Legal Practitioners Complaints Committee and Giles - [2006] WASAT 188

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: VOCATIONAL REGULATION

ACT: LEGAL PRACTICE ACT 2003 (WA)

CITATION: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE and GILES [2006] WASAT 188

MEMBER: JUDGE J CHANEY (DEPUTY PRESIDENT)
MS M CONNOR (MEMBER)
MS A LISCIA (SENIOR SESSIONAL MEMBER)

HEARD: 19 APRIL 2006

DELIVERED : 11 JULY 2006

FILE NO/S: VR 15 of 2006

BETWEEN: LEGAL PRACTITIONERS COMPLAINTS COMMITTEE
Applicant
AND
JEREMY CHRISTOPHER GILES
Respondent

Catchwords:

Professions Legal practitioner Disclosure to media of without prejudice communications Whether emails were without prejudice Whether without prejudice communications are confidential Whether waiver of privilege by other party Public statements inconsistent with without prejudice position Error of judgment Whether unprofessional conduct

Legislation:

Legal Practice Act 2003 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant: Mr MD Cuerden
Respondent: Mr ML Bennett

Solicitors:

Applicant: Law Complaints Officer
Respondent: Lavan Legal

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

CJ Redman Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173
Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56
Old Papa's Franchise Systems Pty Ltd v Cammisa Nominees Pty Ltd & Ors [2003] WASCA 11
Rush and Tompkins Ltd v Greater London Council [1989] AC 1280
South Shropshire District Council v Amos (1986) 1 WLR 1271
Village/Nine Network Restaurants and Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd [2001] 1 Qd R 276
Volpes v Permanent Custodians Limited [2005] NSWSC 111

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Jeremy Giles, a legal practitioner, acted for a Mr Warren Anderson in a defamation action against a Minister of the Northern Territory Government, Mr Ah Kit. In August 2001, Mr Ah Kit's lawyer sent an email to Mr Giles enquiring whether Mr Anderson might settle the action in terms similar to a settlement that Mr Anderson had reached in relation to a claim against the Chief Minister of the Northern Territory. The email was marked "without prejudice".
There was significant public interest in the proceedings, and Mr Ah Kit had made certain statements in public about the proceedings. Mr Giles was contacted by a journalist from the Northern Territory News. He was asked about settlement discussions. Mr Giles responded in a way that revealed the substance of the "without prejudice" email. He did so having made a judgment, albeit fleetingly, that the approach by Mr Ah Kit's lawyer was not truly without prejudice, or if it was, the privilege no longer applied because of Mr Ah Kit's public statements.
The Tribunal concluded that Mr Giles' judgment as to the status of the communications was wrong, but was not an error that satisfied the test for unprofessional conduct. It therefore dismissed the complaint.

Introduction

The applicant alleges that Mr Jeremy Christopher Giles, a legal practitioner, was guilty of unsatisfactory conduct by unprofessional conduct on 26 August 2004 in disclosing to a representative of the "Northern Territory News" the substance of certain communications said to be subject to without prejudice privilege. The documents concerned were two emails dated 24 and 25 August 2004 respectively. The emails were sent by the solicitor for the Northern Territory to Mr Giles. They related to pending proceedings between a Mr John Ah Kit, a Minister in the Northern Territory Government, and a Mr Warren Anderson. Mr Ah Kit was represented by the solicitor for the Northern Territory, and Mr Warren Anderson was represented by Mr Giles. The unprofessional conduct is said to be the disclosure of those documents without the consent of the solicitor for the Northern Territory or Mr Ah Kit, and without any lawful justification.
The practitioner does not accept that the communications referred to by the applicant were the subject of without prejudice privilege. Alternatively, he contends that, if the emails were properly without prejudice, it does not follow that they were confidential. He also contends that, if the communications were without prejudice, Mr Ah Kit had waived the privilege by acting inconsistently with the contents of the emails. Finally, Mr Giles contends that, even if his assessment of whether the documents were privileged and confidential was wrong the making of the error does not amount to unprofessional conduct for the purposes of the Legal Practice Act 2003 (WA) (the LP Act).
The facts underlying the applicant's allegations were not, for the most part, in dispute. Both Mr Ah Kit, through his solicitor, and Mr Giles have accepted that the Tribunal is at liberty to reveal the contents of the communications the subject of these proceedings, notwithstanding that they may enjoy the status of without prejudice privilege.

