MATTER : In the matter of the Legal Practitioners Act 1893 (WA), the Legal Practice Act 2003 (WA) and the Legal Profession Act 2008 (WA), s 438(1) and s 444

In the matter of a Practitioner of this Honourable Court

In the matter of a report dated 15 February 2007 by the State Administrative Tribunal to the Full Bench of this Honourable Court under the Legal Practitioners Act 1893 (WA), s 29A(2)(a), s 30 and the Legal Practice Act 2003 (WA), s 185(2)(a) and s 194 and the Legal Profession Act 2008 (WA), s 438(a) and s 444

BETWEEN : LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

Legal practitioners - Professional discipline - Effect of report by State Administrative Tribunal to court - Application for suspension

Legal Practitioners Act 1893 (WA), s 29A, s 29B, s 30

Legal Practice Act 2003 (WA), s 185, s 187, s 194

Legal Profession Act 2008 (WA), s 438, s 444, s 598, s 607, s 622

Practitioner fined $2,500 upon Reference 22A of 2003

Practitioner suspended for six months upon Reference 22C of 2003

Applicant : Legal Practitioners Complaints Committee

Archer v Howell (1992) 7 WAR 33

Bercove v Barristers Board [1986] WAR 50

Bridges v Law Society of New South Wales [1983] 2 NSWLR 361

Camp v Legal Practitioners Complaints Committee [2007] WASC 220

Camp v Legal Practitioners Complaints Committee [2007] WASC 309

Camp v Legal Practitioners Complaints Committee [2008] WASCA 198

Camp v Legal Practitioners Complaints Committee [2008] WASCA 253

Camp v Legal Practitioners Complaints Committee [2009] HCA Trans 169

D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 204

Jemielita v Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992)

Kyle v Legal Practitioners Committee [1999] WASCA 115; (1999) 21 WAR 56

Law Society of New South Wales v Foreman [1994] 34 NSWLR 408

Legal Practitioners Complaints Committee v Pepe [2009] WASC 39

Legal Practitioners Complaints Committee v Segler [2009] WASAT 205

Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9

Legal Practitioners Complaints Committee v Verschuer Edward [2007] WASC 287

Legal Practitioners Complaints Committee v Walton [2006] WASC 213

Legal Practitioners Conduct Board v Boylen [2003] SASC 241; (2003) 229 LSJS 32

Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490

Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149

Re A Practitioner (1984) 36 SASR 590

Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA 144; (2002) 26 WAR 483

Re Justis; Justis v Barristers Board (Unreported, WASCA, Library No 2494, 20 December 1978)

Re; Maraj (A legal practitioner) (1995) 15 WAR 12

1 JUDGMENT OF THE COURT: On the basis of findings contained in a report to this court made by the State Administrative Tribunal (SAT) pursuant to s 29A(2) of the Legal Practitioners Act 1893 (WA) (repealed) and s 185(2) and (3) of the Legal Practice Act 2003 (WA) (repealed) and in accordance with an order of the SAT dated 15 February 2007, the Legal Practitioners' Complaints Committee (LPCC) has moved that such orders be made against the respondent pursuant to the Legal Profession Act 2008 (WA) as this court thinks fit. Although neither the SAT, by its order of 15 February 2007, nor the applicant, by its originating motion of 12 March 2007, proposed or moved for any specific form of orders to be made by this court, counsel for the applicant at the hearing on instructions moved for the following:

(a) in respect of the finding by the SAT of unprofessional conduct on reference 22A of 2003 the respondent pay a fine to the Legal Practice Board in the amount of $2,500;

(b) in respect of the finding by the SAT of unprofessional conduct on reference 22C of 2003 the respondent's local practising certificate be suspended for a period of six months; and

(c) the respondent pay the applicant's costs of the motion to be taxed.

2 The respondent is, and all material times was, a legal practitioner of this court, first admitted to practice on 22 December 1978 and holding, from time to time, a current practice certificate.

3 The present motion, and the report upon which it is based, result from three references alleging that the respondent had engaged in unprofessional conduct which were made to the then Legal Practitioners' Disciplinary Tribunal ('LPDT') established under the Legal Practitioners Act 1893. Those references were made to the LPDT on 28 July 2003 by the applicant. A fourth reference was later withdrawn.

4 During the period of more than six years during which, in one form or another, these references have been under consideration by the SAT and by courts of appeal, the legislative regime dealing with the legal profession in this State has undergone major changes. From 1 January 2004 the Legal Practice Act 2003 came into operation replacing, subject to transitional provisions, the Legal Practitioners Act 1893. Under the 2003 Act the LPDT, as then constituted, had jurisdiction under s 185(1) to deal with and make findings on each of the references which the applicant had originally made under the 1893 Act: Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115 [141], [147] and [161]; [2008] WASCA 115; (2008) 37 WAR 149 182, 184, and 186 - 187. However, on 1 January 2005 the State Administrative Tribunal Act 2004 (WA) and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) came into operation. So far as is presently material, one result of that was to abolish the LPDT and to replace it with the SAT. The former disciplinary jurisdiction of the LPDT was transferred to the SAT. Next, on 1 March 2009 the Legal Profession Act 2008 came into operation and, by s 598 and subject to transitional provisions, the Legal Practice Act 2003 was repealed.

5 The 2008 Act, by s 607 and s 622(2), manifests an intention partially to exclude the operation of ss 37(1)(d) and (f) of the Interpretation Act 1984 (WA) which, when and where applicable and unless a contrary intention appears, provides that the repeal of a previous enactment does not affect any legal proceeding or remedy established under the repealed legislation. It was decided in Mijatovic [142] and [182] - [183] that those subsections of the Interpretation Act encompassed potential or inchoate liability in respect of conduct already engaged in. But for the provisions of the 2008 Act and to the extent that they demonstrate a contrary intention, the proceedings against the respondent would now have been dealt with under the 2003 Act. However, it is apparent from s 607(1) and (2)(b) of the 2008 Act that proceedings such as these references and any rights or entitlements that any person has in relation to them continue to have effect under the new 2008 Act and are subject to this Act. Section 622(1) of the 2008 Act provides, so far as is presently material, that Part 13 of the 2008 Act applies to the conduct of a practitioner 'whether the conduct occurred before or after' 1 March 2009 when the 2008 Act came into operation.

6 The overall effect of these provisions may be summarised as follows:

(a) disciplinary proceedings commenced under the 1893 Act or the 2003 Act against a practitioner are continued under the 2008 Act, s 607(2) - Legal Practitioners Complaints Committee v Segler [2009] WASAT 205 [30];

(b) the rights and entitlements of the practitioner and of the applicant arising from a reference commenced under the 1893 Act or the 2003 Act are continued under the 2008 Act - s 607(2); and Segler [30]; and

(c) in the event of any inconsistency between the rights and entitlements of the practitioner or of the applicant in relation to the references under the 1893 Act or the 2003 Act, and the provisions in the 2008 Act, the provisions of the 2008 Act prevail - s 607(2)(b) and s 607(3).

7 In short, the effect of s 607 and s 622(2) of the 2008 Act is to treat the findings made against the respondent by the SAT which established contraventions of the 1893 Act or the 2003 Act as constituting contraventions of the 2008 Act. The 2008 Act therefore recognises the validity of findings made against a practitioner under the 1893 Act or the 2003 Act by treating them as constituting a contravention of the 2008 Act itself and, subject to its terms, directing that further proceedings relating to those matters shall be dealt with and regulated by the 2008 Act.

8 The course of finally determining the references originally made to the LPDT by the applicant against the respondent has been long and complicated involving several appeals. This has resulted in one of the original references eventually being dismissed. It is necessary to give a brief overview of the history of those proceedings in order to appreciate and deal with submissions which have been advanced on behalf of the respondent on this present motion.

9 As mentioned, there were originally four references by the applicant to the LPDT alleging unprofessional conduct by the practitioner. They were, respectively, numbers 22A of 2003; 22B of 2003; 22C of 2003; and 22D of 2003. They eventually came on for hearing together before the SAT in December 2004 and July 2006, with the decision of that tribunal being given on 6 December 2006. As matters developed, reference 22B of 2003 was withdrawn. Unprofessional conduct was found in relation to each of the remaining three references. The SAT then decided to adjourn the further disposition of them to allow submissions to be received in relation to penalty. After hearing submissions on 1 February 2007 the SAT then decided on 15 February 2007 to make and transmit this report to this court. Detailed reasons were given by the SAT for its decisions of 6 December 2006. There is a transcript of the hearing on 1 February 2007 among the materials accompanying the Report transmitted to this court. However, there were no separate reasons given by the SAT for its decision to make and transmit the Report, nor any separate facts or findings made in respect of that latter decision.

10 Subsequently, the Court of Appeal upheld the respondent's appeal against the finding against him on reference 22D of 2003 and set that aside. The dependency of that and other appeals meant that the hearing of this motion had to be deferred.

11 The decision which resulted in the quashing of the finding of the SAT in relation to reference 22D of 2003 is Camp v Legal Practitioners Complaints Committee [2008] WASCA 253 dated 8 December 2008, a decision of Wheeler & Miller JJA and Beech AJA. That appeal had been heard on 11 September 2008, the same date as the appeal in [2008] WASCA 198.

12 Time passed because the respondent applied to the High Court of Australia for special leave to appeal from the decision of the Court of Appeal refusing leave to appeal on some grounds against the adverse finding on 22C but the High Court refused special leave to appeal on 31 July 2009: Camp v Legal Practitioners Complaints Committee [2009] HCA Trans 169. That application was in respect of the decision of the Court of Appeal (Wheeler & Miller JJA & Beech AJA) of 26 September 2008: Camp v Legal Practitioners Complaints Committee [2008] WASCA 198.

13 The result, therefore, is that of the four references originally made by the LPCC against this practitioner, two have resulted in final decisions that the allegations of unprofessional conduct against him were established. Of the other two: 22B was withdrawn at the hearing before the SAT and the finding in 22D was quashed by the decision of the Court of Appeal on 8 December 2008.

