Kyle v Legal Practitioners' Complaints Committee - [1999] WASCA 115

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: KYLE -v- LEGAL PRACTITIONERS' COMPLAINTS COMMITTEE [1999] WASCA 115

CORAM: IPP J
STEYTLER J
PARKER J

HEARD: 4 JUNE 1999

DELIVERED : 9 AUGUST 1999

FILE NO/S: FUL 146 of 1997

BETWEEN: PETER ARTHUR KYLE
Appellant
AND
LEGAL PRACTITIONERS' COMPLAINTS COMMITTEE
Respondent

Catchwords:

Legal profession - Disciplinary proceedings - Unprofessional conduct - Meaning

Legal Profession - Disciplinary proceedings - Attempt to mislead court - Mental element - May be established despite expectation that court will learn truth during hearing

Legal Profession - Counsel - Duty not to mislead court - Prevails over interests of client - Importance of duty

Appeal proceedings - Principles guiding restraint of publication - Legal profession disciplinary proceedings - Restraint of publication not justified

Legislation:

Legal Practitioners Act 1893 (WA) s 29A, s 31C

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: E M Heenan QC
Respondent: C L Zelestis QC & Ms G McCahon

Solicitors:

Appellant: Kyle & Company
Respondent: Ms D Howell, Law Complaints Officer

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

DPP v Stonehouse [1978] AC 55
Giannarelli v Wraith (1988) 165 CLR 543
He Kaw Teh v The Queen (1984-1985) 157 CLR 523
In re a Practitioner, unreported; FCt SCt of WA (Wallace, Brinsden and Smith JJ); Library No 4989; 18 July 1983
In re G Mayor Cooke (1889) 5 TLR 407
Knight v The Queen (1992) 175 CLR 495
Myers v Elman [1940] AC 282
R v Barbeler [1977] Qd R 80
R v Leavitt [1985] 1 Qd R 343
Re a Practitioner of the Supreme Court [1927] SASR 58
Re Alison Ruth Robins SM; Ex parte West Australian Newspapers Ltd [1999] WASCA 16
Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153
Re Robins Ex parte West Australian Newspapers Ltd [1999] WASCA 16
Rondel v Worsley [1969] 1 AC 191
Saif Ali v Sydney Mitchell & Co [1980] AC 198
T K v Australian Red Cross Society (1989) 1 WAR 335
Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190
Vernon v Bosley (No. 2) [1997] 3 WLR 683
Yorke v Lucas (1983-1984) 158 CLR 661

Case(s) also cited:

Archer v Howell (No 2) (1993) 10 WAR 33
Briginshaw v Briginshaw (1938) 60 CLR 366
Cooke v S [1996] 1 WLR 635
In re Davis (1947) 75 CLR 409
Mellifont v Attorney-General (Qld) (1991) 173 CLR 289
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Smith v NSW Bar Association (1992) 176 CLR 256
Unioil International Pty Ltd v Land Resources Ltd, unreported; SCt of WA (Ipp J); Library No 970491; 25 September 1997
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279

