Khosa v Legal Profession Complaints Committee
[2021] WASCA 64
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KHOSA -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2021] WASCA 64
CORAM: BUSS P
MITCHELL JA
VAUGHAN JA
HEARD: 24 MARCH 2021
DELIVERED : 30 MARCH 2021
PUBLISHED : 27 APRIL 2021
FILE NO/S: CACV 132 of 2020
BETWEEN: MANRAJ SINGH KHOSA
Appellant
AND
LEGAL PROFESSION COMPLAINTS COMMITTEE
Respondent
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: PRESIDENT PRITCHARD
Citation: LEGAL PROFESSION COMPLAINTS COMMITTEE and KHOSA [2020] WASAT 167
File Number : VR 159 of 2017
Catchwords:
Appeal - Practice and procedure - Legal practitioners - Disciplinary proceedings in State Administrative Tribunal - Where appellant proposed to produce notes of a third person contained in an Almanac as evidence in support of his case - Where the third person had produced the original Almanac to the Tribunal pursuant to orders made by the Tribunal - Whether the Almanac was or contained protected matter which the Tribunal was prohibited from disclosing - Whether the Tribunal had power to grant the respondent leave to uplift the Almanac for the purpose of conducting forensic testing directed towards ascertaining the authenticity of the notes
Legislation:
Freedom of Information Act 1992 (WA), sch 1, cl 3
State Administrative Tribunal Act 2004 (WA), s 3, s 32, s 34, s 35, s 64, s 72, s 73, s 105, s 160
Result:
Leave to appeal granted
Appeal dismissed
Category: A
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | C E Moss |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Legal Profession Complaints Committee |
Case(s) referred to in decision(s):
A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
Fletchers International Exports Pty Ltd v Hodges [2000] NSWCA 285; (2000) 50 NSWLR 200
Grassby v The Queen (1989) 168 CLR 1
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Khosa v Legal Profession Complaints Committee [2021] WASCA 34
Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276
McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423
Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Neil v Legal Profession Complaints Committee [2017] WASCA 109
Nursing and Midwifery Board of Australia v HSK [2019] QCA 144; (2019) 1 QR 600
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331
O'Sullivan v Farrer (1989) 168 CLR 210
Paridis v Settlement Agents Supervisory Board [2007] WASCA 92; (2007) 33 WAR 361
Rayney v Legal Profession Complaints Committee [2019] WASCA 104
Re Saxton (deceased) [1962] 1 WLR 968
Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
Singh v Medical Board of Australia [2018] WASCA 125
Smith v Peters [1875] LR 20 Eq 511
Thayli v Commissioner of Police [2021] WASCA 46
REASONS OF THE COURT:
On 30 March 2021 we made orders granting leave to appeal, dismissing the appeal and discharging an order made on the appellant's earlier stay application. We said that we would publish reasons for making those orders at a later date. These are our reasons for making those orders.
Summary
A question of law raised by this appeal is whether the State Administrative Tribunal had the power to allow the respondent (Committee) to uplift a document produced to the Tribunal by a third person, and proposed to be adduced by the appellant as evidence supporting his case, for the purpose of having the document forensically examined in the United States.
In our view, the Tribunal did have power to order that the Committee have leave to uplift the document for the purpose of having the document forensically tested in the manner proposed by the Committee. That power was conferred by s 34(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 34(1) empowers the Tribunal to give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. The order allowing the Committee to uplift the document was a direction for the fair conduct of the proceeding, on the basis that the Tribunal in effect found that a fair hearing required the Committee to be given the opportunity to test the authenticity of the documentary evidence on which the appellant sought to rely.
The grounds of appeal which raise the above question of law are therefore not established. There is no merit in the appellant's other grounds of appeal. While we granted leave to appeal having regard to the significance of the question of law concerning the Tribunal's power, we ordered that the appeal be dismissed.
The primary proceedings
In the primary proceedings, the Committee alleges that the appellant has engaged in professional misconduct, as defined in the Legal Profession Act 2008 (WA) (LP Act), on various grounds. Relevantly, the grounds allege that the appellant knowingly made false or misleading representations at a meeting with officers of the Legal Practice Board (Board) on 17 June 2015 (2015 Meeting). The Tribunal's findings as to what was said at the 2015 Meeting will be central to the determination of that ground of complaint.[1]
[1] Primary decision [1].
The Committee's application was listed for a final hearing before the Tribunal commencing on 25 March 2020. Documents filed by the appellant pursuant to programming directions included a witness statement from his wife, Ms Sharon Ruba, who was present at the 2015 Meeting, and handwritten notes said to have been made by Ms Ruba very shortly after the 2015 Meeting (Notes). The Notes gave a very detailed account of what took place at that meeting. The Notes were made in a document described as the 2015 Feng Shui Almanac (Almanac). Ms Ruba's witness statement and the Notes record a different version of events from that set out in witness statements filed by two officers of the Board, who attended the 2015 Meeting.[2]
[2] Primary decision [2] - [4].
