Camp v Legal Practitioners Complaints Committee

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2007] WASC 309

CORAM: JENKINS J

HEARD: 29 OCTOBER 2007

DELIVERED : 19 DECEMBER 2007

FILE NO/S: CIV 1209 of 2007

MATTER :The Legal Practice Act 2003
The Legal Practitioners Complaints Committee and Alan James Camp State Administrative Tribunal No VR 8 2003

BETWEEN: ALAN JAMES CAMP
Appellant
AND
LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Respondent

ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram :HON H A WALLWORK QC

MR R I VINER QC
DR K SPILLMAN
MS C H THOMPSON

File No :VR 8 of 2003

Catchwords:

Trades and professions - Legal practitioners - Appeal from finding of unprofessional conduct - Whether proven facts were consistent with the particulars of reference - Whether proven facts amounted to unprofessional conduct

Legislation:

Legal Practitioner's Act 1893 (WA)
State Administrative Tribunal Act 2004 (WA), s 77, s 81

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr R J Butcher
Respondent: Mr M H Zilko SC

Solicitors:

Appellant: Butcher Paull & Calder
Respondent: Legal Practitioners Complaints Committee

Case(s) referred to in judgment(s):

Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Camp v Legal Practitioners Complaints Committee [2007] WASC 220
Clyne v New South Wales Bar Association (1960) 104 CLR 186
Garrett v Nicholson (1999) 21 WAR 226
Harrison v Schipp [1999] NSWCA 443
Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228
Re A Practitioner of the Supreme Court [1927] SASR 58
Re Coroner's Court of Western Australia; Ex Parte Porteous (2002) 26 WAR 483

JENKINS J: This is an appeal from a decision of the State Administrative Tribunal delivered on 1 February 2007. The decision under appeal is the Tribunal's decision to find the appellant guilty of unprofessional conduct as a legal practitioner. In separate reasons, I refused the appellant leave to appeal the decision on certain grounds and granted leave to appeal in respect to proposed grounds of appeal 7 and 8: Camp v Legal Practitioners Complaints Committee [2007] WASC 220.

Grounds of appeal

The grounds on which I granted leave to appeal are as follows:
1.The Tribunal erred in law in finding the [Appellant] guilty of unprofessional conduct as the release of a summary of evidence by the [Appellant] 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 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.

The law

At [25] ‑ [30] of my earlier reasons I summarised the principles of law relevant to an appeal from a decision of the Tribunal. I will not repeat what I said there, but I keep in mind that an appeal can only be allowed on a question of law.