IPP J: I have had the benefit of reading the reasons to be published by Parker J. I agree, with respect, with those reasons and the conclusions to which his Honour has come. I wish merely to add some comments of my own in regard to certain of the issues that have been raised.
I wish to record my specific agreement with Parker J that the secrecy provisions contained in s 31C of the Legal Practitioners Act 1893 are not intended to give protection to legal practitioners who are the subject of complaints that are not of a minor nature. There is no reason in policy or principle for legal practitioners to be treated in any way differently to those members of other professions who are subjected to disciplinary proceedings before statutory tribunals. Plainly, in the course of disciplinary proceedings against legal practitioners, confidential matters relating to the affairs of their clients may have to be aired. It is in the public interest that confidential communications between lawyer and client be protected as far as possible. In my opinion, s 31C is aimed at this purpose, and there is nothing in that section, or the Legal Practitioners Act as a whole, that detracts from the general principle that ordinarily there should be openness in the administration of justice (see Re Robins Ex parte West Australian Newspapers Ltd [1999] WASCA 16). It is for these reasons and those expressed by Parker J that I joined in the decision to refuse the application that there should be a restriction of publication in regard to this appeal.
The reference to the Legal Practitioners' Disciplinary Tribunal by the Law Complaints Officer alleged that the appellant was "guilty of unprofessional conduct in that he attempted to mislead the court". Particulars to this allegation were provided and these alleged that the appellant had "attempted to mislead Mr Justice Walsh into the belief Anne Leonie Beyer had executed some one or more of the said deeds".
In opening the disciplinary proceedings, counsel for the Complaints Committee informed the Tribunal that the gravamen of the allegations against the appellant was that he had attempted to mislead Walsh J "by failing to disclose to him a particular fact which was known to the practitioner at the time and by stating or inferring a contrary position" and this was "a deliberate act" on the appellant's part. Nevertheless, counsel said, the Complaints Committee accepted that "there was no element in it of deceit or dishonesty". In addition, in the course of cross‑examining the appellant, counsel for the Complaints Committee said: "I have said that we don't put against you that you did anything with an intention to deceive the Judge."
Senior counsel for the appellant submitted that these statements were an acknowledgment by the Complaints Committee that the appellant had done nothing with an intention to deceive. He pointed, further, to the fact that the tribunal itself, after referring to the approach of counsel for the Complaints Committee, concluded that the appellant "did attempt deliberately to mislead the court but that attempt did not involve deceit or dishonesty". He submitted that once the Complaints Committee accepted that the appellant did not possess any intention to deceive and once the Tribunal found that the appellant's conduct did not involve deceit or dishonesty, the charge against the appellant failed. That inevitably followed, he submitted, because an intention to deceive is a necessary element of the charge of attempting to mislead the court.
It is the essence of a charge of unprofessional conduct involving misleading the court that the practitioner concerned is guilty of having done something dishonourable: In re G Mayor Cooke (1889) 5 TLR 407 (at 408 per Lord Esher MR, with whom Fry and Lopes LJJ agreed). The dishonourable quality lies in knowingly misleading the court: Tombling v Universal Bulb Company Ltd (1951) 2 TLR 289 at 297 per Denning LJ; Vernon v Bosley (No. 2) [1997] 3 WLR 683. A practitioner who knowingly misleads a court will do so dishonestly. Therein lies the unprofessional conduct. There can be no professional misconduct where a practitioner innocently misleads a court; that is, without knowledge that the court is being misled. I accept, therefore, the submissions made by senior counsel that an intention to deceive, or dishonesty, is a necessary element of misleading the court.
The case the appellant was required to meet at the disciplinary proceedings was clearly revealed by the opening by counsel for the Complaints Committee, and the way in which evidence was led and the appellant cross-examined. It was common cause that the appellant had known, seven days prior to the trial before Walsh J, that Mrs Beyer had not signed the deed. Fundamentally, the Complaints Committee contended that, notwithstanding this knowledge, the appellant deliberately created the impression (at least until the second day of the trial) that the defence would proceed on the basis that Mrs Beyer had signed the deed. In other words, it was at all relevant times quite obvious, from the way in which the disciplinary proceedings were conducted, that the appellant knew that the complaint against him, in essence, was that he deliberately caused the court to believe that Mrs Beyer had signed the deed when he knew that she had not.
In my opinion, it was necessarily implicit in such a complaint that an element of intention to deceive or dishonesty was involved. This implication necessarily flowed from the allegation of deliberate conduct coupled with knowledge, and must have been obvious to the appellant and his legal representatives. That this was so is confirmed by the manner in which the appellant's defence at the disciplinary proceedings was presented. For example, when counsel for the Complaints Committee indicated it was not suggested that the appellant was guilty of "deceit or dishonesty", senior counsel for the appellant did not submit that there was no case to answer because the charge against his client omitted the necessary allegation of intention to deceive or dishonesty.
Parker J has shown how those involved in the disciplinary proceedings attributed a particularly narrow meaning to the concept of "deceit or dishonesty". As his Honour points out, all accepted that "the appellant acted in the expectation that the true position would be revealed in the course of the case". The appellant formed the opinion that it would be in his clients' interests to conceal the true position until Mr Beyer gave evidence. He did not, however, intend (in the words of Parker J) "by deceit or dishonesty to secure a decision from the court on a false factual basis." So, when counsel for the Complaints Committee told the appellant that it was not put against him that he "did anything with an intention to deceive the Judge", and when the Tribunal concluded that the appellant's attempt to mislead the court "did not involve deceit or dishonesty", they were referring only to an absence of intention to obtain a judgment on a factual basis known to be false.
As I have explained, this was the sense in which the phrase "deceit or dishonesty" was used and understood by all throughout the course of the disciplinary proceedings. The Complaints Committee accepted, and the Tribunal found, that the unprofessional conduct alleged to have been committed by the appellant did not involve deceit or dishonesty in this peculiar and narrow sense. It was, nevertheless, at all relevant times quite plain to the appellant that the Complaints Committee contended that, until the second day of the trial, he had deliberately misled Walsh J by creating the impression (by the means previously described) that Mrs Beyer had signed the deed when, to his knowledge, she had not. In fact, all the elements going to make up deceit or dishonesty (as these concepts are ordinarily understood) were alleged against the appellant (and found by the Tribunal to have been established). These were the making of deliberate representations that Mrs Beyer had signed the deed when it was known that she had not. Nevertheless, counsel for the Complaints Committee and the Tribunal ignored the inference that ineluctably flows from these facts and accepted that they did not give rise to deceit or dishonesty (but only in the narrow sense adopted by them). The appellant was content for the disciplinary proceedings to be determined on this basis, and he knew, and accepted, that the narrow meaning was being attributed to the words in question.
In the particular circumstances, the statements by counsel for the Complaints Committee that there was no element of deceit or dishonesty involved in the allegations against the appellant, and the Tribunal's confirmation of this in its findings, did not cause the appellant any prejudice and do not detract from the validity of the ultimate finding of guilt. The fact that all involved were prepared to accept (wrongly, in my view), that elements of deceit or dishonesty were not, by inference, part of the allegations against the appellant, is immaterial. The fundamental issue was, and remains, whether the appellant deliberately and knowingly misled the court in the manner alleged.
It is a basic precept of the legal profession that lawyers owe a duty of honesty and candour to the court. It is the general duty of lawyers not to mislead the court by stating facts which are untrue, or mislead the Judge as to the true facts, or conceal from the court facts which ought to be drawn to the Judge's attention, or knowingly permit a client to deceive the court: Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sydney Mitchell & Co [1980] AC 198, Tombling v Universal Bulb Company Ltd, Vernon v Bosley (No. 2), Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 at 193.
Legal practitioners owe this duty when performing any act in the course of practising their profession, not only when they are making oral submissions to the court. Lawyers may not, consistently with their ethical duties and duties to the court, prepare and file affidavits known by them to be perjured, whether the affidavits are made by their clients or other witnesses: Myers v Elman (1940) AC 282. In England, the ethical rule is that lawyers should not produce witness statements that they know to be false or where they know that the witness does not believe the statement to be true in all respects. Further, if, after filing a witness statement, a lawyer is put on enquiry as to the truth of the facts stated in the statement, the lawyer should, where practicable, check whether those facts are true. If the lawyer then discovers that the witness statement which has been served is incorrect, the lawyer must inform the other parties immediately, Chancery Guide: February 28, 1995, par 3.7(7). In my view this rule reflects the duties that lawyers in this country owe to the court.
In the same way, lawyers who file pleadings containing allegations which, to their knowledge, are false, will breach their ethical duties and duties to the court. Pleadings are intended to be a mechanism for the purpose of arriving at the true issues in dispute, as well as defining and crystallising the issues: Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2). There is no justification for knowingly making false allegations of fact in a pleading. A lawyer who does so will ordinarily be guilty of unprofessional conduct. If, after making a factual allegation in a pleading that is before the court (and thereby leading the court to believe that the allegation in question is part of his or her case), a lawyer discovers that the allegation is false, the lawyer will mislead the court if he or she fails to disclose the true position: cf Vernon v Bosley (No. 2) at 698.
The defence as it originally stood contained an admission by Mr and Mrs Beyer that "they executed a deed …". The minute of amended defence dated 22 September 1995 made no alteration to that admission, even though, at the time the appellant moved to amend the defence in terms of that minute, he knew full well that Mrs Beyer had not signed the deed. Accordingly, the defence was allowed to continue to give the false impression that Mr and Mrs Beyer accepted that Mrs Beyer had signed the deed. Moreover, par 5A(ii) of the minute contained the words "the defendants executed the deeds in reliance on …". This allegation partly supported a further allegation in par 5A(iii) of the minute that the defendants "never intended, by their execution of the deeds, to grant to the plaintiff an unconditional option …". At the commencement of the trial on 25 September 1995 the appellant moved to amend the defence in accordance with the minute. He thereby represented to the court that the case of Mr and Mrs Beyer, in accordance with his instructions, was that Mrs Beyer had signed the deed. The appellant made this representation deliberately. He knew, however, that it was false. In my opinion, he thereby knowingly misled the court.
Having moved the amendment, the appellant opened the case for his clients well knowing that the defence contained these false statements of fact. In canvassing the issues that arose in consequence of the defence filed by him, he did nothing to correct the misleading impression that had been created. He did this in full knowledge that, at least until the truth was disclosed, the court would be under the false impression that Mr Beyer (and Mrs Beyer, should she give evidence) would testify that Mrs Beyer had signed the deed.
As regards the statements made by the appellant in opening the case, Parker J has demonstrated by his analysis of the evidence that the appellant asserted that Mrs Beyer had executed the deed. This was another instance where the appellant knowingly misrepresented the true facts to the court.
It was submitted on the appellant's behalf that there could be no misleading of the court as the misleading conduct did not go to a material issue in the case. As Parker J has pointed out, the learned Chairman of the Tribunal put to the appellant two possible bases on which the fact that Mr Beyer had written his wife's signature on the deed was material to the result of the trial. These were, firstly, that the actual circumstances of execution were relevant to the question whether the deed was signed under pressure and, secondly, that the manner in which the documents were executed might well reflect on Mr Beyer's credibility in regard to the rest of his evidence. In my opinion, the learned Chairman, with respect, was entirely correct.
The appellant himself explained to the Tribunal that he had deliberately and knowingly misled the court in the way that I have described to gain a perceived tactical advantage. He decided not to tell Walsh J, in opening, that Mr Beyer had written his wife's signature on the deed because "there was a very real risk in doing that, that I would damage Mr Beyer's credibility more than it was going to be anyway". By these words the appellant revealed his true purpose in creating the false impression that he did. He perceived that should the truth be disclosed at the inception of the trial, more damage would be caused to Mr Beyer's credibility than otherwise would have been the case. This approach ignores the rule that counsel's duty to the court is paramount. It overrides any duty owed to the client: Giannarelli v Wraith (1988) 165 CLR 543 at 555 ‑ 556 per Mason CJ; Myers v Elman at 293.
There was some discussion concerning the fact that the appellant only intended to create a false impression for a short period, that is until Mr Beyer was asked in evidence in chief how the deed came to be signed. The point is, however, that once a practitioner has breached his duty by knowingly misleading the court for a perceived tactical advantage, it matters not (for the purposes of determining whether professional misconduct has been committed) for what period of time the court was misled. Professional misconduct has then been established. Of course, if