On 17 March 2020, the Tribunal constituted by its President, Justice Pritchard, ordered that Ms Ruba produce the entirety of the Almanac, pursuant to s 35(1) of the SAT Act. Section 35 provides:
(1)On the application of a party to a proceeding, the Tribunal may order that a person —
(a)who is not a party to the proceeding; and
(b)who has, or is likely to have, in the person's possession or under the person's control a document or other material that is relevant to the proceeding,
produce the document or material to the Tribunal or the party within the time specified in the order.
(2)The Tribunal may order a person to produce a document or other material despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.
(3)However if the Tribunal considers that any document is or contains protected matter, the Tribunal cannot order a person to produce it to a party.
The Almanac was produced to the Tribunal pursuant to this order. After some debate, Ms Ruba consented to the provision of a copy of the Almanac, from which all references to personal information about third parties had been redacted, to the Committee for inspection.[3]
[3] Primary decision [5] - [6].
On 22 May 2020, the Committee sought orders to enable it to investigate the authenticity of the Notes. The Committee sought orders permitting it to uplift the Almanac and send it to the United States for forensic testing of the Notes.[4]
[4] Primary decision [7].
The primary decision
In its reasons for decision delivered on 22 December 2020, the Tribunal noted that the appellant opposed the orders sought by the Committee on two bases:[5]
(1)The Almanac contains protected matter, which the Tribunal is prohibited from disclosing to other persons.
(2)The Tribunal did not have power to make the orders sought.
[5] Primary decision [10].
The Tribunal concluded that the Almanac did not contain 'protected matter' which s 160(2) of the SAT Act prohibited the Tribunal from disclosing to a person other than a sitting member of the Tribunal. Under relevant definitions in the SAT Act, this turned on whether the Almanac was or contained 'exempt matter' under sch 1 to the Freedom of Information Act 1992 (WA) (FOI Act). Under cl 3(1) of sch 1 to the FOI Act, personal information contained in a document is, prima facie, exempt from disclosure under that Act. However, that prima facie status is subject to a number of exceptions. The Tribunal, assuming the Almanac to contain personal information, found that the Almanac fell within the exception in cl 3(6) of sch 1 to the FOI Act, which provides that:[6]
Matter is not exempt under subclause (1) if its disclosure would, on balance, be in the public interest.
[6] Primary decision [12] - [15], [21] - [22].
In concluding that disclosure would be in the public interest, the Tribunal recognised that the exempt status of personal information under the FOI Act reflects the legislature's appreciation of the public interest in the maintenance of the privacy of personal information. However, the Tribunal found that the public interest in the privacy of personal information was outweighed by the public interest in the administration of justice. In the Tribunal's view, that was a very strong countervailing public interest in the present context, which concerns a document upon which one party seeks to rely as evidence to support a particular version of events advanced by that party.[7] The Tribunal said:[8]
In the present case, the administration of justice will involve a determination as to the authenticity of the Notes which will bear upon the credibility of the witnesses upon whom the respondent relies, namely, himself and Ms Ruba. In circumstances where there is a legitimate concern arising from the late emergence of the Notes (the existence of which was not previously drawn to the attention of the Committee), there is cause for suspicion on the Committee's behalf about the authenticity of those Notes. In my view, it would be an affront to the administration of justice if the Committee and the Tribunal were not ultimately able to investigate, or be informed about, the authenticity of the Notes upon which the respondent seeks to rely in support of his case.
[7] Primary decision [19].
[8] Primary decision [20].
The Tribunal accepted that no provision of the SAT Act, the LP Act or rules and regulations made under the SAT Act expressly permitted the Tribunal to make the orders sought by the Committee. The Tribunal contrasted this with the position in other jurisdictions.[9] However, the Tribunal concluded that it had the power to make the orders sought under s 73 of the SAT Act, which provides:
(1)A power of the Tribunal to make an order or give a direction (the primary power) includes the power to make the order subject to conditions and the power to make any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power.
(2)An ancillary order may provide for a decision of the Tribunal in relation to a reviewable decision to be implemented by a person who is not the original decision maker whether or not that person is a party to the proceeding.
[9] Primary decision [23] - [25].
The Tribunal identified the following relevant primary powers for the purposes of s 73 of the SAT Act:[10]
[10] Primary decision [35] - [39].
•Section 34(1) of the SAT Act, which provides that:
The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding.
•Section 35(1) of the SAT Act, which provides that the Tribunal may, on the application of a party, order a person:
Who is not a party to the proceedings and who has, or is likely to have, in the person's possession or under the person's control a document or other material that is relevant to the proceeding to produce the document or material to the Tribunal or the party.
•Section 72 of the SAT Act, which provides that:
The Tribunal may inspect any document or other material produced to it, and retain it for as long as it reasonably thinks fit, and make copies of any document or of its contents.
•Section 32(7)(a) of the SAT Act, which provides that:
The Tribunal is to ensure that all relevant material is disclosed to it, so as to enable it to determine all of the relevant facts in issue in a proceeding.
