MATTER : The Legal Practice Act 2003

The Legal Practitioners Complaints Committee and Alan James Camp State Administrative Tribunal No VR 8 2003

Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA

Trades and professions - Legal practitioners - Application for leave to appeal from finding of unprofessional conduct - Sufficiency of particulars of reference - Sufficiency of reasons

Legal Practice Act 2003 (WA), s 28C(1), s 29A

Legal Practitioner's Act 1893 (WA)

State Administrative Tribunal Act 2004 (WA)

State Administrative Tribunal Conferral of Jurisdiction Amendment and Repeal Act 2004 (WA)

Leave to appeal granted in respect to proposed grounds of appeal 7 and 8

Respondent : Legal Practitioners Complaints Committee

1 JENKINS J: This is an application for leave to appeal from a decision of the State Administrative Tribunal delivered on 1 February 2007. The application is heard by a single judge of the court because the tribunal was constituted by three non-judicial members. Relevantly, the tribunal's decision was to find sustained or proven against the applicant two references of unprofessional conduct as a legal practitioner.

2 The Legal Practitioner's Act 1893 (WA) was in force during the time that the conduct the subject of this application occurred. It seems that the matter also commenced as a matter before the respondent pursuant to its then powers under the Legal Practitioner's Act 1893. Pursuant to those powers, in particular those contained in s 28C(1), on 28 July 2003 the respondent referred four matters concerning the applicant to the Disciplinary Tribunal constituted under the Legal Practitioner's Act 1893.

3 Pursuant to s 29A of that Act the Disciplinary Tribunal had jurisdiction to make a finding that a legal practitioner has been guilty of unprofessional conduct. Each reference alleged that the applicant was guilty of such conduct. If the Disciplinary Tribunal found the applicant guilty of unprofessional conduct it had the power to make and transmit a report of the proceedings to the Full Court of this court. The Legal Practitioner's Act 2003 (WA) came into force on 1 January 2004. From that date the Disciplinary Tribunal had power to make a finding of unsatisfactory conduct by unprofessional conduct.

4 The State Administrative Tribunal Act 2004 (WA) and the State Administrative Tribunal Conferral of Jurisdiction Amendment and Repeal Act 2004 (WA) both came into force on 1 January 2005. Effectively those two acts abolished the Disciplinary Tribunal and substituted it with the State Administrative Tribunal. The hearing of this matter commenced in December 2004 apparently before the Disciplinary Tribunal under the Legal Practitioner's Act 2003. I am told that there was then a lengthy adjournment to July 2006 whilst it was established that the hearing was to continue before the State Administrative Tribunal comprised of the same three persons who had commenced to hear the references as the Disciplinary Tribunal. No point is taken on this application concerning the legislative changes and the effect that they had on the hearing. Consequently, I have not examined those aspects of the proceeding.

5 It is sufficient for me to say the parties have proceeded on the basis that there was no material difference between the jurisdiction and powers of the Disciplinary Tribunal under the Legal Practitioner's Act 1893 or the Legal Practitioner's Act 2003 and the jurisdiction and powers of the State Administrative Tribunal; that is, the parties have acted on the basis that the relevant issue for the State Administrative Tribunal was whether the applicant was guilty of unprofessional conduct.

6 On the face of it, the conduct of the applicant was to be assessed according to the provisions of the Legal Practitioner's Act 1893 but the forum and the procedure to be followed was that contained in the Legal Practice Act 2003 and the State Administrative Act 2004, after those two acts came into force.

Details of references and the applicant's responses

7 As I have said, the respondent referred four matters to the tribunal. They being references number 22A through to 22D. The applicant seeks leave to appeal from the decision of the tribunal to find references 22C and 22D sustained. Reference 22C states:

That the practitioner Alan James Camp, was on a date not presently known in or about 1997, guilty of unprofessional conduct in that he offered to divulge to certain media outlets for an undisclosed fee, confidential information relating to Mr Langley George Hancock and/or Mrs Gina Rinehart and/or Hancock Prospecting Pty Ltd, which information the practitioner had acquired whilst employed by Mr Hancock or Mrs Rinehart or Hancock Prospecting Pty Ltd, without first obtaining their authority or consent.

There were particulars given of that reference and it is relevant to note them now. Those particulars were:

(1) The practitioner was employed by Hancock Prospecting Pty Ltd or Mrs Rinehart during the period from, in or about 1992 to 1996.

(2) The practitioner's duties included inter alia providing legal advice on various matters raised with him by Mr Hancock before his death on 27 March 1992 and thereafter by Mrs Rinehart or other officers of Hancock Prospecting Pty Ltd.

(3) In the course of his employment the practitioner acquired confidential information regarding Mr Hancock, Mrs Rinehart and Hancock Prospecting Pty Ltd including information relating to various matters, including but not limited to, legal proceedings then on foot between Mrs Rinehart or Hancock Prospecting Pty Ltd on the one hand and Mrs Rose Porteous or interests associated with her on the other.

(4) On dates presently unknown in or about 1997 the practitioner spoke to representatives of Channel 7 and Channel 9.

(5) During the above discussions the practitioner offered to divulge information of a confidential nature regarding Mr Hancock, Mrs Rinehart and Hancock Prospecting Pty Ltd to Channel 7 and Channel 9 in return for an undisclosed fee.

(6) The practitioner spoke to representatives of Channel 7 and Channel 9 without first obtaining the authority or consent of Mr Hancock before his death and or Mrs Rinehart and or Hancock Prospecting Pty Ltd.

Reference 22D was amended. In its final form it reads:

That the practitioner Alan James Camp, was on or about 12 June 2000, guilty of unprofessional conduct in that he provided to several journalists a chronology relating to proceedings then on foot in the Coroner's Court which contained allegations of serious misconduct on the part of Mrs Rose Porteous prior to the death of her then husband Langley George Hancock, when he knew that the conduct of Mrs Porteous in relation to her husband's death was a matter to be considered by the coroner.

Particulars were also given of this reference and they are as follows:

(1) The practitioner was employed by Hancock Prospecting Pty Ltd or Mrs Rinehart as at 12 June 2000.

(2) The practitioner's duties included inter alia providing legal advice on various matters raised with him by Mrs Rinehart or other officers of Hancock Prospecting Pty Ltd.

