Court of Appeal (WA)|2008-09-26|Before: Wheeler JA

CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2008] WASCA 198 (26 September 2008)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2008] WASCA 198

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2007] WASC 220

Legal practitioners - Unprofessional conduct - Turns on own facts

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

Respondent : Legal Practitioners Complaints Committee

1 WHEELER JA: The background to this appeal is as follows. The appellant was employed by Hancock Prospecting Pty Ltd (HPPL) between 1992 and 1996. His duties included providing legal advice in relation to matters raised by Mr Lang Hancock, until his death in 1992, and thereafter, by Mrs Gina Rinehart. During the course of his engagement with HPPL, the appellant acquired confidential information relating to HPPL, Mr Hancock and Mrs Rinehart.

2 On 28 July 2003, the respondent referred four matters concerning the appellant to the disciplinary tribunal under the Legal Practitioners Act 1893 (WA), only one of which is relevant to this appeal. Pursuant to s 29A of that Act, the disciplinary tribunal had jurisdiction to make a finding that a legal practitioner had been guilty of unprofessional conduct. Each Reference alleged that the appellant had been guilty of such conduct. As a result of the coming into force of the State Administrative Tribunal Act 2004 (WA), and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) on 1 January 2005, the hearing of this matter ultimately continued before the State Administrative Tribunal which was, however, made up of the same three persons who had commenced to hear the Reference as the disciplinary tribunal.

3 The Reference in question in these proceedings is Reference 22C, which was that the appellant was 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.

4 The confidential information which the appellant was alleged to have acquired during the course of his employment included, but was said not to be limited to, information concerning legal proceedings then on foot between Mrs Rinehart or HPPL on the one hand, and Mrs Porteous, or interests associated with her, on the other. The tribunal considered that the allegation in that Reference was made out.

5 The appellant brought an application for leave to appeal the tribunal's decision. Proposed ground 4 of the appeal was relevantly in the following terms:

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;

...

(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.

...

6 The evidence upon which the tribunal primarily relied was that of Ms Fan, a journalist employed by Channel 7. She said she had known the appellant for many years. He had called her and said that Mrs Rinehart had "cut him loose" or deserted him, or withdrawn support in some way. Mrs Rinehart had, at that time, been suing Channel 7. The appellant said he could help Ms Fan with that litigation because he had some information and background which could "blow Gina [Rinehart] out of the water" (green AB 1). Some of the information concerned breaking into a drawer in order to obtain a Will. He offered to tell the story in exchange for money, because he was desperate for money. Ms Fan gave evidence that she had taped some conversations which she had had with the appellant, including the initial conversation, and that she had told the appellant that she would approach the Eastern States headquarters of Channel 7 in order to find out whether it was possible to pay for that story. Tapes made by Ms Fan had been given to the coroner, when their existence emerged during the course of proceedings inquiring into the death of Mr Hancock. The tribunal accepted Ms Fan's evidence.

7 Jenkins J refused leave to appeal in respect of proposed ground 4. Her Honour said in relation to this ground (Camp v Legal Practitioners Complaints Committee [2007] WASC 220):

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.

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.

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.

...

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.

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.

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. [93] - [95], [98] - [100]

8 The appellant appeals from the refusal of leave on the following ground:

Her Honour erred in law in refusing leave to appeal on proposed Ground 4 (before Her Honour) by -

(a) failing to take into account a relevant consideration, namely, that Ms Fan's evidence was contradicted by the transcript of the recorded conversations,

(b) failing to hold that there was no evidence (since Ms Fan had agreed that exhibit 1 was a transcript of the alleged conversations between her and the Appellant) capable of supporting the finding that the Appellant had, as alleged in Reference 22C offered "to divulge ... for an undisclosed fee, confidential information relating to LG Hancock, and/or Mrs Gina Rinehart and/or Hancock Prospecting Pty Ltd ... ", and

(c) failing to address the respective issues Her Reasons.

It is not necessary to set out the particulars of that ground.

9 The appellant can appeal only on a question of law (State Administrative Tribunal Act 2004 Part 5 s 105(2)). It is therefore necessary for him to establish two things. One is that Ms Fan's evidence was, indeed, contradicted by the transcripts of the recorded conversations. The second is that a "contradiction" of Ms Fan's oral evidence, by her recorded conversations, is a matter of such significance that in order to comply with its obligations to give adequate reasons, the tribunal was required to refer to the contradiction and to explain why that contradiction was not an obstacle to its acceptance of Ms Fan's evidence. It is not necessary to decide whether the second proposition is correct, since the first cannot be made out.

10 It is true that, as the appellant submits, the transcripts of the tape-recorded conversations do not, at any point, record the appellant offering to sell a story that could "blow Gina out of the water", or (as Ms Fan had said he had) requesting $1 million, or any other sum, for a story which would give confidential information about the appellant's clients. However, the absence of that material from the transcripts is not a "contradiction" of Ms Fan's evidence.

