GOLDSMITH -v- LEGAL PROFESSION COMPLAINTS COMMITTEE (WA) [2022] WASCA 167 (14 December 2022)

1. In brief, the factual background is as follows. Mr Goldsmith engaged counsel to appear at an interlocutory hearing in 2016. After the interlocutory matters were dismissed, counsel sought payment pursuant to an alleged costs agreement. Mr Goldsmith declined to pay. Counsel made a complaint to the LPCC and sought recovery of his costs in the Magistrates Court (Magistrates Court Proceedings). Counsel's complaint ultimately formed the basis of the proceedings brought by the LPCC against Mr Goldsmith in the Tribunal. The Magistrates Court Proceedings were settled by consent and Mr Goldsmith paid counsel's costs.
2. Mr Goldsmith, for his part, had complained to WABA, and made several complaints to the LPCC about counsel. The WABA informed Mr Goldsmith that his complaints were outside of the WABA's constitution and they did not progress. The LPCC dismissed most of Mr Goldsmith's complaints, with one exception, on which it deferred its decision until after the Tribunal delivered the primary decision. Following delivery of the primary decision, the LPCC advised Mr Goldsmith that it had dismissed his remaining complaint. In the process of advising Mr Goldsmith that it had dismissed his complaints, the LPCC referred to the Health Report and the Draft Submissions.

1. In or about August 2016, Ms Aikman instructed Mr Goldsmith in relation to a proposed claim against a strata company.[2]
2. Mr Goldsmith had already acted for Ms Aikman in defamation proceedings, which were listed for a five‑day trial in November 2016.[3]

1. On 29 October 2016, Mr Goldsmith contacted counsel to ask whether he could appear at a hearing listed for two hours on 3 November 2016.[4]
2. Counsel and Mr Goldsmith gave different accounts of what happened on 29 October 2016.[5]
3. In effect, the Tribunal found that, on 29 October 2016:
   1. At 5.10 am, Mr Goldsmith emailed counsel.[6]
   2. At 8.08 am, counsel replied by email to Mr Goldsmith.[7]
   3. Counsel and Mr Goldsmith spoke via the telephone. The content of this telephone call was a matter of dispute. Mr Goldsmith contended that during the conversation, counsel agreed that no payment would fall due unless and until either Ms Aikman paid the fees to Mr Goldsmith or Mr Goldsmith exercised his rights under a caveat granted by Ms Aikman over a property she owned. Counsel said otherwise.[8] The Tribunal accepted counsel's version of events.
   4. At 9.38 am and 9.42 am, Mr Goldsmith emailed counsel attaching documents including pleadings, chambers summons, affidavits, and submissions. These documents totalled approximately 430 pages.[9]

1. On 31 October 2016, counsel and Mr Goldsmith negotiated counsel's fee by email. The emails did not refer to any agreement to defer counsel's fees or for any security arrangement involving Ms Aikman's property.[10]

1. From 1 November 2016, Mr Goldsmith and counsel prepared for Ms Aikman's two interlocutory applications.[11] The hearing took place on 3 November 2016 and 9 November 2016.[12]
2. On 19 November 2016, Ms Aikman's applications were dismissed.[13]

Counsel's requests for payment, complaint to the LPCC and commencement of proceedings

1. Between 21 November 2016 and 27 February 2017, counsel sought payment and Mr Goldsmith declined to pay.[14]
2. On 8 March 2017, counsel made a written complaint to the LPCC.[15]
3. On 17 March 2017, counsel commenced proceedings to recover his fees in the Magistrates Court.[16]

1. On 18 March 2017, Mr Goldsmith advised counsel and junior counsel that he was in the course of making complaints to the WABA.[17]
2. On 7 April 2017, Mr Goldsmith made his complaint to the WABA.[18]
3. On 9 May 2017, the WABA advised that Mr Goldsmith's complaint was outside the scope of the WABA's constitution and that no further action could be taken.[19]

1. On 24 May 2017, Mr Goldsmith filed his defence in the Magistrates Court proceedings. According to the Tribunal, this pleading was the first time Mr Goldsmith asserted that his contract with counsel included express terms or conditions contained in the telephone conversation of 29 October 2016. Mr Goldsmith pleaded:[20]

The defendant would be liable for payment of the bill rendered by the claimant [counsel] because he had registered a caveat against the title to a properly owned by Susan Aikman, the defendant's client, and with Ms Aikman's consent, and for whom legal services were to be provided by the claimant, such that the defendant had a form of security for payment of the claimant's fees and the defendant's own costs.

The bills rendered by the claimant would be payable, if Ms Aikman did not pay them sooner, upon the exercise by the defendant of his rights specifically pursuant to the registration of the caveat

1. On 21 August 2017, counsel and Mr Goldsmith attended a pre‑trial conference for the Magistrates Court proceedings, with Mr Goldsmith attending via telephone. The parties considered an agreement whereby Mr Goldsmith would pay counsel's fees in three instalments, following which the parties would take steps to dismiss the proceedings with no order as to costs. Mr Goldsmith terminated the telephone call, and when the registrar called him back, Mr Goldsmith said he was not prepared to sign them without an additional term that counsel withdraw his LPCC complaint. This, according to the Tribunal, was the first time the term had been raised.[21]
2. On 23 August 2017, Mr Goldsmith emailed the signed orders without the term requiring counsel to withdraw his LPCC complaint. Mr Goldsmith complied with the orders he signed. Nevertheless, Mr Goldsmith maintained that counsel ought to agree to withdraw his complaint to the LPCC.[22]

1. On 10 February 2020, the LPCC filed an application in the Tribunal seeking a finding that Mr Goldsmith had engaged in professional misconduct and consequential orders.

