Camp v Legal Practitioners Complaints Committee [2009] HCATrans 169 (31 July 2009)

Last Updated: 5 August 2009

[2009] HCATrans 169

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P36 of 2008

B e t w e e n -

ALAN JAMES CAMP

Applicant

and

LEGAL PRACTITIONERS COMPLAINTS COMMITTEE

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 31 JULY 2009, AT 11.36 AM

Copyright in the High Court of Australia

MR B.W. WALKER, QC: May it please the Court, I appear for the applicant. (instructed by Butcher Paull & Calder)

MR A.S. DERRICK: May it please the Court, I appear with MS G.L. ROBERTS for the respondent. (instructed by Legal Practitioners Complaints Committee)

CRENNAN J: Yes, Mr Walker.

MR WALKER: Your Honours, this is a case where leave to appeal on a question of law was refused at first instance and that refusal upheld on appeal. It sounds unpromising for a special leave application thereafter.

CRENNAN J: There are points which are sought to be taken in this Court about section 105(13) which was not taken before the Court of Appeal. Am I right about that?

MR WALKER: You are right. Could I come directly to that?

CRENNAN J: Yes.

MR WALKER: Whatever may be said of the merit of the argument, to which I will very briefly refer, I am bound to concede that the point is well made by my learned friends on pages 93 and 94 of the application book in their paragraphs 22 and following, but particularly paragraphs 28 to 31, that your Honours may consider, whatever be its inherent interest, the point about subsection (13) may not truly arise. Can I try to salvage that position as follows.

The point about subsection (13), as Justice Crennan has inquired and established from me, was not taken. There is not a glimmer of it. It is brand new in this application. It is an argument that has literal difficulties, major difficulties, because it refers to a decision which has an effect. There has been no decision of the State Administrative Tribunal that has, that is, has accomplished, has actually achieved, any effect that is an alteration, in fact, of my client’s capacity to lawfully pursue the vocation which one must suppose includes the profession of law because, as your Honours appreciate, the Act applies across a number of different occupations.

However, the argument which has been raised for the first time in this Court points to the peculiarities of the regime which governs the outcome of disciplinary hearings by the Tribunal for the legal profession where suspension for more than two years or removal from the rolls, both of which of course obviously affect capacity to lawfully pursue that vocation, is a possibility. The argument simply says the conclusiveness provision, which the report of the Tribunal has – the findings and the references to the evidence – has in the Full Court of the Supreme Court in the disciplinary proceeding, means that it is an integral and unexaminable, factually unexaminable part of an eventual determination, for example, to strike a practitioner off. That is the argument.

That is the peculiarity that says, but this is not a preceding or antecedence part of a decision to deprive somebody of the capacity to pursue a vocation, it is actually part and parcel of it because the Supreme Court and the Tribunal are, as it were, yoked together by this conclusiveness provision.

KIEFEL J: You would be reading section 105(13) to say a decision which may have the effect of depriving a person?

MR WALKER: I think that unavoidably I have to say yes to that. Your Honours, I do not want to spend any more time on it because really it is the point that Justice Crennan raised which either does or does not deal it a fatal blow.

CRENNAN J: I suppose the other point is that it does seem as though the applicant is seeking to revisit factual issues and is complaining really about the preference of Ms Fan’s evidence to his own evidence.

MR WALKER: Your Honours may then have anticipated that – I do not know how meritorious this is, but a fallback argument to what I have just put is that, well, we were going beyond a question of law. That means subsection (13) is a live issue and your Honours should grant special leave. That is all I can do with that. With great respect, as your Honours will appreciate, including I am sure from your Honours’ memory of practice, there are cases when it is difficult to say whether a question of law arises, bearing mind what I will call a grievance about a finding of fact.

Notoriously, there are what might be called egregiously wrong findings of fact which do not have and cannot be made to produce a question of law when that is a jurisdictional definition for an appellate function. Equally notoriously, there are ways, I do not suggest by mere words, but there are ways in which on occasion, whether by no evidence or, as in this case, by a failure to give requisite reasons, a question of law does arise.

I cannot properly, on the basis of the material before this Court, put more than as a faint possibility what I have just put as an alternative, namely, if we were going beyond a question of law, well, that would make subsection (13) appropriate. I cannot say anything to ameliorate and I will not say anything to ameliorate the fact that it was not raised below. Of course, if it is a good point, then it is obviously a very important point bearing in mind the unexaminability because of the conclusiveness effect given to the Tribunal’s findings.

So can I turn to what is, with respect, perhaps a point of law substance, albeit one which concentrates entirely on the individual justice of the case, because we are not here to suggest that there would be any different test thrown up by this Court pronouncing on appeal the inadequacy of the reasons for decision measured against the statutory obligation not only to make findings, but to refer to relevant pieces of evidence which we say was wrongly not found at first instance and wrongly not found on appeal. There is no doubt that the parties conducted the argument, with respect, correctly on the basis that a question of law would be thrown up by whether or not the reasons for the decision of the Tribunal answered the statutory description.