the court was misled only for a relatively short period of time this may be relevant to the punishment that follows: but it is immaterial to whether the practitioner is guilty of misconduct.

Accordingly, for the above reasons, and those stated by Parker J, I would dismiss the appeal.
STEYTLER J: I have had the advantage of reading the reasons to be published by Parker J. I agree with his Honour's reasons and the conclusions at which his Honour has arrived.
I agree, also, with all that his Honour has said and with the additional comments which have been made by Ipp J with respect to the duty of counsel not to mislead the court. That duty is, as each has said, one of fundamental importance in the due administration of justice. There can be no justification for the deliberate misleading of the court by counsel whether by mis‑stating the true facts or otherwise and irrespective of whether the court is misled through what is said orally or in pleadings. Counsel's duty in that respect is paramount and overrides any owed to the client (see Giannarelli v Wraith (1988) 165 CLR 543 at 555 ‑ 556 and Myers v Elman [1940] AC 282 at 293).
As to the issue of publication I agree, also, with all that has been said by Parker J. It was essentially for those reasons that I joined in the decision to refuse the application to restrain publication.

It follows, of course, from what I have said that I would dismiss the appeal.
PARKER J: This is an appeal from the Legal Practitioners' Disciplinary Tribunal which, on 29 August 1997, found the appellant guilty of unprofessional conduct, reprimanded him and ordered that he pay the costs of the respondent.

The Reference to the Tribunal

The formal Reference to the Tribunal was made by the respondent, the Legal Practitioners' Complaints Committee, on 8 January 1997. It alleged that the practitioner was guilty of unprofessional conduct in that he attempted to mislead a Judge of this Court on 25 September 1995. Extensive particulars were given of that allegation. I will not set them out in full. In part, those particulars alleged that when appearing as counsel for Hans Wilhelm Beyer and his wife Anne Leonie Beyer in their

capacities as trustees of the Beyer Family Trust, who were the defendants in an action being tried before Walsh J, the appellant, at the commencement of the trial on 25 September 1995, sought and obtained leave to further amend the defence of those clients and then opened the case for those clients on the basis, explicitly pleaded and explicitly asserted in the opening, that both Hans Wilhelm Beyer and Anne Leonie Beyer had executed a deed which was material in the action, when the practitioner was aware that Anne Leonie Beyer had not executed the deed and that what purported to be her signature was a forgery by Hans Wilhelm Beyer. Paragraph 7 of the particulars concluded:
"7.By reason of the matters aforesaid the practitioner was guilty of unprofessional conduct in failing to disclose to Mr Justice Walsh in his application for leave to amend the defence and in his said opening the fact of the said forgery, or the fact that the said Anne Leonie Beyer had not executed any of the said deeds, or that the said amended consolidated Defence was to that extent false, and in so failing to disclose he attempted to mislead Mr Justice Walsh into the belief that Anne Leonie Beyer had executed some one or more of the said deeds."

The reference in the plural to deeds in par 7 of the particulars and elsewhere in the pleadings, evidence and in the reasons for decision of the Tribunal, was explained in the course of the hearing before this Court. It seems that more than one copy of the one deed was executed as an original and that more than one form of deed was executed. This is not a matter in any way material to this appeal and, generally, I propose for convenience to refer only to a deed although accurately at times the reference should be in the plural.

The action

There were two consolidated actions being tried by Walsh J. The first was between a company as plaintiff, Hans Wilhelm Beyer as first defendant, and Hans Wilhelm Beyer and Anne Leonie Beyer as trustees of the Beyer Family Trust as second defendants. A second action was between the company as plaintiff and Hans Wilhelm Beyer as defendant.
The appellant was the solicitor and also appeared as counsel for all defendants in both actions.
From the pleadings it appears that Mr Beyer and the man behind the company, a Mr Negoescu, had a business association but following disagreements between them they parted on terms which were recorded in the deed. The deed inter alia provided for Mr Beyer to pay a sum of money to the company within a stipulated time. The payment was not made. The deed also provided inter alia that in default of payment of the money by Mr Beyer the Trust would be liable for interest on the unpaid money; in certain circumstances the Trust also agreed to indemnify the company against loss as a result of any failure by Mr Beyer to perform his obligations under the deed. The company was suing both Mr Beyer and the Trust relying on these provisions of the Deed. A material pleading in the statement of claim commenced in these terms:
"2.By a deed made between the plaintiff, the first defendant and the second defendants dated 15 May 1993 …"
The defendants counterclaimed by alleging that the deed was void and voidable. The defendants relied variously on mistake, misrepresentation, unfair or unconscionable conduct, duress, and misleading or deceptive conduct.
The action came on for hearing before Walsh J on 25 September 1995. It was accepted that the defendants bore the effective onus and that they should present their case first. At the outset the appellant moved to further amend the consolidated defence and counterclaim in accordance with a minute dated 22 September 1995 which set out in full the proposed form of the amended consolidated defence and counterclaim. That amendment was allowed. It included pleadings as follows:
"2.The defendants admit that they executed a deed …
5.…
(ii)the defendants executed the deeds in reliance upon …
(iii)in the premises the defendants never intended, by their execution of the deeds, to grant to the plaintiff an unconditional option …
7.…
Particulars of unfair or unconscionable advantage
(i)the plaintiff persuaded the defendants to execute a deed providing for …
8.In the alternative the defendants were induced to execute the deeds by the duress of the plaintiff …
9.In the alternative the defendants were induced to execute the deeds by the misleading or deceptive conduct of the plaintiff …"
Allegations such as these in the defence were repeated by adoption in the counterclaim.
The amended consolidated reply and defence to the counterclaim joined issue and contained denials that the defendants executed the deed in reliance on the alleged representations etc or that the defendants were induced to execute the deeds as had been alleged in the defence and counterclaim.
Having been granted leave to amend the pleadings the appellant then opened the case for the defendants. The case was opened essentially on the basis of the pleadings of the defendants. In the course of the opening the applicant made a number of assertions which should be referred to. Having described negotiations over the revision of drafts of the deed which were conducted principally between Mr Negoescu and the first defendant, it was said by the appellant that "… there was to a substantial extent an imposition of the will of the plaintiff upon the defendants". The trial Judge interrupted the opening to query the role that had been played by Mrs Beyer, whom he then described as the second defendant. It was put in response by the appellant that she left it to her husband to conduct the business affairs of the family trust and that she didn't take part in the negotiations or in the process of amending drafts in her own writing although she did hear one conversation over the telephone. In dealing with para 8 of the defence the appellant said:
"We say principally … that the defendants executed this arrangement – these deeds – and the plaintiff procured the defendants to do that by virtue of illegitimate threats of unjustified criminal and professional complaints against the first defendant …"
Then having outlined family difficulties being experienced "at the time that the deeds were finally executed" by the "first defendant and his wife" because of an illness of one of their children, the appellant went on to say that:
"… Your Honour will hear from the first defendant of the distressing personal situation in which he found himself during almost the entire time of these negotiations and it is in those overall contexts that we say that the plaintiff procured the first defendant and the second defendant to execute the deeds, despite the fact that they were patently unfair to them."
While the transcript has this reference to the second defendant in the singular, if the transcript is accurate, it is clear from the paragraph preceding and the two paragraphs that followed in the transcript that the reference was intended to include both Mrs Beyer and her husband. That is not disputed.
The appellant, when dealing with a representation said to have been made by the plaintiff's solicitor, said that the result of the representation was "to leave the defendants under a fundamental mistake as to what effect the deeds would have upon their position, leading them effectively to a mistake which equity would relieve them from".
Near the end of the opening, the appellant having specifically opened on the role of Mrs Beyer and in particular that she had overheard a material telephone conversation, the appellant surprised both opposing counsel and the trial Judge by saying that:
"Mrs Beyer, the second second defendant, is not well at the moment and at this stage we don't propose to call her to give evidence. We might, of course, have to see how we go with that, …"
It will be apparent from these brief references that the consolidated defence and counterclaim, in the form in which it was specifically amended at the commencement of the trial, was expressly framed on the basis that Mrs Beyer had executed the material deed, that being a matter alleged specifically more than once in the pleading. Further, it will be apparent that, in the course of opening, the appellant expressly asserted that the defendants had executed the deed and specifically referred to circumstances such as representations, mistake and unconscionable conduct which bore upon or procured the defendants to execute the deed. The various references made to the defendants in this context being clearly intended to include Mrs Beyer.
While execution of the deed by both Mr and Mrs Beyer was not then an issue specifically in dispute on the pleadings, the case for the defendants clearly involved allegations that the will of both Mr and Mrs Beyer had been overborne or affected by the alleged misrepresentations, mistake, etc, when each of them executed the deed.