The facts

In 2003, Mr Anderson commenced proceedings against Mr Ah Kit at the Supreme Court of Western Australia, being action CIV 2388 of 2003 (the action). The Solicitor for the Northern Territory acted for Mr Ah Kit. A Mr Thomas Wesley Anderson, a lawyer authorised pursuant to s 8(4) of the Law Officers Act (NT) to act in the name of the Solicitor for the Northern Territory, was the solicitor with the conduct of the matter on behalf of Mr Ah Kit. The solicitor's on the record for Mr Warren Anderson in the proceedings were Solomon Brothers. Mr Giles, a partner in that firm, was the solicitor with the conduct of the matter on behalf of Mr Warren Anderson. The action concerned an allegation of defamatory remarks made by Mr Ah Kit to the effect that Mr Warren Anderson had mistreated a number of rare and exotic animals for which he, Mr Warren Anderson was responsible. Around the same time, a prosecution was launched against Owston Nominees No. 2 Pty Ltd (Owston), a company of which Mr Warren Anderson is a director, alleging breaches of the Animal Welfare Act (NT). Mr Giles also acted for Owston in relation to that prosecution.
It is apparent that the matters the subject of the prosecution, and Mr Ah Kit's public remarks about Mr Warren Anderson's conduct, received extensive media publicity both in the Northern Territory and elsewhere in Australia. At various times, Mr Giles, acting on Mr Warren Anderson's instructions, acted as Mr Warren Anderson's spokesman to various journalists.
After being part heard over a number of days in April 2004, the trial of the prosecution against Owston was adjourned until 4 August 2004. The following morning, the charges against Owston were withdrawn by the prosecution.
On 11 August 2004, the Chief Minister of the Northern Territory made a statement concerning Mr Warren Anderson and the prosecution of Owston. On 13 August 2004, Mr Giles wrote on behalf of Mr Warren Anderson demanding an apology and retraction from the Chief Minister. In the following week there were negotiations conducted through Mr Thomas Anderson and Mr Giles which led to a settlement, on confidential terms, of Mr Warren Anderson's foreshadowed defamation action against the Chief Minister. On 23 August 2004, the Chief Minister published an apology to Mr Warren Anderson in the media.
During the course of the discussions between Mr Giles and Mr Thomas Anderson in relation to the settlement of the claim against the Chief Minister, Mr Thomas Anderson raised the prospect of a settlement of the action against Mr Ah Kit. Mr Giles and Mr Thomas Anderson did not agree the precise terms of those conservations, but it is not necessary to resolve that conflict. What is clear is that the discussions were relatively brief and no progress towards a settlement was made.
On 24 August 2004, Mr Thomas Anderson heard news broadcasts at 7.45 am and 9 am on ABC radio station in Darwin. The transcript of the 7.45 am news item reads:
"1.Developer Warren Anderson says he'd reconsider defamation action against Territory Government Minister John Ah Kit if he offers an apology. A failed prosecution was launched against Mr Anderson for animal cruelty late last year but the charges were eventually withdrawn Danielle Parry reports. Warren Anderson.
REPTRLegal action against the Chief Minister was called off yesterday after she apologised for comments she made once the charges were dropped. But a defamation suit is still pending against Minister John Ah Kit for remarks he made before the case went to court. Mr Anderson says he'd rethink his position if he received an apology from Mr Ah Kit but doubts one would be forthcoming.
ANDERSON I'LL RECONSIDER IT BUT I WOULD NOT GIVE ANY COMMITMENT FURTHER THAN THAT BECAUSE I AM VERY ANGRY WITH HIM.
