Practice and procedure - Strike out application - Section 48State Administrative Tribunal Act 2004 (WA) - Claim that applicant was disadvantaged by other party's conduct - No evidence of conduct and/or no disadvantage established
These reasons were delivered orally at the conclusion of the hearing. They have been edited to correct matters of grammar and infelicity of expression.
[16]
This is an interim application made by the Respondent in the proceedings (Mr Khosa) pursuant to s 48 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Mr Khosa seeks an order that the proceedings be dismissed or struck out on the basis that the Applicant (Committee) has disadvantaged Mr Khosa by attempting to deceive Mr Khosa and/or the Tribunal by its conduct, within the meaning of s 48(1)(d) of the SAT Act (Interim Application).
[17]
The background to the Interim Application is set out in two decisions of mine. The first was Legal Profession Complaints Committee v Khosa [2019] WASAT 143,[1] which dealt with an application made by Mr Khosa in 2019 to strike out the proceedings (2019 Strikeout Decision). The second was Legal Profession Complaints Committee v Khosa [2020] WASAT 167,[2] in which I dealt with an application by the Committee under s 73 of the SAT Act (s 73 Application) to uplift a document that had been produced to the Tribunal (Almanac), for the purposes of permitting the testing of the Almanac by an expert in the United States (s 73 Decision). These reasons should be read in conjunction with those decisions for the purposes of ascertaining the background to the Interim Application. The same abbreviations are used.
For present purposes, it suffices to note these additional facts. The Almanac the subject of the s 73 Decision is said to contain a contemporaneous note made by Mr Khosa's wife, Ms Ruba, of the July 2015 meeting between she and her husband and certain officers of the Legal Practice Board (Board). In the s 73 Decision, I determined that although the Almanac contained personal information about third parties, that personal information was not protected information for the purposes of the SAT Act and hence the Tribunal was not prohibited from permitting that personal information to be seen by third parties. I also determined that the Tribunal had power to permit the Almanac to be uplifted for the purpose of having it tested by Mr Gerald LaPorte, a forensic chemist and document specialist who has offices in Colorado and Washington DC in the United States.
Following the delivery of the s 73 Decision, I made the following orders:
The applicant have leave to uplift the original 2015 'Feng Shui Almanac' produced to the Tribunal by Ms Sharin Ruba on 24 March 2020 (Almanac), on and from 5 January 2021, for the purpose of having the original pages of the Almanac reproduced at pages 194 to 198 of the respondent's supplementary book of documents dated 14 March 2020 examined and tested by Mr Gerald M LaPorte, forensic chemist and document specialist, of Riley Welch LaPorte & Associates Forensic Laboratories, 16106 Swan Mountain Drive, Broomfield, Colorado 80023, USA (Mr LaPorte).
For the purposes of facilitating the said examination and testing, the applicant may send the Almanac to Mr LaPorte by courier upon receipt of an undertaking by Mr LaPorte that the Almanac will, upon receipt by him, be kept in safe custody and returned promptly to the applicant, also by courier, following completion of the examination and testing.
Upon receipt of the Almanac from Mr LaPorte, the applicant must promptly return the Almanac to the Tribunal.
Prior to uplifting the Almanac, an officer of the applicant is to provide to the Tribunal an undertaking in the following terms:
[18]
"I hereby undertake to use my best endeavours to ensure the security of the Almanac during such period as it is in my custody prior to its being couriered to Mr LaPorte and upon its receipt by courier from Mr LaPorte."
[19]
The matter is listed for a directions hearing on Tuesday, 9 February 2021 at 9.30am to consider programming orders required for a final hearing.
The costs of the interim application be reserved.
I understand that Mr Khosa filed an appeal in the Court of Appeal against the s 73 Decision (appeal) and an application for a stay of that Decision. I understand that the Court of Appeal has listed the appeal for a hearing in March, that it dismissed the application for a stay, but that it made an order that Mr LaPorte was not to provide anyone with a copy of his report concerning his examination of the Almanac until the appeal had been resolved.
