STATE ADMINISTRATIVE TRIBUNAL and BARRATT
[2024] WASAT 138
•6 DECEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: STATE ADMINISTRATIVE TRIBUNAL and BARRATT [2024] WASAT 138
MEMBER: PRESIDENT GLANCY
HEARD: 4 NOVEMBER 2024
DELIVERED : Ex tempore
PUBLISHED : 6 DECEMBER 2024
FILE NO/S: SAT Act 3 of 2024
BETWEEN: STATE ADMINISTRATIVE TRIBUNAL
Applicant
AND
HELEN BARRATT
Respondent
Catchwords:
State Administrative Tribunal Act 2004 (WA) s 100 - Possible contempt - Disclosure of documents contrary to orders of the Tribunal - Breach of Harman undertaking - Where disclosure involved attaching the documents to an affidavit used in a different proceeding - Steps taken to rectify the breach - Exercise of discretion - No referral to Supreme Court for contempt
Legislation:
Guardianship and Administration Act 1990 (WA), s 112
State Administrative Tribunal Act 2004 (WA), s 100
Result:
No referral to Supreme Court
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr J Winton |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Attorney General v Morrison [No 2] [2022] WASC 295
Bott v New South Wales Land and Housing Corporation [2017] NSWCATCD 88
Briginshaw v Briginshaw (1938) 60 CLR 336
Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261
Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188
DC [2021] WASAT 130
International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96
Re Ruah Legal Services Limited Trading as Mental Health Law Centre [2021] WASAT 28
REASONS FOR DECISION OF THE TRIBUNAL:
(This judgment was delivered extemporaneously and edited from the transcript to include headings and complete references and to correct grammatical errors or infelicity of expression.)
Introduction
By letter dated 13 June 2024, Ms Barratt, the respondent in this proceeding, drew to the attention of the Tribunal the facts that had come to light that indicated an inadvertent breach by her, a solicitor employed by George Papamihail Barristers and Solicitors, of the orders of the Tribunal made in May 2023 (Conduct) may have occurred.
As President of the Tribunal, I am obliged to consider, as a result of that notification, what course of action should be taken, and, in particular, whether it is 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).
Outcome
For the reasons that follow, I do not intend to refer 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. No further action will be required.
Procedure
Turning then, firstly, to the issue of the procedure that the Tribunal adopted in this matter. In order to ensure that my consideration of whether to refer the conduct to the Supreme Court would be dealt with in a transparent fashion, I listed this matter for a hearing before me in accordance with the Tribunal's usual practice in cases such as this.
Possible joinder of other parties
I have considered whether anyone else should be joined to the proceeding. I have come to the view that that was not necessary or appropriate in this case.
In this case, the represented person whose information was protected by the Tribunal's orders is now deceased. The only other person to whom the information was revealed in breach of the orders was the executor in the Supreme Court proceedings who had already had access to the Tribunal's documents because they were a party to the Tribunal's proceedings under the Guardianship and Administration Act 1990 (WA) (GA Act). Therefore, the interests of the represented person do not stand to be impacted by the outcome of this proceeding.
The record-keeping of the firm at which the respondent works was not the cause of the breach, and it is therefore not necessary for the firm to be joined as a respondent to this proceeding. The principal of the firm who was supervising the respondent, who was a junior practitioner at the time, although not providing supervision sufficiently, was unwell at the time of the Conduct. That is an explanation for the lack of supervision that may have resulted in this breach occurring.
Evidence before the Tribunal
I turn next to identify the documents to which I have had regard in dealing with this matter.
First, I have had regard to the respondent's affidavit of 6 August 2024, which is Exhibit 1 in the proceeding. Secondly, I have had regard to the written submissions of counsel for the respondent of 12 August 2024. Finally, I have considered the oral submissions made by Mr Winton at the hearing.
Legal principles
I turn next to identify the legal principles that apply in this case.
