LEGAL PROFESSION COMPLAINTS COMMITTEE and KHOSA
[2020] WASAT 167
•5 FEBRUARY 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LEGAL PROFESSION ACT 2008 (WA)
CITATION: LEGAL PROFESSION COMPLAINTS COMMITTEE and KHOSA [2020] WASAT 167
MEMBER: PRESIDENT PRITCHARD
HEARD: 22 DECEMBER 2020
DELIVERED : Ex tempore
PUBLISHED : 5 FEBRUARY 2021
FILE NO/S: VR 159 of 2017
BETWEEN: LEGAL PROFESSION COMPLAINTS COMMITTEE
Applicant
AND
MANRAJ SINGH KHOSA
Respondent
Catchwords:
Protected matter - Whether document contains exempt matter under the Freedom of Information Act 1992 (WA) - Whether public interest in the administration of justice outweighs public interest in the protection of privacy of personal information
Statutory construction - Whether the Tribunal has power to make orders to permit a party to uplift documents for testing - Scope of s 73 of the State Administrative Tribunal Act 2004 (WA) - Beneficial construction of Act - Where evidentiary material produced late in proceedings - Whether other party is entitled to undertake testing to determine the authenticity of materials
Legislation:
Freedom of Information Act 1992 (WA), Sch 1, cl 3, cl 3(1), cl 3(6)
Interpretation Act 1984 (WA), s 50
Legal Profession Act 2008 (WA)
Rules of the Supreme Court 1971 (WA), Order 36B r 9
State Administrative Tribunal Act 2004 (WA), s 3, s 9, Pt 4, s 32(5), s 32(7), s 34(1), s 35, s 35(1), s 64(1), s 72, Div 4, s 73, s 73(1), s 159(2), s 160(2), s 170
Supreme Court Act 1935 (WA), s 167
Uniform Civil Procedure Rules 2005 (NSW), r 23.8
Result:
Application allowed
Representation:
Counsel:
| Applicant | : | Ms CC Paterson |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
AB v The State of Western Australia; AH v The State of Western Australia [2011] HCA 42; (2011) 244 CLR 390
Mohammadi v Bethune [2018] WASCA 98
Public Transport Authority [2018] WASC 47
S v Department for Child Protection and Family Support [2017] WASC 305
REASONS FOR DECISION OF THE TRIBUNAL:
(These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.)
Introduction
In these proceedings, the Legal Profession Complaints Committee (Committee) alleges that the respondent engaged in professional misconduct, as defined in the Legal Profession Act 2008 (WA) (LP Act) in various respects (Application). One of its grounds for alleging professional misconduct is set out in ground 2 of its application. In that ground it is alleged, amongst other things, that, at a meeting with officers of the Legal Practice Board (Board), on 17 June 2015 (2015 Meeting), to discuss the potential closure of the law firm the respondent then ran, the respondent made certain representations which the Committee alleges were, to the knowledge of the respondent, false or misleading or both, or which had the potential to mislead the Board, and that the respondent made those false or misleading representations as part of an attempt to avoid the liabilities of his law firm by setting up a new law firm to take over that original firm. The determination of what was said at the 2015 Meeting is, thus, central to determining whether ground 2 is made out.
On 11 November 2019, I ordered that the Application be listed for a final hearing, commencing on 25 March 2020. The parties were required to file witness statements by 6 March 2020 and were given leave to file and serve a supplementary bundle of documents by 6 March 2020. Documents filed by the respondent at that stage, that is, very shortly before the hearing, included a witness statement from his wife, Ms Sharon Ruba, who was present at the 2015 Meeting, and handwritten notes said to have been made by Ms Ruba very shortly after the 2015 Meeting (Notes). That is, the Notes are said to be a contemporaneous record of the 2015 Meeting. The Notes are a very detailed account of what took place at that meeting.
The Notes were made in a document described as the 2015 Feng Shui Almanac (Almanac).
Ms Ruba's witness statement and the Notes record a different version of events from that set out in witness statements filed by two officers of the Board, who attended the 2015 Meeting.
On 17 March 2020, after Ms Ruba's witness statement and the Notes were filed, I made an order pursuant to s 35(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that Ms Ruba produce the entirety of the Almanac.