Very briefly the background. The allegation was of conversations – how many does not quite matter, but it is almost certainly more than the three or four – between my client and a journalist, Ms Fan. That is another player, not relevant for present purposes. Some, but not all of those conversations were tape recorded. The transcripts appear unsatisfactorily authenticated but, nonetheless, the supposed transcripts of those partial recordings – one of which may on its face have been complete, the others clearly not – were before the Tribunal but in such a way that Ms Fan had, in the sequence of inquest and disciplinary hearing, given different evidence from time to time, including as she was confronted with material in transcript and, much more importantly, what was not to be found in the transcript.

In a nutshell, Ms Fan had said that my client wished to sell for a fantastic sum of money, which was never mentioned on anything that was taped, information that would blow Gina Rinehart out of the water, there then being pending defamation proceedings between Ms Rinehart and the journalist’s employer. It was said that that amounted to material adverse to the client, that the client had no consented to being revealed. My client’s case was to the contrary. This was material that the client would have been happy to be revealed because it exculpated her as well as him from any impropriety in relation to obtaining a copy of Mr Hancock’s will. He pointed to material in which retrospectively Ms Rinehart had, as it were, blessed or sanctified the conversation.

So it was critical to the case upon which the capacity for my client to continue practice may well depend, it was critical to the case, as to whether Ms Fan or my client should be accepted as to what was said so as to provide the essential characterisation of the nature of the dealings between them; who was approaching whom; what money, if any, was involved; what for; what kind of information; was it threatened to be information detrimental to the client or not.

The paragraphs I am about to go to in the Tribunal’s reasons are all the paragraphs which were relied upon at first instance and in the Court of Appeal as supplying an adequacy of reasons to explain why the complete absence from the partially recorded and apparently transcribed conversations of anything which supported the journalist’s position so that bit by bit she was forced in testimony to say, well, that must have been in the other part of the conversation not taped, whether that has been sufficiently explained and the subject of findings by the Tribunal so as to constitute adequate reasons upon the basis of which conclusive findings would go then to the Full Court. Can I take your Honours in the application book to page 18, paragraph 78. All it says is that:

Ms Fan’s evidence was straightforward and should be accepted.

That does not get one anywhere –

The fact that under cross-examination she remembered some of the things that were on the transcript is not surprising -

That, of course, does not go anywhere to explaining why one would find that things that were not on the transcript should nonetheless be believed. Page 20, paragraph 87 is next:

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

That is a classic example of inadequate reasons on such a critical matter. Page 21, paragraph 94, “Mr Gilmour”, my predecessor in brief:

submitted that the evidence of Ms Fan in chief was thoroughly discredited. We do not accept that submission.

That is not reasons –

In our opinion Ms Fan answered as best she could when the transcript was put to her.

So inferentially, the transcript is being used by the members of the Tribunal as a useful indicator of where the truth might lie. Here there is no explanation of, well, why is it not significant that nothing, not a thing, of the sinister kind relied upon found against my client is to be found in the transcribed portions? What chance is that? Page 21, paragraph 97, is the next:

It was put to the practitioner that he had offered to sell . . . He denied this. We accept the evidence of Ms Fan –

That again is not a reason. Page 22, paragraph 103:

we do not agree that Ms Fan’s evidence was “thoroughly discredited”.

That is not a reason –

We are satisfied –

and then there is a conclusion expressed without reference to the evidence or the reasons for any preference. Page 23, paragraph 110 is the next:

We agree with Mr Zilko’s submissions that . . . Ms Fan was prepared to concede matters she had forgotten.

That was when she was confronted with what is in or not in a transcript. Then they, in that paragraph, go on to talk about other matters not in relation to this credibility dispute.

CRENNAN J: The evidence was – and correct me if I am wrong – that she did not transcribe every interview.

MR WALKER: Without any doubt, the transcripts do not purport on their face to be complete. Two of them at least make that crystal clear from their content. One of them may well be complete but, in any event, as I think I made clear, there is probably more than the three or four conversations. Ms Fan said maybe 10. It is a question of whether the Tribunal has given reasons for why they would say that the really damning, sinister, matters were to be found by chance only in those parts which had not been taped, bearing in mind that the tape was put on when the journalist, as she first said, thought this was something that needed to be taped. Page 24, paragraph 116, “Mr Gilmour,” my predecessor:

should rely on the transcript as to what really happened . . . 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.

That, with respect, is not a satisfactory giving of reasons on such a critical matter.

KIEFEL J: This is rather like a review of the evidence. Is there one essential point that you are making out of this or some error in the Court of Appeal?