No reasons have yet been published for that aspect of the Court's decision. However, it appears that the Court has taken the view that Mr LaPorte's analysis should be able to proceed but that no party or the Tribunal should see the outcome of that analysis until the Court has determined the question of whether I erred in concluding the Tribunal had power to permit the uplift of the Almanac to allow its inspection and examination by Mr LaPorte.
More factual background in relation to the Interim Application is set out in the affidavit of Mr Khosa, sworn 22 February 2021 (Mr Khosa's affidavit), and the responsive affidavit of Mr Merrick, affirmed on 25 February 2021 (Mr Merrick's affidavit). I will refer to the factual matters that emerged from those affidavits as and when necessary in the course of these reasons.
For completeness, I note that the Committee sought to strike out various paragraphs of Mr Khosa's affidavit, or for the Tribunal to disregard those paragraphs, on the basis that they contain inadmissible opinion evidence and assertions in the nature of submissions. I do not consider it helpful, in an interim application of the present kind, advanced in a Tribunal which is not bound by the rules of evidence, to expend time on applications to strike out paragraphs of affidavits considered inadmissible by reference to the rules of evidence. Having said that, the rules of evidence exist in part to protect against the dangers of relying on evidence which is unreliable for one reason or another. Consequently, while I have received Mr Khosa's affidavit in its entirety, the Committee is correct to point out that some paragraphs in that affidavit constitute evidence in the nature of expert evidence, which it appears Mr Khosa is not qualified to give, and some paragraphs purport to be evidence when they amount to nothing more than assertion. I have received those paragraphs of Mr Khosa's affidavit on the basis that they should be treated as submissions, recognising that there is no reliable evidentiary foundation for those submissions.
In the course of the hearing, Mr Khosa sent the Tribunal a link to a website for Notaries Public in the United States which he said contained relevant information in relation to one of the issues in dispute. Further, in the course of the hearing, the Committee forwarded to the Tribunal a copy of an affidavit it filed in the Court of Appeal in relation to Mr Khosa's application for a stay of the orders made by the Tribunal.
The parties also filed submissions which have helpfully identified the issues for resolution in the Interim Application. Finally, at 5.08 pm last Friday evening, after the hearing had concluded, Mr Khosa sent to the Tribunal some further submissions. They were filed without leave but the Committee does not object to them being received. I have taken them into account.
[20]
The present application is made by Mr Khosa pursuant to s 48 of the SAT Act, which provides:
(1) This section applies if the Tribunal believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct such as -
(a) failing to comply with an order or direction of the Tribunal without reasonable excuse; or
(b) failing to comply with this Act or the enabling Act; or
(c) asking for an adjournment the need for which is attributable to a failure described in paragraph (a) or (b); or
(d) attempting to deceive another party or the Tribunal; or
(e) vexatiously conducting the proceeding; or
(f) failing to attend any hearing in the proceeding.
(2) If this section applies, the Tribunal may -
(a) if the party causing the disadvantage is the applicant, order that the proceeding be dismissed or struck out;
(b) if the party causing the disadvantage is not the applicant -
(i) determine the proceeding in favour of the applicant and make any appropriate orders; or
(ii) order that the party causing the disadvantage be struck out of the proceeding.
(3) The Tribunal's powers to act under subsection (2) are exercisable only by a legally qualified member.
(4) The Tribunal may act under subsection (2) on the application of a party or on its own initiative.
Several observations can be made about s 48 of the SAT Act in the context of the Interim Application. First, the basis on which the Tribunal may act is that it believes that a party to a proceeding is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding. When used as a verb, the word disadvantage means 'to cause disadvantage to', 'to have a detrimental effect on', and 'to subject to disadvantage'.[3] As a noun, disadvantage means 'detriment', 'damage or harm to one's situation' and an 'unfavourable circumstance or condition'.[4]
Secondly, the disadvantage must be unnecessary. That, no doubt, reflects the fact that the conduct of proceedings often and necessarily results in some disadvantage to a party, for example, in the entry of judgment against a party which might have consequences in terms of performance of orders, in awards of costs or in orders compelling a party to do something, or refrain from doing something. That is the nature of litigation. The point is that the disadvantage must be unnecessary in all of the circumstances.
