EFG v Legal Profession Board of Tasmania - [2020] TASSC 26

[2020] TASSC 26

COURT: SUPREME COURT OF TASMANIA

CITATION: EFG v Legal Profession Board of Tasmania [2020] TASSC 26

PARTIES:  E F G
  v
  LEGAL PROFESSION BOARD OF TASMANIA

FILE NOS:  2758/2019, 3250/2019
DELIVERED ON:  23 June 2020
DELIVERED AT:  Hobart
HEARING DATE:  25 March 2020
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Courts and Judges – Contempt – Particular contempts – Breach of undertaking to Court – Implied undertaking – Affidavit filed by respondent in judicial review proceedings – Whether applicant precluded from using it in parallel proceedings for prerogative relief.

Hearne v Street [2008] HCA 36, 235 CLR 125; Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, referred to.

Aust Dig Courts and Judges [145]

Professions and Trades – Lawyers – Complaints and discipline – Disciplinary proceedings – Tasmania – Decision of Legal Profession Board to appoint investigator – Whether implicit that Board decided to deal with conduct allegedly occurring more than three years before complaint.

Legal Profession Act 2007 (Tas), s 428.
Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173, 322 FLR 169, distinguished.
Aust Dig Professions and Trades [1274]

REPRESENTATION:

Counsel:
             Applicant:  G O'Rafferty
             Respondent:  C J Gunson SC, R Howe
             Complainants:  A Kendall
Solicitors:
             Applicant:  Dobson Mitchell Allport
             Respondent:  Barry Nilsson
             Complainants:  Phillips Taglieri

Judgment Number: [2020] TASSC 26
Number of paragraphs: 54

Serial No 26/2020
File Nos 2758/2019
3250/2019

E F G v LEGAL PROFESSION BOARD OF TASMANIA

REASONS FOR JUDGMENT BLOW CJ

23 June 2020

The applicant is a legal practitioner. He is aggrieved by the conduct of the respondent, the Legal Profession Board of Tasmania, in relation to a complaint that was made about him by two former clients ("the complainants"). He acted for them from 10 October 2013 until March 2018 in relation to a claim for damages or compensation against the State of Tasmania. Following a change of solicitors, their new solicitor made a complaint about the applicant to the Board on their behalf.
The complaint related to delay, the fees charged by the applicant, and difficulties encountered by the complainants in obtaining from him copies of invoices and costs agreements. Under certain circumstances, s 428(2) of the Legal Profession Act 2007 ("the Act") precludes the Board from dealing with a complaint about conduct that is alleged to have occurred more than three years before the making of the complaint. In this case, the complaint related in part to conduct alleged to have occurred more than three years before it was made (between 23 October 2013 and 20 February 2016), and in part to conduct alleged to have occurred subsequently (from 21 February 2016 until March 2018).
Section 428 of the Act reads as follows:
"(1)   A complaint may be made about conduct of an Australian legal practitioner irrespective of when the conduct is alleged to have occurred.
(2)   However, a complaint cannot be dealt with (otherwise than to dismiss it) if the complaint is made more than 3 years after the conduct is alleged to have occurred, unless the Board determines that —
(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; and
(b) the complaint is capable of amounting to an allegation of professional misconduct and it is in the public interest to deal with the complaint.
(3)   A determination made under subsection (2) is final and cannot be challenged in any proceedings by the complainant or the Australian legal practitioner concerned."
The complaint in question was first discussed at a meeting of the Board on 26 August 2019. The applicant contends that the Board then made a determination that it would "deal with" the complaint in relation to the whole of the applicant's alleged conduct, both before and after the three-year mark, and that in doing so it erred in law by not complying with the Act. He is seeking to impugn the determination, assuming there was one, in two proceedings – the first an application for judicial review under the Judicial Review Act 2000, and the second a proceeding for relief in the nature of certiorari ("the certiorari proceeding").
At the meeting in question the Board did not make a determination under s 428(2)(a) or (b). That is to say, it did not determine, in relation to conduct of the applicant alleged to have occurred more than three years before the complaint was made, that it was just and fair to deal with that part of the complaint having regard to the delay in making it and the reasons for that delay, nor that it was in the public interest to deal with that part of the complaint. It did however resolve to proceed with an investigation, and to appoint an investigator. The applicant contends that it thereby acted inconsistently with the provision in the opening words of s 428(2), whereby, in such circumstances, a complaint cannot be "dealt with" otherwise than by dismissing it. The Board contends that, on a proper interpretation of the words "cannot be dealt with" in s 428(2), proceeding with an investigation and appointing an investigator were not steps that amounted to "dealing with" the relevant part of the complaint.
The Board contends that at its meeting of 26 August 2019 it did not make a decision to deal with the complaint in relation to conduct occurring more than three years before its making, and that it has never made a decision whether or not to do so. On that basis it contends that both proceedings before the Court are misconceived, that it has not made a decision that can be judicially reviewed or quashed, and that both proceedings should be dismissed.