14 The decision of the Court of Appeal in [2008] WASCA 253 occurred well after the decisions of the SAT of 6 December 2006 and of 15 February 2007 that the practitioner was guilty as alleged in relation to references 22A, 22C and 22D and that the SAT would transmit a report on its findings to this court in relation to those three references. The position of the applicant has been that the effect of the decision of the Court of Appeal in [2008] WASCA 253 to set aside the finding of unprofessional conduct on reference 22D has been to exclude that matter, and all findings in relation to that matter which are the subject of the report to this court, from consideration, leaving the report to stand in relation to its findings on references 22A and 22C. This sequence of events, however, gave rise to some questions which will be addressed by these reasons later.

Conclusive nature of findings and facts in Report

15 The reference to findings and facts contained in any Report by the SAT to this court under s 194(2) and (3) of the Legal Practice Act 2003 or s 444(1) of the Legal Profession Act 2008 necessarily imposes obligations on the SAT when making any such Report. Clearly, it is necessary for the Report to contain the findings which the tribunal has made and to state the facts which it has accepted as proved and upon which the findings are based. It is those facts and those findings and only those which are 'conclusive' and it follows that they must be contained in and be identifiable or recognisable in the report itself. Ideally, they should be clear and unambiguous. Obviously, it may be necessary or desirable for the SAT to identify the evidence upon which it has relied for making certain findings or accepted as proving certain facts, but a mere narration of the evidence will not discharge the obligation of the tribunal when making its report to state the facts and the findings in such fashion as will enable this court to identify precisely what are those facts and what has been so found and what, therefore, is 'conclusive'.

16 This aspect of the role of similar tribunals in making such reports has been the subject of judicial attention in the past. In Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490 the Court of Appeal of New South Wales determined an appeal brought by a legal practitioner from an order made by the statutory committee under the Legal Practitioners Act 1898 (NSW) finding him guilty of unprofessional conduct in several respects. Under s 77(2) of the New South Wales Act then in force every order made by that statutory committee was to be 'prefaced by a statement of the findings of the statutory committee in relation to the facts of the case'. In the case then under appeal the committee had simply recorded its ultimate finding of unprofessional conduct following extensive reasons for decision. No point about this was taken by the practitioner on the appeal but, nevertheless, Hardie JA at 495 observed:

The formal order in this case merely set out a finding that the solicitor had been guilty of professional misconduct in that he practised after 30 June, 1973, as a solicitor when he was not the holder of a practising certificate. The section [77(2)] would appear to contemplate the order containing a more specific statement of the findings of the committee: an ultimate finding of professional misconduct identified as a breach of the statutory provisions does not, in my view, comply with the section. Counsel for the appellant did not take this point, conceding that the reasons for decision could be looked at for the purpose of ascertaining the findings made by the committee. Going to those reasons, it will be seen that the committee was satisfied on the facts before it that the solicitor was guilty of professional misconduct. To ascertain those facts it is necessary to refer back to an earlier passage in the reasons at which the committee stressed the appellant's knowledge that he must apply for a practising certificate, and made reference to ...

It is reasonably clear that the committee based its decision that the appellant was guilty of professional misconduct on his having knowingly and consciously breached the Act and the regulations in failing to make application for renewal of his practising certificate within the time prescribed ...

17 In Bridges v Law Society of New South Wales [1983] 2 NSWLR 361 the Court of Appeal of NSW, again dealing with a report of the statutory committee about a practitioner made under the Legal Practitioners Act 1898 (NSW) dealt with a situation where the report of the statutory committee did not make express findings as to the credit of each of the solicitor witnesses about disputed versions of events. At 368 Hutley JA observed that this absence of a finding on credit had complicated the appeal because the appeal had been conducted on the basis that the appellant should have been treated differently than his former partners because, unlike them, he only made errors of judgment. This led his Honour to make the following observations about the need for the statutory committee to make findings, saying:

On a wider basis, it is important that the Statutory Committee should make findings as to the integrity, or lack of it, of a solicitor's evidence before it, because it must be assumed that in many cases after some time a solicitor who has been struck off may wish to apply to the Law Society for permission to work in a legal firm or to the court for re-admission to the profession or for admission to the bar. The performance of a solicitor who has been guilty of professional mis-conduct in his practice after its discovery, and the quality of the evidence of the solicitor before the Statutory Committee and in this court may be a highly relevant factor in determining the fitness of that solicitor to be permitted to work in a legal firm or to be re-admitted to the profession.

18 This is of direct relevance in the present case because it is evident that Mr Camp had, in the past, given conflicting versions to different people about what happened in respect of his actions leading to and involving him going to Mr Hancock's office and forcing access to the desk in order to copy the will. Similarly, it is evident that he has given different versions of the events leading to his negotiations with representatives of Channel 7 and Channel 9 over the chronology and the amounts of money which he was requesting for its release. From the passages of the reasons for decision of the SAT on this issue set out below it is evident that the SAT rejected the evidence of the practitioner in favour of the evidence of the witnesses Ms A Fan and Mr R Gibson in relation to certain aspects of the narrative. Whether this amounted to a finding of deliberate false testimony, mistaken recollection, careless preparation or self-serving invention was not examined in the Report and no finding about it was made, but there is no escape from the conclusion that, on these points, the SAT did not accept the practitioner as a reliable witness of credit and that is a factor which goes to his fitness to practise. It is regrettable that more attention to the significance of this issue was not given or that a more detailed or express finding made.

19 In the circumstances, therefore, in the absence of a specific finding, we consider that all this court can do is to treat the present matter as including findings that, in these respects, the SAT did not accept the evidence of the practitioner.

20 It is now possible to turn to the allegations made by the LPCC in the references where adverse findings were made, namely 22A and 22C, and to the findings made in respect of these which are the subject of those passages of the Report upon which the applicant relies.

21 Reference 22A of 2003 was made by the LPCC on 28 July 2003 and later amended. As amended, it reads:

Reference

That the practitioner Alan James Camp was in the period between 1 November 1991 and 24 December 1991 guilty of unprofessional conduct in that during the above period he broke into the desk of his then employer at night, removed various documents therefrom and photocopied those documents.

Particulars

1. The practitioner was employed by Hancock Prospecting Pty Ltd or by Langley George Hancock during the period from 1 November 1991 to 24 December 1991.
2. The practitioner's duties included, inter alia, providing legal advice on various matters raised with him by Mr Hancock.
3. At some time after 9 pm on a date not presently known, the practitioner entered the office of Mr Hancock with two other men, Miro Kristecevich and Michael Welsh.
4. Kristecevich was an employee of Hancock Prospecting Pty Ltd or Mr Hancock and he allowed the practitioner access to Mr Hancock's office. Welsh was the practitioner's neighbour and was not employed by or otherwise associated with Hancock Prospecting Pty Ltd or Mr Hancock.
5. Using a pair of pliers, the practitioner removed the bottom of a drawer in Mr Hancock's office and thereafter instructed Kristecevich to photocopy various documents in the drawer.
6. Upon completion of the photocopying, the practitioner replaced the bottom of the drawer using a staple gun owned by Welsh, returned the original documents to the drawer and left Mr Hancock's office with the copies thereof made by Kristecevich.
7. The above actions took place without the authority or consent of Hancock Prospecting Pty Ltd or Mr Hancock.

22 The document in the drawer mentioned in this reference was a will of Langley George Hancock which that well-known iron ore mining magnate had only made a relatively short time before. In late 1991, Mr Hancock was ill. In fact, he died on 27 March 1992. Mr Camp had a very long-standing association with the Hancock family and, as the reference asserts, had been employed by Mr Hancock or by one of his companies at the time. Of further significance is the fact that Mr Camp had, also for a long time, been a friend and adviser to Mrs Gina Rinehart, Mr Hancock's daughter. At this time there was deep animosity between Mrs Rinehart, on the one hand, and Mrs Rose Hancock (as she then was) the wife of Mr Hancock. In view of his reputed wealth and control of the iron ore mining operations, those two protagonists and their respective associates were very interested in what dispositions Mr Hancock had made in his will. Previous disputes between members of the Hancock family had led to an agreement by Mr Hancock in or about 1988 concerning his estate. A significant issue for the family was whether or not, by his will, Mr Hancock would honour the 1988 agreement or 'Plan'.

23 When it became known that he had recently made a new will, Mr Camp, on behalf of the Mrs Rinehart's interests, was very concerned to know what provisions the new will contained and, in particular, whether it honoured the terms of 1988 agreement. He made repeated requests to Mr Hancock's solicitor to be provided with a copy of the will or to be told of its contents but these were refused. According to Mr Camp, Mr Hancock in his sick-bed later asked him to obtain a copy of that will for him (Mr Hancock) so that he could give further thought to certain matters. According to Mr Camp, it was for this reason that he made arrangements to go to Mr Hancock's office, after hours, in the company of the two men mentioned, to obtain the will from the desk drawer and to photocopy it, which he did.

24 Mr Camp says that he resorted to going to the office after hours to avoid Mr Hancock's secretary because, if it had become apparent that he was searching for the will or had become aware of its contents, she would inform Mrs Hancock of this and such disclosure would lead to major arguments and disruption. Accordingly, important issues for determination on the reference were: whether Mr Camp did have any direction or authority from Mr Hancock to obtain the will or a copy of it; whether it was unprofessional conduct for him to go in the company of others to Mr Hancock's office at night and in secrecy to get the will; and whether 'breaking into' the desk with the use of pliers or some tool to accomplish this purpose was unprofessional conduct.

25 The form of the report by the SAT to this court contains much detailed evidence of the various witnesses given at the hearing of the references and of their conflicting contentions. However, it requires some analysis to ascertain the actual findings which were made by the SAT upon this and the other reference. As it is those findings which are conclusive for the purposes of this report, it is necessary to set out the relevant passages of the report to ascertain what must be regarded, or implied, as the material findings. As mentioned, this is not entirely satisfactory, nor is it a conventional performance of the tasks resting upon the tribunal as the authorities examined demonstrate. Nevertheless, it is possible to ascertain what findings the SAT made or must be regarded as having made. The following passages of the reasons for decision of the SAT of 6 December 2006, [2006] WASAT 355, which form part of the report, are material in this respect:

[47] We are not satisfied that Mr Camp did not have Mr Hancock's authority to get the Will from the drawer. There were deep rifts between Mr Hancock and his daughter, Mrs Rinehart, and between Mrs Rinehart and Mrs Hancock. There were also conflicting loyalties amongst the staff members of HPPL (Hancock Prospecting Pty Ltd). There was a great deal of money at stake. Both Mr Camp and Mr Hancock were conscious of keeping from Mrs Hancock the full details of the dealings between Mr Hancock and his daughter. Mr Hancock's secretary was known to be sympathetic to Mrs Hancock.