Factual background

On 28 July 2003 the respondent referred four matters concerning the appellant to the Disciplinary Tribunal constituted under the Legal Practitioner's Act 1893 (WA). In my earlier reasons I detailed how those references came to be heard by the Tribunal [2] ‑ [6].
The grounds of appeal relate to reference 22D, which in its final form 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.
The appellant filed the following response to the reference.
1.As to this reference I rely on the decision of the Supreme Court in the action by Rose Porteous against me for Contempt of Court in which the full Court found that there had been no intention to affect the proceedings, or influence the proceedings before the Coroner. My affidavit and evidence filed and given before the Court (and provided to the Complaints Committee) makes clear and unequivocal that my conduct was not unprofessional.
In its reasons for decision, the Tribunal gave a detailed outline of the evidence. It did not say that the outline constituted its findings of fact. However, given that it made no other findings and appeared to rely upon the evidence that it had outlined, I am of the view that the Tribunal accepted the evidence which it summarised. The Tribunal said:
Mr Camp admitted that he had handed out four copies of the chronology to journalists and later invited another journalist to his chambers to give him a copy. He had then faxed a further copy to another journalist. Mr Camp said he thought that the journalist concerned had been at the hearing. This journalist, Mr Reardon, had used the chronology to write articles in an Eastern States newspaper.
Mr Camp said that all the journalists who were locals did not use it. He only gave the chronology to journalists whom he knew. He had promised Mr Reardon a summary in due course.
Mr Camp said Mrs Rinehart had invited journalists to read the evidence and that gave rise to the chronology. Mr Camp said he had not read the chronology at the time and still had not read it. Mr Camp was persistent that he had never read it. He said he had not read it before he handed it out and had not read it since.
Mr Camp said that the chronology had been prepared by senior counsel and junior counsel from Melbourne over a period of about a week. He had not been involved in the preparation of it. He said that 'I knew that they'd thoroughly worked on it. I spoke to Peter Hayes after the Coroner's direction.' Mr Camp said he didn't read it but he talked to Peter Hayes about it. Mr Camp said he knew it was a summary and Mr Hayes had described to the Coroner what it was. Mr Camp said he had not discussed the contents with Mr Hayes, only that it was a summary from witness statements given to the legal team. He said Mr Peter Hayes was the leader of that team and they had all the witness statements. They had compiled the chronology for the Coroner from the witness statements. It was a summary for the Coroner. The chronology was accepted as an exhibit before the Coroner.
Mr Camp said there had been no suppression order. The Coroner had said to senior counsel that he could not read it in open court. Mr Camp said that when he gave the chronology to the press it was on the understanding that it was not going to be published. No local journalist had published it. The reporter who published it in the Eastern States had not been in court that day. The summary had been handed to the Coroner but the witness statements were not handed in. Counsel had the witness statements and they had made a summary.
Mr Camp said he did not know what was in the witness statements. Mrs Rinehart had been inviting journalists to her office to read all the witness statements. He said the journalists were not going to read through the witness statements. A couple of them had said to him: 'Have you got a summary of these?' That was four months before. Mr Camp said he had said 'Look, whenever there is a summary available I will ring you. I will give it to you'. He had said in his affidavit that he saw the role of the press as being important, so that is how this arose.
Mr Camp said he had never read the witness statements and neither did the journalists. A journalist was not going to sit down and read through it all. It was pretty sensational stuff in the statements but quite precisely what, he did not know. He said 'it was always in the papers, this business'. He had not discussed with Mrs Rinehart the contents of the witness statements, but he said that, for instance, the allegation that Mrs Hancock had hastened Lang's death had been in the newspapers on three or four occasions before it was published in the Eastern States on this occasion. There was nothing new in any of it, but even if there was he would not have known. He was interviewed that day by Mr Paul Murray and did not try to say anything against Mrs Porteous in any way, shape or form. He had been in the Coroner's Court when Mr Hayes was seeking to read the chronology and when the Coroner had said no. He had given it to the reporters as a summary to assist them to be prepared in due course when the Inquiry came on. The better prepared they were, the better they could do their job, and from Mrs Rinehart's perspective, not get things wrong. He said he had not at any point planned for it to be published. He did not give it to them on that basis. He sincerely believed that the journalists to whom he gave it knew that it was not going to be published. They had been in the Coroner's Court. It was not published in Western Australia. He had believed that Mr Reardon had been there. He assumed when Mr Reardon rang that he had been in the Court because how else could he have known straight away that it was available, if he had not been there. The legal team was led by Mr Peter Hayes QC and the junior counsel was from Melbourne. He has since been made a Queens Counsel.
Mr Camp said that he had not at any stage then or since read the chronology. He had not read the statements from which the chronology had been created. He had not read the statements and he did not sit through the hearing to listen to any of it.