•Section 32(5) of the SAT Act, which provides that:
To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or an enabling Act, it is to be as the Tribunal determines.
The Tribunal held:[11]
… [The] Tribunal's power to compel the production, and to control the inspection, of documents must be regarded as capable of being supported, in appropriate cases, by ancillary orders to permit the uplift of such documents and the testing of such documents for purposes including to ascertain the authenticity of such documents.
[11] Primary decision [40].
After considering the circumstances of the case, the Tribunal concluded that it should exercise its discretion to make the orders sought by the Committee.[12]
[12] Primary decision [41] - [50].
The orders relevantly made by the Tribunal on 22 December 2020 were in the following terms:
1. The [Committee] have leave to uplift the original [Almanac], on and from 5 January 2021, for the purpose of having the original pages of the Almanac [containing the Notes] examined and tested by Mr Gerald M LaPorte, forensic chemist and document specialist, of [forensic laboratories in the United States].
2. For the purposes of facilitating the said examination and testing, the applicant may send the Almanac to Mr LaPorte by courier upon receipt of an undertaking by Mr LaPorte that the Almanac will, upon receipt by him, be kept in safe custody and returned promptly to the [Committee], also by courier, following completion of the examination and testing.
3. Upon receipt of the Almanac from Mr LaPorte, the [Committee] must promptly return the Almanac to the Tribunal.
4. Prior to uplifting the Almanac, an officer of the [Committee] is to provide to the Tribunal an undertaking in the following terms:
'I hereby undertake to use my best endeavours to ensure the security of the Almanac during such period as it is in my custody prior to its being couriered to Mr LaPorte and upon its receipt by courier from Mr LaPorte.'
The orders made on 22 December 2020 also adjourned the Tribunal proceedings to 9 February 2021 for directions. On 9 February 2021, the directions hearing was further adjourned to 23 February 2021 to enable the Committee to obtain a signed undertaking from Mr LaPorte and to await the determination of a stay application made by the appellant in his appeal to this court (see [22] below). No substituted dates for the substantive hearing of the Committee's application to the Tribunal have been set.
The appeal to this court
On 23 December 2020, the appellant filed an appeal notice and application for leave to appeal against the orders specified at [17] above.
Section 105(1) and s 105(3) of the SAT Act provide for a right of appeal to this court, with leave, from a decision of the Tribunal constituted by, or by members who include, a judicial member. Generally, under s 105(2), an appeal can only be brought on a question of law. However, there is an exception, provided for by s 105(13), where the Tribunal's decision under, relevantly, the Legal Profession Act 'has the effect of depriving a person of the person's capacity to lawfully pursue a vocation'. Where that exception applies, an appeal may be brought under s 105 'on any ground whether it involves a question of law, a question of fact or a question of mixed law and fact'.
The exception in s 105(13) of the SAT Act is not engaged in the present case.[13] The present appeal can only be brought on a question of law. As Buss JA (Wheeler and Pullin JJA agreeing) observed in Paridis v Settlement Agents Supervisory Board:[14]
An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2).
A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law. …
A tribunal does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis.
A ground of appeal that a tribunal has made a finding which is manifestly unreasonable, in the sense that no reasonable tribunal could have made that finding, alleges an error of law.
(citations omitted)
[13] See Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [149] - [154].
[14] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53] - [56].
By application in an appeal dated 11 January 2021, the appellant sought a stay of the Tribunal's orders made on 22 December 2020 until the determination of the appeal. On 19 February 2021, this court dismissed the stay application, but made an order that:[15]
By 4.00 pm on 24 February 2021, the respondent is to instruct the expert, Mr LaPorte, that Mr LaPorte is not to send any draft report or to sign or send any completed report in connection with his examination or testing of the Almanac to any person or entity until 4.00 pm on the date this court has delivered judgment in the appeal or further order.
[15] See Khosa v Legal Profession Complaints Committee [2021] WASCA 34 (stay decision).
The appellant's grounds of appeal are as follows:
1. The Tribunal erred in law in determining that the Almanac does not contain protected matter as defined in the SAT Act.
2. The Tribunal erred in law by allowing the examination of the [Almanac] in the absence of a primary power to make such orders.
3. The Tribunal erred in law by making ancillary orders pursuant to Section 73 of the [SAT Act] for the uplift of [the Almanac] in the absence of a primary power to order an examination of the Almanac.
4. The Tribunal erred in law in making its decision to allow an examination of the [Almanac] in the absence of the full facts being put before it as to the examinations necessary and as to any potential damage to the Almanac.
Ground 1: Whether the Almanac contains protected matter
Section 160(2) of the SAT Act requires the Tribunal to ensure that matter provided to the Tribunal that the Tribunal considers to be 'protected matter' is not disclosed in any way other than to a sitting member of the Tribunal or to a person to whom disclosure is allowed under s 160(3) of the SAT Act.