Although the Almanac was produced to the Tribunal, Ms Ruba initially resisted inspection of the Almanac in its entirety, on the basis that the Almanac contained protected matter, namely, personal information in relation to third parties. After some initial argument about that claim, Ms Ruba, through the respondent, indicated her consent to the Committee's inspection of a copy of the Almanac, from which all references to personal information about third parties was redacted. The question as to whether the Almanac contained protected matter, therefore, did not need to be resolved at that stage.
Given the significance of the Notes in assessing what was said at the 2015 Meeting, the Committee now wishes to investigate the authenticity of the Notes. It has now applied for orders to uplift the Almanac so that it can be analysed (Analysis Application). The orders sought by the Committee (orders sought) are in the following terms:
(1)That the applicant have leave to uplift the original Almanac, produced to the Tribunal by Ms Sharon Ruba on 24 March 2020, for the purpose of having the original pages of the Almanac reproduced at pages 194 to 198 of the respondent's supplementary book of documents, dated 14 March 2020, examined and tested by Mr Gerald M. LaPorte, forensic chemist and documents specialist of Riley, Welch, LaPorte & Associates Forensic Laboratories, 16106 Swan Mountain Drive, Broomfield, Colorado, United States.
(2)That, for the purposes of facilitating the said examination and testing, the applicant may send the Almanac to Mr LaPorte by courier, upon receiving an undertaking by Mr LaPorte that the Almanac will, upon receipt by him, be kept in safe custody and returned promptly to the applicant, also by courier, following completion of the examination and testing.
(3)That upon receipt from Mr LaPorte, the applicant must promptly return the Almanac to the Tribunal.
In support of the Analysis Application, the Committee relies on the affidavit of Mr Stephen Robert Merrick, affirmed 22 May 2020. In that affidavit, Mr Merrick deposes to inquiries he made in relation to Mr LaPorte's qualifications, and how Mr LaPorte is able to conduct analyses of documents for the purpose of ascertaining information from those documents about the timeframe in which they were created. Furthermore, Mr Merrick deposes to the manner in which it is proposed that the Almanac would be sent to Mr LaPorte, and to the measures Mr LaPorte would take to ensure the security of the documentation.
The respondent opposes the orders now sought by the Committee. I digress to observe that, throughout the proceedings thus far, the respondent has sought to suggest that he and Ms Ruba are independent of each other and that she is taking an independent position in relation to the Almanac. While that may be the case, the fact remains that their interests in these proceedings appear to be entirely aligned.
The respondent opposes the orders sought on two bases. First, the respondent claims the Almanac contains protected matter and that the Tribunal is prohibited from permitting the disclosure of protected matter to other persons. Secondly, the respondent submits that the Tribunal does not have power to make the orders sought. I note that Ms Ruba has not indicated that she consents to the Almanac being tested in the manner proposed by the Committee.
For the reasons which follow, I have concluded that while the Almanac contains some information that is, prima facie, personal information relating to third parties, that personal information is not exempt personal information for the purposes of the Freedom of Information Act 1992 (WA) (FOI Act), and is, therefore, not protected matter for the purposes of the SAT Act. I am also satisfied that the Tribunal has the power to make the orders sought. There is no express power either in the SAT Act or the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) which permits the uplift of documents produced under summons or order, or which permits testing of documents or materials for the purpose of ascertaining their authenticity. However, in my view, the power of the Tribunal in s 73 of the SAT Act to make ancillary orders provides a sufficient basis for the Tribunal to make the orders sought.
Does the Almanac contain protected matter?
Subsection 160(2) of the SAT Act requires the Tribunal to ensure that matter provided to it, which the Tribunal considers to be protected matter, is not disclosed in any way, other than to a sitting member of the Tribunal. "Protected matter" is defined in s 3 of the SAT Act to mean any information or document to which a certificate under s 159(2) of the SAT Act applies, or exempt matter or an exempt document.
The latter terms are, in turn, defined in s 3 of the SAT Act to refer to matter that is exempt under Sch 1 to the FOI Act.