Mr Goldsmith's complaints to the LPCC about counsel

1. On 16 June 2020, Mr Goldsmith made a complaint containing eight complaints to the LPCC against counsel (First Complaint).[23]
2. On 11 December 2020, Mr Goldsmith made another complaint containing four further complaints to the LPCC against counsel (Second Complaint).[24]
3. In his affidavit filed 19 October 2022, Mr Goldsmith deposed that the LPCC dismissed all of the complaints prior to the hearing by the Tribunal of the LPCC's proceedings against him, with one exception. The exception was the third ground in the Second Complaint, being the 11th complaint overall (Eleventh Complaint). The outstanding complaint was that counsel breached r 50(3)(a) of the Legal Professional Conduct Rules 2010 (WA) (LPCR) by failing to respond to a letter from Ms Rebecca Rorrison, an employee at the LPCC, dated 4 November 2020 (4 November 2020 letter) seeking a response by counsel to Mr Goldsmith's earlier complaints.[25]
4. Mr Goldsmith's affidavit also referred to a letter dated 26 July 2022 from Mr Colella of the Legal Practice Board to Mr Goldsmith (26 July 2022 Letter).[26] The 26 July 2022 Letter records the following events between November 2020 and July 2021:
   1. By the 4 November 2020 letter, Ms Rorrison requested counsel to provide a response to the First Complaint by 25 November 2020, which was later extended to 4 December 2020.[27]
   2. On 25 January 2021, counsel sought an extension of time to respond until after the Tribunal proceedings.[28]
   3. Counsel was provided with an extension of time, but not until the Tribunal hearings. He did not respond within this period.[29]
   4. On 24 February 2021, Ms Rorrison requested that counsel respond to Mr Goldsmith's complaints on or before 8 March 2021.[30]
   5. Counsel did not respond by 8 March 2021.[31]
   6. On 20 April 2021, the LPCC resolved to direct Mr Colella to issue counsel a summons under 520(2) of the Legal Profession Act 2008 (WA).[32]
   7. On 22 April 2021, Mr Colella spoke to counsel to advise the LPCC would issue a summons to counsel. Counsel requested that Mr Colella not issue the summons until after counsel had provided written submissions by 23 April 2021. Mr Colella conferred with the Deputy Chair of the LPCC, and agreed to counsel's proposal.[33]
   8. Counsel then requested a further extension until 3 May 2021. The LPCC granted this request.[34]
   9. On 3 May 2021, counsel attempted to provide a 'series of emails' as a response to the request for submissions. Due to technical issues, some of the emails were not received.[35]
   10. On 4 May 2021, the LPCC issued a summons to counsel requiring him to respond to Mr Goldsmith's complaint by 12 May 2021. This deadline was later varied to 9 June 2021.[36]
   11. On 9 June 2021, counsel's lawyer acknowledged counsel had not complied with the summons. Counsel's lawyer also said he 'did not appreciate the extent of the difficulty' being experienced by counsel in relation to completing his submissions.[37]
   12. On 30 June 2021, counsel's lawyer undertook to provide counsel's submissions by 2 July 2021.[38]
   13. As of 22 July 2021, counsel had not complied with this undertaking.[39]
5. Mr Goldsmith, in his affidavit, drew particular attention to the following passages of the 26 July 2022 Letter:[40]

1. On 16 February 2021 [sic - 2022], which was after the First Complaint was dismissed, the Committee received an email from Mr Macknay attaching [counsel's] 65 page draft submissions (Draft Submissions) and a five page health report dated 9 February 2021 [sic - 2022] (Health Report[41]). The Draft Submissions did not address the Eleventh Ground.
2. The Health Report explains that [counsel], at relevant times, was experiencing a health condition that materially impacted his ability to comply with the:
   1. First Request;
   2. Second Request;
   3. Summons; and
   4. Undertaking.

1. [Counsel] appears to admit that on a number of occasions he has failed to provide a substantive response to the Committee, not only as complained by Mr Goldsmith in the First Complaint, but also in relation to subsequent requests, namely:

1. in his letter to the Committee dated 9 June 2021, Mr Macknay acknowledged that '[counsel] has not been able to comply with the summons dated 4 May 2021, as varied on 21 May 2021, as his written submissions have not been completed'; and

1. in his email to the Committee dated 2 July 2021, Mr Macknay confirmed that he has 'not received [counsel's] written submissions as referred to in his Undertaking'.

1. As noted earlier, the disciplinary proceedings were heard in March 2022. The primary decision was published on 23 May 2022.
2. The Tribunal said that the LPCC's referral included five grounds of professional misconduct. In effect, these were:[42]
   1. Mr Goldsmith engaged counsel then failed to pay him.
   2. Mr Goldsmith complained to the WABA without reasonable basis and solely as a response to counsel's own complaints to the LPCC and proceedings in the Magistrate's Court.
   3. Mr Goldsmith knowingly made false or misleading statements to the Magistrates Court in relation to the terms of the costs agreement between Mr Goldsmith and counsel.
   4. Mr Goldsmith sought to engage counsel for the client in a new matter, despite the ongoing dispute between them.
   5. Mr Goldsmith said he would not sign consent orders in relation to the Magistrates Court Proceedings unless counsel agreed to withdraw the LPCC Complaint.
3. The Tribunal summarised the primary factual disputes as:[43]

(1) what was said or agreed in the conversation between Mr Goldsmith and [counsel] on 29 October 2016;

(2) what did Mr Goldsmith believe about what had been agreed;

(3) did Mr Goldsmith believe the substance of the complaints that he made against [counsel]; and

(4) did Mr Goldsmith make those complaints solely in response to the complaint by [counsel] and the proceedings to recover fees.