The definition of 'protected matter' in s 3(1) of the SAT Act has two limbs. The first concerns any information or document to which a certificate issued under s 159(2) of the SAT Act applies. In broad terms s 159(2) empowers the Attorney General to certify that disclosure of information about a specified matter, or disclosure of any matter contained in a document, would be contrary to the public interest. Information or a document to which such a certificate applies is protected matter unless the Tribunal constituted by its President sitting alone makes an order, under s 159(4), that disclosure of any particular information or document would not be contrary to the public interest.
As no certificate has been issued by the Attorney General in relation to the Almanac or information it contains, this first limb of the definition of 'protected matter' is not applicable in the present case.
The second limb of the definition of 'protected matter' is 'exempt matter' or an 'exempt document'. Section 3(1) of the SAT Act defines 'exempt document' to mean a document that contains exempt matter. Section 3(1) defines 'exempt matter' to mean matter that is exempt under sch 1 to the FOI Act. Relevantly, cl 3(1) of sch 1 to the FOI Act provides that matter is exempt matter if its disclosure would reveal personal information about an individual (whether living or dead).
Pursuant to s 9 of the FOI Act, 'personal information' is defined in cl 1 of the glossary to mean:
[I]nformation or an opinion, whether true or not, and whether recorded in a material form or not, about an individual, whether living or dead ‑
(a)whose identity is apparent or can reasonably be ascertained from the information or opinion; or
(b)who can be identified by reference to an identification number or other identifying particular such as a fingerprint, retina print or body sample.
However, under cl 3(6) of sch 1 to the FOI Act, matter is not exempt matter under cl 3(1) if its disclosure would, on balance, be in the public interest.
Section 160(3) of the SAT Act provides for the Tribunal, with the consent of the President, to allow a party or a representative of a party to have access to information, or inspect a document, to which a certificate under s 159(2) applies on any conditions that the Tribunal thinks fit. However, s 160(3) provides that a person cannot be given access to matter that the Tribunal considers to be exempt matter, or allowed to inspect a document that the Tribunal considers to be an exempt document. The power conferred by s 160(3) of the SAT Act is not available in the present case, as the Almanac is not the subject of a certificate under s 159(2) of the SAT Act.
Therefore, s 160(2) of the SAT Act will prohibit disclosure of the Almanac, other than to a sitting member of the Tribunal, if the Tribunal considers it to be an 'exempt document' or to contain 'exempt matter'. The Almanac will be an exempt document containing exempt matter if it contains personal information, unless its disclosure would, on balance, be in the public interest. Assuming the Almanac to contain personal information, s 160(2) of the SAT Act will not prohibit disclosure of the Almanac if the Tribunal considers that its disclosure would, on balance, be in the public interest.
In the present case, the Tribunal asked itself the correct legal question, and concluded that, on balance, disclosure of the Almanac would be in the public interest. To any extent that it attacks the Tribunal's identification of the correct legal test (and we did not understand the appellant to do so in his written or oral submissions), ground 1 is not established.
To the extent that ground 1 attacks the Tribunal's conclusion that disclosure of the Almanac was, on balance, in the public interest the appeal is not brought on a question of law.
In the course of oral submissions, the appellant identified two alleged errors in this aspect of the Tribunal's decision.
The first identified error concerned an alleged factual error in relation to the forensic testing procedure proposed by the Committee.[16] However, the error asserted by the appellant was, as we note in dealing with ground 4 below, not based on the evidence before the Tribunal. This alleged factual error does not raise any question of law.
[16] Appeal ts 17 - 18.
The second error identified by the appellant concerned the failure by the Tribunal to take account of what was said to be a material consideration, namely the prospect that personal information contained in the Almanac, such as name, address and date of birth, might be used for purposes such as gaining access to the identified person's bank account or establishing a fraudulent identity. The question of law which the appellant sought to raise was whether, in making its evaluative judgment under cl 3(6) of sch 1 to the FOI Act, the Tribunal erred by failing to take into account a material consideration, namely the potential for misuse of identifying personal information contained in the Almanac.[17]
[17] Appeal ts 19.
Assuming this question to be a question of law for the purposes of s 105 of the SAT Act, it must be answered adversely to the appellant. The potential misuse of information was not a mandatory relevant consideration, in the sense that it was a matter which the legislation required the Tribunal to specifically have regard as a condition for the valid exercise of the power.[18] The reference to the 'public interest' is not apt to identify particular matters to which attention must be directed in every case.[19] Rather, as this court recently reiterated in Thayli v Commissioner of Police,[20] the expression 'public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only in so far as the subject matter and the scope and purpose of the statutory enactments may enable given reasons to be pronounced definitely extraneous to any objects the legislature could have had in view.
[18] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 - 40; A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [88] - [89].
[19] See, by analogy, A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491 [97].
[20] Thayli v Commissioner of Police [2021] WASCA 46 [36], citing O'Sullivan v Farrer (1989) 168 CLR 210, 216.