(3) One of the above duties included dealing with members of the press who were following proceedings then in the Coroner's Court regarding the death of Mr Hancock in order to ensure that any public reporting of those proceedings would be fair from Mrs Rinehart's point of view.

(4) The chronology contained allegations inter alia that Rose Porteous, the widow of Mr Hancock was only interested in Mr Hancock for his money, that she had extra marital affairs in the period leading up to Mr Hancock's death when he was unwell, that she treated him cruelly when he was unwell and that she wished for and attempted to hasten his death by various means.

(5) By distributing the chronology as he did, the practitioner sought to further Mrs Rinehart's interests in connection with the coronial inquest by unfair means namely, by casting aspersions on Rose Porteous.

8 In respect to reference 22C, the particulars did not disclose the nature of the confidential information, the subject of the reference. By letter, the applicant sought further and better particulars of the nature of the confidential information. The respondent replied by letter. The response being:

The unprofessional conduct alleged lies in Mr Camp offering to divulge what he described to the proposed recipients as confidential information about his client in exchange for money. The precise nature and description of the information to be provided is not a relevant particular and indeed whether it was confidential is a matter known only to Mr Camp. It follows that it is counsel's view that no further and better particulars are required.

9 The application for further and better particulars was not renewed before the tribunal.

10 The applicant provided a response to the references. I understand that that response was amended; the details of the amendment are not exactly clear to me. The answer from the applicant in respect to reference 22C is quite some length and I will not quote all of it. Relevantly, the applicant admitted that he was employed by Hancock Prospecting Pty Ltd from in or about 1992 through to 1996. He admitted that his duties included but were by no means limited to providing legal advice on various matters raised with him by Mr Hancock from, in or about 24 February until his death on 27 March 1992 and throughout and thereafter by Mrs Rinehart who was a director of Hancock Prospecting Pty Ltd at the time and thereafter by that company. He admitted that in the course of his engagement he acquired confidential information regarding Mr Hancock, Mrs Rinehart and the company including information relating to various matters including but not limited to legal proceedings then on foot between Mrs Rinehart, the company and Mrs Porteous.

11 He said that this was not just through the course of his engagement but also due to a long term, close, personal relationship with the Hancock and Rinehart families, including Mrs Rinehart's children. He said that he acquired no confidential information in relation to litigation in progress between the parties and Rose Porteous because he was a material witness and therefore excluded from deliberations or participation in those actions.

12 He admitted that in or about 1997 he spoke to representatives of Channel 7 and Channel 9. He admitted that during those discussions he offered to be interviewed and to discuss in such interviews, stories of public interest concerning Mr Hancock, Mrs Rinehart and Hancock Prospecting. Mr Camp, the applicant, denied that he made such an offer for any amount of money other than that what might be a standard fee payable by such media outlets. He denied that he offered at any time to speak in such interviews about matters of a confidential nature that Mrs Rinehart, the company or company related companies or the estate of Mr Hancock, might not consent to.

13 He admitted that he spoke to representatives without first obtaining the authority of Mr Hancock before his death, his estate, Mrs Rinehart or the company. He said that he spoke to such representatives in the certain knowledge that Mrs Rinehart on her own behalf, the estate of Mr Hancock or the company, would authorise him to conduct such a factual interview as he offered and would not object if he received a fee for his time from the media.

14 He said that, in any event, a preliminary offer was made by way of inquiry as to what might be possible but that at no time did he ever agree to discuss publicly any matter that was confidential or any matter which Mrs Rinehart or, by her, the company would not consent to. He said that the possibility of his giving a paid interview arose when a journalist, Alison Fan from Channel 7, telephoned him. He said he asked her what he might be paid for an interview. He said he mentioned possible points of interest that he would be able to talk about. Ms Fan said that their program was not interested and told him who to speak to at Channel 9. Mr Camp said nothing came of it.

15 I note that the applicant denied that he offered to speak to the media outlets about matters of a confidential nature that his clients 'might not consent to' although he acknowledged that he had done so without seeking the authority of his clients. Implicitly, the applicant denied that his conduct amounted to unprofessional conduct.

16 On appeal, the applicant's counsel conceded that the applicant did not have implied authority or would not have been given authority from Mrs Rinehart or the company to speak to the media about matters which were damaging to Mrs Rinehart.

17 In respect to reference 22D, the applicant responded that the Supreme Court in an action for contempt of court had found that there had been no intention to affect or influence the proceedings before the coroner. He said that his conduct was not unprofessional.

18 A hearing of the references took place. Senior counsel for the respondent opened the case for the respondent. In respect to paragraph 22C the counsel said in respect to the issue of confidential information:

When [Mrs Fan] discussed with Mr Camp what it was that he was going to provide to her in exchange for this sum of money which was going to be played on a a program called Witness which then existed and another current affairs program that is played by Channel 7 across Australia, Mr Camp referred to two or three matters, one of which was the taking of the will. She will say there was no suggestion that he had authority and indeed the very reason he told her about it was that this was material of a sensational kind which was worth the money that he was wanting. So that was the position as she recalls it.

19 The reference to the, 'taking of the will' is a reference to an incident which was well known between the parties; that is, where it was alleged that, the applicant had broken into an office and taken a copy of Mr Hancock's will. That incident was, in effect, the subject of reference 22A to the tribunal so it was an incident that was very familiar to the parties.

20 After the respondent's opening, Ms Fan, the respondent's chief witness in respect to reference 22C, gave evidence and she was also cross-examined by the applicant's senior counsel in December 2004.

21 Due to delays because the proceedings were transferred to the tribunal, the hearing was not completed until July 2006. It was in July 2006 that the applicant gave evidence in respect to the references. The tribunal's reasons for decision were delivered on 6 December 2006.

22 The applicant has had a number of attempts at drafting proposed grounds of appeal. I do not intend to waste my time detailing them all, suffice to say that the first attempts were woeful. Their deficiencies and the adjournments I have granted to enable the applicant to rectify those deficiencies have been the cause of the delay in hearing this application.

