Hall v Aldridge - [2024] WASC 155

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
Rowell v Pratt [1938] AC 101
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
Thurn v Federal Commissioner of Taxation (1965) 112 CLR 432
Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070
Victoria v Intralot Australia Pty Ltd [2015] VSCA 358

COBBY J:

The plaintiff, who is the mayor of a local council, commenced these defamation proceedings against the defendant in 2022.
By a minute of proposed orders filed in these proceedings, the plaintiff seeks that a declaration be made in the following terms:
It is declared that disclosure of any 'information' within the meaning of that term in section 5.123 of the Local Government Act 1995 (WA) (Act) during the course of these proceedings for the following listed purposes is not, and shall not be, an offence under section 5.123(1) of the Act notwithstanding that the information may disclose the existence or details of a complaint made by or against either of the parties:
1.1to comply with a discovery obligation under Rules of the Supreme Court 1971 (WA) (RSC) O 26 r 1;
1.2to plead particulars of facts and matters from which malice is to be inferred under RSC O 20 r 13A(3);
1.3to establish a fact required to be proved at trial under RSC O 36 r 1;
1.4to inform the court of relevant material pursuant to the obligation of the parties' solicitors to not mislead the Court under the Australian Solicitors' Conduct Rules (ASCR) r 19.1;
1.5to inform the Court of a binding authority pursuant to the obligation of the parties' solicitors under ASCR r 19.6.1;
1.6for the purposes of providing instructions or giving advice in relation to the proceedings; and
1.7during conferral with the other party in the conduct of the proceedings.
The defendant does not oppose the making of that declaration.
The Director General of the Department of Local Government, Sport and Cultural Industries appeared as contradictor to the plaintiff's application, limited to the question of the proper construction of s 5.123. The Director General did not seek to be heard as to whether the court should make the declaration sought by the plaintiff.
The Act provides for the establishment of local government with elected councils as their governing body. The council governs the local government's affairs and is responsible for the performance of the local government's functions.
Section 5.123 forms part of pt 5 div 9 of the Act, inserted in 2007 by s 9 to s 11 of the Local Government (Official Conduct) Amendment Act 2007 (WA). The Division provides a disciplinary framework to deal with misconduct by individual members of local government.
The Act requires that a local government adopt a code of conduct for council and committee members.[1]
[1] s 5.104(1). References to legislation are to the provisions of the Act unless otherwise stated.
The Act contemplates that each local government council will have a complaints officer.[2]
[2] s 5.120.
A contravention by a council member of the code of conduct constitutes a minor breach,[3] as does a contravention of a local law made by the local government specified by regulation to constitute a minor breach.[4]
[3] s 5.105(1)(a).
[4] s 5.105(1)(b).
A person who has reason to believe that a council member has committed a minor breach may complain to the complaints officer of the relevant local government.[5]
[5] s 5.107.
The complaints officer is to refer complaints of minor breaches to a standards panel established under the Act[6] for determination.
[6] s 5.122.
A complaint of a minor breach may also be initiated by the complaints officer[7] or by the chief executive officer of the department of the Public Service assisting the Minister to administer the Act (the Departmental CEO), where the Departmental CEO considers that a complaint made to the Departmental CEO that a council member has committed a serious breach discloses only a minor breach.[8]
[7] s 5.109(1).
[8] s 5.108(1).
A standards panel may dismiss a complaint it considers is frivolous, trivial, vexatious, misconceived or without substance,[9] and otherwise make a finding as to whether a breach occurred.[10] The exception is where the standards panel considers that, if the alleged breach was found to have occurred, it would constitute a recurrent breach,[11] in which case the panel has a discretion to refer the complaint to the Departmental CEO.[12]
[9] s 5.110(3A).
[10] s 5.110(2)(a).
[11] Defined by s 105(2) to mean a minor breach committed after the council member has been found to have committed two or more other minor breaches.
[12] s 5.111.
Where a standards panel finds that a council member has committed a minor breach, it may order that no sanction be imposed, or otherwise order that the person be publicly censured, make a public apology, undertake specified training or make a payment to the local council.[13]
[13] s 5.110(6).