Further, we are not satisfied that, in the circumstances of this case, the potential misuse of personal information was a matter to which the Tribunal was required to give any weight or specifically refer to. The disclosure proposed was to the Committee and a forensic laboratory, to and from which the Almanac was to be securely conveyed. The prospect of any personal information in the Almanac finding its way into the hands of a person who might misuse it seem very remote, given the limited extent of disclosure permitted by the Tribunal's orders. The extent of that risk was not such as to demand that the Tribunal make specific reference to the prospect of misuse of personal information in undertaking any proper assessment of where the public interest lay in the circumstances of this case. It was sufficient for the Tribunal to recognise, as it did, the public interest in the maintenance of privacy of personal information.
Even if it were to be established that the Tribunal failed to have regard to a material consideration, it would not be appropriate to set aside the order under s 105(9) of the SAT Act. Section 105(9)(a) provides for this court, when dealing with an appeal, to affirm, vary or set aside the decision of the Tribunal. This court has recognised that the scope for this court to make substitutive orders where error is established is limited by the fact that an appeal under s 105 is only on a question of law and is in the nature of judicial review. However, the court may make substitutive orders under s 105(9)(b) where only one conclusion is open on the correct application of the law to the facts as found by the Tribunal.[21]
[21] Medical Board of Australia v Woollard [2017] WASCA 64; (2017) 51 WAR 32 [214]; Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368 [205] - [206].
In our view, the only conclusion which was reasonably open in the circumstances of the present case was that the disclosure of any personal information in the Almanac was, on balance, in the public interest. In reaching that conclusion, we recognise that questions about what is in the public interest ordinarily require consideration of a number of competing arguments about, or features or facets of, the public interest which will seldom be seen as having only one dimension.[22] In this case, determination of the public interest required an evaluation of competing facets of the public interest. However, having regard to:
(1)the remoteness of any risk of misuse of personal information given the limited disclosure proposed;
(2)the fact that the appellant anticipates adducing evidence as to the contents of the relevant part of the Almanac when Ms Ruba is called as a witness by the appellant;
(3)the Tribunal's unchallenged finding that there was a legitimate concern as to the authenticity of the Notes arising from the late emergence of the Notes;
(4) the Tribunal's unchallenged finding that there was a strong public interest in the administration of justice which favoured disclosure of information contained in the Almanac, and that it would be an affront to justice if the Committee and Tribunal were not ultimately able to investigate, or be informed about, the authenticity of the Notes on which the appellant seeks to rely in support of his case,
the only reasonable view in all the circumstances of this case was that the disclosure proposed by the Committee was, on balance, in the public interest.
[22] McKinnon v Secretary, Department of Treasury [2006] HCA 45; (2006) 228 CLR 423 [55].
Therefore, even if we had been satisfied that the Tribunal failed to have regard to a material consideration in the manner contended for by the appellant, we would not have set aside the Tribunal's ultimate decision or made different substitutive orders.
For these reasons, ground 1 is not established.
Grounds 2 and 3: Power to allow the Committee to uplift the Almanac
Grounds 2 and 3 raise a question of law concerning the power of the Tribunal to order an uplift of the Almanac by the Committee for the purpose of having the Almanac forensically examined in the United States.
As the Tribunal noted in the present case, there is no provision of the SAT Act which expressly and specifically deals with the uplifting or testing of documents and other material produced to the Tribunal. The historical position in relation to the inherent power of the Court of Chancery and the statutory power of the common law courts to order the inspection of property or the taking of a sample, at least in relation to the subject matter of proceedings between the parties, is referred to in Smith v Peters,[23] Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd,[24] and Fletchers International Exports Pty Ltd v Hodges.[25]
[23] Smith v Peters [1875] LR 20 Eq 511, 513.
[24] Rutile Mining Development Pty Ltd v Australian Oil Exploration Ltd [1960] Qd R 480, 484 ‑ 486.
[25] Fletchers International Exports Pty Ltd v Hodges [2000] NSWCA 285; (2000) 50 NSWLR 200 [11] ‑ [12].
In Re Saxton (deceased),[26] the Court of Appeal of England and Wales upheld the decision of the primary judge in pending proceedings to order that a written agreement relied upon by the defendant be delivered up to an expert for examination and micro-chemical tests but allowed the appeal in relation to a condition of the order. The primary judge's order was made on the plaintiffs' application and pursuant to a rule of court. The plaintiffs challenged the authenticity of the written agreement. They alleged that the signature on the document was a forgery. The document was in the defendant's possession. Lord Denning MR said (at 971):
In these days scientific experiments of such a kind may be very helpful. The evidence, which is not challenged, shows that this chemical experiment can be made on a very tiny piece of the document. It would affect a piece which was only the size of a pin's head. The rest of it would not be affected in the slightest. There would be no damage or risk of damage to the document itself. In these circumstances the judge, as it seems to me, quite properly ordered that the plaintiffs' expert should be entitled to … perform those scientific tests on the document.
[26] Re Saxton (deceased) [1962] 1 WLR 968.