REPTR:The Minister was unavailable for comment when his office was contacted last night. ENDS."
The transcript of the 9 am news item reads:
"1.Developer Warren Anderson says he'd reconsider a defamation suit against the Territory Minister for Animal Welfare if he says sorry for remarks he made last year. A failed prosecution was launched against Mr Anderson for animal cruelty last year but all the charges have since been withdrawn. Legal action is still pending against Mr John Ah Kit for remarks he made before the case went to court. Mr Anderson says he won't make any promises but might revisit the defamation action if he receives an apology.
ANDERSON I'LL RECONSIDER IT BUT I WOULD NOT GIVE ANY COMMITMENT FURTHER THAN THAT BECAUSE I AM VERY ANGRY WITH HIM AND WHAT HE DID. HE SHOULDN'T BE A MINISTER THAT MAN. HE SHOULDN'T EVEN BE IN THE GOVERNMENT."
Prompted by those news items, Mr Thomas Anderson endeavoured to telephone Mr Giles in Perth shortly after 7.30 am Perth time. Mr Giles was not then in his office, and Mr Thomas Anderson sent an email to Mr Giles in the following terms:
"Tom Anderson To: [email protected]
24/08/200409:42 AM cc:
Subject: Ah Kit ats Anderson – without prejudice
Dear Jeremy,
I have tried calling this morning, but perhaps you were not in yet.
I would appreciate a call when you have a free moment to discuss your client's public comments this morning that he would consider discontinuing these proceedings if an apology was forthcoming."
Regards,
Tom Anderson"
Later that morning, Mr Thomas Anderson sent Mr Giles a further email attaching copies of the transcripts of the radio interviews.
On the same day, a question was asked in the Northern Territory Parliament by Mr Elferink to Mr Ah Kit. The following exchange appears in Hansard.
Question by Mr Elferink:
"On 15 May 2004, Dr Wirth, the National Director of the RSPCA, issued a national apology to Mr Anderson in three major Australian newspapers. On 23 August 2004, Clare Martin, the Chief Minister of the Northern Territory, issued an apology to Mr Anderson. You are now the only person who has yet to apologise for the persecution of Mr Anderson. Will you now take this opportunity to apologise to Mr Anderson and settle this matter once and for all?
ANSWER
Madam Speaker, I welcome the question from the member for Macdonnell, but I have to reiterate, once again, this matter is before the courts.
Members interjecting
Mr AH Kit: Oh well, you talk about presumption of innocence, and your Leader of the Opposition just mentioned it. This has not gone to court yet. Are you asking me to apologise for something that has not been settled by the courts.
The legal advice that I have received, and our lawyers are talking to their lawyers, it is before the courts. Let it be dealt with. There will be a full explanation once the courts are settled with the matter. At this point in time, I offer no apology.
Members interjecting
Mr Ah Kit: I am provided with legal advice that says this matter is before the courts. Cannot you understand that?"
The following day, Mr Thomas Anderson received a copy of a transcript of a 7.30 am radio news broadcast on MIX 104.9 in Darwin. The relevant portion of the transcript reads:
"2.Property developer Warren Anderson says he'll withdraw the defamation case against the Territory Minister John Ah Kit if he apologises for alleged defamatory comments. Late last year Mr Ah Kit commented on the animal cruelty charges against Mr Anderson, charges that were all later dropped. On Monday, Mr Anderson withdrew action against Chief Minister Clare Martin for similar comments after she officially apologised. STORY IN FULL."
Having received that document, and not having received a response to his emails to Mr Giles the previous day, Mr Anderson sent a further email to Mr Giles. It read as follows:
"Tom Anderson To: [email protected]
25/08/200412:31 PM cc:
Subject: WP Anderson – without prejudice
Dear Jeremy,
I refer to my telephone message and 2 emails of yesterday.
I now attach a further news report of this morning concerning this matter.
Please advise as soon as possible whether your client is prepared to enter negotiations towards the settlement of this matter on terms similar to those agreed concerning the Chief Minister. If not, perhaps your client should correct the public record.
A response would be appreciated"
Regards,
Tom Anderson"
Meanwhile, on 24 or 25 August 2005, Mr Giles spoke to Mr Warren Anderson concerning Mr Thomas Anderson's email. According to Mr Giles, he was instructed by Mr Warren Anderson to write "a strong reply" to Mr Thomas Anderson.
On the afternoon of 24 August 2004, Mr Giles was telephoned by a journalist from the Northern Territory News. Mr Giles said that he spoke to the journalist "pursuant to Mr Warren Anderson's standing instructions to me" as he had done previously. The journalist told Mr Giles what Mr Ah Kit had said in Parliament that day, including the comment that "our lawyers are talking to their lawyers". According to Mr Giles, the journalist also informed him that representatives of the Northern Territory government had made similar statements to that effect to the media, and that the story being told to the media was that there had been negotiations and that Mr Warren Anderson had declined to accept an apology from Mr Ah Kit. Mr Giles formed the view that the statement by Mr Ah Kit to the Northern Territory Parliament that Mr Ah Kit's lawyers were talking to Mr Giles was false, as were statements that Mr Warren Anderson had declined to accept an apology from Mr Ah Kit.
Mr Giles accepts that he then made a number of comments to the journalist which were reported in the Northern Territory News the following day. The relevant portions of the article at page 3 of that newspapers read:
" 'If John Ah Kit has a proposal, then he should make it – the ball is in his court.' Mr Anderson's lawyer, Jeremy Giles said.
'He got asked to apologise at the time – he didn't. If he wants to proposed something now – go ahead and propose it.'
Following opposition scrutiny in Parliament yesterday, Mr Ah Kit ruled out an early apology.
'There will be a full explanation once the courts are settled with the matter' he said.
'At this point in time I offer no apology.' "
According to Mr Giles, he made those comments having "quickly considered and formed the view that [he] could properly comment" for a number of reasons. First, he considered that he was not disclosing any without prejudice or confidential communication. He took the view that, given the history of public comment by both parties, and Mr Ah Kit's repeated communication with the media, he did not consider that in the absence of a communication expressly being agreed to as confidential, there could be any implied confidentiality between the parties. He further considered that Mr Ah Kit had put the communications between Mr Thomas Anderson and Mr Giles into the public domain, and had thereby waived any confidence in the communication. Alternatively he considered that if he was wrong about his opinion, Mr Ah Kit's conduct in Parliament was misleading and that he had thereby disentitled himself to rely upon without prejudice privilege to prevent disclosure of the communications. The applicant does not rely upon this article to support its allegation of unsatisfactory conduct.
On 25 August 2004, Mr Giles received a copy of the transcript of Mr Ah Kit's statements in the Northern Territory Parliament, and sent an email to Mr Thomas Anderson enclosing a copy of that transcript. The email was not marked "without prejudice", and attached a letter to Mr Anderson which read:
"WP ANDERSON – J AH KIT
We refer to your emails of 24 and 25 August 2004.
The recitals of fact in those emails are misleading.
The actual respective stances of our client and your client are abundantly clear. Our client's position is precisely as our Jeremy Giles put to you during one of your telephone conversations with him last week: if your client has an offer to make, make it.
As to your client, the exchanges in Parliament yesterday and today's Northern Territory News article are unequivocal. We enclose a copy of a question asked of your client and his answer. We also enclose a copy of the article which appeared on page 3 of today's edition of the Northern Territory News. Your client has unequivocally stated 'at this point in time I offer no apology'.
The quoted statement by our Mr Giles, other than the obvious grammatical error, accurately states our client's view.
Yours faithfully
Solomon Brothers"
On 26 August 2004, Mr Giles received a further telephone call from the journalist. The journalist indicated that representatives of the Northern Territory government had now said that Mr Ah Kit was prepared to apologise to Mr Warren Anderson. Mr Giles then made several statements to the journalist which were reported in the Northern Territory News on 27 August 2004. The applicant relies upon this article to ground the allegation of unsatisfactory conduct. The relevant portions of that article, under the headline "Ah Kit rethinks apology" are as follows:
"Community Development Minister John Ah Kit is considering apologising to developer Warren Anderson in a bid to avoid defamation action, it was learned last night.
Chief Minister Clare Martin was forced to apologise for comments she made about the Government's failed animal cruelty case against Mr Anderson.
And this week Mr Ah Kit told parliament that he would not apologise for comments he made on ABC TV regarding the treatment of animals at Mr Anderson's Tipperary Sanctuary.
But the Northern Territory News had learned Mr Ah Kit has since requested a proposal for his apology from Mr Anderson.
Jeremy Giles, Mr Anderson's lawyer, last night confirmed that a request was made.
'What his solicitor has requested is that we make an offer – they have fished for us to make an offer,' he said.
'And my response was: "Read the Northern Territory News – it tells you what our view is".'
Mr Giles told the Northern Territory News this week it was up to Mr Ah Kit to propose an apology. 'We asked for an apology in November when he made the statements – he didn't give us one,' he said.
'At the moment the response we have given to their fishing is if you want to make an offer, make it.'
Mr Ah Kit last night declined to comment because the matter was yet to go to the courts.
But a government source last night threw doubt on the claim Mr Ah Kit sought an apology, saying there was no truth to the claim.
Mr Giles said Mr Anderson would have a 'real think' about dropping the defamation action if an apology was forthcoming.
'He doesn't want to extract a large amount of money from the taxpayers,' he said.
'That is not what he is on about.
If a realistic offer is made, with a sincere apology, he will have a real think about it.' "
On 14 October 2004, Mr Thomas Anderson wrote to Mr Giles complaining that the confidentiality of the emails of 24 and 25 August 2004 had been breached by Mr Giles' statement to the media that "what his solicitor has requested is that we make an offer: they have fished for us to make an offer … and my response was – read the Northern Territory News it will tell you what our view is". Mr Giles responded to that complaint on 15 October 2004. On 1 March 2005, Mr Thomas Anderson referred the matter to the Legal Practitioners Complaints Committee by way of complaint.