Under cl 3(1) of Sch 1 to the FOI Act, matter is exempt matter if its disclosure would reveal personal information about an individual, either living or dead. Personal information is defined in the glossary to the FOI Act to mean:
[I]nformation or an opinion, whether true or not, and whether recorded in a material form or not, about an individual, whether living or dead
(a) whose identity is apparent or can reasonably be ascertained from the information or opinion; or
(b) who can be identified by reference to an identification number or other identifying particular such as a fingerprint, retina print or body sample;
Under cl 3(1) of Sch 1 to the FOI Act, personal information contained in a document is, prima facie, exempt from disclosure under the FOI Act, but that prima facie exempt status is subject to a number of exceptions. For present purposes, most relevant is cl 3(6) of Sch 1 to the FOI Act, which provides that:
Matter is not exempt under subclause (1) if its disclosure would, on balance, be in the public interest.
The application of cl 3(1) has been explored in some detail in two decisions of Justice Smith, in S v Department for Child Protection and Family Support[1] and Public Transport Authority[2]. It is not necessary to repeat in any detail her Honour's observations in relation to the operation of cl 3 of Sch 1 to the FOI Act, other than to note that I am grateful for her Honour's helpful elaboration of those principles.
[1] [2017] WASC 305.
[2] [2018] WASC 47.
Turning to the application of those principles in relation to the Almanac, I make the following observations and findings. Ms Ruba and, in turn, the respondent, claim that the Almanac contains personal information in relation to a number of third parties. (That personal information has been redacted from the copy of the Almanac provided to the Committee.) Having regard to the matter in question, as it appears in the Almanac which is in the possession of the Tribunal, I accept that that matter may be of a kind that constitutes personal information in relation to one or more individuals. The personal information entries are very brief, and, in my view, do not disclose a considerable degree of personal information in relation to any particular individual.
In some cases, there may be room for argument about whether the identity of the individual whose personal information is contained in a document can reasonably be ascertained. However, it is not necessary to resolve that question in respect of any particular matter in the Almanac because of the conclusion I have reached in respect of the public interest.
Proceeding on the basis that the matter claimed to be personal information is matter of that kind, the question then is whether disclosure of that personal information would, on balance, be in the public interest. The concept of the public interest is a broad one. The concept was discussed by Smith J in S v Department for Child Protection. It is not necessary to repeat her Honour's specific discussion of the public interest. It suffices to say that identifying where the public interest lies involves a balancing exercise. The exempt status of personal information under the FOI Act reflects the legislature's appreciation of the public interest in the maintenance of the privacy of personal information. On the other hand, cl 3(6) of Sch 1 to the FOI Act reflects the legislature's view that there may be, in any case, competing public interests. Of present relevance is the public interest in the administration of justice. That is a very strong countervailing public interest in the present context which concerns a document upon which one party seeks to rely as evidence to support a particular version of events advanced by that party.
In the present case, the administration of justice will involve a determination as to the authenticity of the Notes which will bear upon the credibility of the witnesses upon whom the respondent relies, namely, himself and Ms Ruba. In circumstances where there is a legitimate concern arising from the late emergence of the Notes (the existence of which was not previously drawn to the attention of the Committee), there is cause for suspicion on the Committee's behalf about the authenticity of those Notes. In my view, it would be an affront to the administration of justice if the Committee and the Tribunal were not ultimately able to investigate, or be informed about, the authenticity of the Notes upon which the respondent seeks to rely in support of his case.
Those considerations weigh against the public interest in the protection of the personal information in the Almanac. In my view, the public interest in the protection of the personal information in question is not such as to outweigh the competing consideration of the public interest in the administration of justice.
I have therefore concluded that the personal information in the Almanac is not exempt matter and thus is not protected matter for the purposes of the SAT Act.
Does the Tribunal have power to make the orders sought?
I turn then to the more pressing question for present purposes, which is whether the Tribunal has the power to order that the Almanac be uplifted to permit the testing proposed by the Committee. As I have already observed, there is no provision in the SAT Act or the SAT Rules which expressly permits the Tribunal to make the orders sought. Nor is there any express provision in the State Administrative Tribunal Regulations 2004 (WA) or in the LP Act to permit a party to uplift a document which has been summonsed or produced to the Tribunal, pursuant to an order under s 35 of the SAT Act, for the purposes of testing the document to obtain information concerning its creation, including the timeframe within which the document was created.
