Chapple v Workpac Pty Ltd
[2024] FedCFamC2G 1364
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chapple v Workpac Pty Ltd [2024] FedCFamC2G 1364
File number(s): PEG 215 of 2022 Judgment of: JUDGE LUCEV Date of judgment: 11 December 2024 Catchwords: PRACTICE AND PROCEDURE – Application in a proceeding for lawyer for second respondent to be removed as lawyer on the record – relevant legal principles – applicant formerly deployed to mining sites by her employer – termination of applicant’s employment allegedly related, in part, to raising of sexual assault allegations concerning other employees on a mining site - alleged sexual assault of current employee of a contractor reported at a mining site several months after termination of the applicant’s employment – applicant in correspondence with executives of miner and her former employer’s solicitors in relation to alleged sexual assault of current employee – whether solicitor acting as mere mouthpiece for former employer – whether solicitor misrepresented circumstances in relation to sexual assault – inherent jurisdiction of a court over its officers and processes – whether proper administration of justice requires that solicitor for former employer be restrained from acting for former employer
INDUSTRIAL LAW – Alleged contravention of general protections – alleged adverse action – termination of applicant’s employment
Legislation: Fair Work Act 2009 (Cth) s 570
Legal Profession Uniform Law Application Act 2022 (WA)
Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 (WA) rr 3, 17, 22, 34
Cases cited: Belgravia Nominees Pty Ltd v Lowe Pty Ltd (No 5) [2016] WASC 263
Charisteas v Charisteas [2022] FedCFamC1A 160; (2022) 372 FLR 412
Dealer Support Services v Motor Trades Association of Australia [2014] FCA 1065; (2014) 228 FCR 252; (2014) 318 ALR 507; (2014) 108 IPR 26
Grimwade v Meagher [1995] 1 VR 446
Holborow v MacDonald Rudder [2002] WASC 265
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475
Osferatu v Osferatu [2015] FamCAFC 177; (2015) 301 FLR 295; (2015) 53 FamLR 433; [2015] FLC 93-666
Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659
Division: Division 2 General Federal Law Number of paragraphs: 26 Date of last submission/s: 9 August 2024 Date of hearing: 9 August 2024 Place: Perth Applicant: In person Solicitor for the First Respondent: Excused from attending Counsel for the Second Respondent: Mr C Beetham Solicitor for the Second Respondent: Hall and Wilcox Lawyers ORDERS
PEG 215 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: AMY CHAPPLE
Applicant
AND: WORKPAC PTY LTD ACN 111 076 012
First Respondent
PILBARA IRON COMPANY (SERVICES) PTY LTD (ACN 107 210 248)
Second Respondent
ORDER MADE BY:
JUDGE LUCEV
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.That part of the Applicant’s Application in a Proceeding filed 6 May 2024 seeking that Ms Rosemary Roach, a solicitor for the Second Respondent, be stood aside from further participation in these proceedings, being proposed order 10 in that Application in a Proceeding, be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE LUCEV
“MERE MOUTHPIECE”
Of Sir Edward Carson, one of the greatest advocates ever to grace the Irish and English Bars, it was said that he “would not pander to the desire of solicitors to see all aspects of their cases argued regardless of their merits and with intemperate energy”: J Hostettler, Sir Edward Carson. A Dream Too Far (Chichester: Barry Rose Law Publishers, 1997), p 18. Sir Edward was no “mere mouthpiece”, an allegation made, amongst others, in these proceedings, albeit against a solicitor.
THE STAND ASIDE APPLICATION
This part of the proceedings concerns that part – proposed order 10 - of an Application in a Proceeding filed 6 May 2024 by the applicant, Amy Chapple (“Ms Chapple”) seeking that Ms Rosemary Roach (“Ms Roach”), a solicitor for the second respondent, Pilbara Iron Company (Services) Pty Ltd (“Pilbara Iron”) be stood aside from further participation in these proceedings (“Stand Aside Application”). The Stand Aside Application is in the following terms:
10.The Second Respondent’s Counsel, Ms Rosemary Roach (Partner, Hall & Wilcox) is stood aside as counsel and participation in these proceedings.
It should be noted that while Ms Roach is referred to as “Counsel” throughout Ms Chapple’s filed documents, Ms Roach is the solicitor on the record for Pilbara Iron in these proceedings.