The applicant's grounds

The amended originating application in the judicial review proceeding set out seven grounds of review. Grounds 2 to 7 have been abandoned, as has part of ground 1. In substance, the remainder of ground 1 involves contentions to the following effect:
· That the Board, at its meeting on 26 August 2019, erred in law by determining to proceed to investigate the complaint pursuant to s 440(1) of the Act.
· That the Board, at that meeting, also erred in law in that it determined to deal with the whole complaint without first determining that it was just and fair or in the public interest to deal with the earlier part of it, contrary to the requirements of s 428(2) of the Act.
In the certiorari proceeding on 20 December 2019 Holt AsJ made a general order to show cause, calling upon the Board to "show cause why relief in the nature of certiorari should not be made quashing the decision" on grounds which included the following:
"(a)The complaint the subject of the decision related to alleged conduct which occurred more than three years prior to the making of the complaint for the purposes of section 428(2) of the Act;
(b)The Board failed to consider or determine for the purposes of section 428(2) of the Act whether or not:
(i) it was just and fair to deal with the complaint having regard to the delay and the reasons for the delay within the meaning of section 428(2)(a) of the Act; and
(ii) the complaint was capable of amounting to an allegation of professional misconduct and it was in the public interest to deal with the complaint within the meaning of section 428(2)(b) of the Act".
The applicant no longer relies on the other grounds contained in the general order.

The sequence of events

The complaint was made to the Board on 21 February 2019.
On 9 April 2019 an employee of the Board wrote to the applicant, sending him a copy of the complaint and further material that the Board had received from the complainants. He was invited to make submissions to the Board, including any submissions he wished to make as to whether the Board should deal with the complaint, or whether it should summarily dismiss it.
On 18 June 2019 the applicant wrote a long letter to the Board, responding in detail to the complaint, and submitting that it should be dismissed. A copy of that letter was sent to the complainants for comment.
On 5 July 2019 the Board received a long letter from the complainants, responding to the applicant's submissions.
On 10 July 2019 an employee of the Board wrote to the applicant, sending him a copy of the complainants' response and saying the following:
"I confirm that we will now proceed to collate all the relevant material by both you and the Complainants in relation to this matter for the Board's consideration. The Board will be in a position to consider the complaint, and all the material before it, at the next available meeting of the Board.
Please note that as the complaint is current in assessment and the Board's consideration will be limited to whether those parts of the complaint that occurred more than 3 years prior to receipt can be dealt with pursuant to s 428 and whether the remainder of the complaint should be summarily dismissed pursuant to s 433. If the Board are unable to summarily dismiss the complaint, or parts of it, the complaint or parts of it will proceed to investigation."
On 6 August 2019 the applicant sent an email to employees of the Board making some further comments.
On 9 August 2019 an employee of the Board wrote to the applicant acknowledging his email. In her letter she said:
"I also note that the Board will necessarily consider any application of s 428 in relation to those parts of the complaint which allege conduct greater than 3 years old. Any determination made by the Board pursuant to s 428 will be reduced to writing and provided to you with the reasons for determination.
In the event that the Board is unable to summarily dismiss those parts of the complaint which are unaffected by s 428, those parts will be investigated in accordance with s 440."
On 26 August 2019 the Board held the meeting to which these proceedings relate, and considered the complaint. A record of its proceedings in relation to the relevant part of its meeting appears in a "Board Note", the material parts of which read as follows:
"That the Board is unable to consider a summary dismissal of the complaint and therefore the complaint to proceed to investigation pursuant to s 440 of the Act.
That the Board made no determination at this time with respect to the s 428 allegations of complaint.
Determination and Reasons for Determination to be prepared at the conclusion of the investigation.
That the Complainant and Practitioner be informed accordingly." [My emphasis.]
On 28 August 2019 an employee of the Board wrote to the applicant about the Board meeting, informing him as follows:
"The Board did not summarily dismiss the complaint in accordance with s 433, and accordingly is required to investigate the complaint: s 440. Further, the Board did not make any determination pursuant to s 428."
She went on to give the applicant the name of the person who had been appointed to conduct the investigation.

