Etter v Legal Profession Board of Tasmania; Legal Profession Board of Tasmania v Etter - [2017] TASSC 77

[2017] TASSC 77

COURT: SUPREME COURT OF TASMANIA

CITATION: Etter v Legal Profession Board of Tasmania

Legal Profession Board of Tasmania v Etter [2017] TASSC 77

PARTIES: ETTER, Barbara
v

LEGAL PROFESSION BOARD OF TASMANIA
LEGAL PROFESSION BOARD OF TASMANIA
v
ETTER, Barbara

FILE NOS: 3169/2017

3208/2017

DELIVERED ON:  19 December 2017
DELIVERED AT:  Hobart
HEARING DATES:  22 November 2017
JUDGMENT OF:  Geason J

CATCHWORDS:

Profession and Trades – Lawyers – Complaint and discipline – Tasmania.
Aust Dig Profession and Trades [1274]

Practising Certificates – Cancellation and suspension.
[Aust Dig Practising Certificates [1130]

REPRESENTATION:

Counsel:
Appellant: H Selby
Respondent: S Taglieri
Solicitors:

Respondent: Tremayne Fay Rheinberger

Judgment Number: [2017] TASSC 77
Number of paragraphs: 61

Serial No 77/2017
File Nos 3169/2017
3208/2017

BARBARA ETTER v LEGAL PROFESSION BOARD OF TASMANIA
LEGAL PROFESSION BOARD OF TASMANIA v BARBARA ETTER

REASONS FOR JUDGMENT GEASON J

19 December 2017

Two applications are before the Court. In the first (3169/2017), Ms Etter seeks orders against the Legal Profession Board (the Board) in consequence of her having been suspended from practice by a direction of the Board made to the Law Society of Tasmania, pursuant to s 573(7)(b) of the Legal Profession Act 2007 (the Act). Ms Etter is a legal practitioner and a person to whom the Act applies.
By her application, Ms Etter challenges that direction and seeks a stay of her suspension.
The second matter is an application by the Board against Ms Etter. It seeks an order requiring production of specified documents to the Board pursuant to s 572(1) of the Act.
The applications are inter-related in that the application seeking production of documents by Ms Etter is made in consequence of her failure to comply with a direction of the Board to do so. In turn her suspension is the result of that refusal.
The Board is established by s 589 of the Act. The Law Society of Tasmania is the Prescribed Authority under the Act by operation of reg 4 of the Legal Profession (Prescribed Authorities) Regulations 2008.

Ms Etter's application against the Board

When the matter came on for hearing, counsel for Ms Etter, applied to amend the application by adding a reference to s 26 of the Judicial Review Act 2000 (the JRA Act), seeking a stay of the order of suspension of her practising certificate. That course was not opposed by the Board but it submitted that no grounds for the orders sought were disclosed within the amended application, as required by s 22(b) of the JRA Act, and r 623 of the Supreme Court Rules 2000. Section 22(b) requires an application for an order of review to set out the grounds of the application; r 623 relates to applications for relief similar to certiorari, mandamus and prohibition, and subr (5)(a)(ii) requires that the applicant set out the grounds upon which relief is sought.
Notwithstanding those matters, counsel for the Board sought only to reserve its position in respect of any such irregularity against a circumstance when it might become necessary to rely upon them. Otherwise its preference was that the matter proceed to hearing.

