Khosa v Legal Profession Complaints Committee - [2021] WASCA 34

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KHOSA -v- LEGAL PROFESSION COMPLAINTS COMMITTEE [2021] WASCA 34
CORAM:   BUSS P
MITCHELL JA

HEARD:   19 FEBRUARY 2021
DELIVERED          :   19 FEBRUARY 2021
PUBLISHED           :   26 FEBRUARY 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:

Legal profession - Disciplinary proceedings in State Administrative Tribunal - Where Tribunal made order for uplift and forensic examination of a document held by the Tribunal - Where appellant has filed an appeal against the uplift and examination order - Whether a stay of the order the subject of the appeal should be granted pending the determination of the appeal

Legislation:

State Administrative Tribunal Act 2004 (WA), s 35, s 73, s 105, s 106

Result:

Application for a stay dismissed
Other orders made

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	C Moss

Solicitors:

Appellant	:	In person
Respondent	:	Legal Profession Complaints Committee

Case(s) referred to in decision(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Neil v Legal Profession Complaints Committee [2017] WASCA 109
Ng v Commissioner of the Australian Federal Police [2019] WASCA 195; (2019) 280 A Crim R 148

REASONS OF THE COURT:

Summary

The appellant applies for a stay of orders made by the State Administrative Tribunal which are the subject of this appeal, pending the determination of the appeal.
At the conclusion of the hearing of the stay application, the court made the following orders:
(1)The appellant's application in an appeal dated 11 January 2021 is dismissed.
(2)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.
(3)The costs of the appellant's application in an appeal dated 11 January 2021 are reserved.
(4)The time for the appellant to file and serve his appellant's case is extended to 4.00 pm on 19 February 2021.
We said that we would publish reasons for making these orders at a later date. These are our reasons for making the orders.

The primary proceedings

In the primary proceedings, the respondent (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.[1]
[1] Primary decision [1].
The Committee's application was listed for final hearing before the Tribunal commencing 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 ordered that Ms Ruba produce the entirety of the Almanac, pursuant to s 35(1) of the State Administrative Tribunal Act 2004 (WA) (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].
Subsequently, 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

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 does 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 matter was exempt from disclosure 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 public interest 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 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 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) 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 this stay application. 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 above orders.
On 15 January 2021, Buss P ordered the appellant to file and serve an appellant's case by 4.00 pm on 1 February 2021. On 2 February 2021, Buss P made an order, by consent, extending that time to 4.00 pm on 3 February 2021. The appellant attempted to file an appellant's case as required by the order but, on 5 February 2021, was advised by the Court of Appeal Registrar that the document had not been accepted for filing because it did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA).
The stay application originally came on for hearing on 11 February 2021. At that time, the court received information from the appellant's wife that he had been taken to hospital that morning and would not be able to attend the hearing. The court adjourned the hearing of the stay application and made programming orders listing the appeal for hearing on 24 March 2021. The programming orders included an order that the appellant file an appellant's case by 4.00 pm on 18 February 2021.
The appellant attempted to file an appellant's case by sending an email to the Court of Appeal office at 3.01 am on 19 February 2021. It was not accepted for filing because it was sent to the wrong email address. In the circumstances, it was appropriate to extend the time for filing the appellant's case to 4.00 pm on 19 February 2021, to enable the document to be properly lodged.
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.