Thirdly, the disadvantage must arise from the way in which one party is conducting those proceedings. Therefore, there must be a causal nexus between the party's conduct of the proceedings and the unnecessary disadvantage to the other party. Pausing there, it may be observed that the Tribunal's power under s 48 of the SAT Act is a power conferred on it in order to carry out its objectives under s 9(b) of the SAT Act, to ensure that proceedings are conducted as speedily and with as little formality and technicality as is practicable and in a way which minimises the cost to the parties. The Tribunal's objectives also include to achieve the resolution of questions, complaints or disputes, and to make or review decisions, fairly and according to the substantial merits of the case.[5]
Fourthly, while s 48(1) of the SAT Act contains a list of conduct which may constitute the conduct of proceedings in a way which unnecessarily disadvantages the other party, that list is not exhaustive. Nor is the conduct there set out of a kind which inevitably can be characterised as conduct which will warrant the exercise of the Tribunal's power under s 48 of the SAT Act. In each case, it will depend on the Tribunal having sufficient information before it to found a belief that the conduct was of a kind which brought about an unnecessary disadvantage to the other party.
Fifthly, if conduct of a kind described in s 48(1) of the SAT Act is shown to have been engaged in by one party, that enlivens the Tribunal's power under s 48(2) of the SAT Act. Clearly, s 48(2) of the SAT Act confers a discretion on the Tribunal in relation to the exercise of that power. All of the circumstances of the case will be relevant to the Tribunal's exercise of that discretion. Those circumstances will include whether the party engaging in the conduct did so with a view to causing unnecessary disadvantage to the other party or whether there was some innocent explanation for that conduct. The nature of the limited, but very serious, power that the Tribunal has under s 48(2) of the SAT Act will also be relevant to the exercise of discretion, as will the Tribunal's ability to signal its disapproval of the party's conduct in other ways, such as by orders for costs under s 87 of the SAT Act.
Sixthly, as I have just observed, the Tribunal's powers under s 48(2) of the SAT Act are limited but very serious in nature. They involve striking out or dismissing the proceeding if the conduct was engaged in by the applicant, or determining the proceedings in favour of the applicant, or striking out a respondent, if that respondent engaged in conduct causing disadvantage to an applicant. In any of those situations, the Tribunal's order would be fatal to the case advanced, either by the party whose case is dismissed, or the party who has been struck out from participating in the proceedings.
In the latter respect, the power of the Tribunal to strike out under s 48 of the SAT Act is similar to the Tribunal's power under s 47 of the SAT Act. Both permit the Tribunal to dismiss a proceeding other than on the merits of the case. The principles in relation to s 47 of the SAT Act strikeout applications were discussed by me in the 2019 Strikeout Decision. In my view, the approach taken by the Tribunal in dealing with an application under s 48 of the SAT Act should be similar to its approach to an application under s 47 of the SAT Act, in two respects. First, the Tribunal should bear in mind that to determine a proceeding other than on the merits of the applicant's or respondent's case is an exceptional step to take. Further, the party applying for relief under s 48 of the SAT Act bears a heavy burden in persuading the Tribunal to exercise its discretion.