23 Most recently the applicant filed submissions dated 21 July which seek to amend the last filed set of proposed grounds dated 25 May 2007. Again, this is unsatisfactory, given that the respondent made oral submissions in May in respect to the grounds as they then stood. At the hearing on 31 July 2007 the applicant handed up an 'Amended Minute of Proposed Substituted Appeal Grounds' which contains amendments to the proposed grounds that were notified in the submissions filed on 21 July. In these reasons I will consider the grounds in this latest minute. I note that even these grounds are overly complex and confusing.

24 The grounds are some five pages in length. They are:

1. The Tribunal proceeded without jurisdiction and unfairly by:

(a) making its Decision on issues different from those that arose under Reference C;

(b) failing to formally amend the Reference;

(c) failing to give the Applicant formal notice of the intention to decide the reference on different issues.

(d) proceeding on a charge which was by its terms vague and inadequately particularised and not the subject of a valid determination by the respondent under Section 28c of the Legal Practitioners Act (1893).

Particulars

(i) the reference referred to the Applicant offering to divulge information of a confidential nature without consent but did not provide specific identified items of information or any detail of how such item was secret or private and what facts were relied upon to show lack of consent;

(ii) the Reference did not refer to information of an adverse nature with intent to 'blow Gina out of the water' and a type that could not have been divulged even with consent;

(iii) the Applicant was never provided with particulars of the adverse information referred to in (ii);

(iv) the allegation that the Applicant was going to reveal information that Mr Hancock's hand was held was not put to him and nor was it put to him that he knew or had ever heard of such an incident;

(v) the Tribunal did not distinguish between adverse information of the type referred to in (ii) and other information which, whilst confidential, was capable of being consented to by Mrs Rinehart.

(vi) the Tribunal's decision was vitiated by reason that the Tribunal wrongly took into account that the Applicant was bankrupt or facing bankruptcy when there was no evidence thereof and in finding that it was a matter from which it was to be inferred that the Applicant would intend to profit from damaging his clients.

1. There was no evidence, or no adequate evidence before the Tribunal of material upon which the Tribunal's Decision that the Applicant proposed to release adverse or damaging information was based, namely:

(a) as to what were the relevant interests of the Applicant's clients; and/or

(b) as to any information known to the Applicant which in fact was adverse to such interests.

1. In light of paragraph 14 of the Statutory Declaration of Mrs Rinehart declared on 13 December 2002 (which stated that she did consent to the Applicant selling a suitable story to the press) to the extent the Decision included a finding the Applicant did not have consent to offer a story not adverse to h is clients interests, the Tribunal erred by concluding that Mrs Rinehart's evidence did not exculpate the Applicant and did not legalise what he did.
2. The Tribunal's Reasons were inadequate to support its Decision that in 1997 the Applicant intended to sell a story disclosing information adverse to his clients' interests.

(a) The Tribunal failed to make findings as to whether the taped conversations contradicted Ms Fan's oral evidence that the Appellant offered to sell adverse information;

(b) the Tribunal failed to make findings as to what were the relevant interests of the Applicant's clients and as to what information he knew could be adverse to any such interests;

(c) The Tribunal failed to give reasons that explained the finding that Ms Fan's evidence was straightforward, clear and obviously true, in the face of contradictory material in the tapes and Ms Fan's own concessions.

(d) The Tribunal failed to explain its Decision in the face of:

(i) the Tribunal's finding in reference A that Mrs Rinehart's father had told the Applicant to retrieve the Will from his desk; and

(ii) the fact that disclosure of that information would have been in Mrs Rinehart's interests in that it answered the accusation published in the newspaper that Mrs Rinehart had conspired with Mr Schwab to get the Will without her father's knowledge.

1. There was no evidence (on which the Tribunal could conclude) that the Applicant offered or was able to sell to the press a story of the nature sought by Ms Fan. Alternatively, the reasoning was inadequate to explain the decision of the Tribunal.

Particulars

Having regard to the evidence that:

(a) the break in was the only story that interested Ms Fan;

(b) in Ms Fan's view the Applicant's lack of consent to access Mr Hancock's documents was what made the break in a story;

(c) Ms Fan recorded the conversations with the Applicant 'so I could show the producers what they were going to be spending their ...$50,000.00 on';

(d) the taped conversations showing no evidence that the applicant intended to sell such a story;

(e) the finding of the Tribunal that the Applicant was instructed to fetch the Will from Mr Hancock's desk.

1. The Tribunal erred in law by concluding that the Applicant acted unprofessionally in providing to a number of journalists a summary of evidence not yet heard in the Coroner's Court.

The Tribunal was bound by the decision of the Full Court of the Supreme Court of Western Australia in R v Coroner's Court of Western Australia Ex parte Porteous [2002] WASCA 144 and the findings therein that:

(i) there were a number of good reasons for the Applicant to distribute the summary; and

(ii) the Applicant did not intend, and nor could his actions have affected, in any way, the proceedings before the Coroner and any prospective witness thereto.

1. The Tribunal erred in law in finding the Applicant guilty of unprofessional conduct as the release of a summary of evidence by the Applicant did not of itself constitute unprofessional conduct absent malice or improper purpose.
2. The Tribunal's reasons were inadequate, or alternatively the procedure adopted by the Tribunal was unfair, in that the Tribunal held that the elements of contempt in Ex parte Porteous were different to the elements of the Reference.

(a) identify what the relevant elements were;

(b) make any findings in respect of the elements; and

(c) give reasons that explained how the elements differed; and

(d) give reasons that explained how the Tribunal reached its decision in the absence of any findings as to what the elements were

25 The general principles relating to applications for leave to appeal from decisions of the State Administrative Tribunal are contained in State Administrative Tribunal Act s 105(1) and s105(2) which state:

(1) A party to a proceeding may appeal from a decision of the tribunal in the proceeding but only if the court to which the appeal lies gives leave to appeal.

(2) The appeal can only be brought on a question of law.

26 In Paridis v Settlement Agents Supervisory Board [2007] WASCA 97, Buss JA, (the other members of the court agreeing) quoted with approval the comments of Phillips J in Secretary to the Department of Premier and Cabinet v Hulls [1999] 3VR 331, where his Honour annunciated guide lines for determining whether to grant leave to appeal under the Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148. Buss JA said the provisions of s 148 are not materially different from the provisions of 105(1) and (2) of the Western Australian Act. Phillips J said at 337 [16]:

When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.