The basic background facts necessary to an understanding of the Stand Aside Application are as follows:
(a)on 7 November 2022 Ms Chapple filed an application and claim alleging that adverse action was taken against her by the respondents, and relevantly including issues related to Ms chapple’s reporting of a sexual assault on another employee, in contravention of the general protections provisions of the Fair Work Act 2009 (Cth) (“FW Act”) (“GP Claim”); and
(b)the GP Claim relates to the period that Ms Chapple was employed by the first respondent, Workpac Pty Ltd (“Workpac”) and deployed to Pilbara Iron, namely 2 August 2021 to 16 August 2022. Responses to the GP Claim were filed by Workpac and Pilbara Iron on 16 December 2022 and 14 February 2023 respectively;
(c)on 22 June 2023 Rio Tinto Limited (“Rio Tinto”), the parent company of Pilbara Iron, issued a notice entitled “CMOne Supplier Brief” to all suppliers in Western Australia, which advised that a sexual assault had been reported at “a Rio Tinto site”. The CMOne Supplier Brief reported the fact of an incident, but did not identify the location of or detail about the incident, and stated that Pilbara Iron would not be providing any further information about it without the consent of the impacted person. A redacted copy of the original CMOne Supplier Brief is attached as Annexure A (pp 5-7) to the affidavit of Ms Holly Gretton affirmed on 5 August 2024 (“Gretton Affidavit”). The Court notes that the version of the CMOne Supplier Brief attached as annexures AC-07 (p 36) and AC-14 (p 113) to Ms Chapple’s affidavit affirmed on 16 July 2024 (“Chapple July 2024 Affidavit”) has been amended, by parties unknown to Pilbara Iron, to add “Rape Incident (… Village, …)” as a header (“Altered CMOne Supplier Brief”), and that that header is not in the original document issued by Pilbara Iron (the Court has deleted both the name and location of the “Village” in these Reasons for Judgment, and will refer to the place where the sexual assault took place as the “Village”);
(d)on 12 July 2023 Ms Chapple emailed several Pilbara Iron employees (“12 July 2023 Chapple Email”). In the 12 July 2023 Chapple Email, Ms Chapple said that “[t]his week” she had heard there had been “another Rio Tinto rape, this time at …Village”: Chapple July 2024 Affidavit, annexure AC-08 at pp 38-39;
(e)on 25 July 2023 Ms Chapple sent a letter to the lawyers acting for Workpac and Pilbara Iron in these proceedings (“25 July 2023 Chapple Letter”). In the 25 July 2023 Chapple Letter Ms Chapple referred to the 12 July Chapple 2023 Email and again referred to “another rape incident, this time at … Village”: Chapple July 2024 Affidavit, annexure AC-14 at pp 88-92; particularly p 90-91;
(f)at 2:40pm on 14 August 2023 Ms Roach sent a letter to Ms Chapple (“14 August 2023 Roach Letter”) in which Ms Roach referred to the 25 July 2023 Chapple Letter, and to the 12 July 2023 Chapple Email. Ms Roach:
(i)advised that Rio Tinto was “not aware of any incident of this nature at … Village”;
(ii)invited Ms Chapple to provide any information she could in relation to the incident;
(iii)noted the sensitivity of the matter; and
(iv)provided Ms Chapple with:
(A)a number of different options to provide information if she wished to do so; and
(B)the contact telephone number for Rio Tinto’s confidential employee assistance provider;
(g)on 14 August 2023 Ms Chapple sent a letter to the lawyers for Workpac and Pilbara Iron (“14 August 2023 First Chapple Letter”), in which Ms Chapple made several allegations about both Pilbara Iron and the firm of solicitors of which Ms Roach is a partner, to the effect that Pilbara Iron and the solicitors would “provide excuses by way of “plausible deniability””: Chapple July 2024 Affidavit, annexure AC-14 at p93.;
(h)later on 14 August 2023 Ms Chapple sent another letter to the lawyers for Workpac and Pilbara Iron (“14 August 2023 Second Chapple Letter”), both to provide an update to the 14 August 2023 First Chapple Letter, and to respond to the 14 August 2023 Roach Letter, which Ms Chapple had not seen at the time of sending the 14 August 2023 First Chapple Letter: Chapple July 2024 Affidavit, annexure AC-14 at pp 111-117. In the 14 August 2023 Second Letter Ms Chapple enclosed the Altered CMOne Supplier Brief to which the words “Rape Incident (…Village …)” had been added: annexure AC-14 at p 113;
(i)on 21 August 2023 Ms Roach emailed Ms Chapple (“21 August 2023 Roach Email”). and confirmed receipt of the 14 August 2023 First and Second Chapple Letters. Ms Roach confirmed that Rio Tinto was aware of the incident referred to in the CMOne Supplier Brief. Ms Roach explained that, based on the information previously provided by Ms Chapple in the 12 July 2023 Chapple Email and the 25 July 2023 Chapple Letter, Rio Tinto was not aware that Ms Chapple was referring to the specific incident referred to in the CMOne Supplier Brief. Ms Roach told Ms Chapple that Rio Tinto had taken steps to ensure the impacted person receives care and support: Chapple July 2024 Affidavit, annexure AC-14 at p 108; and
(j)on 21 August 2023 Ms Chapple emailed Ms Roach (“21 August 2023 Chapple Email”) posing a number of questions: Chapple July 2024 Affidavit at p 118. Ms Chapple indicated she would add her questions to “the RFI Tracker”: Chapple July 2024 Affidavit, annexure AC-14 at pp 100-106; on 5 September 2023 Ms Roach responded: Chapple July 2024 Affidavit, annexure AC-14 at p 120, as follows:
Dear Ms Chapple
Thank you for your further email.