1. In addressing ground 1, the Tribunal said the dispute turned on what was said in the 29 October 2016 Phone Call. The Tribunal noted that in the context of ground 1, it needed to make both objective and subjective findings. In particular, whether Mr Goldsmith subjectively believed that he had reached an agreement with counsel was relevant to whether he had engaged in professional misconduct.[44]
2. The Tribunal acknowledged that counsel's recollection was not always certain, but ultimately considered that in all the circumstances, it did not doubt that counsel's evidence was truthful:[45]

[153] In both his cross-examination of [counsel] and in his submissions, Mr Goldsmith strongly challenged the credibility of [counsel] and it is true that there were areas in which [counsel] recollection of the conversation on 29 October 2016 was not certain - for example, he could not recall saying that he would send a costs agreement, although it was his normal practice to do so. But, when all of the circumstances are considered, the Tribunal does not doubt that his evidence was truthful. There are several reasons for reaching that conclusion.

[154] First, and importantly, Mr Goldsmith accepted that he told [counsel] that he would pay him, 'therefore denoting [his] commitment to personally paying [counsel]'. While he said in his witness statement that it was a 'ludicrous proposition' that he would have agreed to personally pay [counsel] an unspecified or non-defined amount, and maintained that argument in his final submissions, that is what he did. Mr Goldsmith could not explain how the 'caveat agreement' could possibly affect the quantum of his liability in addition to the question as to when payment was due.

[155] Second, Mr Goldsmith received the costs agreement forwarded by [counsel] without comment, despite his claim that 'the caveat issue was front and centre of my mind' when he spoke to [counsel].

[156] Third, Mr Goldsmith forwarded the costs agreement to Ms Aikman, asking her authority to sign it, but not referring to the absence of any agreement to defer liability for fees.

[157] Fourth, [counsel's] conduct in sending invoices and requesting payment, and his emails to Mr Goldsmith, were consistent with there being no collateral agreement.

[158] Fifth, Mr Goldsmith did not raise the agreement he now relies on in response to [counsel's] repeated requests for his fees to be paid. At first he did not respond at all. When he did eventually reply, he made no mention of any agreement to defer payment. Two particular occasions stand out: Mr Goldsmith's email of 9 February 2017, which he said was written when he was agitated and provoked by [counsel] asking for payment; and his reply to the email of 10 February 2017 in which [counsel] set out his account of what had been said on 29 October 2016.

[159] Sixth, when Mr Goldsmith complained to the WABA on 7 April 2017, one of his complaints was that [counsel] had said he would cause WABA to circulate his name as a practitioner who has not met his obligations to counsel. Despite that specific complaint, and his statement that he prided himself on his practice of promptly paying all counsel 'all fees to which they were due', Mr Goldsmith said nothing to the effect that [counsel] was demanding fees that were not yet due.

[160] Seventh, Mr Goldsmith first referred to the oral agreement in his statement of defence in the Magistrates Court proceedings on 25 May 2017, about six months after [counsel's] first invoice. There is no evidence of any event or other matter since that first invoice which might have changed Mr Goldsmith's belief or understanding about what had been said when he first spoke to [counsel].

[161] Mr Goldsmith's conduct, at least from November 2016 when [counsel] first sent an invoice, is inconsistent with what he now says occurred. We do not accept Mr Goldsmith's explanation as to why he did not refer to the 'caveat agreement' earlier. Mr Goldsmith said that he initially did not want to disturb [counsel] while he was preparing the case, he considered [counsel's] reference in an email to Ms Aikman's 'cost constraints' to be an acknowledgement of the conversation about the caveat conditions, and he was very busy himself.

[162] None of those reasons sufficiently explains why he would not then refer to or attempt in some way to record the agreement, if only in an email, particularly when he did engage [counsel] in an email exchange on 31 October 2016 as to his hourly rate. Neither do those reasons explain why he did not later refer to the purported agreement when [counsel] demanded his fees. The suggestion that it would have been counter-productive to raise the agreement, but not counter-productive to make serious allegations about [counsel's] ability and conduct, is not believable. (emphasis added) (citations omitted)

1. The Tribunal also referred to two other reasons to reject Mr Goldsmith's evidence:[46]

[164] First, his evidence regarding the security he had taken to ensure the payment of fees by Ms Aiken was unsatisfactory in several respects.

[165] In his defence in the Magistrates Court, Mr Goldsmith pleaded his rights pursuant to the registration of the caveat. In his evidence inchief, Mr Goldsmith said that Ms Aikman offered him a caveat against one of her properties. When asked if the caveat was lodged, Mr Goldsmith said:

'Yes, it was. It was registered, and if I can summarise it in terms of the language that was used, I said to Susan, "I understand that you've got cash flow problems." Her business was imploding. I said, "Susan, I know you've got cash flow problems. [Counsel] and I will run this for you, but I want a caveat. "She agreed, and, yes, I did obtain one, and, yes, I registered it".'