A complaints officer who considers that a complaint discloses a serious breach is required to send the complaint to the Departmental CEO,[14] and a person may make a complaint of a serious breach direct to the Departmental CEO.[15]
[14] s 5.115(1).
[15] s 5.114(1).
The Departmental CEO may refer an allegation of a recurrent breach or a serious breach to the State Administrative Tribunal for determination and the imposition of particular penalties where he or she considers it appropriate to do so.[16] The serious breaches to be dealt with by the Tribunal are recurrent breaches and those matters for which there is an offence in an Act or regulation and the offence is particular to the actions of council members,[17] and include a failure to declare a financial interest, the improper use of information to gain advantage or cause detriment and a failure to complete annual financial returns.
[16] s 5.116(2).
[17] s 5.105(3).
Section 5.117(1) of the Act provides that the Tribunal may make orders imposing one or more of a series of sanctions if the Tribunal finds that a person has committed a serious breach. The available sanctions are public censure, an order for a public apology, a requirement to undertake training, suspension of up to six months and/or disqualification from holding office as a member of a council for up to five years, although s 117(2) provides that the Tribunal may make a suspended order in certain circumstances.
Findings that a council member has committed a breach are made public. A complaints officer is required to maintain a register of all minor complaints that result in a finding that there has been a minor breach,[18] and the chief executive officer of a local council is required to publish an up to date version of that register on its official website.[19] The Tribunal publishes its decisions on its website.
[18] s 5.121(1).
[19] s 5.121(3).
There is no review of a decision of a standards panel that a complaint of a minor breach has not been made out, although a party may apply to the Tribunal for a review of a decision by the panel to make an order under s 5.110(6).[20]
[20] s 5.125(1) and 5.125(2), read together.
Section 5.123 of the Act currently provides:
5.123. Confidentiality
(1A)Subsection (1) applies to a person -
(a)who makes a complaint; or
(b)against whom a complaint is made; or
(c)who performs a function under this Act in respect of a complaint; or
(d)who, as a result of anything done under this Division, becomes aware of any detail of a complaint knowing it to be relevant to the complaint.
(1)A person to whom this subsection applies commits an offence if the person discloses information that the complaint has been made or information about any detail of the complaint.
(2)It is not an offence against subsection (1) to disclose information if -
(a)the disclosure is made for the purposes of investigating or dealing with the complaint; or
(b)the disclosure is required under a written law; or
(ba)the disclosure is made by the Departmental CEO in circumstances where -
(i)the complaint to which the information relates is a complaint sent to the Departmental CEO under section 5.114(1) or 5.115(1); and
(ii)the Departmental CEO has made a decision about whether to make an allegation under section 5.116(2) in relation to the complaint; and
(iii)the Departmental CEO considers that the disclosure is in the public interest; or
(c)the complaint to which the information relates is a complaint of a minor breach and a standards panel has dealt with the breach under section 5.110(6); or
(d)the complaint to which the information relates is a complaint of a recurrent breach or serious breach and the State Administrative Tribunal has made an order described in section 5.117(1) in relation to the breach.
Section 5.123(1) creates an offence of disclosing information that a complaint has been made about a council member or any detail of that complaint, where the disclosure is made by one of the persons specified in s 5.123(1A).
Section 5.123(2) sets out the exceptions to the prohibition created by s 5.123(1), allowing disclosure where necessary to investigate or deal with a complaint or 'required under a written law', and where a standards panel or the Tribunal has determined a complaint has been made out and imposed a penalty pursuant to the Act.
The Departmental CEO also has a discretion, after he or she has determined whether to (in effect) refer a complaint to the Tribunal, to make disclosure if he or she considers that disclosure is in the public interest.
Importantly for present purposes, there is no exception to s 5.123(1) where the disclosure relates to a complaint which has not been found to have been made out by a standards panel or the Tribunal - that is, where a complaint has been dismissed.
Nor is there any express exception permitting disclosure for the purposes of legal proceedings. Although the plaintiff submits that should be regarded as an oversight, that cannot simply be assumed to be the case, since the omission may have been a deliberate policy choice.
