STATE ADMINISTRATIVE TRIBUNAL and TEMPLAR LEGAL
[2024] WASAT 75
•27 JUNE 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION: STATE ADMINISTRATIVE TRIBUNAL and TEMPLAR LEGAL [2024] WASAT 75
MEMBER: PRESIDENT GLANCY
HEARD: 27 JUNE 2024
DELIVERED : Ex tempore
FILE NO/S: SAT Act 1 of 2024
BETWEEN: STATE ADMINISTRATIVE TRIBUNAL
Applicant
AND
TEMPLAR LEGAL
First Respondent
DAVID JAMES KIRCHNER
Second Respondent
Catchwords:
Practice and procedure - Referral of possible contempt to Supreme Court under s 100 State Administrative Tribunal Act 2004 (WA) - Disclosure of documents contrary to order - Where breach was unintentional and inadvertent - Exercise of discretion - Principles relevant to referral
Legislation:
State Administrative Tribunal Act 2004 (WA), s 100
Result:
No referral to Supreme Court
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | E Greaves |
| Second Respondent | : | E Greaves |
Solicitors:
| Applicant | : | N/A |
| First Respondent | : | Templar Legal Pty Ltd |
| Second Respondent | : | Templar Legal Pty Ltd |
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] HCA 34; (1938) 60 CLR 336
CD [2020] WASAT 41
CFMU v Grocon [2014] VSCA 261; (2014) 47 VR 527
DC [2021] WASAT 130
Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15
International Land Development Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96
Re Ruah Legal Services Limited Trading as the 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
This proceeding was commenced following the receipt by the Tribunal of a letter dated 12 April 2024 from David Kirchner (Second Respondent) who informed the Tribunal that he had breached orders made by the Tribunal on 16 February 2024 (Conduct). The Second Respondent is the principal of and sole legal practitioner of Templar Legal Pty Ltd (First Respondent).
This proceeding has been brought pursuant to s 100 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). That section permits the President to consider whether an act or omission of a person should be referred to the Supreme Court to be dealt with as a contempt. In order to make such a referral, s 100 requires 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.
Joinder of any other party
I have considered whether any other person should be joined as a party to the proceeding. I have come to the view that it is not necessary or appropriate for that to occur. The proceeding here concerns the release to the Second Respondent's client, in breach of the Tribunal's confidentiality orders, of a report from the Public Trustee (PT Report) relating to her mother (Proposed Represented Person), in respect of whom guardianship and administration orders had been sought under the Guardian and Administration Act 1990 (WA) (GA Act). In this case the PT Report generally contained information which was known to the client because it had, for the most part, already been communicated to the client by the Public Trustee in a letter which was not a document to which the confidentiality orders related. In addition, the PT Report contained a significant amount of information about the client herself. I am satisfied that the issue arising in the proceeding does not stand to impact adversely or otherwise the interests of the Proposed Represented Person.
Outcome
For the reasons which follow, I am not satisfied that this is a case where I should refer the conduct of either respondent to the Supreme Court pursuant to s 100 of the SAT Act and in all the circumstances, no further action will be required.
Legal principles
I turn first to the principles in relation to s 100 of the SAT Act. The former President of the Tribunal, Justice Pritchard, outlined these principles in two decisions. The first being Re Ruah Legal Services Limited Trading as the Mental Health Law Centre [2021] WASAT 28 at [6] - [10] and the second being DC [2021] WASAT 130 (DC).
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]
[1] Hinch & Macquarie Broadcasting Holdings Ltd v Attorney-General (Vic) [1987] HCA 56; (1987) 164 CLR 15.
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 satisfied 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.[2]
[2] International Land Development Pty Ltd v Diamo Nominees Pty Ltd [2007] WASC 96.
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.
Section 100 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.
In DC, President Pritchard also 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.[3] 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',[4] but having regard to Briginshaw,[5] its implications would need to be considered as well.
[3] DC at [14] citing Bott v New South Wales Land and Housing Corporation [2017] NSWCATCD 88 (Bott) at [63].
[4] Bott at [63].
[5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 (Briginshaw).
Her Honour also observed that a second consideration was relevant. That consideration is whether the Tribunal is satisfied that an alleged contempt was of 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.
