JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: HALL -v- ALDRIDGE [2024] WASC 155
CORAM: COBBY J
HEARD: 29 FEBRUARY 2024
DELIVERED : 2 MAY 2024
FILE NO/S: CIV 1610 of 2022
BETWEEN: PATRICK VINCENT HALL
Plaintiff
AND
RICHARD CLIVE ALDRIDGE
Defendant
Catchwords:
Statutory construction - Confidentiality provision - Scope of exceptions to prohibition of disclosure of information - Whether court should make a declaration as to whether future conduct will not contravene statute
Legislation:
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (WA)
Local Government (Official Conduct) Amendment Act 2007 (WA)
Local Government Act 1995 (WA)
Local Government Legislation Amendment Act 2019 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application successful in part
Category: B
Representation:
Counsel:
| Plaintiff | : | M L Bennett & T J C Elder |
| Defendant | : | In Person |
| Interested Party | : | J M Misso |
Solicitors:
| Plaintiff | : | Bennett |
| Defendant | : | In Person |
| Interested Party | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Australian National Airlines Commission v The Commonwealth of Australia (1975) 132 CLR 582
Barrak v City of Parramatta Council [2019] NSWLEC 59
Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Biga Nominees Pty Ltd v Commissioner of Taxation (1991) 21 ATR 1459
Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1
Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503
Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1
Elmslie v Federal Commissioner of Taxation (1993) 46 FCR 576
Energy Resources of Australia Ltd v Commissioner of Taxation (2003) 52 ATR 120
Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316
Hilton v Wells (1985) 157 CLR 57
Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040; (2001) 110 FCR 157
Lorimer v Smail (1911) 12 CLR 504
Nasr v New South Wales [2007] NSWCA 101; (2007) A Crim R 78
Nicholas v R [1998] HCA 9; (1998) 193 CLR 173
Pharmacy Guild of Australia v Ramsey Health Care Ltd [2019] NSWSC 1045
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29; (1998) 194 CLR 355
R (Rusbridger) v Attorney‑General [2003] UKHL 38; [2004] 1 AC 357
R v Carter; Ex parte Kisch (1934) 52 CLR 221
Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331
State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358
Sutherland Shire Council v Telope Pty Ltd (1993) 85 LGERA 103
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- AGLC
- Hall v Aldridge [2024] WASC 155
- Case
- [2024] WASC 155
- Decision Date
CaseChat Overview and Summary
The central legal issues revolved around the interpretation of the statutory confidentiality provision, the exceptions to the prohibition of disclosure, and the implications of these provisions on the conduct of the parties in future legal proceedings. The plaintiff argued that certain disclosures, including those made for the purpose of giving instructions or providing advice in relation to legal proceedings, would not contravene the statutory confidentiality provision. The court had to determine whether these activities were indeed covered by the exceptions within the statute and if they constituted a breach of the confidentiality provision.
The Court held that the statutory provision, while potentially preventing a party from adducing all relevant evidence, did not preclude the court from exercising its jurisdiction. The court would base its decision on the evidence presented, rather than all relevant material. The Court rejected the plaintiff's argument that non-disclosure of certain communications would contravene the statutory obligations. Specifically, the Court found that the obligation to inform the court of binding authority was limited to authorities known to the solicitor and directly contrary to the client's case. Furthermore, the Court found no written law requiring the disclosure of information within the scope of the confidentiality provision for the purposes of giving instructions or providing advice in relation to legal proceedings. The Court also noted that the provision of advice and engaging in conferral did not appear to contravene the confidentiality provision when read literally.
The Court ultimately determined that the plaintiff's request for declarations that certain disclosures would not contravene the statute was not supported by the statutory text or relevant legal principles. The Court did not grant the declarations sought by the plaintiff, thereby affirming the constraints imposed by the statutory confidentiality provision on certain disclosures in the context of legal proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
The fact that a statute may prevent a party from adducing all relevant evidence does not mean that a court is unable to exercise its jurisdiction, but only that it will make its decision on the basis of the evidence adduced, rather than all of the relevant material.[46][46] Graham v Minister for Immigration and Border Protection [2017] HCA 33; (2017) 263 CLR 1 [33]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [24]. The correctness of the plaintiff's submission can be examined by considering the position in relation to communications subject to public interest immunity or litigation privilege. Such communications are often highly relevant, but there is no breach of r 19.1 on the part of a solicitor simply because he or she does not disclose the communication to the court. I also reject the plaintiff's submission that a failure to inform the court of a determination by the standards panel or the Tribunal that a complaint had not been made out would contravene a solicitor's obligation to inform the court of any binding authority imposed by ASCR r 19.6.1. The scope of the obligation is limited to disclosure of an authority known to the solicitor and which the solicitor has reasonable grounds to believe is directly contrary to the client's case. It is difficult to envisage how a decision of the standards panel or the Tribunal dismissing a complaint would satisfy those criteria. Further, the 'binding authority' with which r 19.6.1 is concerned is a decision of a court binding, in accordance with the doctrine of precedent, on the court hearing the matter, as demonstrated by r 19.6.2, which provides that a solicitor must inform the court, where there is no binding authority, of 'any authority decided by an Australian appellate court', known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point against the client's case. Lastly, the plaintiff seeks declarations that disclosure of information within the ambit of s 5.123(1) for the purposes of giving instructions or providing advice in relation to legal proceedings, or for the purposes of conferral with another party to legal proceedings, will not contravene s 5.123(1). The plaintiff did not identify any written law which requires or otherwise imposes any obligation to make disclosure of information within the scope of s 5.123(1) for any of those purposes. I note that a legal practitioner acting in proceedings would, in the ordinary course, not be a person to which s 5.123(1) applies,[47] and the Act does not provide that a person who communicates information disclosed to them in breach of s 5.123 thereby commits an offence, suggesting that at least the provision of advice and engaging in conferral would not contravene s 5.123(1). [47] s 5.123(1A). Further, as identified above, the communication of information already known to all parties to the communication does not constitute disclosure in the relevant sense. Read literally, however, s 5.123(1) prohibits a person identified in s 5.123(1A) from disclosing information regarding a complaint to his or her solicitor, although I consider that the exception contained in s 5.123(2)(a) would permit such a person to provide instructions to a practitioner for the purpose of investigating, prosecuting or defending (that is, 'dealing with') a complaint.