The plaintiff contends that s 5.123(2)(b) is to be construed such that disclosure does not constitute an offence where the obligation arises 'pursuant to' or 'in accordance with' a written law, such that compliance with a notice to give discovery under the Rules of the Supreme Court 1971 (WA) will not contravene s 5.123(1), while the Director General contends that the word 'required' in the phrase 'required under a written law' is to be emphasised, so that disclosure is not permitted unless the relevant written law imposes a direct obligation to make disclosure.
The principles for construction of a statute are well settled. The construction is to be informed by a plain reading of the words of the legislative provision, in the context of the Act as a whole, having regard to its purpose and language.[21] Ultimately, the task of the court is to discern what the legislature is to be taken as having intended.[22]
[21] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29; (1998) 194 CLR 355 [69].
[22] Project Blue Sky [70].
Relevant context may include legislative history and extrinsic materials, albeit that those materials cannot displace the meaning of the statutory text.[23]
[23] Commissioner of Taxation of the Commonwealth of Australia v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 [39]
The task is to construe the language of the statute, not individual words.[24] It is therefore impermissible to divide a composite phrase into its constituent words, select a meaning for each word, divorced from the context in which it appears, and then reassemble the provision.[25]
[24] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 397; State of Victoria v Intralot Australia Pty Ltd [2015] VSCA 358 [95].
[25] Lorimer v Smail (1911) 12 CLR 504, 508 ‑ 510; R v Carter; Ex parte Kisch (1934) 52 CLR 221; Biga Nominees Pty Ltd v Commissioner of Taxation (1991) 21 ATR 1459, 1468 ‑ 1469.
Further, there is no presumption that a statute prohibiting the disclosure or publication of information is to be construed as being inapplicable where the information is sought for use in legal proceedings,[26] although in Victoria v Intralot Australia Pty Ltd[27] the Victorian Court of Appeal, having referred to Rowell v Pratt, said:
... authorities at the highest level stretching back over 60 years - well before the passage of the Act - make it clear that if an Australian legislature desires to enact a secrecy provision which would impinge on court procedures for the obtaining (by parties or by the court itself) of relevant information or evidence - such as pleadings, particulars, discovery, inspection, subpoenas or the giving of written or oral testimony - then the legislature will generally need to refer expressly to courts in this regard [55].
[26] Rowell v Pratt [1938] AC 101, 106, 113.
[27] Victoria v Intralot Australia Pty Ltd [2015] VSCA 358.
A number of the decisions identified by the Court of Appeal in Intralot as supporting that approach prohibited the disclosure of information by a person except in the performance of a duty,[28] or prohibited disclosure to 'any person' or 'to another person', phrases which have been held to be inapplicable to disclosure to a court, a court not being a person.[29]
[28] For example, Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, 6.
[29] For example, Hilton v Wells (1985) 157 CLR 57, 87.
The offence created by s 5.123(1) is solely concerned with the disclosure of information. The section does not refer to disclosure 'to any person', nor does it permit disclosure in the performance of a duty under the Act, except for the purposes of investigating or dealing with a complaint. The prohibition on disclosure imposed by s 5.123(1) is therefore potentially broader in scope than those considered in the decisions identified in Intralot.
The text of s 5.123(2)(b) is such that each construction suggested by the parties is open. The words 'required' and 'under' are both capable of various meanings, depending on their context.
Gleeson CJ observed that the word 'require' is not inflexible and usually takes its meaning from its context in Sutherland Shire Council v Telope Pty Ltd.[30] In Secretary to the Department of Premier and Cabinet v Hulls[31] the Victorian Court of Appeal, called upon to consider the interaction between secrecy provisions in the Casino Control Act1991 (Vic) and freedom of information legislation which permitted disclosure 'where the Tribunal is of the opinion that the public interest requires' that there be disclosure, said:
Regularly, of course, statutes do use the word 'requires' or a variant deliberately to convey a sense of the imperative; when a person is described as 'required' to do something or other, that surely means that he or she is obliged to do it [34].
[30] Sutherland Shire Council v Telope Pty Ltd (1993) 85 LGERA 103, 106.