Matter 3169/2017

In this matter the Court made an order amending the originating application. By the amended application Ms Etter seeks:
"1   A Declaration that the purported Direction on 30 October 2017 by the respondent to the Prescribed Authority to suspend the Applicant's practising certificate is void ab initio because it has no legal basis.
2    In the alternative, that if the Direction is valid, that it be stayed pending the final hearing of an application to set it aside because the prerequisites for the issue of such a Direction are not established and the Applicant has reasonable prospects of success.
3    A Declaration that upon the facts as presently before the Court there is no basis upon which the Respondent can lawfully direct the Prescribed Authority to suspend the Applicant's practising certificate.
4    Costs to be assessed on an indemnity basis.
5 That pursuant to r863(2)(a) of the Supreme Court Rules 2000 the Court certify for counsel."
The Board raised another matter. It submitted that although it appears the validity of the direction made by the Board to the Law Society is challenged generally, it is unclear whether Ms Etter attacks the Board's resolution, the direction given to the Law Society on the same day, or both. It submits that whatever is the case her grievance squarely falls within the scope of a decision to which s 4 of the JRA Act applies, as does the conduct of the Board in making the resolution. That is because the resolution of the Board to give a direction under s 573(7)(b) of the Act was a decision which was administrative in character. By operation of ss 17 and 18 of the JRA Act, Ms Etter, as a person aggrieved, is able to make application to the Court. It is submitted that the form of her application does not address the apparent grievance, namely the suspension of the practising certificate, because even if the direction given by the Board was declared to be void or voidable, that does not directly compel the Law Society to reinstate her practising certificate. Further, it is submitted that the order sought under s 26 of the JRA Act seeking a stay of the direction, will not cure the suspension already imposed. By this submission, the Board bifurcates the direction given to the prescribed authority, and the action of the prescribed authority in obedience to the direction to effect a suspension of Ms Etter's practising certificate.
In view of the conclusion the Court has reached, it is not necessary to develop or otherwise to determine these issues.

