STATE ADMINISTRATIVE TRIBUNAL and RUAH LEGAL SERVICES LIMITED TRADING AS MENTAL HEALTH LAW CENTRE

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION:   STATE ADMINISTRATIVE TRIBUNAL and RUAH LEGAL SERVICES LIMITED TRADING AS MENTAL HEALTH LAW CENTRE [2023] WASAT 132
MEMBER:   PRESIDENT PRITCHARD
HEARD:   12 OCTOBER 2023
DELIVERED          :   Ex tempore
FILE NO/S:   SAT Act 1 of 2023
BETWEEN:   STATE ADMINISTRATIVE TRIBUNAL
Applicant

AND

RUAH LEGAL SERVICES LIMITED TRADING AS MENTAL HEALTH LAW CENTRE
Respondent

Catchwords:

Practice and procedure – Statutory interpretation – Referral of possible contempt to Supreme Court under s 100 State Administrative Tribunal Act 2004 (WA) – Disclosure of documents contrary to order – Where disclosure made to represented person – Where breach was unintentional and inadvertent – Exercise of discretion – Principles relevant to referral

Legislation:

Guardianship and Administration Act 1990 (WA), s 112, s 112(4)
State Administrative Tribunal Act 2004 (WA), s 100

Result:

No referral to Supreme Court

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	J Winton

Solicitors:

Applicant	:	N/A
Respondent	:	Ruah Legal Services

Cases 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] HCA 34; (1938) 60 CLR 336
CD [2020] WASAT 41
Chief Executive Officer, Department of Environment and Conservation v Szulc [2010] WASC 195
DC [2021] WASAT 130
International Land Developments Pty Limited v Diamo Nominees Pty Ltd (2007) 34 WAR 201
Re Ruah Legal Services Limited trading as the Mental Health Law Centre [2021] WASAT 28

REASONS FOR DECISION OF THE TRIBUNAL:

(These reasons were delivered contemporaneously and have been edited from the transcript to correct grammatical errors or infelicity of expression).