The former President of the Tribunal, Pritchard JA, outlined these principles in two decisions: Re Ruah Legal Services Limited Trading as Mental Health Law Centre,[1] and the judgment of DC.[2]
[1] Re Ruah Legal Services Limited Trading as Mental Health Law Centre [2021] WASAT 28 [6] - [10].
[2] DC [2021] WASAT 130.
In summary, those principles are that:
(i)following a report under s 100 of the SAT Act, proceedings pursued in the Supreme Court are for contempt of court;
(ii)all proceedings for contempt are criminal in nature;
(iii)the essence of a contempt is an action, or inaction, amounting to interference with or obstruction to, or having a tendency to obstruct the due administration of justice;
(iv)a deliberate breach of a court order would amount to a contempt;
(v)a deliberate breach of a Harman undertaking is a contempt.
In considering the application of s 100 of the SAT Act, the Tribunal must bear in mind the requirements for establishing a contempt in the Supreme Court.
The burden of proving a contempt rests upon the prosecutor throughout and must be established to the highest standard known to the law, namely beyond reasonable doubt. Therefore, 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.[3]
[3] Re Ruah [8] citing International Land Developments Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96 [5] (Martin CJ).
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 proceedings in the Tribunal were proceedings in the Supreme Court. Secondly, the President then has the discretion to report the acts or omissions to the Supreme Court so that the court may exercise its jurisdiction to deal with the matter as if it were a contempt of the Supreme Court. Section 100 of the SAT Act 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 the conduct capable of constituting a contempt has occurred. In DC,[4] President Pritchard also discussed the standard to be met when answering the question of whether the conduct was capable of constituting contempt, and thus whether the contempt should be referred to the Supreme Court by reference to what was said in the New South Wales Civil and Administrative Tribunal in Bott v New South Wales Land and Housing Corporation.[5]
[4] DC [2021] WASAT 130.
[5] Bott v New South Wales Land and Housing Corporation [2017] NSWCATCD 88 [63] (Bott).
Her Honour noted that the New South Wales Civil and Administrative Tribunal had stated in Bott that it might be thought sufficient to determine that, on the balance of probabilities, the respondent's conduct was capable of constituting contempt, but having regard to Briginshaw,[6] its implications would need to be considered as well.
[6] Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw).
Additionally, her Honour also observed that a second consideration was relevant. That consideration being whether the Tribunal is satisfied that an alleged contempt was of a such grave, serious and weighty nature that it would, on balance, require the Supreme Court to do something positive about it, rather than treating the conduct as a technical contempt which would be unlikely to attract a penalty.[7]
[7] DC citing Daintree Cafe Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188.
The contempt principles concerning breaches of orders and undertakings given to the Tribunal itself were also considered by Curthoys J in Attorney General v Morrison [No 2].[8] In that case, his Honour observed that where contempt proceedings concerned a breach of an order of a court, and the same considerations would arise in relation to a breach of an order of the tribunal, the following elements had to be met:
(i)the order was made by a court or the Tribunal, as the case may be;
(ii)secondly, the terms of the order needed to be clear, unambiguous and capable of compliance;
(iii)thirdly, the order must have been served on the alleged contemnor, or service must have been excused or dispensed with in the circumstances;
(iv)the alleged contemnor must have knowledge of the terms of the order; and
(v)the alleged contemnor must have been found to have breached the terms of the order.
[8] Attorney General v Morrison [No 2] [2022] WASC 295.
Curthoys J also observed that it was necessary in a contempt proceeding for proof of each element beyond reasonable doubt, and that it also be proved that the act or omission which constituted the breach of the order was deliberate and voluntary. In Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd,[9] the Victorian Court of Appeal said that a deliberate act or omission will usually be found to be willful disobedience unless the alleged contemnor is able to show, by way of exculpation, that the breach was accidental and/or unintentional.
[9] Construction Forestry Mining and Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261.
What is in issue in this case is whether the conduct occurred in deliberate breach of the Tribunal's orders, and, if so, the seriousness of doing so.