In his affidavit to the Supreme Court Mr Camp stated 'I did not read the chronology. I had read the witness statements and I knew there was a statement by a Philippine witness briefed by a solicitor from the Sydney office …'. It was put to Mr Camp that he had read the witness statements. He said "No, I had not". He said he knew what the witness from the Philippines was going to say. That must at some point have been described to him but he had never sat down and read it for himself.
Mr Camp said he had not been briefed as counsel to appear at the Coroner's Inquest and he was not retained as a solicitor. He thinks he was engaged on the basis that he had a very broad overview of the events relating to the corporate structures and so on. He did not sit through all of the Coroner's Inquest. In fact he did not sit through any of it except his own evidence. He had been at the directions hearing which had been about six months before the Inquest commenced. He said that in the light of his affidavit, he may have read one witness statement but he most definitely had not read through all of the witness statements. Maybe that one was so sensational that someone had showed it to him but he did not remember reading it. He was referring to the Philippine witness' statement. He said he may have been shown that. He had no recollection of it but maybe when he had answered that affidavit he did remember. He had not been retained to have any input or involvement in the creation of anyone's statements. He had been completely against the whole Inquest idea. At the time of the handing out of the chronology he did not think he had any specific job. On 1 November 1991 he had moved into full-time work for the Hancock Group. He had worked there from 1 November 1991 to 1 November 1994.
Mr Camp said the junior counsel from Melbourne who was working with Mr Peter Hayes QC was Mr O'Brien and the instructing solicitor was Mr Steven Scott. The witness statements in due course were provided to the Coroner - not at the directions hearing. Mr Camp said the majority of the witnesses were called. Mr Camp said the seriously controversial stuff was all called. Some of the witness statements had been prepared by solicitors from Sydney as part of Mrs Rinehart's team. Mr Camp had not been involved in the preparation of the witness statements. Mr Peter Hayes had provided the chronology to him. The chronology was handed to him by Mr Hayes and was accepted as an exhibit. The Coroner would not let Mr Hayes read it out verbatim. He said "Mr Peter Hayes gave it to me". Mr Hayes knew that he had promised the journalists a copy of it. Legal Practitioners Complaints Committee and Camp [2006] WASAT 355 [126] ‑ [136]
As is apparent from the appellant's response, his conduct in distributing the chronology was the subject of an earlier application to the Full Court. That application sought that the appellant be fined or committed for contempt of court in distributing the chronology to the media. The court (comprised of Wallwork, Steytler and Wheeler JJ, as they then were) dismissed the application: Re Coroner's Court of Western Australia; Ex Parte Porteous (2002) 26 WAR 483. Wheeler J (Wallwork J agreeing) [50] ‑ [57] set out some factual background. Her Honour then set out her findings of fact in respect to two aspects of the appellant's intention when he provided the chronology to the media. I will refer to those findings as the Tribunal stated that it had not made any findings of fact contrary to the Full Court [155]. Wheeler J said:
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 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 kinds, 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].
After reviewing the authorities, Wheeler J concluded [99] that the provision of the chronology to the journalists did not have 'the real and definite tendency, as a matter of practical reality, to interfere with the administration of justice' and therefore it was not a contempt of court.
An issue arose during the hearing of the appeal as to the status of the appellant at the time he distributed the chronology to the media. The respondent's position is that the reference alleged that at the relevant time the appellant was employed by Hancock Prospecting Pty Ltd or Mrs Gina Rinehart. It was also alleged that the appellant's duties included providing legal advice on various matters and dealing with members of the press who were following proceedings in the Coroner's Court. The respondent submitted that the appellant did not dispute these allegations and thus they were never in issue.
The appellant's counsel submitted to me that it was not denied that the appellant was employed by Hancock Prospecting or that he was employed, in part, as a lawyer. However, counsel submitted that the appellant did not have a role in the inquest as a legal practitioner.
The Tribunal appears to have accepted the appellant's evidence that he did not have a role at the inquest as a barrister or instructing solicitor, although he was part of the legal team 'engaged on the basis that he had a very broad overview of the events relating to the corporate structure and so on' [135].
The appellant's affidavit sworn 30 March 2001 was in evidence in the Tribunal. In the affidavit the appellant, a barrister, says that in early 2000 he had been asked by Mrs Gina Rinehart, Mr Hancock's daughter, to attend a meeting to brief a journalist on Mrs Rinehart's 'case' to be put before the Coroner. He said that he received instructions from Mrs Rinehart to the effect that she believed that if journalists were not familiar with the 'detail and background' of the circumstances leading up to the inquest there was a risk that the reporting of it may be unfair from her point of view. The appellant deposed:
I understood from my instructions from Mrs Rinehart that she considered that if journalists were not made familiar fully with the detail and background of the circumstances leading up to the Inquest, there was a risk that the reporting of the Inquest would be unfair from her point of view. I understood from my instructions from her that she required my assistance to field any questions that journalists might have that related to the law or other technical detail [1].