Proceedings before the Tribunal

Before the Legal Practitioners' Disciplinary Tribunal, both by an amendment to the appellants Answer and by his counsel, it was accepted for the appellant that even though the appellant had been instructed at all times until approximately seven days before the trial that the deed in question had been executed by both Mr and Mrs Beyer, approximately a week before the trial the defendants for the first time disclosed to the appellant that Mr Beyer had signed Mrs Beyer's signature on the deed. The Answer declared, however, that Mr Beyer was "quite unclear about the exact circumstances in which he signed his wife's signature on the deed and his reasons for doing so."
The Answer declared that the further instructions of the appellant were that Mrs Beyer had signed an earlier draft which was in substantially similar terms to the final draft, although not in identical terms, and that she acknowledged that she was bound by the terms of the deed by virtue of her husband's execution of it and her own agreement to the terms of it. Nevertheless, the appellant specifically acknowledged by his Answer that, at the time of drafting the amended consolidated defence and counterclaim and when he applied for leave to amend the defence in accordance with the draft and when he opened the case for the defendants, the appellant was aware that Mrs Beyer "had not personally signed the deed".
In his amended Answer to the Reference the appellant went on to declare that he acted on the basis that there was no doubt that Mr Beyer would give evidence that he signed his wife's signature on the deed, but the practitioner was uncertain exactly what would be the evidence of Mr Beyer as to the circumstances in which he signed his wife's signature on the deed. It was said that uncertainty was contributed to because Mrs Beyer had become ill shortly before the trial and Mr Beyer was distraught with worry about his wife at the time.
The appellant also declared that he did not disclose to the trial Judge that Mr Beyer had signed the deed on behalf of his wife because in his appreciation there was no issue between the parties as to the execution of the deed, Mrs Beyer acknowledged liability as a party to the deed and consented to its terms having executed a previous draft of the deed, and because Mr Beyer instructed the appellant that he had his wife's consent and approval to the execution of the deed. The last of these three propositions was not maintained or established before the Tribunal.
The appellant also gave evidence before the Tribunal in which he swore that he had no intention of attempting to mislead the Court. He also said that he had no intention or desire to conceal from the Court the true details under which the deed was executed. It was the effect of his evidence that he considered the actual execution of the deeds irrelevant on the pleadings and he intended therefore to leave the matter "neutral" so that it would be left to Mr Beyer "to handle the way in which that happened because as I saw it it was a matter that went to his credibility and nothing else, and I felt it was appropriate not to take some risk with his credibility by putting forward some story or explanation about how he had signed his wife's signature that didn't coincide with the way in which he ultimately gave evidence."
In the course of his cross-examination before the tribunal the appellant was posed a question which was introduced with an introductory comment as follows:
"Now, I have said that we don't put against you that you did anything with an intention to deceive the Judge. Are you saying that your failure to disclose was not done with an intention to mislead the Judge?"
The appellant answered:
"Well, I certainly say that I had no intention to mislead the Judge but I don't see it has a failure. I mean, I made a professional judgment that that was the best thing to do in the circumstances."
A little later in cross-examination, having reconfirmed that he acted in the understanding that Mr Beyer would reveal the true circumstances of execution in the course of his evidence, the appellant went on to say:
"… My decision not to go into the detail of the execution in opening was not made with a view to that fact being hidden from the Court and the Judge through the trial." (emphasis added)
He was then asked again about the relevance of the actual execution as follows:
"By the time you were examining him in chief had you formed the view that his execution of the document on behalf of his wife was relevant?"
His answer was:
"No. I mean, it was part of the matrix of the facts. I mean, it was a fact that had to be stated because it was the circumstances ultimately leading to the conclusion of the factual situation in which we sought to prove our counterclaim, but otherwise, no."
It is fair to observe that the real effect of this answer was - yes. The learned Chairman of the Tribunal then having put to the appellant two possible bases of relevance, viz that the actual circumstances of execution were relevant to the defendant's case that the deed was signed under pressure and, secondly, that the manner in which the documents were executed might well reflect on Mr Beyer's credibility as to the rest of his evidence, the appellant answered that he didn't see the first of those two and with respect to the second he regarded credibility as the real dilemma. In amplification of that he said:
"I concluded, rightly or wrongly, that because I was not certain how it would come out in evidence I would be only doing more damage to the problem of credibility rather than helping it by seeking to open the case with my description of the circumstances, about which I was uncertain. If I had been able to obtain a full and comprehensive and clear instructions from Mr Beyer about why he did what he did and the circumstances, what actually happened and the circumstances in which he did it, then I think I would have been inclined to take a slightly different course. The fact is I didn't know, and that was my problem."
The learned Chairman having asked whether the appellant did not think to put to the Judge that Mr Beyer had signed on behalf of his wife leaving it to Mr Beyer in evidence to explain the circumstances. The appellant answered:
" … my attitude at the time was, there was a very real risk in doing that, that I would damage Mr Beyer's credibility more than it was going to be anyway."
Mr Beyer gave evidence at the trial before Walsh J. In the course of his examination-in-chief, though not until the second day of trial, he having described a particularly harrowing telephone conversation with Mr Negoescu in which he said he was given some two or three hours to get the currently revised form of the draft deed executed and returned to the plaintiff's solicitors' office. He was then asked "… what did you do as far as the documents were concerned?" His answer was that he had done something that he regretted to this day, he hopped into the car and executed the documents, including his wife's signature. The transcript as to the reaction of the trial Judge and defence counsel to that revelation is eloquent as to the surprise with which that revelation was received. It should be added that even a cursory examination of the signatures on the deed reveals that the signature of Mr Beyer, and that which purported to be the signature of his wife, were in markedly dissimilar styles. It is further to be observed that there is a signature of an apparent witness to both the signature of Mr Beyer and the purported signature of Mrs Beyer and neither the evidence at trial nor the evidence before the Tribunal explains this.
As indicated the Reference alleged that the appellant was guilty of unprofessional conduct in that he attempted to mislead the Court. Particular 3 in support of that allegation dealt with the drafting by the appellant of the amended consolidated defence and counterclaim and the application at the commencement of the trial for leave to amend the defence in accordance with a minute of that draft. Particular 4 dealt with the appellant's opening of the case at trial and raised, in particular, statements made by the appellant in the course of opening to the effect that (a) there had been an imposition of the will of the plaintiff on the client's of the appellant, (b) that the clients had executed the deed in question and that the plaintiff had procured the clients to do so by virtue of illegitimate threats, (c) the plaintiff had procured both Mr Beyer and Mr and Mrs Beyer as trustees to execute the deed in question even though the deed was unfair to them. Particular 6 asserted that at the time the appellant drew the draft amended consolidated defence and further or alternatively at the time that he applied to amend the defence in accordance with the draft he was aware that Mrs Beyer had not executed the deed and that what purported to be her signature was a forgery by Mr Beyer. Particular 7 incorporated the early particulars and concluded with an allegation that the appellant had attempted to mislead the trial Judge into the belief that Mrs Beyer had executed the relevant deed.