[48] The practitioner did not consider that the Fieldhouse Will reflected the 1988 Agreement between Mr Hancock and his daughter. Mr Camp had informed Mr Hancock of this view. Accordingly, Mr Hancock instructed his solicitor, Mr Bennett, to prepare another Will. Mr Bennett had acted for both Mr and Mrs Hancock. He had prepared a Will for Mrs Hancock in early 1991 in which it was said he had been named a beneficiary. He had acted for Mrs Hancock in other matters. Mrs Rinehart was concerned that the Will might not reflect the 1988 Agreement and that thereby significant benefit could be conferred on Mrs Hancock for whom Mr Bennett was acting.

[49] We accept all those propositions.

[50] The practitioner had a copy of the Will by no later than 24 December 1991. He had no obvious reason to ask for something he already had. Mr Bennett gave evidence that requests for a copy of the Will by Mr Camp were made on or about 19 and 27 February 1992. Mrs Rinehart had taken over the running of HPPL on 14 February 1992, at which time she was given access to all the documents in the office, including the Will. There was undisputed evidence that Mr Hancock was concerned to ensure that the Will reflected the 1988 Agreement. He had instructed Mr Bennett to prepare a letter stating that the Will achieved that objective. The reason why Mr Camp did not ask Mr Hancock's secretary for the keys to the desk was that Mr Camp thought that if he asked Mr Hancock's secretary for a copy of the Will Mr Hancock's secretary would then inform Mrs Hancock of what had happened. This could have caused unnecessary trouble in the family.

[51] A submission was made by [counsel for the practitioner] that, whilst preparing the Will, Mr Bennett was also the solicitor for Mrs Hancock. [Counsel] advanced the proposition that Mrs Rinehart and Mr Camp had every reason to think it was highly likely that the Will would not be in conformity with the 1988 Plan. [Counsel] made the point that there was plainly a dispute within the family which involved Mrs Hancock and Mrs Rinehart with Mr Hancock in the middle. The question was whether or not the Will was to give effect to the Plan of 1988 which made no provision for Mrs Hancock.

[52] It was submitted that because Mr Bennett was acting for Mrs Hancock in drawing a Will for her and being named as a beneficiary, he was seen as being very close to Mrs Hancock. This had created a real concern in the minds of both Mrs Rinehart and Mr Camp. It was submitted that Mr Camp's evidence that he was asked by Mr Hancock to get a copy of the Will to discuss with him in the following days should be accepted. It was suggested that it was known in the office that Mr Hancock's secretary had threatened and attempted to bar Mr Camp from gaining access to certain information. That appears in Mr Schwab's statement. That attempt had been overruled by Mr Hancock, so there was a bizarre set of circumstances in existence. It was a very unusual case. Mr Hancock was asleep a lot of the time and essentially bedridden. Mr Camp had not thought the desk would be locked, but discovered that it was at lunch-time on the day of the evening on which he gained access. When he found it locked, he determined that he would come back and gain access to it later that day or early the following day.

[53] It was submitted that Mr Hancock, who was not entirely lucid, was the reason Mr Camp had behaved as he did. The break-in to the desk was covert in the sense that Mr Camp had wanted to keep it from Mr Hancock's secretary. He had involved the property manager and Mr Welch. Mr Welch's evidence corroborated Mr Camp's that he was doing it because he did not want Mr Hancock's secretary to know he was getting access to the Will.

[54] The complainant contends that Mr Camp had no authority to obtain the Will by any means; that Mr Hancock had never asked Mr Camp to obtain a copy of the Will. That was the evidence of Mr Bennett. It was suggested for Mr Camp that Mr Bennett was mistaken when he said that Mr Camp had asked him for a copy of the Will after the end of 1991. He had actually had a copy of it in his possession; that Mr Bennett was confused about questions concerning whether the 1988 Plan had been complied with in the Will. There was a reason for Mr Camp to ask Mr Bennett to confirm in writing that the Will did conform with the 1988 Plan because it was still the view of Mrs Rinehart and Mr Camp that it did not. Mrs Rinehart had wanted a letter stating that it was in conformity. It was suggested that Mr Bennett may have been told one thing by Mr Hancock, while Mr Camp was told something else.

[55] We accept that the practitioner had been asked by Mr Hancock to obtain a copy of the Will before he acquired a copy of it from Mr Hancock's drawer. There is really no evidence which could be used to detract from the practitioner's assertions in this regard. Mr Bennett was not in a position to know what Mr Hancock said to the practitioner.

[56] It was submitted for the complainant that Mr Bennett's evidence that Mr Camp had asked him for the Will on several occasions in January and February 1992, should be accepted because otherwise Mr Camp would be unable to explain how he had a copy of the Will. That does not overcome the fact that, as of 14 February 1992, prior to when Mr Bennett said Mr Camp had demanded a copy of the Will from him, both Mr Camp and Mrs Rinehart had access to the Will because she had taken over Mr Hancock's desk and business affairs on 14 February 1992.

[57] The fact that Mr Bennett was told by Mr Hancock not to give a copy of the Will to Mr Camp is not conclusive either. Mr Hancock might have been telling Mr Bennett one thing and Mr Camp something else.

[58] We accept Mr Camp's evidence that it was difficult to deal with Mr Hancock at that time due to his frail state of health. It was not put to Mr Camp that Mrs Rinehart and he had not had access to the desk and the Will after 14 February 1992, when Mrs Rinehart took over from Mr Hancock. It is inconsistent that Mr Camp would still be demanding the Will from Mr Bennett on 26 and 27 February 19992 as Mr Bennett says he did.

[59] Unprofessional conduct is established.

26 Counsel for the applicant on the present motion submitted that the Report of the SAT, established that the following material findings of fact had been made and were conclusive:

(a) On a night some time prior to 24 December 1991 the respondent broke into the desk of his then employer, Hancock, and removed a copy of Hancock's Will: [50].

(b) The respondent had Hancock's authority to obtain the Will from the desk drawer: [47]. The respondent had been asked by Hancock to obtain a copy of the Will from the desk drawer before he broke into the drawer: [55].

(c) When Hancock asked the respondent to obtain a copy of the Will the respondent did not think that the desk would be locked. However, the respondent discovered that the desk was locked at lunch-time on the day of the evening that he gained access to it. When the respondent found the desk locked he decided to return and gain access to the desk later that day or early on the following day: [44], [52]. The respondent examined the drawer in some detail to work out how he could get into it: [9].

(d) The respondent broke into the desk rather than asking Hancock's secretary for the keys to the desk because he did not want to disclose to Hancock's secretary that Hancock had asked him to obtain a copy of the Will: [50], [53]. The respondent wanted to keep this fact from Hancock's secretary because Hancock's secretary was known to be sympathetic to Mrs Rose Hancock: [47], [50]. Both Hancock and the respondent were conscious of keeping from Mrs Hancock the full details of the dealings (as reflected in the Will) between Hancock and his daughter, Mrs Gina Rinehart: [32], [47].

(e) The break-in to the desk was covert in the sense that the respondent had wanted to keep it from Hancock's secretary. The respondent involved the property manager and a friend in the break-in: [53]. The property manager let the respondent into the office: [32]. The friend accompanied the respondent into Hancock's office and remained there while the respondent broke into the desk: [43].

(f) It was difficult for the respondent to deal with Hancock at the time due to his frail state of health: [58].

27 With respect, we consider that the SAT did, in fact, make each of those findings and that each is, for present purposes, conclusive. The only observation necessary is one relating to the term 'break-in'. It suggests or connotes the commission of some criminal offence, such as breaking and entering, although obviously that is not analogous or comparable. What is disclosed is that the practitioner took it upon himself, without thinking it necessary to mention the matter to Mr Hancock, to employ modest force to obtain access to a locked desk drawer and, in the process, may have caused some minor damage to the desk. The reasons and findings proceed on the basis that the use of such force was not within the scope of the authority or direction given by Mr Hancock to the practitioner to obtain a copy of his will. One would not generally expect such a direction to contemplate the use of force unless that possibility had been specifically raised. It is the use of such force which is intrusive, highly questionable and not expressly authorised that reveals the conduct to be discreditable and so unprofessional.

28 It is evident that the SAT concluded that Mr Camp did have the authority and direction of Mr Hancock to obtain his will or a copy of it in order to try and resolve suspicions over whether or not the new will did, in fact, implement the 1988 agreement. It follows from this that Mr Camp had the authority to obtain the will or a copy of it without going through Mr Bennett, or Mr Hancock's secretary or others who might be expected to alert Mrs Hancock to the fact that interests associated with Mrs Rinehart were seeking to obtain, or had obtained, knowledge of the contents of that will. The basis for the finding of unprofessional conduct must be that the practitioner resorted to minor force to open Mr Hancock's drawer in order to obtain access to the will and to copy it and replace it, and that such use of force was not within the scope of the authority that Mr Hancock had expressly conferred by his request for the will or a copy of it.

29 Reference 22C of 2003 was dated 28 July 2003 and is as follows:

Reference

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 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.

Particulars

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.

30 Again the findings of the SAT on this reference are to be found in the extensive examination of the evidence and the submissions before that tribunal but they are nevertheless sufficiently clear. They appear from [67] - [119] of the reasons for decision which, notwithstanding their length, need to be read in their entirety. They are as follows:

[67] Ms Fan said that Mr Camp had offered to give Channel 7 a story that he had broken into a filing cabinet and how he broke into it. He told her they had unscrewed a shelf so that the bottom file would fall out and they were able to get the Will, 'and how Lang Hancock's hand was held to sign the codicil or some document, but he would be prepared to tell us. This had not become public knowledge but in return he would want some money because he was desperate for money'.