The terms of s 48 of the SAT Act appear to have been drawn from s 78 of the Victorian Civil and Administrative Tribunal Act1998 (VIC)[6] (VCAT Act), which is in relevantly identical terms. The nature of the discretion exercised by the Tribunal under s 78 of the VCAT Act has been discussed in a number of cases. The author of Pizer's Annotated VCAT Act lists the principles relating to the application of s 78 as including the following:[7]
Section 78(2) gives VCAT the power to dispose of a proceeding against the wishes of the applicant 'in a manner akin to striking out or dismissal without conducting a hearing of the merits' (Martin v Fasham Johnson Pty Ltd [2008] VSC 289)[8];
Section 78(2) requires VCAT to focus on the way in which the proceeding is being conducted, not on the merits of the proceeding;
The power in s 78(2) is both conditional and discretionary. It is conditional in the sense that it may not be exercised unless the Tribunal forms the belief, under s 78(1) that a party is conducting the proceeding in a way that unnecessarily disadvantages another party to the proceeding by conduct as set out in paragraphs (a)-(g) of s 78(1);
The power is discretionary in the sense that the Tribunal may refuse to exercise it even if it is satisfied that a party has been conducting the proceeding in a way that unnecessarily disadvantages another party;
The Tribunal's power under s 78(2) is discretionary (Legal Services Commissioner v Spaulding (Legal Practice) [2015] VCAT 649)[9];
As to the exercise of that discretion -
It 'should only be exercised when there is no other way to achieve a just outcome' (Davies v Diversiti Pty Ltd (Civil Claims) [2010] VCAT 1126)[10];
In Bell Corp Victoria Pty Ltd v Stephenson [2003] VSC 255[11] Ashley J stated that following matters should be considered -
The subject matter of the belief formed by the Tribunal for the purposes of s 78(1);
the nature of the power, specifically the fact that s 78(2) contemplates the making of an order with very serious consequences in circumstances that would probably not fit the templates in sections 75 and 76;
For present purposes, two of those observations bear repetition. First, the power in s 78(2) of the VCAT Act (and thus s 48(2) SAT Act) is both conditional and discretionary: conditional in the sense that it may not be exercised unless the Tribunal has formed the belief that a party is conducting the proceedings in a way that unnecessarily disadvantages another party; and then discretionary in the sense that the Tribunal may refuse to exercise its discretion even if it is so satisfied. Secondly, the exercise of the discretion should only be exercised where there is no other way to achieve a just outcome.
Finally, I note that those factors to which Ashley J referred in Stephenson are not exhaustive. They are similar to those factors which I have already identified as relevant to the exercise of the Tribunal's power under s 48 of the SAT Act.
[21]
The grounds for the Application were not set out in any detail in the Interim Application itself but can be discerned from Mr Khosa's affidavit and from his submissions. Mr Khosa says that the Committee has been conducting this proceeding in a way that unnecessarily disadvantages him in the following ways:
(i) By failing to provide to the Tribunal all relevant information in relation to the Committee's s 73 Application. Mr Khosa expressly alleges that the Committee lied to the Tribunal by omission. Specifically, the information which Mr Khosa says the Committee did not provide to the Tribunal was information identifying:
the urgency involved in undertaking the testing of the Almanac;
the limitations of the testing process Mr LaPorte proposes to conduct;
that an inconclusive result is likely to follow the testing of the Almanac;
that it will be difficult for Mr LaPorte to conduct any useful examination having regard to the nature of the materials involved, for example, the paper and ink; and
that Mr LaPorte is not an independent expert.
(ii) Mr Khosa alleges that the Committee has insisted that he withdraw a witness statement made by his wife, which he prepared and filed in these proceedings, and that the Committee has threatened an investigation of his conduct in preparing that statement.
(iii) Mr Khosa alleges that the Committee has amended its grounds of application in a way which is deliberately designed to present a false narrative not supported by the facts.
(iv) Mr Khosa alleges that the Committee has failed to comply with an order of the Tribunal in relation to an undertaking from Mr LaPorte.
(v) Mr Khosa alleges that by uplifting the Almanac, the Committee will disclose personal information to Mr LaPorte.
Mr Khosa alleges that each of those aspects of the conduct of the Committee will cause disadvantage to him in these proceedings.
The Committee's response to the matters alleged against it in the Interim Application is that it denies any inappropriate conduct and says that the Interim Application should be dismissed with an order for costs.
I will deal with each of the grounds separately and then return to consider some aspects of the Interim Application overall.
[22]
Ground (i) alleges a failure by the Committee to disclose to the Tribunal information relevant to the s 73 Application, including information identifying the urgency involved in undertaking the testing of the Almanac. The essence of Mr Khosa's complaint is that the Committee did not tell the Tribunal, at the hearing of the s 73 Application in July 2020, that the testing by Mr LaPorte needed to be undertaken urgently. Mr Khosa complains that the Committee first mentioned the urgency of the testing in a letter dated 8 January 2021 in which it quoted from an email from Mr LaPorte (which was said to have been sent in response to an inquiry from the Committee in relation to the stay application in the Court of Appeal). In that email, Mr LaPorte said:
[23]
Based on extensive testing and, in my experience, if a document is factually less than one year old but backdated more than two years, then there is a reasonable likelihood of detecting that the document is fraudulent with respect to its purported date of signing/writing. Once the document gets beyond one year old, then the likelihood of detection significantly decreases.