We confirm that Rio Tinto is only aware of the one incident in the period you refer to, being the incident referred to in the correspondence from Matt Holcz and Richard Cohen which is attached to your letter dated 14 August 2023. Rio Tinto is unable to provide any further details in relation to this incident out of respect for the impacted person and due to confidentiality obligations.
Rio Tinto has requested that we remind you that you can access Rio Tinto's confidential employee assistance provider BSS, free of charge, on … [number omitted]
Yours sincerely
Rosemary Roach │Partner
THE EVIDENCE
Chapple May 2024 Affidavit
On 6 May 2024 Ms Chapple filed an affidavit (“Chapple May 2024 Affidavit”), in support of the Application in a Proceeding. At [55]-[85] of the Chapple May 2024 Affidavit Ms Chapple details the basis for the Stand Aside Application. These paragraphs are an alleged timeline of the relevant events, and set out correspondence between Ms Chapple and Ms Roach, and also make allegations that Ms Roach knowingly made false representations about Ms Roach and Pilbara Iron’s knowledge of an alleged incident of sexual assault. The most relevant paragraphs of the Chapple May 2024 Affidavit for the purposes of the Stand Aside Application are as follows (reproduced unamended, except where otherwise indicated):
61.On Wednesday 12th July 2023 (9:54pm) I wrote an email to Rio Tinto executives and senior leaders confirming another rape had occurred (titled “Another rape”).
…
66.On Friday 14th July 2023 2:11 pm MKI Legal emailed me regarding my “Another rape” email sent to Rio Tinto. MKI Legal confirmed “The Second Respondent’s representative also outlined that Rio has made inquiries following your email about the …incident, but they have not been able to get details regarding that incident.” The email also confirmed “In relation to your email which was sent to Rio Tinto's employees, the Second Respondent representative has advised us that due to concerns about your well-being given to the contents of that email and the previous concerns about your fitness to participate in the adjourned mediation.”
…
70.On Monday 14th August 2023, I attended the Driving Respect Mining Summit from 9am to 4pm. Former colleagues from Rio Tinto that I had worked with attended. Some of these colleagues had been copied into the “Another Rape” email I had sent to Rio Tinto on the 12th July.
71.At 2:40pm the Second Respondent's counsel (Rosemary Roach) emailed a letter confirming their client "Rio Tinto is not aware of any incident of this nature at … Village."
72.At 9:07pm I emailed a letter to Second Respondent’s counsel (Rosemary Roach) and the First Respondent’s counsel (Toby Walthall). The letter contained details about the rape and previous correspondence.
73.After I sent this email I then did a quick check of unread emails from that day. It was between 9:07pm and 10:25pm that I read Rosemary Roach’s letter sent at 2:40pm.
74.At 10:25pm I emailed a second updated letter to the Respondent’s counsels and included a copy of Rio Tinto’s notification of the rape (which was dated 22nd June) which contradicted them not being aware of the rape incident at …Village.
75.On Monday 21st August 2023 1:53pm Rosemary Roach emailed, confirming their client “Rio Tinto are aware of the incident” and “However, based on the information you previously provided, Rio Tinto was not aware that you were referring to this specific incident.”