[68] Ms Fan said she had taped the initial conversation and said to Mr Camp that she would approach the Eastern States headquarters to find out whether 'we could pay it'. The tapes which Ms Fan had made were given to the Coroner. She said there were at least two tapes. She said Mr Camp was '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 ...'.

[69] Ms Fan said that they were prepared to pay $50,000. Mr Camp had told her that 60 Minutes would pay him $100,000 or more and that magazines would also pay more. She said she had wanted a witness, so she went to Mr Camp's office in London Court with Mr Roy Gibson from the West Australian Newspaper. Ms Fan said she thought she might have been set up so she wanted Mr Gibson there to hear what happened. She had also taped the conversation. She said the price being asked went up to like about $1,000,000 'and then he was talking like he wanted it offshore. He wanted it in American dollars'. Her contacts had said 'We can't deal with offshore stuff and American dollars'.

[70] Ms Fan said the whole idea was that 'he was just desperate for money and needed the money'. Ms Fan said that the information about how the Will had been taken and the desk broken into, had come out - 'they wanted him to put in a statement as well as the tape stuff'. She said that at the time Mr Camp was quite emotional 'and I think when we went up to him he was a bit emotional, because I asked him what was wrong with him and he just said that he just couldn't carry on because Gina was doing stuff'. Later on he had told Ms Fan that Mrs Rinehart had changed her attitude and 'I don't know if I will go through with it now because Gina has come good. She has given me some money, paid me some money, has not taken the car away from me now ...'.

[71] Ms Fan said 'And then it just sort of went away. I don't think we followed it up. It started to get too bizarre with all this offshore money stuff, and he didn't follow through'. Ms Fan said 'The story was .... with Gina; that was going to blow her out of the water that we were interested in and it wasn't because she was suing us. We were interested in it as a story'.

[72] Ms Fan referred to 'the frantic call that I got from him when he was very emotional'. He needed the money immediately and 'can you get it ... I need it like this weekend'.

[73] Ms Fan said '... but the one time that he was adamant was definitely over a weekend because he said he could not get through the weekend and he was - he wasn't sure. He sounded suicidal. He was talking about stuff that he - you know, life; life wasn't worth living at all, sort of stuff. He was very emotional'.

[74] It was put to Ms Fan that what Mr Camp had wanted to talk to her about was his knowledge of the personal relationships between Mr Hancock and Mrs Rinehart because he had known them as a family friend over 20 years. Ms Fan's answer was 'Absolutely not. That wouldn't be worth a cent'.

[75] Mr Gilmour put a transcript of the telephone conversations to Ms Fan and then put it to her that the kind of information that Mr Camp was prepared to discuss and to consider giving, had related to personal relationships involving members of the Hancock Family. Ms Fan's answer was 'No ..., part of, yes. Part of that with the break-in is the big story'. She said 'a night time, after hours break-in, was what he told me from the first time. It was the only thing that interested us. The other relationship was coming out everywhere. Rose was talking her head off. Nothing of that was new. What was new was that Alan said that he got some handyman to go in after hours, at night-time, to break-in ..... and I said how did you do it?' Ms Fan then went on to say '... and then Lang Hancock's hand was held to - that was the crux of the story. That was the only story...'.

[76] When asked what Hancock's hand had to do with it, Ms Fan's answer was 'to change the Will; to sign a change of the Will. They took it. They photocopied it and then he changed the Will. That was a big story'.

[77] Ms Fan said that Mr Camp had rang her and said 'I have got a great story for you, the break-in story, night-time, break-in'. That was his story. I was not interested in relationships. Ms Fan repeated that Mr Camp had rung her and amongst other things said 'I have had a falling out ... but I have got some information that will blow Gina out of the water' and I said 'what's that?' and he said 'It is to do with the break-in' and I said 'what break-in'. He said how he got a handyman etc. She knew the details about how Mr Camp had taken the Will from the filing cabinet. She said 'I don't know how but he said Lang Hancock's hand was held to sign the codicil or whatever it was; the amendment'. Ms Fan had said to Mr Camp 'that is a fantastic story'. He said 'I want money for it because I need money'. She said Mr Camp had said 'This has never come out before. It's a good story'. He had said 'But I need money. I have got to be paid'. Ms Fan said that Mr Camp had not asked for a million dollars first up but that 'after he did, yes, that's why we all backed away. We were willing to pay the $50 000'.

[78] It is our view that Ms Fan's evidence was straightforward and should be accepted. The fact that under cross-examination she remembered some of the things that were on the transcript is not surprising, given the kind of work she does and the number of interviews and stories she has been involved with.

[79] Mr Gibson was also called to give evidence. He said that he had gone to Mr Camp's office in London Court and that Mr Camp had nominated a figure which he thought was a million dollars. Mr Gibson said 'I think I made it pretty clear that the West just wouldn't be paying for any sort of story. I said it was of little interest or concern to me'.

[80] We accept Mr Gibson's evidence in its entirety.

[81] Mr Camp denied that he told Ms Fan that he had information which would blow Gina out of the water. He was asked whether he had fallen out with Gina Rinehart at that point of time. Mr Camp said that he had. Mr Camp said he did not know that too much turned on that as from just after Lang had died, he was involved in speaking to the press on numerous occasions. In some respects he was angry with Mrs Rinehart because she had created a problem. Mr Camp was in serious financial difficulties at the time. He had a large mortgage to pay and he did not have any means of paying it. He owed more than $300 000 on the mortgage.

[82] With respect to him asking for a million dollars when Mr Gibson was there, Mr Camp said 'I mean, well I may have, but I have no recollection of it. I would be very surprised if I said I wanted $1,000,000 but I may have'. If he had said it, it was most certainly 'tongue in cheek'. If he had said it 'tongue in cheek' he would have thought it would have been taken 'tongue in cheek'.

[83] Mr Camp admitted that he had spoken to representatives of Channel 7 and 9. He thought that Ms Broderick was the representative of Channel 9 he had spoken to. She was representing the Witness programme. They were wanting to do the story. Mr Camp had wanted a little bit of assistance from Ms Fan, 'sort of coaching assistance' as to what he might say and what might be something which would be a decent story that they would pay for, how much he should ask for, and so on. That had coincided with Ms Fan being a defendant in a defamation action of Ms Rinehart's. He said Ms Fan's attitude had been that Channel 7 might be interested too 'but I think her attitude was that if Channel 9 were going to be paying, Channel 7 would not as well'. He said 'Witness' had telephoned him about a story, and possibly '60 Minutes'. He would have thought it would be the same representative.

[84] Mr Camp said the desk story was already the subject of two stories in The West Australian and it was already published. He told the counsel Mr Heliotis, at the Inquest that one of the specific matters he was going to give the media, was details of the breaking into Hancock's office. He told Mr Heliotis that he would have told the real story about the break-in. He would tell them the whole story. Mr Camp said that he was going to tell them that Mr Hancock had told him to go and get the Will, which took the sensation out of the story. That is why he knew he was not going to get paid for it. The only story he knew he might get paid for would be a general story.

[85] Mr Camp remembered telling the Coroner that in his wildest imagination he would not get more than one quarter of a million in relation to the stories. Mr Camp said that there were about 30 points to his story, from right back to the early days of travel with Mr Hancock, 'young politicians who are you know Deputy Prime Minister' and so on; 'there is probably about 30 points that one might concoct a series of stories over, bearing in mind that there was some public interest in all this at the time'. Mr Camp said that he had not on three separate occasions been prepared to sell a story about the desk incident for money.

[86] In cross-examination, Mr Camp said 'You have got to know that these discussions were very tentative. I never got anywhere. I never believed that they were ever going to get anywhere ... '. Mr Camp denied telling Ms Fan that Mr Hancock's hand was held. He also denied ever saying that he was desperate for money. He qualified that by saying he did not think so. He said 'I do not think I did.' He said he definitely did not talk about how Mr Hancock's hand was held to sign a codicil or some document. He denied that he originally asked for $50,000 but later sought a greater amount because other media outlets were prepared to pay for the story. He said 'No, there was never any bidding going on'.

[87] We believe Ms Fan's evidence generally. We do not accept Mr Camp's evidence where it conflicts with hers in important respects.

[88] When asked whether he had originally asked for $50,000 but later sought a greater amount because other media outlets were prepared to pay him more for the story, he said 'No, definitely not'. He admitted that the bank was threatening to sell him up at the time. He said he had not asked Mrs Rinehart if he could go to the press but that they had talked about it previously. He said he did not talk to her regarding his approaches to Channel 7 and Channel 9 and said that he did not need to.

[89] When Mr Heliotis was representing Mrs Rose Porteous (formerly Mrs Hancock) at the Coroner's Inquest he asked Mr Camp whether he had asked the media for $1,000,000, Mr Heliotis said that a tape existed of it. Mr Gilmour asked Mr Camp whether a transcript of such a conversation was ever produced by Mr Heliotis or anyone representing Mrs Porteous to the Coroner. The answer was No.

[90] It was put to Mr Camp that Mr Heliotis had said 'Now I ask you again, did you ask for $1,000,000 to be invested in an off-shore account'. Mr Camp answered 'Well, I will fall over if there is a tape of that because I have no recollection of it'. He was then asked did he ask for US$1,000,000 for his story. He said 'No, I am positive'. When he was asked if part of what he was offering to sell were the details of the break-in and other matters, he said 'No, it was probably the full story'.

[91] Before the Tribunal, Mr Camp said 'the full story was the full account of all the stories that Lang had given to him and all the interesting stories that went on'. Mr Camp admitted that one of the specific matters he was going to give the media was details of the breaking in to Mr Hancock's desk. Mr Camp said that at the time he spoke to Mrs Fan, the desk incident was public knowledge. That was prior to Ms Fan ringing him about, amongst other things, that incident. Mr Camp said he knew Mrs Rinehart was quite happy for him to deal with the press in return for money or to be paid for any interviews that he had given. He said he had talked to her about it early on and there was also discussion about the possibility of him writing a book. A publishing company in Sydney had been involved. He said he talked to Mrs Rinehart about that and she had said 'Yes, you can do it'. Mr Camp said it was too hard, in the sense that it was too time consuming. There was never any question that she was quite happy he was to write. The only things she would not want him to disclose were personal matters including the lives of her children or other intimacies.