[24]
Mr Khosa says that it cannot be the case that this new information was not available to the Committee at the time of the hearing of the s 73 Application. When pressed as to the basis for that view, Mr Khosa asserted that the Committee must have known that information at the time of the hearing of the s 73 Application and yet it failed to tell the Tribunal. Mr Khosa's argument in relation to the disadvantage to him and his case caused by this conduct appears to be that the information in relation to the urgency of the testing was information which would have caused the Tribunal to have reservations about the efficacy of the testing and that that would have weighed against permitting the uplift of the Almanac.
Furthermore, Mr Khosa says that in failing to disclose the information to him and to the Tribunal, there was a focus in the hearing of the s 73 Application, and in the Tribunal's reasons, on the security of the Almanac, rather than on the efficacy of the testing itself. The failure to disclose this information, he says, assisted to ensure that the Tribunal granted the s 73 Application. He says the grant of that Application will be to his disadvantage because in order to counter the evidence of Mr LaPorte, Mr Khosa would need to obtain an expert report of his own. He says he cannot afford to do so, and that will work to his disadvantage during the hearing.
Ground (i) for the Interim Application fails. There is no evidence that the Committee knew that testing of the Almanac should take place urgently. Mr Merrick told the Tribunal in the course of the hearing of the Interim Application that he first learned of the need for urgency when he made inquiries about the effect on the efficacy of the testing as a result of any delay caused by the appeal. That information was confirmed by an affidavit of Mr Merrick, affirmed 10 February 2021, which was filed in the appeal. Annexure SRM2 to that affidavit included a copy of an email sent by Mr Merrick to Mr LaPorte dated 5 January 2021 in which Mr Merrick asked whether there was a time period beyond which it would not be possible to date the notes in the Almanac. Mr LaPorte responded by email the same day and provided the advice I quoted at [26].
It is also unlikely that the Committee would not have provided this information to the Tribunal at the hearing of the s 73 Application, or at some stage thereafter, had it known it. It would have been in the Committee's interests to encourage the Tribunal to provide its decision on the s 73 Application as quickly as possible.
It is unnecessary to consider the question of disadvantage in relation to this aspect of the Interim Application, but I will return to the question of disadvantage later in these reasons.
It is convenient to deal collectively with the next three aspects of ground (i) of the Interim Application. These aspects of ground (i) concern the alleged failure by the Committee to provide to the Tribunal relevant information, namely:
information as to the limitations of the testing process that Mr LaPorte proposes to conduct;
information that indicates that an inconclusive result is likely to follow the testing; and
information identifying that it would be difficult for Mr LaPorte to conduct any useful examination having regard to the nature of the materials involved.
The essence of Mr Khosa's complaint is that he has compared the description of the testing Mr LaPorte says he will do (as outlined in the Committee's letter to Mr Khosa dated 8 January 2021) and Mr LaPorte's description of his proposed testing, set out in the ink testing protocol which was annexed to Mr Merrick's affidavit of 22 May 2020 (filed in support of the s 73 Application). Mr Khosa says that Mr LaPorte is now not referring to the same testing regime, or is referring to a testing regime which is significantly different from that outlined in the ink testing protocol. Mr Khosa also says that he has now done research into the testing Mr LaPorte proposes to undertake and he believes that there are a number of limitations which will affect the likelihood of a conclusive result being obtained in that testing. Mr Khosa bases his unqualified opinions primarily on an article by Brunelle and Cantu entitled 'A Critical Evaluation of Current Ink Dating Techniques', a copy of which was annexed to his affidavit, and on information from a website maintained by a body called Eurofins Scientific. Mr Khosa relies on these sources of information to contend that the results of the testing Mr LaPorte proposes to undertake will probably be inconclusive. Further, Mr Khosa contends that the type of paper of which the Almanac is made, and the fact that the relevant pages are printed on both sides, will also make testing difficult and the results of the tests by Mr LaPorte will be inconclusive as a result.
