Watterson and Visionstream Pty Ltd

[2019] AATA 335

Watterson and Visionstream Pty Ltd [2019] AATA 335 (25 February 2019)

Division:GENERAL DIVISION

File Number(s):      2016/2615

Re:Scott Watterson

APPLICANT

Visionstream Pty LtdAnd  

RESPONDENT

DECISION

Tribunal:Member A Ward & Member D Ben-Tovim   

Date:25 February 2019

Date of written reasons:        6 March 2019

Place:Adelaide

......................[sgnd]............................

Member A Ward 

CATCHWORDS

INTERLOCUTORY APPLICATION – Application for disqualification of legal representatives – Restriction of disclosure of evidence – inadvertent provision of restricted order to other party in contravention of order – hearing procedure – ability of legal advisors to continue to represent the applicant – hearing of application conducted in private

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

CASES

Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64

REASONS FOR DECISION

Member A Ward 

27 February 2019

1. On 25 February 2019, the hearing in this matter was to commence on all relevant issues, including:

   (a)       liability as to the circumstances in which the applicant was injured;

   (b)whether the circumstances could cause the injury of which the applicant complained on the basis of whether he suffered physical injury or psychiatric injury; and

   (c)       credibility of the applicant.

2. On 6 June 2018, the Tribunal[1] made an order under section 35(4) of the Administrative Appeals Tribunal Act 1975 (the Act) that certain categories of evidence would be restricted to the respondent, the respondent’s legal advisors, any expert witnesses retained by the respondent, and members of the staff of the Tribunal until the cross-examination of the applicant.

   [1] Differently constituted to the Tribunal as at 25 February 2019.

3. The types of evidence were set out in four paragraphs in the order. These will not be repeated here as the matter is ongoing.

4. Further orders were made which are pertinent to this decision requiring the restriction of information, the effect of the order being that the applicant would not be aware of the information or of the order.

5. Section 35(1) of the Act provides that the Tribunal should hold its hearings in public. Section 35(2) of the Act allows the Tribunal, where it is appropriate, to direct that the hearings be held in private, or that other information not be disclosed.

6. A leading case on the public nature of Tribunal proceedings is Re Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64. The restrictions on information were there to be used, but were to be used sparingly. A major reason for the grant of an order would be to ensure that information comes forward to the Tribunal to enable an informed decision to be made. In other words, the principal purpose of making an order of restriction is to promote a more complete and informed determination of a matter before the Tribunal.

7. These were the considerations that gave rise to the orders of 6 June 2018.

8. Regrettably, an administrative oversight resulted in a copy of the order being sent to the representatives for the applicant, which was in direct contravention of the order. It had the effect of vitiating the order.

9. At the commencement of the hearing on 25 February 2019, an application was made by the respondent to the effect that the legal advisors for the applicant be prevented from further acting in the matter. They had become aware of information that they should not have, despite this being through no fault of their own. The Tribunal understood that the applicant was aware of an order being made, but not the terms of the order regarding the material to which the order pertained.

10. To adequately consider the respondent’s application and prevent any further divulgence of sensitive information to the applicant, an order was made that the argument on application take place in private. Directions were made that all people inside the Tribunal (including the applicant) who were not lawyers should leave the hearing room for the purpose of the application. This was made pursuant to sections 35(2)(a) and (b) of the Act. Thus, the applicant was not present for the purpose of the application.

11. Information was put before the Tribunal by way of submissions from legal representatives, as well as written correspondence exchanged between the parties on 21 February 2019 and 22 February 2019 where they discuss the ramifications of the breach. In this correspondence, the respondent foreshadowed that they would be making an application for the disqualification of the applicant’s legal representatives. This course of action was opposed by the applicant’s legal advisors.