Later in these reasons I will return to this issue of the role played by the appellant.
The appellant gave evidence before the Tribunal. As the Tribunal noted, the appellant denied having read the chronology either at the time he handed it out to the journalists or since. The appellant's counsel told me that the appellant did not challenge Wheeler J's characterisation of the chronology. In this respect, Wheeler J said:
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 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. [52]

The Tribunal's reasons

After the Tribunal summarised the reference and the evidence it summarised the submissions made on behalf of the appellant.
In response to a submission that to find the reference proven required the Tribunal to be satisfied of the same elements which comprised the alleged contempt, [139], [146] and [150], the Tribunal noted that the 'complaint' as opposed to its particulars, did not allege that the appellant had an intent to influence the coronial proceedings. It said that it was only particular 5 which alleged that the appellant 'sought' to influence the proceedings by unfair means. Whereas particular 4 only alleged that the chronology contained serious allegations against Mrs Porteous [151].
The Tribunal then referred to the respondent's reliance on Harrison v Schipp [1999] NSWCA 443 [27] where Mason P said:
… it is no part of a solicitor's proper function in acting for a litigant to organise a media attendance at proceedings in order to inflict political damage upon the opposite party, even political damage flowing as the natural and appropriate consequence of the proceedings taking place in public.
The Tribunal concluded [153]:
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 Tribunal said that it would not be able to find facts which contradicted the facts found by the Full Court; but it said that this was not the case. It also found that the elements involved in contempt were different to the elements of a charge of unprofessional conduct. It did not state the elements of unprofessional conduct.
The Tribunal then referred to an apparent inconsistency between the appellant's evidence to the Tribunal, where he testified that he had not read the witness statements upon which the chronology was based, and the contents of his affidavit, where he deposed that he had read the witness statements. The Tribunal said that there was a 'compelling difference' between the appellant's evidence and his affidavit which gave rise to a 'serious issue concerning [the appellant's] credibility'. Despite its identification of this issue, the Tribunal did not make a finding as to whether the appellant had or had not read the witness statements. Rather, it found that even if the appellant had not read the witness 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 at the inquest. The Tribunal emphasised that it was important that the chronology contained 'most serious allegations against Mrs Porteous; they were terrible accusations'. (The Tribunal's emphasis).
The Tribunal found that it was unnecessary for particular 5 to be proven in order for the respondent to be guilty of unprofessional conduct. It said [160] ‑ [161]:
We agree that it was not established that Mr Camp handed out the chronology in order in 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.

The appellant's submissions

The appellant submitted that a finding of unprofessional conduct, as that notion is explained in Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56, 71 ‑ 72, was not open to the Tribunal once it determined that it could not make findings which contradicted the findings of the Full Court. In oral submissions, it was put that this was particularly so as the appellant was not acting as a legal practitioner at the time he distributed the chronology. Counsel submitted that because the appellant was not acting as a legal practitioner at the time, his culpability must be assessed according to the first limb in Kyle's case only.
The appellant's counsel conceded that it was unnecessary for the respondent to prove malice or an intention to act for an improper purpose but said that a mere error of judgment or negligence in distributing the chronology was insufficient to prove unprofessional conduct. For this reason, he submitted, the Tribunal had a duty to characterise and evaluate the evidence in order to determine the extent of the appellant's culpability.
Further, the appellant submitted that the respondent did not put its case before the Tribunal on the basis that to provide a journalist with a summary of sensational evidence to be given at a future hearing was, without more, unprofessional conduct.
In effect, this was a submission that the Tribunal erred in law in finding that the appellant was guilty of unprofessional conduct on a basis that was not alleged by the respondent or on which he had not had an opportunity to be heard.
The appellant's final submission is related to the previous submission. It is that he was not given sufficient particulars of the facts to enable him to know the specific allegation he had to answer.