Were the emails subject to without prejudice privilege?

The respondent contends that a proper review of the emails from Mr Thomas Anderson to Mr Giles of 24 and 25 August 2004 leads to the conclusion that they were not capable of attracting without prejudice privilege. He relies on the decision of Campbell J in CJ Redman Constructions Pty Ltd v Tarnap Pty Ltd [2006] NSWSC 173. That was a decision given extempore in relation to an application for a mareva order, where objection was taken to the tender of a letter passing between the solicitors for the parties, on the basis that it was written without prejudice. The letter was written by the plaintiff's solicitors to the defendant's solicitors and was headed "without prejudice save as to costs". It made reference to a conversation between the solicitors which "indicated the possibility of a global resolution of all outstanding matters and indicated that you would obtain your client's instructions in that regard". It then advised that the application for the mareva injunction would be pursued unless "instructions on the global resolution" were obtained by a specified time. Campbell J noted that it was apparent that the letter alluded to there being settlement discussions on foot, but gave no detail of those settlement discussions "and, most importantly, does not involve the writer of the letter either making an admission on behalf of his client concerning the matter of settlement discussion, or attributing any admission to the recipient of the letter". His Honour concluded that the letter did not fall within the rationale of the privilege, namely that "people should be free to explore settlement of disputes, and make admissions in the course of those discussions, safe in the knowledge that any admissions which they make will not be tendered against them later in course, if the negotiations breakdown".
The applicant contends that the decision in CJ Redman Constructions Pty Ltd v Tarnap Pty Ltd can be distinguished on its facts. The applicant relies on the observations of the English Court of Appeal in South Shropshire District Council v Amos (1986) 1 WLR 1271 at 1277 where it was said by Parker LJ:
"In order to avoid any possibility of future unnecessary disputes about such matters we conclude by stating that we agree with the judge (a) that the heading 'without prejudice' does not conclusively or automatically render a document so marked privileged; (b) that, if privilege is claimed but challenged, the court can look at a document so headed in order to determine its nature; and (c) that privilege can attach to a document headed 'without prejudice' even if it is an opening shot. The rule is however not limited to documents which are offers. It attaches to all documents which are marked 'without prejudice' and form part of negotiations, whether or not they are themselves offers, unless the privilege is defeated on some other ground as was the case in Inre Daintrey, Ex parte Holt [1893] 2 Q.B. 116"
Taking the approach suggested by the Court of Appeal, it is necessary to examine the two emails that the applicant contends were without prejudice. They must be read in their context. That context is that, as was well known to Mr Giles, the claim against the Chief Minister had been resolved on the basis of an apology by the Chief Minister, and a release from further claims by Mr Warren Anderson.
The email of 24 August 2004 asked Mr Giles to telephone Mr Thomas Anderson "to discuss [his] client's public comments this morning that he would consider discontinuing these proceedings if an apology was forthcoming". In its terms, that email is equivocal as to the nature of the discussion which Mr Thomas Anderson wished to have. The fact that it was headed "without prejudice" could suggest that what was proposed was a discussion towards resolution of the dispute. On the other hand the email does no more than seek clarification about public comments made by Mr Warren Anderson. We would not conclude that the first email on 24 August 2004 formed a part of a negotiation towards settlement.
The email on 25 August 2004 went somewhat further. It asked Mr Giles to "please advise as soon as possible whether your client is prepared to enter negotiations toward the settlement of this matter on terms similar to those agreed concerning the Chief Minister". Had that sentence not contained the words "on terms similar to those agreed concerning the Chief Minister" the email would have given no indication as to the terms of any possible settlement, and in particular of any admission or concession that Mr Ah Kit may have been prepared to entertain. The reference to the terms of the Chief Minister's settlement were, however, significant. The clear implication of the email is that Mr Ah Kit was prepared to entertain a settlement involving an apology by him and Mr Warren Anderson forgoing any other claims. It was not an offer, but, adopting the words of Parker LJ in South Shropshire District Council v Amos, it was "an opening shot" and was a first step in the negotiations towards settlement. The use of the heading "without prejudice" reinforced the message that Mr Ah Kit was, through his solicitor, interested in settling the matter on the basis of the provision of an apology and a release. In our view, the email of 25 August 2004 did attract without prejudice privilege.