Mr Khosa's argument in relation to the disadvantage to him and his case which would be caused by this conduct appears to be the same as that which I outlined above in relation to ground (i) of the Interim Application.
These additional bases for ground (i) of the Interim Application also fail. Mr Khosa has not shown that Mr LaPorte's proposed testing, as outlined in the Committee's letter to Mr Khosa of 8 January 2021, is different in any material way, or indeed, at all, from that outlined in the ink testing protocol which was before the Tribunal at the hearing of the s 73 Application.
Mr Khosa has also not shown that the Committee was aware of the matters he now asserts are limitations in the testing which Mr LaPorte proposes to undertake. Further, any such limitations are properly matters for expert evidence at the final hearing, which will assist the Tribunal to decide whether any opinion given by Mr LaPorte should be relied upon. In the absence of seeing any opinion or report from Mr LaPorte, it is impossible to make any assessment of the limitations which Mr Khosa asserts will be inherent in his testing, nor is there any utility in speculating about those matters at this stage.
Because Mr Khosa has not made out the alleged conduct by the Committee on which he relies, it is unnecessary to consider the question of disadvantage in relation to this aspect of the Interim Application.
The final allegation by Mr Khosa that underlies ground (i) of the Interim Application is that the Committee failed to provide to the Tribunal relevant information, namely, that Mr LaPorte is not an independent expert. In paragraph 19 of Mr Khosa's affidavit, Mr Khosa alleges that:
[25]
It is clear that the Committee's chosen analyst is aligned with the Committee which makes the basis of his examination questionable. This lack of any accurate scientific process and the alignment of the analyst with the Committee points to a subjective opinion. The Committee is attempting to force a dubious examination in order to obtain an inaccurate, inconclusive result to secure a finding that is not supported by any factual or evidentiary matrix.
[26]
The disadvantage argument that Mr Khosa alleges in relation to this basis for ground (i) appears to be the same as that advanced in relation to the other bases for ground (i) to which I have already referred.
This aspect of ground (i) of the Interim Application also fails. No basis whatsoever has been shown for concluding that Mr LaPorte is aligned with the Committee, as Mr Khosa contends.
It is unnecessary to consider the question of disadvantage in relation to this aspect of the Interim Application but, as I have said, I will return to the question of disadvantage later in these reasons.
[27]
Ground (ii) of the Interim Application is that the Committee has insisted that Mr Khosa withdraw Ms Ruba's witness statement filed in these proceedings, or produce an amended witness statement, from which certain material has been redacted, and that the Committee has threatened to investigate Mr Khosa's conduct in preparing the witness statement. This complaint arises from the terms of a letter sent by the Committee to Mr Khosa dated 14 September 2020. In that letter, the Committee referred to the witness statement of Ms Sharin Ruba, Mr Khosa's wife, which had been filed by Mr Khosa as part of the evidence he wishes to rely on in these proceedings.
The Committee raised a number of objections to that witness statement: that Ms Ruba's evidence on matters other than what was said at the July 2015 meeting was irrelevant to the proceedings; that Ms Ruba was not in a position to give evidence about much of what she stated in her statement; and that the witness statement was replete with assertions and allegations which were vexatious, scandalous or defamatory. The Committee requested that Mr Khosa consider filing a substituted statement. Furthermore, in the last paragraph of the letter, Mr Merrick, writing for the Committee, said:
[28]
Finally, it should be noted that regardless of what steps may or may not be taken by you in relation to the statement, the Committee will need to consider whether to investigate on its own initiative pursuant to section 421 of the Legal Profession Act 2008 (WA), your conduct in filing a statement in the Tribunal which contains material of the kind referred to above. Should the Committee wish to hear from you further in the context of any such investigation it will write to you separately.
[29]
Mr Khosa contended that the disadvantage to him was that the Committee had attempted to influence the way in which he presented evidence at the final hearing of this proceeding and the content of that evidence.
