Re Ruah Legal Services Limited Trading As Mental Health Law Centre
[2021] WASAT 28
•18 MARCH 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: RE RUAH LEGAL SERVICES LIMITED TRADING AS MENTAL HEALTH LAW CENTRE [2021] WASAT 28
MEMBER: PRESIDENT PRITCHARD
HEARD: 10 FEBRUARY 2021
DELIVERED : Ex tempore
PUBLISHED : 18 MARCH 2021
FILE NO/S: SAT Act 1 of 2020
RE: RUAH LEGAL SERVICES LIMITED TRADING AS MENTAL HEALTH LAW CENTRE
First Party
LAUREN GANDINI
Second Party
Catchwords:
Statutory interpretation - State Administrative Tribunal Act 2004 (WA), s 100 - Possible contempt - Disclosure of documents contrary to order - Where disclosure made to represented person - Where breach was inadvertent - Exercise of discretion
Legislation:
Guardianship and Administration Act 1990 (WA), s 112
State Administrative Tribunal Act 2004 (WA), s 100
Result:
No referral to Supreme Court
Category: A
Representation:
Counsel:
| First Party | : | Mr MD Howard SC |
| Second Party | : | Mr MD Howard SC |
Solicitors:
| First Party | : | N/A |
| Second Party | : | N/A |
Case(s) referred to in decision(s):
CD [2020] WASAT 41
Hinch v Attorney-General of Victoria [1987] HCA 56; (1987) 164 CLR 15
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201
Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 9 December 2020 counsel acting for Ms Lauren Gandini and Ruah Legal Services Limited trading as Mental Health Law Centre (MHLC) drew to the attention of the Tribunal that facts had come to light that indicated that an inadvertent breach by Ms Gandini, a solicitor employed by the MHLC, of orders made by the Tribunal on 26 October 2020 (Conduct) may have occurred.
Those matters were drawn to the attention of the Tribunal so that as President of the Tribunal, I might consider what course of action should be taken and, in particular, whether it was necessary or appropriate to refer the Conduct to the Supreme Court, pursuant to s 100 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
For the reasons which follow, I do not intend to report the Conduct to the Supreme Court, pursuant to s 100 of the SAT Act, for contempt proceedings to be taken. I am not satisfied that the evidence before the Tribunal demonstrates that conduct capable of constituting a contempt has or may have occurred. In any event, in the exercise of my discretion, I do not consider this a case which warrants a report to the Court.
Procedure
In order that my consideration of whether to report the Conduct could be dealt with in an open and transparent way, I listed the matter for a hearing before me. I have received affidavits and heard counsel's submissions in relation to what occurred.
In relation to the Conduct, Ms Gandini and the MHLC were acting on behalf of a represented person (Represented Person) in guardianship and administration proceedings under the Guardianship and Administration Act1990 (WA) (GA Act). For the purposes of dealing with the question concerning a possible report under s 100 of the SAT Act, I have not considered it necessary or appropriate to join the Represented Person in these proceedings. The issues do not stand to impact in any way, adversely or otherwise, on her interests and in all of the circumstances I concluded that this was a matter for my consideration of the Conduct of Ms Gandini and the MHLC, which did not require the assistance or contribution of the Represented Person.
Principles in relation to a report to the Supreme Court for contempt proceedings, pursuant to s 100 of the SAT Act
Section 100 of the SAT Act provides:
(1)If the President is satisfied that an act or omission of a person would constitute a contempt of the Court if a proceeding of the Tribunal were a proceeding in the Supreme Court, the President may report that act or omission to the Supreme Court and the Court has jurisdiction to deal with the matter as if it were a contempt of the Court.
(2)If subsection (1) applies to an act or omission by a person and that act or omission is also an offence under this Act, the person is not liable to be punished twice.
Following a report under s 100, proceedings pursued in the Supreme Court are for a contempt of Court. All proceedings for contempt are criminal in nature.[1] In considering the application of s 100 of the SAT Act, I have borne in mind the requirements for establishing a contempt in the Supreme Court.
[1] See Hinch v Attorney-General of Victoria [1987] HCA 56; (1987) 164 CLR 15.
The burden of proving a contempt rests upon the prosecutor throughout and must be satisfied to the highest standard known to the law; namely, beyond reasonable doubt. The prosecutor would need to establish, beyond reasonable doubt, that conduct constituting a contempt had occurred. The burden on the prosecutor extends to proving that the acts said to constitute the contempt were not casual, accidental or unintentional.[2]
[2] See International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96; (2007) 34 WAR 201 at [5] (Martin CJ) referring to Witham v Holloway [1995] HCA 3; (1995) 183 CLR 525.
Section 100 of the SAT Act contains two elements. First, the President must be satisfied that an act or omission of a person would constitute a contempt of the Supreme Court if the proceeding in the Tribunal were a proceeding in the Supreme Court. Secondly, the President then clearly has a discretion to report that act or omission to the Supreme Court so that the Court then may exercise its jurisdiction to deal with the matter as if it were a contempt of the Supreme Court.