The facts

The factual matters giving rise to the application are not disputed. The Court received into evidence affidavits from Frank Ederle (sworn 7 November 2017 and 20 November 2017), Mr Luke Rheinberger for the Prescribed Authority (sworn 7 November 2017), on behalf of the Board, and from Ms Etter (sworn 6 November 2017). None of the deponents was cross-examined.
Mr Ederle deposes that on 6 March 2017 the Board received a complaint from Robert Greer in relation to conduct alleged against the applicant in relation to a coronial inquest into the death of his mother, Rita Greer. Upon receiving the complaint the Board engaged an independent person to assist the complainant to particularise the complaint. On 2 May 2017, the Board received further particulars of the complaint. By letter dated 2 May 2017 the Board notified the applicant of the complaint, noting that it had not been acted upon by the Board, and informing the applicant of her right to make submissions to the Board about the matters raised. This included an invitation to make submissions to the Board as to why the complaint should not be summarily dismissed under s 433 of the Act. A time limit was imposed upon the applicant for the making of submissions.
On 4 May 2017, the applicant made submissions in reply to the respondent, incorporating by reference a document she had prepared and which was dated 14 March 2017, in relation to another matter. That other matter was an investigation being undertaken by the Board of its own motion in respect of matters raised in a decision of Coroner McTaggart in connection with the death of Rita Greer, published on 23 February 2017. Ms Etter's submissions in respect of that matter were intended to dissuade the Board from pursuing a complaint against her in relation to conduct alleged by Coroner McTaggart. Pursuant to s 427(2) of the Act, the Board may bring a complaint against a practitioner. Its investigation in relation to the inquest was directed to that possibility. Upon receipt of the complaint from Robert Greer, the Board did not pursue the investigation directed towards bringing its own complaint.
At a meeting of the Board held on 31 July 2017, it determined it was unable to summarily dismiss the complaint brought by Mr Greer, and determined that it was to be investigated pursuant to s 440 of the Act. Ms Emily Warner was appointed as an investigator in respect of the matter by an Instrument bearing the same date. Her appointment was made pursuant to s 442 of the Act. Ms Warner is employed by the Board as a senior investigator, and the Court was told that her duties primarily involve the investigation of complaints received by the Board under Ch IV of the Act.
The applicant was advised of these developments by letter dated 2 August 2017.
On 24 August 2017, Ms Warner asked the applicant to produce documents for the purpose of her carrying out the investigation.
On 12 September 2017, the applicant wrote to the Board. Her long letter was headed "Rebuttal of Greer May 2017 Allegations Using my March 2017 Response to the McTaggart Allegations and References to Inquest Transcript/Proceedings". There followed a reference to the letter from Ms Warner directing production of documents, a series of observations about the particulars of Mr Greer's complaints, and a commentary upon the fact that the complaint from Mr Greer had been received by the time the applicant was asked by the Board to respond to the McTaggart allegations. A number of other issues were raised, but for present purposes it is sufficient to note that the letter was not accompanied by the documents which had been requested by Ms Warner.
Further correspondence was exchanged between the applicant and the Board, culminating in a letter dated 29 September 2017, and signed by Ms Warner, informing the applicant that she had determined to issue a notice pursuant to s 572 of the Act, requiring production of the documents. The notice is in these terms:
"NOTICE TO PRODUCE DOCUMENTS
1 I, Emily Warner, an Investigator appointed by the Legal Profession Board of Tasmania pursuant to s 442 of the Legal Profession Act 2007, HEREBY require you to produce the following documents and classes of documents to me:
(a)Solicitor's file and all documents relating to or in connection with your representation of Ms Pauline Greer for the re-opening of the investigation and the inquest into the death of Rita Sally Greer of which you had carriage ('the Greer matter') including, but not limited to all notes, instructions, documents, draft affidavits, affidavits, and any written submission filed with the Coroner, and any drafts or preparatory notes of written submissions;
(b)A copy of any electronic file or records you hold with regard to the work you conducted for the Greer matter including any drafts of documents such as affidavits and submissions you intended to make to the court;
2    I require the originals of the documents referred to at paragraph 1(a) to be produced if the originals are in your possession. If you to not have the originals of some of the above documents I require production of original copies in your possession.
3    I require the documents referred to a [sic] paragraph 1(b) to be produced on a memory stick. A memory stick was supplied to you under cover of letter dated 29 August 2017.
4    I require the above documents to be delivered to me at LEGAL PROFESSION BOARD OF TASMANIA, LEVEL 3, 147 MACQUARIE STREET, HOBART IN THE STATE OF TASMANIA no later than 5pm on Monday 16 October 2017.
5 This notice is issued pursuant to s 572(1) of the Legal Profession Act 2007 for the purpose of carrying out a complaint investigation in respect of a complaint made by Mr Robert Greer dated 5 March 2017 in relation to Mrs Barbara Etter, an Australian Lawyer.