In respect of the absence of such an express power, the Tribunal stands in a position somewhat different from a number of other jurisdictions, both in this State and elsewhere. By way of example, s 167 of the Supreme Court Act 1935 (WA) permits rules to be made for various purposes, including, relevantly, for regulating and prescribing the procedure and the practice to be followed in respect of access to, inspection, copying, preservation or observing of and taking samples of or from any document or property in, or formerly in the possession, custody or power, of any person, whether or not that person is a party to the cause or matter, and for prescribing the manner in which such rules may be enforced. Order 36B r 9 of the Rules of the Supreme Court 1971 (WA) is an example of the rules which have been made by the judges of the Court in the exercise of that power. That rule permits documents or things produced under subpoena to be uplifted by a solicitor or barrister for a party in certain circumstances.
By way of further example, r 23.8 of the Uniform Civil Procedure Rules 2005 (NSW) provides that, for the purpose of enabling the proper determination of any matter in question in any proceedings, the Court may make orders for any of a number of things to be done, including the inspection of property, taking samples of property, and for any experiments on or with property. An order under that provision may permit a person to do anything for the purpose of getting access to the property. 'Property', in that rule, includes documents or chattels, whether in the ownership or possession of a party or not.
I refer to these rules simply by way of example of the kinds of express provisions in other jurisdictions, which permit orders similar to the orders sought in the present case.
In the course of its submissions, the Committee relied on two provisions of the SAT Act as conferring power on the Tribunal to make orders of the kind sought. First, the Committee says that s 64(1) of the SAT Act permits the Tribunal to make an order appointing an expert to assist it. Counsel for the Committee submitted that the Tribunal could order the appointment of an expert forensic document examiner in this case to assist it. That, of course, is not the nature of the order sought by the Committee and, assuming, without deciding, that that power would permit the Tribunal to appoint a forensic document examiner in an appropriate case, I am not persuaded that this is an appropriate case for the Tribunal to do so. The present proceeding is an adversarial one, whereby the parties are engaged in a dispute as to, amongst other things, what took place at the 2015 Meeting. In my view, this is not the kind of case where the Tribunal itself should enter the arena to appoint an expert to provide an opinion on the authenticity of a document which is disputed by another party.
Secondly, and more relevantly, the Committee relies on s 73 of the SAT Act. Counsel for the Committee was unable to direct my attention to any consideration of the scope of that power. Its construction must, therefore, proceed according to orthodox principles of statutory construction.[3] It is not necessary to recite those principles here. I start with the words of the section itself. Section 73(1) provides that:
A power of the Tribunal to make an order or give a direction (the primary power) includes the power to make the order subject to conditions and the power to make any ancillary order or direction the Tribunal considers appropriate for achieving the purpose for which it may exercise the primary power.
[3] Mohammadi v Bethune [2018] WASCA 98 [31][36].
The key words in that provision are, clearly, the words "ancillary order or direction". When used as an adjective, the word 'ancillary' means 'accessory' and 'auxiliary'.[4] The word 'auxiliary' means 'giving support, helping, aiding or assisting'.[5] 'Ancillary' also means 'subservient, subordinate or ministering (to)'.[6]
[4] Macquarie Dictionary Online (2021).
[5] Macquarie Dictionary Online (2021).
[6] Oxford English Dictionary Online (2021).
That conveys the notion that an ancillary order or direction is an order or direction subordinate to, and which serves or assists the efficacy of, a primary order. Section 73 of the SAT Act, in this respect, might be thought to be similar in effect to s 50 of the Interpretation Act 1984 (WA).[7]
[7] Section 50 of the Interpretation Act 1984 (WA) provides that: 'Where a written law confers upon a person the power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing'.
It is also necessary to consider the meaning of s 73 in its context. That contextual consideration requires regard to the following. Section 73 is located in Pt 4 of the SAT Act. Division 4 of Pt 4 of the SAT Act concerns formal aspects of the Tribunal's powers to make orders or give directions. It does not define the Tribunal's jurisdiction. The provisions of Div 4, including s 73, must, however, be considered in the context of the other powers of the Tribunal in relation to its procedures, which are also addressed in Pt 4.
Considered as a whole, the entirety of Pt 4 of the SAT Act is designed to give the Tribunal all the authority and power it requires to exercise the jurisdiction conferred on it by enabling Acts, and to do so, consistent with the objectives set out in s 9, in the most speedy, efficient and fair manner possible. In that context, the provisions in Pt 4, and, indeed, in the SAT Act as a whole, should be regarded as beneficial in nature and should not be given a narrow construction,[8] but, rather, should be given a broad construction, consistent with the meaning of the words used, and one which bears in mind that the object of those provisions is to ensure that the Tribunal has all the power it requires to properly exercise its jurisdiction.