…
79.On 5th September 2023 1:52pm Rosemary Roach emailed in response, confirming “We confirm that Rio Tinto is only aware of the one incident in the period you refer to, being the incident referred to in the correspondence from Matt Holcz and Richard Cohen which is attached to your letter dated 14 August 2023.”
Legal Services Complaint Board/Directions Hearing
80.On 22nd November 2023, I emailed a letter to Mr Gary D Cobby (SC), Chair of the Legal Services Complaint Board. This letter was a request to investigate the conduct of Rosemary Roach with respect to:
Nature of the Complaint: Professional misconduct
Legal Grounds for Complaint: Legal Profession Uniform Law Application Act 2022 (WA)
Section 34.1.1
Section 34.1.3
The Uniform Law requirement for “the role of counsel is not to act as the mere
mouthpiece of their clients.”
Attached and marked “AC-03” is a copy of this document.
81.On 24th November 2023, I attended a directions hearing for my General Protections application. In this hearing I raised to Judge Lucev the matters pertaining to Rosemary Roach and the Second Respondent in relation to the rape and subsequent communications about this. This transcript has been referenced previously “AC-02”
82. During the hearing, His Honour Judge Lucev asked me:
HIS HONOUR: “With respect to Ms Roach, if you seek to have Ms Roach removed as counsel in these proceedings, the court would require you to make an application in a proceeding, supported by affidavits setting out the basis for that and the court would then deal with that as an interlocutory matter at some stage along the way.”
(The Court notes that MKI Legal – referred to at [66] of he Chapple May 2024 Affidavit - no longer act for Ms Chapple, they having filed a Notice of Withdrawal of Lawyer on 24 July 2023.)
Chapple’s July 2024 Affidavit
The following paragraphs of the Chapple July 2024 Affidavit are relevant to the Stand Aside Application (reproduced unamended, except where indicated):
11.This affidavit relates to concerns regarding the professional conduct and legal duties and obligations of the Second Respondent's counsel (Rosemary Roach, Hall & Willcox) in denying that a rape had occurred during the course of my General Protection case proceedings.
12.It also relates to the conduct of their client the Respondent, Pilbara Iron Services (“Rio Tinto”) specifically company executive officers and also those involved in liaising with counsel.
13.The denial of a rape, subsequent confirmation it had occurred, and at the location as the applicant had confirmed (albeit not formally retracted) resulted in significant impacts (mentally and financially) to the Applicant.
14.Both the Respondent and counsel had been aware the Applicant had been suffering from Post Traumatic Stress Disorder, medically diagnosed and caused by the Applicants treatment during her deployment at Rio Tinto by her employer WorkPac and the circumstances of her departure from this employment (detailed in these General Protections proceedings).
15.As I result of these denials and conduct, I have concerns to the veracity and accuracy of any future information supplied by Counsel and Rio Tinto to the Applicant, the Court and in future counsel prepared affidavits for witnesses and any communications issued.
…
117.When proof of the second rape incident was provided (by me, and through sheer coincidence), and sent to counsel and the Second Respondent, this was even more detrimental to my health.
118.Eventually, this denial was to the effect “retracted” on 5th September, when Rosemary Roach confirmed a rape “incident” had occurred at … village and as per the Rio Tinto communication issued to contractors on the 22nd June 2023.
119.The continued “side-stepping” by counsel in further responses received only served further to exacerbate my symptoms. I had for a period from 12th July until the 5th September been “gaslighted” by very definition, and without so much as an apology or an acknowledgment.
120.Both Rio Tinto and their counsel had received a copy of the Another Rape email and yet still denied a rape had occurred.
At [142]-[163] of the Chapple July 2024 Affidavit Ms Chapple restated the timeline of events documented at [60]-[79] of the Chapple May 2024 Affidavit.
Ms Gretton’s Affidavit
In the Gretton Affidavit Ms Gretton relevantly says as follows (reproduced unamended, except where indicated):
3.I refer to the Applicant’s affidavit dated 16 July 2024 and in particular, annexures AC-07 (p36) and AC-14 (p113) being a version of the CMOne Supplier Brief.
4.I was separately provided a copy of the CMOne Supplier Brief by Mr Tom Klaassen, Employee Relations Specialist at Rio Tinto Limited, the parent company of the Second Respondent, by email on 2 August 2024. I believe this to be a true and complete copy of the CMOne Supplier Brief.