6    TAKE NOTICE that pursuant to s 572 (3) of the Legal Profession Act 2007 a person who is subject to a requirement under s 572 (1) must comply with the requirement. Failure to do so is an offence punishable by a fine not exceeding 50 penalty units."
The applicant's initial response to that notice was to request a copy of the signed delegation from the Board relating to the power to appoint an investigator, with a request that the document be certified as a true copy by a justice of the peace. This was done.
Next the applicant sent a letter to the Board headed "Greer v Etter … – The Growing Scandal That Is Your Handling of the Complaint". The letter made a series of comments in respect of the Board's management of the complaint, and alleged "improper conduct for an improper purpose". With respect to the production of the documents, the letter asserted an obligation upon the Board to operate within the relevant legislative framework and follow "basic administrative law principles including the principles of natural justice/procedural fairness". It was submitted by the applicant that there was no supporting evidence which could "create a legitimate forensic purpose in your asserted investigation of the Greer complaint, as evidenced by the seriously deficient particulars … and the fact that you have, at all material times, had my lengthy, written rebuttal." The letter culminates in a final section headed "Good Reasons to Refuse to Comply with Your Notice". Under this heading the applicant contended that, pursuant to s 586(3), she had a reasonable excuse for not complying with the request for documents at that time. The various aspects of the reasonable excuse, each of which was asserted to be sufficient in its own right, were the following matters:
1Prior procedures which were said to be fundamentally flawed.
2That the Notice requiring production of the documents had not been issued for a legitimate forensic purpose.
3That s 422 of the Act, at par (f), which identifies a failure to comply with the requirements of a notice under the Act as conduct capable of constituting unsatisfactory professional conduct or professional misconduct, impliedly contemplates the situation where there may be a refusal to comply with a notice. This was said to include a "… non client complaint [as this one is] where client professional privilege has not been waived by the client and the privilege is not specifically abrogated by the relevant Act". It is put that the Act does not abrogate privilege with respect to files, but only with respect to information, and reference is made to s 517 of the Act. The letter notes that the applicant's client claims privilege over the file.
4The notice is said to be oppressive because it required the production of too wide a class of documents covering a period of three years, and many pages of documents in hard copy and electronic form.
5The notice is a fishing expedition.
The Board responded to this letter on 16 October 2017, noting that it did not propose to respond to most of the contents, observing that the applicant had indicated she would refuse to comply with the notice. The Board referred to the time limit for compliance contained in the notice, and records that Ms Warner had considered the reasons for refusal to comply, had consulted with the Board, and did not consider those matters, individually or collectively, constituted a reasonable excuse for non-compliance.
Insofar as legal professional privilege was claimed, the Board's response maintained that s 516 of the Act abrogated any contractual duty of confidentiality that might otherwise be owed to one's client, and that s 517 abrogated legal professional privilege. The letter required of the applicant that she disclose all the information within the scope of the s 572 notice in respect of which a claim for privilege was made. This was required to be complied with by 5pm on Monday, 16 October 2017. The letter concluded by informing the applicant that if she did not comply with the notice, it would consider directing the Law Society to suspend the applicant's practising certificate until she complied, and apply to the Supreme Court for an order under s 645 of the Act requiring production of the documents. The applicant was invited to make any submissions she wanted to make by 5pm on 20 October 2017.
On 18 October 2017, the applicant responded to the Board. That letter opens with the following:
"1 I herewith make a complaint of professional misconduct and/or unsatisfactory professional conduct against Ms Emily Warner, the solicitor employed by the Board."
There follows a submission in support of that complaint, and a reference to other complaints not relevant for the purposes of this decision.
The documents required by the s 572 notice were not produced, and nor was the list of documents in respect of which privilege was claimed.
On 30 October 2017 the Board wrote to the Law Society through its Executive Director, Mr Rheinberger, and directed the Society to immediately suspend the applicant's practising certificate issued by it to the applicant for so long as the failure to comply with the requirement under s 572 of the Act continued. In other respects the letter recited the history of the matter and the applicant's non-compliance with its notice. By letter of the same date the applicant was advised of the Board's direction to the Law Society. The Law Society acted upon the direction on 31 October 2017 suspending the applicant's practising certificate under s 573(7) of the Act.