This ground of the Interim Application has not been made out. No disadvantage to Mr Khosa has been shown. Although the last paragraph of Mr Merrick's letter of 14 September 2020 appears heavy-handed and, regrettably, unlikely to facilitate the expeditious resolution of the proceedings, the fact is that Mr Khosa has not sought to amend Ms Ruba's statement. There has not, therefore, been any disadvantage to Mr Khosa's conduct of his case because the witness statement remains in the same terms in which it was filed.
[30]
The next ground of the Interim Application is that the Committee has amended the grounds of the application it filed in the proceedings in a way which is deliberately 'designed to present a false narrative not supported by the facts'. This ground was outlined in paragraph 46 of Mr Khosa's affidavit and the paragraphs there following. Mr Khosa complains that the Committee amended the grounds of its application to replace the phrase 'current overheads' with the phrase 'current debts'. Mr Khosa says that the latter phrase has a different meaning to the former phrase and that the use of the phrase 'current debts' is 'designed to present a false narrative that is not supported by the facts'.
The disadvantage that is said to result from that amendment is that the term 'current debts' is 'inflammatory, misleading and prejudicial' because the word 'debt' depicts totality of loss, which Mr Khosa says is an allegation not supported by the facts.
This ground of the Interim Application has not been made out. Mr Khosa has not established that he has been disadvantaged, either at all or in the proceedings, by the Committee's conduct. If the Committee alleges something which it cannot prove at the final hearing, that will be a matter for submissions by Mr Khosa at the hearing. In the final hearing the Tribunal will make findings on disputed facts, after having considered all of the evidence put before it. If the Committee makes an allegation for which there is no evidence, there is no reason to suppose that the Tribunal will accept that allegation, regardless of the terms in which it is put.
[31]
I turn next to ground (iv) of the Interim Application, in which Mr Khosa alleges that the Committee has failed to comply with an order or direction made by the Tribunal in relation to an undertaking from Mr LaPorte. There have been a number of hearings in relation to this issue. Mr Khosa's concern throughout has been to ensure that the Committee provides an undertaking from Mr LaPorte that is on letterhead and that has been witnessed by a Notary Public. This was sought on the basis that it would provide Mr Khosa with some assurance that Mr LaPorte is, in fact, who he says he is, and because the undertaking will be important in the event that there is some damage to the Almanac in the course of the testing process so that Mr Khosa needs to seek to enforce the undertaking. These concerns now appear to have been alleviated. The Tribunal has received a copy of an undertaking signed by Mr LaPorte in front of a Notary Public in Colorado in the United States.
The only remaining issue in relation to that undertaking, is Mr Khosa's allegation that the Committee has been allowed to have further time to provide the undertaking in this form. In his email to the Tribunal at 5.08 pm on Friday 26 February 2021, Mr Khosa said:
[32]
This is fruit from the poisonous tree being the decision that was based on the Committee failing to give all information that is relevant to the uplift.
[33]
Ground (iv) of the Interim Application has not been made out. The undertaking has now been provided. It is not necessary that I make any comment on the merits of the arguments or the concerns that Mr Khosa had advanced in relation to the need for an undertaking which had been signed in front of a Notary Public. To the extent that Mr Khosa claims some disadvantage by the fact that it has taken the Committee some time to obtain the undertaking, I am not persuaded that he has shown any disadvantage to him in his conduct of the proceeding.
[34]
Next, I turn to ground (v) which is that by uplifting the Almanac, the Committee will disclose personal information to Mr LaPorte. Mr Khosa contends that, as the Committee is uplifting the Almanac, it is clear that the Committee will have access to personal information contained in the Almanac, which he argued was protected matter. Mr Khosa says that the Court of Appeal was not aware that the Committee would be uplifting the Almanac from the Tribunal in order to courier it to Mr LaPorte. Mr Khosa contends that the disclosure of personal information in the Almanac 'places me, Ms Ruba and the affected third parties whose personal information it is, at a disadvantage'.
This ground of the Interim Application has not been made out. In the s 73 Decision, I determined that the Almanac did not contain personal information which was 'protected matter' for the purposes of the SAT Act. That being the case, there is no reason why the Tribunal cannot permit that personal information to be disclosed to a third party, namely Mr LaPorte.
