his conduct was unprofessional because it had some relationship with, or some likely or intended effect upon, the coronial proceedings; and/or
(2) that his conduct was unprofessional because he intended to further his client's interests, in connection with the inquest, by means which were objectively unfair (although, as I have explained, it may not have been clear to the appellant quite how handing out the chronology was said to further his client's interests).
53 The tribunal does not seem to have found that either of these two allegations had been made out. It did not make any finding about the appellant's intention, other than that he did not intend to "inflict damage" upon the "opposite party" (presumably Mrs Porteous), or to further the interests of Mrs Rinehart, and it did not articulate any connection between the handing out of the chronology and the proceedings before the coroner, other than to note that the chronology was handed out "in advance of" any evidence being given.
54 Both the tribunal and Jenkins J appear to have found that the appellant's conduct was unprofessional because he came into possession, in his capacity as a legal practitioner acting for a party, of serious, scandalous, and damaging allegations about a person, which he published to journalists at a time at which it does not appear that he had any means of knowing whether or not they were true, or whether there was material to support them, and when he had no proper reason for doing so. Aggravating that conduct was the fact that the publication was made in circumstances where republication was likely. If the appellant's conduct could be characterised in that way, it appears to me that it would, of course, be properly characterised as unprofessional conduct.
55 However, as I have noted, that was not the case against the appellant. Because it was not the case against the appellant before the tribunal, the tribunal made no findings about it. Importantly, because it was not the case before the tribunal, the appellant does not appear to have given evidence about, and does not appear to have been cross-examined about, his purpose in making the material available to journalists, his understanding of the accuracy of the witness statements and chronology, and his understanding about the likelihood of republication.
56 I would add that, so far as the tribunal's reasons are concerned, a finding that the appellant knew "enough" about the content of the chronology appears to me to be an inadequate basis for a finding of unprofessional conduct; that could only be made, if it were found that, at a
(Page 25)
- minimum, the appellant knew that one of the witness statements contained allegations against Mrs Porteous akin to allegations of being a participant in a conspiracy to murder, and that he understood that it was probable that those allegations had been reproduced, in whole or in part, in the chronology. That finding was simply not made and it is not possible, it seems to me, to infer it from the tribunal's reasons.
57 For the reasons given above, I would uphold ground 1, as to particular 1.3. That is, in essence, the same as ground 1 of the appeal from the tribunal to Jenkins J. This appeal must therefore be allowed, and the finding of unprofessional conduct quashed.
58 For the sake of completeness, I make some observations about ground 1.2. Before the tribunal, the respondent appears to have taken the position that it was open to the tribunal to make findings which were inconsistent with the decision in Ex parte Porteous. For the purposes of this appeal, the respondent submitted that the tribunal "rightly accepted" that it could not make findings inconsistent with those of the Full Court in Ex parte Porteous. I am unable to see why that is so. The allegation in Ex parte Porteous was one of contempt of court. Such an allegation must be proved to the criminal standard; that is, beyond reasonable doubt. Although disciplinary proceedings must be proved to a relatively high standard, the standard is nevertheless a civil one: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 635.. It would have been open to the tribunal to make findings which were not consistent with the findings of the Full Court: see Litchfield, (supra) at 635 - 636, Lancee v Willert [2008] WASCA 120, Murray AJA at [64] - [81] and cases there discussed. Further, the parties were different in Ex parte Porteous from the parties in the contempt proceedings. In addition, whatever the persuasive value of the Full Court's decision, it should be noted that there were relevant and significant differences in the evidence in that case; in particular, the appellant's contradiction, in evidence before the tribunal, of his evidence in the contempt proceedings to the effect that he had read the relevant witness statements, was something which was clearly capable of having a serious impact upon his credibility.
Conclusion
59 I would allow the appeal from Jenkins J. It would follow, from what I have said above, that in lieu of the orders made by her Honour, there should be orders that the appeal be allowed and the finding in respect of reference 22D be quashed.
(Page 26)
60 MILLER JA: I agree with Wheeler JA.
61 BEECH AJA: I agree with Wheeler JA.
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