In my opinion the guidelines articulated in Secretary to the Department of Premier and Cabinet v Hulls should be taken into account when considering whether to grant leave under s 105(1) of the State Administrative Tribunal Act. It must be emphasised however, that those guidelines are not rigid or exhaustive and leave should be granted if, in all of the circumstances, a grant of leave is in the interests of justice [18].

28 In Airflight Pty Ltd v Goyle [2003] WASCA 45, Pullin JA considered what was a question of law, albeit in the context of a different piece of legislation. His Honour said:

A person may be aggrieved on a question of law if, and only if, the decision in relation to that question is wrong. See Jamal v Department of Health (1988) 14 NSWLR 252 at 270. Errors of fact cannot be corrected by this Court on appeal. If the Tribunal misdirects itself as to the law, then that is an error of law and will be reviewable on appeal: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157. The purpose of establishing a specialist Tribunal and of confining appeals to questions of law, is to provide 'a high measure of immunity from review' to determinations of the Tribunal: Haines v Leves (1987) 8 NSWLR 442 at 459.

This Court may offer relief in relation to findings of fact, only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the law. Those errors amount to errors of law: Haines v Leves (supra) at 470; Jamal v Department of Health (supra) at 270.

Otherwise, this Court is not permitted to review a finding of fact made by the Tribunal, even if it appears perverse or contrary to the overwhelming weight of evidence. Further, this Court may not review findings on the facts even if no reasonable person could have reached the decision made, and even if the reasoning by which the Tribunal arrived at its conclusion was demonstrably unsound: Azzopardi's case (supra) at 155-156 and Haines v Leves (supra) 469-470. So, in Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1, a Judge's description of Registrar's findings 'as such as to strain credulity' and reliance on certain factors as 'nonsensical', were not enough to allow the Judge to conclude that there was any error of law [18] - [20].

29 In Paridis, Buss JA also considered what was a question of law. His Honour said:

An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law [53].

30 His Honour went on to state some principles which I summarise as follows:

(1) A question of mixed law and fact is not a question of law within s 105(2).

(2) A ground of appeal which asserts that a decision is against the evidence and the weight of the evidence does not raise a question of law.

(3) A tribunal does not commit an error of law merely because it finds facts wrongly or upon doubtful basis.

(4) A ground of appeal that a tribunal has made a finding which has manifestly unreasonable in the sense that no reasonable tribunal could have made that finding alleges an error of law.

(5) The ground of appeal that a tribunal has failed to take into account a consideration which in the circumstances it was bound to take into account alleges an error of law; and

(6) it is not sufficient if the consideration which the tribunal is alleged not to have taken into account is merely one that may properly be taken into account or that many persons may have taken into account.

31 With these principles in mind, I turn to consider the proposed grounds of appeal.

32 Ground (1) alleges that the tribunal proceeded without jurisdiction and unfairly by making its decision on issues different from those that arose under reference C; failing to formerly amend the reference; failing to give the applicant formal notice of the intention to decide the reference on different issues; and proceeding on a charge which was by its terms vague and inadequately particularised and not the subject of a valid determination by the respondent under the Legal Practitioner's Act 1893 s 28(c).

33 At the hearing of the application it also became apparent that the applicant relied upon some of the particulars to this proposed ground as if they had been elevated to grounds of appeal in their own right. I will deal with them at the end of my consideration of this proposed ground of appeal.

34 The gravamen of this ground is an allegation that the applicant was denied procedural fairness in that the tribunal decided reference 22C on different issues than those raised in the particulars to the reference and failed to give the applicant notice of its intention to do so.

35 In respect to the allegation that the applicant failed to formally amend the reference, I would not be prepared to give leave to appeal on the basis of that allegation alone. The failure to amend the ground may be evidence that the applicant was not given formal notice of the intention to decide the reference on different issues. However, if the tribunal decided to determine the reference on different issues and gave adequate notice of its intention to do so, then failure to amend the particulars of the reference would not be an error of law justifying the grant of leave.

36 That, however, raises the issue as to whether or not it is arguable that the tribunal decided the reference on different issues than those raised in the particulars.

37 The recent addition of subparagraph (d) to ground 1 raises a different issue, which I will address first. The issue raised by subparagraph (d) is that the applicant did not know the allegation he had to meet, because the charge was inadequately particularised. I do not understand the allegation of an invalid determination by the respondent under the Legal Practitioners Act 1893 s 28(c) as raising any additional issue. Sub-ground (d) is to be resolved upon a determination as to whether it is arguable that the reference was inadequately particularised.

38 As I have said earlier, the applicant sought further and better particulars from the respondent prior to the hearing. These were refused. In 2004 and again in 2006, the applicant had an opportunity to request the tribunal hearing the reference to order the respondent to provide further and better particulars, or to seek for the hearing to be adjourned until such particulars were provided. The applicant did not do so. His senior counsel did complain about the lack of particularity in one of the references, but not in respect to reference 22C. The applicant also had the benefit of the respondent's counsel's opening. He did not seek any further particulars after that opening.

39 I also note that the applicant provided an answer to reference 22C and did not complain in it that he was unable to answer the reference because of the vagueness of it or its lack of particularity. It is clear from his answers that the applicant was aware of the incident being complained of.

40 There were disputes between the parties as to whether the applicant had offered to disclose confidential information, whether he had the authority of Mrs Rinehart to disclose that information, and if he did whether in light of her implied authority his conduct was unprofessional. The applicant did not lack particulars of any of the allegations against him, except perhaps the nature of the allegedly confidential information.

41 There are two main purposes of particulars. One is to eliminate the risk of duplicity, the other is to give the responding party sufficient information about what is alleged against him to enable him to properly answer the allegations that are made against him. I consider the failure of the applicant's senior counsel to request the tribunal to order further and better particulars or to seek an adjournment until such particulars were given as a complete answer to this proposed ground. The applicant was well aware that the allegations against him were that he had offered to provide confidential information to the media without the consent of his clients.