The legislation

By virtue of s 3(a) of the Act, the objectives of the Act include the following:
"(a)to provide for the regulation of legal practice in this jurisdiction in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally."
Chapter 4 of the Act concerns complaints against lawyers and disciplinary proceedings. The purposes of that chapter are set out in s 417, as follows:
"The purposes of this Chapter are as follows:
(a)to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers."
Under s 427(1), any person may make a complaint to the Board about a lawyer.
Section 428(1) provides that a complaint may be made irrespective of when the conduct is alleged to have occurred. However s 428(2), which is set out above at [3], prohibits the Board from dealing with a complaint, otherwise than by dismissing it, if it is made more than three years after the conduct in question is alleged to have occurred, unless the Board determines that it is just and fair to deal with the complaint, having regard to the delay and the reasons for the delay; and that the complaint is capable of amounting to an allegation of professional misconduct; and that it is in the public interest to deal with the complaint.
Section 433 provides for the summary dismissal of complaints, as follows:
"(1) The Board must dismiss a complaint if —
(a) the complaint is in the opinion of the Board vexatious, misconceived, frivolous or lacking in substance; or
(b) the conduct complained about has been the subject of a previous complaint under the Legal Profession Act 1993 (the repealed Act) or this Act that has been dismissed; or
(c) ...
(d) the conduct complained about is the subject of another complaint; or
(e) the complaint is not one that the Board has power to deal with.
(2) The Board may dismiss a complaint if —
(a) further information is not given, or the complaint or further information is not verified, as required by the Board under section 429 (Further information and verification); or
(b) it is not in the public interest to deal with the complaint, having regard to the fact that the name of the Australian legal practitioner to whom the complaint relates has already been removed from any Australian roll in which he or she was enrolled.
(3) The Board may dismiss a complaint under this section after commencing but before completing an investigation if, having considered the complaint, the Board forms the view that the complaint requires no further investigation.
(4) During or after the investigation of a complaint against an Australian legal practitioner, the Board may dismiss the complaint and discontinue any investigation, if satisfied that it is in the public interest to do so.
(5) If proceedings have been instituted in the Tribunal by the Board, the Tribunal may, on the application of the Board pursuant to subsection (4), dismiss the proceedings."
Section 440 provides:
"(1) The Board is required to investigate each complaint for which it is responsible.
(2) This section does not apply to —
(a) a complaint taken over or referred to another regulatory authority; or
(b) a complaint that is dismissed or withdrawn under this Chapter."
In the context of this case, I see s 440(1) as a very significant provision. Subject to s 440(2), it imposes a duty of investigation upon the Board that applies from the moment when a complaint is received. The Board Note of 26 August 2019 reveals that the Board understood that the section imposed such a duty upon it.
There are provisions relating to the complaints procedure which, in my view, facilitate the Board's duty of investigation. Under s 427(3), a complaint is required to be in writing. Under s 429(a), the Board may require a complainant to give further information about a complaint. Under s 430(1), the Board is required to give to the practitioner about whom the complaint is made written notice of the making of the complaint, the nature of the complaint, and the identity of the complainant. Under s 430(5), the Board is required to inform the practitioner of his or her right to make submissions to it. That right is conferred by s 431(1). Under s 431(3), the Board is required to consider any such submissions, provided they are made within a period specified by the Board, before deciding what action is to be taken in relation to the complaint.
Section 442 empowers the Board to "appoint a suitably qualified person to investigate a complaint". That is a power that can be exercised at any time. For example, if the Board were to receive information suggesting that a practitioner had misappropriated money from a trust account, the Board could well decide to appoint an investigator immediately, before notifying the practitioner in question about the complaint.