[166] It was only in cross-examination, two days later, that Mr Goldsmith said there was 'a document that was signed by Ms Aikman acknowledging that she was granting to me an equitable interest in the land and also acknowledging that I had advised her that she should seek independent legal advice on it'. No document was produced. It is surprising that Mr Goldsmith, an experienced solicitor, did not initially refer to the instrument granting the interest. It was not credible that, in relation to fees and disbursements that would total several thousand dollars, Mr Goldsmith could not say whether the security had been given by a formal document or in correspondence, and that he appeared to have taken no steps to ascertain the available equity in Ms Aikman's property.

[167] Second, Mr Goldsmith gave unsatisfactory evidence with regard to the arrangements for the payment of junior counsel. He did not say he had an arrangement to defer payment of junior counsel's fees, which might be expected in circumstances where, he says, he had such an agreement with counsel acting in the defamation proceedings which was 'front and centre' of his mind. He had no recollection of receiving a costs agreement from junior counsel. He initially said that he had never received an invoice, and that junior counsel had 'never pursued payment whether by way of correspondence or through legal process or through any other process'. He later conceded that evidence was incorrect; he then said that junior counsel had sent an invoice, but that he had not been paid.

[168] The dealings between Mr Goldsmith and junior counsel are tangential to the main issues before the Tribunal. But the unsatisfactory nature of his evidence regarding that matter bears on whether his evidence about arrangements for the payment of fees can be accepted more generally. (citations omitted)

1. By way of conclusion, the Tribunal found ground 1 established, and said:[47]

When all of those matters are taken into account, we are satisfied that Mr Goldsmith agreed to pay [counsel's] fees, that there was no agreement to defer his liability, and, critically, that Mr Goldsmith did not believe that there was. We make that finding taking into account the seriousness of the allegations made against Mr Goldsmith, and the consequences of a finding of misconduct. But the circumstances, taken together, clearly establish the allegations in Ground 1.

Tribunal's conclusion in relation to the other grounds

1. In relation to ground 2, the Tribunal found that, when he complained to the WABA, Mr Goldsmith did not believe that counsel had agreed to defer payment. Rather, the complaint was, in effect, a retaliation. The Tribunal found that using the WABA complaint as 'leverage' was professional misconduct.[48]
2. In relation to ground 3, the Tribunal found Mr Goldsmith made knowingly false statements to the Magistrates Court and that this amounted to professional misconduct.[49]
3. In relation to ground 4, the Tribunal found that counsel and Mr Goldsmith's relationship was rancorous and that Mr Goldsmith ought not to have offered the brief to counsel. By seeking to brief counsel with whom he could not work cooperatively, Mr Goldsmith had not engaged in professional misconduct, but had engaged in unsatisfactory professional conduct.[50]
4. In relation to ground 5, the Tribunal noted that other cases have held that an offer of settlement, conditional on withdrawal of an LPCC complaint is professional misconduct. This case was not distinguishable.[51]

1. On 20 May 2022, the Tribunal made the following orders:
   1. Pursuant to section 438(1) of the Legal Profession Act 2008 (WA), Barrie Goldsmith (the practitioner) has engaged in professional misconduct, in that:

(a) between on or about 21 December 2016 and on or about 31 August 2017, the practitioner failed to pay any or all of the fees owing to [counsel] pursuant to a costs agreement entered into on 31 October 2016;
>
> (b) between on or about 7 April 2017 and on or about 9 May 2017, the practitioner made and maintained a complaint to the West Australian Bar Association against [counsel] without any reasonable basis and solely in response to [counsel's] complaint to the applicant about the practitioner's failure to pay his fees and [counsel's] commencement of legal proceedings in the Magistrates' Court to recover his fees;
>
> (c) on or about 24 May 2017, the practitioner prepared and filed a defence to the claim for his fees brought by [counsel] in the Magistrates' Court which contained statements which the practitioner knew to be untrue; and
>
> (d) between on or about 21 August 2017 and 23 August 2017, in negotiating a settlement to the Magistrates' Court proceedings, the practitioner sought to include in the agreed terms that [counsel] would withdraw his complaint to the applicant about the practitioner.

2. Pursuant to section 438(1) of the Legal Profession Act, the practitioner has engaged in unsatisfactory professional conduct in that on or about 17 July 2017 the practitioner invited [counsel] to accept instructions in circumstances in which their relationship lacked the necessary mutual trust and confidence. 3. The matter is listed for a directions hearing at 2pm on 26 May 2022 at 565 Hay Street, Perth, Western Australia.