The respondent's submissions

The respondent agreed that the statement of the notion of unprofessional conduct in Kyle's case, and also in Re A Practitioner of the Supreme Court [1927] SASR 58 was applicable. It said that neither malice nor improper purpose is an essential element of unprofessional conduct; although either may be part of the factual matrix giving rise to a complaint of unprofessional conduct.
The respondent submitted that the appellant's conduct was alleged to be unprofessional because of the contents of the chronology and the Tribunal so found. The respondent continued to rely on the comments of the New South Wales Court of Appeal in Harrison v Schipp.
It was submitted that the appellant's conduct was aggravated because the Coroner had refused to allow Mrs Rinehart's counsel to read the chronology in open court. The respondent submitted that not only was it open to the Tribunal to find the appellant guilty of unprofessional conduct, it was the only reasonable conclusion open to it.
Next, the respondent submitted that the difficulty for the appellant arose, not because the Tribunal decided the reference on a basis that had not been particularised, but because the appellant chose to raise only one defence to it; namely, that he could not be found guilty of unprofessional conduct because he had been found not guilty of contempt of the Coroner's Court in respect to the same conduct.
The respondent submitted that, as the concept of unprofessional conduct is different from the elements of contempt and as the standard of proof is different in the two types of proceedings, the fact that the appellant was found not guilty of contempt of court was no bar to a finding of unprofessional conduct.
The respondent submitted that once the Tribunal rightly decided that a finding of not guilty of contempt did not provide a defence to the reference, there was no obligation on the Tribunal to further explain its conclusions. It said that the Tribunal was not obliged to set forth the intellectual processes by which it reached its finding.
The respondent's senior counsel submitted that the Tribunal did not have to refer to Kyle or any other authority as long as its reasons demonstrated that it understood what is regarded as unprofessional conduct. Counsel used the analogy that a judge delivering a decision in an action for negligence is not required to refer to the authorities which establish the components of such an action. He submitted that a very experienced Tribunal, as this one was, was not required to set out the basic and very well known legal principles in respect to unprofessional conduct.
As to the role which the appellant played for Hancock Prospecting or Mrs Rinehart, the respondent submitted that the appellant was an in‑house lawyer for Hancock Prospecting and/or Mrs Rinehart. That would explain, it said, why the appellant was not engaged in any litigation. It said that it was clear from the appellant's failure to deny the allegations in the particulars in this respect that the appellant was engaged in professional conduct. For this reason, the respondent said that both limbs of the test in Kyle's case applied to the appellant's conduct. The respondent said that the appellant's conduct fell substantially below the standards set by either limb.
In respect to the issue of intent, the respondent's counsel submitted that although the appellant did not intend to commit a contempt, he undoubtedly intended to hand out the chronology knowing that it contained sensational allegations against Mrs Porteous and others. Counsel submitted that in order to be found guilty of unprofessional conduct, it was unnecessary for the appellant to have been proven to have intended to act unprofessionally.
The respondent submitted that because this is an appeal on a question of law only, it did not matter how perverse the findings of fact were and it did not matter that there was no intellectual process disclosed as to how those facts were arrived at.

Ground 1

The appellant did not submit that either malice or improper purpose is an element of unprofessional conduct. The grievance encapsulated in this ground of appeal is that the distribution of the chronology, without more, was not alleged to be and did not amount to unprofessional conduct; it is submitted that at the most it was an error of judgment. To the extent that this ground may be regarded as raising legal questions as to what are the elements of unprofessional conduct and whether the facts as found could constitute unprofessional conduct I will deal with it when considering ground 2.

