NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE

[2011] WASAT 88

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   VOCATIONAL REGULATION

ACT: LEGAL PROFESSION ACT 2008 (WA)

CITATION:   NEIL and LEGAL PROFESSION COMPLAINTS COMMITTEE [2011] WASAT 88

MEMBER:   JUSTICE J A CHANEY (PRESIDENT)

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   16 JUNE 2011

FILE NO/S:   VR 44 of 2010

BETWEEN:   PETER CHRISTION NEIL

Applicant

AND

LEGAL PROFESSION COMPLAINTS COMMITTEE
First Respondent

MARTIN LAWRENCE BENNETT
Second Respondent

Catchwords:

Practice and prodecure - Section 24 of the State Admnistrative Tribunal Act 2004 (WA) - Whether documents subject to legal professional privilege should be included in bundle - Whether personal information should be disclosed - Protected matter

Legislation:

Freedom of Information Act 1992 (WA), Sch 1, cl 3(6), cl 4, cl 7
Legal Profession Act 2008 (WA), s 435
State Administrative Tribunal Act 2004 (WA), s 3, s 24, s 27, s 32, s 34(5), s 34(6), s 160
State Administrative Tribunal Rules 2004 (WA), r 13

Result:

Limited disclosure ordered

Category:    A

Representation:

Counsel:

Applicant:     Self-represented

First Respondent           :     Ms P Le Miere

Second Respondent       :     Mr Jackson

Solicitors:

Applicant:     Self-represented

First Respondent           :     Legal Complaints Office

Second Respondent       :     Lavan Legal

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of Tribunal's decision

1. Mr Peter Neil sought a review of the decision of the Legal Profession Complaints Committee to dismiss certain complaints about the conduct of a solicitor, Mr Martin Bennett. In the course of those proceedings, the Complaints Committee filed a bundle of documents pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA). In Part B of that bundle were three documents in respect of which the Complaints Committee objected to disclosure to the applicant. Mr Neil sought access to those documents, and to a memorandum of a legal officer provided to the Complaints Committee prior to its decision, which had not been included in the bundle.

2. The Tribunal considered whether s 24 required disclosure of documents which were subject to legal professional privilege, or contained protected matter in the form of personal information. It concluded that documents which attracted legal professional privilege should not be disclosed to other parties, but that personal information, if relevant to the decision to be made, did not constitute protected matter and should be disclosed. If, however, personal information was irrelevant to the matters in issue, then the personal information was protected matter and should not be disclosed.

The application

1. These proceedings involve an application under s 435 of the Legal Profession Act 2008 (WA) to review a decision by the Legal Profession Complaints Committee (Complaints Committee) to dismiss certain complaints about a legal practitioner.

2. Pursuant to a direction of the Tribunal, the Complaints Committee filed and served a bundle of the documents required to be provided to the Tribunal by s 24 of the State Administrative Tribunal Act2004 (WA) (SAT Act). In accordance with the requirements of r 13 of the State Administrative Tribunal Rules 2004 (WA), the bundle was divided into Part A and Part B. Part B, which was contained in a sealed envelope not provided to the applicant, contained three documents. Two of those were letters dated 25 September 2009 and 19 November 2009 from the second respondent Mr Martin Bennett to the Complaints Committee written in response to the complaints by the applicant, Mr Peter Neil. The third document was a copy of a letter dated 17 November 2009 from the Complaints Committee to Mr Bennett. A copy of that letter, with one line redacted, was contained in Part A of the bundle and thus was provided to the applicant. The provision of the s 24 bundle in that form was based upon the Complaints Committee's view that the documents contained in Part B contained protected matter. The protected matter is said by the Complaints Committee to be personal information and or material subject to legal professional privilege.

3. Mr Neil, seeks access to the documents contained in Part B of the s 24 bundle. In addition, he seeks access to a memorandum of advice from a legal officer to the Complaints Committee that the Committee had before it at the time it reached its decision. The Complaints Committee submits that the memorandum of advice is not a document 'relevant to the Tribunal's review of the decision' and thus not required to be provided under s 24 of the SAT Act. In the alternative, the Complaints Committee submits that, if the document is relevant, it is privileged from production because it contains information which is subject to legal professional privilege.

4. The second respondent, Mr Bennett, submits that the documents referred to in Part B of the bundle should not be disclosed as they contain personal and confidential information relating to the second respondent and a client of the second respondent, and as they contain privileged information relating to instructions provided to Mr Bennett by his client, which has not been waived.  Mr Bennett further submits that the applicant has no legitimate interest in respect of the matters disclosed in the documents. 