However, as a statutory body, the Tribunal does not have the inherent power of a court of law. Any power for the Tribunal to make the impugned order must be expressed or implied in the terms of its empowering legislation.[27]
[27] Fletchers International [20]; Grassby v The Queen (1989) 168 CLR 1, 15 - 16.
An appropriate starting point for considering this question is s 35 of the SAT Act, which provides the Tribunal's power to obtain documents and other material from third parties. The text of the provision is set out at [7] above. Section 35(1) provides for the Tribunal to order a third person, who is not a party to the Tribunal proceedings, to produce a document either to the Tribunal or to a party to the Tribunal proceedings.
A relevant qualification to this power is contained in s 35(3) of the SAT Act. If the Tribunal considers that any document is or contains protected matter, the Tribunal cannot order a third person to produce it to a party. As the Tribunal did not consider the Almanac to be or contain protected matter, s 35(3) did not preclude the Tribunal from ordering Ms Ruba to produce the Almanac to the Committee.
In the present case, the Tribunal ordered the Almanac to be provided to the Tribunal rather than to a party to the Tribunal proceedings. However, the capacity for the Tribunal to have required Ms Ruba to produce the Almanac to the Committee is relevant when considering whether the Tribunal has the power to grant leave for the Committee to uplift the Almanac. The fact that the Tribunal could have ordered that the Almanac be provided directly to the Committee counts in favour of construing the legislation as empowering the Tribunal to allow the Committee to uplift a document once it has been produced to the Tribunal. There is no obvious legal policy justification for denying the Tribunal the power to allow a party to uplift a document produced to the Tribunal when it could have ordered the document to be provided directly to the party.
Under s 72 of the SAT Act:
The Tribunal may inspect any document or other material produced before it, and retain it for as long as it reasonably thinks fit, and make copies of any document or any of its contents.
Generally, the SAT Act does not otherwise expressly provide for what the Tribunal may or must do with a document produced to the Tribunal under s 35 of the SAT Act. This is subject to exceptions relating to documents containing protected matter. Section 160(1) of the SAT Act requires the Tribunal to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is returned to the person by whom it was provided when no longer required by the Tribunal. Section 62 relevantly provides that the content of any document produced to the Tribunal that is protected matter is not to be published. As the Tribunal did not consider the Almanac to be or contain protected matter, these provisions do not apply in the present case.
The Tribunal is empowered by s 32(3) of the SAT Act to admit into evidence the contents of any document. Section 32(4) provides that the Tribunal may inform itself on any matter as it sees fit. Section 32(7)(a) provides that the Tribunal is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in a proceeding. Under these provisions, a document produced to the Tribunal under s 35 of the SAT Act may be received in evidence by the Tribunal, and may be considered by the Tribunal in determining the matters before it.
In this statutory context, s 34(1) of the SAT Act provides that the Tribunal may give directions at any time in a proceeding and do whatever is necessary for the speedy and fair conduct of the proceeding. This court has recognised that s 34 empowers the Tribunal to make programming orders for the purpose of ensuring that evidence is adduced in a manner which is procedurally fair to all parties to the proceedings.[28] The provision in s 34(1) also exists in a context where:
[28] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83; (2018) 232 LGERA 331 [166].
(1)one of the main objects of the Tribunal, provided for by s 9(a) of the SAT Act, is to achieve the resolution of questions, complaints or disputes 'fairly and according to the substantial merits of the case';
(2)section 32(1) of the SAT Act provides that the Tribunal is generally bound by the rules of natural justice; and
(3)section 32(6)(c) of the SAT Act provides that:
The Tribunal is to take measures that are reasonably practicable —
…
(c)to ensure that the parties have the opportunity in the proceeding —
(i)to call or give evidence; and
(ii)to examine, cross-examine or re-examine witnesses; and
(iii)to be heard or otherwise have their submissions considered.
In the present case, the Tribunal found in effect that a fair hearing required the Committee to be given the opportunity to test the authenticity of documentary evidence on which the appellant sought to rely. The Tribunal's view was, in effect, that the testing of the Almanac was required to give the Committee a fair opportunity to adduce evidence as to when the relevant entry in the Almanac was written, and to cross‑examine Ms Ruba about that issue. The impugned orders facilitated a fair hearing by providing the Committee with a reasonable opportunity of testing and challenging the documentary evidence and the evidence of Ms Ruba on which the appellant sought to rely in opposition to the Committee's case.
In this context, an order of the Tribunal giving leave for the Committee to uplift the Almanac for the purposes of having the Almanac forensically examined is a direction under s 34(1) of the SAT Act for the fair conduct of the proceeding. Order 1 of the Tribunal's orders set out at [17] above was authorised by that provision.
In our view, orders 2 - 4 of the Tribunal's orders set out at [17] above were each authorised as an 'ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power' in s 34(1), within the meaning of s 73(1) of the SAT Act. Orders 2 - 4 are also authorised under s 73(1) as imposing conditions to which order 1, made under s 34(1) of the Act, was subject. In the circumstances of this case, the ancillary orders and conditions authorised by s 73(1) extended to orders and conditions as to the security and return of a document produced by a third party, which the direction under s 34(1) allowed the Committee to uplift for the purpose of forensic testing. Orders 2 - 4 made ancillary provision and imposed conditions of that kind.