Reasons for Decision of Tribunal

In its written reasons for decision the Tribunal, having reviewed the issues in the action and the relevant conduct of the practitioner in terms as to which no complaint is made, went on to observe:
"From the foregoing , these conclusions can be reached. It was always foreseen that the question of the credibility of the defendant Beyer was a relevant issue. In the words of the practitioner 'there were very substantial issues of credibility involved'. The circumstances in which Mrs Beyer purported to execute the deed was clearly relevant on the issue of Beyer's credibility. The disclosure of the circumstances in which that event happened, did not become revealed until an advanced stage of Beyer's examination-in-chief and never referred to either in the pleadings or the practitioner's opening. … In our view, the amended defence was misleading, and the practitioner's opening was misleading, in that the Court, (a description that includes not only the trial Judge, but also the plaintiff and its counsel), would have been under the impression that the deed of 15 May 1993 was executed in a normal manner and that there were no circumstances relating to its actual execution which could provide any basis for attacking the credibility of Beyer.
…
… We are also of the view that the practitioner should have opened the defendant's case when outlining Beyer's proposed evidence-in-chief, by referring to Beyer having written Mrs Beyer's purported signature on the deed and if it be the case that the practitioner was uncertain of what Beyer was to say of that act, informing the Judge that Beyer would explain how the purported execution came about.
The practitioner admits that it was his professional decision not to make any reference to the circumstances of Mrs Beyer's purported execution of the deed in the amended defence and in his opening. The implementation of those decisions necessarily involved the practitioner misleading the Court for a time at least until Beyer in his evidence told the Court how Mrs Beyer's purported signature came to be on the deed.
The complainant's counsel before us stated in his opening that the practitioner, in misleading the Court did so in the exercise of professional judgement, there being no element of deceit or dishonesty but nevertheless he did so deliberately. But it is said the circumstance of the case go far beyond a permissible range of error of judgment, amounting to unprofessional conduct. We conclude the practitioner did attempt deliberately to mislead the Court but that attempt did not involve deceit or dishonesty."

This reasoning reflects in significant respects the way in which the proceedings were conducted before the Tribunal. In the course of opening, counsel for the Complaints Committee indicated that the essence of the allegation was that the appellant attempted to mislead the trial Judge "by failing to disclose to him a particular fact which was known to the practitioner at the time and by stating or inferring a contrary position". This, it was specifically said, is alleged to have been "a deliberate act" on the practitioner's part but that it was accepted it was an act in the exercise of a professional decision and "there was no element in it of deceit or dishonesty". When the learned Chairman questioned what was intended by the statement that there was no element of deceit or dishonesty, counsel expressly said:
"That’s correct, except to the extent – it’s a matter of semantics – to which the expression 'dishonest' comprehends anything that is in fact misleading, but that aside there was no element of deceit here intended" on the part of the practitioner. (emphasis added).
Later in his opening, however, counsel for the Complaints Committee went on to say that the practitioner:
"… made statements in his opening to the clear effect and giving the clearest of impressions that Mrs Beyer had in fact executed the relevant deed and he knew, as he admits, that that fact, that impression he was conveying, an impression which his amended answer says would be shortly contradicted by his own clients as sworn evidence, - and we say the impression was totally false and could only have had the intention of quite deliberately misleading the Judge who was sitting and trying the case."