The application for a stay of the primary orders

By application in an appeal dated 11 January 2021, the appellant seeks a stay of the Tribunal's orders made on 22 December 2020 until the determination of the appeal.
The appellant filed an affidavit sworn 14 January 2021 in support of his application for a stay. While parts of the affidavit are irrelevant or otherwise inadmissible, it sets out a history of the primary proceedings.[13] The affidavit contains what is in effect a submission as to the reliability of the result which will be obtained from the proposed forensic examination.[14]
[13] Appellant's affidavit, par 1 - 48.
[14] Appellant's affidavit, par 49 - 58.
The appellant deposes that:
50. The Tribunal was not informed before or during the 29 July 2020 hearing of the importance of being able to identify the source manufacturer of the ink as that is crucial to any ink analysis and that not knowing the identity of the source manufacturer with certainty would make any examination not only inconclusive but a waste of time and resources. Further, the Committee also did not inform the Tribunal that environmental factors would affect the outcome of any examination. It is clear both the Committee and their chosen analyst, Mr LaPorte, have not made full disclosure to allow the Tribunal to make a fully informed decision.
The appellant further deposes that:[15]
62.Once the Notice of Appeal was lodged, further information came forth that is completely different to the information disclosed to the Tribunal.
63. I repeat paragraph 50 and say that the Tribunal did not have all the information before it regarding the examination to make a fully informed decision in the matter.
64. Should leave to appeal be granted and the appeal is ultimately successfully, the conduct of the examination would have been a waste of time and resources and further effort will have to be spent to unwind the consequences of any report.
[15] Appellant's affidavit, par 62 - 64.
The appellant's written submissions in support of his application are also largely focussed on the reliability of the results which may be produced by proposed forensic examination. He submits that:[16]
[A] stay is necessary to preserve the subject matter of the litigation and or the integrity of the litigation. I would respectfully ask the Court to consider the situation in which the stay application is not and the Almanac is sent for an uncertain, unsafe and unreliable examination, but the appeal is successful. That will give rise to an unjust situation where an action has been taken, costs incurred and then rendered nugatory. Common sense must dictate that it is in the interest of the administration of justice that such situations are not allowed.
[16] Written submissions in support of stay application, par 20.

General principles

Section 105(1) of the SAT Act provides that a party to a proceeding may appeal from a decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal. The term 'decision' is defined in s 3(1) of the SAT Act to include 'an order, direction, or determination of the Tribunal'. A decision is not confined to a decision which is final, and includes interlocutory orders.
Subject to presently immaterial exceptions, an appeal can only be brought on a question of law.[17]
[17] Section 105(2) of the SAT Act.
Section 106 of the SAT Act provides:
(1)The Supreme Court may, by order, stay the operation of a decision of the Tribunal pending the determination of an application for leave to appeal from the decision and of any appeal.
(2)Subject to any order made by the Supreme Court, an appeal does not affect the operation of the decision appealed against or prevent the taking of action to implement the decision.
The critical factors which inform the exercise of the court's general power to grant a stay pending determination of an appeal are:[18]
(1)whether the appeal would be rendered nugatory if a stay is not granted;
(2)whether the appeal has reasonable prospects of success so as to result in the grant of relief to the applicant for a stay; and
(3)whether the balance of convenience lies in favour of the grant of a stay.
[18] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
Those same factors will inform the question of whether it is in the interests of justice for this court to grant a stay pending determination of an appeal for the purposes of s 106 of the SAT Act.[19]
[19] Neil v Legal Profession Complaints Committee [2017] WASCA 109 [27].