The fact that the Tribunal has the power to make a grant of leave to uplift a document conditional, and to impose conditions for the preservation and return of the document to the Tribunal, means that there is no reason for reading the Tribunal's other powers restrictively. In allowing a party to the proceedings to uplift a document produced by a third person who is not a party, the Tribunal is in a position to impose conditions for the purpose of ensuring that the document is able to be returned to the third person when retention of the document is no longer required by the Tribunal. That power exists, as noted above, in a context where the Tribunal was expressly empowered to order the third person to produce the document directly to the party. We see no good reason for reading down s 34(1) of the SAT Act in a way that would preclude the Tribunal from making a direction allowing a party to uplift and test a document produced by a third party, where the Tribunal considers that to be necessary for the fair conduct of the Tribunal proceedings.
The appellant also submitted that s 64 of the SAT Act would have authorised the Tribunal to appoint Mr LaPorte to assist the Tribunal by providing advice and giving evidence. He accepted that s 73(1) would have authorised the Tribunal to itself provide the Almanac to Mr LaPorte for that purpose.[29] The appellant says that this available power was not exercised. While we accept that the power in s 64 was available for this purpose but not exercised, that does not provide a reason for reading down the power in s 34(1) of the SAT Act. Indeed, as noted above, the fact that there were other means by which the Almanac could be tested counts against reading down the broad language of s 34(1) of the SAT Act to exclude orders facilitating forensic testing.
[29] Appeal ts 11 - 12. The appellant made a similar submission in relation to s 32(2)(a) of the SAT Act at appeal ts 11. It is unnecessary to say anything about the scope of that power.
In arguing against the above construction of s 34(1) of the SAT Act, the appellant sought to draw a distinction between the Tribunal's power to regulate its own practice and procedure so as to ensure the fair conduct of the proceeding, on the one hand, and the power to 'do something', such as ordering a forensic examination, on the other. The appellant appeared to accept that s 34(1) authorised the former, but not the latter. The appellant submitted that there is, as the Tribunal recognised, no express power providing in terms for the Tribunal to permit a party to forensically test a document produced to the Tribunal. He contended that, if Parliament had intended the Tribunal to have that power, it would have made explicit provision to that effect.[30]
[30] Appeal ts 4 - 5, 7 - 8.
We do not accept the submissions summarised in the previous paragraph. The only thing which the Tribunal has done in the present case is to make an order permitting the Committee to uplift the Almanac. It has made that order for the fair conduct of the proceeding. Particularly given the broad ambit of the Tribunal's functions, it is not surprising that Parliament did not attempt to explicitly provide for what a fair hearing required in every circumstance. In our view, effect should be given to the natural and ordinary meaning of the statutory text of s 34(1), which on its face authorised order 1 of the impugned orders.
The fact that the Tribunal identified s 73(1), rather than s 34(1), of the SAT Act as the source of the power to make order 1 does not have any significance for the outcome of this appeal. The misidentification of the source of power does not invalidate an administrative decision where there is another head of power available and all conditions precedent to its valid exercise have been satisfied.[31]
[31] Mandurah Enterprises Pty Ltd v Western Australian Planning Commission [2008] WASCA 211; (2008) 38 WAR 276 [85] and cases there cited.
The forensic testing proposed in the present case did not involve the destruction of, or any material damage to, the Almanac. The only impact on the Almanac proposed is the taking of 'micropunches' measuring 0.5 mm or 1 mm from representative areas of relevant pages of the Almanac.[32] The question of whether the Tribunal is empowered to order the uplift of an item produced by a third person, which remains the property of the third person, for the purposes of testing which would destroy or materially damage the third person's property does not arise in the present case.
[32] See annexure SRM2 to the affidavit of Stephen Robert Merrick affirmed 22 May 2020 (Green AB 75 - 76).
Additionally, the present case does not raise the question of whether s 34(1) would authorise a direction interfering with individual personal liberty. That question was considered in a similar statutory context to the present by the Queensland Court of Appeal in Nursing and Midwifery Board of Australia v HSK.[33] In that case, the court held that a power of the Queensland Civil and Administrative Tribunal to give a direction for the fair conduct of proceedings did not authorise a direction requiring a party to undergo a medical assessment.
[33] Nursing and Midwifery Board of Australia v HSK [2019] QCA 144; (2019) 1 QR 600.
It is unnecessary for this court in the present appeal to resolve issues of the kind referred to in the previous two paragraphs.
In our view, the answer to the question of law raised by grounds 2 and 3 is that the Tribunal did have the power to order that the Committee have leave to uplift the Almanac for the purpose of having the Almanac forensically tested in the manner proposed by the Committee.