"After an investigation of a complaint against an Australian legal practitioner is completed", s 450 empowers the Board to take one of several courses. Also, s 451 provides for the dismissal of a complaint "After an investigation of a complaint against an Australian legal practitioner has been completed". The various courses that the Board can take once an investigation has been completed are as follows:
·     Under s 451, it may dismiss the complaint if it is satisfied that "there is no reasonable likelihood that the practitioner will be found guilty of either unsatisfactory professional conduct or professional misconduct" or that "it is in the public interest to do so".
· Under s 450(a), it may hold a hearing if it considers that any matter which is the subject of the investigation is capable of amounting to unsatisfactory professional conduct. Provisions as to the procedure at such hearings are set out in Schedule 1 to the Act. Under s 454, there are various actions that the Board can make at the conclusion of such a hearing, including dismissal, admonition, a reprimand, a fine, a compensation order, waiver of fees, repayment of fees, waiver of a lien, further legal education, counselling, supervision, inspection, a prohibition on accepting instructions in relation to a specified class of work, a prohibition from practising other than as an employee, and payment of the Board's costs.
·     Under s 450(b), the Board may "deal with" the complaint in accordance with s 456 if it considers that the subject matter of the complaint is capable of amounting to unsatisfactory professional conduct that is not sufficiently serious to warrant a hearing. Under s 456, the practitioner then has the right to elect to have the complaint referred to the Disciplinary Tribunal. If he or she does not do that, the Board must decide whether the complaint has been substantiated. If it is satisfied that the complaint has not been substantiated, it must dismiss the complaint under s 456(6). If it is satisfied that the complaint has been substantiated but is not sufficiently serious to warrant a hearing, it may do a number of things under s 456(7), including cautioning or reprimanding the practitioner, requiring an apology, or requiring the practitioner to make reparation. Alternatively, under s 456(9)(d), it may refer the matter to the Disciplinary Tribunal if it considers that the matter is sufficiently serious.
·     Under s 450(c), the Board may make an application to the Disciplinary Tribunal for it to "hear and determine any matter that the Board considers is capable of amounting to both unsatisfactory professional conduct and professional misconduct".
·     Under s 450(d), it may make an application for the Disciplinary Tribunal to hear and determine the matter if it considers "that the conduct is capable of amounting to professional misconduct".
·     Under s 450(e), it may make an application to this Court to hear and determine the matter if it considers that the matter is capable of amounting to professional misconduct.
Under s 461A of the Act, the Board may exercise its powers of dismissal in relation to "any part or parts of a complaint". Thus, when a complaint relates in part to conduct alleged to have occurred more than three years before its making, the Board has the power to dismiss that part of the complaint as contemplated by s 428(2). If it decides not to make the determinations required by s 428(2)(a) and (b), the earlier part of the complaint becomes something that the Board does not have the power to deal with, and it becomes obliged to dismiss that part pursuant to s 433(1)(e).

A determination under s 428(2)?

As I have said, the applicant contends that, when the Board resolved to "proceed to investigation pursuant to s 440 of the Act", and to appoint an investigator, it thereby "dealt with" the whole complaint within the meaning of s 428(2). In support of that contention, counsel for the applicant relied on a passage in the judgment of Murrell CJ in Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173, 322 FLR 169. That case concerned a complaint to the Council of the Law Society of the ACT that related in part to conduct alleged to have occurred more than three years before the making of the complaint. Section 395(2) of the Legal Profession Act 2006 (ACT), was in very similar terms to our s 428(2). It read as follows:
"However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decides that —
(a) it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or
(b) the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint."