The relevant statutory provisions

1. Section 24 of the SAT Act requires an original decision­maker to produce for the purposes of review proceedings 'documents and other material in the decision­maker's possession or under the decision­maker's control and relevant to the Tribunal's review of the decision'. The section is silent as to the effect of legal professional privilege.

2. Section 34(5) and s 34(6) of the SAT Act provide:

   (5)The Tribunal may give a direction requiring a party to produce a document or other material, or provide information, to the Tribunal or another party despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.

   (6)However if the Tribunal considers that any document is or contains protected matter, the Tribunal cannot direct a party to produce it to another party.

3. Protected matter is defined by s 3 of the SAT Act, and relevantly for present purposes means 'exempt matter or an exempt document'. 'Exempt document' means a document that contains exempt matter, and 'exempt matter' means matter that is exempt under Sch 1 of the Freedom of Information Act1992 (WA) (FOI Act).

4. Schedule 1 of the FOI Act identifies exempt matter for the purposes of that Act. It includes personal information, which is matter the disclosure of which would reveal personal information about an individual (whether living or dead). A qualification to the categorisation of personal matter as exempt matter is found in cl 3(6) of the first Schedule of the FOI Act, which provides that matter is not exempt matter 'if its disclosure would, on balance, be in the public interest'.

5. Schedule 1 also includes, as exempt matter, matter which would be privileged from production in legal proceedings on the grounds of legal professional privilege (cl 7).

6. Section 32 of the SAT Act provides that the Tribunal is bound by the rules of natural justice except to the extent that the SAT Act or an enabling Act authorises, expressly or by implication, a departure from those rules. Those rules include a requirement that a party to proceedings have an opportunity to be heard in relation to the evidence which might be relied upon by the Tribunal in reaching its decision.

7. Section 160 of the SAT Act provides:

   160.     Protected matter, Tribunal’s duties as to

   (1)The Tribunal is to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is returned to the person by whom it was provided when no longer required by the Tribunal.

   (2)The Tribunal is to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is not disclosed in any way other than to -

   (a)a sitting member of the Tribunal; or

   (b)a person to whom disclosure is allowed under subsection (3).

   (3)The Tribunal, with the consent of the President, may allow a party, or a representative of a party, to have access to information, or inspect a document, to which a certificate under section 159(2) applies on any conditions the Tribunal thinks fit except that a person cannot be given access to matter that the Tribunal considers to be exempt matter, or allowed to inspect a document that the Tribunal considers to be an exempt document.

8. The provisions of the SAT Act recognise and observe legal professional privilege. There is no qualification in cl 7 of Sch 1 of the FOI Act based on public interest as is found in relation to personal information. That is significant because the rules of procedural fairness, which require disclosure of material information to all parties in litigation, reflect the public interest. Therefore, if a party is in possession of a document which contains personal information, and that personal information is relevant to the decision to be made, the public interest in fair proceedings will weigh in fairness of disclosure. For that reason, the personal information will not be protected matter. As a general proposition, therefore, where personal information is relevant to a decision-making process, the exception in cl 3(6) of Sch 1 of the FOI Act will prevent the personal information being categorised as exempt matter. I note that a similar exception applies to commercial and business information under cl 4 of Sch 1 of the FOI Act.

9. The exception, contained in s 34(5) of the SAT Act, to the Tribunal's power to give a direction to produce a document where legal professional privilege applies to that document leads strongly to the conclusion that documents attracting legal professional privilege are not required to be disclosed under s 24 of the SAT Act. Even if they were to be included in a s 24 bundle, documents the subject of legal professional privilege cannot be made available for inspection by the parties.

Should the documents be produced?

1. In order to determine whether production of the documents in question should be directed, I have inspected the documents so as to ascertain whether they contain personal information and whether they contain information which is the subject of legal professional privilege.  In the case of the memorandum of advice to the Complaints Committee I have considered its relevance to the review.

Letter Mr Bennett to Complaints Committee dated 25 September 2009

1. In my view, it is appropriate that this letter containing Mr Bennett's response to the complaints against him should be disclosed to Mr Neil subject to some minor redactions.  The redactions are of passages which disclose the nature of instructions given to Mr Bennett, or advice provided by him, in his capacity as a lawyer.  The content of those passages disclose confidential communications between a lawyer and a client and, in my view, are subject to legal professional privilege.