Ground 4: Absence of 'full facts' before the Tribunal
Ground 4 contends that the Tribunal erred in law in making the impugned orders 'in the absence of the full facts being put before it as to the examinations necessary and as to any potential damage to the Almanac'. The appellant's written submissions in support of this ground mainly contain assertions, not based on evidence before the Tribunal or this court, as to the reliability and utility of the forensic testing proposed by the Committee, and as to the capacity for such testing to damage the Almanac.
There is no merit to this ground.
First, the ground does not raise any question of law, but is in substance concerned with the substantive merits of the Tribunal's decision. When asked, the appellant was unable to articulate any question of law raised by this ground.[34]
[34] Appeal ts 23 - 24.
Secondly, the submissions advanced in support of the ground depend on factual assertions which are not supported by any admissible evidence before this court or the Tribunal. We note that the appellant's affidavit in support of his stay application contained some statements about the reliability of the proposed testing.[35] However, that evidence (which amounts to non-expert opinion) is not in a form which would be admissible in the appeal. In any event, the appellant has not applied to adduce that evidence as additional evidence in the appeal.
[35] Paragraphs 49 - 58 of the affidavit of the appellant sworn on 14 January 2021.
The appellant also submitted that there was an inconsistency between the forensic testing described in evidence before the Tribunal and the forensic testing described in a letter annexed to an affidavit of an officer of the Committee sworn in opposition to the stay application in this appeal. However, as was pointed out to the appellant in the course of oral submissions, the court could not take the latter material into account in determining the appeal in the absence of an application to adduce that affidavit as additional evidence in the appeal.[36] Further, given the limited scope of the appeal under s 105 of the SAT Act, there is an issue (which is presently unnecessary to resolve) as to the extent to which the court could properly admit additional evidence in this appeal.[37] However that issue might be resolved, the appellant did not seek to make such an application.
[36] Appeal ts 22 - 23.
[37] Cf Neil v Legal Profession Complaints Committee [2017] WASCA 109 [38], Singh v Medical Board of Australia [2018] WASCA 125 [44] and Rayney v Legal Profession Complaints Committee [2019] WASCA 104 [533] - [544], where it appears to have been assumed or accepted that additional evidence might be admitted in an appeal to which s 104(13) of the SAT Act applies. No additional evidence was actually admitted in any of those cases.
Thirdly, so far as the ground concerns the potential damage to the Almanac, there was evidence before the Tribunal, referred to at [62] above, as to the very limited extent of damage which the proposed testing would involve. That evidence was not challenged by the appellant before the Tribunal. The Tribunal did not proceed to exercise its discretion in the absence of evidence as to that matter. It did not err in law in failing to have regard to material that was not before the Tribunal.
Fourthly, as this court noted in the stay decision:[38]
The reliability of any results of which the Committee seeks to adduce evidence can be resolved by the Tribunal in the substantive hearing in deciding:
(1)whether to receive evidence of the results of forensic testing as expert evidence;
(2)whether to accept the evidence as credible and reliable if the evidence is admitted; and
(3)what weight (if any) should be given to the evidence, and what inferences (if any) should be drawn from the evidence.
The need for the Tribunal to determine those matters will arise only after the results of the forensic testing are obtained and if the Committee seeks to adduce evidence of those results in the substantive hearing of the primary proceedings. The capacity of the appellant to contest those matters in the substantive hearing means that his case is not significantly prejudiced by the mere undertaking of the forensic examination.
[38] Stay decision [38].
The existence of disputed questions as to the reliability of the results of the proposed forensic testing did not preclude the Tribunal from giving the Committee leave to uplift the Almanac for the purpose of undertaking that testing.
Orders
The appellant requires leave to appeal to this court, under s 105(2) of the SAT Act. There are two factors which count against the grant of leave to appeal. The first is that the appeal is against an interlocutory decision which may or may not have a substantive impact on the ultimate outcome of the Tribunal proceedings. Generally speaking, it is not in the interests of justice to grant leave to appeal from interlocutory orders of the Tribunal given the delay and fragmentation of the Tribunal proceedings which ordinarily result from such an appeal. The second is that the appellant has not established any legal interest he (as opposed to Ms Ruba) has in seeking to impugn the order allowing the Committee to uplift the Almanac.
However, grounds 2 and 3 do raise a question of law, which has not previously been considered by this court, as to the Tribunal's power to allow a party to uplift documents produced to the Tribunal for the purposes of forensic testing. The answer to that question has some broader application beyond the particular, and somewhat unusual, circumstances of this case. Although we agree with the Tribunal's conclusion that the power exists, we would identify the source of the power differently.
Further, the delay to the Tribunal proceedings has been limited, given that the court has been in a position to hear the appeal quickly.
We considered that it was in the interests of justice for this court to grant leave to appeal, so as to be able to finally determine the question of law raised by grounds 2 and 3. However, for the reasons explained above, in our view none of the grounds of appeal were established. It was for these reasons that, on 30 March 2021, we made orders granting leave to appeal, dismissing the appeal and discharging an order made on the appellant's earlier stay application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MT
Associate to the Honourable Justice Mitchell
27 APRIL 2021
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