[92] A submission was made for the practitioner that this complaint cannot be sustained as there was no evidence that the practitioner was to publish material that was confidential or material which he did not have permission to publish. We do not accept that submission.

[93] The practitioner was obviously desperate for money and intended 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.

[94] Mr Gilmour submitted that the evidence of Ms Fan in chief was thoroughly discredited. We do not accept that submission. In our opinion Ms Fan answered as best she could when the transcript was put to her. It was not established that she was in any way making up her evidence.

[95] The submission that there was no evidence that the practitioner intended to publish material which was in fact confidential and which he did not have permission to publish, was not established. The practitioner offered to publish much information about the family for whom he had been acting as a solicitor. In all the circumstances, in our opinion, that information was confidential .

[96] Particular 3 of the complaint specifically says that the information was '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'.

[97] It was put to the practitioner that he had offered to sell a story regarding the break-in and the signing of the codicil. He denied this. We accept the evidence of Ms Fan concerning that matter.

[98] It was submitted that the practitioner was not cross-examined as to whether he had the permission of Mrs Rinehart to reveal the whole story and that the fact that he had such permission was confirmed in the statement of Mrs Rinehart; also that he had discussed writing a book on the Hancock family with Mrs Rinehart.

[99] We do not accept that Mrs Rinehart's evidence exculpates the practitioner. We accept Ms Fan's evidence that at the time he first discussed the matter with her, the practitioner was obviously severely troubled and extremely worried about his financial position. He had allegedly been cut off by Mrs Rinehart.

[100] The submission that the reference cannot be sustained, as there is no evidence the practitioner was to publish material which was in fact confidential which he did not have permission to publish, in our view is not substantiated. The opposite is the correct version.

[101] Mr Camp admitted that he had approached Channel 7 and Channel 9. He admits that he did so without first obtaining the authority of his clients. Mr Zilko said the issue was that he denied that he had offered to speak in such interviews about matters of a confidential nature.

[102] We would say that if Mr Camp offered 'to blow Gina out of the water' as Ms Fan said he had done, then that speaks for itself. He was acting for Mrs Rinehart. He had known her and acted for her at times as a lawyer up to and including the period after her father's death. He had acted for her as a lawyer after she took over from her father in February 1992.

[103] As already stated we do not agree that Ms Fan's evidence was 'thoroughly discredited'. We are satisfied that Mr Camp told Ms Fan that he would tell her about how he broke into Mr Hancock's desk and how Mr Hancock's hand was held to sign a codicil 'or some document'. We are also satisfied that he said he would do this for money because he was desperate for money.

[104] Mr Camp agreed at the hearing that he had fallen out with Mrs Rinehart. He also said that in the Coronial proceedings. He admitted that he was angry with her. She had 'cut off' his finances. He admitted he was in trouble financially. He offered to sell what we think is obviously confidential information about the family, both with respect to their private lives and legal affairs. He said that he did not know how much he had asked for but 'I imagined it was tied to how much I owed the bank'. He said that his mortgage was in excess of $300 000.

[105] We agree with Mr Zilko that the offer to tell about Mr Hancock's hand having to be held to sign a codicil or some document is a very important and serious matter.

[106] Mr Gibson said he heard Mr Camp say that Mr Camp wanted a million dollars. We accept Mr Gibson's evidence in total. We accept that Mr Camp told Alison Fan that he was desperate for money. We also agree that he was in some sense talking about the money being placed offshore. Towards the end of the saga, he told Ms Fan that 'Gina has come good' and that he did not know if he would go through with it because 'Gina had come good'. He told Ms Fan that Mrs Rinehart had given him some money and had not taken the car from him. We accept that he was quite detailed in his requests to Ms Fan concerning who would pay the most money to him for the story.

[107] It was put to Ms Fan on a number of occasions that what Mr Camp really wanted to talk about were the personal relationships within the family. Her answer was 'Absolutely not, that wouldn't be worth a cent'. Ms Fan said that was not how the proposition was presented to her.

[108] Ms Fan's attitude was that the break-in was the big story. Mr Camp told her how he had broken into the drawer. Ms Fan said that the information from Mr Camp that Mr Hancock's hand was held 'was a big story'.

[109] We accept Ms Fan's evidence that when Mr Camp originally discussed the matter he told her he had a great story for her or words to that effect. We accept that Mr Camp said to Ms Fan words to the effect that 'I want money for it because I need money'.

[110] We agree with Mr Zilko's submissions that when she was reminded of them by Mr Gilmour, Ms Fan was prepared to concede matters she had forgotten. We accept Mr Zilko's submission that Mr Camp had no authority express or implied to disclose the information about the office desk and the signing of the codicil or another document to a media outlet for payment. We agree that it is a breach of solicitor and client confidence for a solicitor without the permission of the client to offer this kind of information to the media for payment.

[111] In this case, where it is alleged that the confidential information being offered to the media related to Mr Hancock and/or Mrs Rinehart and/or HPPL, we agree that it did. The three of those legal persons were involved with Mr Camp on a confidential basis and with what he did concerning the desk and the Will. Mr Camp was engaged in matters concerning the three of those persons. It was their business, or matters relating to their business, which he was prepared to reveal to the media for money.

[112] Professional Conduct Rules 7.1 and 7.5 are in point in this matter. They require a practitioner to give undivided fidelity to his client's interests unaffected by the practitioner's own. He is not to use information obtained against his client's interests.

[113] We agree with Mr Zilko's proposition that if a practitioner learns something about his client which is adverse to the client's interests the practitioner does not have any right to tell anybody about it without the client's authority. That prohibition would include such things as the break-in to the desk and the alleged holding of Mr Hancock's hand in connection with the signing of the codicil to Will or some document - even if the client's hand was only shaking and had to be held. That type of matter should not be disclosed to the media for money. It does not matter whether the client was fully alert or not.

[114] We agree that the confidential information would not have to amount to something that was said by or to the client. It could be general information concerning the client's affairs including his bad health or the turbulent relationships within the family which he acquired by reason of his professional relationship with Mr Hancock, Mrs Rinehart and/or HPPL.

[115] The practitioner admitted that he spoke to representatives of Channel 7 and Channel 9 concerning selling his story to them. He admits doing it without first obtaining the authority of his clients to do so.

[116] Mr Gilmour said that this Tribunal should rely on the transcript as to what really happened between Mr Camp and Ms Fan. However, we do not think that proposition should be upheld. Ms Fan was quite clear as to how she was approached and what was said to her. We accept that evidence.

[117] We do not think the statement of Mrs Rinehart that Mr Camp had spoken to the media factually on the family's behalf and that she would have had no issue in certain circumstances if he could have persuaded the media to pay for factual information, legalises what he did. Moreover, the fact that Mr Hancock had died before the conversations with Ms Fan took place, in our view, is not fatal to the allegation of unprofessional conduct.

[118] We do not think that the fact that Ms Fan was in litigation with Mrs Rinehart detracted from the obvious truth of what she was telling the Tribunal. There is also the supporting evidence from Mr Gibson.

[119] This reference has been sustained.

31 Again it is necessary to identify the reliance placed by the applicant on certain asserted findings by the SAT in relation to this reference to support the finding of unprofessional conduct and to cause this court to act. The submissions by counsel for the applicant are that on reference 22C the SAT made the following material findings of fact:

(a) Ms Fan's evidence was to be preferred to the respondent's evidence: [78], [87], [97], [103], [116], [118].

(b) Mr Gibson's evidence was to be accepted in its entirety: [23], [80] and [106].

(c) The respondent was desperate for money and intended to release confidential information concerning his clients and the Hancock family that he had obtained while working for them as a legal practitioner: [93], [95], [100], [106].

(d) The respondent was acting for Mrs Rinehart. He had known her and acted for her at times as a lawyer up to and including the period after her father's death. He had acted for her as a lawyer after she took over from her father in February 1992: [102].

(e) When the respondent originally discussed the matter with Ms Fan he told her that he had a great story for her, that he would tell her about how he broke into Hancock's desk and how Hancock's hand was held to sign a codicil or some document, and that he would do this for money because he was desperate for money: [103], [106], [108], [109].

(f) The respondent had no express or implied authority to disclose information about the office desk and the signing of the codicil or other document to a media outlet for payment: [110].

(g) The confidential information being offered to the media related to Mr Hancock and/or Mrs Rinehart and/or Hancock Prospecting: [111]. The three of these legal persons were involved with the respondent on a confidential basis and with what he did concerning the desk and the Will: [111]. The applicant was engaged in matters concerning these three persons: [111]. It was their business or matters related to their business that the respondent was prepared to reveal to the media for money: [111].

(h) The statement of Mrs Rinehart that the respondent had spoken to the media factually on the family's behalf and that she would have no issue, in certain circumstances, if he could have persuaded the media to pay for factual information did not legalise what the respondent did: [117].

(i) That Mr Hancock died before the conversations with Ms Fan took place is not fatal to the allegation of unprofessional conduct: [117].

32 We are satisfied that the SAT did make each of the findings as submitted by the applicant and that these are 'conclusive' in the present proceedings.

33 It is quite obvious that the information offered to be disclosed was confidential and that the practitioner was under a duty to maintain the confidentiality of that information and of his discussions and professional dealings with Mr Hancock and the others named. It is a serious act of professional misconduct for a lawyer to breach the duty of confidence to the client: Legal Practitioners Complaints Committee v Walton [2006] WASC 213 [21], and this reflects upon and undermines the degree of confidence in which the public and clients place in their legal advisers. This is recognised in local Professional Conduct Rules published by the Law Society of Western Australia which evidence the standards to be expected of members of the profession of good reputation and competence: see Professional Conduct Rules 1983, rules 7.1 and 7.5, which applied at the time, now Professional Conduct Rules 2008, rule 6 - Law Society of Western Australia. This was a serious breach of an unequivocal professional obligation and one contemplated purely for personal self -interest.