[8] Cf AB v The State of Western Australia; AH v The State of Western Australia [2011] HCA 42; (2011) 244 CLR 390, 402 [24] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
I note, finally, by way of contextual considerations, that it is apparent that the Tribunal has a wide rule-making power in s 170 of the SAT Act. Rules could have been made by the Rules Committee, in respect of the uplift and testing of documents produced to the Tribunal, in the exercise of the 'necessary or convenient' rule-making power in s 170 of the SAT Act. That no such rules have been made, however, does not count against a construction of s 73 of the SAT Act, to the effect that the Tribunal has power to make the orders sought.
I turn then to apply the power in s 73 of the SAT Act to determine whether the orders sought can be regarded as within the scope of that section. The first question is what is the primary power, referred to in s 73 of the SAT Act, in the present context. Section 73 of the SAT Act requires attention to the primary power because it is in support of that power that ancillary orders under s 73 of the SAT Act may be made.
Relevant to this case, the Tribunal made orders supported by a number of its powers concerning the production of documents and their use in evidence in the Tribunal. These may be identified as the primary powers in this case. These include:
•Section 34(1) of the SAT Act, which provides that:
The Tribunal may give directions at any time in a proceeding and do whatever is necessary for speedy and fair conduct of the proceeding.
•Section 35(1), which provides that the Tribunal may, on the application of a party, order a person:
Who has, or is likely to have, in the person's possession or under the person's control a document or other material that is relevant to the proceeding to produce the document or material to the Tribunal or the party.
•Section 72 of the SAT Act, which provides that:
The Tribunal may inspect any document or other material produced to it, and retain it for as long as it reasonably thinks fit, and make copies of any document or of its contents.
Those powers are directed to ensuring that the Tribunal is able to obtain from parties to the proceedings, or third parties, such documents as are relevant to the determination of the issues before the Tribunal, and for the Tribunal to be able to look at those documents or materials and to retain them for as long as it thinks fit.
Further, s 32(7) of the SAT Act provides that:
The Tribunal is to ensure that all relevant material is disclosed to it, so as to enable it to determine all of the relevant facts in issue in a proceeding.
In appropriate cases, that enables the Tribunal to receive evidence as to the authenticity of a document relied upon by a party, where that authenticity is disputed, if, without evidence as to the authenticity of the document, the Tribunal will not be able to determine fairly the facts in the proceeding. (It must also be borne in mind that, although the rules of evidence do not apply in the Tribunal, they are not irrelevant. In particular, in a case in which the authenticity of a document is in dispute, the rules of evidence in relation to its admissibility may be a useful touchstone in relation to the weight which should be given to an unauthenticated document, even if it is admitted in evidence.)
Also of relevance is s 32(5) of the SAT Act which provides that:
To the extent that the practice or procedure of the Tribunal is not prescribed by or under this Act or an enabling Act, it is to be as the Tribunal determines.
In my view, the Tribunal's power to compel the production, and to control the inspection, of documents must be regarded as capable of being supported, in appropriate cases, by ancillary orders to permit the uplift of such documents and the testing of such documents for purposes including to ascertain the authenticity of such documents.
However, the Tribunal, necessarily, has a discretion as to whether ancillary orders of the kind now sought should be made in any particular case.
Relevant to that exercise of discretion in the present case are the following factors. First, the respondent has made submissions opposing the orders sought. As I have already observed, Ms Ruba and the respondent cannot be regarded as having interests that are otherwise than entirely aligned in relation to the present case. Consequently it must be understood that Ms Ruba also opposes the orders sought by the Committee.
The second matter to be taken into account is the significance of the Notes in the Almanac. As I have already observed, the Notes are said to constitute a contemporaneous record of the discussion which was held at the 2015 Meeting. There can be no doubt that at the final hearing of the Application, the evidence of Ms Ruba will be tested by the Committee, just as the evidence of the Board's witnesses, on which the Committee relies, will be tested by the respondent. But there can also be no doubt that the Notes will be of significance in ascertaining the version of events which should be preferred by the Tribunal at the hearing.