MR WALKER: It is simply an insufficiency of reasons and that is it, your Honour. The same page, last one, paragraph 118 there is a reference to:

the obvious truth of what she was telling the Tribunal.

Now, with respect, these are ipse dixit. They are not providing reasons for how one deals with what was perhaps infelicitously called in the Court of Appeal the contradiction of her evidence by the tapes. With great respect, Justice Wheeler in the Court of Appeal was plainly correct in saying that on an ordinary understanding of contradiction the tapes or the transcripts could not possibly contradict her evidence because they did not purport to be exactly congruent with everything that she had said.

But in the far more substantive sense of contradiction, namely, were the transcripts solid reason, not to a Briginshaw standard, to accept the word of the journalist where time and time again she had to adjust her evidence so as to deal with the fact that the transcripts did not support what she was saying, so that eventually, in effect, there was the neat unfalsifiable proposition, “The things I have said must have been in the parts of the conversation not taped or the conversations not taped”, then, in our submission, real scrutiny needs to be applied to the reasons. Now, the special reason supplied - - -

KIEFEL J: From what you say, though, it is the distinction between the point of insufficiency of evidence which seems a rather more objective one is somewhat blurred between a question of weight and what you have just said.

MR WALKER: What your Honour appreciates is that I am not at the moment putting that she should not have been accepted. I am, perhaps anachronistically, sticking to the idea that I needed a question of law, we needed a question of law, in the court at first instance and in the Court of Appeal. The question of law was whether the reasons were supplied as the statute required? Those passages are those passages which at first instance were identified as the passages in which the Tribunal had satisfied that statutory obligation.

What I have tried to do is to demonstrate, well, that cannot be right because they simply do not. They are very good examples of what this Court has said, we submit, in analogous cases do not supply reasons for

preferring one witness to another or dealing with a serious point to the potential discredit of a witness. Now, those paragraphs come from the first instance decision that is conveniently quoted by Justice Wheeler and, with respect, adopted by her in effect, application book page 65, paragraph 7. The particular list of paragraphs comes at the second line of that page and you see that they are on the very issue upon which this turned.

So, on the question of law and whether the Tribunal had satisfactorily explained its preference and explained why it did not regard the tapes as damaging her credibility, in our submission, there was a real case to be attended to, a solid case because doubt is very much raised by consideration of those nominated paragraphs as to how they possibly deal with Ms Fan’s shifting, shifting, shifting as the transcripts are put to her. For those reasons, in our submission, and because of the importance of this to my client, it is an individual justice case, there ought to be a grant of special leave on what is a small, discrete point.

KIEFEL J: But it is a point not squarely raised before the Court of Appeal.

MR WALKER: No, this point was squarely raised.

KIEFEL J: Yes.

MR WALKER: This point was squarely raised. The subsection (13) point, not a hint of that.

KIEFEL J: You accept was not raised.

MR WALKER: Your Honours, it would, I accept, be entirely appropriate for your Honours to look at that one askance. On the one that was raised, in our submission, my client stands to be damned on the basis of conclusions on a very critical contrast between witnesses for which there has not been anything like an adequate explanation given by the Tribunal. May it please the Court.

CRENNAN J: S We do not need to trouble you, Mr Derrick.

This application concerns the review of a decision of the State Administrative Tribunal Western Australia. The Court of Appeal of the Supreme Court of Western Australia, Justices Wheeler, Miller and Beech, dismissed an appeal from a decision of the Supreme Court of Western Australia, Justice Jenkins, refusing to grant leave to the applicant, a legal practitioner, to appeal a decision of the Tribunal which found him guilty of unprofessional conduct.

In urging that the Tribunal’s reasons are insufficient, the applicant essentially seeks to re-agitate factual issues determined by the Tribunal, in particular, whether the Tribunal should have preferred his evidence to that of the witness, Ms Fan.

The applicant also seeks to argue that section 105(13) of the State Administrative Tribunal Act 2004 (WA) permitted an appeal to the Court of Appeal on a question of fact but that court proceeded upon the basis that his appeal was limited to questions of law. The applicant’s contention concerning the application of the section was not raised before that court and should not be considered as a basis for leave to appeal.

In any event, as the respondent points out in written submissions, the decision of the Tribunal does not have the effect of denying the applicant the capacity to pursue a vocation which is the statutory premise for the application of the section. We are not persuaded that the interests of justice require a grant of special leave.

Special leave to appeal is refused.

MR DERRICK: May it please your Honours, the respondent seeks an order that the applicant pay the costs of the application.

CRENNAN J: Can you resist that, Mr Walker?

MR WALKER: No, I cannot, your Honour.

CRENNAN J: Special leave is refused with costs.

MR WALKER: May it please the Court.

MR DERRICK: May it please the Court.

CRENNAN J: The Court will now adjourn to reconstitute.

AT 11.58 AM THE MATTER WAS CONCLUDED