42 As to the nature of the confidential information, if the applicant had asked the tribunal to order further and better particulars of that matter, I would have thought that they should have been ordered. However, no request was made. Thus, there was no error of law on behalf of the State Administrative Tribunal. Neither was any point made before the tribunal that a reference without such particulars was not a valid reference to the tribunal.

43 In any event, although the applicant has cited a case relating to duplicity, no arguable case was put to me as to how the reference was duplicitous. The case cited by the applicant is a case from the criminal jurisdiction. In response, the respondent cited a series of cases which were relied upon in the decision of Gandini v Legal Practitioners Complaints Committee [2005] WASCA 214. In that case, the practitioner complained to the Court of Appeal that the references against him, which were yet to be heard, were duplicitous. Pullin JA said:

As to the merits of the appeal itself, there is no statutory provision which requires a reference or complaint to contain only one matter of complaint. See Gee v General Medical Council [1987] 1 WLR 564 and Peatfield v General Medical Council [1986] 1 WLR 243 and Woods v Legal Ombudsman [2004] VSCA 247, which indicate that in this type of case (professional misconduct cases or unprofessional conduct cases) the general rule against duplicity is not to be rigidly applied. That is not to say, of course, that where there is any unfairness in the form of the complaint that there should not be separate hearings.

The complaint indicates a course of conduct which, when taken in its context or viewed as a single series of events, would justify a finding that there was unprofessional conduct; that is not, of course, to finally judge the matter because it still has to be dealt with by SAT [7] - [8].

44 The applicant's complaint is that if the charge intended to refer to more than two allegations, they being:

1. that the applicant offered to disclose information that was intentionally damaging to his client; and
2. that the applicant's offer was made to disclose information beyond the range of information that was or might have been the subject of his client's authority to disclose;

then there should have been two separate counts of misconduct. I do not accept that there is a real argument to be put in this respect.

45 The reference alleged that the applicant offered to disclose confidential information without the consent of his client. The fact that the confidential information was disclosed with a certain intent was not an essential part of the reference. The intention which accompanied the offer did not have to be included in the reference. The fact that the respondent proved that the appellant acted with a certain intention does not make the charge duplicitous or mean that that allegation had to be included in the charge.

46 The fact that the offer was made to disclose information without the consent of the client was part of the reference that was alleged against the applicant. It was the appellant's answer to the charge that he had implied authority to disclose the information or would have been given authority if he had asked his clients for it.

47 In order to respond to that answer that the application had such authority or would have been given authority to disclose the information, the respondent adduced evidence from which an inference could have been drawn that the clients would not have given such authority. However, it was not an essential part of the charge. The fact that such evidence led at the hearing did not make the charge duplicitous.

48 Having regard to the wording of the reference and the fact that the rule against duplicity is not rigidly applied in disciplinary cases, I am of the view that there is not a real argument to be put that reference 22C was duplicitous. Neither is there a real argument to be put that the failure to give particulars of the reference disguised the duplicitous nature of it.

49 It is sufficient to say in respect to whether the failure to provide further and better particulars prevented the applicant from knowing the case put against him, that the applicant had the advantage of hearing the evidence of Ms Fan, which was the evidence relied upon by the respondent, in 2004 and he did not have to respond to that evidence until 2006.

50 Any lack of particularity in the reference was undoubtedly cured by the evidence of Ms Fan. I would not grant leave to appeal in respect to proposed ground 1(d).

51 I now turn to grounds 1(a) - (c). In respect to these proposed grounds the question is whether it is arguable that the tribunal decided the case on different issues to those raised in the particulars to the reference and if so, whether it failed to give adequate notice of its approach to the applicant.

52 I have already quoted the particulars to the reference and the reference itself. The evidence of Ms Fan was recorded and typed out in the transcript. The relevant portion of her evidence is at ts 34 - 36.

53 In summary, Ms Fan's evidence was that in a telephone call the applicant said that he could help Ms Fan with litigation involving Mrs Rinehart and Channel 7 because he had some information and background that could, 'blow Gina out of the water'; Gina being Mrs Rinehart.

54 Mrs Fan specifically said that that was Mr Camp's language. She said that he offered to give a story that he broke into a filing cabinet that was located somewhere in Mr Lang Hancock's house or property and how he broke into it. She said she asked him how and he said, 'they unscrewed a filing cabinet, a shelf so that the bottom file could fall down and they were able to get the will.'

55 Mrs Fan also said that the offer was to provide information as to how Mr Hancock's hand had been held to sign a codicil or some document but Mr Camp would be prepared to tell Channel 7 that and that it had not become public knowledge. In return, Mr Camp would want some money because he was desperate for money.

56 The applicant says that the issues raised by Ms Fan in evidence were profoundly different to those raised by the terms of the reference. In oral submissions the appellant's counsel gave particulars of that proposition. It is said that the evidence of Ms Fan was that the applicant offered to provide information that would, 'blow Mrs Rinehart out of the water', that is, that the applicant offered to disclose information that was damaging to his client.

57 As I have said previously, the respondent's case was, and the reference stated, that the applicant offered to provide confidential information obtained by him in the course of his employment. I do not understand how it can be said that evidence that disclosed that the applicant offered to disclose confidential information which was damaging to his client was profoundly different to the allegation in the reference.

58 Secondly, it is said that the evidence presented was that the applicant had offered to disclose information that went beyond the range of matters which might have been authorised by his client. The reference alleged that the offer was made, 'without first obtaining', authority or consent from his clients. As far as the respondent's case was concerned, it was irrelevant that Mrs Rinehart might have given consent if asked because its case was that explicit authority or consent had to be obtained prior to the applicant speaking to the media.

59 It was the applicant's answer to the reference that he did not engage in unprofessional conduct if he had implied authority or would have been given such authority if he had been asked for it. It is not the case that the respondent presented a different case from that alleged. Rather, the case it presented, which was well within that which was alleged, did not assist the applicant's answer to the reference.

60 I have compared the reference and its particulars to the evidence of Ms Fan. I do not accept that there is a real or significant argument to be put that the tribunal made its decision on issues which were different from those that arose under the reference. I note in this respect that at paragraph 4 of his submissions to the tribunal the applicant was able to summarise the evidence of Ms Fan which was relied upon to prove the reference.