Ground 2

The appellant did not submit that the elements of unprofessional conduct are identical to the elements of contempt. However, he did submit that the reference was particularised in a manner which required the respondent to prove all the elements of contempt in order for the reference to be proven. This, he said, was because the reference, in effect, alleged that the appellant's conduct had posed a particular risk to the administration of justice. He said that allegation was contained in particular 5 which alleged that by distributing the chronology the appellant had 'sought to further Mrs Rinehart's interests in connection with the coronial inquest by unfair means, namely by casting aspersions on Rose Porteous'.
Thus, he submitted that once the Tribunal determined that it could not make findings in a contradictory manner to that of the Full Court, he could not be found guilty of unprofessional conduct.
As Wheeler J said, in order to establish that a contempt has been committed, it must be proved beyond reasonable doubt that there has been conduct which posed a particular risk to the administration of justice [64]. Whereas, this court has 'long accepted and applied' the understanding of the notion of unprofessional conduct that is summarised in Kyle's case as being:
… conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence [61].
It is obvious that the elements of contempt are quite different to the notion of unprofessional conduct. The Tribunal rightly found that the appellant's acquittal of contempt did not prevent, as a matter of law, the appellant being found guilty of unprofessional conduct.
Nevertheless, the issue remains as to whether, given the appellant's acquittal of contempt, he could be found guilty of unprofessional conduct as particularised in the reference.
The Tribunal avoided any conflict between its finding and the Full Court's decision by finding that the appellant's conduct amounted to unprofessional conduct without proof of any intention by him to further Mrs Rinehart's interests in connection with the inquest by unfair means. Thus, any factual correlation between the alleged contempt and the alleged unprofessional conduct, as particularised, fell away.
The appellant submitted that the Tribunal was not entitled to find him guilty of unprofessional conduct, absent proof of the allegation in particular 5, because that was the allegation which was made against him and which had to be proven against him.
This is not a case where the Tribunal found proven an allegation which had not been alleged and which the appellant had not had an opportunity to meet. Rather, the respondent proved all of its allegations, bar those in particular 5. The Tribunal found that it was not necessary to prove particular 5 in order for unprofessional conduct to be proven. In my opinion, for the reasons I explain later, the matters alleged and proven were not only capable of sustaining a finding of unprofessional conduct but led inevitably to such a finding. Therefore, the appellant cannot complain that he was not given sufficient particulars to enable him to know the case he had to answer.
The next issue raised for my determination is whether the Tribunal erred in failing to apply the correct test of unprofessional conduct. A related issue is whether the Tribunal erred in failing to adequately disclose what test it applied to the facts.
The parties agreed that the statutory concept of unprofessional conduct was explained in Kyle's case. The parties disagreed over whether it was the first and/or second limb of the explanation which applied to the facts of this case. There are two distinct limbs of the concept. Proof of either limb is sufficient to establish that conduct is unprofessional.
The appellant submitted at the appeal that only the first limb was relevant because he was not acting as a legal practitioner when he distributed the chronology. He said that the Tribunal did not apply this limb because it did not refer to Kyle's case or the terminology used in it. The respondent submitted that both limbs were applicable to the appellant's conduct. The respondent said that it was unnecessary for the Tribunal to refer to Kyle's case or the substance of it.
In Kyle's case, Parker J (Ipp and Steytler JJ agreeing) said that the summary of the notion of unprofessional conduct, stated by him, should not be taken as necessarily an exhaustive or codified statement. Nevertheless, Parker J's words are invariably cited in Western Australian cases which deal with the concept of unprofessional conduct by legal practitioners. Parker J noted that the first limb of the statutory concept includes, but is not confined to, conduct which occurs in the course of legal practice. The second limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'.
I am of the view that the second limb of the summary in Kyle's case was applicable to the appellant's conduct. The evidence is clear that the appellant was part of the legal team which was taking instructions from Mrs Rinehart, either on her own behalf or on behalf of a related company. In the portion of the appellant's affidavit which I earlier quoted, the appellant admitted that he was acting in the course of his legal practice when he took instructions from Mrs Rinehart to field any questions that journalists might have about the law or other technical detail. In my opinion, he had a general retainer from Mrs Rinehart and/or a related company to perform the work referred to in his affidavit. The retainer encompassed the duty to answer journalists' queries about Mrs Rinehart's case. The appellant chose to do this by distributing the chronology containing the information about Mrs Rinehart's case.
In the event that I am wrong in this respect, then the first limb of the test in Kyle's case can be applied to the appellant's conduct.
The questions remain as to whether the Tribunal applied either of the limbs to the conduct of the appellant and whether the Tribunal's reasons are adequate to disclose the concept of unprofessional conduct which it applied?
The State Administrative Tribunal Act 2004 (WA) s 77 states:
(1)The Tribunal is to give its reasons for a final decision.
(2)Reasons that the Tribunal gives for a final decision have to include the Tribunal's findings on material questions of fact, referring to the evidence or other material on which those findings are based.
The Act s 81 states that a failure to comply with this requirement does not affect the validity of a decision.
The Act does not elaborate on the requirement to give reasons in respect to questions of law affecting a decision. Therefore, I assume that the common law principles apply. That is, the reasons must be sufficient to give effect to the right to seek leave to appeal on a question of law. If the basis for the decision is not apparent, the losing party is unable to identify an error of law. It is essential that the reasons adequately disclose the intellectual processes that have resulted in the decision: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430, 441; Garrett v Nicholson (1999) 21 WAR 226, 248 (Owen J); Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273, 282 ‑ 283.
Where a party is unable to appeal on questions of fact, it will not be so important for the Tribunal to disclose its intellectual processes that have led to its findings of fact. However, where, as in this case, there is a right to seek leave to appeal on a question of law, it is necessary for the Tribunal to disclose the legal principles which it has applied to the facts it has found.
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 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.