Disposition

We accept that the current appeal will be rendered nugatory, in the relevant sense, if a stay is not granted and the Almanac is uplifted and forensically tested before this court determines the appeal. The subject matter of the appeal is an order that the Almanac can be uplifted and forensically tested, and the operation of the impugned orders will be spent once the forensic testing is complete.
We also accept, provisionally at this preliminary stage, that the proposed grounds which contend that the Tribunal had no power to make orders for the uplifting and forensic testing are reasonably arguable in the relevant sense. As the Tribunal recognised, there is no clear express power conferred by the relevant legislation to order forensic testing of the Almanac. We have not been referred to any decision of a court which considers whether the provisions on which the Tribunal relied confer power to make such an order. While the appellant requires leave to appeal, and the interlocutory nature of the orders appealed against might be a factor counting against the grant of leave, we are not persuaded that the application for leave to appeal is without any reasonable prospect of success. Of course, none of the above is to say that the appellant's grounds of appeal based on the lack of power to order uplift and forensic testing of the Almanac, or his application for leave to appeal, will necessarily succeed. While we have concluded that the grounds and application for leave to appeal are reasonably arguable, at this stage we would not put it any higher than that.
However, it seems to us that, at this stage, the balance of convenience counts against the grant of a stay pending determination of the appeal. We reach that conclusion having regard to the following considerations.
First, there is no evidence that the uplifting and testing of the Almanac will result in any loss of or damage to Ms Ruba's property. The Tribunal proceeded on the basis that any physical testing would only impact on the Almanac at a microscopic level, and there is no material before us providing reason to doubt that conclusion. The orders of the Tribunal are designed to ensure the return of, and to protect the integrity of, the Almanac. There is no evidence that implementation of the impugned orders before this court determines the appeal will result in any other loss to Ms Ruba or the appellant. The forensic examination will be confined to the Notes, which have already been disclosed to the Committee and which the appellant intends to produce in evidence in the Tribunal. As such, there is no reason to apprehend any significant loss of confidentiality of private information as a result of implementing the orders.
Secondly, this court and the Tribunal may make appropriate orders to deal with the use of information which has been obtained through the implementation of the impugned orders if they are set aside on appeal. In that event, this court would have the power, implicit in the conferral of appellate jurisdiction, to make orders unravelling the practical consequences of implemented orders which are set aside on appeal.[20] Such consequential relief might include an order preventing the use of the evidence obtained through the implementation of orders which this court ultimately determines the Tribunal had no power to make. As such, refusal of a stay will not lead to the appellant necessarily being prejudiced in the substantive determination of the primary proceedings if his appeal succeeds.
[20] See Ng v Commissioner of the Australian Federal Police [2019] WASCA 195; (2019) 280 A Crim R 148 [30] and cases there cited.
Thirdly, the appellant's concerns about the reliability of the results of the forensic investigation are not a significant factor counting in favour of the grant of a stay. 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.
Fourthly, the concerns about wasted cost and effort raised by the appellant do not appear to concern him at this time. The uplifting and forensic examination of the Almanac will occur at the Committee's expense. If this court ultimately determines that the impugned orders should not have been made, those costs would be unlikely to be recoverable by the Committee from the appellant.
Fifthly, Mr LaPorte has advised the Committee that the likelihood of detecting any 'fraudulent entries' significantly decreases after the ink is placed on the paper, due to a drying process. Therefore, if the testing is delayed while the appeal is determined there is some prospect that a stay will frustrate the purpose of the Tribunal's orders if the appellant's appeal is ultimately dismissed.
Sixthly, the final determination of the primary proceedings has already been significantly delayed, in large part by reason of disputes about the Almanac. The Committee instituted the Tribunal Proceedings in 2017, and the issue about the Almanac apparently resulted in substantive hearing dates allocated in March 2020 being vacated. New hearing dates have not yet been set. Requiring the parties to wait until the determination of this appeal before steps to forensically test the Almanac can begin would unnecessarily add to that delay in the ultimate resolution of the Tribunal proceedings. That delay would tend to frustrate the legislative objective of the speedy and fair conduct of proceedings, reflected in s 9(b) and s 34(1) of the SAT Act. There is also a public interest in the prompt resolution of serious allegations of professional misconduct made against legal practitioners, so as to maintain the protection of consumers and public confidence in the legal profession.[21] The issue of public protection does not seem to be a significant concern in this particular case, given that we have been informed that the appellant is not currently practising in any event. However, community confidence is a relevant, albeit not a weighty, consideration in the face of the undesirable delays which have already occurred in the determination of the Committee's substantive application to the Tribunal.
[21] See Neil [50].
Seventhly, aside from granting a stay, there is a means of protecting the appellant's interests, and the effective exercise of this court's appellate jurisdiction, which will largely avoid prejudice to the Committee and will not delay the Tribunal proceedings. That is to allow forensic testing to proceed, but to order the Committee to direct Mr LaPorte 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. That is a less restrictive means of the court preserving the integrity of the exercise of its appellate jurisdiction,[22] which in our view is preferable to staying the impugned orders. It will enable the Committee to have the forensic testing undertaken, but not to obtain the results until the court determines the appeal, which is listed for hearing on 24 March 2021. The impact of that order on the Tribunal proceedings will be reduced by the proximity of the appeal hearing date and the fact that there is currently no hearing date listed for the final determination of the Committee's application in the Tribunal.
[22] See Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [61] - [63].
Having regard to all of the above matters, in our view, the balance of convenience counted against the grant of a stay at this stage, and it was not in the interests of justice to grant a stay of the impugned orders. Rather, it was appropriate to make an order of the kind described at [42] above.
It was for these reasons that we made the orders set out at [1] above.

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
26 FEBRUARY 2021