2. One passage of the letter deals with the medical condition of Mr Bennett's client at a particular time, and constitutes personal information.  The details as to the medical condition are not relevant to the determination of the present review.  There is, therefore, no public interest to be served by disclosure of that information in the context of this review, and accordingly that passage should be redacted from the letter to be disclosed to Mr Neil.

Letter Complaints Committee to Mr Bennett dated 17 November 2009

1. This letter has already been substantially disclosed in Part A of the bundle save for a line which makes reference to legal advice provided by Mr Bennett to his client, based upon Mr Bennett's letter of 25 September 2009.  Having concluded that the substance of the legal advice should be redacted from the letter of 25 September 2009, it follows that the reference to the advice in the Complaints Committee's letter of 17 November 2009 is appropriately redacted.  I therefore do not consider that any further disclosure of that document is required.

Letter Mr Bennett to Complaints Committee dated 19 November 2009

1. I consider that it is appropriate that a redacted version of this letter be provided to Mr Neil.  The redactions are made on the same basis as those made to the letter of 25 September 2009.

The memorandum of advice

1. The Complaints Committee submits that a memorandum of advice and recommendations by a legal officer of the Complaints Committee is not a document which is 'relevant to the Tribunal's review', and is thus not appropriately included in a s 24 bundle of documents. The Committee notes that s 27 of the SAT Act provides that the review of the reviewable decision is to be by way of hearing de novo. Thus, the decision of the Tribunal is based upon the original complaint, a practitioner's responses, and any evidentiary material relevant to the matters in issue. It submits that a summary of the documents, and legal advice or recommendations by a legal officer to the Complaints Committee is not relevant to the Tribunal's review.

2. I accept those submissions.

3. Mr Neil submitted that I should inspect the memorandum to ascertain the nature of its contents. Given the general description of the document in the submissions, I determined that it was appropriate that I should review it as suggested by Mr Neil. Having done so, I am able to confirm that the document contains a summary of materials relevant to the determination (being materials now contained in the Complaints Committee s 24 bundle) and advice to the Complaints Committee as to the issues raised, and recommendations as to the appropriate disposition of the matters.

4. As the Complaints Committee notes, the proceedings before this Tribunal in its review jurisdiction are to be conducted as a hearing de novo. The proceedings do not involve an examination of the deliverable processes undertaken by the original decision­maker. This Tribunal determines review proceedings on the basis of the relevant materials produced to it, submissions of the party in relation to those materials, and the issues to be determined. What summary of those materials might have been given to the original decision­maker, and what advice or recommendation was made to the original decision­maker, is of no relevance to the Tribunal in its fresh hearing of the matter. It follows that the memorandum of the legal officer to the Complaints Committee is of no relevance to the Tribunal's review, and thus is not a document which is required to be included and disclosed in the s 24 bundle of documents.

5. I would add that, not only is inclusion of the bundle not required, it is undesirable. That is because it has the capacity to lead to confusion and misapprehension as to the nature of the Tribunal's task. For example, one can readily imagine a party wishing to debate the accuracy of a summary of materials, the correctness of advice, or weight to be attached to recommendations contained in a memorandum of this nature. They are matters which relate to the processes or determination of the original decision­maker. Debates of that character misapprehend the Tribunal's proper function. For that reason, and because a memorandum of this character is of no probative value, it is preferable that such documents not be included in the s 24 bundle.

6. Having concluded that the memorandum is irrelevant, it is not necessary to consider whether the document, or parts of it, contain the material which is subject to legal professional privilege.

7. The copy of the memorandum provided to the Tribunal for inspection will be returned to the Complaints Committee, and no copy of it will be retained on the Tribunal's file.

Orders

1.Copies of Mr Bennett's letters to the Complaints Committee dated 25 September 2009 and 17 November 2009, with passages disclosing material the subject of legal professional privilege or irrelevant personal information redacted by the Tribunal, are to be made available for inspection by the applicant.

2.Memorandum by a legal officer to the Legal Profession Complaints Committee containing a summary, advice and recommendations, is not required to be included in the first respondent's s 24 bundle or otherwise to be disclosed to the applicant or the second respondent.

3.The matter is listed for further directions on Tuesday, 26 July 2011 at 10.30 am.

I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUSTICE J A CHANEY, PRESIDENT