Did Mr Giles disclose the substance of the privileged communication?

Mr Giles accepts that the words attributed to him within quotation marks in the article dated 27 August 2004 are accurate quotations. The opening words of the article make it clear that the questions put to Mr Giles by the journalist concern the possibility of a settlement of the action against Mr Ah Kit on terms involving an apology. The passages attributed to Mr Giles are, at least in part, quoted as the foundation for the proposition that "Mr Ah Kit has since requested a proposal for his apology from Mr Anderson". Although Mr Giles may not have used that precise expression, the words which he admits having said were a clear confirmation of that fact.
Mr Giles did, in speaking to the journalist, reveal the substance of the without prejudice communication from Mr Ah Kit's solicitor on 25 August 2004.

Are without prejudice communications confidential?

Mr Giles contends that the effect of without prejudice privilege is to render communications inadmissible in the proceedings in respect of which the communications are made. Mr Bennett, who appeared for Mr Giles, noted observations of Windeyer J in Volpes v Permanent Custodians Limited [2005] NSWSC 111 where His Honour noted the difference between confidential information and documents which cannot be put into evidence. His Honour said:
"Correspondence marked 'without prejudice' containing offers to settle court proceedings is not admissible in evidence. No authority was put forward by counsel to support the proposition that such offers could not be disclosed to non parties. In fact, of course, they are disclosed all the time. Parties may need to disclose them to lenders and other advisors. That does not mean that they can be disclosed to the world at large".
Volpes involved an application for an interlocutory injunction to prevent disclosure of a settlement offer between parties to a litigation to a third party. His Honour concluded that it is reasonably arguable that information in a settlement offer has the quality of confidence necessary to support an injunction, and thus there was a serious question to be tried. His Honour observed:
"It is at least arguable that without prejudice correspondence in settlement negotiations is subject to some restraint as to its being published to the world at large as such publication would be contrary to the policy considerations which make such correspondence inadmissible in evidence."
The applicant relied on that part of Windeyer J's extempore judgment as supporting its contention that without prejudice communications are confidential.
There was considerable support for the applicant's contention to be found in the decision of the Queensland Court of Appeal in Village/Nine Network Restaurants and Bars Pty LtdvMercantile Mutual Custodians Pty Ltd [2001] 1 Qd R 276. There, the respondent had resolved an action against a third party through mediation. The appellant, which was not a party to the earlier litigation, sought access to documents relating to the mediation. There was no issue that the documents concerned enjoyed without prejudice privilege as between the parties to the litigation in respect of which they were created. The issue was whether the respondent was entitled to resist production of them in an action against a third party. Byrne J referred to observations by Griffiths LJ in Rush and Tompkins Ltd v Greater London Council [1989] AC 1280 that "the general public policy that applies to protect genuine negotiations from being admissible in evidence should also be extended to protect those negotiations from being discoverable to third parties" (at 1304A‑B). Byrne J noted that those comments, whilst referring to other parties to extant litigation, needed to be considered in the context that a party to the litigation had sought access to the documents. He said (at [34]):
"The recognition of such a privilege depends on a conviction, necessarily essentially intuitive, that the effectiveness of compromise negotiations will commonly be jeopardised if the participants apprehend that strangers might, through compulsory process in later litigation, gain access to the confidences exchanged and use them to the participants' disadvantage. Otherwise there would be no justification for contributing to the 'possibility of distorting the truth determination process' [citation omitted] through denial to tribunals of knowledge of material information. In the view of Lord Griffiths 'damage … would be done to the conduct of settlement negotiations if … what was said and written between' participants were to 'become common currency available' to strangers. This perception is shared by Wigmore's editor, as well as by me. And the inhibitions which rejection of such a privilege would likely engender assume special importance when the great popularity of compromise is recalled."
Pinkus JA reached the same conclusions saying (at [20]):
"There is no sound basis for holding that the basic purpose of protecting negotiations is sufficiently served if one allows the negotiators to be exposed to the risk that what they privately say, to settle their dispute, may be broadcast to the world at the instance of any person who can make use of it in litigation, unless that person is a party to the dispute being negotiated."
We agree with those observations. They were made in the context of resistance to processes of compulsory disclosure in litigation involving a third party. They have even more force in the context of voluntary disclosure by a party to the negotiations. In this case, where the litigation had engendered considerable interest in the media, confidentiality could reasonably be expected to have been important in fostering the parties willingness to endeavour to resolve their differences. The email of 25 August 2004 should have been kept confidential.

Has there been a waiver of the privilege?