61 The matters dealt with by the tribunal had to be wider than those alleged in the reference because the applicant raised certain issues in his answer. It was he who asserted that he had implied consent. That is terminology I have adopted for simplicity. It was also he who raised that he had only asked for a reasonable fee. It was he who asserted that the information he offered was not of much interest to the media. It was he who asserted that he did not offer to publish confidential information which his clients would not have consented to the publication of.

62 Those matters having been raised by the applicant it was the respondent's right to adduce evidence to counter them and it was the tribunal's obligation to make findings in respect to them.

63 The applicant alleges that the respondent's case changed after Ms Fan gave evidence in that the nature of the confidential information offered to be publicised changed from being about the legal proceedings to being about the break-in and the signing of the will. I do not accept that this is the case. The particulars do not restrict the respondent's case to evidence concerning legal proceedings. In fact it specifically and expressly states that it is not so limited.

64 No opening statement has been relied upon by the applicant to show that the respondent formulated its case in this manner. Indeed the passage that I have quoted from the respondent's senior counsel's opening indicated that he specifically relied upon the break in as being part of the confidential information which the applicant offered to provide to the media.

65 The tribunal dealt with reference 22C at [61] - [113] of its reasons for decision. It commenced by reciting the allegations contained in the reference and its particulars. It then referred to the admissions made by the applicant in his answer and in proceedings before the coroner. It then summarised Ms Fan's evidence. It found that it accepted Ms Fan's evidence and dealt with some inconsistencies between her evidence and the tapes of some of the conversations between herself and the applicant. It then summarised Mr Roy Gibson's evidence and made a finding in respect to his credibility. The tribunal then summarised Mr Camp's evidence. The tribunal then made a finding at [87] that it believed the evidence of Ms Fan where it contradicted the evidence of Mr Camp.

66 The tribunal then dealt with the applicant's senior counsel's submission that any information the applicant had offered to give the media outlets was not confidential as there was no evidence that he did not have permission to publish the information [92]. The tribunal said that it did not accept this submission [93] - [95]. The tribunal then dealt with the submission that Ms Fan's evidence was discredited. It said it did not accept this. An issue as to whether the evidence fitted the particulars was in effect dealt with [96] - [97] and [103]. It seems to me that the tribunal found that the evidence was consistent with the particulars and that Mr Camp had had the opportunity to answer it.

67 I can find nothing wrong in this analysis or nothing that is arguably wrong in this analysis, remembering that the evidence of Ms Fan was given 18 months before Mr Camp gave evidence. The tribunal then dealt further with submissions about whether the offered information was confidential and that Mr Camp did not have permission to publish it [100] - [104], [110] - [114] and [117]. I note that Mr Hancock is referred to as the applicant's client, not Mrs Rinehart.

68 In my opinion there is not a real or significant argument to be put that the tribunal decided the reference on grounds or evidence that were not contained in the reference or of which Mr Camp did not have adequate notice.

69 As I have said, the applicant seeks to elevate certain particulars of proposed ground 1 in to grounds of appeal in their own right. I will now deal with these. Particular (iv) of proposed ground 1 is that the allegation that the applicant was going to reveal information that Mr Hancock's hand was held was not put to him and nor was it put to him that he knew or had ever heard of such an incident. The allegation in the proposed ground is wrong. The allegation was put to the applicant by senior counsel for the respondent in cross-examination. Mr Zilko SC said to Mr Camp:

And what about the providing her the story of how Lang Hancock's hand was held to sign a codicil or some document?

70 It is not seriously arguable that the applicant should have been asked whether he knew of or had heard of such an incident. Ms Fan had given evidence of the matter. Mr Camp had been asked about it in cross-examination. If the applicant wished to give further evidence about it in order to strengthen his denial of having offered to give such evidence to Ms Fan, then he should have been re-examined about the issue by his own counsel.

71 The next particular that is relied upon is particular (vi). It reads that the tribunal's decision was vitiated by reason that the tribunal wrongly took into account that the applicant was bankrupt or facing bankruptcy when there was no evidence thereof and in finding that it was a matter from which it was to be inferred that the applicant would intend to profit from damaging his clients.

72 The comment complained of was made by one of the tribunal members, and I believe the chairperson of the tribunal, after the tribunal delivered its reasons. No such misunderstanding of the facts is revealed in the tribunal's reasons.

73 There is no evidence that the tribunal took into account that the applicant was bankrupt or going bankrupt at the time he made the offer the subject of reference 22C. However, the tribunal was at liberty to take into account the evidence before it in respect to the applicant's financial position at the time the offer was made; it did so. The comment made by the tribunal that is objected to in particular (vi) is perhaps a rather sweeping conclusion from the evidence which was led at the hearing.

He approached me about, I think, it was over a weekend really. Really emotional and upset because he didn't think he could get through the weekend, that he couldn't feed the kids, he couldn't meet a mortgage, that Gina was threatening to take his car away from him, that he hadn't - she was going to do something, that he was really desperate for money, and - - -

75 The appellant's testimony to the coroner, which I also believe was before the tribunal was:

It was in the period where I had fallen out with Gina and the bank was selling me up and I was not travelling too well ts 5640.

76 The tribunal made certain findings in respect to the applicant's financial position. It said:

The practitioner was obviously desperate for money and intend to release confidential information concerning his clients and the Hancock family, which information he had obtained whilst he was working for them as a practitioner [93].

77 I believe that it made similar findings elsewhere in the reasons. Consequently it seems to me to be of no moment at all that one tribunal member later described the applicant as bankrupt or going bankrupt. Whilst there was no evidence before the tribunal that he was technically facing bankruptcy at that time, using the word in the colloquial sense of having debts which he could not pay, it seems to me that it was a fair comment to make in any event based on the evidence that was before the tribunal.

78 For these reasons I would not grant leave to appeal in respect to ground 1 of the proposed grounds of appeal.

79 Proposed ground 2 is that there was no evidence or no adequate evidence before the tribunal of material upon which the tribunal's decision that the applicant proposed to release adverse or damaging information, was based, namely (a) as to what were the relevant interests of the applicant's clients, and/or (b) as to any information known to the applicant which in fact was adverse to such interests.