Scheme of the Act under Pt 6.2

The Board has proceeded in accordance with the provisions appearing in Pt 6.2 of the Act. Section 570 of the Act provides that Pt 6.2 applies, inter alia, to complaint investigations. Section 572 of the Act provides that requirements may be imposed upon an Australian lawyer for the purposes of complaint investigations: s 572(1)(a) says that a notice served upon a lawyer may require the lawyer "to produce at or before a specified time at a specified place, any specified document".
Section 572(3) provides that a person who is subject to a requirement must comply with it.
Section 573(6) provides that a failure to comply with a requirement is capable of constituting unsatisfactory professional conduct or professional misconduct. Section 586 of the Act provides that where a lawyer fails to comply with a requirement under s 572 "without reasonable excuse" he or she is guilty of professional misconduct.
Section 573(7)(a) confers upon the prescribed authority the power to suspend a practitioner's practising certificate on its own initiative, or otherwise requires it to comply with a direction of the Board to do so (s 573(7)(b).) Such direction was given by the Board in this case.
Relevantly for the purpose of an issue raised in this appeal, s 648(2) of the Act provides that in respect of a requirement under s 573, "The validity of the requirement is not affected, and a person is not excused from complying with the requirement, on the ground of legal professional privilege or any other duty of confidence."

The challenge to the Board

Ms Etter challenges the Board's power under s 573(7)(b) of the Act to direct the prescribed authority to suspend the applicant's practising certificate. It is her contention that s 446 of the Act is the operative provision in the circumstances of an investigation, and the only source of power under which the Board may make a direction to the Law Society to suspend.
Section 446(1) provides:
"(1) During the investigation of a complaint about an Australian legal practitioner, the Board may order —
(a) the prescribed authority to suspend a practising certificate held by the Australian legal practitioner for a specified period; or
(b) the prescribed authority to not grant or renew a practising certificate to the Australian legal practitioner for a specified period."
By s 446(5), a legal practitioner may appeal to the Supreme Court against an order under this section.
Ms Etter asserts that s 446 is applicable because, apart from anything else, it begins by saying "During the investigation of a complaint", which is "precisely what was going on in this case when the Board directed the Law Society to suspend the applicant's practising certificate". It is the applicant's submission that s 446 is a code setting out the way in which the Board has legal authority to act, and the matters about which it must be satisfied before a direction requiring suspension is made. Those matters appear in s 446(4), which says:
"(4) The Board must not make an order under subsection (1) or (2) unless it is satisfied —
(a) that the Australian legal practitioner is likely to be found guilty of professional misconduct; and
(b) that it is necessary in the public interest that the order be made."