The third factor, relevant to the issue of discretion, is the direction to the Tribunal in s 9 of the SAT Act, that it should 'act as speedily and with as little formality and technicality as is practicable, and to minimise the costs to the parties'. The respondent submitted that to uplift the Almanac and to send it for testing by Mr LaPorte would involve an exercise in a technical approach to evidence. While the case is undoubtedly unusual, in the sense that this is the first application of its kind of which I am aware in the Tribunal, I reject the submission that it involves technicality of the kind referred to in s 9 of the SAT Act. The process which will be undertaken is technical, but the manner by which that process may be facilitated, through orders of the Tribunal, under s 73 of the SAT Act, is, with respect, not technical.
The fourth consideration of relevance to discretion is the time that will be taken in the testing process. While there will be some weeks involved, by the time the Almanac is sent to the United States, tested and returned to the Tribunal, that delay in the conduct of the proceedings needs to be considered in the context of the course of the proceedings as a whole. The proceedings were commenced in 2017 and have been on foot, with various delays, since that time.
As I have already mentioned, the Application was listed for final hearing in March 2020. The hearing could not proceed in light of the production, very close to the hearing date, of Ms Ruba's witness statement and the Notes, which had not been previously drawn to the attention of the Committee. In all of those circumstances, the delay which will now be caused by virtue of the testing process will not be particularly significant. In that respect, as well, I note that the Analysis Application was necessitated because Ms Ruba, the respondent's wife, refused to consent to the testing of the Almanac. Had she been willing to do so, the Analysis Application and the delay it has caused would have been unnecessary or minimised.
Two further considerations are of particular substance in the exercise of any discretion whether to make the orders sought. The first is whether the Almanac itself is liable to be damaged in the course of the testing process. Having regard to the information in Mr Merrick's affidavit, in which there is a description of the testing processes able to be conducted by Mr LaPorte, I am satisfied that any physical interference with the Almanac is, at best, likely to be microscopic in nature. There is nothing to suggest that the consequences of the analysis to be undertaken by Mr LaPorte will result in any way in damage to the Almanac or interfere with its physical integrity to any material extent.
The final consideration is the security of the Almanac. Having regard to the affidavit of Mr Merrick, and to the information he provides about the security measures which will be adopted by Mr LaPorte, I am satisfied that the risk to the security of the Almanac is minimal.
I have also had regard to the fact that if the respondent proposes to rely upon the Notes at the final hearing, an issue of unfairness to the Committee would potentially arise if questions of the authenticity of the Notes were unable to be pursued. In those circumstances, enabling the respondent to be able to rely upon the Notes, without causing unfairness to the Committee, weighs in favour of permitting the authenticity of the Notes to be tested.
I have taken all of these discretionary considerations into account. In my view, this is an appropriate case for the exercise of the Tribunal's discretion positively in favour of the examination of the Almanac.
Orders
The Tribunal orders that:
1.The applicant have leave to uplift the original 2015 'Feng Shui Almanac' produced to the Tribunal by Ms Sharin Ruba on 24 March 2020 (Almanac), on and from 5 January 2021, for the purpose of having the original pages of the Almanac reproduced at pages 194 to 198 of the respondent's supplementary book of documents dated 14 March 2020 examined and tested by Mr Gerald M LaPorte, forensic chemist and document specialist, of Riley Welch LaPorte & Associates Forensic Laboratories, 16106 Swan Mountain Drive, Broomfield, Colorado 80023, USA (Mr LaPorte).
2.For the purposes of facilitating the said examination and testing, the applicant may send the Almanac to Mr LaPorte by courier upon receipt of an undertaking by Mr LaPorte that the Almanac will, upon receipt by him, be kept in safe custody and returned promptly to the applicant, also by courier, following completion of the examination and testing.
3.Upon receipt of the Almanac from Mr LaPorte, the applicant must promptly return the Almanac to the Tribunal.
4.Prior to uplifting the Almanac, an officer of the applicant is to provide to the Tribunal an undertaking in the following terms:
"I hereby undertake to use my best endeavours to ensure the security of the Almanac during such period as it is in my custody prior to its being couriered to Mr LaPorte and upon its receipt by courier from Mr LaPorte."
5.The matter is listed for a directions hearing on Tuesday, 9 February 2021 at 9.30am to consider programming orders required for a final hearing.
6.The costs of the interim application be reserved.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
JK
Research Associate to the Honourable Justice Pritchard
5 FEBRUARY 2021
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