34 It is, of course, apparent that the period during which the practitioner was dealing with representatives of Channel 7 and Channel 9 about the disclosure of this confidential information was in 1997, so it was almost six years after the incident involving the extraction of the will from Mr Hancock's office desk in November or December of 1991 which is the subject of reference 22A. However, it happened at a crucial time when there was controversy over whether or not a Coroner's inquest into Mr Hancock's death should be held and what role the Rinehart interests on the one hand and Mrs Hancock's (now Mrs Porteous's) interests on the other would have in relation to any inquest were the subject of great rivalry.

35 The third reference (22D of 2003) which was also heard at the same time needs to be mentioned only to note the contribution, it appears to have made to the decision of the SAT to make and transmit its report to this court, and what consequences, if any, arise for the determination of these present proceedings.

36 This reference was originally made on 28 July 2003 but later amended. As amended it reads:

Reference

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

1. The practitioner was employed by Hancock Prospecting Pty Ltd or Mrs Gina 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 by unfair means, namely by casting aspersions on Rose Porteous.

37 The findings on these allegations made by the SAT are to be found in [156] - [161] of its reasons for decision of 6 December 2006 - [2006] WASAT 355 - which, again, are set out in full as follows:

[156] The practitioner has admitted that he handed out the chronology, and that chronology contains allegations of alleged serious misconduct. In our view, it is not necessary that the practitioner should have read the chronology. He knew the general nature of at least some of it from his knowledge of the statements from which it was taken. In the contempt proceedings, he submitted an affidavit to the effect that he had read the witness statements. The practitioner said that although he had not read the chronology, he had assumed it would accurately reflect the witness statements he had seen previously.

[157] In the hearing before the Tribunal, Mr Camp denied that he read the witness statements. Mr Zilko said that when he was shown what he said in an affidavit and said he still had not read the statements, a serious issue concerning his credibility arose. There was a compelling difference of evidence on a very important matter. Both statements had been made on oath.

[158] The fact that the chronology was prepared by senior and junior counsel in the East goes to penalty rather than proof of the charge. We are satisfied that even if Mr Camp had not read all the statements, he knew enough to know that he should not have handed out the chronology to the media in advance of the evidence being given.

[159] It is important that the chronology contained most serious allegations against Mrs Porteous. They were terrible accusations. It was unprofessional in our view to hand them to the media in advance of any evidence of that nature having been given.

[160] In our view it is not necessary for particular 5 to be established to constitute an offence of unprofessional conduct. We are satisfied that Mr Camp knew enough about what was in the chronology for him to be found guilty of unprofessional conduct as alleged in this charge.

[161] We agree that it was not established that Mr Camp handed out the chronology in order in inflict damage on the opposite party, but what was important were the allegations about Mrs Porteous. It did not matter that he did not intend to do it to advance Mrs Rinehart's interests as alleged in particular 5.

38 In [146] in the reasons for decision dealing with reference 22D of 2003 the SAT make reference to a decision of the Full Court of this court - Re Coroner's Court of Western Australia; Ex parte Porteous [2002] WASCA 144; (2002) 26 WAR 483 which dealt with an application that the practitioner, Mr Camp, be fined or committed for an alleged contempt of court in distributing the chronology which had been referred to at the opening of the Coroner's inquest to members of the press in circumstances where the Coroner had declined to permit an opening address by the Rinehart interests because of concerns about the accuracy of the material and concern that it might give a misleading impression of the true state of affairs. In those contempt proceedings the chronology was described as 'a sensational summary of the evidence to be led'. The application for committal or other sanctions for alleged contempt of court was dismissed by the Full Court in that case and it was held that it would not necessarily be a contempt to publish material calculated to bring about public pre-judgment of an issue nor to disclose in pre-trial publicity the evidence that witnesses are likely to give. The court concluded that the publication of the chronology did not have a real and definite tendency, as a matter of practical reality, to interfere with the administration of justice, which is necessary for a contempt. Accordingly, the references in the reasons for decision of the SAT on 22D of 2003 related to the acceptance of the determination of questions of law which had been made by the Full Court in that decision.

39 From the transcript of the hearing before the SAT of 1 February 2007 it is apparent that those findings on reference 22D contributed to the decision to make and transmit the Report to this court.

History of appeals or applications for a review of decisions of the SAT of 6 December 2006

40 In the light of submissions made by the respondent on this present application to the effect that there were certain alleged errors or irregularities in the decisions of the SAT of 6 December 2006 and 15 February 2007 to forward this report to the court and which affect the manner in which this court could or should treat that report, it is necessary to undertake a brief review of the rights which the appellant had to appeal from, or otherwise challenge, the decision of the SAT; and to examine in greater detail what steps were actually taken in this regard and with what result.

41 Over the period from 6 December 2006 to 15 February 2007 and thereafter until 28 February 2008 the Legal Practice Act 2003 applied. This provided for certain rights of appeal for the respondent from the decisions of the SAT which had then been made.

42 Under s 194 of the 2003 Act the situation when the SAT makes a report to this court is dealt with:

(1) If the State Administrative Tribunal under section 185(2)(a) or 190(4)(b) makes and transmits a report in respect of a legal practitioner to the Supreme Court (full bench), the report is to be taken to be conclusive as to all facts and findings mentioned or contained in the report.

(2) The Supreme Court (full bench) may, upon motion and upon reading the report, and without any further evidence, fine, suspend from practice, or strike off the Roll of Practitioners the legal practitioner or make any order which the State Administrative Tribunal might make under section 185(2)(b).

(3) The Supreme Court (full bench) may make such order as to the payment of costs by the legal practitioner as the Court thinks fit.

43 Equivalent provisions are now found in the 2008 Act - s 444.

44 Notwithstanding the conclusiveness of facts and findings contained in such a report, the respondent, as a party to the proceedings in the SAT had an independent avenue of appeal from the decision made by the SAT. This is contained in s 105 of the State Administrative Tribunal Act 2004 (WA) which, so far as is applicable, provides:

(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.

(3) The appeal lies to -

(a) the Court of Appeal, if the decision was made by -

(i) a judicial member; or

(ii) the Tribunal constituted by members who include a judicial member;

(b) the Supreme Court exercising its other jurisdiction, in any other case.

45 In cases where the SAT itself makes an order suspending a practitioner's right to practise, the right of appeal can be brought on any ground whether of fact or of law or of mixed fact and law - s 105(13). The significance of this more extensive right of appeal is dealt with later.

46 There is a time limit for instituting an application for leave to appeal (s 105(5)) subject to power of the appeal court to extend time (s 105(7)).

47 It follows that any appeal from a decision of the SAT to make and transmit a report, if leave to appeal is granted, is confined to questions of law but when such a ground is raised all findings or orders of the SAT are subject to appellate review. In a case such as the present, the decision or findings of the SAT could be set aside or varied and the report quashed or sent back to the SAT for reconsideration under s 105(9).

48 Consequently, although the findings contained in the Report are conclusive when the Report comes to be considered by this court, there is the potential for the Report to be set aside or quashed in the event of a successful appeal brought by the legal practitioner in independent appeal proceedings as mentioned. It follows that, unless there be some special reason to the contrary, any appeal or appeals from a decision of the SAT to make and transmit a report on the practitioner should be finally determined before this court is called upon to hear and determine any motion for it to deal with the practitioner in the light of the Report.

49 Such a right of appeal from a decision from the appointed disciplinary tribunal to make and transmit a Report upon the legal practitioner to the Full Court did not always exist. It was first introduced by amendments made to the Legal Practitioners Act 1893 in 1992 - see s 29B of the 1893 Act and s 12 of No 48 of 1992. Its absence before then meant that there was no scope for appellate review of such a decision of the disciplinary body, as was pointed out in Bercove v Barristers Board [1986] WAR 50. That case was followed and applied in Hoffman v Howell (1992) 7 WAR 24 when the Full Court held that the right of appeal from an 'order' made by the Barristers Board under the former s 29(4) of the 1893 Act did not entitle a practitioner to appeal against a reprimand imposed by the board because that was not an 'order'. The same principle was again applied in Archer v Howell (1992) 7 WAR 33 in which it was held that the facts or findings contained in a report by the then Barristers Board to the Full Court could not be the subject of an appeal and that any attempt to institute an appeal against them was incompetent, but that an order for suspension - being a coercive 'order' - was subject to the statutory right of appeal as it then existed. Until the 1992 amendment the only available procedure for challenging a report of the disciplinary tribunal, then the Barristers Board, to the Full Court was by an application for a prerogative writ such as a certiorari or prohibition - a procedure successfully employed in Re Justis; Justis v Barristers Board (Unreported, WASCA, Library No 2494, 20 December 1978) (Lavan J, Jones & Smith JJ).

50 After the introduction of s 29B to the Legal Practitioners Act 1893 an appeal did lie to the Full Court against any finding or order made by the LPDT which accounts for the appeals from the findings leading to the decision to make and file a report in the cases of D'Alessandro, which appeals were heard as matters anterior to the motion based on the Report: D'Alessandro v Legal Practitioners Complaints Committee (1995) 15 WAR 198 204 (Ipp J).

51 The point of present relevance emerging from this history is that on the hearing of a motion to consider a report made by the SAT to this court under what is now s 444 of the 2008 Act there is no scope for appellate, or other, review of the findings of the SAT as set out in the Report which, for the purposes of these proceedings, are 'conclusive'.

52 The first step taken by the Mr Camp to challenge decisions of the SAT was an application to the Supreme Court for leave to appeal from the decisions of the SAT finding him guilty of unprofessional conduct on references 22C of 2003 and 22D of 2003. In Camp v Legal Practitioners Complaints Committee [2007] WASC 220 Jenkins J granted the respondent leave to appeal but only in respect of two of eight proposed grounds of appeal. These two grounds related to the findings of the SAT made on reference 22D of 2003 so leave to appeal from the findings in relation to reference 22C was refused. The proposed grounds and the application for leave to appeal did not seek to challenge the findings of the SAT on reference 22A of 2003.

53 Thereafter, on 23 August 2007 Mr Camp appealed to the Court of Appeal against the decision of Jenkins J refusing leave to appeal on ground 4 of the proposed grounds relating to reference 22C. That appeal was dismissed by the Court of Appeal on 26 September 2008: Camp v Legal Practitioners Complaints Committee [2008] WASCA 198. That was in relation to the findings of the SAT on reference 22C.