80 In my view this ground raises questions of fact. There was evidence before the tribunal as to what Ms Fan alleged the applicant offered to disclose, and what he said when he offered to disclosed it; that is, it was going to 'blow Gina out of the water'. It was an available inference from that comment that the disclosure was contrary to Mrs Rinehart's interests, and contrary to the interests of others with whom she aligned herself.

81 The tribunal also made the finding that disclosure of such information was contrary to the interests of the client [111] - [113]. I remain of the view that the respondent's case simply was that whether or not the information was contrary to the interests of the client it was confidential information and could not be disclosed without the prior consent of the client.

82 It was the applicant who sought to allege that such behaviour was not unprofessional, if the information was not contrary to the interests of the client, and the client would have given authority for its release, if asked. Consequently I would not give leave to appeal in respect to ground 2 of the proposed grounds.

83 Ground 3 is that in light of [14] of the statutory declaration of Mrs Rinehart, made on 13 December 2002, which stated that she did consent to the applicant selling a suitable story to the press, and to the extent the decision included a finding that the applicant did not have consent to offer a story not adverse to his client's interests, the tribunal erred by concluding that Mrs Rinehart's evidence did not exculpate the applicant, and did not legalise what he did.

84 The applicant's written submissions do not appear to meaningfully address this ground. They allege that the ground deals with the issue of duplicity or uncertainty in the terms of the tribunal's decision, the reference and the duplicity introduced by the evidence of Ms Fan. If this is what the ground relates to then I have already dealt with this ground when dealing with proposed ground 1 and I would not grant leave to appeal in respect to it.

85 However, the applicant's oral submissions were slightly different. They were that it was not open to the tribunal to find that the applicant intended to disclose confidential information that was adverse to his client's interests, because this was not particularised as the case against him. Thus, if the tribunal's only finding was in accordance with the case particularised, that he offered to disclose confidential information that was not adverse to his client's interests, then this was not unprofessional conduct because the implied authority of Ms Rinehart legitimised his conduct.

86 The problem for the applicant in this reasoning is that the tribunal did find that the applicant intended to disclose confidential information that was adverse to his client's interest. For the reason I have given earlier, I do not accept that it was not open for the tribunal to come to this conclusion. There was evidence before the tribunal upon which it could base this decision. The case particularised against the applicant did not exclude such a finding, and the answer given by the applicant raised the issue of the nature of the information that he offered to disclose, and required the tribunal to make some findings in respect to it.

87 Consequently, I would not grant leave to appeal in respect to this ground.

88 Ground 4 alleges that the tribunal's reasons were inadequate to support its decision that in 1997 the applicant intended to sell a story disclosing information adverse to his client's interests.

89 Various particulars are given of this claim. The State Administrative Tribunal Act s 277 required the tribunal to give reasons for its decision which referred to the evidence upon which the findings were based. It has been said that where there is a right of appeal, the reasons must be sufficient to give effect to that right. If the basis for the decision is not apparent, the losing party is unable to identify error. Consequently, where one set of significant evidence is preferred to another, the trial judge should not only express his or her conclusions in that respect but set out sufficient findings to explain why they were arrived at: Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 443, Meagher J, and Mount Lawley Pty Ltd v West Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 282 - 283.

90 Moreover, it is essential that the reasons adequately disclose the intellectual processes that have resulted in the decision: Garret v Nicholson [1999] WASCA 32; (1999) 21 WAR 226 248 (Owen J). These comments, with appropriate modifications, are applicable to a final decision of the tribunal.

91 As there is no right of appeal in respect to factual issues, the essential obligation of the tribunal in respect to factual issues is to make factual findings and to identify the evidence upon which they are based. The intellectual reasoning of the tribunal is not as important as where there is a right of appeal on questions of fact.

92 The question as to whether there is a real argument that the reasons given by the tribunal are inadequate must be judged according to the particulars of the proposed ground of appeal as the decision on its face, being 33 pages long and dealing with the evidence and the submissions, is adequate.

93 The first particular is that the tribunal failed to make findings as to whether the taped conversations contradicted Ms Fan's oral evidence that the applicant offered to sell adverse information. The issue as to the existence of tapes of the conversations between the applicant and Ms Fan was an issue that was well alive in the hearing and dealt with by the tribunal.

94 The tribunal dealt with the issue of the tapes or dealt with Ms Fan's credibility [78], [87], [94], [97], [103], [110], [116] and [118]. Ms Fan's evidence was that she only taped some conversations. This was not disputed. There is nothing in the transcripts which could contradict Ms Fan's evidence in this regard. All the applicant could do was suggest that if conversation was not in the transcripts of the taped conversations, then it would not have been in other untaped conversations either.

95 In my view it is not arguable that the tribunal failed to make findings as to whether the taped conversations contradicted Ms Fan's oral evidence that the appellant offered to sell adverse information.

96 The second particular is that the tribunal failed to make findings as to what were the relevant interests of the applicant's clients and as to what information he knew would be adverse to such interests.

97 I have already dealt with this issue in respect to other proposed grounds of appeal and I will not repeat what I have said. In my view it is not arguable that the tribunal failed to make findings in this regard.

98 The third particular is that the tribunal failed to give reasons that explained the finding that Ms Fan's evidence was straightforward, clear and obviously true in the face of contradictory material in the tapes and Ms Fan's own concessions.

99 In the paragraphs I have referred to the tribunal referred to a number of matters which caused them to believe Ms Fan's evidence. These were:

(1) her evidence was given in a straightforward manner;

(2) her lack of memory about some matters was understandable due to the work she does;

(3) her evidence was to some extent corroborated by Mr Gibson's evidence;

(4) when she was reminded of matters she had forgotten, she was prepared to concede them;

(5) her evidence was clear as to how she was approached and what was said to her; and

(6) in the tribunal's view, she was obviously telling the truth.

100 The tribunal had to decide whether it believed Ms Fan or not. It clearly did. It gave reasons for that decision. Those reasons may not have persuaded a different fact-finder but I do not believe it could be said that it is arguable that the tribunal failed to give reasons for its decision in this regard.

101 The final particular of this ground of appeal is that the tribunal failed to explain its decision in the face of first, the tribunal's finding in reference 22A that Mrs Rinehart's father, Mr Hancock, had told the applicant to retrieve the will from his desk and secondly, the fact that disclosure of the information would have been in Mrs Rinehart's interests in that it answered the accusation published in a newspaper that Mrs Rinehart had conspired with Mr Schwab to get the will without her father's knowledge.