5.I am instructed that the version of the CMOne Supplier Brief provided by the Applicant and referred to at paragraph 3 above has been amended, by parties unknown to the Second Respondent, to add “Rape Incident (…Village, …)” as a header.
6.The header is not in the original document issued by Rio Tinto Limited. A copy of the original CMOne Supplier Brief as placed on the Rio Tinto intranet site, is annexed to this affidavit and marked Annexure A. The names and photographs of individuals employed by third party providers have been redacted.
LEGISLATION
Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015
On 22 November 2023 Ms Chapple complained to the Legal Practice Board of Western Australia in relation to alleged false representations made by Ms Roach in relation to the sexual assault incident: AC-03 of the Chapple May 2024 Affidavit (“LPB Complaint”). As the legal basis for the LPB Complaint Ms Chapple refers, in the LPB Complaint, to s 34.1.1 and 34.1.3 of the Legal Profession Uniform Law Application Act 2022 (WA). The correct reference is to r 34.1 and 34.3 of the Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 (“LP Solicitor’s Conduct Rules”). Insofar as they might be relevant to the Stand Aside Application the LP Solicitor’s Conduct Rules at r 34.1 relevantly provides that:
34. Dealing with other persons
34.1 A solicitor must not in any action or communication associated with representing a client —
34.1.1 make any statement to another person —
(i)which grossly exceeds the legitimate assertion of the rights or entitlements of the solicitor’s client, and
(ii) which misleads or intimidates the other person,
…
34.1.3use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frustrate another person.
The following rules from the LP Solicitor’s Conduct Rules which are not specifically identified by Ms Chapple, but which may be relevant to the Stand Aside Application are rr 3.1, 17.1 and 22.1 and 22.2 which are as follows:
3. Paramount duty to the court and the administration of justice
3.1A solicitor’s duty to the court and the administration of justice is paramount and prevails to the extent of inconsistency with any other duty.
17. Independence – avoidance of person bias
17.1A solicitor representing a client in a matter that is before the court must not act as the mere mouthpiece of the client or of the instructing solicitor (if any) and must exercise the forensic judgments called for during the case independently, after the appropriate consideration of the client’s and the instructing solicitor’s instructions where applicable.
22. Communication with opponents
22.1A solicitor must not knowingly make a false or misleading statement to an opponent in relation to the case (including its compromise).
22.2A solicitor must take all necessary steps to correct any false or misleading statement made by the solicitor to an opponent as soon as possible after the solicitor becomes aware that the statement was false or misleading.
SUBMISSIONS
Ms Chapple’s submissions
Notwithstanding the Court’s orders of 21 June 2024 Ms Chapple did not file written submissions in relation to the Stand Aside Application. Ms Chapple did however make oral submissions at hearing of the Stand Aside Application (see Transcript, 9 August 2024, pp 3-9 and 15), which can be summarised as follows:
(a)it is a privilege for lawyers to become officers of the court and to have a detailed understanding of the law and to know how to apply it in the interests of their primary duty to the court, their clients, their colleagues and their opponents and to the public in general, as stated in the LP Uniform Law;
(b)where there is a conflict with the duty owed to a court a lawyer must disregard their client’s instructions;
(c)that the GP Claim concerns a complaint in relation to Ms Chapple’s need to report matters, in her work capacity, including sexual assaults in the workplace, and that she subsequently lost her job with Workpac as a consequence of communicating a 2022 sexual assault to senior executives at Rio Tinto;
(d)that on 10 June 2023 she found out that there had been a sexual assault at the Village, and that on 12 July 2023 she wrote to Rio Tinto executives about this, and that it was referred to in a meeting the following day;
(e)that the sexual assault was a workplace offence reportable to WorkSafe, and it had not been reported by Rio Tinto, contrary to what Ms Chapple said, at the time, was a legal obligation;
(f)in relation to the sexual assault reported to senior executives at Rio Tinto on 12 July 2023 (after Ms Chapple’s employment was terminated) the correspondence between her and Ms Roach led Ms Chapple to be concerned about the veracity of any future information that might be supplied to her by Ms Roach in relation to these proceedings; and
(g)because the sexual assault related to the same type of issue as that which caused her departure from Rio Tinto and Workpac, and because Ms Roach and Workpac knew that Ms Chapple had PTSD and depression as a result of trying to raise these issues, she believed that Workpac and Rio Tinto did not follow the necessary procedures under the FW Act.