12. It was not in dispute that the order was published inadvertently to the legal advisors for the applicant in June 2018. It was in dispute as to whether that order had been considered by the applicant in preparation of the hearing, and, if so, to what extent information in the order had been relied upon. It was indicated to the Tribunal that this would be a matter upon which, if the hearing proceeded, the applicant would be subject to cross-examination. This in turn could give rise to the potential of the legal advisors also being witnesses insofar as it would be relevant for any issues of contention on what had occurred in the trial preparation.

13. The information put forward on behalf of the applicant is that, whilst the order was sent, it had not been considered except on a cursory basis when received, and immediately forwarded to Counsel for his information – with no specific request to advise upon it as a matter of urgency. Counsel advised that, due to other commitments, the order had not been closely scrutinised.

14. The Tribunal’s view is that it is not the duty of Counsel to ensure what the nature of the order was and how to then deal with it. Instead, that duty would rest with the solicitor to whom the order was mistakenly sent.

15. In the normal course of events, one would expect solicitors to read an order of the Tribunal. Particularly in circumstances such as these, where the order would have come as a surprise to the solicitor, considering it was granted on an ex parte basis. Advice could then have been sought from Counsel as a matter of urgency as to the appropriate way to deal with the order and the inadvertent receipt of it. On the information provided to the Tribunal for this application, this did not occur.

16. The applicant’s solicitors should then have brought the error to the respondent’s attention to discuss whether steps could be taken to remedy the potential harm occasioned by the release of the order. If the parties were unable to reach a mutual agreement, the respondent could have, at that point in time, made an application to the Tribunal seeking the disqualification of the applicant’s legal representatives.

17. Unfortunately, that did not occur as the respondent was not aware of the breach and it was not until shortly before the hearing on 25 February 2019 that the matter was raised. However, at this point in time, with the trial having been prepared and witnesses organised, and the applicant attending the Adelaide Registry for the purpose of the hearing, matters were much more urgent and pointed.

18. The Tribunal carefully weighed the competing interests of the parties and also the need for these matters to progress in the most efficient and fair way possible for the orderly administration of justice. Although it is appropriate to place some weight on the fact that the matter, in all other respects, was ready to proceed, this should not prejudice the respondent. It remains to be the case that the precise nature of the order sought by the respondent was frustrated.

19. The legal representatives for the applicant would also find themselves in a difficult situation. It is highly likely that they would be subject to examination and cross-examination during the course of the hearing as to matters they raised with their client in preparation of the hearing.

20. Conflicts arise here with regards to the legal advisors having knowledge of information but upon which they cannot obtain instruction. The matters might be covered quite innocently in thorough trial preparation, but this would cause suspicion on the part of the respondent that it was knowledge of the orders that led to such avenues of inquiry. The applicant might innocently ask questions of his advisors to which they might feel unable to respond. It is difficult to conceive how to avoid the harm caused by the inadvertent act.

21. In any event, the respondents made it clear that they considered the position of the applicant’s legal representatives to be conflicted to an extent that was not capable of remediation.

22. It is unfortunate that the applicant finds himself in this predicament. Had the matter proceeded in the manner described in paragraphs 15 and 16, it is likely that the application being considered today would have been resolved well in advance of the hearing.

23. Balancing those issues, the Tribunal accepts the submission of the respondent and finds that the applicant’s legal representatives can no longer act in the matter.

24. The Tribunal was advised that in anticipation of this outcome, the applicant indicated he would seek an adjournment and engage new solicitors to represent him. In order to facilitate the swift progression of this matter, the Tribunal will arrange for a direction hearing to be listed where the applicant will have engaged new legal representatives.

I certify that the preceding 24 (twenty-four) paragraphs are a true copy of the reasons for the decision herein of Member A Ward.

..............................[sgnd].................................

Associate

Dated: 6 March 2019

Dates of hearing:

25 February 2019

Counsel for the Applicant:

Solicitor for the Applicant:

Mr S Richter

Conatur

Counsel for the Respondent:

Solicitor for the Respondent:

Mr J Wallace

HBA Legal