[31] Secretary to the Department of Premier and Cabinet v Hulls [1999] VSCA 117; [1999] 3 VR 331.
Section 5 of the Interpretation Act 1984 (WA) provides that the word 'under' includes 'by', 'in accordance with', 'pursuant to' and 'by virtue of' when used in relation to a written law or a provision of a written law.
It was said in Elmslie v Federal Commissioner of Taxation[32] that 'the word "under" usually imports a direct connection between the relevant act and the instrument'.[33] Similarly, 'under' was said by Kitto J to be a word 'commonly used to describe the relation between a right and the root of title from which the right is derived' in Thurn v Federal Commissioner of Taxation,[34] in the context of a decision as to whether payments made under an assigned life insurance policy were made under 'a policy of assurance' or the assignment. However, in Energy Resources of Australia Ltd v Commissioner of Taxation[35] Lindgren J observed that the word 'under' admits of 'degrees of precision and exactness on the one hand, and of looseness and inexactness on the other', making it 'necessary to have regard to the context in order to identify the meaning of the word intended in a particular case'.[36]
[32] Elmslie v Federal Commissioner of Taxation (1993) 46 FCR 576.
[33] Elmslie v Federal Commissioner of Taxation (592).
[34] Thurn v Federal Commissioner of Taxation (1965) 112 CLR 432, 437.
[35] Energy Resources of Australia Ltd v Commissioner of Taxation (2003) 52 ATR 120.
[36] Energy Resources of Australia Ltd v Commissioner of Taxation [37].
The narrower construction advanced by the Director General is supported to some extent by s 9.69A of the Act, which provides:
Nothing in Part 5 or Part 8 affects the duty of the Departmental CEO to notify as required by the Corruption, Crime and Misconduct Act 2003 section 28 or 45H.
Each of s 28 and s 45JH of the Corruption, Crime and Misconduct Act 2003 (WA) impose a mandatory duty to disclose certain information to the Corruption and Crime Commission. A narrow construction of s 5.123(2)(b) would therefore not render the provision devoid of operation, and to that limited extent s 9.69A supports the construction advanced by the Director General.

A narrow construction of the section is also supported by the expansion of the operation of the prohibition in 2019. As first enacted, the operation of s 5.123(1) was limited to the duration of the 'campaign period', defined by the then s 5.123(3) to mean, essentially, the period between nominations for election and the election itself. Only complaints made within the campaign period were to be treated in confidence, and then only until the standards panel or Tribunal determined the complaint or the campaign period ceased, an indication that Parliament's initial concern was, at least in part, to limit the impact unproven allegations of misconduct might have on the election prospects of council members.
That limitation on the prohibition of disclosure was removed upon the repeal of s 5.123(3) by s 59 of the Local Government Legislation Amendment Act 2019 (WA). The removal of the prohibition on disclosure to the campaign period indicates that the legislature intended to enhance the confidentiality attaching to unproven complaints.
The reasons for confidentiality requirements include the need to protect complainants and to encourage them to come forward in the knowledge that information provided by them will be kept confidential. An investigation may also need to be kept confidential to avoid collusion between individuals under investigation and to prevent the destruction or concealment of relevant materials.
Additionally, pt 5 div 9 is concerned with the conduct of council members. A local council is a statutory corporation, but also a political body, as a consequence of its members being elected.[37]
[37] Barrak v City of Parramatta Council [2019] NSWLEC 59 [36].
Considered in that context, a prohibition on the disclosure of complaints which have not been found to have been made out acts to reduce the prospects of misuse of the complaint process to embarrass or otherwise impede political opponents, as shown by the initial restriction of the prohibition to the campaign period, and to restrict the scope for the making of allegations of defamatory conduct.[38]
[38] No party suggested that the prohibition imposed by s 5.123 impaired the implied freedom of political communication.
The plaintiff, however, emphasises the importance that discovery plays in the administration of justice. Discovery has been described as promoting the ascertainment of truth in litigation and an essential part of the proper administration of justice.[39] In Australian National Airlines Commission v Commonwealth of Australia,[40] Mason J (as he then was) said:
[I]t is central to our conception of the administration of justice that documents relevant and material to the issues arising in litigation should not be withheld from the parties and that each party enjoys as an incident of his right to a fair trial the right to present as part of his case all the relevant and material evidence which supports or tends to support that case (593).