So far as the President must be satisfied that an act or omission of a person would constitute a contempt of the Court, it seems to me that that cannot require the President to be satisfied and to make a finding that, in fact, the act or omission would constitute a contempt. Rather, the President needs to be satisfied that there is evidence which demonstrates that conduct capable of constituting a contempt has occurred. It is not necessary for present purposes to consider whether the President needs to be satisfied that there exists a prima facie case of a contempt, or alternatively whether there would be reasonable prospects of success in any prosecution for a contempt. To my mind, it is sufficient for the purposes of this case simply to determine whether the evidence demonstrates that conduct capable of constituting a contempt has occurred.
The evidence as to the Conduct
The evidence before the Tribunal in relation to the Conduct was set out in three affidavits:
•an undated affidavit of Fiona Margaret Lester;
•a further affidavit of Fiona Margaret Lester, sworn on 22 January 2021; and
•an affidavit of Ms Lauren Suzanne Gandini, sworn on 7 December 2020.
Those affidavits disclose the following matters. First, Ms Gandini is a legal practitioner, admitted in November 2015, who has been employed at the MHLC since mid-October 2019. Prior to working at the MHLC she had no experience in guardianship and administration matters. Once employed at the MHLC she was trained in the guardianship jurisdiction, in the course of being supervised by Ms Lester, who is the principal lawyer at the MHLC.
On 27 August 2020, in the course of working at the MHLC, Ms Gandini was assigned a case to act on behalf of the Represented Person in a periodic review by the Tribunal of an administration order which had been made in relation to her. The hearing of that review was to occur on 28 October 2020 (the s 84 Review). In the course of preparing for the s 84 Review, and having had contact with the Represented Person for that purpose, Ms Gandini arranged for an application to be made to the Tribunal to obtain access to documents held by the Tribunal concerning the original application for an administration order which had been made in relation to the Represented Person the previous year (Administration Application).
An access application was made to the Tribunal on or about 26 October 2020, and on the same day the MHLC received from the Tribunal, by email, an electronic copy of the documents to which access was sought in that application (Documents).
The Documents were provided pursuant to an order made by Member Quinlan on 26 October 2020 (Order). The Order stated that the application made on behalf of the Represented Person to access documents be granted, and that the MHLC, as the legal representative of the Represented Person, was authorised to have copies of the documents referred to in the Order. (The Documents provided were those held by the Tribunal in relation to the Administration Application.) Access to the Documents was granted on a condition, namely that the Documents were to be used only for the purposes of the s 84 Review. For the purpose of that condition, the legal representatives of the Represented Person were permitted to disclose the contents of the Documents to the Represented Person, but no copies were to be made and no part of any document or material was to be disclosed to any other person. Finally, the Documents provided to the legal representatives were to be destroyed within 28 days after the s 84 review had concluded.
On about 28 October 2020, paper copies of the Documents were made by a staff member of the MHLC, acting on the instructions of Ms Gandini. Those paper copies were posted to the Represented Person at her home address.
All of this occurred while Ms Gandini was acting in Ms Lester's position while she was on leave. Following Ms Lester's return from leave, Ms Gandini informed her of what had occurred in relation to this particular matter, and in the course of that discussion Ms Gandini advised Ms Lester that she had posted a paper copy of the Documents to the Represented Person. As a result of receiving that information, Ms Lester took action to seek the advice of Senior Counsel in relation to the copying and disclosure of the Documents to the Represented Person. That ultimately resulted in Senior Counsel bringing the Conduct to the attention of the Tribunal.
Ms Lester met with the Represented Person shortly thereafter and requested and received the Documents that had been sent by mail to the Represented Person. Enquiries by Ms Lester confirmed that all of the Documents sent to the represented person were returned.
Ms Gandini deposed that at the time of posting the Documents to the Represented Person she was aware of the Order but had interpreted the Order to mean that no copies of the Documents were to be provided to any person, other than the Represented Person.
While Ms Gandini now accepts that the Order does not read that way, at the time of the disclosure of the Documents she was clearly operating under a misapprehension as to the effect of the Orders. That misapprehension only became apparent to her when she discussed the matter with Ms Lester. In the course of that discussion, Ms Lester advised Ms Gandini that having regard to the terms of the Order, the Documents should not have been provided to the Represented Person.
Has conduct capable of constituting a contempt occurred?
I am not satisfied that the evidence before the Tribunal demonstrates that conduct capable of constituting a contempt has occurred. That is because the evidence indicates that while Ms Gandini was aware of the Order, she had misunderstood the effect of that Order. The disclosure of the Documents arose from that misapprehension as to the effect of the Order.
This is certainly not a case where there is any suggestion that there was a deliberate or conscious disclosure of the Documents, contrary to the terms of the Order as correctly understood. Rather, this was a case of a breach of the Order which was unintentional or accidental in that sense. That being so, there is no basis on which to report the Conduct to the Court.
However, it is appropriate for me to explain why I would not have been minded to exercise my discretion to report the Conduct to the Court in any event.