Pilbara Iron’s submissions
Pilbara Iron’s case was put concisely in written submissions filed on 5 August 2024 and in oral submission at hearing (see Transcript, 9 August 2024, pp 9-15), as follows:
(a)the application is unique. Ms Chapple asks the Court to restrain Ms Roach from acting for Pilbara Iron because, it is said, Ms Roach “den[ied] [to Ms Chapple] that a rape had occurred during the course of” these proceedings: Chapple July 2024 Affidavit at [11];
(b)that premise, which is not accepted, does not assert any of the usual grounds that would support an application of this type. It does not assert that Ms Roach has previously acted for Ms Chapple. It does not assert that Ms Roach is or may be at risk of misusing confidential information imparted to her in the course of a client-solicitor relationship. It does not assert that Ms Roach is in breach of or may breach her duty of loyalty to Pilbara Iron or her duties to the Court;
(c)the Court should be slow to deprive a litigant of its preferred solicitor. A clear case that some duty is imperilled must be shown. Having regard to the factual issues giving rise to the application, and the premise on which the application is based, no case is demonstrated and the application should be dismissed;
(d)before the Court would restrain a litigant from being represented by its solicitor of choice, the Court must be positively satisfied that a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor be prevented from acting. The jurisdiction is an “exceptional one” that is “to be exercised with appropriate caution”, and with due weight to be given “to the public interest in the client not being deprived of the solicitor of its choice”: Dealer Support Services v Motor Trades Association of Australia [2014] FCA 1065; (2014) 228 FCR 252; (2014) 318 ALR 507; (2014) 108 IPR 26 (“Dealer Support Services”) at [94]-[97] per Beach J;
(e)if an opposing party asserts that a legal practitioner should be restrained from acting for their opponent it is necessary for a clear case to be made that the practitioner concerned is in a position where the practitioner is fixed with an interest which conflicts with their duty to the court and that that interest is one of such a nature that the solicitor may fail in their overriding duty to the court: Belgravia Nominees Pty Ltd v Lowe Pty Ltd (No 5) [2016] WASC 263 at [37] per Tottle J, citing Holborow v MacDonald Rudder [2002] WASC 265 at [31] per EM Heenan J;
(f)Ms Chapple has not identified any interest with which Ms Roach is fixed which conflicts with any duty she owes, nor any conduct which is improper and which might be seen as being contrary to the proper administration of justice;
(g)the alleged incident at the Village which is the subject of Ms Chapple’s correspondence with Ms Roach and the basis on which Ms Chapple brings the application, post-dates, and is not relevant to, the GP Claim. Nothing Ms Roach wrote about the incident in her correspondence with Ms Chapple has any bearing on these proceedings;
(h)as to the correspondence itself, Ms Roach engaged with Ms Chapple in a polite, professional, sensitive and responsive manner. Nothing in Ms Roach’s correspondence impugns her independence or raises any question about her compliance with her professional duties. Nothing in Ms Roach’s correspondence places her in a position of conflict of interest, nor conflict of duty and interest, nor conflict of duty to the Court and duty to the client. Nothing in the correspondence raises any question about Ms Roach’s fidelity to her duties to the Court or to her client.
(i)the CMOne Supplier Brief as originally published by Rio Tinto did not contain the header “Another Rape …Village…”;
(j)the CMOne Supplier Brief did not refer to the incident as a “rape” but as a “sexual assault”, and it is reasonable to infer, when Ms Chapple writes of “Another rape” in her correspondence, that she is referring to a separate (another) incident;
(k)when Ms Roach wrote in the 14 August 2023 Roach Letter that Rio Tinto “is not aware of any incident of this nature” she was referring to what appeared to be a second sexual assault, or “Another rape”; and
(l)when Ms Roach came to understand that there was only incident, she wrote to Ms Chapple acknowledging this fact, and Pilbara Iron’s knowledge of it.
CONSIDERATION
The Stand Aside Application
The application to have Ms Roach stand aside appears to be primarily based on alleged misrepresentations made by her to Ms Chapple. Ms Chapple alleges that these misrepresentations are in breach of Ms Roach’s overriding duty to the Court, and that as a result Ms Roach does not possess the necessary independence required of an officer of the Court to provide truthful information and to not act as a mere mouthpiece for Pilbara Iron. Thus the primary issue to be determined is whether a fair minded and reasonably informed member of the public might conclude that the alleged misrepresentations by Ms Roach to Ms Chapple, if established, are serious enough that the administration of justice requires that Ms Roach be restrained from continuing to act in these proceedings.