The Appeal

For the appellant it is contended that the Reasons of the Tribunal which have been quoted above involve a fundamental error of law. The core of that submission is the proposition that an attempt to mislead involves an indispensable ingredient of an intent to deceive. Yet the case for the Complaints Committee was opened and conducted on the basis that the appellant's conduct did not involve deceit or dishonesty. It is contended that the Complaints Committee's case was fatally flawed from the moment of opening because of the acceptance that there was no deceit or dishonesty. The reasons the Tribunal, it is submitted, are likewise fatally flawed because, on the one hand the Tribunal acknowledges that there was neither deceit or dishonesty, but on the other finds that there was an attempt deliberately to mislead the Court.
There are difficulties in the way of the acceptance of these submissions for the appellant. The passage in the Reasons relied on does not stand in isolation. On a fair reading of that passage in its context it was made clear that the statement that it was accepted that there was no element of deceit or dishonesty was subject to an express qualification. While the precise expression of that qualification was not at first clear, and may well be the subject of criticism, it is unmistakable that there was only a qualified concession of an absence of deceit or dishonesty. Counsel returned to this in his opening to say that the appellant gave the clearest of impressions to the Court that Mrs Beyer had executed the relevant deed, which impression, although shortly to be contradicted, was totally false and could only have had the intention of quite deliberately misleading the Judge …"
In my view, on a reading of the full opening, there was no reasonable scope for misapprehension at the hearing before the Tribunal. What was alleged was a deliberate course of conduct in the early stages of the trial, involving the amendment of the pleading and the opening, to create the false impression that Mrs Beyer had personally executed the deed, with the intention on the part of the appellant of deliberately misleading the Judge, albeit temporarily, in that respect. The Complaints Committee, however, accepted in favour of the appellant that, in pursuing that deliberate course, the appellant did so in the expectation that the correct position would be revealed in the course of Mr Beyer's evidence. It was accepted, therefore, that the appellant acted in the expectation that in the course of his case the true position would be revealed to the Court so that it was not his intention that the Court should be deceived or misled in its decision by his conduct.
The effect of this was, in my view, to distinguish a deliberate though temporary misleading from the overall or ultimate intention of the appellant which, on his evidence as accepted by the Tribunal, was that the true position should be revealed to the Court during the trial. On the opening before the Tribunal, in my view, it was in respect of this overall or ultimate intention that there was the concession that there was no deceit or dishonesty. The qualification from that concession, as it came to be stated, was that there was an intention of quite deliberately misleading the Judge, although to do so only temporarily.
On a reading of the transcript of the opening before the Tribunal I am not persuaded that the matter was left in a state of uncertainty. There was a qualification to the concession which was clearly enough stated. I do not see that by the end of the opening there was any reasonable basis for misapprehension of the case the appellant was called on to answer, nor as to the nature and scope of the qualification to the concession. It is to be noted that neither counsel for the appellant nor the Tribunal raised any concern about this issue. It is not suggested that the conduct of the appellant's case before the Tribunal was in any way adversely affected because of uncertainty as to the case the appellant was called on to meet.
The Reasons of the Tribunal indicate that it appreciated and accepted that the practitioner made a conscious decision not to make any reference to the fact that the signature which purported to be that of Mrs Beyer was not hers, but was in fact that of Mr Beyer, both in the amendments to his pleading and in the course of opening his case. Given the terms of some of the positive allegations of the amended defence and some of the positive assertions of the practitioner in opening to the contrary, which have been detailed earlier in these reasons, the conclusion of the Tribunal that the "implementation of those decisions necessarily involved the practitioner misleading the Court for a time at least until Beyer in his evidence told the Court how Mrs Beyer's purported signature came to be on the deed" appears to me to be inevitable. That was the express finding of the Tribunal. In parts the terms of the amended pleading and some of the statements of the practitioner in opening, involved express assertions to the clear effect that all defendants (which necessarily and at times expressly included Mrs Beyer) had executed the relevant deed. The practitioner then knew that was contrary to the truth. He also realised on his evidence that to then disclose the truth had the potential, at least, to affect adversely the credibility in the trial of his principal witness, Mr Beyer. For that reason he decided against pleading and opening the truth. It wasn't the case the practitioner simply failed to disclose the true circumstances until they came to be revealed in the course of evidence, if indeed that became the evidence. By propounding the amended defence and making the positive assertions that were made in opening, the practitioner did much more than maintain a "neutral" stance on the issue, as was contended in his Answer before the Tribunal. He positively advanced as true that which, on his instructions, he well knew was not true. It is clear that this was a conscious and deliberate course of action on his part. Necessarily, that involved a deliberate attempt to mislead the trial Judge, whatever else may have been intended by the appellant.
Given those passages of reasoning in the decision of the Tribunal, the statement that follows their conclusion that the practitioner did attempt deliberately to mislead the Court but the attempt "did not involve deceit or dishonesty" must necessarily have been intended and should properly be understood, in my view, as an acceptance that the practitioner acted in the expectation that the true position would be revealed in the course of the case, so that the appellant did not act with the object of ultimately deceiving the Court and in particular was not seeking by deceit or dishonesty to secure a decision from the Court on a false factual basis.
The express finding of the Tribunal, fully supported as it is by the evidence, was that there was a deliberate attempt to mislead the Court, albeit temporarily. As I have indicated, that is in accordance with the case put against the appellant as it was opened before the Tribunal. In its reasons the Tribunal went on to refer to the concession made by counsel that there was no deceit or dishonesty. The Tribunal then repeated those words in conjunction with a restatement of its finding that the practitioner did attempt deliberately to mislead the Court. In my respectful view the Tribunal can only have intended by those words to echo the concession made by counsel in opening, ie the expressly qualified concession.
The appellant sought to rely on principles drawn from the criminal law as to attempts, and as to the mental element required of parties to an offence. This was in support of the proposition that it was a necessary ingredient of the case alleged against the appellant that he had a deliberate intention to mislead or deceive the court when he propounded the amendments and opened the case. Reliance was place on reasoning in He Kaw Teh v The Queen (1984-1985) 157 CLR 523; Yorke v Lucas (1983-1984) 158 CLR 661; Knight v The Queen (1992) 175 CLR 495; R v Leavitt [1985] 1 Qd R 343; R v Barbeler [1977] Qd R 80 and DPP v Stonehouse [1978] AC 55. In my view it is not appropriate to import into this professional disciplinary context any such principles of the criminal law, especially principles enunciated in the context of attempts to commit offences of which a specific intention is an element.
Nevertheless, the only case which the appellant was called on to answer was that he attempted to mislead the Court. A person may in fact be misled by another, unintentionally or accidentally; as Brennan J put it in Yorke v Lucas (supra) at 672, unwittingly. Any such unwitting misleading could not support the allegation in this case because an attempt to mislead was alleged. The allegation of an attempt necessarily imports a mental element, intentional conduct. In this case it was the appellant's evidence, accepted by the Tribunal, that the appellant consciously decided to plead and open as he did, knowing that this did not disclose the true position, because he was concerned that to then disclose the truth had the potential to adversely affect the credibility of his client. In that state of mind he then not only did not disclose the truth, but propounded pleadings and made factual assertions which were contrary to the truth, as he well knew from his instructions. In my view that is enough to establish the mental element involved in this allegation that the appellant intended to mislead the Court. His very purpose required the truth to be kept from the Court at that stage of the trial. With that objective, he then propounded and asserted that which he then knew was contrary to the truth. It is immaterial that he may have intended or expected that the truth would be revealed later in the trial. An intention to mislead temporarily, is nevertheless an intention to mislead.
For these reasons I am not persuaded that the Tribunal erred as contended.