The Tribunal's reference to Harrison v Schipp did not satisfy its obligation to give adequate reasons. Mason P's comments apply to a case in which a solicitor organises publicity 'in order to inflict political damage on the opposing party'. These were not the facts proven in this case.
Even though the Tribunal erred in this regard, if the Tribunal's decision to find the appellant guilty of unprofessional conduct was the only conclusion open on the evidence, then notwithstanding the inadequacy of its reasons, the decision of the Tribunal ought to be affirmed, Beale 444. Having assessed all the evidence, I conclude that the Tribunal's decision was the only decision open on that evidence.
As I have earlier explained, the second limb of the statement of unprofessional conduct, summarised in Kyle's case, applied to the appellant's behaviour. The first step in applying the second limb is to decide what standard was expected of legal practitioners, at the time, in respect to their dealings with the media? At the time, the Professional Conduct Rules of the Law Society of Western Australia r 4.5, as quoted in Quigley (A Practitioner) v The Legal Practitioners Complaints Committee [2003] WASCA 228 [16], relevantly provided:
A practitioner may participate in:
…
(3)any written or printed publication
Provided that where the subject matter or part of it concerns a matter in which the practitioner is or has been professionally engaged:
(a)the practitioner shall in all cases give an objective account of the matter in a restrained manner consistent with the maintenance of the good reputation and standing of the legal profession; and
…
The appellant made the point that when the matter was in the Tribunal the respondent did not rely upon this rule. Neither was the rule a legislative prescription or standard of conduct. However, it was a guide as to what was regarded by members of the profession of good repute and competence to be appropriate behaviour at that time: Quigley' case [17].
Additional assistance as to the appropriate standard can be gained by a consideration of the High Court's statements in Clyne v New South Wales Bar Association (1960) 104 CLR 186, 200 about the privileges of barristers in respect to making what would otherwise be regarded as defamatory statements in court. After referring to the privilege their Honours continued:
The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned. The privilege may be abused if damaging irrelevant matter is introduced into a proceeding. It is grossly abused if counsel, in opening a case, makes statements which may have ruinous consequences to the person attacked, and which he cannot substantiate or justify by evidence.
It is apparent from that statement that even the privilege to make sensational and what could be extremely damaging comments about another person in court must not be abused because of the 'ruinous consequences' that can be done to others. 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.
The second step is to decide whether the appellant's conduct fell short of this standard? The appellant knew that at least one witness upon whom Mrs Rinehart was going to rely at the inquest and whose evidence was summarised in the chronology made sensational accusations akin, in the appellant's view, to conspiracy to murder or attempt to kill. The appellant was also of the view that most of the proposed evidence which was summarised in the chronology was 'banal nonsense'. Any legal practitioner should be well aware that it would be a breach of the standard required of a practitioner to facilitate the unbalanced publication of such allegations outside of court.
Further, the appellant does not appear to have sought the advice of senior counsel before releasing the chronology. Neither did he seek or obtain any assurance from those to whom he gave the chronology that they would not publish it further. Astoundingly, the appellant did not even read the chronology to ensure that it was an accurate representation of the evidence to be produced at the inquest. This failure to read the document does not alleviate the appellant's liability. Rather, it is further proof of his unprofessional conduct.