1. On 14 June 2022, Mr Goldsmith filed an appeal notice against the Tribunal's orders of 20 May 2022.
2. On 18 July 2022, Mr Goldsmith filed an appellant's case. Mr Goldsmith's grounds of appeal are, in general terms, to the following effect:
   1. The Tribunal erred in law in failing to provide adequate reasons for its conclusions at [175] in respect of ground 1 of the disciplinary proceedings; at [205] in respect of ground 2 of the disciplinary proceedings; at [211] in respect of ground 3 of the disciplinary proceedings; at [227] in respect of ground 4 of the disciplinary proceedings and at [240 ‑ [242] in respect of ground 5 of the disciplinary proceedings.
   2. The Tribunal erred in law when determining each of the LPCC's first, second, third and fifth grounds in the disciplinary proceedings by failing to apply the correct test to determine whether Mr Goldsmith's conduct constituted professional misconduct.
   3. The Tribunal erred in law by denying Mr Goldsmith procedural fairness, or by failing to deal with this case, by failing to respond to, or to take into account, Mr Goldsmith's substantial, clearly‑articulated arguments in relation to each ground in the disciplinary proceedings.
   4. The Tribunal erred in law when determining ground 1 of the disciplinary proceedings by determining allegations adverse to him which were not pleaded or referred to the Tribunal by the LPCC, and by making a finding of professional misconduct on a basis other than that alleged in the first ground of the disciplinary proceedings. The Tribunal thereby exceeded its jurisdiction, denied Mr Goldsmith procedural fairness, and/or identified the wrong issue and asked itself the wrong question.
   5. The Tribunal erred in law in finding that Mr Goldsmith's conduct in respect of the first ground alleged by the LPCC in the disciplinary proceedings constituted professional misconduct in that it was not open to the Tribunal to find that the alleged conduct constituted professional misconduct.
   6. The Tribunal erred in law when determining the second ground alleged by the LPCC in the disciplinary proceedings by making a finding of professional misconduct on a basis other than that alleged in the second ground, and thereby exceeded its jurisdiction, denied Mr Goldsmith procedural fairness, and/or alternatively, identified the wrong issue and asked itself the wrong question.
   7. The Tribunal erred in law in finding that Mr Goldsmith had engaged in professional misconduct as alleged in ground 2 of the disciplinary proceedings, in that the conduct which was alleged in that ground and which was the subject of the Tribunal's findings did not amount to professional misconduct.
   8. The Tribunal erred in law in failing to ask itself the correct question in respect of ground 2 of the disciplinary proceedings.
   9. The Tribunal erred in law in making findings that Mr Goldsmith was dishonest.
   10. The Tribunal erred in law in finding that Mr Goldsmith was guilty of unsatisfactory professional misconduct in respect of the fourth ground alleged in the disciplinary proceedings in that it made the finding on a basis upon which the LPCC did not rely. It thereby exceeded its jurisdiction, denied Mr Goldsmith procedural fairness, and/or asked itself the wrong question.
   11. The Tribunal erred in law in finding that Mr Goldsmith's conduct in respect of ground 4 of the disciplinary proceedings constituted unsatisfactory professional misconduct in that it was not open to the Tribunal to find that the alleged conduct constituted such conduct.
   12. The Tribunal erred in law in finding (at [240] ‑ [242]) that Mr Goldsmith's conduct as alleged and found in relation to the fifth ground in the disciplinary proceedings, constituted professional misconduct.
   13. The Tribunal erred in law in finding grounds 3 and 5 in the disciplinary proceedings to be established (at [211] and [240] ‑ [242] respectively) where it had not made findings as to all the material facts alleged in each ground.

1. Mr Goldsmith's application filed 19 October 2022 sought orders in the following terms:

(1) An order pursuant to rule 42(2)(h) and, or alternatively, rule 42(2)(kb)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), requiring the respondent to disclose to the applicant:

[Firstly,] the five-page health report dated 21 February 2022 concerning [counsel], which is referred to in the letter from the Legal Practice Board of Western Australia to the applicant dated 26 July 2022 (the Health Report);

[Secondly,] the submissions of [counsel] received by the respondent on 16 February 2022 (the Submissions);

[Thirdly,] other documents referring to [counsel's] health condition.

(2) In the alternative to (1) above, an order pursuant to Order 26A, rule 4 of the Rules of the Supreme Court 1971 (WA), read with rule 5 of the Supreme Court (Court of Appeal) Rules 2005 (WA), requiring the respondent to give discovery of the documents referred to in (1) above.

(3) After the disclosure or production of the documents referred to in (1) above (or any of them), leave, pursuant to rule 42A(b) and, or alternatively, rule 43(2)(d) of the Supreme Court (Court of Appeal) Rules 2005 (WA) to amend the Appellant's Grounds of Appeal, which were filed on 18 July 2022 as part of the Appellant's case; and ...

1. In his affidavit of 19 October 2022, Mr Goldsmith deposed, in effect, that:
   1. On 26 July 2022, the Legal Practice Board advised Mr Goldsmith that it had determined not to pursue Mr Goldsmith's Eleventh Complaint by the 26 July 2022 Letter.[52]
   2. Neither Mr Goldsmith, nor the Tribunal, were aware of the existence of the Health Report or of Draft Submissions during the hearing in March.[53]
   3. Mr Goldsmith only became aware of the Health Report and Draft Submissions on 26 July 2022 after filing his appeal notice and appellant's case.[54]
   4. If Mr Goldsmith had known of the Health Report and Draft Submissions, he would have had the opportunity in the disciplinary proceedings to:[55]

(a) tender the two documents;
>
> (b) cross examine counsel on relevant matters; and
>
> (c) make submissions about credibility in relation to the documents.