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].[6] 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:
•first, the order was made by the court or the Tribunal, as the case may be;
•secondly, the terms of the order needed to be clear, unambiguous and capable of compliance;
•thirdly, the order must have been served on the alleged contemnor or service must have been excused or dispensed with in the circumstances;
•fourthly, the alleged contemnor must have had knowledge of the terms of the order; and
•finally, the alleged contemnor must have been found to have breached the terms of the order.
[6] Attorney General v Morrison [No 2] [2022] WASC 295 (Morrison).
His Honour observed that it was necessary in a contempt proceeding for proof of each element beyond reasonable doubt,[7] and that it also be proved that the act or omission which constituted the breach of the order was deliberate and voluntary.
[7] Morrison [15].
In CFMEU v Grocon,[8] the Victorian Court of Appeal said that a deliberate act or omission will usually be found to be wilful disobedience unless the alleged contemnor is able to show, by way of exculpation, that the breach was accidental, and/or unintentional. It was submitted that the onus of doing so was upon the alleged contemnor and was to the civil standard.
[8] CFMU v Grocon [2014] VSCA 261; (2014) 47 VR 527.
The Respondents submit that this might ultimately be the law in Western Australia.
I do not see that that question needs to be determined in this case because the Respondents accept that the breach was intentional, in the sense that the Second Respondent deliberately wrote an email and sent the PT Report to his client as an attachment.
What is in issue is whether the conduct occurred in deliberate breach of the Tribunal's orders and, if so, the seriousness of doing so.
The evidence and facts
Mr Kirchner's affidavit was made on 21 May 2024. It is the only evidence in the proceeding. It was Exhibit 1 in the proceeding.
I accept the contents of the affidavit and on the basis of its contents and the orders of 16 February 2024, I find the following relevant facts.
Mr Kirchner is the principal of the First Respondent. He is also the only solicitor at that firm.
In early 2024 the Tribunal was dealing with an application for guardianship and administration orders to be made for Mr Kirchner's client's mother, the Proposed Represented Person (the GA Act proceeding). The application was made under the GA Act. Allegations had been made in that proceeding that his client had misused a power of attorney and mixed her mother's funds with her own.
On 16 February 2024, the Tribunal made orders pursuant to s 112 of the GA Act restricting or conditioning the use which could be made of documents which had been provided to parties or their legal representatives by the Tribunal for use in the GAA proceedings in which his client was involved. Relevantly, the orders prevented the Second Respondent from providing a copy of any documents disclosed to him for use in the GA Act proceeding to any person without the prior consent of the Tribunal and required him to delete copies of any such documents 28 days after the GA Act proceeding was concluded.
The Second Respondent was aware of the orders of 16 February 2024.
On Thursday, 21 March 2024, either the First or Second Respondent received a copy of the PT Report concerning the Proposed Representative Person's finances. It also contained information about the Public Trustee's financial investigation into his client's use of her mother's funds.
On 26 March 2024, the Second Respondent sent his client an email attaching a copy of the PT Report in breach of the Tribunal's orders of 16 February 2024.
He came to realise that he had breached the orders of the Tribunal when, at a meeting with his client regarding the termination of the First Respondent's engagement, she sought copies of documents from the GA Act proceeding and he refused to provide them in reliance on the orders of the Tribunal. Realising the breach, the Second Respondent then informed her that the PT Report had been provided to her by him in error, but he did not ask for her to destroy it.
In April 2024, his client provided a submission to the Tribunal about the GA Act proceeding to which the PT Report was attached. The Tribunal therefore wrote to the Second Respondent asking if he knew how his client had come to have a copy of the PT Report.
On 12 April 2024 the Second Respondent wrote to the former President of the Tribunal, Justice Pritchard informing her of his breach of the Tribunal's orders.
The Second Respondent says that having reflected on the matter he considers that his breach of the orders was a result of a combination of matters. Those matters being:
(1)a failure to pause and think about what he was forwarding to his client;
(2)a failure to have internal document management procedures in place for the early identification, receipt and storage of confidential information received from the Tribunal that would have forced him to turn his mind to the use to which the documents could be put;
(3)ingrained habit - it was his habit to forward documents to his clients as part of seeking instructions;
(4)being busy with other matters in the lead up to being on leave over Easter; and
(5)his primary concern had been to check the accuracy of the financial information and conclusions set out in the PT report.
