STATE ADMINISTRATIVE TRIBUNAL and BARRATT - [2024] WASAT 138

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: STATE ADMINISTRATIVE TRIBUNAL and BARRATT [2024] WASAT 138
Case: [2024] WASAT 138
Decision Date: 6 DECEMBER 2024

CaseChat Overview and Summary

The case before the State Administrative Tribunal involves an application by the Tribunal for a finding of contempt against Barrat, arising from his disclosure of documents that contravened orders of the Tribunal. This case was heard by the Tribunal's President, who had to determine whether the breach of orders constituted contempt of the Tribunal and, if so, whether it should be referred to the Supreme Court for further action.

The legal issues at the heart of this case centred on the interpretation of the State Administrative Tribunal Act 2004 (WA) and its provisions regarding contempt. Specifically, the court had to examine whether Barrat's actions, which included attaching the prohibited documents to an affidavit in another proceeding, amounted to a contempt that should be escalated to the Supreme Court for further penalty. The court also needed to consider the principles governing contempt in the context of breaches of orders and undertakings given to the Tribunal.

The President of the Tribunal, in delivering the decision, held that the evidence did not establish that Barrat's actions constituted contempt of the Tribunal. The President found that the breach did not meet the threshold of being deliberate or willful, as required by the relevant legal principles. Furthermore, the President noted that the steps taken by Barrat to rectify the breach were sufficient to mitigate the seriousness of the contempt. Consequently, the President exercised their discretion not to refer the matter to the Supreme Court for contempt.

The final orders of the Tribunal were that Barrat's actions did not constitute contempt, and therefore no further action would be taken regarding this matter.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.