The respondent submits that, by his comments in Parliament on 24 August 2004, when he stated that "at this point in time, I offer no apology", Mr Ah Kit was acting inconsistently with the proposition contained in the without prejudice communication from his lawyer. In cross‑examination of Mr Thomas Anderson, it was put that the press were being told various other things by representatives of the Northern Territory government. As we understand the submission, it is that, having made public utterances about the potential for settlement of the action, Mr Ah Kit had waived the privilege and confidentiality of his solicitor's emails.
We do not agree. The very objective of the privilege is to enable parties to endeavour to compromise their position. It will almost always be the case that the concessions made in negotiations will be inconsistent with the position maintained in the proceedings, and the pleadings. Where proceedings have a high public profile, it is to be expected that the public position adopted by a party, while the proceedings remain unresolved, will differ from the position adopted for the purposes of endeavouring to negotiate a resolution.
At the hearing, Mr Giles adopted, as his evidence in chief, the contents of a letter he wrote to the Law Complaints Officer by way of an initial response to the complaint. In that letter, Mr Giles suggested that Mr Ah Kit's conduct was misleading, and that he could not rely on without prejudice privilege to prevent disclosure of the communications. He cited in support of that proposition the decision of the Full Court of Western Australia in Old Papa's Franchise Systems Pty Ltd v Cammisa Nominees Pty Ltd & Ors [2003] WASCA 11. That decision concerned the "pleading into relevance" of certain without prejudice communications, and is not authority for the proposition asserted by Mr Giles. In our view, the fact that Mr Ah Kit maintained a public position inconsistent with the approach made by his solicitors to settle the matter does not constitute a waiver of the privilege of the without prejudice communications. This is common, especially in situations where the parties use the media as a litigation tool.

Was Mr Giles' conduct unprofessional?

Unprofessional conduct is conduct that would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competence – Kyle v Legal Practitioners Complaints Committee (1999) 21 WAR 56 at [61].
Mr Giles' evidence was that when the journalist spoke to him on 24 and 25 August 2004, on each occasion he considered the question of whether he was at liberty to say what he said. In short, he formed a view that the emails were not truly "without prejudice", that Mr Ah Kit had put the communications in the public domain in any event, and that Mr Ah Kit was guilty of misleading conduct which prevented him relying on the privilege. He accepted that he could have declined to answer the questions, but considered it in his client's interests to respond and that he was at liberty to do so. It is submitted on his behalf that, if he was wrong in his assessment of the status of the communications, it was an error of judgment, made in a context where there was no opportunity for in depth analysis and where a decision had to be made as to the best interests of his client. In those circumstances, it is submitted that the conduct is not such that it falls short of the standard of professional conduct observed by lawyers of good repute and competence.
There is no doubt that a wilful and blatant disclosure of privileged communications would satisfy the test of unprofessional conduct. In this case, the applicant contends that it was clear that the communications were privileged, that Mr Giles put himself in a position of speaking to the media on the matter, that he could have declined to comment, but that he made a conscious decision to disclose the content of the emails. The applicant relies upon the fact that the emails were marked "without prejudice" and argues that practitioners of good repute and competence would, in those circumstances, decline to answer the journalist's questions.
We have reached the view, after detailed consideration, that Mr Giles was wrong in his conclusions as to the nature of the communications and the effect of Mr Ah Kit's conduct on them. We do not, however, accept the applicant's submission that those errors were obvious. It is well known that the fact that the words "without prejudice" appear on a communication does not, of itself, determine the existence of the privilege. Rather, the content of the documents must be analysed to make that determination. In a context where public comments were being made by the other party concerning possible settlement negotiations, we are of the view that Mr Giles' assessment of the position, while wrong, was not without foundation.
There is an argument that, where lawyers are instructed to act as spokesperson for their client to the media, they should be particularly careful to avoid the possibility of breaching their higher duty to the court, and to the administration of the law, by over‑enthusiastic participation in public debate. In some circumstances, that need for particular care may leave little room for tolerance of breaches of those higher duties. In this case, however, we have reached the view that Mr Giles' conduct amounted to an error of judgment which falls short of unprofessional conduct.
It follows that the complaint against Mr Giles is not made out, and should be dismissed.

Orders

The complaint is dismissed.

I certify that this and the preceding [47] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE J CHANEY, DEPUTY PRESIDENT