5. Mr Goldsmith seeks orders so that he may decide whether to pursue an application to amend his grounds of appeal so as to include a new ground of appeal, alleging that the Tribunal denied him procedural fairness, or that the proceedings before the Tribunal constituted an abuse of process, on the basis that the LPCC did not disclose to Mr Goldsmith relevant material, and that the Tribunal did not ensure that all relevant material was disclosed to it, in accordance with its obligations under s 32(1) and s 32(7)(a) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).[56]

Mr Goldsmith's submissions in support of application

1. Mr Goldsmith submitted, in effect, that:[57]
   1. The nature of Mr Goldsmith and counsel's 29 October 2016 Phone Call was a critical factual dispute before the Tribunal.
   2. In particular, there was a factual dispute as to (1) the terms of the payment, (2) whether Mr Goldsmith mentioned that he held a caveat over Ms Aikman's property, and (3) whether there was an agreement to defer counsel's payment until after this security was realised.
   3. The material sought in the application relates to a health condition sufficiently debilitating that the regulator accepted that it impaired counsel's ability to comply with his professional obligations to the regulator.
   4. This material sought in the application could cast doubt on counsel's ability to recall details, including of the telephone call on 29 October 2016.
   5. The regulator failed to disclose this information. This was both a breach of its duties as a civil prosecutor and a failure to provide procedural fairness.
   6. It is not necessary for the Tribunal to have perpetrated a breach of procedural fairness to be infected by the regulator's breach of procedural fairness.
   7. The material sought is therefore relevant to potential grounds of review, namely (1) breach of procedural fairness, (2) failure to comply with s 32(1) and s 32(7)(a) of the SAT Act, and (3) failing to exercise jurisdiction.
2. Mr Goldsmith submitted that a regulator has a duty to disclose relevant information. Reference was made to cases discussing similar obligations imposed on regulators in disciplinary proceedings and on prosecutors in criminal proceedings.[58] Mr Goldsmith referred to Legal Services Commissioner v Adamakis[59] and Towie v Medical Practitioners' Board (Vic).[60] Mr Goldsmith placed particular emphasis on AB v Law Society of NSW.[61]
3. Mr Goldsmith referred to several cases to support the proposition that it is not necessary for the Tribunal to have committed a breach of procedural fairness itself to be infected by a breach of procedural fairness by the regulator. Reference was made to Nobarani v Mariconte;[62] Minister for Immigration and Multicultural Affairs v Bhardwahj[63] and Minister for Immigration and Border Protection v SZMTA.[64]

LPCC's submissions in opposition to Mr Goldsmith's application

1. The LPCC accepted that counsel's credibility was a key issue and that documents which bore on counsel's credibility ought, generally, to be disclosed.[65]
2. The LPCC contended, however, that the documents sought by Mr Goldsmith 'could not, in fact, be helpful to the appellant in relation to the credibility of [counsel]'. The LPCC also submitted that there was substantial documentary evidence on which the Tribunal made its findings, and that this was not simply a 'word against word' context.[66]
3. In relation to the Health Report, the LPCC submitted:[67]
   1. The Health Report identifies a mental condition suffered by counsel, and the consequences of the condition.
   2. The Health Report does not say the condition had any effect on counsel's ability to concentrate, or his memory, or any effect that could reasonably be regarded as adversely affecting his credibility.
   3. The Health Report says that counsel's condition has responded to medication and that he has fully recovered, such that the author had no reservations about counsel's ability to carry out the duties of his practice.
   4. Therefore, the Health Report is not relevant to the issues identified by Mr Goldsmith.
4. In relation to the Draft Submissions, the LPCC submitted that these documents make no direct reference to the Health Report or to counsel's mental health condition, and are therefore irrelevant.[68]
5. In relation to 'other documents referring to [counsel's] health condition', the LPCC submitted, in effect that (1) the scope of this class of document is vague, and (2) the LPCC has some documents which refer to the Health Report, but they are 'superfluous ... and do not provide any information about [counsel's] health condition other than the fact of its existence'.[69]
6. The LPCC also submitted that Mr Goldsmith's submissions misconstrued the statutory context. In effect, the LPCC submitted:
   1. In relation to r 43(2)(h) and r 43(2)(kb)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), the power to make the orders sought by Mr Goldsmith is subject to the condition that the order 'must be "appropriate for the due and effective administration of justice"'.[70]
   2. Order 26A r 4 of the Rules of the Supreme Court 1971 (WA), read with r 5 of the Court of Appeal Rules, applies to non-party discovery, whereas this action seeks discovery from a party to the appeal. Also, it has been held that O 20A r 5, which permits discovery of documents that relate to any question in the action, does not permit discovery of documents that go exclusively to credit.[71] Reference was made to Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc[72] and Agnew v Prisoners Review Board.[73]
   3. Section 32(1) and s 32(7)(a) of the SAT Act must be read in conjunction with s 34(5) and s 34(6) of the SAT Act.[74] Section 32(7)(a) of the SAT Act is only applicable where material is relevant to enable the Tribunal to determine all of the relevant facts in issue.[75]
7. The LPCC also submitted that:[76]
   1. It accepted, in general terms, the legal propositions advanced by Mr Goldsmith, including that there will usually be a breach of procedural fairness where a regulator fails to provide information to the practitioner relevant to the regulator's decision. In that regard, it also referred to a decision of Pritchard J in Veterinary Surgeons' Board of Western Australia v Hall.[77]
   2. Where, however, a document contains personal information about a witness' mental health, it should not be provided simply because it might be inferred in the abstract that it may impact on that witness' credit. In these circumstances, the Health Report is not sufficiently relevant to the witness' credit.
   3. Accordingly, cases such as Hall and AB can be distinguished because the documents sought in the application are not 'are not, on any sensible reading, relevant to the issues identified by [Mr Goldsmith]'.
8. By way of conclusion, in its written submissions, the LPCC submitted:
9. Procedural fairness is essentially a practical concept, designed to avoid practical injustice to a party. Whether or not there has been a breach of procedural fairness 'will will [sic] depend critically upon the statutory framework within which the relevant power falls to be exercised, and the facts and circumstances of the particular case'.[78]
10. Having regard to the facts and circumstances of this case, and the contents of the subject documents, the documents are not relevant, because they cannot, in fact, 'rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding'.[79] The appellant has not been denied procedural fairness by not being given them, and his application for them should be dismissed with costs.
11. In the course of argument in oral submissions, the LPCC also offered to provide the Health Report to this court for inspection in order to determine the application without disclosure of the document to Mr Goldsmith.