The evidence and the facts
I turn then to the evidence and the facts as I find them in relation to this matter. I accept the evidence set out in the respondent's affidavit, Exhibit 1 in the proceedings, are a true account of the facts in relation to this matter. From that evidence, I make the following findings in relation to the essential facts relating to the Conduct:
1.The respondent is a solicitor employed by George Papamihail Barristers and Solicitors. She has been employed at the firm since August 2022, when she commenced as a restricted practitioner, and Mr Papamihail was the supervising solicitor.
2.The respondent was at all times a junior solicitor of the firm. She was practising as an employed solicitor. At the time the disclosure occurred in breach of the Tribunal's orders, she was working with limited supervision and guidance as a result of the prolonged ill-health of the firm's principal and the unavailability of counsel who was engaged in this particular matter.
3.The respondent became involved in acting for the client, who had related proceedings in the Tribunal and in the Supreme Court, which had been handled by another solicitor of the firm until their resignation. When she did so, the respondent had not acted in the Tribunal proceedings and, in fact, had not acted in proceedings in the Tribunal before and had had no prior involvement with matters relating to the Guardianship and Administration Act 1990 (WA). She was unaware of the kinds of orders made by the Tribunal to restrict or protect documents in proceedings under that Act.
4.On 21 February 2024, the respondent was instructed by her principal to prepare an affidavit for her client in support of an objection to the passing of accounts in the Supreme Court by the executor of a deceased estate.
5.It was alleged by the beneficiaries of the estate for whom the firm acted that the executor had mismanaged the deceased's finances prior to her death and as the executor of her estate.
6.This same issue had been raised in proceedings before the Tribunal.
7.In the course of preparing the affidavit, the client provided the respondent with copies of documents which had been made available to the client in the course of the Tribunal proceedings. The clients did not tell the respondent that the Tribunal had made orders relating to the use to which those documents could be put. The respondent was not otherwise aware of the kinds of orders the Tribunal makes in proceedings under the GA Act.
8.The respondent endeavoured to speak with the barrister briefed in this matter about the affidavit, but the barrister, for reasons unknown, never responded. Ultimately, it became necessary for the firm to brief alternate counsel in relation to the matter.
9.In fact, the Tribunal had made orders on 5 May 2023 and 26 May 2023 (Orders) in the guardianship and administration proceedings that the documents disclosed to the parties in the course of the Guardianship and Administration Act proceedings could only be used for the purposes of those two particular proceedings concerning the represented person in the Tribunal.
10.The respondent was aware of what is known as the Harman undertaking, which is an implied undertaking that documents obtained as a result of compulsory processes of the court or Tribunal will only be used for the purposes for which they are disclosed and may not be used for other purposes without express permission.
11.The respondent believed that the Harman undertaking did not apply because the underlying dispute in the objection proceedings in the Supreme Court matter and those in the Tribunal proceedings were the same and involved essentially the same parties.
12.The respondent used some of the documents which had been disclosed in the Tribunal proceedings in the preparation of the client's affidavit and annexed them to the affidavit which was filed in the Supreme Court proceeding. The affidavit was served on the parties to those proceedings.
13.When new counsel was briefed in the Supreme Court proceedings, counsel identified the problem with the use of the documents in breach of the Tribunal's orders, and in breach of the Harman undertaking.
14.As soon as the issue was identified, the respondent took legal advice, asked to have the Supreme Court affidavit uplifted, reported her conduct to the Legal Practice Board and reported the matter to the Tribunal.
Resolution
Turning to the resolution of this issue, it is clear that a deliberate breach of the order is a contempt. It follows that it must be shown that an act or omission was not accidental or unintentional in order for it to constitute a contempt.
In this case, the material obtained in the course of the Tribunal's proceedings, and in respect of which confidentiality orders had been made by the Tribunal, was included in the affidavit intentionally and filed in the Supreme Court intentionally, and intentionally served on the other party.
The question then is, having regard to the evidence, on the balance of probabilities and bearing in mind the principles in Briginshaw to which I have referred, is the Conduct capable of constituting a contempt?