As for disadvantage, Mr Khosa has not shown how the disclosure of the information would disadvantage the conduct of his case or that he will be disadvantaged at all by the disclosure of personal information. In oral submissions, it emerged that Mr Khosa's argument, in essence, was that Ms Ruba would be at a disadvantage by the disclosure of the personal information of others to third parties, and that Mr Khosa would share in the same disadvantage because they are married and their interests in the present proceedings are aligned. That is not a disadvantage of a kind with which s 48 of the SAT Act is concerned. I make that observation without commenting in any way on Mr Khosa's claim that Ms Ruba would suffer any disadvantage at all as a result of the disclosure of the personal information. Furthermore, I note that that disclosure will take place as a result of an order of the Tribunal.
[35]
It is appropriate to make some general observations in relation to the question of disadvantage which has been raised by Mr Khosa in relation to each of grounds (i) - (iv) of the Interim Application. The argument in relation to disadvantage which underlay these grounds was that, by seeking to test the Almanac and by persuading the Tribunal to permit that to occur, Mr Khosa has been disadvantaged, because to counter the evidence of Mr LaPorte, he would need to obtain an expert report of his own. Mr Khosa says cannot afford to do so and that will work to his disadvantage at the final hearing of the proceeding.
I note the following matters. The s 73 Application was made as a result of Mr Khosa's indication that he wished to rely on notes said to have been made by Ms Ruba of the July 2015 meeting, and the circumstances in which the existence of those notes came to be disclosed to the Committee. It was Mr Khosa's pursuit of the use of that evidence which gave rise to the s 73 Application. Insofar as Mr Khosa says he does not have the money to pay for an expert report of his own, that assumes that one will be required. It is not yet known whether Mr LaPorte will provide any conclusive findings as a result of his testing.
In any event, a party who seeks to rely on expert evidence, in circumstances where the Tribunal decides that expert evidence can properly be adduced in a proceeding, cannot be regarded as acting to the disadvantage of an opponent whose financial circumstances may make it difficult to afford expert evidence of their own choosing. One of the realities of litigation is that a party's financial circumstances may limit the choices that party has about the manner in which the litigation will be conducted.
A party's financial situation may have impacts on the manner in which they conduct litigation, not least of which may be whether they are legally represented. Disadvantageous as that may be to a party, it is not something which can be laid at the feet of an opponent. The Tribunal seeks to ensure that its processes are kept as simple as possible, in circumstances where many parties act for themselves in proceedings in the Tribunal. To the extent that Mr Khosa points to his financial situation in these proceedings as a disadvantage, which he seeks to rely on as against the Committee, this aspect of the Interim Application must be rejected.
As Mr Khosa has not, by any of his grounds for the Interim Application, established that the Committee has engaged in conduct which unnecessarily disadvantages him in the proceedings, the Tribunal's discretion to exercise the power in s 48(2) of the SAT Act has not been enlivened. That being the case, it is unnecessary to say anything about the proper exercise of the discretion in this case.
No basis for the Interim Application has been made out and the Interim Application should therefore be dismissed.
[36]
The Committee seeks an order that Mr Khosa pay its costs of the Interim Application. I have some sympathy for that application, particularly in circumstances where I have found that no basis for the Interim Application has been made out, and where this is the second application made by Mr Khosa to strike out the proceedings. Nevertheless it seems to me that the preferable course is to reserve the question of costs. The costs of the Interim Application can be considered in the context of an application by either party for the costs of the proceedings as a whole, once these proceedings are determined.
[37]
The interim application pursuant to s 48(2) of SAT Act is dismissed.
The costs of the interim application are reserved.
[38]
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
the remedy provided by s 78(2) should be 'of last resort and not first resort';
the requirement imposed by s 97 to act fairly, which should be considered to import the concept that, ordinarily, the 'interests of case management should not be employed so as to shut a party out of litigating its case';
the requirement of s 98(1)(a) to comply with the rules of natural justice 'to the extent that a party should ordinarily be given an opportunity to be heard upon the merits';
the consequences of making an order under s 78(2) to deprive a party of an opportunity to be heard upon the merits; and
the power conferred [under the VCAT Act] to make cost orders.