Introduction

These proceedings have been commenced following the receipt by the Tribunal of a letter dated 2 August 2023 from counsel acting for the respondent who drew to the attention of the Tribunal that facts had come to light that indicated an inadvertent breach by the respondent of orders made by the Tribunal on 1 April 2022 (conduct).
The proceedings have been brought pursuant to s 100 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which permits the President to consider whether an act or omission should be referred to the Supreme Court to be dealt with as a contempt. The requirements of that section are that the President be satisfied that the act or omission of the person would constitute a contempt of the Supreme Court if the proceeding of the Tribunal were a proceeding of the Supreme Court.
I have considered whether any other party should be joined to these proceedings, and I have taken the view that it is not necessary or appropriate for me to do so. The proceedings involve documents pertaining to a person (represented person) the subject of orders under the Guardianship and Administration Act 1990 (WA) (GA Act). For the reasons which follow, the issues arising in this proceeding do not stand to impact, adversely or otherwise, on the interests of the represented person. I have concluded that it is not appropriate or necessary to join the represented person to these proceedings.
I have also considered whether it is necessary or appropriate to join any individual to these proceedings as a party possibly liable for a contempt in their own right. The conduct in this case arose as a combination of systemic failures and inadvertent conduct by individuals. In those circumstances, I do not think it is necessary or appropriate to join any individual as a party to the proceedings other than the respondent itself.
For the reasons which follow, I am not satisfied this is a case where I should refer the conduct to the Supreme Court pursuant to s 100 of the SAT Act, and in all of those circumstances, no further action will be required.
Before turning to those circumstances, it is appropriate to refer to the evidence. The respondent provided to the Tribunal the affidavit of Heidi Ann Florence Rees (Ms Rees) of 29 August 2023 and the affidavit of Kirsten Gammer (Ms Gammer) of 29 August 2023. Each of those affidavits set out, in considerable detail, the circumstances in which the conduct arose. It is not necessary for me to set out that conduct in detail.
In short, on 1 April 2022 the Tribunal made an order pursuant to s 112(4) of the GA Act which permitted the Mental Health Law Centre, as the legal representative of the represented person, to be authorised to have copies of documents referred to in the order which concerned the represented person.
Access to those documents was granted on conditions, namely:
(a)without the prior written approval of the Tribunal, the documents and material to which access was granted could be used only for the purposes of the proceedings in the Tribunal concerning the represented person;
(b)that the legal representative, that is the Mental Health Law Centre, could disclose the contents of the documents or material 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; and
(c)the copies provided to the legal representative were required to be deleted within 28 days after the conclusion of the proceedings.
The documents were provided by the Tribunal to the respondent on 4 April 2022. They were saved in the respondent's case management system by a volunteer worker. Unfortunately, that worker mislabelled the files so that the orders of the Tribunal appeared to be the matter book provided by the Tribunal, and vice versa, and they were therefore saved in an incorrect folder. As a consequence, the systems for determining how the documents should be handled, failed.
On 28 April 2022, as a result of those errors, Ms Rees concluded that the matter book in the matter had not been provided and downloaded a second copy, which was saved in the correct folder of the case management system maintained by the respondent.
On 12 June 2022, after the completion of the matter, Ms Rees had set a task on the case management system for a volunteer to print and send a closed file letter to the represented person, which had been settled by a legal officer, enclosing the orders made by the Tribunal and reflecting the conclusion of the matter. At that time, the respondent's practice was not to have its solicitors review the documents printed by volunteer workers before they were enclosed with correspondence. As a result of the mislabelling of the files, the volunteer worker printed and enclosed a copy of the matter book with the closed file letter, rather than the orders of the Tribunal concluding the matter, and that was sent to the client by post and by email on 13 June 2022.
As the respondent's counsel has conceded in his submissions, that constituted what is said to be the first breach of the orders made by the Tribunal.
On 27 June 2022, Ms Rees closed the file for the particular matter concerning the represented person and deleted the second copy of the matter book. Ms Rees was unaware that because the first copy had been mislabelled, that copy continued to exist in the system in an incorrect folder.
On 24 July 2023, the respondent became aware, as a result of a telephone call from the represented person, that a copy of the matter book had actually been sent to the represented person and that the first copy of the matter book had not been deleted from the system. At that stage, the respondent took immediate steps to advise its legal and corporate advisors of the potential breach and to alert the Tribunal.
On 31 July 2023, after obtaining legal advice, Ms Gammer deleted the first copy of the matter book from the case management system. As counsel for the respondent acknowledged in his submissions, the failure to delete the first copy of the matter book until 31 July 2023 constituted another breach of the orders in that it constituted a breach of the order which required the deletion of the documents provided by the Tribunal within 28 days after the conclusion of the proceeding.
I turn next to the principles in relation to s 100 of the SAT Act. I outlined these principles in an earlier decision which pertains to the same respondent. That decision is Re Ruah Legal Services Limited Trading as the Mental Health Law Centre[1] and the principles were outlined at paras [6] – [10] of that decision. It is not necessary for me to repeat them here, but I expressly adopt and incorporate them.
[1] Re Ruah Legal Services Limited trading as the Mental Health Law Centre [2021] WASAT 28 at [6] – [10] (Ruah 2021).
I also referred to those principles again in a subsequent decision, DC [2021] WASAT 130 (DC). In DC, I discussed the standard to be met when answering the question of whether conduct was capable of constituting a contempt, and thus whether the contempt should be referred to the Supreme Court, by reference to what was said by the New South Wales Civil and Administrative Tribunal in Bott v New South Wales Land and Housing Corporation.[2] I observed that the New South Wales Civil and Administrative Tribunal stated that it 'might be thought sufficient to determine that, on the balance of probabilities, the respondent's conduct was capable of constituting contempt',[3] but having regard to Briginshaw,[4] its implications would need to be considered as well.[5]
[2] Bott v New South Wales Land and Housing Corporation [2017] NSWCATCD 88 (Bott).
[3] DC [2021] WASAT 130 (DC) at [14] citing Bott at [63].
[4] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
[5] DC at [14].
Furthermore, I observed that a second consideration was relevant, which is whether the Tribunal was satisfied that an alleged contempt was of such grave, serious and weighty nature that 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.[6]
[6] DC at [15] – [16].
The contempt principles in relation to breaches of orders and undertakings given to the Tribunal itself were considered further by Curthoys J in Attorney General v Morrison [No 2].[7] 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:[8]
(a)the order was made by the court or the Tribunal, as the case may be;
(b)the terms of the order were clear, unambiguous and capable of compliance;