It does not matter that the allegations were only provided to a handful of journalists; it was still provision of material which was likely to grossly impair the reputation of any person against whom the allegations were made. In any event, as Wheeler J found, the wider publication which in fact resulted was a very likely consequence of the manner and circumstances in which the chronology was provided to a handful of journalists.
The Tribunal made the point that the publication occurred prior to the inquest. The relevance of that fact was that the appellant's conduct may have been justified if the chronology had been published after the evidence which supported the allegations had been heard and tested and if the chronology reflected evidence which had been given in open court.
Wheeler J found that some of the allegations in the chronology had been in the public arena prior to the publication of the chronology. There does not seem to have been any proof before the Tribunal of the exact nature or the extent of the prior publication. However, even conceding that such publication may have taken place, it does not mitigate the appellant's conduct. The chronology was bound to add considerable fuel to any fire started by previously published allegations. This was, in part, because the distribution of the chronology by the appellant, a legal practitioner, gave the chronology a credible status. It also purported to summarise direct and admissible material that would be the subject of evidence at the inquest.
Standards of professional conduct may require a legal practitioner to make allegations of the kind contained in the chronology in court if he or she has reason to believe that such allegations are able to be substantiated or justified by credible evidence. Similarly, a legal practitioner may be required to make such allegations to the proper authorities; again where there are good reasons to believe that the allegations are credible. Further still, a legal practitioner is entitled to give to the media a balanced and restrained account of a matter in which they have been engaged, when authorised to do so by his or her client. 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'.
I conclude that the Tribunal's decision to find the appellant guilty of unprofessional conduct was the only finding open on the evidence.
I now turn to consider the application of the first limb of the statement in Kyle's case. Whether or not the appellant was acting in the course of his legal practice, the first limb of the statutory notion of unprofessional conduct from Kyle's case is also applicable. For the given reasons above, I am of the view that the appellant's conduct would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence.
'Dishonourable' and 'disgraceful' are ordinary English words and bear their standard dictionary meanings. Dishonourable means disgraceful, unprincipled or base. Disgraceful means shameful, dishonourable or disreputable. The publication of the allegations in the circumstances to which I have referred was unprincipled. This is because distributing the chronology at the time and in the manner the appellant did so, was grossly unfair to those against whom the allegations were made.
If I am wrong about the appellant acting as a legal practitioner at the time he distributed the chronology, his failure to make it clear to the journalists to whom he gave the chronology that he was not acting as a legal practitioner is further evidence of his unprofessional conduct. If the appellant was not acting as a legal practitioner at the time he distributed the chronology, then it clearly behoved him, as an honourable practitioner, to make it clear to the journalists to whom he was distributing the chronology that he was acting as a media spokesman and not in any legal capacity. The distribution of the chronology by the appellant in circumstances which were likely to lead a journalist to believe that the appellant was acting as a legal practitioner would be likely to give the chronology a status which it did not deserve.

Conclusion

Whilst I am of the view that the Tribunal erred in law in not providing adequate reasons for its decision, this error did not lead to a decision that was wrong in law or fact. For these reasons I dismiss the appeal.

[2007] WASC 309

19 December 2007