The respondent accepts that the Conduct is capable of constituting a contempt, but submits that the Supreme Court would be unlikely to find that a contempt had been committed because the breach, though intended in the sense that the practitioner included the material in the affidavit deliberately, did not occur in deliberate defiance of the Tribunal's orders.
I find that the evidence demonstrates that there was no willful, deliberate breach of the orders because I accept that the respondent was unaware of the existence of the orders, and that she was generally unaware of the usual practice of the Tribunal when material is made available to parties and their solicitors in proceedings under the Guardianship and Administration Act, and because she genuinely, but mistakenly, believed that the Harman principle did not apply to prevent her use of the documents because the underlying dispute between the parties was the same and involved the same parties.
I accept that when the respondent became aware of the issue, she applied to uplift the client's affidavit from the Supreme Court, notified the Legal Practice Board and ultimately referred herself to the Tribunal. I am satisfied that the respondent has treated the matter seriously and is remorseful. That conduct is not consistent with a deliberate or willful breach of the Tribunal's orders.
I accept that, in those circumstances, there is very little prospect that the Supreme Court would find the respondent guilty of a contempt.
Section 100 discretion
Turning then to the second issue, which is that of the exercise of discretion.
In the circumstances of this particular case, I would not exercise my discretion to refer the respondent's Conduct to the Supreme Court even if I felt that the Supreme Court might find a contempt had occurred. In all of the circumstances here, I consider that the Conduct is not such that can be described as being of such a grave, weighty or serious nature as to warrant the Supreme Court imposing a penalty.
In so saying, I do not intend to detract from the importance of compliance with orders of the Tribunal made pursuant to s 112 of the Guardianship and Administration Act. In my view, the respondent's conduct has not undermined the important policy principles underlying s 112 of that Act. The client was already aware of the information that was disclosed in the affidavit and the disclosing of it to the executor, who was a person to whom the information had already been made known in the GA Act proceedings, did not disclose the information further than had already been disclosed in the Tribunal's proceeding.
I have taken into account in the exercise of my discretion the purpose of punishment for a contempt. It is well recognised that the purposes of punishing for contempt are to enforce orders of the court, or in this case the Tribunal, and to punish acts which are contrary to the administration of justice. In this respect, the respondent's affidavit evidences that having become aware of the breach, she has taken considerable steps to remedy the situation and has restored the situation as closely as possible to that which would have existed had the Tribunal's orders been complied with.
In relation to the administration of justice and the public interest in the maintenance of the Tribunal's processes, I find that the breach of the orders did not involve an intentional interference with the administration of justice or with the integrity of the Tribunal's processes.
Further, having regard to the steps taken by the respondent since she became aware of the breach of the orders, in my view, no purpose in relation to the administration of justice would be served by the imposition of a penalty upon her.
In that respect, I take into account the following matters:
(i)once the respondent became aware that a breach had occurred, she immediately sought legal advice and gave notice to the Tribunal of the breach. That is clearly consistent with a recognition of the importance of compliance with the Tribunal's processes and orders made by it under s 112 of the Guardianship and Administration Act.
(ii)the respondent took immediate steps to remedy the breach by having the affidavit uplifted from the Supreme Court. Again, a recognition of the importance of compliance with the Tribunal's orders and her professional obligations;
(iii)the administration of justice would not be served by the imposition of a penalty in circumstances where the respondent referred the breach of the orders to the Tribunal for its attention under s 100 of the SAT Act, and also self-referred that breach to the Legal Practice Board in recognition of the obligations of legal officers to appropriately observe orders of courts and tribunals.
Additionally, I am satisfied that the respondent's actions in reporting the conduct as a possible contempt demonstrate that she understands the importance of compliance with the Tribunal's orders, and I am confident there will be no further breach.
Finally, there is no doubt in my mind whatsoever that, having regard to the respondent's conduct, she is remorseful for the breach of the orders and is clearly aware of the need to ensure that there is no repeat of such breach in the future.
Orders
The Tribunal orders:
1.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.
FS
Associate to the Hon Justice Glancy
6 DECEMBER 2024
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