(c)the order was served on the alleged contemnor or service was excused in the circumstances, or dispensed with;
(d)the alleged contemnor had knowledge of the terms of the order; and
(e)the alleged contemnor had breached the terms of the order.
[7] Attorney General v Morrison [No 2] [2022] WASC 295 (Morrison).
[8] Morrison at [19].
His Honour observed that it was necessary in a contempt proceeding for proof of each element beyond reasonable doubt. It must also be proved that the act or omission which constituted the breach of the order was deliberate and voluntary.[9]
[9] Morrison at [19].
In this case, there is no issue other than as to whether the breach of the order was deliberate and voluntary. It is clear that a deliberate breach of the court's order is a contempt.[10] It follows that it must be shown that an act or an omission was not accidental or unintentional in order for it to constitute a contempt.[11]
[10] See Chief Executive Officer,Department of Environment and Conservation v Szulc [2010] WASC 195 at [3].
[11] International Land Developments Pty Limited v Diamo Nominees Pty Ltd (2007) 34 WAR 201 at [68] – [70].
The question then is, having regard to the evidence, on the balance of probabilities, and bearing in mind Briginshaw, to which I have referred, is the conduct capable of constituting a contempt?
I am not satisfied that it was. This is clearly a situation in which there has been an accidental or unintentional breach of the orders of the Tribunal.
In this respect I accept the submissions of counsel for the respondent that the evidence demonstrates that there was no deliberate or wilful breach of the orders but rather that the breaches occurred because of a series of human errors and systems failures. The breaches were unintentional and were not, in fact, known by the respondent until over a year after they occurred. The respondent clearly had intended to comply – and believed that it had complied – by complying with systems which had been put in place to deal with the management of documents provided by the Tribunal which were subject to orders of the kind made in this case. Furthermore, once the respondent learned of the breach of the orders, it took immediate steps to remedy the breaches and to alert the Tribunal, conduct which would be otherwise inconsistent with a deliberate and wilful breach of the orders.
Consequently, I am satisfied that this is not a case involving conduct which would be capable of constituting a contempt, and there is no basis for referral to the Supreme Court.
For completeness, it is appropriate for me to address why, even had I formed a different view about whether this conduct could constitute a contempt, I would not have exercised my discretion to refer it to the Supreme Court in any event. The conduct that has occurred in all of the circumstances here is not, in my view, such that it can be described as being of such grave, weighty or serious nature as to warrant the Supreme Court imposing a penalty.
In that respect, however, I should say that I do not overlook or mean to undermine or to detract from the importance of compliance with orders of the Tribunal made pursuant to s 112 of the GA Act. The principles underlying s 112 of the GA Act were considered in some detail in my decision in CD [2020] WASAT 41 at [32] – [45].
In this case, having regard to the important policy principles underlying that section, the conduct has not undermined those principles. In that respect, I note that the disclosure of the documents in question was to the represented person, who was otherwise involved in the GA Act proceedings and was entitled to have been informed about the content of the documents pursuant to the terms of the order. It appears also that the represented person does not continue to have any copy of the documents in question which were provided as a result of the breach.
In addition, the failure to delete the documents in accordance with the orders was unintentional and inadvertent, and the systemic policies of the respondent would otherwise have involved the deletion of the documents had system failures not occurred in relation to the labelling of the documents earlier in the process.
I also have taken into account, in the exercise of my discretion, the purposes of punishment for a contempt. It is well recognised that the purposes of punishing for contempt are to enforce orders of a court (or in this case, a Tribunal) and to punish acts which are contrary to the administration of justice. In this respect the respondent's affidavit evidence demonstrates that it has taken considerable steps after it became aware of the breaches to remedy the situation which gave rise to those breaches and has restored the situation to as close as possible as it would have been had the orders been complied with.
In relation to the administration of justice and the public interest in the maintenance of the Tribunal's processes, I accept the submissions of the respondent's counsel that the breach of the orders did not involve any intentional interference with the administration of justice or with the integrity of the Tribunal's processes, that the respondent was at all times acting in good faith and in the belief that it was complying with the orders of the Tribunal, and that no harm appears to have been caused by the breach of the orders given that disclosure occurred only to a person who was entitled to be made aware of the content of the documents, that is, the represented person.
Moreover, having regard to the steps taken by the respondent since it became aware of the breach of the orders, clearly no purpose in relation to the administration of justice would be served by the imposition of a penalty on the respondent.
In that respect, I take into account the following matters. First of all, the respondent, once it became aware that a breach had occurred, 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 its orders under s 112 of the GA Act.
Secondly, the respondent took immediate steps to remedy the breach by seeking to address the issues that had arisen in relation to the identification and labelling of documents, the processing of documents, storage of documents in its system, and in this case, the deletion of the copies of the documents which had been inappropriately retained on its system.
Thirdly, the administration of justice also 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 attention under s 100 of the SAT Act. The respondent also self-referred the breach of the orders to the Legal Services and Complaints Committee in recognition of the obligations of legal officers to appropriately observe orders of courts and tribunals, and there is no doubt whatsoever, having regard to the conduct of the staff and officers of the respondent, that the respondent is remorseful for the breach of the orders and is clearly aware of the need to ensure that there is no repeat of this situation in the future.
Finally, I have taken into account the fact that, as counsel acknowledged, this is the second situation involving a breach of orders of the Tribunal within a couple of years. The first breach of orders was dealt with in the earlier decision in Ruah 2021 to which I have already referred. I accept the submission of counsel that the breach in this case appears to have arisen in a very different fashion from the earlier breach. I have also considered, but reject, the possibility that the breach in this case has arisen from some failure which continued after the earlier breach. No such situation appears to have occurred. Moreover, there is no suggestion whatsoever in the facts that there is any systemic failure ongoing by the respondent to ensure that it complies with orders of the Tribunal.
I finally observe that the respondent's actions in reporting the conduct as a possible contempt demonstrates that it amply recognises the importance of compliance with orders of the Tribunal, and there is no failure, on its part, to appreciate the serious need for compliance going forward.
In all of those circumstances, even had I formed the view that there was a possible contempt, I would not have exercised my discretion to refer the matter to the Supreme Court.

Orders

The Tribunal orders that:
1.No referral to the Supreme Court pursuant to s 100 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.
PM
Associate to the Honourable Justice Pritchard
22 DECEMBER 2023

[2023] WASAT 132

12 October 2023