11 In the course of what follows, I am prepared to assume that the transcripts accurately reflect material contained on the tapes which were produced to the coroner's office. There was no evidence before the tribunal of how the transcripts were prepared, or by whom, or concerning whether the tapes were clearly audible so that a transcriber could be confident in the accuracy of the transcript. However, even assuming that the transcripts accurately reflect what was contained in the tapes, it is, in my view, clear, from the transcripts themselves and from the way in which Ms Fan dealt with the transcripts during the course of her evidence, that the absence of material from the transcripts was not inconsistent with the evidence which she gave about her manner of tape-recording the conversations.

12 As to the number of calls, it was put to Ms Fan in cross-examination that there had been as many as four phone calls and her answer was "At least. This went on for ages". Her best guess at the number of calls was "10 probably" (green AB 7). She had recorded at least two calls, and one meeting (green AB 12).

13 As to the first conversation, she was asked whether the first telephone call that was recorded was the very first phone call that she received, or whether it was a later one. She said, "The first one. Switched on probably half - like I said, 'I've got to get this down on tape', and I'd press the little button on my phone. That was the first phone call when he offered to give us the story with the details. I pressed the record button" (green AB 8). Ms Fan explained that that was the conversation in which he talked about a story which would "blow Gina out of the water" (green AB 8).

14 Unfortunately, the "probably half" referred to by Ms Fan was not further explored. However, it is clear that she was indicating that some conversation had occurred before she decided that it was necessary to record the call. Whether she switched the recording on after half a minute, half an hour, or half the conversation, to name but three possibilities, is not clear from her evidence.

15 Part-way through the course of Ms Fan's cross-examination, she was shown transcripts of the telephone conversations between herself and the appellant, apparently transcribed from the tapes which she had provided to the coroner's office. She was asked whether they contained what was discussed between herself and the appellant and she said, "Part of it, yes" (green AB 21). In relation to some transcripts - whether the whole of the transcripts contained in the appeal books, or only part thereof is not clear - Ms Fan said, "I said it's part of it. There's a lot more to it" (green AB 22). She was asked about the portion of a tape which refers to a break-in, and it was suggested to her that she was the first who raised that subject. Her reply, however, was, "I say now the break-in because I'm following on from a previous conversation he has had with me. This was not the - there's a lot missing here. There's bits and pieces" (green AB 23).

16 Turning to the transcripts themselves, they are plainly incomplete. The first document is headed in typescript "Tape 3". The first page and a half of that document appears to be an irrelevant conversation. On the second page, there appears the handwritten notation, "Tape 1". Importantly, whoever has transcribed the tape has there typed the heading "From here - break in tape". Under that heading, the transcript begins with the appellant speaking. There are no words of greeting; no "Hello", pleasantries or introductory chat. Rather, the transcript begins with the practitioner saying, "She was planning a relationship with me and she's a desperate woman and when our relationship turned in 1994 ... " (green AB 79). That is plainly not the beginning of the conversation.

17 Ms Fan's response is, "Okay so we don't talk about the relationship stuff then. Now the break-in? How illegal was it? I mean was it a break-in?" (green AB 79). That is the first reference to a "break-in", but it plainly refers to something that had been said before.

18 The next document which is headed "Tape 2", does appear to record the beginning of the conversation, with Ms Fan saying, "Hi Alan, how are you?" and the appellant responding, "Good". It ends with Ms Fan, some pages later, saying, "Okay, thanks, bye" and appears to contain a complete conversation.

19 The third document, headed "Tape 4", again does not appear to be an entire conversation. It opens with Ms Fan saying, "You changed?" It ends with goodbyes.

20 It was never squarely put to Ms Fan in cross-examination that the transcripts which became exhibit 1 covered the whole of the conversations during which she said the appellant had offered to tell the story in exchange for money.

21 The short answer to this appeal is that Ms Fan's evidence could not on any view be "contradicted" by the existence of transcripts of tape-recordings which do not appear to mention important matters about which she gave evidence. That is because the transcripts are themselves (as to two of them) plainly incomplete portions of longer conversations, with nothing to indicate how much of the conversation was not recorded. As to the first of the transcripts in which Ms Fan appears to seek further information about a "break-in", it tends to support Ms Fan's evidence that the appellant had raised the issue of an alleged break-in with her. Further, as Jenkins J noted, it was Ms Fan's evidence that there had been numerous conversations and that only some of them had been taped. There was therefore no conflict between Ms Fan's evidence and the material

contained in the transcripts, let alone a conflict of such significance that the tribunal was obliged, in order to give adequate reasons, to deal with it.

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

Practitioners Act 1893

Administrative Tribunal Act 2004

CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2008] WASCA 198 (26 September 2008)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (42 paragraphs)

CAMP -v- LEGAL PRACTITIONERS COMPLAINTS COMMITTEE [2008] WASCA 198 (26 September 2008)

Legislation Cited (4)