1. Order 26A r 4 has no application as it applies to an order for disclosure against a potential party. The LPCC is not a potential party, but is, rather, the respondent to this appeal.
2. Nevertheless, under r 43(2)(kb)(i), this court has power to make any order that is appropriate for the due and effective administration of justice in connection with the appeal.
3. The evidence indicates that at a time in early 2022, shortly before the hearing of the disciplinary proceedings in which the credibility and reliability of the parties' witnesses would be in serious contest, the LPCC obtained the Health Report concerning the health of counsel. It is common ground that the Health Report related to counsel's mental health. It also appears that the Health Report was provided by or on behalf of counsel in order to excuse his failure to comply with numerous directions by the LPCC that he respond to Mr Goldsmith's complaints.
4. The LPCC, in its written submissions, described what it says to be the contents of the Health Report. There was no affidavit to that effect, and no other evidence of the contents of the report. As the LPCC, in effect, accepted in oral submissions, the LPCC's description of the Health Report in its written submissions could not effectively determine the outcome of the application.
5. Many of the LPCC's submissions concerned the ultimate question, which might be raised by an amended ground of appeal, as to whether the appellant was denied procedural fairness in the disciplinary proceedings by reason of not having access to the Health Report. However, we were not concerned with the final determination of that question at this stage. Rather, the question at this stage appeared to us to be whether the material before the court indicates a plausible basis for contending that the failure to provide the Health Report might have constituted a failure to accord procedural fairness. That question is asked for the purpose of determining whether it is appropriate for the due administration of justice to require that the Health Report be disclosed to the appellant so that he can consider whether to advance a ground of appeal to that effect.
6. In addressing that question, it is relevant to note that the LPCC accepted that, in a case where a regulator such as the LPCC fails to provide information to a practitioner that is relevant to matters that may affect the regulator's decision about the practitioner, then there will (or at least may) be a breach of procedural fairness.[80] The LPCC also accepted that if the Health Report could be relevant to counsel's credibility, in particular whether his recollection of the 29 October 2016 Phone Call was accurate and reliable, then the public interest would generally favour its disclosure under s 34(6) of the SAT Act. The LPCC accepted that this court is not bound by s 34(6), which prevents the Tribunal from directing a party to produce a document it considers contains protected matter to another party. However, it contended that similar questions inform the exercise of this court's discretion under r 43(2)(kb)(i) of the Court of Appeal Rules.[81]
7. In our view, the relative contemporaneity of the Health Report with the hearing of the disciplinary proceedings, the subject matter of the Health Report - counsel's medical condition - and the evidence referred to in [28] ‑ [30] above, were sufficient to disclose a plausible basis for contending that the Health Report may have been relevant to the credibility or reliability of counsel's evidence. The LPCC accepted that counsel's credibility was a key issue, and that documents which bore on counsel's credibility ought, generally, to be disclosed. It was unnecessary for this court to see the document to reach that conclusion on the evidence. We were not persuaded that it was appropriate that this court should form a concluded view itself, without the benefit of informed argument from the parties, that the Health Report was not arguably relevant to the question of a fair trial of the disciplinary proceedings.
8. It was our opinion that it is in the interests of justice for the Health Report to be disclosed to Mr Goldsmith for the purpose for which he sought it, namely to consider an application to amend his grounds of appeal.
9. Given the nature of the Health Report, it was appropriate to require from Mr Goldsmith an express undertaking, in addition to the usual implied undertaking to the court, that the document only be used for the purposes deposed to by Mr Goldsmith in his affidavit in connection with this appeal. Also in our view, the Health Report should not be disclosed, without further order, to any person other than Mr Goldsmith's solicitors and counsel instructed on the appeal. Also, any application to amend the grounds of appeal should be made within a limited period from the receipt of the Health Report by Mr Goldsmith. Mr Goldsmith filed his appellant's case on 18 July 2022, and the respondent's answer was filed on 26 August 2022. Once the Health Report has been received by Mr Goldsmith, it is in the interests of justice that any application to amend the grounds of appeal should be determined relatively promptly.
10. We were not persuaded that there was a plausible basis on the evidence for contending that the Draft Submissions and the Other Documents may have been relevant to the credibility or reliability of counsel's evidence. Indeed, at the hearing, counsel for Mr Goldsmith did not seriously contend otherwise.