I accept the Second Respondent's evidence as to these matters and so find.
The Second Respondent attests that his breach was the result of inadvertence. He accepts it was a significant error and that he had been involved in guardianship and administration proceedings before this GA Act proceeding and was familiar with orders of the type made on 16 February 2024.
The Second Respondent says, and I accept, that he is embarrassed by the breach.
He says that since then he has been putting in place new procedures to deal with restricted Tribunal documents provided in proceedings under the GA Act. He attached to his affidavit a memo to his staff setting out the new procedures.
The Second Respondent also says that, having reviewed the 12 other GA Act matters in which he has been involved, he can see that on one occasion the firm retained documents which should have been destroyed or deleted within 28 days of the conclusion of the proceedings. He has now deleted those documents from the First Respondent's computing systems in the various places where they were kept. He has also deleted the PT Report from everywhere it was stored in the firm's computer systems.
The Second Respondent has reported his breach of the Tribunal's orders of 16 February 2024 to the Legal Practice Board.
Resolution
In this case, there is no issue other than as to whether the breach of the Tribunal's order was intentional and voluntary.
It is clear that a deliberate breach of the order is a contempt. 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.
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 Respondents accept that the conduct is capable of constituting a contempt, but submit that the Supreme Court would be unlikely to find that a contempt was committed because the breach, though intended in the sense that the practitioner intended to send the email, did not set out to do so in defiance of the Tribunal's orders.
I accept the submissions of counsel for the First and Second Respondents that the evidence demonstrates that there was no wilful or deliberate breach of the orders but that it occurred because of a lack of attention to the application of the orders and as a result of an inadequate document management system.
The First and Second Respondent's self-reported their breach and have taken steps to reflect upon their practices and have implemented new procedures to ensure that there is no repeat of the Conduct. We are satisfied that the Second Respondent has treated the matter seriously and is remorseful. That conduct is not consistent with a deliberate or wilful breach of the Tribunal's orders.
I accept that in those circumstances there is little prospect that the Supreme Court would find the Respondents guilty of contempt.
Section 100 discretion
In any event, in the circumstances of this particular case I will not exercise my discretion to refer it to the Supreme Court.
In all of the circumstances here I consider that the Conduct is not, in my view, such that it can be described as being of such grave, weighty or serious a nature as to warrant the Supreme Court imposing a penalty.
In so saying, I should not be understood to be undermining or to detracting 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 given detailed consideration by her Honour Justice Pritchard in the case of CD [2020] WASAT 41 at [32] - [45]. I do not need to repeat them here but incorporate them by reference.
It is my view that the conduct of the Respondents has not undermined the important policy principles underlying s 112 of the GA Act. The person to whom the information was disclosed was an interested party in the GA Act proceeding and was entitled to be made aware of the contents of the PT Report, although not to have a copy of the PT Report at that time.
I 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 Second Respondent's affidavit evidence demonstrates that having become aware of the breach, he has taken considerable steps to remedy the situation which gave rise to those breach 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 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.
Further, having regard to the steps taken by the Respondents since they became aware of the breach of the orders, it is my view that no purpose in relation to the administration of justice would be served by the imposition of a penalty upon them.
In that respect, I take into account the following matters.
First, the Second Respondent, once he 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 Respondents 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 document management system.
Thirdly, the administration of justice also would not be served by the imposition of a penalty in circumstances where the Respondents ultimately referred the breach of the orders to the Tribunal for attention under s 100 of the SAT Act. The Second Respondent also self-referred the breach of the orders to the Legal Practice Board 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 his conduct, that the Second 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 observe that the Respondents' actions in reporting the conduct as a possible contempt demonstrates that they well recognise the importance of compliance with orders of the Tribunal, and there is no failure, on their part, to appreciate the seriousness of their conduct and serious need for compliance going forward.
Orders
The Tribunal orders that:
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.
MS
Associate to the Hon Justice Glancy
29 JULY 2024
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