Unprofessional Conduct

The allegation of the Reference in this case was that the practitioner was guilty of unprofessional conduct in that he attempted to mislead the Court.
Pursuant to s 29A(1)(b) of the Legal Practitioners' Act 1893 ("the Act") the exercise of its professional disciplinary jurisdiction the Tribunal may make a finding that a practitioner has been guilty of unprofessional conduct. The notion of unprofessional conduct first found its place in s 20 of the Act when it was enacted in 1893. This Court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a Practitioner of the Supreme Court [1927] SASR 58; see for example In re a Practitioner, unreported; FCt SCt of WA (Wallace, Brinsden and Smith JJ); Library No 4989; 18 July 1983. It was usefully summarised (at 3) by the Full Court as conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to "professional conduct". While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.
In the present case the Tribunal correctly directed itself as to the notion of unprofessional conduct and confined its consideration to the second limb. Hence, it posed the issue to be whether to a substantial degree the appellant's conduct fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. In so doing the Tribunal clearly correctly directed itself.
The Tribunal then canvassed the nature of the professional obligation of a practitioner appearing as counsel not to mislead the Court. While the Tribunal, in the appellant's favour, characterised the appellant's conduct as an error of judgement, it concluded -
"In our opinion, the practitioner in this case, failed in his overriding duty to the Court not to mislead it. While we accept that the practitioner anticipated that ultimately the correct position would have been made known to the Court, that is not sufficient to exculpate him from having committed a failure of his duty to the Court … We consider that the practitioner's actions fell far short of the standard of professional conduct observed or approved by members of the profession of good repute and competence."
It was on this basis that the Tribunal came to make the finding that the practitioner was guilty of unprofessional conduct.
Much has been written about the duties which counsel owes as an officer of the Court. These duties and their observance are of fundamental importance to the administration of justice. As was said in the decision of the House of Lords in Rondel v Worsley [1969] 1 AC 191 by Lord Reid at 227:
"… as an officer of the court concerned in the administration of justice, [every counsel] has an overriding duty to the court, to the standards of his profession, and to the public, which may and often does lead to a conflict with his client's wishes or with what the client thinks are his personal interests. Counsel must not mislead the court, he must not lend himself to casting aspersions on the other party or witnesses for which there is not sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce …"
There is a distinction, at least for defence counsel in the context of criminal proceedings, between actively misleading and passively standing by and watching the court be misled, which Lord Diplock summarised in Saif Ali v Sydney Mitchell & Co [1980] AC 198 at 220 as follows:
"A barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to the facts; although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain facts that are within the barrister's knowledge."
That distinction has no present relevance, of course, as the conduct in question was in the course of a civil trial and, as observed earlier, the appellant did much more than merely stand by or adopt a neutral stance with respect to the factual issue which is critical to this appeal. In the context of civil proceedings the duty of counsel was put succinctly by Denning LJ in Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297:
"[Counsel] must not, of course, knowingly mislead the court, either on the facts or on the law …"
The duty of counsel not to mislead the court in any respect must be observed without regard to the interests of the counsel or of those whom the counsel represents. No instructions of a client, no degree of concern for the client's interests, can override the duty which counsel owes to the court in this respect. At heart, the justification for this duty, and the reason for its fundamental importance in the due administration of justice, is that an unswerving and unwavering observance of it by counsel is essential to maintain and justify the confidence which every court rightly and necessarily puts in all counsel who appear before it.
The nature and purpose of the duty not to mislead the court, and the importance of its observance to the due administration of justice, are among the matters properly to be weighed by the Tribunal in assessing the degree of seriousness which attached to the conduct of the appellant in this case. Also relevant was the appellant's expectation that the true position would emerge in the course of evidence so that the Court would not ultimately be misled in its decision by the conscious course of conduct of the appellant. The conduct of the appellant would have been far more grave, indeed, had its purpose been to mislead the Court in its decision. It was also relevant that it does not appear that the appellant sought to secure some advantage for his client with respect to cross-examination as, on the factual basis accepted by the Tribunal, the practitioner proceeded in the expectation that the truth would emerge in the course of the client's evidence, presumably his evidence-in-chief.
There is no clear indication what was the objective of the practitioner, other than that which he gave of seeking to avoid causing additional harm to his client's credit. A possible consequence of the course he chose is that advanced in the course of submissions for the respondent before us, that it avoided any lessening of the prospects of an overnight settlement after the first day of the trial. That, however, was not advanced before the Tribunal and was not considered by it. With respect to the practitioner's explanation, it is to be observed, as the Tribunal noted, that his client's credit could have been better protected by the truth being pleaded and opened, leaving the explanation for the client's conduct to be given during his evidence. That, however, is not material for present purposes as it was accepted by the Tribunal that, however erroneous, it was a matter of professional judgement by the appellant that the course he took would best prevent undue harm to his client's credit.
Nevertheless, on the basis of the factual findings of the Tribunal it was, in my respectful view, clearly open to it to be satisfied that the conduct of the practitioner constituted unprofessional conduct. As has been indicated his conduct could have been more serious had different factual elements been present. Nevertheless, to deliberately mislead the Court, even though it was foreseen as merely a temporary misleading, and even though that course may have been decided upon as a matter of erroneous professional judgement, involved such a clear and conscious failure to observe the duty which the appellant owed to the Court that I am unable to see that any other conclusion was open to the Tribunal. The view was well open to the Tribunal that the conduct of the appellant to a substantial degree fell short of the standard of professional conduct observed and approved by members of the profession of good repute and competence in accordance with the duty which every counsel must observe in such a situation.