54 The appeal by Mr Camp from the decision of the SAT on reference 22D, based on the two grounds upon which Jenkins J had previously given leave to appeal, was itself heard before her Honour in Camp v Legal Practitioners Complaints Committee [2007] WASC 309 and on 19 December 2007 was dismissed.

55 Then Mr Camp appealed to the Court of Appeal from the decision of Jenkins J dismissing his appeal in relation to the findings of the SAT on reference 22D. That appeal was heard by the Court of Appeal (Wheeler and Miller JJA and Beech AJA) in Camp v Legal Practitioners Complaints Committee [2008] WASCA 253 and on 8 December 2008 the appeal was allowed, with the result that the finding by the SAT in respect of reference 22D was quashed.

56 Meanwhile, on 24 October 2008 Mr Camp had applied to the High Court of Australia for special leave to appeal against the first decision of the Court of Appeal which had dismissed his appeal against the decision of Jenkins J refusing leave to appeal on one of the eight grounds sought originally in relation to the findings of the SAT on reference 22C. As earlier noted, on 31 July 2009 the High Court refused the respondent's application for special leave to appeal.

57 The result is that the findings of the SAT in relation to references 22A and 22C remain undisturbed. No attempt to appeal from or otherwise challenge the finding of the SAT on reference 22A has been made by the respondent and his application for leave to appeal from the findings of the SAT on 22C has been refused and an appeal from that refusal of the grant of leave was later dismissed by the Court of Appeal. The later application for special leave to appeal to the High Court was also unsuccessful.

Respondent's application for adjournment or vacation of hearing

58 By written submissions dated 19 April 2010, that is the day before this motion was listed for hearing, the respondent submitted that:

(a) 'it may be appropriate for the court to hold the conduct [the subject of reference 22A] to be not unprofessional despite the acceptance [as it was by the SAT]';

(b) the findings of the SAT on reference 22C could not or should not be treated as findings of unprofessional conduct;

(c) the submissions by the applicant in relation to the significance of the findings by the SAT were not open on the evidence on reference 22D;

(d) certain relevant findings in relation to the significance of newspaper articles were not mentioned by the SAT, giving rise to the suggestion that the respondent's case was not addressed or evaluated by the SAT;

(e) certain findings in relation to reference 22C are at odds with the findings in relation to reference 22A;

(f) there exists a basis for grounds of appeal for factual error by the SAT in relation to the findings made on reference 22C; and

(g) the statutory intention is not for the Full Court to 'turn a blind eye to any factual errors'.

59 These written submissions also contended that there were a number of outstanding issues which should be particularised or clarified in order to allow the respondent adequately to answer or otherwise respond to the report. These were said to include:

(i) does the applicant contend that there was any aspect of the offer that indicated that the content of any interview/story was to be contrary to his client's interests?

(ii) if so, is it contended that such aspect was raised other than in some earlier unspecified conversation or part thereof, but abandoned before the conversations or relevant part thereof were recorded?

(iii) is the breach of confidence constituted by talking to Ms Fan about the story - or is there a finding that the breach was in the offering to publish it widely?

(v) what evidence is relied upon from the transcripts - that constitute the Record along with the reasons? and

(vi) does the applicant rely on evidence on any matter about which the reasons are silent? If so, which?

60 It is evident that all these 'issues' said to require particularisation or clarification relate to reference 22C of 2003 and the findings made by the SAT in respect of it.

61 At the hearing of the motion the practitioner appeared in person without counsel. In support of the application for the adjournment of the motion he relied upon an affidavit of Mr R J Butcher sworn 16 April 2010 and he set out to advance a series of matters which, so he contended, should lead to a conclusion that the findings of the SAT were wrong, or incomplete or had failed to take into account relevant matters and that they could not or should not be regarded as amounting to unprofessional conduct. He submitted that this court should review the findings of the SAT in the light of the 'facts' established by the evidence. A number of other submissions to similar effect were also advanced.

62 Another objection raised by the practitioner to the course of proceedings was that the applicant was moving only for an order that he be suspended from practice for a period of six months rather than have his name removed from the roll. According to his submission, this was a claim for a penalty or relief which had not been identified by the SAT in its decision of 15 February 2007 to make and transmit its Report to this court although it was a penalty which was within the power of the SAT to impose - Legal Practice Act 2003 s 187(1)(a). According to the submission, the effect of the SAT not itself making any order for suspension but, instead, making a Report to this court and the applicant moving for an order for suspension from practice for six months, meant that if such an order were made by this court the respondent would be deprived of an important right of appeal under s 105(13) of the State Administrative Tribunal Act. In this respect, the submission was that, had the SAT itself imposed such an order for suspension, then the respondent would be entitled to apply to the Supreme Court for leave to appeal on any ground from that decision and, if leave were granted, to have his appeal heard by a single judge of this court subject to the further possibility of leave being granted to appeal to the Court of Appeal from any decision made by a single judge on that appeal. By contrast, so the submission went, if this court were to impose an order for suspension, there would be no right to apply for leave to appeal to a single judge or to the Court of Appeal and there could have been no appeal from the findings of the SAT on any ground other than a question of law.

63 The practitioner's written submissions appeared to contemplate that he had two separate rights of appeal, one under s 105(2) and the other under s 105(13). That is not the case. There is one right of appeal, created by s 105(1). The scope of that right of appeal is affected by whether the general rule in s 105(2) applies, or whether the exception in s 105(13) applies.

64 It is unnecessary to stop and examine whether, in the circumstances postulated, any right of appeal from a decision in this court would lie to the Court of Appeal or not. The question simply does not arise and, even if it did, it would be pertinent to consider that Parliament has directed that the determination of such motions from the SAT should be by the full bench of this court, presumably in accordance with the longstanding recognition that it is this court which is ultimately responsible for the supervision and discipline of members of the legal profession as officers of court.

65 It has always been recognised that this court has power to impose orders short of removal of the practitioner's name from the roll, including orders for suspension, a fine or other orders. The fact that this court may ultimately make an order which would have been within the power of the SAT to make, and which, if made by the SAT, might give rise to a less restricted right of appeal from the decision of the SAT is clearly recognised by the legislation.

66 Nevertheless, the fact that any finding or order made by the SAT itself which would lead to a practitioner being deprived of his or her capacity to lawfully pursue a legal vocation will give rise to a right to apply for leave to appeal on any question of fact or law, but a decision by the SAT to make and transmit a report to this court, which may lead to more serious adverse consequences for the practitioner, will only give rise to a right to appeal on a question of law, is a strange anomaly. It appears to be inconsistent with the policy underlying s 105(13) of the State Administrative Tribunal Act and may well warrant further attention by the legislature in due course.

67 There may, therefore, be a possibility that in certain circumstances where a suspension for less than two years is sought a decision by the SAT to make and transmit to this court a report about a practitioner, rather than imposing a suspension itself, could cause prejudice by eliminating certain meritorious grounds of appeal which might otherwise have been successful. Whether other remedies may be available to deal with such a situation need not now be considered. It is sufficient to notice that in this case no attempt was made to institute an appeal or to pursue prerogative relief in respect of the decision of 15 February 2007 by the SAT to make or transmit this report on any ground asserting that the procedure adopted was prejudicial in restricting available grounds of appeal.

68 This application for an adjournment or a vacation of the hearing date was opposed by the applicant and, after submissions dealing with that had been heard, the court decided unanimously to refuse the application for an adjournment or vacation and to proceed with the hearing and determination of the motion. The court indicated that reasons for this refusal would be given later when the final decision on the motion was delivered, as is now being done.

69 A submission was made that the tribunal may include in the Report or record of the evidence taken at the hearing - s 185(4) of the 2003 Act and s 438(4)(a) of the 2008 Act - and that the purpose of enabling this to be done is to allow the court to be informed about the facts beyond those mentioned or contained in the Report and to enable it to make any such further findings as might be appropriate in the circumstances: Legal Practitioners Complaints Committee v Verschuer Edward [2007] WASC 287 [10]. That was a decision of the Full Bench of this court comprised by Templeman, Le Miere and Simmonds JJ on a motion by the LPCC for an order that a practitioner's name should be struck off the roll or, alternatively, that the practitioner should be suspended for a period of five years or such other period as the court might think fit. In the event, the court decided not to make any such order but, rather, to continue an order made by the SAT for the supervision of the practitioner's trust account. In the reasons for decision at [10] there are observations to the effect cited about the significance of the record of the evidence taken at the hearing being included with the Report by the SAT to this court. It is evident from the reasons in that case, read as a whole, that the recourse made by the Full Bench on that occasion to the evidence accompanying the Report was undertaken with a view to the court evaluating for itself, as it was required to do, the overall gravity and seriousness of the practitioner's illegal conduct and his prospects of rehabilitation. There is nothing in the reasons to suggest that recourse to the evidence could be made with a view to questioning, reversing or disregarding any actual finding made by the SAT and forming part of the Report. Rather, the purpose of recourse to the evidence was to allow the findings made by the SAT and contained in the Report to be evaluated in their full context. Read this way, there is nothing exceptional or controversial about the proposition and, indeed, the ability of the SAT to append to the Report the evidence at the hearing, expressly conferred by Parliament, must be to allow certain use to be made of the evidence. However, it would be impermissible to have recourse to the evidence for any purpose of contradicting, disregarding or overruling any actual finding made and set out in the Report which, as already stated, is conclusive in relation to such findings.

70 These submissions by the practitioner in support of his application to adjourn or vacate the hearing of this motion failed to recognise the role of this court or the significance of the Report from the SAT in these proceedings. This is simply not an occasion when challenges to the correctness, in law or in fact, or the finality of the decisions of the SAT or the content of the Report can be entertained. This court is required to consider the motion before it on the basis of the findings which have been made by the SAT which are, for these purposes, conclusive. While there is certainly scope for entertaining evidence and submissions relating to mitigation or other factors, including the personal circumstances of the practitioner, previous good character and professional reputation, the court cannot go behind the report or draw any conclusions or inferences inconsistent with its contents.

71 The practitioner also submitted that the hearing should be adjourned because of late disclosure by the applicant of its 'case' against him, or because of a 'change' in the applicant's case. This submission overlooks the conclusive character of the findings of fact in the report of SAT. Once SAT made its findings and transmitted its report, it was no longer a matter of the applicant identifying its 'case' against the practitioner. These proceedings are founded upon the findings and report of SAT.