In reply to that submission the respondent submits that s 446 does not constitute a code. It argues that s 446 of the Act provides for a particular circumstance where suspension may be imposed. It points to other provisions under the Act which authorise a practitioner's certificate to be suspended, whether before an investigation is initiated, during such investigation, or after an investigation has been completed but before a hearing. Counsel for the Board submitted that s 446 of the Act was designed to address circumstances where there are apparent shortcomings in a practitioner's conduct "that are alarming", and which require immediate intervention before the investigation process has been completed. The Board submits this is not such a case because no such circumstance exists in respect of the matters being investigated
The Court rejects the submission that s 446 is the only section in the Act which empowers the Board during the investigation of a complaint to direct a suspension. It is plainly incorrect. It is but one means through which the suspension of a practising certificate may be imposed.
It follows that the two elements appearing in s 446(4), are not required to be satisfied for the purposes of the exercise of the power contained in s 573(7) of the Act. The prerequisite for the valid exercise of such a power is a complaint (s 570(c)); the valid appointment of an investigator (s 442); commencement of an investigation into the complaint; the making of a requirement in the course of that investigation for production of specified documents (s 572(1)(a)); service of the notice upon the practitioner (s 572(1)), and non-compliance with that requirement (s 572(3)).
Each of those elements is demonstrated on the evidence. That evidence is contained in the affidavit of Mr Ederle sworn on 7 November 2017. There is evidence before the Court in the form of the applicant's refusal to comply with the requirement, upon which the respondent could lawfully direct the prescribed authority to suspend the practitioner. Nothing more is required to engage that power. The applicant's contentions with respect to the Board's motivation in pursuing the investigation against her have no bearing on the matter.
Insofar as the applicant relies upon Dennis v Council of the Law Society of New South Wales [2014] NSWSC 1487, such reliance is misplaced. The power conferred upon the Board under s 573 of the Act is not predicated upon a preliminary determination that there is a risk to clients or the public generally, or of the administration of justice. As has been said, the suspension relates solely to, and is imposed in consequence of, the applicant's failure to comply with a notice. Compliance with a notice in the context of an investigation is fundamental to the investigative process. The Act does not impose a requirement that the Board be satisfied that there is a risk to clients or to the public generally, or to the administration of justice as a prerequisite to the making of a direction under s 573 of the Act. The power should not be diluted through the imposition of additional requirements not articulated within the provision conferring the power. It follows that the declaration sought in pars 1 and 3 of the amended application is refused.

Staying the suspension

If the Court reached that conclusion, the applicant invited the Court to stay the direction, relying on the Court's inherent jurisdiction with respect to the discipline of practitioners by virtue of s 510 of the Act. In respect of the Court's inherent jurisdiction, the applicant referred to In Re a Solicitor [1978] Tas R 199 at 202 and A Solicitor v Law Society of New South Wales [2004] HCA 1, 216 CLR 253 at [2]-[3].
Noting that the Board had available to it the option of bringing an application pursuant to s 645 of the Act, the applicant invited the Court to consider whether there was a need to suspend the practising certificate before it did so. Counsel for the applicant put the submission thus:
"One can ask themselves two questions: given that there is a dispute between the Board or some member or members of it, and a practitioner otherwise in good standing, as to whether documents should be handed over or not, and given that that practitioner has made lengthy written submissions to the Board as to why she says under s 586, she has a reasonable excuse for not handing over the documents. Where is the public interest in suspending the practitioner? How is the community protected by suspending the practitioner? We say that the answer to that question … is, no issue of public interest ever arose and the Board knew it never arose because it had already made a determination that there was to be no further inquiry into [the] McTaggart allegations."
The final proposition in that submission is erroneous. The Board had not made a determination that there was to be no further enquiry into the "McTaggart allegations". Rather, upon receipt of Mr Greer's complaint, the Board was obliged to proceed to investigate it in order to determine whether it ought be summarily dismissed or proceeded with. At that time the Board had not made a complaint of its own motion based upon the "McTaggart allegations".
It was open to the Board to determine that suspension was the appropriate response to the practitioner's failure to comply with the notice. The Board's decision in that respect was within power. Its discretion to so proceed was engaged by the practitioner's failure to comply with the notice. Formal steps aside, no more was required to engage that power.
Reasonable minds may differ as to whether the Board ought to have first exhausted its right to apply to the Court for an order under s 645 before moving to direct the suspension of the practitioner. The applicant is a sole practitioner and the result of the suspension is that all of her clients are disadvantaged, and she cannot earn an income from her practice. At the same time the duration of the suspension is entirely within the control of the practitioner. The Board is vested with significant powers to investigate complaints. Those powers are to be exercised judiciously, of course, but the Board's decision to direct the suspension of the practitioner was a matter for its own judgment. The course it took was no doubt influenced by its view that the reasons advanced by the applicant lacked merit, and that compliance with its requirements was a very important obligation, pivotal to it fulfilling its statutory role. No doubt it was expected that a suspension would be followed by speedy compliance. How to proceed in such a situation is a matter for the Board. Anything the Court says is merely commentary.
The applicant submits that the direction to suspend appears punitive rather than protective in nature, was an abuse of power, and was uncalled for on the facts. The Court rejects the characterisation and the submission. As has been said there is no threshold requirement that there is a risk to the public, before suspension can be directed, and in this instance the elements necessary to engage the power were satisfied. As an aside, it might be expected that a practitioner who is suspended would initiate engagement with the Board with a view to exploring resolution of the matter. The engagement which occurred in this case was not conducive to resolution of the matter at all, but involved an escalation of matters culminating in a complaint against the Board's investigating officer, Ms Warner.
In all the circumstances an order staying the operation of the direction (quite apart from the submission that it would not affect the suspension already imposed) cannot be entertained. The Court refuses the order sought at par 2 of the amended application.