1. For the above reasons, we made the following orders.

UPON the appellant, having undertaken orally on 8 December 2022 that he will only use the document referred to in order 1 for the purpose of deciding whether to pursue an application to amend his grounds of appeal so as to include a new ground of appeal, alleging that the State Administrative Tribunal denied him procedural fairness, or that the proceedings before the Tribunal constituted an abuse of process, on the basis that the respondent did not disclose to him relevant material and that the Tribunal did not ensure that all relevant material was disclosed to it, in accordance with its obligations under s 32(1) and 32(7)(a) of the State Administrative Tribunal Act 2004 (WA) IT IS ORDERED THAT:

1. On or before 4.00 pm 9 December 2022, the respondent provide to the appellant a copy of the Health Report as defined in Mr Goldsmith's affidavit filed 19 October 2022.
2. Any application to amend the grounds of appeal by reference to the Health Report, together with any application to adduce additional evidence on the appeal in that regard, be filed and served on or before 4.00 pm 20 January 2023.
3. Subject to order 4, the contents of the Health Report shall not be disclosed by the appellant, without further order, to any person other than the appellant's solicitors and counsel instructed on the appeal.
4. Order 3 does not prevent a copy of the Health Report being attached to, or referred to in, an affidavit which is the subject of an application to adduce additional evidence in the appeal, or being referred to in such an application or any application to amend the grounds of appeal.
5. The costs of the application are reserved.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Legal Profession Complaints Committee and Goldsmith [2022] WASAT 43.

[7] Primary decision [47], [56] - [58].

[9] Primary decision [53], [55] - [56], [58].

[14] Primary decision [103] - [119].

[19] Primary decision [128]; Mr Goldsmith's affidavit, Annexure B, page 20, par 19.

[21] Primary decision [139] - [142].

[22] Primary decision [144] - [145].

[23] Mr Goldsmith's affidavit, par 2; Mr Goldsmith's affidavit, Annexure B, page 22, par 36.

[25] Mr Goldsmith's affidavit, pars 3 - 4.

[27] Mr Goldsmith's affidavit, Annexure B, page 24, par 52.

[28] Mr Goldsmith's affidavit, Annexure B, page 24, par 53.

[29] Mr Goldsmith's affidavit, Annexure B, page 24, par 54.

[30] Mr Goldsmith's affidavit, Annexure B, page 25, par 55.

[31] Mr Goldsmith's affidavit, Annexure B, page 25, par 55.

[32] Mr Goldsmith's affidavit, Annexure B, page 25, par 57.

[33] Mr Goldsmith's affidavit, Annexure B, page 25, par 58.

[34] Mr Goldsmith's affidavit, Annexure B, page 25, pars 59 - 60.

[35] Mr Goldsmith's affidavit, Annexure B, page 25, par 61.

[36] Mr Goldsmith's affidavit, Annexure B, page 26, par 62.

[37] Mr Goldsmith's affidavit, Annexure B, page 26, par 63.

[38] Mr Goldsmith's affidavit, Annexure B, page 26, par 64.

[39] Mr Goldsmith's affidavit, Annexure B, page 26, par 64.

[40] Mr Goldsmith's affidavit, pars 5 - 7; Mr Goldsmith's affidavit, Annexure B, pages 26 - 27, pars 65 - 67.

[41] Although the 26 July 2022 Letter referred to the Health Report as dated 9 February 2021 and the Draft Submissions as being received on 16 February 2021, the Legal Practice Board, in its letter to Mr Goldsmith's solicitors dated 20 September 2022, said that the Health Report was dated 9 February 2022 and that the Draft Submissions were received on 16 February 2022: Mr Goldsmith's affidavit, Annexure E, pages 40 ‑ 41, par 4.

[44] Primary decision [150] - [151].

[45] Primary decision [153] - [162].

[46] Primary decision [164] - [168].

[48] Primary decision [176], [205].

[49] Primary decision [208], [211].

[50] Primary decision [226] - [227].

[52] Mr Goldsmith's affidavit, pars 5 - 7.

[58] Appellant's submissions, pars 24 - 28.

[59] Legal Services Commissioner v Adamakis [2013] VCAT 1970 [31].

[60] Towie v Medical Practitioners' Board (Vic) [2008] VSCA 157; (2008) 29 VAR 252 [9].

[61] AB v Law Society of NSW [2018] NSWSC 1975.

[62] Nobarani v Mariconte [2018] HCA 36; (2018) 265 CLR 236.

[63] Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.

[64] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

[65] Respondent's submissions, pars 4 - 5.

[66] Respondent's submissions, pars 6, 14 - 15.

[67] Respondent's submissions, pars 20 - 22.

[70] Respondent's submissions, pars 24 - 27.

[71] Respondent's submissions, pars 28 - 30.

[72] Fairfax Media Publications Pty Ltd v West Australian Rugby Union Inc [2008] WASCA 123 [30].

[73] Agnew v Prisoners Review Board [2012] WASC 47 [26].

[74] Respondent's submissions, pars 31 - 33.

[75] Respondent's submissions, pars 34 - 35.

[76] Respondent's submissions pars 36 - 47.

[77] Veterinary Surgeons' Board of Western Australia v Hall [2019] WASAT 145.

[78] Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [3] (Martin CJ). See also the reasons of Buss JA (as his Honour then was) at [55] and following.

[79] Goldsmith v Sandilands [2002] HCA 31; (2002) 76 ALJR 1024 [2] (Gleeson CJ).

[80] Respondent's submissions on application for disclosure, par 37.

[81] Respondent's submissions on application for disclosure, pars 43 - 44.