[39] Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316, 321.
[40] Australian National Airlines Commission v The Commonwealth of Australia (1975) 132 CLR 582.
Care must be taken where a statutory provision strikes a balance between two competing interests in determining the purpose of a provision. In Carr v Western Australia,[41] Gleeson CJ said:
Where the problem is one of doubt about the extent to which the legislation pursues a purpose, stating the purpose is unlikely to solve the problem. For a court to construe the legislation as though it pursued the purpose to the fullest possible extent may be contrary to the manifest intention of the legislation and a purported exercise of judicial power for a legislative purpose [5].
[41] Carr v Western Australia [2007] HCA 47; (2007) 232 CLR 138.
It is important to bear in mind what information is potentially prohibited from disclosure by s 5.123. The section undoubtedly prohibits disclosure of information relating to complaints which are in the process of being investigated or prosecuted, subject to the Departmental CEO's discretion to make certain matters public pursuant to s 5.123(2)(ba).
The second category of information is that related to complaints found not to have been made out. The legislative purpose in prohibiting disclosure of this second class of information in legal proceedings is therefore difficult to discern.
Further, s 5.123(2)(ba) recognises that disclosure of information relating to a complaint may be in the public interest notwithstanding that no finding has yet been made in relation to that complaint. It would be incongruous if the public interest in parties having access to relevant materials in litigation was not given effect under the Act, when the legislature has recognised that there will be circumstances where disclosure will be in the public interest notwithstanding that the Tribunal is yet to determine the complaint.
Balancing the legislature's intention that information relating to unfounded complaints not be disclosed against the principle that parties have access to all relevant material for the purposes of litigation, I consider that the wider construction of s 5.123(2)(b) is to be preferred, such that the words 'required under a written law' in s 5.123(2)(b) are to be understood to mean 'obliged pursuant to a written law'.
A person who receives a notice to give discovery pursuant to RSC O 26 r 1 may therefore give discovery of documents containing information within the scope of s 5.123(1) without contravening the section, the disclosure of that information being required in the relevant sense by the rule. Although the obligation to provide discovery does not arise until a notice issued pursuant to O 26 r 1 is received by the litigant or an order for discovery made pursuant to O 26 r 7, in each case the obligation arises pursuant to a 'written law'.
Regarding the balance of the plaintiff's application, I do not accept that O 20 r 13A(3) imposes any obligation on a plaintiff to plead malice in defamation proceedings. A decision to plead malice is a forensic choice on the part of a plaintiff, such that it cannot be said that the rule requires or imposes any obligation to do so upon a plaintiff.
Nor do I accept the plaintiff's submission that disclosure of information within the ambit of s 5.123(1) is 'required under' O 36 r 1, so that evidence can be adduced at trial notwithstanding the prohibition on disclosure.
I reject that proposition, which seeks to elevate a procedural rule dealing with the manner in which evidence is ordinarily, but not always, to be adduced to the status of an obligation. Order 36 r 1 does not impose any requirement on parties to lead any particular evidence. It is well established that it is for a party and his or her lawyers to decide what evidence is to be called in support of that party's case, and it is generally not a function of the court to become involved in that process.[42]
[42] Hospitality Group Pty Ltd v Australian Rugby Union Ltd [2001] FCA 1040; (2001) 110 FCR 157 [80].
That is not to say that s 5.123 necessarily prevents a person from giving evidence regarding a complaint that has been found not to have been made out, where that evidence is relevant.
The concept of disclosure involves making known to a person information that the person did not previously know.[43] It is therefore not possible to 'disclose' something to a person who already knows or possesses that information.[44]
[43] Nasr v New South Wales [2007] NSWCA 101; (2007) A Crim R 78[127].
[44] Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd [2008] NSWSC 1070 [19].
Accordingly, although s 5.123(1A) specifies that the complainant and the person the subject of the complaint are both subject to the prohibition contained in s 5.123(1), it is unlikely that either person can make disclosure to the other regarding that complaint, since the details of the complaint (as opposed to any investigation of the complaint) will be known to each of them.