Relevant legal principles
In Osferatu v Osferatu [2015] FamCAFC 177; (2015) 301 FLR 295; (2015) 53 FamLR 433; [2015] FLC 93-666 at [20] per Finn, Ainslie-Wallace and Aldridge JJ the Full Court of the Family Court set out three established categories as a basis upon which a court has jurisdiction to restrain legal representatives from acting in a matter, as follows:
(a)breach of confidence;
(b)breach of fiduciary duty; and
(c)the inherent jurisdiction of a court over its officers and to control its process.
The first and second categories are generally confined to circumstances where a lawyer or law firm is acting against a former client, as they are concerned with the protection and use of confidential information, and the potential to breach fiduciary duties and duties of loyalty. Those categories do not appear to be relevant to this application.
The third category is broader and is derived from the Court’s inherent jurisdiction to control the conduct of solicitors and counsel as officers of the Court. The nature of this category and the relevant test and considerations for it was summarised in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561 (“Kallinicos”) at [76] per Brereton J as follows:
76. The foregoing authorities establish the following:
…
•However, the court always has inherent jurisdiction to restrain solicitors from acting in a particular case, as an incident of its inherent jurisdiction over its officers and to control its process in aid of the administration of justice ….
•The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice ….
•The jurisdiction is to be regarded as exceptional and is to be exercised with caution ….
•Due weight should be given to the public interest in a litigant not being deprived of the lawyer of his or her choice without due cause ….
•The timing of the application may be relevant, in that the cost, inconvenience or impracticality of requiring lawyers to cease to act may provide a reason for refusing to grant relief ….
While this formulation of the test and considerations required in the third category in Kallinicos has been widely cited and is largely uncontroversial, there is one relevant aspect where the authorities differ. With regards to the test of the fair minded, reasonably informed member of the public, Kallinicos follows the formulation of that test found in Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J. Specifically, that the fair minded, reasonably informed member of the public “would” conclude that the proper administration of justice required a lawyer to be restrained. This formulation was approved by the Federal Court of Australia in Dealer Support Services at [37] per Beach J.
Other authorities, however, have formulated the test as being whether a fair minded, reasonably informed member of the public “might” conclude that the proper administration of justice required a lawyer to be restrained. This was the way the test was expressed by the Federal Court in Mumbin v Northern Territory of Australia (No 1) [2020] FCA 475 (“Mumbin No 1”) at [39] per Griffiths J and the Full Court of the Federal Court of Australia in Porter v Dyer [2022] FCAFC 116; (2022) 402 ALR 659 (“Porter”) at [113] per Lee J. In Charisteas v Charisteas [2022] FedCFamC1A 160; (2022) 372 FLR 412 (“Charisteas”) at [34], [36] and [37] per Alstergren CJ, McClelland DCJ and Aldridge J the Full Court of the Federal Circuit and Family Court of Australia (Division 1) commented on this discrepancy as follows:
[34]In that respect, it was contended at paragraph 24 of the wife’s Summary of Argument that the relevant test to apply in considering whether to restrain lawyers from acting in order to protect the integrity of the judicial process is found in Kallinicos v Hunt (2005) 64 NSWLR 561; [2005] NSWSC 1181 (Kallinicos v Hunt) at [76], where Brereton J said:
76. …
•The test to be applied in this inherent jurisdiction is whether a fair-minded, reasonably informed member of the public would conclude that the proper administration of justice requires that a legal practitioner should be prevented from acting, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
(Emphasis added) (Citations omitted)
…
Disposition
[36]Regrettably, it appears that the primary judge was led into error by the parties in these proceedings, who contended that the relevant principle to be applied in determining whether a legal practitioner should be prevented from acting for a party, in the interests of the protection of the integrity of the judicial process, is the principle set out above.