In discussing certain aspects of the ACT legislation, Murrell CJ said, at [42]:
[42] Inevitably, the failure by a council to make a s 395(2) decision will result in prejudice to a practitioner; the practitioner will be subjected to the costs, distress and inconvenience associated with the complaint being 'dealt with'."
It is clear that her Honour, in speaking of a complaint being "dealt with", had in mind the process of investigation that would be undertaken by a council, and not just decision-making or disciplinary powers that could be exercised after the completion of an investigation. However the passage I have quoted was obiter. Her Honour was not dealing with disputed contentions as to the meaning of "dealt with" in the relevant provision.
The case concerned a complaint about the conduct of a legal practitioner that occurred more than three years before the making of the complaint. The fact that the conduct had occurred more than three years previously went unnoticed for a surprisingly long time. The Council of the Law Society of the ACT failed to consider the matters required by s 395(2), considered the complaint on its merits, and dismissed it. The complainant appealed to the ACT Civil and Administrative Tribunal and was successful. The Tribunal ordered the Council to bring disciplinary proceedings against the practitioner. The Council subsequently commenced disciplinary proceedings before the Tribunal. It was only after those proceedings had been instituted that the Council became aware that it had neglected to address s 395(2). There was a statutory provision that enabled the Tribunal to order that a failure by a council to observe a procedural requirement in relation to a complaint be disregarded if satisfied that the parties had not been prejudiced by the failure. The Council applied to the Tribunal for an order that its failure to observe s 395(2) should be disregarded. That application was successful. The practitioner appealed to the Supreme Court of the Australian Capital Territory, contending that s 395(2) was not a procedural requirement. Murell CJ held that the subsection was not a procedural requirement. Nothing in her Honour's judgment suggests that her characterisation of the process of investigating a complaint as amounting to the complaint being "dealt with" made any difference to the outcome of the case.
For the purpose of determining the meaning of the expression "cannot be dealt with" in s 428(2), it is necessary to have regard to the context and purpose of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71]; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [47]; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34, 262 CLR 362 at [14].
Section 428 is silent as to when the power to make determinations under s 428(2)(a) and (b) may be exercised. It is clear from the structure of the Act that, once the Board receives a complaint, it must, subject to its powers of dismissal, conduct and complete an investigation, and thereafter decide what action to take pursuant to s 450 or s 451. Information relevant to the determinations contemplated by s 428(2)(a) and (b) might be received when the complaint is made or at any stage during the investigative process. The Board might accumulate enough information for it properly to address the matters covered in s 428(2)(a) and (b) at any stage, depending upon the degree of thoroughness of the complaint and how the investigation progresses.
Section 440(1) imposes on the Board an unqualified requirement "to investigate each complaint for which it is responsible". The requirement to investigate does not arise when the Board first discusses a complaint at one of its meetings, but at the moment when the complaint is received. It is also significant that s 442 empowers the Board to appoint an investigator without imposing any temporal restriction as to when that power may be exercised. It follows that it may be exercised at any time before an investigation is completed.