72 The 'outstanding issues' which the practitioner claimed needed to be particularised (set out earlier in these reasons) are matters that, to the extent they may have been relevant, fall to be addressed by reference to the findings of SAT. In any event, the applicant provided responses in respect of these issues in its written submissions or in correspondence sent to the practitioner's solicitors just prior to the hearing.

The significance of the quashing of the finding of the SAT on reference 22D

73 The circumstances of how the adverse finding against the practitioner by the SAT on reference 22D was quashed as a result of the respondent's successful appeal in [2008] WASCA 253 on 8 December 2008 have already been set out. Again, as earlier remarked, this occurred after the decision of the SAT on 14 January 2007 to make and transmit to this court a Report of its findings on the references and to move this court to act on that Report. The SAT has not dealt with these matters since then and, in particular, there has been no application to reopen or to reconsider its decision to make and transmit the Report in the light of that successful appeal or otherwise.

74 This leaves a question, namely, what effect might the adverse finding made by the SAT on reference 22D have had in contributing to the decision by the SAT to make and transmit its Report to this court and move this court to act upon it? In other words, might the SAT have taken some other course itself to deal with the practitioner had the adverse findings in relation to reference 22D not been made? We need not attempt to determine this because it is now for this court to determine itself the proper disposition of the reference.

75 Another associated factor is that, by formal submissions from counsel for the applicant, upon considered instructions, this court was only moved to impose an order of suspension upon the practitioner and not to remove his name from the roll. The extent, if any, to which this formulation of the relief that the court is moved to grant has been shaped by the fact that the adverse finding in relation to reference 22D has since been quashed cannot be ascertained. Even if it could be ascertained, all that would be known is what factors have led the LPCC to submit that this form of relief, rather than removal of the practitioner's name from the roll, is appropriate in the circumstances. However, the LPCC was not the decision maker. It was the prosecutor in the proceedings before the SAT and the decision as to the disposition of the references rested with the SAT and not with the LPCC.

76 As earlier remarked, this court has not been provided with any explicit indication of the relief which the SAT would have been disposed to grant or the orders which it considered might be made. The only references in respect of which adverse findings remain are 22A and 22C. That absence of any specified proposed relief has deprived this court of the benefit of assistance from a considered judgment of the SAT on a significant aspect of the case. Still, that does not remove or affect the responsibility of this court to reach a decision about the appropriate relief to grant in the exercise of its supervision of the legal profession in respect of the matters which are disclosed by the Report in respect of the adverse findings remaining.

77 In the end, it is always for this court to determine what relief should be granted or what orders should be made in respect of a practitioner upon such a Report. It may accede to a motion proposed by the SAT or accept submissions from the LPCC or decide upon some other disposition which the court considers proper in the circumstances, as was done in Legal Practitioners Complaints Committee v Verschuer Edward and in many other cases. For example, in Re; Maraj (A legal practitioner) (1995) 15 WAR 12 this court took a more severe view of the significance of the conduct of the practitioner than the LPDT had done and made an order removing the practitioner's name from the roll notwithstanding that the motion and the Report from the LPDT sought orders that the practitioner be suspended from practice for two years.

78 The concept of unprofessional conduct has been examined on many occasions. In Kyle v Legal Practitioners Committee [1999] WASCA 115; (1999) 21 WAR 56 Parker J, with Ipp and Steytler JJ concurring, said at [61]:

This 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; see, eg, Re A Practitioner (Unreported, Supreme Court, WA, Full Court, Library No 4949, 18 July 1983). 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.

79 It is timely to acknowledge that the objects of professional disciplinary proceedings are to secure the protection of the public; to maintain a high reputation of the legal profession; and to enforce the maintenance of proper standards by members of the profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 [43]. Punishment is not one of the objects of disciplinary proceedings. Re A Barrister and Solicitor (1979) 40 FLR 1, 24 - 25 and Jemielita v Medical Board of Western Australia (Unreported, WASC, Library No 920584, 13 November 1992), 146 - 147. The penalty must demonstrate without doubt the standards to be observed by practitioners: Legal Practitioners Conduct Board v Boylen [2003] SASC 241 [72]; (2003) 229 LSJS 32; and Law Society of New South Wales v Foreman [1994] 34 NSWLR 408, 450 - 451.

80 In this case, where, although the applicant does not seek an order for the removal of the name of the practitioner from the roll, it nevertheless seeks a period of suspension, it is necessary to consider the principles which apply in considering such an order. A suspension indicates a serious breach of professional obligations reflecting, to a significant degree, upon the practitioner's fitness to practise but where there are prospects that this may only be an occasional or transient failing and that the practitioner has or may soon regain the essential qualities of character and trustworthiness necessary to be a member of the profession: Re A Practitioner (1984) 36 SASR 590, 593 and Legal Practitioners Complaints Committee v Pepe [2009] WASC 39 [12].

81 The conduct found against the practitioner on reference 22A of 2003 must, we think, be regarded as falling within the first limb of the foregoing account of unprofessional conduct. While it is true that Mr Camp had the authority of Mr Hancock to obtain access to his will and make a copy of it for the purposes of advising him, and because this authority must also be regarded as comprehending permission for him to enter Mr Hancock's office and make reasonable searches necessary to locate the will, the use of force to open the drawer of the desk to obtain the will, having regard to the circumstances where Mr Camp must have known that to request access to the drawer by a key or through the assistance of the staff would attract protest or opposition, at least from the staff, amounts to disgraceful or disreputable conduct.

82 There had been many references to breaking into the desk in the course of the inquiry and it is true that force was used but the use of that phrase cannot in any way connote conduct comparable to breaking into a dwelling-house or other premises but, rather, connotes deliberate damage to property, although there is nothing to suggest that Mr Hancock remonstrated with Mr Camp or reproved him about that. However, the conduct had the potential to inflame already hostile relations between members of the Hancock family, had it become known to Mrs Hancock or her associates. It was a subterfuge and one which would reflect adversely upon the integrity of a reputable legal practitioner.

83 In respect of this finding, counsel for the LPCC is moving for the imposition of a fine of $2,500 rather than any other form of sanction against the practitioner. We consider that to be an appropriate penalty and one which demonstrates sufficiently the disapproval of the court of this practitioner's conduct. This is one incident of professional conduct of which this practitioner will almost certainly never commit a repeat and it did occur in very unusual and charged circumstances. Accordingly, we are satisfied that it does not call for any order for suspension or removal of the name of the practitioner from the roll, and in relation to this finding of unprofessional conduct we would make an order imposing a fine of $2,500 as sought by the applicant.

84 The second finding of unprofessional conduct arising from reference 22C of 2003 is, in our view, more serious. This concerns the offer by the practitioner to disclose confidential information to the press in return for a significant monetary payment for his own use and without any authority of his client or the person entitled to the confidence being sought or obtained. It also involves a deliberate attempt by the practitioner to secure his own pecuniary advantage at a time when, because he had temporarily fallen out with his former client and friend, Mrs Rinehart, he was in extreme financial difficulties. This form of professional misconduct is of a character within both limbs of the description of that concept as outlined. Firstly, it is conduct which would reasonably be regarded as disgraceful or dishonourable by any practitioner of good repute and competence and, so far as it relates to dealing with a client's or former client's confidences, it is well short of the standard of professional conduct observed by members of the profession of good repute and competence. A client's confidences are never for sale or for disclosure except with the express consent of the client, or the person entitled to preserve the confidence, and usually then only after that person has been made aware of the desirability of obtaining independent legal advice and has had an opportunity to do so, or on occasions specifically required by law.

85 It is significant that the respondent has been a member of the profession and in practice in this State since December 1978, that is for over 30 years. Only one old and minor previous complaint against him had been made out. Also significant is the fact that he has continued in practice in the years since these professional offences without any further complaint or allegation being made against him. He has produced a series of references from persons of repute in the community recording the respect and trust which those people have for him and his involvement in a number of charitable and commendable community activities. He has experienced significant financial loss, having been declared bankrupt, from which he was later discharged and a breakdown of his marriage. It seems probable that these financial and matrimonial difficulties were, to some degree at least, associated with the trouble in which he became involved when employed by and attempting to assist various members of the Hancock family at a time when there was considerable hostility and litigation between them. It is evident that his association with some of those persons is of very long duration and it is perhaps those allegiances and that familiarity which drew him into such unwise and improper conduct.

86 His mode of practice is solely as a barrister undertaking a significant degree of Legal Aid work and acting on occasions pro bono. He informed the court that he does not have or maintain a trust account and is not admitted in any other Australian jurisdictions. He assured the court that he regretted his conduct very much. There appear to be reasonable grounds to expect that at the expiration of the period of suspension Mr Camp will have the attributes to practise as a member of the legal profession but we are satisfied that a period of suspension is necessary to demonstrate the gravity of his misconduct and to uphold the standards required of all members of the legal profession.

87 The findings of the SAT make it clear that Mr Camp was, at this period, quite overwrought, behaving in a distracted fashion, and was showing degrees of indecision and irresolution. We are prepared to accept that this was the situation but that does not excuse or justify his conduct. This was a serious breach of the respondent's obligations as a practitioner and warrants a sanction which will mark the disapproval of the court to the practitioner, to all members of the profession and to the public generally as a vindication of the traditions and standards of professional conduct expected of officers of the court. We agree that, upon this finding, the practitioner should be suspended from practice for a period of six months, as sought by the applicant, and we would make an order to that effect.

88 Accordingly, for the reasons outlined, we consider that this court should make the following orders as a result of the Report from the SAT and the two findings of unprofessional conduct which were the subject of references 22A of 2003 and 22C of 2003, namely that:

(1) in respect of the finding of unprofessional conduct on reference 22A of 2003 the respondent pay a fine to the Legal Practice Board of $2,500;

(2) in respect of the finding of unprofessional conduct by the State Administrative Tribunal on reference 22C of the 2003 the respondent's local practising certificate be suspended for a period of six months from today;

(3) the respondent pay the applicant's costs of the motion to be taxed.