Publication

The notice of appeal sought among other orders an order that there be no publication of the proceedings before the Legal Practitioners' Disciplinary Tribunal or before this Court. This position was modified somewhat in the course of submissions, the appellant contending only that there should be a restriction of publication of this appeal, including the names of the practitioner and the allegations against him and the findings of the Tribunal until the determination of this appeal, and that then there should only be publication in the event that the appeal was dismissed.
The applicant relied on the inherent jurisdiction of the court to make an order restricting publication; T K v Australian Red Cross Society (1989) 1 WAR 335; Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153.
In support of the submission the appellant contended that a restriction on publication would protect "the right of the appellant" to avoid publication of his name and of unsubstantiated allegations against him. It was contended this right was recognised by s 31C of the Act.
Section 31 C provides:
"(1)Subject to this section, any inquiry or hearing under this Part shall not be held in public.
(2)The Complaints Committee, or the Disciplinary Tribunal, in a particular case, or as to particular aspects of a particular case, may determine –
(a)that any proceedings to be conducted before it under this Part shall be conducted in public; or
(b)who, other than such persons or their representatives as this Act may require or authorise, may be present before it.
(3)In respect of proceedings conducted before it the Complaints Committee or the Disciplinary Tribunal may, if satisfied that it is appropriate to do so, order that –
(a)any evidence given before it;
(b)any information, or any record or the contents of any record, produced or referred to before it; or
(c)any information that might enable a person who has appeared before it to be identified,
shall not be published by any means, or shall not be published in such manner and to such persons as the order specifies, or otherwise disclosed or made available to any person or any specified person or class of persons.
(4)A person who contravenes an order made under this section shall be liable to be dealt with as though for a contempt of the Court.
(5)The Disciplinary tribunal shall, in respect of proceedings conducted before it, in the event of an adverse finding against a practitioner, unless it is of the opinion that the circumstances are of such a minor nature as not to so warrant, cause to be published –
(a)the name of the practitioner;
(b)the nature of the finding;
(c)the penalty, if any, imposed; and
(d)a summary of its reasons for its findings and including such details of the evidence that it considers helpful in understanding the nature of the case, but in doing so may withhold such details as it considers in the interests of the complainant should be withheld or which would prejudice the interests of any person other than the practitioner."
In the present case it appears that there was no order by the Tribunal that the proceedings be conducted in public but at the conclusion of the hearing it ordered that there should be publicity in accordance with the provisions of s 31C(5) of the Act. In the event, however, we are informed from the Bar table that there has been no actual publication pursuant to this decision to the present time. It is said that this followed representations to the Chairman through the Registrar following the institution of the appeal to this Court although that is not confirmed by any of the papers before this Court.
While it can be accepted that an effect of the operation of s 31C is that there would not be publication of a practitioner's name or unsubstantiated allegations in the ordinary course of proceedings before the Tribunal which failed, in the absence that is of an order pursuant to s 31C(2), it is not apparent that the legislative scheme of s 31C is designed to protect any "right" of the practitioner by ensuring that outcome. While the section and the Act as a whole does not contain any explicit statement of legislative intention it was noted in argument that s 31C(1) is not usual in the statutory schemes of this State dealing with disciplinary proceedings for other professions. There is no apparent basis for thinking that the legislature would be minded to regard the concerns of legal practitioners, to keep confidential the details of disciplinary proceedings against them, in a more favourable light than similar concerns of other professional persons. Hence, it appears more likely that the policy of the section is directed to guarding some other interest or concern, rather than to protect the "rights" of legal practitioners. It is to be noted that in s 31C(3), cf para (c), the legislative intention is directed particularly to preventing the identification of persons who appear before the tribunal in certain circumstances, and that in s 31C(5)(d) any publication by the Tribunal of an adverse finding against a practitioner may not include any details which the Tribunal considers, in the interests of the complainant, should be withheld, or which would prejudice the interests of any person other than the practitioner. As much as these provisions provide some indication of the policy underlying the provision, what is indicated is a concern to protect those, whether clients, witnesses or others, who might be obliged to give evidence before the Tribunal when it is hearing a disciplinary proceeding against a practitioner or whose affairs or interests might be aired in the course of such a proceeding or adversely affected by publication of the proceeding. These provisions provide an indication that the legislature was conscious of the potential for disciplinary proceedings against legal practitioners to have adverse consequences for clients and others. Indeed s 29(3) reveals that the legislature was well aware that matters involving legal professional privilege might well arise before the Tribunal. That provision enables the receipt by the Tribunal of evidence that would otherwise be subject to legal professional privilege without that privilege being lost for other purposes or the evidence reported. For these reasons I am not persuaded that s 31C provides any adequate foundation for a conclusion that it is part of the legislative scheme that practitioners, who are the subject of disciplinary proceedings, should be protected from the publication of their name or of unsubstantiated allegations. It is true that those things may occur, but only as an incidental consequence of the operation of the provisions which appear to me to be directed primarily to protecting the rights of clients and other persons who may be required to give evidence before the Tribunal or whose affairs may be the subject of disclosure before the Tribunal. (These comments are not intended to diminish the clear provision of s 31C(5) with respect to cases where an adverse finding is in respect of circumstances of a minor nature).
Whatever was the legislative intention which guided the formulation s 31C, it is clear that the legislature did not extend its provisions to proceedings by way of appeal to this Court. Although there is express statutory provision for appeals to this Court from decisions of the Tribunal, the scope of s 31C is limited to proceedings before the Tribunal. In the absence of any express or implied legislative provision affecting proceedings before this Court, it is appropriate for this Court to have regard to the fundamental importance of openness in the administration of justice, a consideration which is of no less importance, indeed it may be thought to be of greater importance, where this Court is dealing with the professional conduct of one of its own practitioners.
This Court had occasion to reflect on the fundamental principle that the administration of justice should be open in a decision delivered recently in Re Alison Ruth Robins SM; Ex parte West Australian Newspapers Ltd [1999] WASCA 16 where Ipp J, Pidgeon and Steytler JJ concurring, considered the effect of a number of leading authorities. There is value in repeating much of what was said. Commencing at p 4 [5] Ipp J said:
"The fundamental principle that the administration of justice should be open
The courts have, at the highest level, stressed the fundamental importance of openness in the administration of justice. I shall refer only to a few of the authorities. In Russell v Russell (1976) 134 CLR 495 (at 520) Gibbs J said:
'It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted 'publicly and in open view' … This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character.'
In David Syme and Co v General Motors Holden Ltd (1984) 2 NSWLR 294 Street CJ observed (at 300):
'… It is a deeply rooted principle that justice must not be administered behind closed doors – court proceedings must be exposed in their entirety to the cathartic glare of publicity. There are limited exceptions to the observance of this principle but these are well defined and sparingly allowed.'
In this Court Malcolm CJ said (at 164) in Re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153:
'The administration of justice is a matter of public interest. Not all members of the public are able to attend court proceedings. The public nature of judicial proceedings is facilitated by the publication of fair and accurate reports of proceedings in our courts. … It is in the interests of the administration of justice and in the public interest that the public be fairly and accurately informed of what takes place in our courts. This is also an aspect of the right of free speech.'
And (at 165):
'It is a fundamental principle of the administration of justice that it be carried out in public.'
Rowland J (at 179) expressed similar views.
The reasons for this principle are not hard to understand. They lie at the heart of our system of justice and our democratic society. The cases make this crystal clear. I shall again refer only to a few authorities.
Ackner LJ in R v Horsham Justices; ex parte Farquharson [1982] 1 QB 762 at (798) observed succinctly that '[t]he freedom to report trials is one of the essential freedoms'. In David Syme and Co v General Motors Holden Ltd Street CJ (at 300) pointed out:
'It is only thus that the right of representation and of due hearing of all legitimate submissions can be seen to have been accorded to parties subjected to the judicial process. Moreover publicity of proceedings is one of the great bastions against the exercise of arbitrary power as well as a re-assurance that justice is administered fairly and impartially.'
In John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of New South Wales (1992) 26 NSWLR 131 Kirby P said (at 143):
'A significant reason for adhering to the stringent principle, despite sympathy for those who suffer embarrassment, invasions of privacy or even damage by publicity of their proceedings is that such interest must be sacrificed to the greater public interest in adhering to an open system of justice. Otherwise, powerful litigants may come to think that they can extract from courts or prosecuting authorities protection greater than that enjoyed by ordinary parties whose problems come before the courts and may be openly reported.'
In John Fairfax & Sons Ltd v Police Tribunal of NSW & Anor (1986) 5 NSWLR 465 McHugh JA said (at 481) that if information were to be suppressed, the court's proceedings:
'would inevitably become the subject of the rumours, misunderstandings, exaggerations and falsehoods which are so often associated with secret decision making. The publication of fair and accurate reports of court proceedings is therefore vital to the proper working of an open and democratic society and to the maintenance of public confidence in the administration of justice.'"
Having then considered the limited exceptions to the general principle, none of which is presently applicable, reference was then made to TK v Australian Red Cross Society (supra) at 336 where Malcolm CJ said:
"Clearly the circumstances in which the Court would depart from the fundamental principle of a public administration of justice would need to be very exceptional."
That review of authority led Ipp J to conclude at 8 [15]:
"The need to establish exceptional and compelling circumstances before a departure from the principle will be ordered underlies the rule that, ordinarily, matters of embarrassment, delicacy, damage to reputation, invasions of privacy, and unsavoury evidence will not warrant secret justice."
And at [16]
"Accordingly, there is a heavy evidentiary onus on the party seeking any restriction: TK v Australian Red Cross Society at 337."
When this matter was ventilated at the commencement of the hearing before this Court on 4 June 1999 the Court was unanimously of the opinion that the application to restrain publication should be dismissed. The Court indicated that its reasons would be published later. Having regard to the principles and the considerations which I have discussed I joined in that decision to refuse the application because I was not persuaded that there were any exceptional or compelling circumstances which would justify a departure from the ordinary principle that proceedings before this Court should be conducted in public. I would sympathise with the present appellant and other practitioners should this approach lead to the consequence that unsubstantiated allegations come to be published in a way that adversely affects them personally or professionally. The force of the fundamental principle, and of the considerations that have shaped that principle, is so compelling, however, that this prospect of personal or professional embarrassment or damage to reputation must be accepted.

Decision

For these reasons, in my view the appeal should be dismissed.