102 The tribunal made findings in these respects [95], [100] - [105] and [110] - [114]. The last mentioned paragraphs are particularly important. The tribunal judged the applicant's conduct by Professional Conduct Rules 7.1 and 7.5. It judged the applicant's conduct on the basis that he was required to give undivided fidelity to his client's interests unaffected by his own. It is not alleged that the tribunal made an error of law in finding that this was his duty.

103 The tribunal found that the applicant had obtained confidential information during the course of his retainer with the persons and company mentioned in the reference. The tribunal found that he obtained such confidential information relating to the break-in and also the issue of holding Mr Hancock's hand to some document. The tribunal also found that the applicant obtained confidential information relating to those persons and that company's business interests. The tribunal found that the applicant was prepared to release that information to the media for money. The tribunal found that this was a breach of the professional conduct rules. It is clear from the tribunal's finding that they did not accept that in making the offer to disclose this information he was doing it on instructions solely to benefit his client.

104 In my view, the tribunal in those circumstances was entitled to find that this was unprofessional conduct. The applicant does not challenge the reference to the Professional Conduct Rules, and as I have said, the duty of a practitioner to give undivided fidelity to his client's interests unaffected by his own. Consequently, in my view it is not arguable that the tribunal failed to explain its decision in the face of the matters particularised in the final particular to proposed ground 4. For these reasons, I would not give leave to appeal in respect to proposed ground 4 of appeal.

105 Proposed ground 5 is that there was no evidence on which the tribunal could conclude that the applicant offered or was able to sell to the press a story of the nature sought by Ms Fan. Alternatively, the reasoning was inadequate to explain the decision of the tribunal. In my view, this is a ground of appeal which raises a question of fact only. There was clearly evidence before the tribunal on these issues. The decision of the tribunal may not have been the only decision available on those facts. I am unconvinced that there was no evidence or insufficient evidence at law to enable the tribunal to make the conclusions it did.

106 The alternate basis of this ground is that the tribunal's reasoning was inadequate to explain its decision. Again, in my view there is no relevant error of law disclosed by the reasoning of the tribunal. Although inadequate reasoning if established would be an error of law, on the analysis of the tribunal's reasons that I have annunciated, in my view there is no arguable case that its reasoning was inadequate.

107 I now turn to reference 22D. I find this matter to raise arguable grounds of appeal. As such, I do not think that it is appropriate for me to go into detail as to the basis for my decision in this respect. Ultimately the merits of these grounds will have to be determined on appeal.

108 I would not be minded to give leave to appeal in respect to ground 6 because it reads as if it is asserting a broad proposition that a person found not guilty of contempt of court cannot be found to have acted unprofessionally in respect to the same conduct. Clearly, there will be cases where the impugned conduct may fall short of establishing a criminal offence, but may have yet to be sufficient to establish unprofessional conduct.

109 The appellant has not referred me to any authority which would support the view that proceedings between different parties in a different forum and for a different purpose bound the tribunal in respect to its findings of fact. The Full Court's decision certainly estopped the tribunal from finding that the appellant was guilty of contempt of court, but other than that the tribunal was under a duty to find the facts on the basis of the material before it.

110 As the respondent has submitted, the tribunal said [138] that it would be difficult for the tribunal to make findings of fact different from those made by the Full Court, and it said it did not do so. For these reasons I would not be minded to grant leave to appeal in respect to ground 6.

111 However, there does seem to me to be an issue as to whether the reasoning which led the Full Court to conclude that the appellants behaviour did not amount to contempt of court, when applied to the proceedings before the tribunal, meant that as a matter of law his conduct did not amount to unprofessional conduct either.

112 Once the tribunal identified the correct test for unprofessional conduct in respect to this reference, it was up to it to make findings of fact and then having regard to the test for unprofessional conduct, to decide whether the reference had been proved. In my view it is arguable that the tribunal did not identify the correct test. The tribunal did not articulate the standard interpretation of unprofessional conduct. In this respect I refer to the interpretation in Kyle v Legal Practitioners Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56, 71 and 72, where the court said:

The court has long accepted and applied, in this context, the understanding of the notion of unprofessional conduct which was expressed by the Full Court of the South Australian Supreme Court in Re a practitioner of the Supreme Court [1927] SASR 58. It was usefully summarised (at 3) by the Full Court as conduct that, would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence, or that, to a substantial degree, fell short of the standard of professional conduct observed or approved by members of the profession of good repute and competence. The first limb of this summary includes, but is not confined to, conduct which occurs in the course of legal practice. The other limb necessarily relates to conduct in the course of legal practice because of the reference to 'professional conduct'. While the words should not be taken as necessarily an exhaustive or codified statement, the essence of the notion of unprofessional conduct is usefully revealed in these decisions.

113 In the tribunal, the respondent relied upon Harrison v Schipp [1999] NSWCA 443 [27] as authority supporting its case that the applicant's behaviour in distributing the chronology amounted to unprofessional conduct. However, that case was based on quite different facts from this. I think it is arguable that it does not directly assist in the resolution of the case; although I make no finding in that respect.

114 In my opinion there is a real argument in respect to whether the tribunal erred in law, in failing to identify the correct test of unprofessional conduct. The tribunal did not refer to the test which I have quoted, neither did it directly attempt to apply the facts of this case to that test. It is therefore arguable that it failed to relate the evidence in this case to the interpretation that I have just referred to. I think that this issue has to be analysed in light of the Full Court's findings of fact, and the extent to which they provided the context in which the tribunal had to decide this reference.

115 These issues should be subject of leave to appeal. I am concerned, however, that grounds 7 and 8 do not encapsulate issues to which I have referred to. Despite this concern I am of the view that the issues can best be ventilated by giving the applicant leave to appeal on grounds 7 and 8 of the proposed grounds of appeal.

116 For these reasons, I would grant the applicant leave to appeal on grounds 7 and 8 of the 'Amended Minute of Proposed Substituted Appeal Grounds', filed 31 July 2007, and otherwise dismiss the application.