Having regard to the Act's provisions as to the investigation of complaints and the steps that may be taken after an investigation is completed, it must follow that the power to make determinations pursuant to s 428(2) and (b) may be exercised at, or at any time before, the time at which the Board decides what action to take pursuant to s 450 or s 451. If investigating a complaint were to constitute "dealing with" a complaint for the purposes of s 428(2), then determinations under that subsection could only be made immediately upon the receipt of a complaint, before any investigative steps had been taken. That would be an absurd situation since complaints are often incomplete or lacking in detail, and complainants often lack important information about the conduct of their lawyers.
Having regard to the purpose and context of s 428(2), it must follow that the words "a complaint cannot be dealt with" refer to the Board dealing with a complaint in the sense of it taking one of the steps listed in s 450.
It is clear that the words "deal with" mean different things in different sections of the Act. Under s 461, it is the duty of the Board "to deal with complaints as efficiently and expeditiously as is practicable". That section obviously applies to investigations, not just to steps taken after investigations have been completed. On the other hand s 450(b) empowers the Board, after an investigation is completed, to "deal with the complaint in accordance with section 456", which provides for a determination to be made without a hearing. Section 433(1)(e), which requires the Board to dismiss a complaint if it is not one that the Board has power to "deal with" does not provide any assistance as to the proper interpretation of s 428(2). It obviously applies to complaints in respect of which the Board has no power to take any action after the completion of an investigation, but the lack of any such power will ordinarily mean that the Board also lacks the power to investigate any such complaint.
It follows that when the Board resolved to proceed with the investigation that s 440 required, and when it appointed an investigator pursuant to s 442, the complaint was not thereby "dealt with" within the meaning of s 428(2).
It is clear from the Board Note that the Board decided at its meeting of 26 August 2019 not to make any determination for the purpose of s 428 at that time. That is to say, it did not make any decision one way or the other in relation to the part of the complaint to which s 428(2) applied. The result was that it would have to consider s 428(2) at a later date. The evidence adduced in this case satisfies me that the Board has not subsequently addressed the matters to which s 428(2) relates.
Section 17(1) of the Judicial Review Act provides as follows:
"(1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision."
In s 4(1) of that Act, the term "decision to which this Act applies" is defined to mean "a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)".
The amended originating application in the judicial review proceedings is expressed to relate to a decision whereby the Board decided that it "did not summarily dismiss the complaint ... in accordance with section 433" and "is required to investigate the complaint" and "did not make any determination pursuant to s 428". The Board made no decisions pursuant to s 433, s 440, or s 428 in August 2019. The application for judicial review must therefore fail.
In the certiorari proceeding, the only ground now relied on in the general order to show cause concerns an assertion that the Board failed to consider or determine the matters specified in s 428(2)(a) and (b). That is true. But the fact that it did not address the matters to which those paragraphs relate did not involve any error of law. Furthermore, it did not make any decision in August 2019 which, if tainted by error, could have been quashed in proceedings for prerogative relief.