Further, information regarding a complaint may become known through the discovery process, with the consequence that communication of that information between persons in possession of the information by means of that process will not involve disclosure in the relevant sense.
Finally in this regard, as was said in Intralot, there is extensive authority for the proposition that a prohibition or restriction on the communication of facts or documents 'to any person' will not ordinarily preclude disclosure to a court, since a court is not generally to be regarded as a person.
In my opinion, the absence of the words 'to any person' or words to similar effect in s 5.123(1) does not require the conclusion that the legislature's intention was to prohibit the giving of evidence in court, since the communication of information to another person is central to the concept of disclosure. The prohibition in s 5.123 would therefore not be breached where the parties to the proceedings were already possessed of the information otherwise prohibited from disclosure.
As for the plaintiff's reliance upon the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA) (ASCR), it was common ground that those rules are a written law, by operation of s 5 of the Interpretation Act.
I reject the plaintiff's submission, however, that the disclosure of information prohibited by s 5.123(1) is required by ASCR r 19.1.
Rule 19.1 provides that '[a] solicitor must nor deceive or knowingly misled the court'. The rule does not impose any obligation on a solicitor to adduce evidence which is prohibited from disclosure by statute.
It has long been recognised that the rules of evidence may be modified by statute. 'A law does not usurp judicial power because it regulates the method or burden of proving facts'.[45]
[45] Commonwealth v Melbourne Harbour Trust Commissioners (1922) 31 CLR 1, 12. See generally Nicholas v R [1998] HCA 9; (1998) 193 CLR 173 [23] ‑ [25].
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.
At present, the scope and nature of any information relating to complaints found not to have been made out by a standards panel or the Tribunal is not known. Further, the parties and the Director General did not address submissions as to what, if any, liability might attach to a person who communicated information disclosed to them in contravention of s 5.123(1) to a third party. In the circumstances, I am not satisfied that it is appropriate to make a declaration in terms of either paragraph 1.6 or 1.7 of the plaintiff's application at this time.
Although a civil court has a wide power to declare that certain proposed conduct is lawful,[48] the making of a declaration is a matter of discretion and a civil court will usually only do in exceptional circumstances. The High Court emphasised in Bass v Permanent Trustee Co Ltd[49] that in most instances declaratory relief can only be granted in respect of agreed or proven facts.[50]
[48] R (Rusbridger) v Attorney‑General [2003] UKHL 38; [2004] 1 AC 357.
[49] Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 [45].
[50] At [45] ‑ [56].
There are a number of factors which are relevant to whether a court should make such a declaration, including:[51]
[W]hether there is a real dispute between the parties, whether there are facts in dispute, whether there is any private or public interest in making the declaration, whether the declaration relates to past or future conduct, whether criminal proceedings are threatened or have been commenced, whether the declaration seeks to make certain conduct criminal or not criminal and whether there are more appropriate remedies.
[51] Pharmacy Guild of Australia v Ramsey Health Care Ltd [2019] NSWSC 1045 [159] (citations removed).
Importantly, the plaintiff has been unable to secure a proper contradictor to the application insofar it concerns whether any of the declaratory relief he seeks should be granted. The Director General declined to be heard in respect of this aspect of the plaintiff's application.
However, as I have determined that the disclosure of information by way of discovery in legal proceedings is within the exception contained in s 5.123(2)(b) and the Director General made submissions as to the proper construction of s 5.123, I am prepared to make a declaration to the effect that disclosure of any 'information' within the meaning of that term in section 5.123(1) during the course of these proceedings in order to comply with a discovery obligation under O 26 r 1 will not constitute an offence under section 5.123(1) of the Act.
As I have found that the conduct identified in paragraphs [1.2] to [1.7] of the plaintiff's proposed declaration is not 'required under a written law' within s 5.123(2)(b), I otherwise decline to make any declaration in the terms proposed by the plaintiff.
I propose to hear the parties and the Director General as to the precise form of the declaration to be made and costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VR
Associate to the Hon Justice Cobby
2 MAY 2024