[37]The correct test that should have been applied by the primary judge, in determining whether a legal practitioner should be restrained from acting on behalf of a party, is that which is adumbrated by the Full Court of the Federal Court of Australia (Besanko, Lee and Abraham JJ) in Porter v Dyer (2022) 402 ALR 659; [2022] FCAFC 116 who applied, with approval, the following statement of principle by Griffiths J in Mumbin v Northern Territory (No 1) [2020] FCA 475:
39.The relevant principles which guide the exercise of the Court’s separate discretion are broadly as follows:
(a)The Court has an inherent jurisdiction to ensure the due administration of justice, to protect the integrity of the judicial process and to restrain legal practitioners from acting in a particular case as part of its supervisory jurisdiction (see, for example, Grimwade v Meagher [1995] 1 VR 446 at 452 per Mandie J and Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252; 318 ALR 507; 108 IPR 26; [2014] FCA 1065 at [37] per Beach J).
(b)The test to be applied is whether a fair-minded, reasonably informed member of the public might conclude that the proper administration of justice requires that a solicitor be prevented from acting in the interests of the protection of the integrity of the judicial process and the appearance of justice (I prefer this formulation of the principle, as opposed to the use of the term “would”: see Timbercorp at [62] per Anderson J and the cases cited therein, as opposed to the different formulation adopted by Beach J in Dealer Support Services at [94], upon which the Jawoyn Claim applicant relied, but I would regard even that higher standard to have been met in the circumstances here).
...
(Emphasis added)
This “would”/ “might” dichotomy was also explored in Porter at [114] per Lee J:
The primary judge also correctly identified that there was a difference between the expression of the test by Brereton J as being whether the hypothetical referee would conclude that the proper administration of justice required that lawyer be prevented from acting, and the above formulation of the test by Griffiths J as whether the referee might so conclude. The primary judge observed that the latter might formulation conforms or coheres more closely with the test for apprehended bias, but as Ward CJ in Eq noted in Michael Smith Real Estate Pty Ltd (t/as Raine & Horne Marrickville) v Chmait [2021] NSWSC 1160 (at [63]–[64]), the weight of authority favours the former would formulation adopted not only by Brereton J but also by Nettle J in Sent v John Fairfax Publication Pty Ltd [2002] VSC 429 (at [113]), McDougall J in El-Cheikh v Miraki [2017] NSWSC 1765 (at [20]), and Beach J in Dealer Support Services Pty Ltd v Motor Trades Association of Australia Ltd (2014) 228 FCR 252; 318 ALR 507; 108 IPR 26; [2014] FCA 1065 (at [94]).
It is unnecessary for this Court to try to resolve the “would/might” dichotomy arising from the judgments of superior courts as whichever test is applied in this case the outcome is, because of the facts, the same.
In this case whether the “would” or “might” aspect of the test of what a fair-minded, reasonably informed member of the public might reach is applied is neither here not there. That is because the misrepresentations alleged by Ms Chapple to have been made by Ms Roach were simply not made, and there is no factual basis on which to apply the test.
What happened here is that:
(a)Rio Tinto issued the CMOne Supplier Brief referring to a sexual assault upon a contractor’s employee at an unspecified site;
(b)an unknown person (unknown for the purpose of these proceedings at least) sent Ms Chapple the Altered CMOne Supplier Brief, with the altered text referring to a “rape” at the Village;
(c)Ms Chapple then wrote to Ms Roach (and to senior Rio Tinto executives) alleging, on the basis of the Altered CMOne Supplier Brief, that there had been “Another rape” at the Village;
(d)Ms Roach, quite correctly said that Pilbara Iron (and one can infer Rio Tinto) was unaware of another case of sexual assault at the Village (that is another case in addition to that referred to in the (unaltered) CMOne Supplier Brief; and
(e)when it became apparent to Ms Roach that the “Another rape” referred to by Ms Chapple was, in fact, the same incident referred to in the unaltered CMOne Supplier Brief, Ms Roach, quite properly, wrote to Ms Chapple that Rio Tinto was unaware of what was in fact a single incident of sexual assault at the Village.
There was, in the circumstances, no false or misleading statement by Ms Roach; and even if, contrary to this conclusion, there was a false or misleading statement, it could not on the present facts be said to have been made “knowingly” for the purposes of r 22.1 of the LP Solicitor’s Conduct Rules.
It follows that no fair-minded reasonably informed member of the public might, or would, have concluded that the proper administration of justice requires that Ms Roach be stood aside in these proceedings.
CONCLUSION AND ORDERS
The Court has concluded that, for the reasons set out above, the Stand Aside Application must be dismissed. There will be an order accordingly.
The Court will hear the parties as to costs, if any: FW Act, s 570(2).
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lucev. Associate:
Dated: 11 December 2024
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