Matter 3208/2017

The second matter before the Court is an application by the Board seeking the following orders:
"1That within 7 days of service of this order the respondent produce to Ms Emily Warner, an investigator within the meaning of s442 of the Legal Profession Act 2007, the documents required to be produced to her as specified in the notice addressed to the respondent dated 29 September 2017 and made pursuant to s572(1) of the Legal Profession Act (a copy of which is annexed hereto and marked with the letter 'A'), by delivering the said documents to the offices of the Legal Profession Board of Tasmania situate at Level 3, 147 Macquarie Street, Hobart in the State of Tasmania between the hours of 9:00 am and 5:00 pm on a Monday, Tuesday, Wednesday, Thursday or Friday not being a public holiday.
2Such further or other orders as the Court considers appropriate.
3That the respondent pay the applicant's costs of an incidental to this application.
4That pursuant to r863(2)(a) of the Supreme Court Rules 2000 the Court certify for counsel."
The Court has already considered the scope of the powers conferred on the Board under s 572 of the Act, when it is investigating a complaint. The requirement made by the Board under s 572(1) or (2), through its appointed investigator, must, according to s 572(3) of the Act, be complied with. A fine not exceeding 50 penalty units may be imposed for non-compliance. That is in addition to the power contained in s 573(7).
The respondent in matter 3208/2017 resists the application. Presently the claim is expressed in the respondent's affidavit in these terms:
"10As a result of there being no proper legal basis for the s 572 notice and issues of client legal professional privilege in a non-client complaint, I will not be handing over the file by that deadline or at all, unless ordered to do so by the Supreme Court."
The respondent's claim to be entitled to resist the notice on the grounds of privilege remains an unconsummated claim because there is no reference made to any particular document said to attract such protection. But even if it was, s 648 operates as a complete answer to such claim. It has the effect of suspending the right to make such claim as a basis for refusing to comply with a requirement under s 573 of the Act: a valid requirement under that section cannot be avoided on the grounds of legal professional privilege or any other duty of confidence. Those words are wide enough to cover such claim including in circumstances of a non-client complaint. There is a very good reason for so holding.
In Rogerson v The Law Society of the Northern Territory (1993) 88 NTR 1, the court said at [17]:
"A number of cases were cited to us to establish the historical foundations of the privilege and the importance of it. I am sure no-one on this court challenges the importance of and necessity for the rule as a general principle. But the point is that there are certain fundamental rules of public policy embodied in the Legal Practitioners Act which make it plain that this very important, indeed vital, privilege cannot be used to prevent those charged with ensuring that practitioners behave properly from carrying out investigations to that end for the protection both of the profession and the public. Otherwise the exercise of the privilege itself may bring into disrepute the very ends for which it was designed."
The Court was referred to the High Court decision in Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49, 213 CLR 543 at [9]. There the court said:
"… a rule of substantive law …which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings …" and continuing at [11] “….it is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect”.
Section 648 of the Act provides clear words displacing the right to make such claim. Considered alongside s 573(2) it is evident that parliament has created a regime which affords the Board very significant powers of investigation. The claim to privilege is irrelevant.
The respondent also asserts that the powers of investigation must be exercised by the Board "such as not to oppress". It was put that the wide powers conferred upon the Board do not obviate the need to establish what is actually required in a particular situation. The respondent complains that the document which particularises Mr Greer's complaint, makes no reference to which of the Australian rules of professional conduct are supposed to have been breached, and there is nothing to de-limit the investigation. It was submitted that the Board has an obligation to require of its staff, and in particular its investigator, the requirement to undertake an exercise in "distillation of the information". It is submitted this would have enabled the respondent to reply to the requirement, and indeed to give particularity to claims of privilege where appropriate. I reject this submission. The respondent has enough information to understand the nature of the complaint and the matters it puts in issue. The plea which is made is designed to obfuscate.
Further, it is submitted that the Court might have expected to receive an affidavit from the investigator as to why she sought to issue the notice in the wide terms in which she did. It was put that the respondent was and is "happy to co-operate with any investigation by the Board" and to deal with allegations that are particularised. It was noted that the applicant's file goes back to May 2014 and that in all the circumstances the Board had an obligation on this application to demonstrate that the breadth of the notice was appropriate having regard to the complaint which had been made by Mr Greer. It was put by the respondent that s 572 is relatively narrow in its terms, referring to a requirement to produce "any specified document".
A file can constitute a "specified document". So long as the file is identified by reference to the matters the subject of the complaint for example, it can be picked out and produced. In this case the complaint relates to the inquest into the death of the complainant's mother, and in respect of which the respondent acted for Pauline Greer. A notice requiring production of the file relating to the respondent's conduct of the inquest into the death of Rita Greer on behalf of Pauline Greer, is a specified document for the purposes of s 572(1) of the Act.
As to the breadth of the requirement, the question is whether that which is required relates to the subject matter of the investigation. The Board says that it is appropriate to call for the whole of the file in the context of the complaint before the Board. The respondent says the request is too general, and "fishing".
It might be observed that in the context of an investigation a request is likely to be broader than the class of documents which might be relied upon for the prosecution of a complaint after an investigation has been completed. Investigations are necessarily broader and, in the event that the matter proceeds, not necessarily all of the documents required to be produced at this early stage, will be relevant at a hearing. That was the situation in Legal Services Commissioner v Shulsinger (Legal Practice) [2010] VCAT 965. As was submitted by the Board, "given the content of the degree of complaint, this is precisely the type of case where it is appropriate to call 'for' the entire file". The Board referred to the decision of the South Australian Supreme Court in Finlayson v Legal Practitioners' Conduct Board [2012] SASC 77. At [25], White J said:
"When the Board receives a complaint, it is the content of the complaint which, in the first instance, identifies the conduct the Board is to investigate in order to assess whether the practitioner has engaged in any unprofessional or unsatisfactory conduct, and in turn, the scope of the investigation which s 76 authorises. That scope may also include conduct reasonably incidental to, or associated with, the conduct about which the complaint is made, even if the complaint does not make express reference to it. The scope may also be enlarged or confined by the response, explanation or justifications which practitioners give to the Board when the complaint is published to them."
Thus, it is put to the Court that when investigating issues pertaining to self-interest and motive, the whole of the file will be relevant because it may expose matters reasonably incidental to or associated with the conduct of the inquest, and this constitutes a further justification for a broadly expressed requirement in the notice under s 573.
The Board also submits that the respondent's submissions ignore the fact the matter is at an investigative stage and not at the point where anyone is making an evaluation about the complaint. The respondent's submission was described as "too simplistic" because the question of whether the requirement contained in the notice is too oppressive, would only be informed by considering the subject matter of the complaint.
The Court accepts the Board's submissions in this respect. It is clear that at this early investigative stage, the Board has an obligation to undertake an investigation which affords it the ability to make a judgment about the complaint which has been made by Mr Greer. The complaint traverses a number of issues and includes an allegation of conduct undertaken in self-interest and for an improper motive. The Court is satisfied that the individual actions of the respondent in the matter are best understood in context. Whilst it is not possible to make a statement of general principle about the appropriate scope of a request under s 572 of the Act, having regard to the nature and extent of the complaint made by Mr Greer, in the context of the coroner's published decision, the Court is satisfied that the notice was appropriately framed, and that an order which is in the terms sought under par 1 of the application is appropriate.