Conclusion

For these reasons, the application for judicial review must be dismissed, and the general order to show cause must be discharged.

Postscript: a submission about contempt

At the hearing, counsel for the Board submitted to me that counsel for the applicant had committed a contempt by relying, in the certiorari proceeding, on an affidavit filed in the judicial review proceeding. After the hearing, I was informed that that submission was no longer relied on, but it was not conceded that there had been no contempt. Subsequently, counsel for the applicant requested that I rule on the submission. I will do so because, if a contempt was committed, that could have affected the evidence that I relied on in the certiorari proceeding. I decided that no contempt had been committed, and took some of the evidence in the affidavit in question into account in deciding that the certiorari proceeding should fail.
The judicial review proceeding was instituted before the certiorari proceeding. On 5 November 2019 the Chief Executive Officer of the Board, Mr Ederle, swore an affidavit in the judicial review proceeding. That affidavit was filed the next day and subsequently served on the applicant's solicitors. The certiorari proceeding was instituted by an originating application filed on 13 December 2019. In accordance with the usual procedure, there was an ex parte hearing before Holt AsJ on 20 December 2019, when the applicant sought and obtained the general order requiring the Board to show cause why relief in the nature of certiorari should not be granted.
At that hearing the applicant relied on the affidavit of Mr Ederle from the judicial review proceeding. Counsel for the Board submitted to me that that amounted to a contempt since the affidavit had not been sworn or filed for the purpose of the certiorari proceeding.
I heard the judicial review and certiorari proceedings together. At the beginning of that hearing, counsel for the applicant relied on the same affidavit. There was no suggestion that he was relying on it only in relation to the judicial review proceeding. I said that I would take it as read. There was no objection from counsel for the Board or counsel for the complainants, but it was subsequently argued that reliance on the affidavit for the purpose of the certiorari proceeding involved a continuing contempt that ought to disentitle the applicant to prerogative relief in the exercise of the Court's discretion.
In certain situations when documents are made available to litigants for the purpose of court proceedings, the recipients are obliged not to use those documents for other purposes. That rule applies to documents that are made available in civil proceedings by way of discovery: Hearne v Street [2008] HCA 36, 235 CLR 125. It also applies to documents that are provided to an accused person in criminal proceedings because of a prosecutor's duty of disclosure: Taylor v Serious Fraud Office [1999] 2 AC 177. It is said that the recipient of the documents in such situations is bound by an implied undertaking not to use the documents for a purpose unrelated to the proceedings. A breach of the implied undertaking amounts to a contempt of court. The implied undertaking binds not only the litigant but also the litigant's legal representatives: Hearne v Street (above) at [109].
The Board contends that Mr Ederle's affidavit in the judicial review proceeding fell within the scope of the implied undertaking rule, and that its use for the purpose of the certiorari proceeding amounted to a contempt. There are some reported cases in which that rule has been applied in relation to the use of affidavits filed in earlier proceedings. Medway v Doublock Ltd [1971] 1 WLR 710 concerned an affidavit as to means that a litigant had been ordered to file in matrimonial proceedings. When his company brought an action against another company, the defendant sought to rely on that affidavit in support of an application for security for costs, but was not permitted to do so. In Re Addstone Pty Ltd; ex parte Macks (1998) 30 ACSR 156, the liquidator of a group of companies applied to the Federal Court for directions in relation to certain matters, and relied on affidavits which became the subject of orders making them confidential. A creditor later sought access to the affidavits for the purpose of defending a claim by the liquidator. Mansfield J held that the affidavits were the subject of an implied undertaking which allowed the creditors to use the information provided only in their capacity as creditors, and not in proceedings taken against them as defendants.
Unlike the affidavit in Medway v Doublock Ltd, Mr Ederle's affidavit was not one whose filing had been ordered by a court. It was created voluntarily. Unlike the affidavits in Re Addstone Pty Ltd; ex parte Macks, it was not the subject of an order as to confidentiality. However it has been held that the implied undertaking rule applies to any document voluntarily created and filed for the purpose of a court proceeding: Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509. That case concerned a witness statement that was filed and served in accordance with a practice direction as to how evidence was to be presented. McPherson J said, at 510:
"However, the underlying principle is in my view plain enough. It is that a document furnished for use for one purpose may not legitimately be used for another. That is, I concede, what was meant by Lucas J when, in Nicol v Brisbane City Council[1], he spoke of not using the document for any 'collateral or ulterior purpose'. I take that to mean any purpose collateral or ulterior to the purpose which the document or its production or delivery is intended to serve. In this case there can be no doubt that that purpose is the proper conduct of the litigation."
[1] [1969] Qd R 371.
The fundamental rule, as stated by Hayne, Heydon and Crennan JJ in Hearne v Street (above) at [96], is that the recipient of a document or information "cannot, without leave of the court, use it for any purpose other than that for which it was given". Mr Ederle's affidavit was given to the applicant for the purpose of litigation in which the applicant contended that the Board had made a decision on 26 August 2019 that should be quashed because it erred in law. The judicial review proceeding and the certiorari proceeding were parallel proceedings between identical parties in which the applicant was relying on the same contentions. Both proceedings were instituted with a view to obtaining the same result. I infer that separate proceedings were instituted because the procedure for seeking relief in the nature of certiorari differs from the procedure for seeking relief under the Judicial Review Act. However the use of Mr Ederle's affidavit in the certiorari proceeding cannot be regarded as an example of the sort of conduct that led to the development of the implied undertaking rule. The applicant did not seek to use it for an ulterior or collateral purpose. He sought to use it for the purpose for which it was created – to inform the Court of the facts relevant to his contention that a decision had been made that was impeachable due to errors of law. It follows that he was not obliged by the implied undertaking rule to refrain from using the affidavit in the certiorari proceeding, and that no contempt was committed.