In considering the exercise of discretion, I bear in mind the importance of compliance with orders made by the Tribunal under s 112 of the GA Act. The Order was an order of that kind. I discussed the requirements of s 112 of the GA Act in CD.[3]
[3] CD [2020] WASAT 41 (CD).
In CD[4] I noted the strict requirements of confidentiality imposed by the GA Act in respect of documents and personal information held by the Tribunal in connection with the GA Act. That confidentiality is protected by criminal sanctions under the GA Act and by strictly limited access provisions in s 112 of the GA Act.
[4] CD at [34].
The provisions of the GA Act concerning the confidentiality of such information reinforce two important policies. The first is the protection of the privacy of the persons involved in GA Act proceedings in the Tribunal, especially a represented person or proposed represented person. The second is the public interest in the integrity of the Tribunal's processes, which relies on the ability of the Tribunal to obtain sensitive information from a variety of sources. As I noted in CD, while a represented person has a conditional entitlement to access any documents or material held by the Tribunal in respect to any application made in relation to them, on the basis that they have a right to know the contents of such documents or material, their entitlement to inspection under s 112(1) of the GA Act applies only for purposes related to proceedings before the Tribunal, and the entitlement is, in any event, conditional on the Tribunal making a contrary order.
Outside GA Act proceedings, the Tribunal is ordinarily very cautious about permitting access to documents held in connection with GA Act matters. The Tribunal requires cogent reasons before it will permit the disclosure of such documents for purposes other than in relation to GA Act proceedings. The Order made by the Tribunal in this case reflected the terms of orders commonly made to permit access to documents under s 112(1) of the GA Act. The prohibition on making copies of documents to which access is provided is clearly intended to ensure that such documents are not disclosed to others, while also recognising the need for the represented person to be aware of the contents of documents relating to a particular proceeding in the Tribunal which concerns them.
In the event of non-compliance with orders of the Tribunal made under s 112 of the GA Act, the two important policies to which I have referred - the protection of the privacy of the individual involved and the public interest in the integrity of the Tribunal's processes - would be at risk of being undermined.
These considerations would ordinarily weigh heavily in the exercise of discretion as to whether there should be a referral of any possible contempt to the Supreme Court arising from the disclosure of documents contrary to an order of the Tribunal made under s 112 of the GA Act.
However, the Conduct and the circumstances in which it occurred do not support the exercise of my discretion to make a report to the Court. My reasons for that conclusion are as follows.
First, the disclosure of the Documents contrary to the terms of the Order appears to have been completely inadvertent and arose from Ms Gandini's misapprehension as to the meaning of the terms of the Order. There is nothing whatsoever to suggest that Ms Gandini acted in any way other than in good faith.
Secondly, the Documents were provided only to the Represented Person who was, in any event, entitled, by the terms of the Order, to be told of the content of the Documents.
Thirdly, the copies of the Documents provided to the Represented Person have all been retrieved and there is no suggestion of any further onward disclosure of those Documents.
Fourthly, the Represented Person's interests have not been affected or impacted by the Conduct.
Fifthly, upon realising that there had been a breach of the Order, Ms Gandini and the MHLC took appropriate steps to obtain the advice of Senior Counsel and to bring the Conduct to the attention of the Tribunal.
Sixthly, I have been informed that Ms Gandini has referred the Conduct to the Legal Profession Complaints Committee. She has, through her affidavit, expressed her remorse for the Conduct and has taken steps to ensure that she has received some further training in relation to her obligations as a practitioner in GA Act proceedings.
In all of those circumstances, I accept the submission of counsel for Ms Gandini and the MHLC, that had I been satisfied that the Conduct would constitute a contempt, a report to the Supreme Court would be a step which was disproportionate to the breach of the Order. In those circumstances I will simply order that no referral of the Conduct to the Supreme Court will be made.
I will end these reasons with some observations directed to Ms Gandini and to Ms Lester, the principal solicitor at the MHLC. The mark of a good legal practitioner is illustrated by two qualities. First, everyone makes mistakes but a good legal practitioner who realises he or she has made a mistake will take action to remedy it, without delay, and without seeking in any way to hide or cover up what has occurred. Secondly, a good legal practitioner will learn from his or her mistakes. No doubt these proceedings have been very stressful, but Ms Gandini should put this matter behind her. After being alerted to her breach of the Order, she has acted, as far as I can see, entirely appropriately. I hope she will learn from the mistake and go on to be a better legal practitioner in the future.
The same observations apply to Ms Lester, in the sense that she has, as far as I can see, acted entirely appropriately to bring the Conduct to the attention of the Tribunal, and has no doubt provided Ms Gandini with an excellent example of how to deal with mistakes which occur in the course of legal practice.
Orders
1.The name of the first party is amended to Ruah Legal Services Limited trading as Mental Health Law Centre.
2.No referral to the Supreme Court pursuant to s 100(1) of the State Administrative Tribunal Act 2004 (WA) will be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
GD
Associate to the Honourable Justice Pritchard
18 MARCH 2021
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